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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, 343.
3. 1 Black. Comm. 59, 60. See also Ayliffe's Pandects, B. 1, tit 4, p. 25, &c.; 1 Domat. Prelim. Book, p. 9; Id. Treatise on Laws, ch. 12, p. 74.
4. 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 rule in respect to interpretation. See his Treatise on Laws, c. 12, p. 74 &c. and Preliminary Discourse, tit. 1, §2, p. 6 to 16.
5. Book 2, ch. 7, §3.
6. The foregoing remarks are borrowed almost in terms from Rutherforth's Institutes of Natural Law (B. 2, ch. 7, §4 to 11), which contain a very lucid exposition of the general rules of interpretation. The whole chapter deserves an attentive perusal.
7. The value of contemporary interpretation is much insisted on by the Supreme Court, in Stuart v. Laird, 2 Cranch, 299, 309, in Martin v. Hunter, 1 Wheat. R. 304, and in Cohens v. Virginia, 6 Wheat. R. 264, 418 to 421. There are several instances, however, in which the contemporary interpretations by some of the most distinguished founders of the constitution have been overruled. One of the most striking is to be found in the decision of the Supreme Court of the suability of a state by any citizen of another state;a and another in the decision by the Executive and the Senate, that the consent of the latter is not necessary to removals from office, although it is for appointments.b
a. Chisholm v. Georgia, 2 Dall. 419.
b. The Federalist, No. 77.
8. Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.c The first is "The capital and lending object of the constitution was, to leave with the states all authorities, which respected their own citizens only, and to transfer to the United States those, which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favour of the states in the former, if possible, to be so construed." Now, the very theory, on which this canon is founded, is contradicted by the provisions of the constitution itself. I many instances authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.d But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of a rule is that, which, without regard to the intent or objects of a particular clause, insists, that it shall, if possible, (not if reasonable) be construed in favour of the states, simply because it respects their citizens? The second canon is, "On every question of construction [we should] carry ourselves back to the time, when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed." Now, who does not see the utter looseness, and incoherence of this canon. How are we to know, what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides; of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to the other eight states? What is to be done, as to the eleven new states, which have come into the Union under constructions, which have been established, against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed. Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply because they were actors in those days, (constituting not one in a thousand of those, who were called to deliberate upon the constitution, and not one in ten thousand of those, who were in favour or against it, among the people)? Or are we to be governed by the opinions of those, who constituted a majority of those, who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain, what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the "probable meaning" to be gathered by conjectures from scattered documents, from private papers, from the table talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavouring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed, as to "the probable meaning" of the framers or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the "probable meaning" of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied, that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?
c. Jefferson's Corresp. 373; Id. 391, 392; Id. 396.
d. Jefferson's Corresp. 391, 392, 396.
9. 1 Tucker's Black. Comm. App. 151.
10. B. 2, § 305.
11. § 508.
12. Rawle on the Constitution, ch. 1, p. 31.
13. Martin v. Hunter, 1 Wheat. R. 304, 325.
14. The Federalist, No. 37.
15. Wheat. R. 304; S. C. 3 Peters's Cond. R. 575.
16. This is still more forcibly stated by Mr. Chief Justice Marshall in delivering the opinion of the court in McCulloch v. Maryland, in a passage already cited. 4 Wheat. R. 316, 402 to 405.
17. See also McCulloch v. Maryland, 4 Wheat. R. 316, 402 to 406.
18. See also Id. 222, and Mr. Chief Justice Marshall's opinion in Ogden v. Saunders, 12 Wheat. R. 332.
It has been remarked by President J.Q. Adams, that "it is a circumstance, which will not escape the observation of a philosophical historian, that the constructive powers of the national government have been stretched to their extremest tension by that party when in power, which has been most tenderly scrupulous of the state sovereignty, when uninvested with the authority of the union themselves." He adds, "Of these inconsistencies, our two great parties can have little to say in reproof of each other." Without inquiring into the justice of the remark in general, it may be truly stated. that the Embargo of 1807, and the admission of Louisiana into the Union, are very striking illustrations of the application of constructive powers.
19. See Ogden v. Saunders, 12 Wheat. R. 332, Opinion of Mr. Chief Justice Marshall.
20. See Gibbons v. Ogden, 9 Wheat. R. 189.
21. Hunter v. Martin, 1 Wheat. R. 304, 326, 327; S. C. 3 Peters's Cond. R. 575, 583.
22. See Gibbons v. Ogden, 9 Wheat. R. 1,187, &c. 222, &c.
23. See Sturgis v. Crowninshield, 4 Wheat. R. 112, 202.
24. Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, (6 Wheat. 204, 226) uses the following expressive language: "The idea is Utopian, that government can exist without leaving the exercise of discretion some where. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger."
25. See United States v. Fisher, 2 Cranch, 358; S. C. Peters's Cond. R. 421.
26. Sturgis v. Crowninshield, 4 Wheat R 122, 202.
27. See Bacon's Abridg. Statute I; Vattel, B. 2, ch. 17, § 277 to 285, 299 to 302.
28. See Bas v. Tingey 4 Dall. R. 37; S. C. 1 Peters's Cond. R. 221.
29. Gibbons v. Ogden, 9 Wheat. R. 1,188, 189.
30. 2 Dall. R. 419; S. C. 2 Cond. R. 635, 652.
31. Bacon's Abridg. Statute 1. 8.
32. The Federalist, No. 44.
33. The reasoning of Mr. Chief Justice Marshall on this subject, in McCulloch v. Maryland, (4 Wheat. 316) is so cogent and satisfactory, that we shall venture to cite it at large. After having remarked, that words have various senses, and that what is the true construction of any used in the constitution must depend upon the subject, the context, and the intentions of the people, to he gathered from the instrument, he proceeds thus:
| The subject is the execution of those great powers, on which the welfare of a nation essentially depends. It must have been the intention of those, who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits, as not to leave it in the power of congress to adopt any, which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means, by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies, which, if foreseen at all, must have been seen dimly, and which can be best provided for, as they occur. To have declared, that the best means shall not be used, but would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would for ever be subject to doubt and controversy. 1 If one means is adopted to give it effect, and is within its
scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A power granted in a frame of government is not contemplated to be exhausted in a single exertion of it, or uno flatu. It is intended for free and permanent exercise; and if the discretion of the functionaries, who are to exercise it, is not limited, that discretion, especially, as those functionaries must necessarily change, must be coextensive with the power itself. Take, for instance,
the power to make
war. In one age, this would authorize the purchase and employment of the weapons then ordinarily used for this purpose. But suppose these weapons are wholly laid aside, and others substituted, more efficient and powerful; is the government prohibited from employing the new modes of offence and defence? Surely not. The invention of gunpowder superseded the old modes of warfare, and may perhaps, by future inventions, be superseded in its turn. No one can seriously doubt, that the new modes would be within the scope of the power to make war, if they were appropriate to the end. It would, indeed, be a most extraordinary mode of interpretation of the constitution, to give such a restrictive meaning to its powers, as should obstruct their fair operation. A power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to be their intention, to clog and embarrass its execution, by withholding the most appropriate means. There can be no reasonable ground for preferring that construction, which would render the operations of the government difficult, hazardous, and expensive; or for imputing to the framers of the constitution a design to impede the exercise of its powers, by withholding a choice of means.e
So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered 'to provide for the punishment of counterfeiting the securities and current coin of the United States,' and 'to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.' The several powers of congress may exist, in a very imperfect state to be sure, but they may exist, and be carried into execution, although no punishment should be inflicted in cases, where the right to punish is not expressly given. Take, for example, the power 'to establish post offices and post roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power, and duty of carrying the mail along the post road, from one post office to another. And, from this implied power has again been inferred the right to punish those, who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those, who rob it, is not indispensably necessary to the establishment of a post office, and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record, or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction, on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.f |
f. See United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters's Cond. R. 421, 429.
34. See the remarks of Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, 6 Wheat. R. 204, 226; United States v. Fisher, 2 Cranch. 358; S. C. 1 Peters's Cond. R. 421, 429.
35. McCulloch v. Maryland, 4 Wheat. R, 316, 409, 410, 421, 423; United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters's Cond. R. 421.
36. The Federalist, No. 33, 44; McCulloch v. Maryland, 4 Wheat. R. 316, 423.
37. In the discussions, as to the constitutionality of the Bank of the United States, in the cabinet of President Washington, upon the original establishment of the Bank, there was a large range of argument, pro el contra, in respect to implied powers. The reader will find a summary of the lending views on each side in the fifth volume of Marshall's Life of Washington, App. p. 3, note 3, &c.; 4 Jefferson's Corresp. 523 to 526; and in Hamilton's Argument on Constitutionality of Bank, 1 Hamilton's Works, 111 to 155.
38. Anderson v. Dunn, 6 Wheat. 204, 226.
39. Article 2.
40. Per Mr. Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat R. 316, 406, 407, 421.
41. The Federalist, No. 33.
42. The Federalist, No. 44.
43. The Federalist, No. 44.
44. The Federalist, No. 32.
45. See Huston v. More, 5 Wheat. R. 1, 22, 24, 48; Ogden v. Gibbons, 9 Wheat. R. 1, 198, 210, 228, 235; Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Ogden v. Saunders, 12 Wheat. 1, 275, 307, 322, 334, 335.
46. Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Gibbons v. Ogden, 9 Wheat. R. 1, 198, &c.
47. The Federalist, No. 32; Gibbons v. Ogden, 9 Wheat. R. 1,198, 199 to 205; McCulloch v. Maryland, 4 Wheat, R. 316, 425.
48. Gibbons v. Ogden, 9 Wheat. R. 1, 205. -- Mr. Chancellor Kent has given this whole subject of exclusive and concurrent power a thorough examination; and the result will be found most ably stated in his learned Commentaries, Lecture 18. 1 Kent Comm. 364 to 379, 2d edit. p. 387 to 405.
49. Ware v. Hylton, 3 Dall. 199, S. C. 1, Conden. R. 99, 112,127, 128, 129; Gibbons v. Ogden, 9 Wheat. R. 1, 210, 211; McCulloch v. Maryland, 4 Wheat. R. 316, 405, 406, 425 to 436 Houston v. Moore. 5 Wheat. R. 1, 22, 24, 49, 51, 53, 56; Sturgis v. Crowninshield, 2 Wheat. R. 1, 190,196; Golden v. Prince, 3 Wash. C. C. R. 313, 321; The Federalist, No. 32; Brown v. Maryland, 12 Wheat. R. 419, 419.
50. McCulloch v. Maryland, 4 Wheat. R. 316, 426.
51. Sturgis v. Crowninshield, 4 Wheat. R. 1, 193.
52. Mr. Justice Washington, Houston v. Moore, 5 Wheat. R. 1, 21, 22.
53. 5 Wheat R. p. 22.
54. Id. 24. See also Golden v. Prince, 3 Wash. C. C. R. 313, 324, &c.;
55. Sturgis v. Crowninshield, 4 Wheat. R. 122, 195, 196. See also Gibbons v. Ogden, 9 Wheat. R. 1, 197, 227, 235, 238; Houston v. Moore, 5 wheat. R. 34, 49, 52, 54, 55. -- This opinion, that the power to pass bankrupt laws is not exclusive, has not been unanimously adopted by the Supreme Court. Mr. Justice Washington maintained at all times an opposite opinion; and his opinion is known to have been adopted by at least one other of the judges of the Supreme Court. The reasons, on which Mr. J. Washington's opinion is founded, will be found at large in the case of Golden v. Prince, 3 Wash. C. C. R. 313, 322, &c. See also Ogden v. Saunders, 12 Wheat. R. 213, 264, 265, and Gibbons v. Ogden, 9 Wheat. R. 1, 209, 226, 238.
56. Houston v. Moore, 5 Wheat. R. 1, 49, 55, 56.
57. See Gibbons v. Ogden, 9 Wheat. R. 1,197, 210; McCulloch v. Maryland, 4 Wheat. R. 316, 527.
58. McCulloch v. Maryland, 4 Wheat. R. 316, 431.
59. Ibid.
60. Id. 432.
61. Houston v. Moore, 5 Wheat. R. 1, 53.
62. Houston v Moore, 5 Wheat. R. 50, 51, 52.
63. Id. 54, 55.
64. Sturgis v. Crowninshield, 4 Wheat. 122, 195, 197, 199; Gibbons v. Ogden, 9 Wheat. R. 1,196,197, 209.
65. See Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 210.
66. See The Federalist, No. 83, 84.
67. Cohens v. Virginia, 6 Wheat. R. 395 to 401.
68. The Federalist, No. 83.
69. The Federalist, No. 83. See Vattel, B. 2, ch, 17, §282.
70. The Federalist, No. 83.
71. Mr. Madison's Letter to Mr. Cabell, 18th September, 1828.
72. See Vattel, B. 2, ch. 17, §262, §299.
73. The Federalist, No. 37.
74. See Vattel, B. 2, ch. 17, §276, 277.
75. Ex parte Bollman & Swartout, 4 Cranch, 75; S. C. 2 Peters's Cond. R. 33.
76. Vattel, B. 2, ch. 17, §281.
77. 5 Peters's Rep. 1, 19.
78. Mr. Madison's Virginia Report, 7 January, 1800, p. 5; ante, §208, p. 193.
79. See Vattel, B. 2, ch. 17, §285, 286.
80. Burke's Letter to the Sheriffs of Bristol in 1777.