text. But the same word often possesses a technical, and also a common sense meaning. In such a case, the latter is to be preferred, unless some attendant circumstance points clearly to the former. No one would doubt, where the constitution has declared "that the privilege of the writ of habeas corpus shall not be suspended unless under peculiar circumstances, that it referred, not to every sort of writ which has acquired that name; but to that, which has been emphatically so called, on account of its remedial power to free a party from arbitrary imprisonment. a So again, where it declares that in suits at common law, &c., the right of trial by jury shall be preserved, though the phrase common law admits of different meanings, no one can doubt, that it is used in a technical sense. When, again, it declares that congress shall have power to provide a navy, we readily comprehend, that authority is given to construct, prepare, or in any other manner to obtain a navy. But when congress is further authorized to provide for calling forth the militia, we perceive at once, that the word "provide," is used in a somewhat different sense." b "And this leads us to remark in the next place, that it is by no means a correct rule of interpretation, to construe the same word in the same sense wherever it occurs in the same instrument. 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.c This would be to suppose, that the framers weighed only the force of single words, as philologists or critics, and not the 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. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having formed in the constitution a word used in some sense which falls in 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 extenda Ex Parte, Bolman, 4 Cranch. 100. b Story on Const., § 453. c Vattel, B. 2, Ch. 17, § 281. ing 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. It was very justly observed by Mr. Chief Justice Marshall in the case of Cherokee Nation v. Georgia, a that "it has been said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has different and various meanings, and the peculiar sense, in which it is used in any sentence, is to be determined by the context. A very easy example of this sort will be found in the use of the word "establish," which is found in various places in the constitution. Thus, in the preamble; one object of the constitution is avowed to be "to establish justice;" which seems here to mean, to settle firmly, to fix unalterably, or rather, perhaps, as justice, abstractedly considered, must be considered as forever fixed and unalterable,-to dispense or administer justice. Again, the constitution declares, that congress shall have power, "to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies," where it is manifestly used as equivalent to make or reform, and not to fix or settle, unalterably and forever. Again, “congress shall have power to establish post-offices and post-roads," where the appropriate sense would seem to be, "to create," to found, and to regulate; not so much with a view to permanence of form, as to convenience of action. Again, it is declared, "that congress shall make no law respecting an establishment of religion;" which seems to prohibit any law, which shall recognize, found, confirm, or patronize any particular religion, or form of religion; whether permanent or temporary; whether already existing, or to arise in future. In this clause, "establishment," seems equivalent in meaning to settlement, recognition, or support. And again, in the preamble, it is said, "We the people, &c., do ordain and establish this constitution, &c.," where the most appropriate sense seems to be to create, to ratify and confirm. So the word "state" will be found used in the constitution, in all the various senses to which we have before alluded. It sometimes means, the separate sections a 5 Peters, R. 1, 19. of territory occupied by the political societies within each; sometimes the particular governments established by these societies; sometimes these societies as organized into these particular governments; and lastly, sometimes the people composing these political societies in their highest sovereign capacity. "But the most important rule in cases of this nature, is, that a constitution of government does not, and cannot from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate, or unfold the appropriate sense; but unless it stands well with the context, and subject matter, it must yield to the latter. While then, we may well resort to the meaning of single words to assist our enquiries, we should never forget, that it is an instrument of government we are to construe; and, as has already been stated, that must be the truest exposition, which best harmonizes with its design, its objects, and its general structure." a The remark of Mr. Burke, may, with a very slight change of phrase, be addressed as an admonition to all those, who are called upon to frame, or interpret a constitution. "Government, is a practical thing, made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those who are called to administer it, is to rule, and not to wrangle. It would be a poor compensation, that one had triumphed in a dispute, while we had lost an empire; that we had frittered down a power, and at the same time had destroyed the republic." a Vattel, B. 2, Ch. 17, §§ 285-286. INDEX. REFERENCE IS TO THE PAGES OF THIS WORK. A ACCUSATION and trial for crime, 530-584. constitutional protection to the accused, 530–534. enumeration of the constitutional privileges to the accused, 530–534. distinction between, 70-72, 229, 230. AFFIRMATIVE statute, what it is, 74. AFFIRMATIVE words, how construed, 219, 220. AMERICA, new statutes in, 43. AMERICAN statutes, what, and how made, 43. AMERICAN legislatures, modelled after the English, 43. possess limited power, 43. AMERICAN rules of interpretation, 143–146. AUTHENTICATION of statutes, records and judgments, 358–362 CAPTIONS of English statutes in the reign of Henry III, 41. to what countries extended, 303. |