Lapas attēli

that the law of privilege of the state of New York which is regulated and limited by statute, is, in its features; in its length and breadth; in what it allows and what it prohibits; in nearly every particular, identical with the law of privilege of parliament of England, which, like ours, is now regulated by statute, and in almost identity of language.

In compiling this chapter from the English common law, believed to be in force here, there has been the endeavor, to present the American readers, in this brief review, with as much of the legal powers and privileges of parliament, as shall direct their minds, and the minds of members who shall compose our legislative assemblies, to the authorities cited, and, to more elaborate sources of knowledge of the science of parliamentary law. Few men should be regarded as fit for legislators, who require to be informed, that nearly all the privileges of civil liberty, of which the American citizen now so proudly boasts, first had their introduction, if not their origin, in the house of commons of the British parliament. It is as equally untrue now in England, as it is in the state of New York, that parliamentary law is vague, nnsettled, and uncertain. It is not true, that either the law of the parliament of England, or that of either, or both the houses of the legislature of the state of New York, is just what those bodies see fit to declare it. It is a branch of the common law, as easily traced and determined as any other, and if we have succeeded in nothing else, we hope to have succeeded in exciting such a spirit of inquiry into a knowledge and of the science, of parliamentary law, as shall save experienced legislators in future, from the assumption of a knowledge of and an attempt to exercise powers inconsistent with established law and of constitutional right; aggressive upon the sacred rights of a co-equal, and co-ordinate department of the government; unbecoming to the character of intelligent legislators; and evincing the want of comity and respect due to an equal.

In this compilation of English parliamentary law, the authorities, before the thirteenth year of Wm. III, have also been given. We have done this to show what was the law before, as well as since that day: so that by reference, to either period, it will be seen how little knowledge of English parliamentary law is some

times found in legislative bodies. We have also cited the changes wrought in the common law by the statute of William III as well as that of 13 Geo. 111, which entirely abrogated the arbitrary and unlimited powers claimed by Sir Edward Coke (when speaker of the house of commons, in one of the parliaments in the reign of Queen Elizabeth,) who declared, "that the high court of parliament subsists by its own laws and customs; that it is the law and custom of parliament, that all weighty matters therein concerning the peers of the realm or commons, ought to be determined, adjudged and discussed according to the course of parliament, and not by the civil law, nor yet by the common law used in the more inferior courts." But the modern writers since the statutes above referred to such as Dwarris, Cobbitt, in his Parliamentary Debates, May's Treatise, Hatsell, and the judicial decisions cited, present a uniform body of parliamentary law, which is now as well understood in England to be the settled law, as is any other branch of the common law.

The remaining privileges of parliament not herein discussed, however essential and useful, they might be, are too remote from the subject of the present inquiry, and too wide and extensive in their consequences, to be comprehended in the present treatise.



IN some of the preceding chapters, the rules of interpretation of statutes compiled from the distinguished authors whose names and works are therein given, have extended their rules in some respects, beyond the mere interpretation and construction of statutes; they include in part, the construction of what are called constitutions, but not in the American sense, that of written constitutions established by the people themselves. While treating of the subject of interpretation, therefore, in a work which treats of constitutional powers, we should fail in duty, should we omit to present an outline of the best American views of construction of American constitutions, so necessarily connected with the construction of statutes, which depend for their force upon, and are enacted in subordination to, constitutional power.

There is a striking analogy, and generally, an entire harmony between the rules of interpretation of constitutions, and those of statutes; but inasmuch as the former are superior in power and authority to the latter, and as in cases of conflict here, the latter must give way, and yield to the former, (by rules of construction peculiar to our system, for which, other governments furnish no precedent), and that construction must necessarily be adopted, which is more especially applicable to our somewhat complex theory of laws, enacted in subordination to the written, but limited constitutions.

First, of the constitution of the United States. It is the constitution of a government ordained and established by the people of the United States for themselves and their posterity; and they have declared it to be the supreme law of the land ; a but it is still a limited government. The people who made it, have defined its powers. They have limited it to the exercise of certain powers, and have reserved all other powers to the states or to the people. b "It is a popular government. Those who administer it, are responsible b Story on Constitution, § 397.

a Constitution U. S., Art. 6.

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. In short, it was made by the people, made for the people, and is responsible to the people." a

Mr. Justice Story says, that much of the difficulty of interpretation of this instrument, has arisen from the want of uniform rules; and he then proceeds in the endeavor to ascertain, and lay down true rules of interpretation applicable to this constitution, so that we may have some fixed standard by which to measure its powers, limit its prohibitions, guard its obligations, and enforce its securities of our rights and liberties. b

He says "that the first and fundamental rule in relation to the interpretation of all instruments, applies to the constitution; that is, to construe them according to the sense of the terms, and the intention of the parties; and he adopts Blackstone's remark, that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequences, or the reason and spirit of the law, c and that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of the 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." d

"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 where there is some ambiguity or doubt arising from other sources, that interpretation has its proper office. There may be obscurity as

a Webster's Speeches, 410 to 419. b Story on Constitution, § 399.

c 1 Com. 59.

d See Vattels Rules, Ch. 5.

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 such cases, interpretation becomes indispensible." a

This learned commentator adopted the rules of interpretation laid down by Rutherford, which will be found in a preceding chapter, b as applicable to constitutional interpretation. We do not therefore propose to repeat them here. These, which he calls elementary explanations, he says, will aid in making a closer practical application when we arrive at more definite rules.

In construing the constitution of the United States, it must be remembered, that it is the fundamental law of the land;-that it was ordained and established by the people of the nation for the purpose of instituting a national government to be invested with supreme authority to provide for their common defence ;-to promote their general welfare, and to secure to themselves and their posterity the blessings of civil liberty.

We are also to consider first, what is its nature, its objects, scope and design, as apparent from the structure of the instrument itself viewed as a whole, and also as viewed in its component parts.

Where its words are plain, clear and determinate, they require no interpretation, as a general rule. If in such case interpretation is ever admitted, it is only in some case of actual necessity to escape an absurd consequence, or to guard against some fatal evil. c

Where 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 instrument. Where the words are unambiguous, but the provisions may cover more or less ground according to the intention, which is yet subject to conjecture; or, where it may include in its general terms more or less than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy.

a Story on Constitution, § 401.

3 Chapter 5.

e Story on Constitution, § 404.

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