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If there are any cases, in which the judges of a Court of the last resort may, without apology, present the grounds of their judgment in detail, they are those which arise on an alleged repugnance between a law or act of a state, and the constitution of the United States. There are none which deserve such minute examination of fundamental principles, which bear on the grants and restrictions of powers, and when developed, impose their uniform applications under higher obligations, than those which rest upon this Court, and all its members. In such cases, it is peculiarly necessary to recur to safe principles, to sustain them, and when sustained, to make them the tests of the arguments to be examined; these principles are few and simple, and though somewhat obscured by too much refinement upon them, can be easily ascertained by the same mode in which we find the principles of other machines, a reference to the first moving power which gives the impulse to government. As my opinions, on constitutional questions, are founded on a course of investigation different from that which is usually taken, I cannot in justice to myself, submit them to the profession without a full explanation of what may be deemed my peculiar views of the constitution. By taking it as the grant of the people of the several states, I find an easy solution of all questions arising under it; whereas, in taking it as the grant of the people of the United States in the aggregate, I am wholly unable to make its various provisions consistent with each other, or to find any safe rule of interpreting them separately. In a matter of such importance as this, I cannot assume a proposition on which all my opinions depend, but must establish it by all the authority that can be brought to support it, against opposing opinions of great weight, and which are those most commonly received. Without doing this, my premises would be at once declared unfounded, and my conclusions of course erroneous; it is therefore necessary for me to take this course, or withhold any publication of my opinions.


BRIscoe AND oth ERs v. THE CoMMonwealTH BANK of KENTUCKY.



THE MAYor, &c. of NEw York v. MILN.

Though none of the judges who have concurred with the majority of the Court in their judgment in these cases, have delivered any separate opinion; and though, having been more anxious as to the result, than the course of reasoning, the illustrations or authority which led to it, it was my intention to have been content with a silent concurrence; yet reasons which have since occurred, have determined me to present my views in each case to the profession. In all of them the result has accorded with my opinions, formed when the cases were first presented for our decision at former terms, and my most deliberate judgment at the present; but in this respect my situation is peculiar, as none of the judges who sat during the former arguments, concur in all the present opinions of the majority. In the case of the Commonwealth Bank of Kentucky, I was in the minority; in the Charles River Bridge case, it now appears that I stood alone after the argument in 1831; the Tennessee Boundary Case hung in doubtful scales; and in the New York Case, I was one of a bare majority. By changes of judges and of opinions, there is now but one dissentient in three of the cases; and though my opinion still differs from that of three of my brethren, who sat in the fourth, six years ago, it is supported by the three who have since been appointed. Placed in a position as peculiar now as it was then and since, I feel called upon to defend it, and to explain the reasons why it was then assumed and is now retained. In the fiftieth year after the frame of the constitution had been agreed on in convention, and submitted to the people for their ratification, this Court was called upon to decide four constitutional questions of deep interest; which had been long depending, and which neither counsel or judges deemed to have been settled by any authoritative exposition of those parts of the constitution that bore directly upon them, or came within any established principles and rules of construction of this Court which would govern them. These questions were, 1st, What is a contract—its obligations, and what impairs it? 2d, What are bills of credit? 3d, What is commerce with foreign nations—what is not; and what is the internal police of a state? 4th, What is the effect of a compact of boundary, made between two states, with the consent of congress? On all of which there had long been, and continued to be, great diversity of opinion among the judges; which did not cease to exist after they were decided, and may exist in future, when the same or similar questions shall occur. It had long been to me a subject of deep regret, that notwithstanding the numerous, consistent, most solemn, and, (with some few, and mostly late exceptions,) to my mind most satisfactory adjudications of this Court, in expounding the constitution, its meaning yet remains as unsettled, in political, professional, and judicial opinion, as it was immediately after its adoption. If one is to judge of the next, by the results of the past half century, there is but a slight assurance that that instrument will be better understood at the expiration, than it is at the beginning of the period. It is indeed to be feared, that unless some mode of interpretation, different from what has been usually pursued in argument, is adopted; the present uncertainty must become utter confusion. In reviewing the course of argument on both sides in these cases, the remark is fully justified, that we have been referred for the true interpretation of the constitution to books, essays, arguments, opinions, speeches, debates in conventions and legislative bodies, by jurists and statesmen, and by some who were neither; which would not be offered, or suffered to be read in any court, as entitled to respect in construing an ordinary act of legislation, or a contract between individuals. This reference has not been confined to expositions cotemporaneous or near to the time of the adoption of the constitution, the views of its framers, or those opinions to which courts of justice can consistently with their duty defer their own; but the range has been of the widest kind, embracing whatever has appeared in print on the various subjects involved, either here or abroad, and up to the present time, while these suits have been depending in this Court for re-argument. The history and spirit of the times, past and present, admonish us that new versions of the constitution will be promulgated, to meet the ever varying course of political events, or aspirations of power; and that if we suffer our judgments to be influenced by what has been pressed upon us as authority for present adjudication, we must pay the same respect to the same kind of authority, when future opinions shall be formed, and new expositions be announced. We have listened to the disquisitions of late writers on the constitution of England, to the decisions of their courts, nay, to the opinions of their judges given within the last year; as rules to guide us to the true intention of the framers of the constitution, in a most solemn instrument, carefully and most deliberately reduced to writing, in 1787. If we look to these as safe sources whence to now draw our knowledge of constitutional law, or respect them as a rule of present decision, they must be so taken in future; and though the legislative authority of Westminster-hall over us has been extinct for more than sixty years, this tribunal must continue to still look to its emanations, whether in treatises or judicial decrees, to ascertain the meaning of our own supreme law. I have long since been convinced that there are better and safer guides to professional and judicial inquiries after truth, on constitutional questions, than those which have been so often resorted to, without effecting the desired result; a clear and settled understanding of the terms and provisions of an instrument of writing, which operates with supreme authority wherever it applies. To me it seems that it can be made intelligible in all its parts, by applying to it those established rules and maxims of the common law, in the construction of statutes, and those accepted definitions of words, terms, and language, in which they had been used, and been received, as well known and understood, in their ordinary, or legal sense, according to the subject matter. In appealing to the common law, as the standard of exposition, in all doubts as to the meaning of written instruments; there is safety, certainty, and authority. The institutions of the colonies were based upon it; it was their system of jurisprudence, with only local exceptions, to suit the condition of the colonists, who claimed it as their birth-right and inheritance, 9 Cr. 333, in its largest sense, as including the whole system of English jurisprudence, 1 Gall. 493; the inexhaustible fountain from which we draw our laws, 9 S. & R. 330, 39, 58. So it continued after the colonies became states, in most of which the common law was adopted by acts of assembly, which gave it the force of a statute, from the time of such adoption, and as it was then; so that in the language of this Court—“At the adoption of the constitution, there were no states in this Union, the basis of whose jurisprudence was not essentially, that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist.” 3 Pet. 446,8. It is also the basis on which the federal system of jurisprudence was erected by the constitution, the judiciary and process acts, which refer to “cases in law and in equity,” “suits at common law,” the common law, the principles and usages of law,” as they had at the time been defined and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45; 10 Wh. 29, 32, 56, 8; 1 Pet. 613: and were adopted as then understood by the old states. From the very beginning, till the consummation of the revolution, the people of the colonies and states, in all successive congresses, took their stand upon the common law and constitution of England, as the “heirs of freedom;” “English freemen, whose custom it is, derived from their ancestors, to make those tremble who dare to think of making them miserable.” I Journ. Cong. 60, 65, 138. In the spirit and like the descendants of Britain, ib. 143, 9, who procured “the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to enjoy.” “Englishmen reared up this fabric,” “ of such strength as for ages to defy time, treachery, internal and foreign wars.” “They gave the people of their colonies the form of their own government.” “In this form, the first grand right is, that of the people having a share in their own government, by their representatives chose by themselves,” &c. 1 Journ. 56. It is a bulwark defending their property, as trial by jury and the writ of habeas corpus defends their liberty; “as a part of our mild system of government, that sending its equitable energies through all classes and ranks of men; defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the violent, the tenants from the lords, and all from their superiors.” “These are the rights without which a people cannot be free and happy, and under the protecting and encouraging influence of which, these colonies have hitherto so amazingly flourished and increased. These are the rights a profligate ministry are now striving by force of arms to ravish from us, and which we are, with one mind, resolved never to resign but with our lives.” Ib. 56, 57. The very rights which placed the crown of Great Britain on the heads of the three princes of the house of Hanover, 170. Such was “the equitable system of English laws,” ib. 30, 41, 50; “the inheritance left us by our forefathers,” 66; “the great bulwark of our constitution,” 148; “the first and best maxims of the constitution, venerable to Britons and to Americans,” 163; “whose forefathers participated in the rights and liberties they boasted of, and conveyed the same fair inheritance

to them. By that system the colonists claimed all the benefits secured to English subjects, whether they lived “3000, or 300 miles from the royal palace,” 37; and the several colonies as constituent members of the British empire, rested for “the perfect security of their natural and civil rights, on the salutary and constitutional principles” it contained, 61. It was “the covenant chain” between the mother country and them; the charters of the king were their written civil constitutions of government, and the colonies would not part with, or loose their hold of this old covenant chain which united their fathers; 153, 4. On this system, the congress, the people, and the colonies relied. They claimed as their indubitable right, the benefit of the common law of England, its constitution, and their several charters; in their Declaration of Rights, in 1774; 1 Journ. 77, &c.; in July, 1775; 1 Journ. 134, 176, 8; in December, 1775; ib. 263; and on the 4th July, 1776. Among the other grievances set forth in the Declaration of Independence, are the following: “He,” (the king,) “has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws, giving his assent to their acts of pretended legislation,” &c. &c. “For abolishing the free system of English laws in a neighbouring province.” Wide l Journ. 30, 58, 9, 64, 61, 174. “For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our government.” I Laws, 8, 9; 1 Journ. 125, 178. The common law was not merely the basis of the revolution, in opposing the oppression of England, or deemed incompatible with the genius of the people after the revolution was effected, as a burthen imposed upon them; but the contrary. By the ordinance of 1787, it was declared to be “the basis whereon these republics, their laws, and constitutions, are erected; and which congress therein fixed and established, as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the territory north-west of the Ohio. It was secured to them as a blessing whereby “to extend the fundamental principles of civil and religious liberty;” “that the inhabitants shall always be entitled to the benefits of,” &c. and “ of judicial proceedings according to the course of the common law.” I Laws U. S. 479. That system, which had effected in England, what it was one of the declared objects of the present constitution to effect—“ to establish justice,” and “secure the blessings of liberty to ourselves and our posterity, by the judicial power of the United States; which shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish.” To be administered in all cases in law or equity, as it had been, and then was in England, in all the states and territories of the United States: and the judges were directed, by the judiciary act, to take an oath “to do equal right to the poor and to the rich;” 1 Story, 56; as the judges in England had been enjoined by an ancient statute; 1 Ruff, 246.

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