to apply an instrument made at the birth of the government to the changing conditions of the nation's development. This has been done in all cases with judicial deliberation, and, in almost all cases, with the wisdom of statesmen.

The court, in all but two instances, has wisely held itself aloof from political controversies whose consideration it was possible to avoid. In 1803,32 judges who were Federalists united in an opinion which, if it could have been enforced by a judgment, would have deprived the Democratic party of those spoils of office which that party regarded as the fruits of its triumph over the Federalist party. In 1857,33 judges who were Democrats thought they had established the indefeasible right of slavery to occupy the territories of the United States.

The cases

were alike in that in each instance the court, having proved to its satisfaction that it had no jurisdiction over the subject-matter of decision, proceeded to a judicial determination upon the merits of the controversy; and in each instance the country revolted against the attempted judicial usurpation of political functions.

The greatest service which the Supreme Court of the United States has rendered to the country is that throughout our history it has been an object lesson of the supremacy of law. It is impossible to overstate the vital importance to the republic of the teaching of this lesson, a lesson so hard for a democracy to learn, and so essential to the maintenance of free institutions.

The federal supremacy.

105. The law administered in the courts of the United States is found in the Constitution, in acts of Congress,

32 Marbury v. Madison, 1 Cr. 137.

Dred Scott v. Sandford, 19 How. 393.

in treaties made by the United States, and in the judgments of the Supreme Court.

Section 2 of Article VI of the Constitution declares, that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

The Constitution is the Constitution as orginally ratified, and as subsequently amended in the manner and under the restrictions contained in the Constitution, and as construed by the judicial department of the government so far as regards all that may properly become a subjectmatter of judicial determination. The validity of an act of Congress is dependent upon its conformity to the Constitution.34 The validity of an act of a state legislature is dependent upon its conformity to the Constitution of the United States and also upon its conformity to the constitution of its state.

But an act of legislation will not, on slight implication, or vague conjecture, be judicially determined to be in conflict with the Constitution, for the presumption is always in favour of the constitutionality of a law.35 Statutes, which are constitutional in part only, will be upheld by the court so far as they are not in conflict with the Constition, provided that their constitutional, and their uncon

Marbury v. Madison, 1 Cr. 137; Norton v. Shelby County, 118 U. S. 425. 35 Fletcher v. Peck, 6 Cr. 87; Legal Tender Cases, 12 Wall. 531; U. S. v. Harris, 106 U. S. 629; U. S. v. G. E. Ry., 160 id. 668; Brown v. Walker, 161 id. 591; Nicol v. Ames, 173 id. 509; H. & T. C. R. v. Texas, 177 id. 66; Fairbank v. U. S., 181 id. 283; Booth v. Illinois, 184 id. 425; Reid v. Colorado, 187 id. 137; The Japanese Immigrant Case, 189 id. 86, 101; Buttfield v. Stranahan, 192 id. 470.

stitutional, parts be severable; 36 but when the unconstitutional parts of such a statute are so connected with its general scope, that, should they be stricken out, effect cannot be given to the legislative intent, the other provisions of the statute must fall with them.37

Constitutional and statutory construction.

106. The colonial lawyers were familiar with the idea of a judicial determination of the invalidity of an act of legislation by reason of its contravention of an organic law, for they not infrequently had their attention called to deliverances by the Privy Council in England holding invalid acts of colonial legislatures for the want of conformity to colonial charters, or to English statutes. It is therefore not surprising that there are dicta and judgments of colonial courts recognizing this principle.38

Alexander Hamilton,39 after saying that the independence of the courts is essential in a country where the Constitution limits the power of the legislatures by specific exceptions therefrom, adds that such "limitations . . . can be preserved in practice in no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. . . . The Constitution ought to be preferred to the statute, the intention of the people to the intention

Packet Co. v. Keokuk, 95 U. S. 80; Pollock v. F. L. & T. Co., 158 id. 601; cf. Presser v. Illinois, 116 id. 252.

"Trade-Mark Cases, 100 U. S. 82; Allen v. Louisiana, 103 id. 80; U. S. v. Harris, 106 id. 629; Virginia Coupon Cases, 114 id. 269; Spraigue v. Thompson, 118 id. 90; Baldwin v. Franks, 120 id. 678; Pollock v. F. L. & T. Co., 158 id. 601; cf. Connolly v. U. S. P. Co., 184 id. 540.

* Commonwealth v. Caton, 4 Call, Virginia Reports, 5, per Wythe, J.; Holmes v. Walton, cited in State v. Parkhurst, 9 N. J. L. 427, 444; Trevett v. Weeden, 2 Arnold's History of Rhode Island, 525; Bayard v. Singleton, 1 Martin, North Carolina Reports, 42; Bowman v. Middleton, 1 Bay, South Carolina Reports, 252; Cooley's Constitutional Limitations, 55.

39

Federalist, No. 78, 9 Hamilton's Works, Lodge's Edition, pp. 482, 484.

of their agents. . . . The prior charter of the superior ought to be preferred to the subsequent acts of an inferior and subordinate authority, and . . . accordingly whenever a particular statute contravenes the Constitution it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." This reasoning has been adopted and uniformly followed by the court.40

The most important function of the courts is that of construing the Constitution, and that construction is authoritatively and finally, so far as regards subject-matters of judicial determination, made by the Supreme Court of the United States. The rules, which are applied by the court in the construction of the Constitution, are few and simple. (1). The construction is neither lax nor rigorous, but such as to effectuate the purpose of the instrument as "an establishment of a frame of government and a declaration of that government's fundamental principles intended to endure for ages and to be adapted to the various crises of human affairs." 41 (2). The antecedent history of the country and the state of the public affairs at the time of the adoption of the Constitution are considered, in order that the old law, the mischief, and the remedy may have their relative weight.42 (3). A contemporaneous legislative exposition acquiesced in for a long term of years fixes the construction.43 (4). The words are read in their natural sense, departing from and varying by construction the natural meaning of the words only where

40

'Marbury v. Madison, 1 Cr. 137. See also the language of Taney, C. J., quoted in the appendix to 117 U. S.

"Juilliard v. Greenman, 110 U. S. 421; Gibbons v. Ogden, 9 Wheat. 1; Martin v. Hunter's Lessee, 1 Wheat. 304.

Rhode Island v. Massachusetts, 12 Pet. 657; Maxwell v. Dow, 176 U. S. 581, 602.

43 Stuart v. Laird, 1 Cr. 299; Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pet. 257, 317; C. M. Co. v. Ferguson, 113 U. S. 727. See also Downes v. Bidwell, 182 id. 244.

"Gibbons v. Ogden, 9 Wheat. 1.

different clauses of the instrument bear upon each other and would conflict, unless the words were construed otherwise than by their natural and common import. (5). An exception from a power which is granted in express terms marks the extent of the power and shows that the power necessarily includes other cases which come within the terms of the grant and which might have been, but were not, specifically excepted.46 (6). When a term of the common law is used, its common-law meaning is adopted with it.47 (7). The Federalist is not, of course,

45

Sturges v. Crowninshield, 4 Wheat. 122. Story, J., said, in Prigg v. Penna., 16 Pet. 610, "Perhaps, the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.''

"Gibbons v. Ogden, 9 Wheat. 1; Rhode Island v. Massachusetts, 12 Pet. 657; Brown v. Maryland, 12 Wheat. 438.

"In Schick v. U. S., 195 U. S. 65, Brewer, J., said, in reference to a clause of Article III, "It must be read in the light of the common law. 'That,' said Mr. Justice Bradley, in Moore v. U. S., 91 U. S. 270, 274, referring to the common law, 'is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.' Again, in Smith v. Alabama, 124 U. S. 465, 478, is this declaration by Mr. Justice Matthews: The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' In U. S. v. Wong Kim Ark, 169 U. S. 649, 654, Mr. Justice Gray used this language: 'In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.''' Duncan, J., said in Lyle v. Richards, 9 S. & R. 356, "In American legislation, when a term of the common law is adopted, the common-law meaning is adopted with it." Marshall, C. J., said in U. S. v. Burr, 4 Cr. 470, in commenting on the phrase "levying war" in the constitutional definition of treason, "It is a technical term; it is used in a very old statute in that country, whose language is our language, and whose laws form the substratum of our laws. It is hardly conceivable that the term was not employed by the framers of our Constitution in the sense which has been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context."'