§ 14. Technical Terms.

When, however, there is no ambiguity of grammatical construction, but the words themselves require definition, recourse is prop-erly had to extrinsic evidence. Here it is necessary to learn from extrinsic sources the meaning usually attached to these words at the time the Constitution was framed and, presumably, by those who framed and adopted the Constitution. Examples of such technical terms are "letters of marque and reprisal," "ex post facto," bill of attainder," "bankruptcy," "admiralty," "equity," "direct tax," "duties," "imposts," "excises," "piracy," "habeas corpus," "citizen," "alliance," "confederation," "republican form of government," "infamous crime," "commerce," etc. The technical term "treason" is defined in the Constitution itself.

One of the principal questions involved in the Dred Scott case was as to the definition of the term "citizens of different States " as employed in Article III of the Constitution. The Insular Cases in considerable measure turned upon the meaning to be ascribed to the expression "United States." In Texas v. White it was necessary to enter into a careful definition of the terms "state" and "government" in order clearly to distinguish them.

As has been repeatedly declared by the courts the best rule for interpreting the technical terms employed in the Constitution is to give to them the meaning which they had at the time that instrument was framed and adopted. When the terms are technical law terms they are to be given the meaning attached to them in the English common law.25

25 The Supreme Court in South Carolina v. United States (199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261) states this doctrine as follows: "It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men dealing with the facts of political life as they understood them; putting into form the government they were creating and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall, in Gibbons v. Ogden (9 Wheat. 1, 188; 6 L. ed. 23) well declared: 'As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to

In a few instances it is, however, to be observed, that the Supreme Court has refused to give to technical terms the meanings attached to them in 1789 by the common law. This has been so especially with reference to the words "admiralty" and "bankruptcy" both of which terms have been given a broader meaning than that furnished by the English common law. Commenting upon this Pomeroy properly says: "The true rule would seem to be this: Where words having a well known, technical sense by the English law are used in the Constitution, and these words are keys to the clauses which protect the private rights and liberties of the people, and especially of clauses which impose direct restraints upon the government in respect of such rights and liberties, and the technical sense itself is necessary for the complete protection of the individual citizen, this signification must still be retained in any interpretation of these provisions. But on the other hand, where words which had a technical meaning by the English law, are used in clauses which relate to the general functions of legislation and administration, and to the political organization and powers of the government, such sense must be

have intended what they have said.' One other fact must be borne in mind, and that is, in interpreting the Constitution we must have recourse to the common law. As said by Mr. Justice Matthews in Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508): 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.' And by Mr. Justice Gray in United States v. Wong Kim Ark (169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890): '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. Minor v. Happersett (21 Wall. 162; 22 L. ed. 627); Ex parte Wilson (114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89); Boyd v. United States (116 U. S. 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746); Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508). The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States (91 U. S. 270; 23 L. ed. 346). To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants."

attributed to them as will best carry out the design of the whole organic law, whether that signification be broader or narrower than the one which had received the sanction of the English Parlianent and courts." 26

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§ 15. The Interpretative Value of Debates in Constitutional Conventions.

When it is necessary and proper to resort to extrinsic evidence in interpreting the Constitution, an important source of such evidence is to be found in the history of the events which led up to its adoption. Of special importance are the recorded proceedings of the convention which drafted, of the state conventions which ratified, and the public utterances of the men who played an influential part in the establishment of, the Constitution. Resort is to be had, however, to these sources only with caution, and only where latent ambiguities are to be resolved. Cooley has stated in a manner not to be improved upon the weight properly to be ascribed to debates in conventions. He says: "When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satis factory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part

26 Constitutional Law, 10th ed., p. 607. See also idem, p. 345.

of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings, therefore, are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the convention, of the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings of the convention." 27

§ 16. The Federalist.

What has been said regarding the interpretative value of the debates in the conventions that framed and ratified the Constitution, and the value of contemporary interpretation thereof by Congress and the Executive, applies to the collection of essays published under the title of The Federalist. This is true peculiarly of these essays not only because of their respective authors — Hamilton, Madison and Jay—but because of the purpose for which they were prepared and published, namely, to persuade the several state conventions to ratify the Constitution. Having this construction of the Constitution before them, there are consider27 Constitutional Limitations, 7th ed., p. 101.

able, though not conclusive, grounds for holding that, where the meaning thus published was not repudiated, this was the construction intended by those who put the Constitution into force.25

The case of Chisholm v. Georgia29 is, however, a conspicuous instance in which a view advanced in The Federalist (that a State would not be suable in the federal courts at the instance of a citizen of another State) was repudiated by the Supreme Court.

§ 17. History of the Times.

31

The case of Prigg v. Pennsylvania30 illustrates the value of a resort to the "history of the times" and to the general object sought to be obtained, in interpreting an ambiguous constitutional provision. In this case, which involved the question as to the exclusiveness of the power granted to the Federal Government under the fugitive slave clause of the Constitution, Justice Story said: "Historically it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. How then are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole object of it. If by one mode of interpretation the right must become shadowy

28 In Cohens v. Virginia (6 Wh. 264; 5 L. ed. 527) Marshall says: "The opinion of The Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the Constitution, puts it very much in their power to explain the views with which it was framed. These essays having been published while the Constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration where they frankly avow that the power objected to is given, and defend it."

29 2 Dall. 419; 1 L. ed. 440.

30 16 Pet. 539; 10 L. ed. 1060.

31 Art. IV, Sec. II, Cl. 3.