COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES – J. STORY 1833

TABLE OF CONTENTS

VOLUME I.

The Constitution

Preliminary Chapter

BOOK I.

HISTORY OF THE COLONIES
Sections
CHAPTER I. Origin and Title to the Territory of the Colonies
CHAPTER II. Origin and Settlement of Virginia
CHAPTER III. Origin and Settlement of New-England, and Plymouth Colony
CHAPTER IV. Massachusetts
CHAPTER V. New-Hampshire
CHAPTER VI. Maine
CHAPTER VII. Connecticut 84- 93
CHAPTER VIII. Rhode-Island 94- 102
CHAPTER IX. Maryland 103- 110
CHAPTER X. New-York 111- 114
CHAPTER XI. New-Jersey 115- 120
CHAPTER XII. Pennsylvania 121- 125
CHAPTER XIII. Delaware 126- 127
CHAPTER XIV. North and South-Carolina 128- 142
CHAPTER XV. Georgia 143- 145
CHAPTER XVI. General Review of the Colonies 146- 158
CHAPTER XVII. General Review of the Colonies 159- 197

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United Kingdom of Great Britain and Northern Ireland- Nature of the ‘Union’

United Kingdom

The composite nature of the United Kingdom created by the union of the Crowns of England, Scotland, and Ireland, presents interesting points of comparison and contrast with the form of a federal union of the USA or unitary union of India. The United Kingdom is ruled by a single sovereign Parliament; but the identity of the component parts is by no means wholly lost, as will appear from a brief reference to the Acts of Union.  In this regard, we can also go through the preamble of the CONSTITUTION OF SWITZERLAND.

In the name of Almighty God. The Swiss Confederation, desiring to confirm the alliance of the Confederates, to maintain and to promote the unity, strength and honour of the Swiss nation . . . The purpose of the Confederation is to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the Confederates and to foster their common welfare. (Preamble and Art. 2, 29th May, 1874.)

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Constitution Bench and Constitution Court

Sinha J (Minority View)

Clause (3) of Art. 145 

16. I regret to have to differ from my learned brethren on the construction of Article 145(3) of the Constitution which is the main question in controversy in this case. Clause (3) of Art. 145 is in these terms:

The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Art. 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion”.

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Restrictions and Right to Freedom

JUDICIAL DICTIONARY

A law which authorises the deprivation of personal liberty did not fall within the purveiw of Article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirments of Article 21 and 22 of the Constitution.

The expression “personal liberty” as used in Article 21, it was said, was sufficiently comprehensive to include the particular freedoms enumerated in Article 19 (1) and its deprivation therefore in accordance with the provision of Article 21 would result in automatic extinction of the other freedom also. In this connection reference was made to the several sub-clauses of Article 19 and Patanjali Sastri, J. expressed his views in the following words:

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Constitutional Law means

Although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power.

Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.” It is thus mainly concerned with the creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation.

No doubt our constitution makers, following the American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however, difficult, in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion of the rights of the subjects by the legislative and the executive organs of the State by means of laws and rules made in exercise of their legislative power and not the abridgement or nullification of such rights by alterations of the constitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand, the terms of Art. 368 are perfectly general and empower Parliament to amend the constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a provide to that effect.

In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Saving regard to the considerations adverted to above, we are of opinion that in the context of Art.13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in exercise of constituent power, with the result that Art. 13 (2) does not affect amendments made under Art. 368.


Shankari Prasad Singh Deo and others-AIR 1951 SC 458 : (1952) SCR 89

Effect upon pending proceedings when an Act was repealed

What is the effect upon pending proceedings when an Act was repealed or when a temporary Act expired

In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows:

“As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceased to have any further effect. Therefore, offences committed against temporary Acts be prosecuted and punished before the Act expires, and as soon as the Act expired any proceedings which are being taken against a person will ipso facto terminate.” (pp. 347, 348, 4th Edn.)

11. This statement of law by Craies was referred to with Approval and adopted by the F. C. in J. K. Gas,Plant Manufacturing Co., (Rampur), Ltd. v. Emperor, (1947) F.C.R. 141. As to the effect of the repeal of an Act, the following passage from Craies’ book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889:

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The Constitution of Australia

Commonwealth of Australia Constitution Act

An Act to constitute the Commonwealth of Australia

This Constitution is divided as follows:

Covering Clause

Chapter I—The Parliament
Part I—General
Part II—The Senate
Part III—The House of Representatives
Part IV—Both Houses of the Parliament
Part V—Powers of the Parliament
Chapter II—The Executive Government
Chapter III—The Judicature
Chapter IV—Finance and Trade
Chapter V—The States
Chapter VI—New States
Chapter VII—Miscellaneous
Chapter VIII—Alteration of the Constitution
The Schedule

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Constitution is what the Judges say it is

SUPREME COURT OF INDIA JUDGMENTS

The Constitution is what the Judges say it is. That is because the power to interpret the Constitution vests in the Judges. A heavy responsibility lies on the Judges when they are called upon to interpret the Constitution, the responsibility is all the more heavier when the provisions to be construed relate to the powers of the judiciary. It is essential that complete objectivity is maintained while interpreting the Constitutional provisions relating to the power of the judiciary vis-a-vis the executive in the matter of appointments to the superior judiciary to avoid any feeling amongst the other constitutional functionaries that there has been usurpation of power through the process of interpretation. This is not to say that the judiciary should be unduly concerned about such criticism but merely to emphasize that the responsibility is greater in such cases. To put it differently where the language of the Constitution is plain and the words used are not ambiguous, care should be taken to avoid giving an impression that fancied ambiguities have been conjured with a view to making it possible to place a convenient construction on the provisions. If the words are plain and unambiguous effect must be given to them, for that is the constituent body’s intent, whether you like it or not, and any seeming attempt to depart therefrom under the guise of interpretation of imaginary ambiguities would cast a serious doubt on the credibility and impartiality of the judiciary. It would seem as if judges have departed from their sworn duty; any such feeling would rudely shock peoples’ confidence and shake the very foundation on which the judicial edifice stands.

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Repugnacy test of

It is trite law that the plea of repugnancy would be attracted only if both the legislations fall under the Concurrent List of the Seventh Schedule of the Constitution. Under Article 254 of the Constitution, a State law passed in respect of a subject matter comprised in List III i.e. the Concurrent List of the Seventh Schedule of the Constitution would be invalid if its provisions are repugnant to a law passed on the same subject by the Parliament and that too only in a situation if both the laws i.e. one made by the State legislature and another made by the Parliament cannot exist together. In other words, the question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are completely inconsistent with each other or when the provisions of both laws are absolutely irreconcilable with each other and it is impossible without disturbing the other provision, or conflicting interpretations resulted into, when both the statutes covering the same field are applied to a given set of facts. That is to say, in simple words, repugnancy between the two statutes would arise if there is a direct conflict between the two provisions and the law made by the Parliament and the law made by the State Legislature occupies the same field. Hence, whenever the issue of repugnancy between the law passed by the Parliament and of State legislature are raised, it becomes quite necessary to examine as to whether the two legislations cover or relate to the same subject matter or different.

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