^S^^BS^^m y ft t n If 1"" i H '5? Wa wj^K ^mn^^ Wm iHSP OJornf U ICatu irlynnl ICtbratry Cornell University Library KF 425.S44 A treatise on the rules which goyf J" IJ"^ 3 1924 018 794 309 DATE DUE ar^.^ f 1 i 1 1 ■ GAYLORD PRINTED IN U.S.A. ;^ .^1' ^f'i" ' Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018794309 A. TIIEA.TISE OS THE RULES WHICH GOYERN INTERPEETATM MD, APPLICATION OF STATUTOEY AND. CONSTITUTIONAL LAW THEODORE SEDGWICK, AUTHOB OF A TBEATISE ON THE MEASURE OF DAMAGES. " Maximum interpretattonia juridicce mysteriwm" Heineco. de Orig. Test. Fact et Ex. XII. § ix. NEW'TOEK: JOHN S. VOOKHIBS, LAW BOOKSELLER AND PUBLISHER, No. 20 NASSAU STREET. 1857. Entered according to A.at of Congress, in tlie year 18S7, by . THEODcJeE SEDGWICK, . In the Clerk's Office of tlie District Conrt of the United States for the Sonthem District of New York. BAKEE & GODWIH, Peihtbes, 1 Spruce Street, N. T. MEMORY OF MY WIFE THIS VOLUME DEDICATED. PREFACE. A VEET slight glance at the field of jurisprudence is sufficient to convince us of the extent to which written law is making inroads upon the field of un- written, customary, or common law. One branch after another of the great topics of our science, become subjects of legislation. Statutes, codes, and constitutions succeed each other, and in our time, with greatly-increased rapidity, threaten finally to absorb every topic of jurisprudence. This process commenced long since, and is now going on, on the continent of Europe, in England, and this counti;y, with equal certainty if not with equal rapidity. Here particularly, in the absence of the State machinery and the social and religious organizations of the old world, the very essence of our system may be said to be the government of Written Law. VI • PREFACE. This volume then, is an attempt to state the rules which control the interpretation and application of written law. as it exists in the shape of Statutes and Constitutions ; and if it succeed at all in giving more certainty and, facility to the administration of this portion of the great science of justice, my object will have been attained. It is my duty to refer to those who have pre- ceded me in this path. There are various works on the subject of constitutional law, among whicb the most prominent is that of Mr. Justice Story, confined, however, to the Constitution of the United States. Mr. Smith's treatise, one of much labor and research, treats of statutory and constitutional law generally, and is the only one we have which can be properly said to treat of the same subjects as this volume. The well-known work of Sir Fortunatus Dwarris, in the second edition of which, he has been assisted' by Mr. Amyot, is confined to Statutes. It is a work of great soundness as well as of great original- ity of thought ; and my frequent references stow at once the extent 6f my obligations to it, and my profound sense gf its ability and value. In taking leave of a task which has beguiled many hours of their weariness — which has furnished a par- , tial solace for the sadness of many others, it behooves me to say that no one can be more aware than myself of the many imperfections of this volume: just in proportion to my conviction of the importance and PREFACE. YU magnitude of the subject'is my sense of the deficien- cies in my treatment of it. It is proper to add that I have intended carefully to avoid the discussion of topics of a political nature, or the expression of opinions having, directly or indirectly, any political bearing. To the best of niy ability I have made the treatise qne purely of a legal character. I submit the work to the judgment of the learned and able body of men to whose studies it chiefly appertains, — who are most able to discern and detect its errors and defects, and who at the same time will most readily recognize i any claim of merit or utility that it may possess. CONTENTS. CHAPTER I. PLAN OF THE WOBK. Tte sources of Municipal or Civil Law usually two-fold: Usage, or Common Law ; and Statute Law — In America a third silperadded : Constitutional Law — ^The two last written ; of these, the Interpre- tation and Construotioii belong to the Judiciary — ^The object of this Tolume, to define the limits of legislative and judicial power ; and to give the rules which govern the ajfplication^of Constitutional and Statute, in other words, of written Law, ..... 1 • CHAPTER IL GENERAL OLASSIPIOATTON AND DIVISION OF STATniKS. Division of Statutes — In England divided into ancient and modem — Division in the United States — Public and Private Acts — Declara- tory and Innovating Statutes — Affirmative and Negative Statutes — Remedial Statutes — Penal Statutes — Repealing Statutes, . . 26 CHAPTER m. THE PARTS OF STATUTES. Blaokstone's Enumeration of the Parts of a Statute : Practical' Division — Title — Commencement — Preamble^ — Purview — Clauses — Provisos^ — Exceptions — Schedules 49 CHAPTER IV. THE ATTEIBUTES AND INCIDENTS OF STATUTES. Application for the passage of Statutes — Contracts to obtain the passage of Statutes, or to withdraw opposition — Authority and Jurisdiction of Statutes — ^Time when Statutes take effect — Effect of Statute^ to avoid contracts in violation of them — Remedies for the violation of Statutes — Statutory Forfeitures — Ignorance of Statute no excuse — Limitations of actions— "Waiver of Statutes by consent — Pleading * and Proof of Statutes — Repeal, 65 X CONTENTS. CHAPTEE V. OF THE B0TJNDAEIE8 OF LKOISLATIVE AND JTJDIOIAL POWEE. Division of Legislative and Judicial functions in England — Bills of Attainder — Division in this country — Disputed power of judiciary, independently of interpretation and constitutional limitation — What is a Law! — Power of the State Legislatures examineS — Ret- rospective Laws — Result of the examination — Judicial power of con- struing douhtful provisions of written law — History of its exercise in England — In France — Present condition of the law on the subject — Power of the judiciary to enforce constitutional restrictions, . 142 CHAPTER VL GENKBAL BULE3 FOE THE CONSTRUOTION OF STATUTES. General rules for the construction and interpretation of statutes — Necessity for construction and interpretation growing out of the ambiguity of language, and other causes — Various rules given by standard writers —•Vattel's rules — Domat's rules — Rutherforth'a rules — Mackeldey's — Lieber's — Rules of our law — Intention of the legislature, to goverlS — Mode of arriving at the legislative intention — Lord Coke's rules — Blackstone's rules-r-Statutes ip pari materia — Contemporaneous exposition — Legislative exposition — Judicial con- struction — Usage — Language used in statutes — ^Technical terms — Liberal and strict construction, ....'.. 226 CHAPTER VIL OF STEIOT CONSTRUOTION, AND OF LIBERAL OR EQUITABLE CONSTRUCTION. The line separating judicial construction from judicial legislation — Strict construction, and liberal or equitable oonstrnction-r-Statutes when strictly construed — Statutes conflicting with u constitution, or fundamental law — Statutes prescribing forms of procedure, modes of proof and of practice — Statutes of frauds — Statutes of wills Statutes of limitations — Statutes in derogation of the Common Law — Penal Statutes— Revenue laws — Usury laws — Statutes granting franchises and corporate powers — Statutes granting exemptions from general burthens — Statutes^authorizing summary judicial pro- ceedings — Statutes authorizing summary administrative proceed- ings—Statutes' of explanation — The stamp acts— Statutes giving costs — Statutes when to be liberally or equitably construed Remedial statutes— Equity of a statute — When statutes treated as directory merely— General Rules, 291 CONTENTS. XI CHAPTEE Tin. THE CONSTEnonON AND APPUOATIOfT OF 8TATCTKS IN PAETIODLAE OASES. Statutes delegating public authority — Revenue laws — Penal laws — ^Laws as affecting the rights of the government — Effect of statutes on con- tracts in violation of them — Cumulative remedies and penalties — Eetroaotive effect of laws — Waiver — Rule that the last statute in point of timfr prevails — Computation of time in statutes — Subject- matter — General words- — Misdescription and surplusage — Remote- ness of effect — Statutes against wagers — Corporations — ^The inter- pretation and proof of foreign laws — Revision of statutes — State laws, how construed in the courts of the United States-^-Interprcta- tion of particular words — ^Miscellaneous cases — Grants or Patents, 384 CHAPTER IX. OF THE INTEBPKETATION AND AFPLIOATIpN OF TREATIES, OF FATENI3 OE GEANT3 OF LAND, AND OF MUNICIPAL OEDINANCES. Treaties — ^Part of the Supreme Law of the Union — How far they affect State Legislation — How far they may have a retrospective effect — Patents or Grants of Land — ^Resumption of, in early times — Rules of construction applicable to Municipal Ordinances — Centralization and Local Sovereignty — Instance of the former in Rome and France — ^Development and application of the latter in America. Towns and Cities — Delegation of Legislative Sovereignty — Mode of the exercise of the delegated authority-^ — Cases — General autho- rity of the Courts — Contracts in violation of Ordinances void — : of Ordinances, HI CHAPTER X LIMrrATIONS IMPOSED CPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION. The g;eneral character of constitutional provisions regarded as limitations upon legislative power — Principal rest^'ictions imposed by the State constitutions — Guarantee of private property — ^Trial by jury — Protection of Law — Sparches and seizures — ^Taxation — Police regu- lations — ^Titles of bills — ^Amendments — Repeal — Constitutional ma- jorities — ^Religious tests — ^Religious societies — Creation of judges — Incorporations — ^Trust funds — ^Divorces — Suits against the State, . 4f 6 XU CONTENTS. CHAPTER XL LIMITATIONS IMPOSED UPON LEGISLATIVE POWKK BY THE CONSTITUTION OF THE UNITED STATES. Clauses of the Federal Constitution ■which operate as checks on legisla- tive action — General nature of the Legislative Power of the Union — General Principles of Constitutional Construction or Interpreta- tion—Interpretation and application of Particular Clauses — Habeas Corpus — Bills of Attainder — Ex-post-facto Laws — ^Fugitives from Justice — ^Fugitives from Labor — Beligious Freedom — ^Freedom of Speech and of the Press — Search-warrants and Seizures — Only one Trial for Offenses — Due Process of Law — Compensation for Private Property taken for Public Purposes — ^Trial by Jury — Excessive Bail and Cruel Punishments — ^The Obligation of. Con- tracts — ^Vested Sights — Conclusion, S82 TABLE OF CASES CITED. The figure is the last colnmn refers to the page of this book. A. Abbott m. Yost, Adams iis. Hamell, Adams vs. Bancroft, Adams-«», Howe, Adams us. Woods, Adm'x of Tracy vs. Adm'r of Card, Agar vs. Regent's Canal Co., Agnew vs. Piatt, Agent of State Prison vs. Lathrop, Albany, Northern Railroad Com- pany vs. Lansing, Alderman Backwell's Case, Alexander vs. The State, AUen vs. Mille, Almy vs. Harris, American Home Missionary Society vs. Wadhams, American Fm: Company vs. The United States, Andrews vs. Wheeton, Andrews vs. N. Y. Bible and Pray- er Book Society, Andrews vs. Montgomery, Andover and Medford Turnpike Corporation vs. Gould, Aulanier vs. The .Governor, Anon, Armstrong vs. Jackson, Armstrong vs. Toler, Armstrong vs. The United States, 2 Denio, 86, 386. 2 Doug., Mich. R., 15. 85. 3 Sumner, 386, 387, 335. 14 Mass., 341, 564. 2 Cranch, 386, 56. 2 Ohio State Kep., •' N. S., 431, 361. Cooper's Chancery Cases, 77, 466. 15 Pick., 417, 642. 1 Michigan, 438, 385. 16 Barb., 68, 520. 1 Vem., 152, 438. 12 Texas, 540, 441. 17 Wend., 202, 321. 5 John. E., 175, 39, 93, 404 10 Barb., 597, 220. 2 Peters, 3S8, 327. 23 Conn., 142, 422. 4 Sandf, 166, 18. 19 J. R., 162, 600. 6 Mass., 40, 403. 1 Texas, 653, 558. 2 Hill, 376, 420. 1 Blackf., 375, 546. 11 Wheat., 258, 85. 1 Peters, C. C. U. S., 46. 91. XIV TABLE OF CASES CITED. Annstrong vs. Treasurer of Athens County, 16 Peters, 281. Armington et al. vs. The Towns of Bamet, Ryegate, et al., 15 Verm., 745, Armstrong *s. Garrow, Arnold vs. The United States, Arnold vs. Tallmadge, Arrowsmith vs. Burlingim, Atcheson vs. Everitt, Atkinson vs. Fell, 6 Oowen, 465, 9 Cranch, 104, 19 Wend., 527, 4 M'Lean R., 498, Cowp., 382, 891, 6 Maule & S., 240. 241, 20 Wend., 241, 2 Price, 381, Atkins vs. Kinnan, Attorney General vs. Pougett, Attorney General ex r«Z.M'Kay w. Detroit and Erie Plank Road Co., 2 Michigan, 138, Attorney General vs. Newman, 1 Price, 438, Attorney General vs. Governor and Co'y of Chelsea Water Works, Fitzgibbons, 195, Attorney General vs. Mayor of Dub- lin, 9 Bligh, 895, Attorney General vs. Corporation of Poole, 4M. &C., 17. Attorney General vs. Panter, 6 Bro., P. C, 486, Attorney General vs. Chelsea Wa- ter Works Company, Pitzgibbon, 195, Attorney General vs. Lock, 3 Atk., 164, Attorney General vs. Aspinwall, 2 M. & C, 613, Atwater vs. Woodbridge, 6 Conn., 228, Aubert vs. Maz», 2 B. & P., 371, Austin vs. Stevens, 24 Maine R., 520, Avery et al. vs. Pixley, 4 Mass., 460, Ayres vs. The Methodist Episcopal Church, 3 Sandf, 351, 512, 655. 482. 111. 418. 118. 539. 360. 801. 348. 84. 238. 128. • 129. 466. 466. 81. 62. 440. 466. 559. 85. 197, 681. 421. 18. B. Babbitt vs. Doe, Babcock vs. Lamb, Backus vs. Lebanon, Bacon vs. Bacoi;i, Bagnell et al. vs. Broderick, Bailey vs. Mogg, Bailey vs. The Mayor, &c., of N. Y, Baker vs. The City of Boston, Baker vs. Braman, Baker vs. Johnson, Barker vs. The People, Barker vs. The City of Pittsburgh, Bait, and S. R. R. vs. Nesbit, Bank of Pennsylvania vs. Common- wealth, Bank of State of Alabama vs. Dal- ton, 4 Indiana, 355, 1 Cowen, 238, 11 N. H., 19, Cro. Car., 601, 13 Peters, 436. 4 Denio, 60, 7 Hill, 146, 12 Pick., 184, 6 Hill, 47, 2 Hill, 342, 8 Cowen, 687, 4Barr,Penn. R, 51, 10 Howard, 401, 19Penn.S.R.,156, 9 Howard, 627, j 348. 388. 512, 519, 665. 87. 456. 182. 196. 464, 465. 111. 527. 697, 616. 688. 689, 656. 241. 660. TABLE OF OASES OITED. XV Bank of U. S. vs. Daniel et al., Bancroft vs. Dumas, Bank of Augusta vs. Earle, Bank of Augusta vs. Earle, Bank of U. S. us. Deveaux, Bank of U. S. vs. Halstead, Bank of Hamilton vs. Dudley's Xes- see, Bank of Pennsylvania vs. Common- wealth, Bank of Easton vs. Commonwealth, Bank of Hamilton vs. Dudley's Les- see, Bank of Utica vs. Mersereau, Bank of Columbia vs. Okely, Bank of Utica vs. Sniedes, Bank of Monroe vs. Widner, Banne Case, Barden vs. Crocker, Barden vs. Crocker, Barclay vs. Brown. Barwell vs. Brooks, Barber vs. Andover, Barber vs. Dennis, Barto vs. Himrod, Barton vs. Port Jackson and U. P. Plank Road Co.', Bartlett et al. vs. King Ex'r, Barron vs. The Mayor, &c., of Bal- timore, Bartlett vs. Morris, Barksdale vs. Morgan, Barkamsted vs. Parsons, Barton vs. Port Jackson and Union Falls Plank Road Company, Barnes vs. First Parish in Fal- mouth, Bargis vs. The State, Barker vs. The State, Barrett vs. The Stockton and Dar- lington Railroad Co., Bartlett vs. Vinor, Bartlett vs. Viner, Baskett vs. Cunningham et at, Bass vs. Fontleroy, Baskett vs. The University of Cam- bridge, Battle vs. Howard, Bates vs. Kimball, Bates vs. Voorhies, Baugher vs. Nelson, Baxter vs. Taber, Beach vs. Walker, 12 Peters, 32, 74. 21 Verm., 456, 85. 13 Peters, 519, 70. 13 Peters, 625, 78. 5 Cranch, 87, 689. 10 Wheat., 61, 166, 690. 2 Peters, 526, 696. 7Har. (Penn.),144, 341. 10Barr,442, 341-. 2 Peters, 493, 613. 3 Barb. C, 530, 677, 266. 4 Wheaton, 245, 644. 3 Cowen, 662, 33. 11 Paige, 529, 91. Davies' Rep., 157, 464. 10 Pick., 383, 39. 10 Pick., 383, 389, 401. 7 Paige, 245, 322. 3 Doug., 371, 373 j 254. 8 N. H., 398, 665. 1 Salk, 68, 302. 4 Seld., 483, 165. 17 Barb., 39.7, 85. 12 Mass R., 537, 126,430. 7 Peters, 243, 697, 612, 616 9 Porter, Ala. 268, 269, 379, 4 Mod., 185, 420. 3 Conn., a, 80. 17 Barb., 397, 111. 6 Mass., 401, 564. 4 Indiana, 126. 348. 12 Texas, 273, 436. 2 Scott, N. R., 337. 340. Carthew, 252, 398. Skin., 322, 87. 1 Black., 370, 138. 11 Texas, 698, 33.> 1 W. Black, 105, 121, 138. 13 Texas, 345, 570. 2 Chip., 77, 167, 169. 7 How. P. R., 234, 221. 9 Gill, 299, 412. 412, 692, 694. 4 Mass., 361, 685. 6 Conn., 198, 670.- XVI TABLE OF OASES CITED. Bumgardner vs. Circuit Courtj 4 Missouri R, 50, Bayard vs. Smith, 17 Wend., 88, Beaty vs. Knowler, 4 Peters, 152, Beaumont vs. Mountain, 10 Bing., 404, Beaty vs. Perkins, 6 Wend., 882, Beckford vs. Hood, 7 T. R., 620, Bedford vs. Shilling, 4 Serg. & R . 401, Beekman vs. Bigham, 1 Selden, 366, fieers vs. Beers, 4 Conn. R., 539, Beers vs. Beer^, 4 Conn., 535, Beers vs. Haughion, 9 Peters, 329, Beebe vs. The State, 6 Indiana, 501, Beekman vs. Saratoga and Sch. R, B. Co., • Beekman vs. Saratoga and Sch. R. R. Co., Bein vs. Heath, Bell vs. Olapp, Bell vs. Morrison, Bell vs. Quin, Beman vs. Tugnot, Bennett vs. Am. Art Union, Benjamin vs. Benjamin, Bennett vs. Boggs, Benson vs. The Mayor of New York 10 Barb., 223, et al., Betts vs. Bagley, Biddis vs. James, Bidwell ei al. vs. Whitaker et al., Bigelow vs. Johnson, Bigelow vs. Pritchard, Bigelow vs. Stearns, Bigelow vs. Willson, Biggs vs. Lawrence, Bishop of Petersborough vs. Cates- by, Cro. Jac, 166, 167. Blakemore vs. The Glamorganshire Canal Navigation, 1 Mylne & K., 164, Blanchard vs. Russell, 13 Mass., 1, Bleecker vs. Ballon, 3 Wend., 268, Bleecker vs. Wisebum, 5 Wend., 136 Bloom «s. Burdick, 1 Hill, 130, Blood vs. Humphrey, 17 Barb., 660, Bloodgood vs. The Mohawk and 3 Paige, 73, 3 Paige, 75, 12 Howard, 168, 10 J. B., 263, 1 Peters, 359, 2 Sandford, 146, 5 Sandf. 154, 5 Sandf, 614, 636, 1 Seld., 388, 1 Bald., 74, 75, 13 Pick., 572, 6 Binney, 321, 1 Mich., 469, 479. 13 John., 428. 21 Pick., 174, 19 J. R., 39, 1 Pick., 485, 3 D. & E., 454, Hudson R. R. Co. Bloodgood vs. The Mohawk and Hudson R. R. Co., Bloom vs. Richards, Bloom vs. Richards, Blunt's Lessee vs. Smith et al., Board of Corns, vs. Cutler, Boardman et al. vs. The Lessees of I Reed and Ford, et al.. Bock vs. Lauman, Bodley et al. vs. Taylor, 18 Wend., 9, 69, 18 Wend., 9, 22 Ohio, 387, 22 Ohio, 888, 7 Wheat., 248, 6 Indiana, 364, 6 Peters, 328, 24 Penn., 485, 5 Cranch, 191, 653. 391. 841. 119. 553. 402. 134, 696. 356. 547. 549. 590. 480, 482, 486. 600, 515. 518, 529. ' 614. 553, 609. 433. 473, 86. 86, 473. 97, 98. 314. 184. 156, 344. 643. 119. 247. 392. 647, 695, 348. 418. 397. 420. 340. 70, 74. 305. 322. 348. 511. 516. 187, 518, 627. 85. 85. 466. 250. 456. 427. 456. TABLE OF CASES CITED. XVll Bonaparte vs. Camden and Amboy Railroad Co., 1 Baldw. 0. C. R , 205, Bond vs. Bond, 2 Pick. 382, Boom vs. City of Utica, 2 Barb., 104, Booth vs. Booth, 7 Conn., 350, Borden vs. Pitch, 15 J. R., 121, Boring vs. "Williams, 17 Ala. 510, Boston and Lowell R. R. Corpora- tion w. Salem and Lowell R. R. Company, 2 Gray, 1, Boston Water Power Co. vs. The Boston and "Worcester R. R. Co., 23 Pick., 3§1, Bosworth vs. Budgen, 7 Mod., 459, Bosley vs. Mattingly, , 14 B. Monroe, Ken- tucky, 89. Bostrek vs. The North Staffordshire Railway, Boutwell vs. Foster, Bouldin vs. Massie's Heirs, Bowen vs. Argall, Bowen vs. Lease, Bowman vs. Middleton, Boyle. «s. Zacharie, Boyd vs. Barreng«r; Bradley vs. Baxter, Brett vs. Beale, Braddee vs. Brownfleld, Bradford vs. Brooks, Brandling vs. Barrington, Bradstreet vs. Clarke, Brason vs. Dean, Brackett vs. Hoyt, Bradley vs. New York and New Haven R. R. Co., Braynard vs. Marshall, Brewster vs. Hough, Brewster vs. Kitehin, Brewster vs. Hpugh, Briscoe vs. Anketell, Briscoe vs. Bank of Commonwealth of Kentucky, Briggs vs. Georgia, Bristol vs. New Chester, Brittain vs. Kinnaird, Brooke q. t. vs. MilUken, Broome vs. Wellington, Brooks vs. Daniel, Bronson vs. Kinzie, BronsonDS. Newberry, Brown vs. County Commissioners, 21 Penn., 37, Brown vs. Duncan. 10 Bam. & Cres, 93, 4 Ellis & Black. 799, 24 "Term., 485, 7 "Wheat., 122, 149, 24 "Wend., 496, 5 Hill, 221, 1 Bay, 252, 6 Peters, 635, 23 Miss. R., 270, 15 Barb., 131, IM. &M,416, 2 W. & Sgrg., 271, 2 Aik., 284. 6 Barn. & Cres., 467, 475, 4 Wend., 211, 3 Mod , 39, 9 Foster, 264, 21 Conn., 294, 306, 8 Pick., 194, 10 N. H., 138, I Ld. Ray, 317 ; S. C. 1 Salk. 198, 10 N. H, 145, 28 Miss., 361, II Peters, 257, 15 Verm,, 61, 72, 3 N. H. R., 535, 1 Brod. & Ring., 432, 3 T. R., 509, 1 Sandf. Sup. Rep., 664, 22 Pick., 498, 1 Howard, 311, 2 Doug. Mich., 38, Ct. 187. 551. 468. 669. 600. 548. 628, 512. 666. 473. 231. 339. 85. 456. 367. 127. 187, 478. 641. 196, 683. 580. 119. 187. 168. 244. 137. 635. 392. 341,618. 642. 631, 655. 635. 554, 559. 669. 589. 377. 494, 495. 103. 394. 420. 551. 64lj 651, 656, 647. 123, 126, 127. 86, 87, 397. xvm TABLE- OF CASES CITED. Brown vs. Heummel, 6 Barr, 87, Brown vs. M'Millan, 7 Mees. & Wei., 196, Brown vs. Penobscot Bank, 8 Mass. R., 445, Broadbent vs. The State, 7 Maryland, 416, Brown DS. Somerville, 8 Maryl'd, 444,456, Bronson vs. Wiman, 10 Barb., 406, Bruce vs. President of Delaware and Hudson Canal Co., 19 Barb., 871, Brutton vs. The State, 4 Indiana, 602, Brudenell vs. Vaux, 2 Dall., 302, Brush vs. Ware et al., 15 Peters, 93, BrysQp vs. Campbell, 12 Miss., 498, Buckner vs. Finley, 2 Peters, 586, Buckley vs. Lowry, 2 Mich., 419, Buchan vs. Sumner, 2 Barb. Ch. R. 165, Buckingham vs. Billings, 13 Mass., 82, Buel vs. Trustees of Lockport, 3 Corns., 197, Buffalo and Niagara Falls Railroad vs. Buffalo, ' 6 Hill, 209, Bulkley vs. Eckert, Burghardt vs. Turner, Bntgett vi. Butgell, Burn vs. Oarvalho, Bumham vs. Webster, Bussing vs. Bushnell, Bussey vs. Story, Butler vs. Kent, Butler et al. vs. Pennsylvania, Butler vs. Palmer, Butler and Baker's Case, 3 Barr (Penn.) R., 368, 12 Pick., 539, 1 Ham., 219, 4 Ney. & Man., 889, 5 Mass. R., 268, 6 Hill, 382, 4 B. & A., 98, 108, 19 J. R., 223, 10 Howard, 410, 1 Hill, 324, 3 Rep., 31, a, 539. 125. 655. 345. 298. 119. 104. 63. 421. 456. 636. 74. 350. 364. 346. 110. 573. 305. 682. 51. 82. 33. 314. 251. 96. 618, 633. 130, 131, 132, 183. 358, Call vs. Hagger et al. Calder and Wife vs. Bull and Wife, Calcraft vs. Gibbs, Caldwell vs. The Mayor, &c., of Albany, Callender vs. Marsh, Camden vs. Anderson, Cameron vs. Baker, Campau vs. Fairbanks, Campbell vs. Perkins, Cannan vs. Bryce, Canandaigua and Niagara Falls R. R. Co. vs. Payne, Canal Commissioners vs. The Peo- ple, Canal Appraisers vs. The Peo- ple, 8 Mass., 429, 3 Dall., 380, 5 T. R., 19, 9 Paige, 572, 1 Pick., 418, 5 T. R , 709, 1 Carr & Payne, 268, 1 Michigan, 161, 4 Selden, 430, 3 B. & Aid., 179, 16 Barb., 273, 5 Wend. R., 445, 17 Wend., 584, 660. 187, 597, 191, 689, 199, 170, 159. 100. 322. 528. 397, 129. 404. 348. 867. 85. 620. 10. 10, 523. TABLE OF CASES CITED. XIX Canal Co. vs. R. R. Co., Cannon vs. Vaughan, Carson vs. Commonwealth, Carpenter vs, Oommonwealth of PennsylTania, Carpenter vs. ProT. W. Ins. Co., Caswell vs. Allen, Castle vs. Burditt, Cass vs. Dillon, Case of Rogers, Case vs. Willbridge, Catlin vs. Gunter, Cates vs. Knight, Cathcart vs. Robinson, Chadwick vs. Moore, Chapman vs. Albany and Schnec- tady R. R. Co. Chalmers vs. Bell, Charles vs. The People, Chase vs. Sutton Manufacturing Co., Charles River Bridge vs. "Warren Bridge, Champlain and St. Lawrence R. R. vs, Valentine, Cheany vs. Hooser, Chealey et al. vs. Brewer, Chester Glass Co. vs. Dewey, Cheval vs. Nichols, Christopher vs. The Mayor, &c. of New York, Churchill vs. Merchants' Bank, Churchill vs. Crease, City of Covington vs. Southgate, City of New Orleans vs. Graihle, City of Lowell vs. Hadley, City of Lexington vs. M'QuiUan's Heirs, City of New Orleans vs. Cannon, City of New Orleans vs. St. Rowes, City of New York vs. Miln, City of Boston vs. Shaw, City of London vs. Wood, City of Patterson vs. The Society, &c. Clayton vs. Adams, Clark vs. Clark, Clark vs. Brown, Clark vs. Ellis, Clark vs. Hatch, Clark vs. The Mayor of Syracuse, 4 Gill. & Johns. R., 152, 298, 127. 12 Texas, 399, 402, 249, 235. 1 A. K. Marsh, 280, 547. 17 How. 456, 600. 16 Peters, 495, 591. 7 J. R. 63, 99. 3 T. R. 623, 418, 420. 22 Ohio, 607, 490. 2 Greenleaf; 303, 33. 4 Indiana, 51, 436, 231. 1 Ken;i. 368, 221. 3 Term R. 442, 313. 5 Peters, 264—280, 9. 8 Watts & Serg. 49, 647. 10 Barb. 360, 520. 3 B. & P. 604, 397. 1 Corns. 180, 116. 4 Cush. 152, 533. 11 Peters, 420, 655, 341, 612, 339, 454, 395, 339. 19 Barb. 484, 107, 457. 9 Ben Monroe, 389, 675. 7 Mass. 259, 305. 16 Mass. 94, 90, 403. 1 Str, 664, 321. 13 Barb. 567, 577. 19 Pick. 532, 421. 2 Moore & Payne, 415;5Bing.l80, 423, 61, 133. 15 B. Monroe, Law & Equity R. 491, 675. 9 La. Ann. R. 561, 578. 8 Met. 181, 469, 373, 558. 9 Dana, 518, 503. 10.La. Ann. R.764, 542. 9 La. Ann. R. 573, 876. 11 Peters, 102, 489. 1 Met. 130, 558,403,94,473. 12 Mod. 669, 151, 4 Zabriskie, 385, 690. 6 Term R. 605, 254. ION. H. 881, 637. 18 Wend. 220, 94, 92. 2 Blackford, 10, 489. 7 Cush. 455, 642. 13 Barb. 32, 465. XX TABLE OF CASES CITED. Clark vs. The People, Clark vs. Saybrook, Clark va. City of Utica, Clippinger vs. Hepbaugh, Clugas vs. Penaluna, Coates and Stuyvesant vi. The Mayor of N. Y. Cobia vs. The State, Cochran vs. Van Siitley, Cochran vs. Surlay, CofBn vs. Tracy, Cohens vs. Virginia, Collins vs. Blantem, Colt vs. Eves, Colden vs. Bldred, Cole vs. Green, College of Physicians »s. Harrison, Collins vs. Ragrew, Columbia Turnpike Road vs. Hay- wood, Cole vs. Smith, Commonwealth vs. Aves, Commonwealth vs. Alger, Commonwealth vs. Breed, Commonwealth vs. Baldwin, Commonwealth vs. Barker, Commonwealth vs. Cook, Commonwealth vs. Churchill, Commonwealth vs. Chambre, Commonwealth vs. Cooley, Commonwealth vs. Dana, Commonwealth vs. Duane, Commonwealth vs. EastsQ Bank, Commonwealth" ««. Farmers & Me- chanics' Bank, Commonwealth vs. Green, Commonwealth vs. Gillespie, Commonwealth vs. Baird, Commonwealth vs. Herrick, Commonwealth vs. Harvey, Commonwealth vs. Inhabitants of Springfield, Commercial Bank of Oswego vs. Ives, Commonwealth vs. Tewksbury, Commonwealth of Kentucky vs. Bassford, Commonwealth vs. Knowlton, Commonwealth vs. Kimball, Commonwealth vs. Keniston, 26 Wend. 599, 48S. 21 Conn. 313, 522. 18 Barb. 451, 529,261. 5 "Watts & Serg. 315, 67. 4 D. & E. 466, 397. 7 Cow. 68, 634. ISAla. 781, 547. 20 Wend. 381, 185. 20 Wend. 379, 639. 3Caine'sRep. 129, 109. 6 Wheat. 264, 618 to 121, 593, 430. 2 Wils. 361, 316. 12 Conn. 243, 253, 376,547,597. 15 J. B. 220, 93. 6 Man. & G. 872, 890, 372. 9 Barn. & Cres. 524, 135. 15 J. B. 5, 392. 10 Wend. 422, 418,419. 4 John, 193, 392. 18 Pickering, 193, 76. 7 Gushing, 63, 66, 609, 16, 238, 507, " 608, 504. 4Rck.464, 610. 1 Watt's Penn. R. 54, 396. 6 Binn. 423, 670. 6S.&Rawle, 577, 610. 2 Met. 118, 137. 4 Ball. 143, 421; 10 Pick. 37, 126, 130. 2 Met 336, 651. 1 Binney, 601, 394, 131, 238. 10 Barr, 442, 127. 21 Pick. 543, 690. 17 Mass. 516, 610. 7 Serg. & Rawle, 469, 80. 12 Mass. 443, 660. 6 Gushing, 465, 128. 8. Am. Jur. 69, 80. I 7 Mass. 9, 33. 2 Hill, 355, 418. 11 Met. 56, 506. 6 Hill, 627, 70. 2 Mass. 580-634, 12. 21 Pick. 373, 126, 308, 489. 5 Pick. 420, 4^8. TABLE OF CASES CITED. XXI of Commonwealth m. Loring, Commonwealth ««. Leach, Commonwealth vs. Marion, Commonwealth vg. Murray, Commonwealth vs. M'Ourdy, Commonwealth vs. Marshall, Commonwealth m. Pittsburg and Connelsville R. R. Co. Commonwealth vs. Porter, Commonwealth vs. Robbins, Commercial Bank of Buffalo vs. Sparrow, Commonwealth vs. Tuck, Commonwealth vs. Tracy, Commonwealth vs. Thos. Ryan, Commonwealth vs. Worcester, Commonwealth vs. Weiher, Comter vs. Read, Cone vs. Bowles, Conner vs. Elliott, Conner vs. The Mayor, Conley vs. Palmer, Cook vs. Moffat, Cooley vs. Board of Wardens Philadelphia, Coolidge vs. Williatas, Copeman vs. Gallant, Cope w, Rowland, Corning vs. M''CulIough, Corliss vs. Corliss, Corfield vs. Coryell, Cornell vs. Moulton, Corbett vs. Poelnitz, Cornell vs. Town of Guilford, Couch q. tarn vs. Jefiries, Couch vs. Steel, Coutant vs. The People, Crane vs. Hardy, Crane vs. Meginnis, Crayton vs. Munger, Creigton vs. Johnson, Crespigny vs. Wittenoom, Crisp vs. Bunbury, Cripps vs. Durden, Crittenden vs. Wilson, Crosley vs. Arkwright, Crosby us. Bennett, Crocker vs. Crane, Croswell vs. Crane, Crocker vs. Crane, Crooke vs. De Vandes, Crone vs. Daniels, ^ Crow vs. The State of Missouri, 8 Pick. 370, 374, 330. 1 Mass. 59, 12. 17 Mass. 359, 362, 363, 329. 4 Binn. 487, 670. 5 Mass. 324, S3. 11 Pick. 360, 130, 126. 24 Penn. 159, 340. 10 Met. 263, 616. 26 Penn. 165, 167, 418. 2 Denio, 97, 573, 69. 20 Pick. 366, 547. 5 Metcalf, 536, 607. 6 Mass. R 90, 560. 3 Pick. 462, 472. 3 Met. 445, 303. 5 Denio, 564, 350. lSalk.R.205, 358. 18 How. 591, 603. ISeld. 285,293, 51, 52. 2 Corns. 182, 99. 5 Howard, 295, 641. 12 How. 299, 590. 4 Mass. 139, 343. 1 P. Wm. R. 320, 55. 2 M. & W. 149, 167, 88, 397. 2 Coms. 47, 108. 8 Verm. 373, 377. 4 Washington's C. C. Reports, 381, 602. 3 Denio, 12, 418. 1 Term R. 6, 9, 254. 1 Denio, 610, 467. 4 Burr, 2460-2, 190, 133. 3 EUis & Black- burn, Q. B. 402, 91. 11 Wend, 511, 262, 488. 1 Michigan, 56, 427. 1 Gill & J. 463, 169,483. 11 Texas, 234, 313. 6 Litt. 241, 548. 4T.R.193, 55. 8 Bing. 394, 313, 125. Dwarris, 643, 394. 6 Cow. 165, 39, 2T. R.-605, 302. 7 Met. 17, 94. 21 Wend. 211, 387. 7 Barb. 191, 429. 2 Wendell, 211, 234. 9Vesey,197, 263. 20 Conn. 331, 422. 13 Miss. R. 558. xxu TABLE OF CASES CITED. Cruger vs. Hudson R. R. Co. Cunningham vs. Bucklin, Cumming vs. Police Jury, Curran vs. State of Arkansas, Currier vs. Phillips, Curtis vs. Leavitt, Cushman vs. Smith, 2 Kern. 196, 8 Oowen, 178, 9 La. Ann. R. 503, 15 How. 304, 318, 12 Pick. 223, ir Barb. 312, 317, 34 Maine, 247, 529. 103. 558, 504. 651. 442. 83, 412, 394. [523,628. D. Danforth vs. Tfoodward, Dartmouth Coll. vs. Woodward, Darbey vs. Newton, Dash vs. Van Kleeck, Davies vs. Fairbairn, Davison vs. Gill, Davison vs: Johonnot et al. Davis vs. Marshall, Davis vs. The Mayor, &c>, of the City of New York, Davis vs. Packard, Davis vs. The State Court of Ap- peals, Dawson vs. Shaver, Day et al. vs. Stetson, Day vs. Savage, Dean and Chapter of Norwich's Case, Dean vs. Dean, De Baun vs. The Mayor, De Begnis ««. Armistead, De Bow vs. The People, De Camp vs. Eveland, Deerfleld vs. Ames, Denn ex. dem. Fisher vs. Hamden, Denning vs. Roome, Denning vs. Smith, De Peyster vs. Michael, De Ruyter vs. The Trustees of St. Peter's Church, Dexter and Limerick Plank Road Co. vs. Allen, Dicas vs. Lord Brougham, Dike vs. Lewis, Divine vs. Harvie, Doane vs. Phillips, Dodge vs. Woolsey, Dodge vs. Gridley, Doe dem. Broughton vs. Gully, Doe vs. Naylor, Dominick vs. Michael, 10 Pickering, 23, 4 Wheat. 519, 6 Taunt. 544, 7 J. R. 477, 3HOW.U.S.R.636, 1 East, 64, 7 Met. 389, 14 Barb. 96, 1 Duer, 451, 7 Peters, 276, 7 Maryland, 151, 1 Blackf. 204, 8 Greenl. 365, 523, Hobart, 85, 8 Rep. 76, 2 Mass. 150, 16 Barb. 392, 10 Bing. 107, 1 Denio, 9, 19 Barb. 81, 17 Pick. 46, 1 Paine 0. C. R. 54, 6 Wend. 651, 3 J.. C. R. 332, 2 Seld. 467, 503, 3 Barb. Ch. R. 119 ; 3 Corns. 238, 16 Barb. S. C. R. 15, 6 C. & P. 249- 4 Denio, 287; 2 Barb. Ch. 344, 7 Monroe, 444, 12 Kck. 223, 18 How. 330, 10 Ohio, 173, 9 B. & C. 344, 354, 2 Blackford, 82, 4SandS.C.R.374, 409, 346. 624, 636, 656, 47ffw 397 599^ 191, 213, 195. 125. 347, 319. 199, 167,. 171,, 169. 348. 472. 109. 670, 578. 549. 523. 150. 358. 690. 677. 88, 39& 673,69. 680, 482. 458. 448. 474. 386. 200. la. 125. 103. 355. 305. 442. 631, 664. 250. 137. 137. 429. TABLE OF CASES CITED. XXUl Donohoe vs. Richards, Douglas vs. Bank of Missouri, Doughty vs. Hope, Douglas vs. Howland, Dow vs. Norris, Downing vs. Rugar, Dozier vs. Ellis, Dubois vs. Kelly, Duck vs. Addington, Dudley vs. Mayhew, Duffield vs. Smith, Duramus vs. Harrison & Whitman, Durham vs. Lewiston, Dutch Church in Garden Street «* Mott, Dutchess Cotton Manufactory vs Davis, Dyson vs. West's Bx'r, 38 Maine, 879, 410, 1 Missouri R. 20, 3 Denio, 594, and 1 Coms. 79, 24 Wend. 35, 4 N. H. 16, 21 Wend. 178, 28 Mississippi, 730, 10 Barb. 496, 4 Term R. 447, 3 Comstock, 9, 3 Serg. & R. 590-9, 26 Ala. 326, 4 Greenleaf, 140, 7 Paige, 82, 14 J. R. 238, 1 Har. & J. 567, 562. 83. 354. 429. 198. 352. 321. 13. 24g; 92, 109. 134. 429. 170. 694. 403. 314. E. Eakin vs. Raub, 12 Serg. & Rawle, ■ 352,683, 489, 490. Earl of Buckinghamshire «j .Drury, 2 Eden. Ch. R. 61, 64, and 74, 256. Easton vs. Calendar, 11 Wend. 90, 103. Bast and West India Docks am I Birmingham Junction Railwaj vs. Gattke, 3 Man. & G. 155, 524. East Hartford vs. Hartford Bridge Co. 10 Howard, 511, 33, 344, 684, 639 Edmonds vs. Lawley, 6 M. & W. 285, 191. Edwards vs. Dick, 4B. &Ald. 212, 299. Edwards vs. James, 13 Texas, 52, 376. Edwards vs. Pope, 3 Seam. 465, 55, 169, 489. Eldridge vs. Knott, Cowper, 215, 121. EUah vs. Leigh, 5 Term R. 682, 254. Ellis vs. Paige et al. 1 Pick. 43, 430, 212. Ellicottville and Great Valley Plank Road Co. vs. The Buffalo and P R. R. Co. 20 Barb. 644, 633. Elliott vs. Swartwout, 10 Peters, 137, 388. Elmendorf D«. Carmichael, 4 Litt. R. 47, 57. Elmendorf vs. Taylor, lOWheaton, 152, 433. Elsworth vs. Cole, 2 M. & W. 30, 423. Elton vs. Eason, 19 Vesey, 77, 263. Elwood vs. Klock, 13 Barb. 50, 429. Ely vs. Thompson, 3 Wash. C. 0. R. 313, 489. Emanuel vs. Constable, 3 Russell, 436, 55. Embury vs. Conner, 3 Coms. 511, 518, 111. Emerick vs. Harris, 1 Binney, 416, 548, 549. Emerson vs. Taylor, 9 Greenleaf, 44, 458. XXIV TABLE OF CASES CITED. Enderman vs. Ashby, Pr. Dec. 65, 546. Enfield Toll Bridge Co. vs. The Hartford & N. H. E. R. Co. 17 Conn. 40, 665. Enfleld Toll Bridge Co. vs. The Conn. River Co. 7 Conn. 44, 625. Englishbee «s. Helmuth, 3 Conn. 295, 682. Entick vs. Carrington, 19 Howell's State Trials, No. 1029, 551. Entwistle jjs. Dent, 1 Exch. 811, 823, per Pollock, O.B. 369. Erie & Northeast K. R. vs. Casey, 26 Penn. 287, 656. Ervine's Appeal, 16 Penn. R. 256, 539. Estep vs. Hutchman, 14Serg. &R.435, 173. Evans vs. Eaton, Peters C. C. U. S. R. 837, 618. Evans vs. Myers, 25 Penn. R. 114, 116, 258. Evans vs. Montgomery, 4 Watts & Serg. 218, 647. Evans vs. Richard, Q. B. R. 135. Everett vs. Wells, 2 Scott, M. C. 531, 246. Ewing vs. Directors of the Peni tentiary, Hardin R. 5, 548. Executors of Burr vs. Smith, 7 Verm. 241, 18. Ex parte Edward Henry, 24 Ala. 688, 547. Extension of Hancock Street, 18 Penn. (6 Harris) 26. 503. F. Fairbanks vs. Antrim, Pair Title vs. Gilbert, Fairbanks vs. Wood, Farmers and Mechanics' Bank of Pennsylvania vs. Smith, Farmers and Mechanics' Bank vs. Smith, Farmers' Loan and Trust Co. vs. Walworth, Farrington vs. Morgan, Fashion vs. Wards, Fennell vs. Ridler, Finch vs. M'Dowall, Fiske vs. Foster, First Massachusetts Turnpike vs. Field et al. First Baptist Church vs. Utica and Schnectady R. R. Co. Fisher vs. Blight, Fisher vs. M'Girr, Fletcher vs. Lord Londes, Fletcher vs. Peck, 2 N. H. 105, 328. 2 T. R. 171, 635. 17 Wend. 329, 419, 426. 6 Wheat. 181, 641. 3 Serg. & R. 63, 73, 485. 1 Coms. 433, 111. 20 Wend. 207, 318. 6 M'Lean, 52, 263. 5 B. & C. 406, 85. 7 Cowen, 537, 137. 10 Met. 597, 642. 3 Mass. 201, 321. 6 Barb. 313, 520. 2 Cranch, 358, 399, 231. 1 Gray, 22, 489, 509. 8 Bing. 680, 325. 6 Cranch, 87, 619, 699, 584, 187, 621, 482, 133, 693, 698, 656, 595, 620. TABLE OF CASES CITED. XXV Floyer m. Edwards, Fontaine vs. Phoenix Ins. Co. Foot vs. Prowse, Mayor de Truro, Forrest vs. Forrest, Forth vs. Chapman, Fort Miller and Fort Edward Plank Road Co. M. Payne, Foster vs. Banbury, Foster et al. vs. The Essex Bank, Foster & Elam vs. Neilson, Foster el al. vs. Neilson, Fowler vs. Stoneum, Foxcroft vs. Mallett, Franklin Glass Co. vs. White, Free vs. Burgoyne, Freeland vs. M'Cullough, Freeman vs. Moyes, Frewin vs. Lewis, Frohock vs. Pattee, Frost vs. Brisbin, Fulton Bank vs. Beach, Furman vs. The City of New York, Furrillio vs. Crowther, Cowper, 112, IIJ. R. 293, Strange, 625, George 1, 10 Barb. S. C. 46, 1 P. Wm. 667, 17 Barb. 567, 3 Sim. 40, 16 Mass. 245, 2 Peters, 314, 2 Peter.s, 253, 307, 11 Texas, 478, 4 How. 377, 14 Mass. 286, 5 B. & C. 400, 1 Denio, 414, 1 Ad. & Ell. 338, 4 M. & Craig, 249, 38 Maine, 103, 19 Wend. 11, 1 Paige, 429, 6 Sandf. 16, 7DowL&RyL612, 257. 98. 369. 260, 430. 263, 94. 55. 484, 694. 460. 451. 9. 591. 403. 56. 107. 136, 190. 466. 390. 601. 219. 231, 239, 457. 404. G. Gage vs. Currier, Gale vs. Mead, Gale vs. Mead, Games vs. Stiles, Gardner vs. CoUins ef al., Garrett vs. Beaumont, Gedney vs. Inhab. of Tewksbury, Gee vs. Wilden, Gerrard vs. Dickinson, Gibbons vs. Ogden, Gibson ■OS. Jenney, Gififbrd vs. Livingston, Gilbert vs. Col. Turnpike Co., Gildart vs. Gladstone, Giles vs. Ferrers, Gillet vs. Moody, Gillmore vs. Shooter's Ex'r, Glassington vs. Rawlins, Glover vs. North Staffordshire Rail- way Co., Gorlet vs. Cowdrey, 4 Pick. 399, 564. 2 Denio, 160, 373. 4 Hill, 109, 137. 14 Peters, 322, 482, 615. 2 Peters, 58, 431, 486. 24Miss. R. 377, 196. 3 Mass. 307, 309, 404. 2 Lutw. 1320, 473. Cro. Eliz. 196, 9 Wheat. 188, per Marshall, C. J., 489, 595. 15 Mass. 205, 206, 318. 2 Denio, 380, 573. 3 Johns. Cas. 107, 436. 11 East, 685, 340. Cro. Eliz. 59, 263. 3 Corns. 479, 361. 2 Mod. 310, 133. 3 East, 407, 418. 6 Railway Cases, 371, 624. 16 Jut. 673, 523, 624. 1 Duer, 132, 320. XXVI TABLE OF CASES CITED. Going vs. Emery, Goodell vs. Jackson, Gooch vs. Stephenson, Gordon vs. Appeal Tai Court, Gordon's Exors. US. The Mayor of Baltimore, Gore vs. Brazier, Goshen and Minisink Co. vs. Hur- tin, Goshen vs. Stodnington, Goszler vs. The Corporation of Georgetovm, Gould vs. James, Gould vs. Johnson, Governor, &c., of Oast Plate Manu- factory vs. Meredith, Grace vs. Clinch, Graham vs. Van Wyck, Grant DS. Kemp, Gray vs. Bennett, Gray vs. Russell, Green vs. Biddle, Greene vs. Briggs, Greenough vs. Greenough, Greene vs. James, Green vs. Kemp, Green vs. Neal, Green vs. Wood, Griffith vs. Wells, GrigD.on's Lessee vs. Astor, Grindley ei al. vs. Barker et al., Grosset vs. Ogilvie, Groton & Sedyard vs. Hurlbut et al., GroTerDS. Coon, Gwin vs. Barton, Gwin vs. Breedlove, Gye vs. Pelton, 16 Pick. 107, 18. 20 J. R. 722, 429, 465. 13 Maine (1 Shep- ley), 371, 405. 3 Howard, 133, 681, 656. 6 Gill, 236, 632. 3 Mass. 623, 539, 310, 265. 9 J. R., 207, 403. 4 Conn., 209, 158, 411, 668, 694. 669 6 Wheat. 593, 634. 6 Cowen, 369, 455, 457. 2 Lord Eaym. 838, 35. 4 Term, 795, 401, 501. 4 J. B. 606, 302. 14 Barb. 531, 582, 815. 2 0. & M. 636. 190. 3 Met. 622, 527, 888. 1 Story, 11, 139. 8 Wheat. 89, 612, 628, 644, 656 1 Curtis, 311, 611, 615. 11 Penn. 489, 410. 2 Curtis, 187, 590, 611. 13 Mass. 518, 803. 6 Peters, 301, 431, 433. 7 Q. B. 178, 185, 245. 3 Denio, 226, 41, 88. 2 Howard, 319, 349, 350. 1 B. & P. 229, 387. 5 Bro. P. C. 527, 135, 894. 22 Conn. 178, 422. 1 Corns 536, 185. 6 Howard, t. 614. 2 Howard. 29, 614. 4 Taunt. 876, 302. H. Haley vs. Clark, Hale vs. N. J. Steam Nav. Co., Hall vs. Bergen, Hall vs. Dyson, Hall vs. Franklin, Hallet vs. Noonar, Halsted vs. The Mayor, &o., of the City of New York, Hammond vs. Anderson, 26 Ala. 439, 578. 15 Conn. 539, 427 19 Barb. 122, 424. 17Ad. &K11 N. S. 785, 86. 8Mees.&We]s.259, 309. 14 J. R. 278, 88. 3 Com. 431, 468 4 Bos. & P. 69, 254 TABLE OF CASES CITED. xxvii Hampton vs. Commonwealth, Hampton vs. Erenzeller, Hampton vs. M'Connel, Ham vs. Sawyer, Hamilton vs. Williams, Hampshire vs. Franklin, Hand vs. Ballou, Hartwell vs. Armstrong, Harrison vs. Chiles, Harman vs. Brothreson, Hartford and New Haven Railroad Company vs. Croswell, 5 Hill, 384, Harpending vs. Dutch Church, 16 Peters, 455, Harding vs. Goodlet, 3 Yerger, 41, Hartford and New Haven Railroad 7 Harris (Penn.), 329, 2 Browne's R. 18. 3 Wheat. 234, 38 Maine, 37, 26 Ala. 527, 16 Mass. 86, 2 Kern. 541, 19 Barb. 166, 3 Litt. R. 200, 1 Denio, 537, Company vs. Kennedy, Hardin vs. Owings, Harris vs. Roofs Executors, Harris vs. Runnels, Hart vs. lUe Mayor of Albany, Harvey vs. Thomas, 12 Conn. 507, 1 Bibb. 215, Ken'y, 10 Barb. 489, 12 Howard, 79, 9 Wend. 571, 10 Watts, 63, Harrington vs. Trus's of Rochester, 10 Wend. 547, Harrison vs. Stipp, 8 Blackf. R. 455, Harris vs. Wood, 6 Monroe, 642, Hardyman vs. Whitaker, Bulh N. P. 189 n (b) Hastings vs. Aiken, 1 Gray, 166, Hatzfield vs. Gulden, 7 Watts, 152, Hatch vs. Vermont Central Rail- road Company, 25 Verm. 49, 61, Haven vs. Foster, 9 Pick. 112, Hawkins vs. Barney's Lessee, 5 Peters, 447, Helmore vs. Shuter, 2 Show. 17, Henderson vs. Bise, 3 Starkie, 158, Henderson vs. Brown, 1 Caines, 92, Henry vs. Salina Bank, 1 Coms. 83, Henniker vs. Contoocook Valley Railroad, 9 Foster, 147, Henley vs. Mayor et al. of Lyme 5 Bing. 91 ; 3 Barn Regis, Henry vs. Pittsburgh and Alle- ghany Bridge Co., Henry vs. Tilson, Hepburn vs. Curts, Heridia vs. Ayres, Herrick vs. Randolph, Hey ward vs. The Mayor, &c., of New York, Hicks vs. Whitmorej Hills vs. Hunt, Hilour's Case, HillM. Town of Sunderland, Hindle««. O'Brien, Hinsdale vs. Lamed et al., Hiriart vs. Ballon, & Adol. 77. 8 W. & Serg., 85, 17 Verm. 479, 7 Watts, 300, 12 Pick. 334, 13 Verm. 525, 3 Selden, 314, 12 Wend. 548, 15 Com. B. 1, 6 ; t Scott, 1, 25, 7 Rep. 27, 3 Verm. 507, 1 Tauni 413, 16 Mass. 65, 9 Peters, 156, 131. 418. 78, 600. 258. 442. 683. 357. 513.- 548. loa. 425. 106. 519. 403. 381. 67. 89, 397. 465. 187. 415. 654. 353, 54a 394. 137. 67. 159, 523. 428. 655. 190. 423. 102. 397. 405. 387. 521. 253, 303, 331. 201. 33 559, 555. 532. 320. 473. 679. 168. 337. 404. 614. XXVlll TABLE OF CASES CITED. Hitchcock vs. Way, Hodges vs. City of Buffalo, Hodgson vs. FuUarton, Hoke vs. Henderson, Holbrook vs. Finney, Holden vs. James Adm'r, HoUewell vs. Corporation of Bridge- water, HoUingback vs. Fleming, Holmes vs. Holmes, Holbrook vs. Holbrook, Holman vs. Johnson, Holman vs. King, Holland et al. vs. Osgood, Holyoke vs. Haskins, Homer vs. Fish et al., Homan vs. Liswell, Hook vs. Gray, Hooker vs. The New Haven and Northampton Co., Hopkins w. Stapers, Horton vs. Auchmoody, Hosmer, J., United Soc. m. Eagle Bank, Hospital vs. Philadelphia Co., Howard vs. Williams, Hoyt vs. Dillon, Hubbard vs. Johnston, Hudson vs. Temple, Hughes vs. Hughes, Hughes vs. Lumley, Humphrey vs. Chamberlain, Humphrey vs. Whitney, Hunt vs. Holden, Hunt vs. Vanbelstyer, Hyde vs. Cogan, 6 Ad. & Ell. 943, 134. 2 Denio, 110, 467. 4 Taunt. 787, 397. 8 Dev. 12, 539. 4 Mass. 566, 682. 11 Mass. 396, 170, 689. 2 And. 192, 60. 6 Hill, 303, 349. 4 Barb. 296, 638. 1 Pick. 248, 55, 564. Cowp. 841, 397. 7 Met. 888, 427. 8 Verm. 276, 377. 6 Pick. 20, 660, 683, 692 1 Pick. 435, 321. 6 Cowen 659, 418. 6 Barb. 398, 85. 14 Conn. 146, 528. Cro. Eliz. 229, 263. 7 Wend. 200, 103. 7 Conn. 457, 469, 470, 249. 24 Penn., 229, 632. 2 Pick. 80, 846. 19 Barb. 644, 356. 3 T&,unt. 177, 335. 5 Taunt. 181, 398. 4 Munroe, 43, 547. 4 Ellis & Blackb. 358, 859, 416. 1 Kern. 274, 91. 3 Pick., 158, 633. 2 Mass. 170, 421. 25 Wend. 605, 573. Douglas, 702, 362. Ilsley vs. Meriam, In Charles Eiver Bridge vs. Warren Bridge, In the Matter of Cooper, In the Matter of Hamilton Avenue, In the Matter of John and Cherry Streets, Ingraham vs. Hart, Inge vs. Murphy, Inhabs. of Shirley vs. Lunenburgh, Inhabs. of Springfield vs. Conn. River Railroad Co., Inhabs. of Stoughtoh vs. Baker, Ives vs. Finch, ' I. 7 Cush. 242, 11 Peters, 681, 16 John. 633, 14 Barb. 405, 19 Wend. 669, 11 Ohio, 255, 10 Ala. 886, 11 Mass. 379, 4 Cush. 68, 4 Mass. 622, 22 Conn. 101, 642. 640. 486. 621. 615. 426. 427. 549. 866. 106. 422. TABLE OF CASES CITED. XXIX Jackson vs. Collins, Jackson vs. Chew, Jackson vs. Catlin, Jackson vs. .Corey, Jackson vs. Esty, Jackson vs. Edwards, Jackson vs. Frost, Jacobs vs. Graham, Jackson vs. Lampshire, Jackson vs. Lunn, Jackson vs. Lervey, Jackson ex dem M'CIoughry vs. Lyon, Jackson vs. Marsh, Jack vs. Martin, Jackson vs. Morse, Jackson vs. Van'VaJkenburgh,' Jackson vs. Varick, Jacques '«s. Withy, Jackson vs. Wood, Jackson vs. Wright, Jackson vs. Young, James vs. Patten, James vs. Reynolds, James vs. The Commonwealth, Jenkins vs. Hooker, Jenkinson vs. Thomas, Jenkins vs. Union Turnpike Co., John M. Martin vs. The Somerrille Water Power Co. et al., Johnson vs. Burrell, Johnson vs. Bush, Johnson vs. Hudson, Johnes vs. Johnes, Johnson, J., in Ogden vs. Saunders, Johnson vs. Sutton, Johnson vs. The Commonwealth, Jones vs. Axen, Jones vs. Tatham, Jones vs. Harrison, Jones vs. Perry, Jones vs. Smart, Jones vs. Smith, Josselyn vs. Stone et al., Judd vs. Fulton, Justices of Clarke Co. vs. The P. W. and R. R. Turnpike Co., Justices of Clarke Co. vs. The P. W. and R. R. Turnpike Co., J. 3 Cowen, 89, 96, 12 Wheat. 153, 2 J. R. 248, 8 J. R. 388, 7 Wend. 148, 22 Wend. 498, 6 Cowen, 346, 1 Blackf. 392, 8 Peters, 289, 3; Johns. Cases, 109, 6 Cowen, 897, 9 Cowen, 664, 6 Cowen, 281, 12 Wend. 311 ; 14 Wend. 507, 18 J. R. 441, 8 Cowen, 260, 2 Wend. 294, 1 H. Bl. 65, 2 Cowen, 819, 4 Johns. R. 79, 2 Cowen, 819, 2 Selden, 9, 2 Texas, 251, 12 Serg. & R. 220, 19 Barb. 435, 4 T. R. 666, 1 Caines' Cases, 86i KY. Even'gPost, April 4, 1857, 2 Hill, 238, 3 Barb. Ch. R. 207, 238, 11 East, 180, 3 Dow. 15, 12 Wheat. 290, 1 Doug. 254, 7 Dana, 342, 1 L. Raymond, 119, 20 Penn. R. 899, 6 Exch. 328, 333, 10 Yerger, 59, IT. R. 44, 52, 2 Bulst. 36, 28 Mississippi, 768, 10 Barb. 117, 11 B. Monroe, 143, 18 B. Monroe, 143, 298, 304. 433. 36,, 599, 679, ft79.. 110, 353. 636. 677. 418. 597, 655, 659, i 679. 455. 681. 456. 607. 355. 418, 420. 219, 132. 597. 682. 378, 377. 212. 539. 597, 616. 87. 325. 403. 657. 195. 232. 87, 397. 360. 593. 397. 632. 34. 36. 260, 439. 172, 539. 807. 88. 395. 419. 464. 505, XXX TABLE OP CASES CITED. Kay vs. Gordon, Eeator vs. Ulster and Delaware Plank Road Co., Keene vs. The Borough of Bristol, Keith vs. "Ware, Kelly vs. Harrison, KendaU vs. Dodge, Kendall vs. Inhabs. of Kingston, Kennedy vs. Strong, Kent vs. Somerville, Kerrison vs. Cole, Key vs. Goodwin, Kiersted vs. Avery, Kimberly vs. Ely, Kinaston vs. Clarke, King vs. Adderly, King vs. Allen, King vs. Athos, King vs. Birmingham, King vs. Bishop of London, King vs. Brisac, King vs. Burrell, King vs. Cartwright, Knight vs. Crockford, King vs. Forrest, King vs. George Marks, King vs. Harris, King vs. Inhabs. of Barham, King vs. Inhabs. of Corsham, King vs. Inhabs. of Cumberland, King vs. Inhabs. of Haverstall Red- ware, King vs. Inhabs. of North Nibley, King vs. Inhabs. of Ramsgate, King vs. Inhabs. of St. Gregory, King vs. Inhabs. of Worminghall, King vs. John Younger, King vs. Lacey, King vs. Peckham, King vs. The Justices, &c. King vs. The Mayor of Hastings, Kingston upon Hull Dock Co. vs. La Marche, Kinney vs. Beverly, Kirk vs. Nowill, Kirby vs. Shaw, K. 6 Bing. 576, 7 How. Pr. R. 41, 26 Penn. 46, 2 Verm. 175, 2 J. Cases, 29, 3 Verm. 361, 5 Mass. 524, 14 J. B. 128, 7 GiU & J. 265, 8 East, 234, 4 M. & Payne, 341 4 Paige, 9, 6 Pick. 440, 2 Atk. 205, Doug. 463, 15 East, 333, 3 Mod. 144, 8 B. & C. 29, Shower, 420, 4 East, 164, 12 A. & E. 468, 4 T. R. 490, 1 Esp. 190, 3 D. & B. 38, 3 East, 160, 4 T. R. 205, 8 Barn. & Ores. 99, 2 East, 302, 6 Term. R. 194, 6 Term. R. 380, 5 Term. R. 21, 6 B. & C. 712, 715, 2 Ad. & Ell. 99, 6 M. & Selw. 350, 5 T. R. 449, 450, 8 Conn. R. 499, Carth. 406, 15 East, 377, 1 D. & Ryl. 53, 8 B. & Ores. 51, 2 H. & Munf. 336, 1 T. R. 118, 7 H. Penn. R. 258, 130. 111. 528. 168. 636, 679. 168. 564, 691. 98. 55. 400. 129. 364. 596. 55. 418,420. 395. 55. 90. 38. 80. 246. 50. 321. 352. 50, 55. 406. 245. 254. 395. 352. 254. 245. 371. 421. 254. 422. 420. 127. 439. 340. 539. 32 185, 602. Lacon vs. Hooper, Laefon us. Dufrocq, Lamond vs. Eiffe, Lancaster Savings Institution Peigart, L. 6 T. R. 224, 9 La. Ann. 640, 8 Q. B. 910, vs. 4: Kent Com. 434, note a. 420. 570. 246. 663. TABLE OF CASES CITED. XXXI Lane «s. Gary, Lansing vs. Caswell, Lane vs. Dorman, Langdon vs. Litchfield, Landt vs. Hilts, Lang vs. Scott, Lansing vs. Smith, Lang vs. Phillips, Langdon vs. Potter, Laragne vs. Stanley, Latless vs. Holmes, Latham vs. Spedding, Lawrence vs. Miller, Leathley vs. Webster, Lee vs. Clark, Lee vs. Rogers, Lees vs. Somersgill, - Lee vs. Tillotson, Leigh vs. Kent, Le Neve vs. Le Neve, Lester vs. Garland, Lessee of Good vs. Zercher, Lessee of Henry Gordon vs. Kerr, Levi vs. Milne, Lewin vs. Stewart et al., Lewis vs. Webb, Lindsey vs. Lynch, Lindsay vs. The Charleston Com- missioners, Livingston vs. The Mayor, Livingston vs The Mayor of New York, Livingston vs. Van Ingen, Lockwood vs. Crawford, Locke vs. Dane, Lohman vs. The People, Loring vs. Hailing, Lonsdale vs. Brown, Looker vs. Halcomb, Lopez vs. Andrew, Lord Bernard vs. Saul, Lovejoy vs. Whipple, Low vs. Rice, Lowe vs. Waller, Lucy vs. Levington, Lumbard vs. Stearsis, Lyman vs. Mower, Lynch vs. Clarke, Lyn vs. Wyn, Lynde vs. Noble, Lyon vs . Jerome, 19 Barb. 537, 436. 4 Paige, 619, 137. 3 Scam. 238, 169. 11 Conn. 251, 559, 632. 19 Barb. 283, 103. 1 Black. (Ind) 405, 39, 404. 8 Cowen, 146, 96, 573. 27 Ala. 311, 419. 3 Mass. 215, 221, 310. 3 Lev. 1, 321. 4 T. B. 486, 81. 20 Law Journal, N. S. Q. B. 302, 439. 2 Corns. 245, 251, 195, 636. Sayer, 251, 473. 2 East, 333, 391. 1 Lev. 110, 35. 17 Ves. 510, 55. 24 Wend. 337, 111. 3 T. R. 362, 121. 3 Atk. 646, 321. 15 Ves. 248, 418. 12 Ohio, 364, 409. 1 Wash. C. C. B. 323, 448. 4 Ring. 195, 616. 10 How. Pr. R.509, 114. 3 Greenleaf, 326, 170. 2 Sch. & Lef. 5, 7, 8, 363. 2 Bay, 38, 478. 8 Wend. 100, 597. 8 Wend. 85, 503, 531. 9 J. R. 507, 89, 402. 18 Conn. 361, 427. gHass. 360, 199, 685 1 Corns. 379, 116. 15 J. R. 119, 420. 4 Wash. C. R. 86, 74. 4 Bing. 183, 313. 3 M. & ByL 329, 121. 1 Strange, 498, 35. 18 Verm. 379, 85. 8 J. R. 409, • 109. 2 Doug. 736, 740, 336. 1 Vent. 175, 86. 4 Cush. 60, 517. 2 Verm. 517, 168. lSandf.Ch.R.583, 660, 17, 37. Bridgeman's Judg- ments, 122, 124. 20 J. R. 80, 82, 319. 26 Wend. 485, 496, 386. ZXXll TABLE OF CASES CITED. M. M'Cabe vs. Emerson, 6 Har. Penn. R. Ill, M'Cartee w. Orphan Asylum So- ciety, M'Olung vs. Ross, M'Cauley vs. The State, M'Cluskey m. Cromwell, M'Cracken vs. Hayward, H'CuHoch vs. The State of Mary. land, M'Cutcheon vs. Steamboat Co. M'Donald vs. Schell, 9 Cowen, 437, 5 Wheat. 116, 26 Ala. 135, 1 Eernan, 593, 2 Howard, 608, 4 "Wheat. 316, 13 Penn, R. 13, 6 Serg. & Rawle, 240, 11 C. B. 755, M'Dougall vs. Paterson, M'Ewen vs. Montgomery Insurance Co. 6 Hill, 101, M'lver vs. Ragan, 2 Wheat. 25, M'Keen vs. Delancy's Lessee, 5 Oranch, 22, M'Lanahan vs. Uniyersal Ins. Co. 1 Peters, 182, M'Mahon vs. Cincinnati and Chi- cago Short Line Railroad Co. 5 Ind. 413, M'Master vs. The Commonwealth, 3. Watts, 292, M'MllIen vs. McNeill, M'Nair vs. Ragland, M'Pherson vs. Cunliff, Mack vs. Jones, Macy vs. Raymond, Madison Co. Bank vs. Gould, Maggs vs. Hunt, Maguire vs. Maguire, Mahala vs. The State, Maine Bank vs. Butts, Maize vs. The State, Mason vs. Waite, Malcolm vs. Rogers, Manners vs. Blair, Mann vs. Eckford's Ex'rs, Manly vs. The State, Marchant vs. Langworthy, Marsh vs. Putnam, Marshall vs. Guion, Margate Pier Co. vs. Hannam, Mason vs. Haile, Mason vs. Wait, Marbury vs. Madison, Martin vs. Ford, Martin vs. Hunter's Lessee, Martin vs. Mott, Martin vs. Payne, Ma'rriatt vs. Shaw, Martin vs. Waddell, 4 Wheat. 209, I Dev. & Bat Eq. Cases, 625, II Serg. & Rawie, 429, 1 Poster, 393, 9 Pick. 286, 5 Hill, 309, 4 Bing. 212, 7 Dana, 184, 10 Yerg. 532, 9 Mass. 49, 4 Indiana, 342, 4 Scammon, 134, 5 Cow. 188, 3 Bligh, 391, 402, 15 Wend. 519, 7 Maryland, 135, 6 Hill, 646; 3 Den. 526, 3 Gray, 663, 4 Denio, 581, 3 B. & Aid. 266, 12 Wheat. 379, 4 Scammon, 134, 1 Cranch, 137, 5 T. R. 101, 1 Wheat. 804, 12 Wheat 19, 11 Texas, 292, Com. 274, 16 Peters, 867,411, 197. 250. 353. 547. 246. 651, 656, 659. 482. 90. 549. 260, 439. 436. 308, 321. 431, 432. 615. 250. 503, 531. 641. 137. 349. 555. 262. 367. 130. 637. 547. 435. 166. 589. 440. 138. 200. 488. 373. 642. 474. 298, 645, 658. 690. 216, 479. 326. 431, 593, 592, 698. 120. 394. 433, 455, 456, TABLE OF CASES CITEP. XXXIU Mason vs. Haile, 12 Wheaton, 370, 133. Mason vs. Fulwood, 1 Lutw. 466, 35. Master, &c., of St. Cross vs. Lord Howard de Walden, 6 T. R. 338. 257. Massie vs. Watts, 6 Cranch, 148, 456. Matthews vs. Zane, 1 Wheaton, 164, 83. Mayor of Baltimore es, Greenmount Cemetery, r Md. 517, 305. Mayor, &c., of Albany vs. Cunlifl , 2 Corns. 165, 387. Mayor of New York vs. Furze, 3 Hill, 612, 439, 387. Mayor of New York vs. Lord, 17 Wend. 285 ; 18 ibid. 126, 366. Mather vs. Chapman, 6 Conn. Rep. 68, 669. Mayor, &c., of New York, 3 Duer, 119, 474. Mayor of Allegany vs. Ohio and Penn. R. R. Co.' 26 Penn. 355. 343. Master (The), &c., of Vintner's Co. vs. Passey, 1 Burr. 235, 239, 466. Mayor of Baltimore vs. Root, 8 Md. 98; Magna Carta, §29, 305. Mayo vs. Wilson, 1 N. H. R. 55, 534, Medford vs. Learned, 16 Mass. 216, 408. Melody vs. Reab, 4 Mass. 473, 326. Meaoham vs. Fitchburg R. R. Co. 4 Cush. 291, 532. Merchants' Bank vs. Cook, 4 Pick. 405, 262, Merryfleld vs. Jones, 2 Curtis, 306, 614. Meserole vs. Mayor of Brooklyn, 8 Paige, 1'98, 577. Merchants' Bank ««. Spalding, Court of Appeals, / 83. Merville vs. Townsend, 5 Paige, 80, 435. Mestader vs. Gillespie, 11 Ves. 621, 627, 104. Middlesex Turnpike Company «t . Locke, 8 Mass. R. 268, 425. Miffln vs. Railroad Company, 16 Penn. 193, 521. Mills vs. Collett, 6 Bing. 85, 103. Mills vs. Duryee, MiUs vs. St. Clair Co., 7 Cranch, 481, 78, 600. 8 Howard, 569, 33, 339, 344, 634 Milhau vs. Sharp, 15 Barb. 193, 577. Milhau vs. Sharp, 17 Barb. 435, 467. Milford vs. Worcester, 7 Mass. 48, 90. Minor vs. Mechanics' Bank of Alex andria, 1 Peters, 46, 64, 440. Mitford vs. Elliott, 8 Taunt. 13, 60. Mitchell vs. Harmony, 13 How. 115,131, 612, 615. Mitchell vs. Smith, i Bin. 110, 88. Moers vs. City of iggading, 21 Penn. 188, 464, 487, 605. Mohney vs. Cook, 26 Penn. 342, 400. Monson vs. Chester, 22 Pick. 385,' 293. Monongahela Navigation Co. vs Coons, ' 6 W. & Serg. 114, 521. Moncrief «s. Ely, 19 Wend. 405, 404. Money vs. Leach, 3 Burr, 1743, 609. Monys vs. Leake, 8 T. R,, 411, 400. Montague vs. Smith, 17 Ad. & Ell. N. S. 688, 322. Moon vs. Burden, 2 Exchequer R. 22, 190. XXXIV TABLE OF CASES CITED. Montgomery vs. The State, Mooers ®«. Bunker, Moore vs. City of New York, Moon vs. Duraen, Moore vs. Fowler, Moore vs. Houston, Moore vs. The Mayor, &c. Moore vs. The People of the State of Illinois, Morford vs. Barnes, Morehouse et al. vs. Crilley, Morgan et al. vs. Lesler, 11 Ohio, 427, 9 Foster, 421, 4 Sandf. 461, 2 Exch. 22, Hempstead's Ark. CO. Rep. 637, 3 S. & R. 144, 4 Selden, 110, 14 How. U.S. 13, 8 Yerger, 444, 8 How. Pr. R. 431, Wright's Ohio R. 1& 3 Den'io, 392, 5 Gushing, 52, 1 Kernan, 281, Morris vs. The People, Morrison vs. Underwood, Morse vs. Goold, Moss vs. Commissioners of Sewers, 4 Ellis & Black. (Q. B.) 670, 679, Mott vs. U. S. Trust Co. "' ' "" Mountfort vs. Hall, Mount vs. The State, Municipality No. 1 vs. Wheeler, Municipality No 2, vs. White, Murry vs. Asken, Murray vs. Baker, Murray vs. Gibson, 19 Barb. 568, 1 Mass. 443, 14 Ohio, 295, 10 La. Ann. R. 745, 746, 9 La. Ann. R. 447, 6 J. J. Marsh. 27, 3 Wheat. 541, 15 How. U. S. R. 421, 8 B. & C. 421, Murray vs. Reeves, Murray's Lessee vs. Hoboken Land Improvement Co. 18 Howard, 272, Murphy vs. Menard, 11 Texas, 673, Murphy vs. The People, 2 Cow. 815, Myers vs. Gemmel, 10 Barb. 537, 610. 429. 611. 191. 652. 421. 636, 638. 607. 549. 113, 392. 694. 468, 482. 110. 658. 309. 90. 549. 547. 363, 407. 505. 549. 304. 196. 86. 612. 53. 549, 597. 13. N. Naz. Lit. and Benev. Inst. vs. Com- monwealth, Ned vs. The State, ' Nefifs Appeal, Nelson vs. Allen and Harris, NeUis vs. Clark, Nesmith vs. Sheldon, New Bedford and Bridgewater Turnpike Co. vs. Adams, Newcomb vs. Butterfield, New Orleans vs. Graihle, Newburgh Turnpike Co. vs. Miller, New Orleans vs. The United States, Newell vs. The People, 14 B. Monroe, 266, 7 Porter, 187, 21 Penn. 243, 1 Yerg. 376, 4 Hill, 424, 8 How. 812, 8 Mass. 188, 8 J. R. 266, 9 La. Ann. R. 561, 5 John Ch. R. 112, 10 Pet. 662, 737, 8 Selden, 997, 415. 647. 407. 254, 628. 85. 431. 403. 391. 464, 605. 440. 456, 609. 86, 246. TABLE OP CASES CITED. XXXV Newell vs. The People, Newton vs. Tibbats, Nichols vs. Bridgeport, Nicholson vs. Leavitt, Nichols vs. Squire, Nixon vs. Hyseratt, Noble vs. Durell, Norman vs. Heist, Norris vs. Boston, Norris vs. Clymer, Norris vs. Crocker, North Penn. R. R. Co. vs. Davis, North Hempstead vs. Hempstead, Northern Railroad Co. m. Miller, Notlejr vs. Buck, 8 Seld. 109, 2 Eng. R. 150, 23 Conn. l89, 4 Sandf. 252, 5 Pick. 168, 6 J, R. 58, 3 T. R. 721, 6 Watts&Ser.m 4 Met. 288, 2 Penn. 277, ■ 13 How. 429, 26 Penn. R. Casey) 238, 2 Wend. 109, 10 Barb. 260, 8 Barn. & Cres. 160 164, (2 482. 647. 604. 91. 126, 891, 430. 386. 257. 410. 489. 487. 130. 612. 455. 94. 244. o. Oakley vs. Aspinwall, O'Conner vs. Pittsburgh, O'Donnell vs. Kelsey, O'Donnell vs. Sweeney, OflScer vs. Young, Ogden vs. Saunders, Ohio L. I. Co. vs. Debolt, Olcott vs. Robinson, Olmsted vs. Elder, Omit vs. Commonwealth, Oriental Bank vs. Freese, Oriental Bank vs. Freese, Orr vs. Baker, Osborne vs. Humphrey, Osbom vs. The U. S. Bank, Osgood vs. Breed, Owen vs. Slatter ef al. Owings vs. Speed, S Coms. 547, 548, 568, 6 Harr. (Penn.) 187, 4 Sandf. 202, 5 Ala. 467, 5 Yerg. 320. 12 Wheat. 213, 267, 278, 295, 16 How. 416,430, 20 Barb. 148, 1 Seld. 144, 21 Penn. 426, 18 Maine Rep. 109, 18 Maine, 112, 4 Indiana, 36, 7 Conn. 335, 9 Wheat. 738, 12 Mass. 630, 26 Alabama, 547, 5 Wheai 420, 109,487. 522. 458. 85. 169. 494,593,595, 596, 597, 641. • 627, 630. 355. 351, 689. 85, 123. 197. 686. 344. 559, 631. 577. 303. 420. 618. P. Packard vs. Richardson, 17 Mass, 121, 143, 252. Packer vs. Sunbuiy and Erie Rail- 7 Harris (Penn.) R. road Co., 211, 415. Paddon vs. Bartlett, 3 Ad. & Ell. 884, 134, 13 Page vs. Pearce, 8Mees.&Wel. 677, 302. Paget vs. Foley, 2 Ring. N. C. 679, 124. Palmer M. Conly, 4 Denio, 374, 99,135 Palmer vs. Lawrence, 3 8a,nd. S. C. 162, 90. Palmer vs. York Bank, 18 Maine, 166, 391. XXXVl TABLE OF CASES CITED. Paup vs. Drew, Parsons vs. Bedford, Parsons vs. Chamberlin, Parker vs. Oommonwealth, Parmiter vs. Coupland, Parmelee vs. Thompson, Partridge vs. Naylor, Parker vs. Foote, Parton vs. Hervey, Parker et al vs. Overman, Parker vs. Redfield, W How. 218, 3 Pet. 4S3, 446, 447, 448, 4 Wend. 512, 6 Barr, 507, 6 M. & W., 105, 7 Hill, 77, Oro. Eliz. 480, 19 Wend; 309, 1 Gray, 119, 18 Howard, 187, 10 Conn. 490, Parker vs. Sunbury and Erie Kail- 7 Harris (Penn.) R, road Co., Parmlee vs. Thompson, Patin vs. Prejean, Pattison vs. Bankes, Pattee vs. Greeley, Patterson vs. Jenks, et at, Patterson vs. Philbrook, Patterson vs. Winn, Patterson vs. Winn, Paul vs. Carver, PauU vs. Lewis, Peabody vs. Hayt, Pearce vs. Hitchcock, Pearson vs. Isles, Pease vs. Morrice, Pease vs. Peck, Pease vs. Whitney et at, Pellicat vs. Angel, Pennington vs. Townsend, Pennsylvania Railroad Co. vs. Ca- nal Commissioners, Pennock & Sellers vs. Dialogue, People vs. Adams, People vs. Allen, People vs. Allen, People vs. Berberrick & Toynbee, 301, 211 2 Hill, 77, 7 Louis Rep Oowper, 540, 13 Met. 284, 2 Pet. 227, 9 Mass. 151, 5 Peters, 233, 11 Wheat. 380, 26 Penn. 223, 4 Watts, 402, 10 Mass. 36, 2 Coms. 388, 2 Doug. 556, 2 A. & E. 94, 18 Howard, 595, 5 Mass. 380, 382, 2 0. M. & Ros. 311, 7 Wend. 276, 21 Penn. 9, 2 Peters, 1, 18, 3 Denio, 190, 6 Wend. 487, 488, 5 Denio, 77, 11 How. Pr. 289, 318, 333, People vs. Board of Education of Brooklyn, 13 Barb. 400, 409, People vs. Brooks, 4 Denio, 469, People vs. Brooks, 1 Denio, 457, People vs. Compton, 1 Duer, 512, People vs. Cook, 14 Barb. 259, People vs. Cooper, 6 Hill, 516, People vs. Dorr» Same vs. Hussey, not yet reported People vs. Edmonds, 15 Barb. 529 ' People vs. Gilbert, 18 J. R. 227,' People vs. Green, 2 Wend. 266, 274 People vs. Hayden, 6 Hill, 369, ' People vs. Hennessey, 16 Wend. 147 People vs. Holley, 12 Wend! 481* People vs. Hulse, 3 Hill, 809, People vs. John Doe, 1 Mich. 452, 463, 628. 593, 614, 613. 420. 165. 616. 170, 429. 13. 90. 353. 559. 339. 57. 647. 58. 85. 456. 199, 685. 9. 456. 522. 257. 391. 118. 93. 302. 484. 416. 397. 85. 342. 426. 80. 372. 116. 63, 151, 541, 549. 813. 892. 101. 472. 374. 387. 558. 158. 106. . 488. 627, 628. 442. 374, 377, 890,440, 875. TABLE OF CASES CITED. XXX Vll People vs. Herkimer, People vs. Lemmon, People vs. Livingston, People vs. Mauran, People vs. Mayor of Brodklyn, People ex rel. Lynch vs. Mayor; C. P. 4 Wend. 210, 5 Sandf. 681, 6 Wend. 531, 5 Denio, 389, A Corns. 423, 25 Wend. 680, People vs. Mayor, &c., of New York, 10 Wend. 393, People vs. Meighan, People vs. Mitchell, People vs. Morris, People vs. Payne, People vs. Peck, People vs. Piatt, People vs. Price, People vs. Rathbun, People vs. Rossiter, People vs. Runkel, People vs. Schermerhom, I Hill, 298, 4 Sandf. 466, 13 Wend. 325, 3 Denio, 88, II Wend. 604, IT J. R. 195, 1 Barb. S. C. 666, 21 Wend. 609, 4 Cowen, 143, 9 J. R. 147, 19 Barb. S. C. 540, 19 Barb. 657, R. People va. Schoonmaker, People vs. Supervisors of Westches- ter, 4 Barb. 64, 74, People vs. Taylor, 2 Mich. 250, People vs. The Corporation of Al- bany, 11 Wend. 539, People vs. The Mayor of Brooklyn, 6 Barb. 214, People exreL GrifBuus. The Mayor, 4 Corns. 419, People vs. The Supervisors of Che- nango, 4 Seld. 317, People vs. Utica Ins. Co., 15 J. R. 358, 380, PhiUips' Case, 1 Moody's Crown Cases, 264, 273, Philbrook vs. Handley, 27 Maine, 53, Philadelphia and Wilmington Rail- road Co. vs. Maryland, 10 Howard, 393, Philadelphia and Trenton Railroad Co. vs. Stimpson, 14 Peters, 448, Pickup vs. Wharton, 2 C. & M. 401, ' Pierce vs. City of Boston, 3 Met. 520, Pierce vs. Delamater, 1 Conais. 17, Pierpont vs. Graham, 4 Wash. C. 0. R. Pierce vs. Kimball, Peirce vs. The State, Pike vs. Jenkins, Pilkington vs. Green, Piscataqua Bridge vs. N. H. Bridge, Pitt vs. She^,. Pittsburgh vs. Scott, Plank Road Co. vs. Thomas, Plantei*' Bank vs. Sharp, Plumb vs. Sawyer;, Police Jury vs. M'Donough's Sucr. cession, 9 Greenleaf, 54, 13 N. H. R. 536, 12 N. H. 255, 2 B. & P. 151, 7N.H. 35,65, ■ 4 B.-& Aid. 208, 1 Penn. 309, 20 Penn. R. 93, 6 How. 301, 21 Conn. 351, 8 La. Ann. R. 341, 200. 76, 604. 137, 671. 466, 457, 458. 186, 602, 503. 573. 420, 91. 91. 573. 116. 373. 165. 616. 80. 396. 361, 373. 374, 456, 457. 156. 436. 46S. 603. 503. 377. 234,298,368. 437. 390. 632. V 456. 190. 565. 129. 418. 33. 616. 328. 111. 626, 665. 418. 528. 516. 654, 656. 197. 578. XXXVIU TABLE OF CASES CITED. Polk's Lessee vs. Wendell et al, 5 Wheat. 293, 456. Polk's Lessee vs. "Wendell et al, 9 Cranch, 87, 481,456. Pollard & Pickett vs. Dwight etal , 4 Oranch, 421, 456. Pollard vs. Hagan, 3 How. 212, 509. Ponder vs. Graham, 4 Florida, 23, 637. Pond vs. Negus et al., 8 i/ifiss. 230, 373. Portland Bank vs. Apthorp, 12 Mass. 252, 558. Portland Bank vs. Maine Bank, 11 Mass. 204, 418. Portsmouth Livery Co. vs. Watson, 10 Mass. 91, 33. Port Wardens of New York vs Cartwright, '4Sandf. 236, 315. Potter vs. Bank of Ithaca, 5 Hill, 490, 90. Potter vs. Sturdivant, 4 Greenleaf, 154, 686. PoweU vs. Tuttle, 3 Comst. 396, 351. Powers et al. vs. Bergen, 2 Seld. 358, 154, 157, 174, 175 Presb. Church vs. City of New York, 5 Cowen, 542, 634, 636. Presbrey vs. Williams, 15 Mass. 193, 418. President and Trustees of the tU lage of Romeo vs. Chapman, 2 Mich. 179, 436. Preston vs. Drew, 5 Law Reporter, N. S. 189, 197. Priestman vs. The United States, 4 Dallas, 28,30,34, 311, 38& Prigg vs. The Commonwealth of Peimsylvania, 16 Peters, 540, 607. Proprietors of Kennebec Purchase vs. Laboree et al., 2 Greenleaf R. 275, 197, 671. Prosser vs. Secor, 5 Barb. 607, 102. Providence Bank vs. Billings, 4 Peters, 514, 555, 665, 682. Putnam vs. Longley, 11 Pick. 487, 490, 310. Puckle vs. Moor, 1 Vent. 191, 35. Purdy vs. The People, 4 Hill, 384, 69, 101, -468, 573. Purgey vs. Washburn, 1 Ack. 264, 67. Q. Quackenbush vs. Danks, 1 Denio, 128, Queen vs. Corporation of Durham, 10 Mod. 146, 147, Queen vs. Eastern Counties R. Co., 10 Ad. & Ell. 531, Queen vs. Mathews, 10 Mod. 27, ;Quimby vs. Carter, 20 Maine, 218, Quinebaug Bank vs. Leavens, 20 Conn. 87, 658. 369. 523. 394. 390. 422. R. Radcliff's Ex'rs vs. Mayor, &c., of Brooklyn, Railroad Co. vs. Davis, Rathbun vs. Acker, Raynham vs. Canton, 4 Corns. 195, 2 Dev. & Bat. 451, 18 Barb. 393, 3 Pick. 293, 520. 159. 366w 42-7. TABLE OF CASES CITED. XXXIX Eea vs. M'Eachron, 13 Wend. 466, Redmond vs. Smith, 7 Man. & Gr. 457, Eeed vs. Davis et al., 8 Pick. 516, 517, Reed vs. PuUum, 2 Pick. 158, Reed vs. Ingham, 3 Ellis & Black. Q. B. 889, Reed vs. Northfield, 13 P. 94, Reed vs. Rice, 2 J. J. -Marsh, 45, Reed vs. Wright, 2 Greene, Iowa, 22, Reg. vs. Inhabs. of Fordham, 11 A. & E. 88, Reg. vs. Justices of Cambridgeshire, 7 A. & E. 480, Reg. vs. Justices of Shropshire, 7 A. & E. 480, Reg. vs. Justices of Gloucestershire, 7 A. & E., 480, Reiford vs. Knight, 15 Barb. 627, Reitenbaugh vs. Chester Valley R. R. Co., Renwick vs. Morris, Renss Glass Factory vs. Reid, Rex vs. Archbishop of Armagh, Rex vs. Bagg, Rex vs. Bailey, Rex vs. Baines, Rex et Regina vs. Barlow, Rex vs. Bleasdaie, Rex'ug. Cator, Rex vs. Clark, Reg. vs. Corns, of Poor Laws of Holbom Union, Rex vs. Cox, Reg. vs. Davis, Rex vs. Davis, Rex vs. Handy, Rex vs. Hymon, Reg. vs. Inhab. of Birmingham, Reg. vs. Inhabs. of Fordham, Rex vs. Inhabs. of Glastonby, Rex vs. Inhabs. of Hipswell, Reg. vs. Inhabs. of St. Edmunds, Salisbury, Rex vs. Jarvis, Rex vs. Johnson, Rex vs. Justices of Leicester, Rex vs. Justices of London, Rex vs. Justices of Middlesex, Rex vs. Loxdale, Rex vs. Lumsdaine, Reg. vs. Merionethshire, Rex vs. Morgan, 'Rex vs. Pawlyn, Reg. vs. Pembridge, 21 Penn. 100, 3 Hill, 621, 5 Cow. 587, 604, 8 Mod. 8, Skin. 429, R. & R. C. C. 1, 12 A. & E. 227, 2 Salk. 609, 4 T. R. 809, 4 Burr. 2026, Cowp. 610, 6 A. & El. 68, 69, 2 Burr. 787, Say. 163, Leach's Cases, 271, 6 T. R. 288, 7 T. R. 536, 8B. &C.29, 11 A. & E. 83, Cases Temp. Hard. 357 8 B. & C. 466, 2 Q. B. 72, Burr. 148, 6 East, 583, 7 B. & C. 6; 9 D. & R. 772, 3 Burr. 1456, 2 B. & Adol. 818, 1 Burr. 445, 447, Reg. vs. Preston, Rex vs. Pugh, 10 Ad. & Ellis, 160, 6 Q. B. R. 343, 2 Str. 1066, Sid. 209, 12 Law J. (1843) part 2, Q. B. 47, 7 Dowl. P. C. 593, 1 Doug. 188, 348. 399. 303, 391. 685. 340. 391. 597. 539. 878. 59. 59. 59. 249. 521. 93. 336. 60. 32, 33. 81. 64, 438. 394. 125, 126. 99. 264. 254. 96. 126. 325. 325. 302, 371. 302. 358. 302, 371. 125. 68. 80. 302, 370. 130. 62, 81. 248, 250, 252, 256, 323, 370. 126. 250. 117. 84. 801. , . 301. 124. xl TABLE OF CASES CITED, Rex vs. Robinson, Eex vs. Rogers, Reg. vs. Stock, Rex vs. Sutton, Rex vs. Tooley, Rex vs. Upper Papworth, Rex vs. ITtterby, ^ Rex vs. Williams, Rexford vs. Knight, Rhodes vs. Smethurst, Rice vs. Parkman, ' Richmond F. and P. R. R. vs. Lou- isa R. R., Richardson vs. Muryson, Ripley vs. Sampson. Ritter vs. Ritter, River Dun Navigation Co. vs. North Midland Railway Co. Roach vs. Cozine, Robinson vs. AUsop, Roberts vs. Goff, Roby vs. Vest, Roberts vs. Wetherall, Rockwell vs. Hubbell, Rodman vs. Munson, Rogers vs. Bradshaw, Rogers vs. Goodwin, Rogers vs. Jones, Rogers vs. Kennebec and Portland Railroad Co., Rogers vs. Rogers, Rogers' Adm'rs vs. The State, Ross's Case, Rowan vs. Runnels, Rowning vs. GoodchUd, Rubottam vs. M'Clure, Ruckman vs. Cowell, Rue vs. Alter, Russell vs. The Mayor, &c., of New York, Ruthbun vs. Acker, Ryman vs. Clark, 2 Burr. 799, 405. 10 Bast, 569, 129. 8 Ad. & El. 405, 410, 250. 4 M. & Sel. 532, 56. 3 T. R. 69, 125. 3 East, 413, 301. 2 PhU. Ev. 127, 119. 1 W. Bl. 85, 50. 1 Kern. 308, 527, 532. 4 Mees. & W. 63, 309. 16 Mass. 326, 171. 13 How. 83, 512, 665, 666. 23 Conn. 94, 408. 10 Pick. 370, 403. 5 Blackf. 81, 690. 1 Railway Cases, 135, 466. 9 Wend. 227, 319. 6 B. & A. 142, 321. 4 B. & A. 92, 337. 4 N. H. R. 285, 132. Salk. 223, 97. 2 Doug. Mich. 197, 647. 18 Barb. 63, 86, 161. 20 J. R. 735, 744, 155, 248. 3 Mass. 477, 478, 252. 1 Wend. 237, 465,457. 36 Maine, 319, 523. 1 Paige, 184, 601. 6 Indiana, 31, 573. 2 Pick. 165, 551. 5 Howard, 139, 434. 2 W. Bl. 906, 96. 4 Blackf. 505, 528. 1 Corns. 505, 367. 5 Denio, 119, 315. 2 Denio, 461, 366, 464, 573 18 Barb. 393, 440. 4 Blackf. 329, 418. s. Sackett's Harbor Bank vs. Lewis Co. Bank, 11 Barb. 213, Sackett vs. Sackett, 8 Pick. 309, 315, Sailly vs. Smith, 11 J. R. 500, Salkeld vs. Johnston, 1 Hare, 196, Salem Turnpike and C. B. Co. vs. Hayes, , 5 Cushing, 458, Sampeyreao and Stewart vs. The United States, 7 Peters, 222, 90. 11. 609. 55, 423. 95. 456. TABLE OF CASES CITED. xli Sandiman vs. Breach, Sandford iis. Nichols, Sarah vs. Borders, Satterlee ««. Mattiliewson, Satterlee «s. Matthewson, Satd vs. His Creditors, Savacool vs. Boughton, Savage et al. vs. Walshe et al., Savoye vs. Marsh, Sawyer vs. City of Alton, Schenley and Wife vs. City of Alle- gheny, Schroeppell vs. Corning, Schneider vs. Macfarland, Schooner Rachel vs. The United States, Schooner Paulina's Cargo vs. The 7 B. & C. 100, 13 Mass. 288, 4 Scam. 344, 16 Serg. & Rawle, 179 2 Peters, 880, 413, 17 Martin, 569, 5 Wend. 170, 26 Alab. 619, 620, 10 Met. 594, 8 Scam. 127, 25 Penn. 128, 2 Ooms. 182, 2 Coms. 459, 6 Cranch, 829, 7 Cranch, 52, 60, 14 J. R. 338, 8 Cowen, 89, 1 Mich. 295, 2 Gray, 43, 4 Serg. & R. 159, 4 Serg. & R. 166, 18 Ohio, 489, P. Co., 18 Conn. 453, 9 Pick. 414, 2 Corns. 464, United States, Scovill vs. Canfield, Scofield vs. Collins, Scott vs. Smart's Ex'rs, Scribner vs Fisher, Seidenbender vs. Charles, Seidenbender vs. Charles, Sellers vs. Dugan, Selleck vs. Sugar Hollow T. Sewall vs. Jones, Seymour vs. Judd, ^ ^^lx.c. =«», Sharpless vs. City of Philadelphia, 9 Harris, 147, Sharp vs. Johnson, 4 Hill, 92, Sharpless vs. The Mayor of Phila- 21 (9 Harris) Penn. delphia, 147, 161, 162, Sharp vs. Speir, 4 Hill, 76, Shaw vs. Tobias, 8 Coms. 188, Sheffield vs. Ratcliffe, Hobart. 346, Shelby vs. Guy, 11 Wheat. 361, Sheldon vs. Miller, 9 La. Ann. R. 187, Sherman vs. Barnard, 19 Barb. 291, Sherwood vs. Reade, 7 Hill, 431, ' Shrewsbury vs. Boylston, 1 Pick. 108, Shrewsbury and Birmingham R. Co. vs. London and North Wes^ 2 Macwaghten & G. tern Co. Shuttleworth vs. Cocker, Sibley vs. Smith et 248, Thome vs. Cramer, ' 15 Barb. 112, Thurston vs. Prentiss et al., 1 Michigan, 193, Thurston vs. Whitney, 2 Cush. 104, Tillman vs. Lansing, 4 J. R. 45, Tims vs. The State, 26 Ala. 165, Tombs vs. Rochester and Syracuse R. Co. 18 Barb. 683, Tomkins vs. Ashby, 6 B. & C. 641, Tonawanda Railroad Co. vs. Mun- Tonnele vs. Hall, Toulmin vs. Anderson, Towler vs. Chatterton, Towle vs. Larrabee, Town of Pawlet vs. Clark, Town of Guildford BS. Cornell, Town of Guilford vs. Superrisors 3 Kernan, 147" of Chenango Co., Townsend vs. The State, Treat vs. Chapman, Trotter vs. Mills, Trustees of Phillips Limerick Acad- emy vs. Davis, 11 Mass. 113, 5 Denio, 255, 4 Comstock, 140, 1 Taunt. 227, 6 Bing. 258, 26 Maine, 464, 9 Cranch, 292, 333, 18 Barb. 616, 640, 2 Blackf. 152, 35 Maine, 34, 6 Wend. 512, 565, 241. 633. 632. 636. 576. 250. 650. 262. 601. 263. 326. 235, 429. 528. 37. 373. 68, 573. 425. 303. 626,528. 468. 677. 165. 405. 562. 194. 548,580. 110. 358. 616. 233. 397. 190. 85. 9, 666. 52, 186, 467, 602. 414, 502. 616. 468. 34. 403. TABLE OF CASES CITED. xlvii Trustees of Clintonville vs. Eeet- ing, 4 Denio, 841, Trustees of C. F. R. E. A. vs. M'Caughy et al, 22 Ohio, 152, Trustees of F. P. 0. in Hebron vs. Quackenbush, 10 J. R. 217, Troy and Boston R. R. Co. vs. Tib- bitts, 18 Barb. 29T, Turner vs. 2d Precinct in Brook- fleld, 7 Mass. 60, Turner et al. vs. The Sheffield and Rotherham R. R. Co., 10 Mees. & W. 425. Tyler vs. Yates, 3 Barb. S. 0. R. 222, Two Hundred Chests of Tea, 9 Wheat. 430, 438, 474. 202. 403. 94. 564. 523. 85. 388. u. Underbill vs. EUicombe, M'Clel. & Y. 450, 96. Underwood vs. Lilly, 10 S. & R. 97, 101, 201, 687. Union Bank vs. State of Tennessee, 9 Yerger, 490, ■341. United States vs. 1,960 Bags of Cof- fee, 8 Cranch, 398, 98. United States vs. Arredondo, 6 Peters, 735, 450. United States vs. Bainbridge, 1 Mason, 71, 102. United States vs. Battiste, 2 Sumner, 240, 616. United States vs. Breed, 1 Sumner, 159, 163, 164, 836,389 United States DS. Coffin, 1 Sumner, 394, 437. United States vs. Conway, Hempstead's Ark. C. C. Rep. 313, 652. United States vs. Daniel, 6 "Wheat. 642, 610. United States vs. Fisher, 2 Cranch. R. 358, 886, 51, 806. United States vs. Gilbert, 2 Sumner, 60, 610. United States vs. Grundy, 8 Cranch, 387, 97. United States vs. Grush, 5 Mason, 290, 437. United States Bank vs. Halstead, lOWheat.51,53,63, 593, 256. United States vs. Hall, 6 Cranch, l7l, 178, 417. United States OS. Haskell & Fran- 4 "Wash. C. C. R. cois. 402, 410. 610. United States vs. Hewes, U.S.D.C. for Penn- sylvania, July, 1840, 895. United States vs. Hoar, 2 Mason, 311, 314, 106,395 United States vs. Knight, 8 Sumner, 369, 590. United States vs. Morris, 1 Curtis, 60, 616. United States vs. Morris, 14 Peters, 464, 327. United States vs. Palmer, 3 "Wheat. 610, 51. United States vs. Passmorei 4 Ball. 372, 130. United States vs. Perchemau, V Peters, 61, 450. United States vs. Perez, 9 "Wheat. 579, 610. United States vs. Ross, 1 GaU. 624, 437. United States vs. Ruggles, 6 Mason, 192, 437. xlviii TABLE OF CASES CITED. United States vs. Sampeyrac, 7 Peters, 222, United States vs. Schooner Peggy, 1 Cranch, 109, United States m. Stowell, 2 Curtis, 163, United States vs. Winn, 3 Sumner, 209, 211, 212, United States vs. Wiltberger, 5 Wheat. 76, 95, 96, 105, United States vs. Wonson, 1 Gallison, 4 & 18, Utica Insurance Co. vs. Scott, 6 Cowen, 606, 693. 449. 607. 330. 334. 693. 219. V. Vail vs. Owen, Vanderbilt vs. Adams, Van Deusen vs. Hayward, Vandine's Case, Van Home's Lessee vs. Dorrance, Van Hook vs. Whitlock, Van Ness vs. Pacard, Van Swartow vs. The Common- wealth,- Ventress vs. Smith, Varick BS.'Briggs, Varick's Bx'rs vs. Briggs, Varick vs. Smith, Vidal vs. Gerard's Executors, Voorhees vs. Bank of U. S. 19 Barb. 22, 102. 7 Cowen, 849, 506. 17 Wend. 67, 91. 6 Pick. 191, 472. 2 Dall. 313, 478, 529, 531 2 Edw. 304, 108. 2. Peters, 137, 144, 9,13. 24 Penri. 131, 548. 10 Peters, 161, 349. 6 Paige, 332, 661. 22 Wend. 646, 661. 6Paige,137,169,160 155, 600, 513 2 Howard, 127, 18. 10 Peters, 449, 62, 350. W- Wainhouse vs. Cowie, Wales vs. Webb, Wales vs. Stetson, Walker vs. Caldwell, Waller vs. Bacon, Waller vs. Harris, Wallace vs. Karlenowefski, Walter vs. Bacon, Walwin vs. Smith, Warder m. Adrell, Ward vs. Barnard, Ware vs. Hylton, Wame vs: Varley, Warnell vs. Reed, Warner vs. Beers, Warner vs. Fowler, Warner vs. The People, Warren vs. Doolittle, . Warren va. Windle, Warrington vs. Furbor, 4 Taunt. 178, 5 Conn. R. 154, 2 Mass. 146, 4 La. Ann. R. 298, 8 Mass. 471, 20 Wend. 555, 19 Barb. 118, 8 Mass. 468, 1 Salk. 177, 178, 2 Wash. R. 288, 1 Aik. 121, 3 Dall. 236, 6 T. R. 443, 5 D. & B. 599, 28 Wend. 103, 8 Maryland, 25, 2 Denio, 272, 5 Cowen, 478, 8 East, 206, 8 East, 242, 897. 422. 619. 569. 685. 240, 261. 516. 199, 647. 825. 74. 168. 448. 825. 897. 68, 573. 814. 678. 99. 129. 358. TABLE OF CASES CITED. xlix Washington vs. Murray, Washington Bridge Co. vs. The State, Watervliet Turnpike Comp. vs. M'Kean, Watkins vs. Holman, Watts vs. Griffin, Watson vs. Mercer, Watts vs. Van Ness, Wayman vs. Southard, Wayman vs. Southard, Weaver vs. Devendorf, Weatherhead vs. Bledsoe, Webb vs. Baird, Webster vs. Alton & N. D. Webster vs. Cooper, Wells vs. Caldwell, Wells vs. City of Weston; Welts vs. Iggulden, Wells vs. Porter, Welsford vs. Todd, West River Bridge vs. Dix, Westervelt vs. Gregg, Wetherell vs. Jones, Wetmore vs. Story, 30, 46, Wheaton vs. Peters, Wheeler vs. Eoberts, White vs. Boot, White vs. Carpenter, Whittington vs. Polk, White vs. Syracuse and Utica Rail- road Co. White vs. White, Willard vs. The People, WiUard vs. Wetherbee, Wilbur vs. Crane, Wilbur vs. Gilmour, Wilderman vs. Mayor aiad City Council of Baltimore, Wilcox qui iam. vs. Pitch, Wilcox vs. Wood, Wilkins vs. Despard, Wilkinson vs. Leland, Williams vs. County Commission- ers, Williams vs. Insurance Co. of North America, Williams vs. Mayor of Detroit, Williams vs. Peyton's Lessee, Williams vs. Potter, William vs. Pritchard, 4 California, 3.88, 18 Conn, 65, 6 Hill, 616, 16 Peters, 25, 60,61 6 Litt. 247, 8 Peters, 110, 1 Hill, 76, 10 Wheaton, 1 10 Wheaton, 1 3 Denio, 117, 2 Overton (Tenn.) R. 352, 6 Indiana, 13, 9 Foster, 369, 384, 14 Howard, U.S.K. 488, 1 A. K. Marsh. 441, 22 Miss. 385, 5 Dowl. & Ryl. 13, 2 Bing. N. C. 722, 8 East, 580, 6 How. 507, 2 Kernan, 202, 3 Barn. & Ad. 221, 3 Abbott's Practice Cases, 263, 8 Peters' R. 659, 668, 7 Cowen, 536, 2 T. R. 274, 2 Paig||E17, 229, 1 Harr. & Johns. 236, 591 14 Barbour, 561, 5 Barb. 474, 4 Scammon, 461, 4 N. H. R. 118, 18 Pick. 284, 21 Pick. 250, 8 Maryland, 551, 20 Johnson R. 472, 9 Wend. 348, 5 T. R. 112, 2 Peters, 627, 35 Maine, 345, 9 How. Pr. R. 365, 2 Michigan, 560, 4 Wheat. 77, 2Barb.S.O.R.316. 4 D. & E. 2, 570. 625. 416. 163, 171, 176. 548. 411, 599, 639, 655. 85. 62. 166, 590. 102. 106. 344, 560. 542. 197, 431, 590, 611. 549. 675. 391. 423. 125. 512, 664. 636. 400. 473. 17, 139. 137. 121. 362, 364. 478. 425. 511, 637. 76. 353. 303, 318. 692. 407. 107. 419. 97. 160, 645, 658, 687. 131. 117. 504. 358, 357. 128. 124. TABLE OF CASES CITED. Williams vs. School Dist. Williams vs. Tappan, Williams vs. Williams, Williamson et al. vs. Berry, Wilmot vs. Eose, Wills vs. Wilkins, Wilson vs. Baptist Education SO' ciety of New York, Wilson vs. Knubley, Wilton vs. Wentworth, Winslow vs. Anderson, Winslow vs. Giflford, Wires & Peck vs. Farr, Withnell vs. Gartham, Woart vs. Winnick, Wood vs. City of Brooklyn, Wood vs. Oakley, Wood vs. Wood, Woodbridge vs. Allen, Woodbury vs. Thompson, Woodruff »s. Trappnall, Woodward vs. Oolton, Woodfin vs. Hooper, Worcester Turnpike Co. vs. Wil- lard. Work vs. State of Ohio, Worsely vs. De Mattos, Woolsey vs. Dodge, Wyndham vs. Chetwynd, ft' Wynehamer vs. The People, 21 Pick. 75, 373. 3 Foster, 385, • 392. 4 Seld. 525,526,585 18, 51, 124 8 How. 495, 643, 433. 3 Ellis & Black- burn, (J. B. 568, 56. 6 Mod. 62, 50. -10 Barb. S. C. E. 308, 200. 7 East, 128, 56. 5 Foster, N. H. 247, 328. 4 Mass. 376, 101. 6 Gushing, 827, 622. 25 Vermont, 41, 197. 6 T. E. 388, 387. 3 New Hampshire, 473, 198. 14 Barb. 425, 474. 11 Paige, |00, 195. 2 Cowen, 819, 549. 12 Met. 470, 642. 3 N. H. 194, 328. 10 Howard, 191, 628. 10. M. &E.44,47, 119. 4 Humph. Tenn. E. 13, 647. 5 Mass. 80, 403. 22 OHio State E. 296, 546. 1 Burr. 467, 321. 6 M'Lean, 142, 433, 631. 1 Burrow, 419, 254. 8 Kernan, 378, 541, 549. Yates' Case, Yeaton vs. United States, Young vs. Bank of Alexandria, Young vs. Dake, Young vs. The State Bank, 4 J. E. 359, 5 Cranch, 281,' , 4 Cranch, 884, 1 Selden, 463, 4 Indiana, 801, 429. 130. 33, 120, 644. 232, 429. 170. z. Zack vs. Penn. Eailroad Co. 25 Penn. E. 894, I 342. ADDENDA. (Omitted above.) Congr. Soc. in Lanesboro' »s. Curtis, 22 Pick. 832, I 633. Gardner vs. Collins et al., 2 Pet. 58, 43 1. CHAPTER I. The sources of Municipal or Civil Law usually 't-wp-fold : Usage, or Common Law ; and Statute Law — In America a third superadded : Coristitutional Law — ^The two last written; of these, the Interpretation and Construction belong to the Judiciary— The object of this volume, to define the limits of legislative and judicial power; and to give the rules which govern the application of Constitutionah and Statute, in other words, of written Law. Mait, in wliatever situation lie may be placed, finds himself under the control of rules of action emanating from, an authority to which he is compelled to bow, — in other words, of Law. The moment that he comes into existence, he is the subject of the will of God, as declared, in what we term the laws of nature. As soon as he enters into society, he finds himself controlled by the moral law (more or less perfect and active according to the condition of the community to which he belongs, and the degree in which, it has accepted the divine precepts of our religion), and also by the municipal or civil law.* "When States come to be organized as separate and independent governments, and their relations grow frequent and complicated, there is superadded the law of nations. These codes are variously enforced, but each has its own peculiar * Blackstone, in his introductory lecture, has referred to the inappropriate- ness of the phrase municipal law. " I call it the municipal law," he says, " in compliance with common spedch, for though strictly that expression de- notes the particular customs of one single municipal or free town, yet it may, with sufficient propriety, be applied to any one state or na,tion which is governed by the same laws or customs." 1 MUNICIPAL LAW. sanction. They are curiously interwoven together, and in their combination tend to produce that progress and improvement of the race which we believe Christianity teaches, and to which we hope civilization leads. Thus, the law of iiature, the moral law, the municipal law, and the law of nations, form a system of restraints before which the most consummate genius, the most vehement will, the angriest passions, and the fiercest desires, are compelled to bend, and the pres- sure of which the individual is forced to acknowl- edge his incapacity to resist. Of these various systems of rules for the government and control of men, the municipal or civil law asserts its claim emphatically as a distinct branch of knowl- edge, and is that to whicli we refer when we speak of the profession of the law, the study of the law, the science of the law. Municipal law is defined by the great English com- mentator, as " a rule of civil conduct prescribed by the supreme power in a state, commanding what is righ^ and prohibiting what is wrong." Our American Kent describes it " as a rule of civil conduct prescribed by the supreme power of a state.' , 55* * Kent, Com. i. 446. Legis wrim Tioec eat, imperare, vetare, permit- tere, punire. L. 1 Ff. dje Leg. There has been much scholastic dis- cussion as to the proper definition of the term Law ; and when we come to the subject of the boundaries of legislative and judicial power, we shall find that in practice it is not very easy to give the phrase an accurate or fitting interpretation. Cicero, XI. Philip. 12, aqd after him Bracton, Coke, and Blackstone (as in the text), define it to be a holy sanction commanding whatever is honest, and forbidding the contrary. Sanciio justa, juhem honesta et prokibens coniraria. — Black. Com., Lib. i. ch. i. Blackstone's citation is incorrect, the precise words are, Ust enim lex nihil aliud nisi recta et a numine deorum tracla ratio, im- perariB honesta, proMbera contraria. Bentham, in his Fragment on Government, attacks Blackstone's doctrines MUNICIPAL LAW. o Botli of these definitions are perhaps obnoxious to criticism. Either of them sufficiently answers our present purpose. Before entering on the precise subject of this trea- tise, it is necessary to have an vaccurate idea of the various elements constituting that system of municipal law which controls the conduct of the active millions who compose our race. The two great sources of municipal or civil law, in all countries of which we have the means of tracing the, jurisprudence, are unwritten law or usage, and written or statute law; in other words, custom and positive enactment. The first general rules of action in all young socie- ties before the working of any central authority is firmly established or extensively recognized, must neces- sarily result from the adoption of customs or usages recommended by their practical utility, the growth of religious zeal, or local necessity, and established as law on the subject of the nature of law in general, with great severity. Hobbes defines a law to be "the command of him or them that have sovereign power, given to those that be his or tfieir subjects, fully and plainly de- claring what any one of them may do and what they must forbear to do." — Dialogue between a Lawyer and a Philosopher. Montesquieu says, {Esprit des I/ris. Lib. i. ch. i.) "Lea his, dans la signification la plus itendue,sont lea rapports necessairea qui dirivent de la nature dea choaea; el dans ce sens torn les etrea ont leurs lois.'" Of which Toullier says, (Droit Citiil Frxn- eais, vol. i. p. 3) " On a oiaerve, avec raison, que ceite definition etait plus ob- scure que^ la cJwae A definir.''^ See Grotius de Jure Belli et Pads, liv. i. ch. i. as to the distinction between Jus et Lex ; and see also Fortescue de Laudibvs Legum Anglioe. Amos edition, p. 8, in notes. As to the origin of the term, Cicero says that lex is derived from legendo, or choosing: "Ego nostra (nomine) a legendo — nos delectus mrriin legeponimus et proprium legia eat." De Leg i. 6. " Quoniam in lege inent vis delectus, jubet enim qum honesta jaunt, proTiibet contraria^" says Vinnius, Coram. Just. Inst., Lib. i. Tit. ii. §4. Turnebus says (Cicero, Olivet edition, vol. iii. p. 160, note) that it is called Lex, quod Ugenda eognoscenda populo propon- ereiur. . • ' CUSTOM. by gradual and general recognition. Every system of jurisprudence declares this truth. The civil law and its great expounders are all full on the binding force of custom. " Oonsuetudinis ususque longcevi" says the Code, " non vilis auctoritas est* And again :f Inveter- ata Gonsuetudo pro lege non immerito custodittir^ et hoo est jus, quod diaitur mm^ibus constitutum. Nam mm ipsc^ leges nulla alia ex causa nos teneant^ quam quod judioio populi receptee sunt / merito et ea quce sine ullo scripto populus prohavit, te^iehunt omnes. Nam quid interest suffragio populus voluntatem suam declaret^ an rebvjS ipsis et factis f Quare rectissime etiam illud receptum est, ut leges non solum, suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogentur.X ■ " Custom," says Voet, " is in many respects like statu- tory enactment. It is an unwritten law gradually introduced ; by the usages of those who adopt it, and thus acquiring the force of enactment." J^egi in multis similis est consueUido ' Jus non scriptum,, mori- his utentium paullaUm inti^oductum, legis Jiabens vigo^ rem?^i Forti states well and simply, the manner in which custom establishes its empire. "In the infancy of hu- man society, as writing is little used, and affairs are not yet complicated, differences are adjusted ratter according to notions of natural right than statutory enactment. The example of one generation becomes a law for their descendants, and the rules found in the past, furnish a guide for the present and the * Code, Lib. viii. Tit. 53, Quae sit long, consuet. t 32 § Ff. Lib. i. Tit. 3, de Legibus. i " Gonsuetudo Eegni est communis lex" — Anon. Cro. Eliz. 10. § Voet, Comm. Lib. i,, Tit. iii., § 27, de legibus. THE COMMON LAW. 5 future. Thus is introduced a kind of law that is called custom." * ' So France, before the Revolution of 1789, was to no small extent governed by the unwritten customs (usages) of her different provinces.f To this source is also chiefly to be traced the great body of the original English law, " that ancient collec- tion of unwritten maxims and customs called the Common Law "J which still ex!ercises such extensive * " Nell infanzia delle humane societa, perche non vi e usd di lettere ne gran complicazione d'affari le discordie tra gli uomini assoeiati ad uno stesso vivere civile si compongono piutosto secondo la ragion naturale che per autorita di leggi autenticate della scrittura. Poi I'es^mpio dei mag- giori divien legge pei nepoti, e le regole che furon formate pel passato danno norma al preaente ed al future. In questa guisa s'introduce una specie di gius che dicesi, di consuetudine."-^Forti, Institusioni Civile, Lib. i. Cap. ii. § 11, p. 19. ' Franceso Forti, of Pescia, a nephew of Sismondi the historian, born in 1806, died in 183S. He is, in the domain of the law, one of the most eminent instances of the inextinguishable genius of his unhappy country. * t TouUier, Tit. Prel, Sect. xi.,. § 1 88. " E'etude du Droit Francois," says Camus, " comprend la connoissance des coutumes, des ordonnances, et de la jurisprudence etablie par les arrets * * Chaque province a sa coutume particuliere quelquefois diam^tralement opposee a, celle d'une province voisine. * * Les coutumes sont plus generales que les ordonnances dans ce sens que leurs dispositions embrassent plus de questions de notre droit. * * C'est I'etude des coutumes qui doit ^tre la premiere, par la raison qui j'ai touchee qu'eUes s'appliquent a un plus grand nombre de questions." These provincial customs, or common law, formed the subject of separate treatises written by the most eminent of the French legists. Thus, the customary law of Normandy was discussed by Basnage; of Orleans, by Pothier ; of Paris, by Dumoulin. — Camus, Made du Droit Francais, 4th Let- ' ter, pp. 81, 110. X Blackstpne, Introd. Sect. 1. " Cffnsitetado" says Coke, " is one of the main triangles of the laws of England, those laws being divided info common law, statute law, and cus- tom." — Coke, Imt. 110, S. — "particular customs. I say, particular customs, for if it be the general custom of the realm, it is part of the common law." — Coke, Inst. 115, 6. THE COMMON LAW. sway in, both England and America, and on whicli we daily see engrafted regulations owing their origin to the same principle * Sine scripto jus venit^ quod usus approbavit, nam diutumi mores consensu uten- tium comprohati legem, imitantwr.\ As, however, societies advance, and become consoli- dated or crystallized into regular governments, they do not wait for the slow process of custom to establish general rules. In order to create more certain and rapid uniformity, they resort to positive enactments, to statute laws. And these enactments, in many cases, more or less supplant the usages which precede them. Such is the gradual tendency of civilization. So, the first demand of that extraordinary people which has been to the world the great exemplar of or- ganization and administration, of order and discipline, — its first serious internal struggle, was for a body of writ- ten law to replace the vague and undefined customs and usages by which they had till then been governed. This was the origin of the law of the Twelve Tables, which united the functions of a constitution and a code, and was for nearly a thousand years, until the time of Justinian, the basis of the jurisprudence of Eome.J * Among the most marked instances of the constant tendency of custom to become law, may be noticed the American Marine Insurance doctrine of one third new for old, entirely the creature of a usage which has grad- ually grown up with the last half century. t Inst. Lib. i. Tit. 2, § 9. X "The most striking point," says Arnold (Hist, of Rome, ch. vi. p. 70), " in the character of the Romans, and that which has so permanently in- fluenced the condition of mankind,- was their love of institutions and of or- 3er ; their reverence for law, their habit of considering the individual as living only for that society of which he was a member. This character, the opposite to that of the barbarian and the savage, belongs apparently to that THE COMMON LAW. 7 So, we see in France, tlie old multifarious customs wiich, before the Revolution, ruled the various pro- vinces of the kingdoiii, giving way to the code, the greatest and most permanent work of the central authority of the empire* So again in England, although the common law, the great customary law, as fixed by the art of printing, expounded and extended by judicial interpretation, retains, even to our time, so great a sway, still, we daily see it modified by and giving way before the inroads of the lawgiver. But wherever a great body of customary law exists, or has ever existed, a familiar knowledge of its pro- visions and its history is indispensable to the jurist. First, in point of time, it is often first in point of im- portance, as explaining and even to a certain extent controlling the statute law to which it apparently gives place. « The importance of bearing this in view in the con- sideration of our present subject, will be recognized when it is recollected that the great body of unwritten race to which the Greeks and Romans both belong, by whatever name, Pe- lasgian, Tyrrhenian, or Sikelian, we choose to distinguish it." The Deeermin legihm seribendk, were appointed to frame as well a Consti- , tution as a Code of laws. Like the Greek no/iiStroi, " they were to provide for the whole life of their citizens, in all its relations, social, civil, political, moral, and religious," — Arnold's History nf Rome, ch. xiii. p. 146. * But even this great body of statute or written law bears traces of the controlling force of ancient usage. " Whatever is ambiguous," says the 6ode (Art. 1159, speaking of the Interpretation of Contracts), " is to be in- terpreted by the usage of the district where the contract was made." Ce qui est ambigu s'interprete par ce qui est i usige dans le pays oii le contrat est pass6." And again (Art. 1648), " L' action resultant des vices redhibi- tbires doit ^tre intente par I'acquereur dans un href delai suivant la nature des vices redhibitoires et I'usage du lieu oii la vente a ete faite." See also, Art. 1736 and 1748. THE COMMOK LAW. usages called the Common Law of England, is also. the basis of the law of this country. The sources, indeed, of American and English jurisprudence, are identical. This is universally true, with the exception only of those States, like Louisiana, Florida, Texas, and California, which, before they were annexed to the United States, belonged to countries governed by the civil law. The colonists who settled this country, were Englishmen, with the feelings, the attachments, and the prejudices of Englishmen. It became necessary for them to establish or recog- nize and adhere to some system of law from the moment they landed. That system was of necessity the English, and accordingly, we find the doctrine to have always been that the colonists were subject to, and, as it were, brought with them, the great princi- ples of the common law of the mother country, with such modifications as the legislative enactments of Par- liament had at that time introduced into it, or the particular situation of the colonists in their new condition required. It is to be understood, then, as a general principle, — that the basis, the funda- mental element, the starting point, of the jurispru- dence of the States of the Union, is the common law of England, so far as the same is not actually repugnant to our system. The exceptions we shall hereafter consider ; but so it has been repeatedly de- cided and affirmed in the thirteen old States, as they are called, which in 1116, threw off the English sovereignty. The declaration of rights made by the first Continental Congress, in 1114:, declares that " the respective colo- nies are entitled to the common law of England, and to the benefit of such of the English statutes THE COMMON LAW. 9 as existed, at the time of . their colonization, and which they have, by experience, found to be applic- able to their social, local, and other circumstances."* This is the uniform language of our judicial de- cisions, whether of the federal or State tribunals. It has been declared by the Supreme Court df the United States, that our ancestors brought with them the general principles of the common law as in force at their emigration, and claimed them as their birthrightf Nevertheless, that the common law of America is not to be taken in all respects, to be that of England, but that the settlers brought with them, and adopted, only , that portion which was applicable to their situation. J The Supreme Court has also declared that English statutes passed before the emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common lawi§ and the construction of such statutes which prevailed at the Revolution, is the rule for the Courts of the United States. English judicial decisions, therefore, pro- nounced previous to our Declaration of Independence, construing or interpreting such statute law of the mother country as we have adopted, are to be received here as a part of such statutes ; but judicial decisions on such statutes, pronounced subsequently to our Re- volution, though treated with great respect, are not to be admitted as authority.! So, the Court of Chancery of the State of New York has said : " It is a natural presumption,, and therefore * Declar. in Shepard's Cons. Text Book, App. p. 262. + Terrett vs. Taylor, 9 Cranch; 43 ; Town of Pallet vs. Clark, 9 Cranoh, 292 and 333. t Van Ness vs. Pacard, 2 Peters, p. 137 and 144. § Cathcart vs. Robinson,. 5 Peters, 264—280; Fowler vs. Stoneum, 11 Texas, 478. 8 Patterson vs. Winn, 5 Peters, 233 ; Cathcart vs. Eobinson, 5 Peters, 264. 10 THE COMMOK LAW. adopted as a rule of law, ttat on the settlement of a new territory, by a CQlony from another country, and where the colonists continue subject to the government of the mother country, they carry with them the gene- ral laws of that country, so far as those laws are applic- able to the colonists in their new situation, which thus become the unwritten law of the colony, until altered by common consent or legislative enactment ;"* and it was said to be evident that there was a com- mon law existing in the State of New York, re- straining religious corporations from alienating church property, which colonial common law resulted from the importation of the English restraining acts in force at the settlement of the colony.f In Maryland, it has been decided under the consti- tution of that State, J that their adoption of the common law has no reference to adjudications in England anterior to the- colonization or to judicial adoptions here of any part of the common law during the continuance of the colonial government, but to the common law in mass, as it existed here either potentially or practically, and as it prevailed in England at the time, except such portions of it as were inconsistent with the spirit of the State Constitution and the nature of our new political institutions ; and on this ground it was held that the emigrants brought with them into that colony, the common law of conspiracy. So it has been held by the Supreme Court of New Hampshire, that the body of the English common law * De Ruyter m. the Trustees of St Peter's Church, 3 Barb. Ch. R. 119 ; S. C. 3 Corns. 238. t Canal Commissioners vs. The People, 6 Wend. R. 445 ; Canal Ap- praisers vs. The People, 17 Wend. 584. tDecl. ofRights, Sec. 3. THE COMMON LAW. 11 and tlie statutes in amendment of it, so far as they were applicable to the government and to the condition of the people, were in force as a part of the law of that province, before the Revolution, except when other pro- vision was made by express statute or by local usage ; and they decided that an indictment at common law could be sustained for an assault and false imprison- ment, and for kidnapping, though there were no statute of the State in force creating the offence* In Massachusetts, it has been expressly declaredf that the first settlers " on coming to that State, brought with them the rights and privileges of Englishmen and the common law of that country, so far as it should be found applicable tp their new state and condition. They brought with them also, a charter containing power to make such new laws as their exigency might require. They could live under t;he old laws, or make new ones. Whenever they legislated upon any sub- ject, their own law regulated them ; when they did not legislate, the law they brought with them was their rule of conduct." And the Supreme Court held " that the law by which the emigrants were governed in re- gard to waste committed by tenants, was the law in force in England at the time of the emigration. Un- less our ancestors can be supposed to have settled this country and to have held real estate without any law to protect and preserve it, the law which was in force in the country which they had left, was the law, and remained so in regard to the descent, '^alienation, &c., of real property, and the remedies for injury to it, until they saw fit to supersede it by a law of their own mak- ing." This principle also, has been held in that State, * state vs. Rollins, 8 N. H. K., p. 550. t Sackett vs. Sackett, 8 Pick. 809, 815. 12 THE COMMON LAW. to apply to the Englisli statutes amending or altering the common law, and in force at the time of the emigra- tion. But the statut,es passed subsequently, are only understood to be in force so far as they may have been practically received into their system.* The common law of Massachusetts is also said to em- brace some ancient usages originating probably from laws passed by the colony of the Massachusetts Bay, annulled by th« repeal of the first charter, but by the former practice of the colonial courts accommo- dated to the habits and manners of the people.f And this adoption of the common law, even in criminal cases, appears 'equally established in Maine, J it having been held in that State, that to cast a dead body into a river without the rites of Christian sepul- ture, is indictable as an offence against common decency. It is very important to bear in mind the exception already mentioned, that only so much of the English common law was adopted by the colonies as was appli- cable to their condition. So, the English law of fixtures permitting the tenant to remove trade fixtures, but forbidding him to disturb those made for agricul- tural purposes, was never the law of this country. "The country- was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil, as well as the public, had every motive to encourage the tenant to devote himself to agriculture, and to favor any exertion that should aid this result." Such is the intimation of the Supreme Court * Commonwealth vs. Knowltop, 2 Mass. 530, 684. See also, Common- ■wealth vs. Leach, 1 Mass. '59. t Commonwealth vs. Knowllon, 2 Mass. R. 680, 684. X Kanavan's Case, 1 Greenl. 226. THE COMMON LAW. 13 of the TJ. S. ;* and in the State, of New York,^tlie right of the tenant to remove any " erections that he may have had occasion to make for his own use or enjoyment, if he can do so without injury to the itoheritance " and without reference to. their particular character, has been apecifically declared.f So, again, on the same principle, it has been held in the same State that the English law of ancient lights was never adopted in this country; J and, in the absence of any special covenant, that when an owner of two adjoining lots in a city leased one of them on which was a building receiv- ing its light and air thrdugh an open space on the adjacent lot, that the proprietor had a right to build on the lot in question, so as even to darken or stop the windows of his tenant, and that his absolute right of property could not be interfered with by injunction. § Such then, we learn from the highest authority, was the sUent and practical adoption of the common law, by the Colonists who on the shores of the Atlantic laid the foundations of empire. But when the Revolution broke out, and the inhabitants of the new States with that provident forecast to which attention will here- after be called, undertook by solemn instruments, to declare and fence in their rights and liberties, it became necessary to determine the fundamental law of the soyereignties just springing into life. So we shall find that at the Revolution of 17Y6, by the constitutions of most if not all the States, the great body of the common law, and such of the English * Van Ness vs. Paeard, 2 Peters, 13T, 144. t Dubois V3. Kelly, 10 Barb. 4fl6. J Parker vs. Foote, 19 Wend. 309.. § Myers vs. Gemmel, 10 Barb. 537. 14 THE COMMOlf LAV. statutes as were not repugnant to our system, were preserved and adopted as binding on us. But the common law of England is perpetually fluctuating; and it would have been altogether inconsistent with proper notions of national independence to give the law of a foreign country any permanent con- trol over our tribunals or our people. It was, therefore, necessary to fix a time after which any changes effected in the common law of the mother country would have no effect 'here. And that period is the Revolution. That epoch is the era of our in- dependence, legal as well as political, and we recognize no foreign law posterior to that period, binding on us as authority. So, the Constitution of the State of New York of 1777 provided (Art. xxxv.) that "such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the Colony of New York, as together did form, the law of the said Colony on the nineteenth day of April, in the year of our Lord, 1775, should be, and continue the law of the State, subject to such alterations and provisions as the Legislature of the State should from time to time make concerning the same." The Con- stitution ajso adopted such resolves or resolutions of the congresses and of the Colony of New York, and of the Convention of the State of New York, as were then in force, and not repugnant to the new Government, subject also to the power of the Legislature to alter; and they abrogated and abolished all such pai'ts of the English common and statute law, and of the colonial enactments, as established any particular denomination of Christians, or as created allegiance to the king of THE COMMON LAW. 15 Great Britain, or as were repugnant to the new Consti- tution. The amended Constitution Of the same State, of 182^1 (Art. 7, § 13), adopted such parts of the com- mon law, and of the acts of the Legislature of the Colony of New York, as formed the law of the Colony on the 19th of April, IV 75, and the resolutions of the Congress of the Colony, and of the Convention of the State of New York, in force on the 20th April, 1111, not since expired, repealed, or altered, and not repug- nant to the Constitution, and subject to the power of the Legislature.^ The Constitution of the same State, of 1846 (Art. i. §17), contained the same provision which, as it will be seen, omits all mention of the statute law of Great Britain. The Constitution of Maryland (1-776) declared (Art. iii.), that the inhabitants of Maryland are entitled to the common law of England, and to the benefit of such of the English statutes as existed at the time of the first emigration, and which, by experience, have been found applicable to their social and other circumstances, and of such others as have since been made in England and Great Britain, and have been introduced and prac- ticed by the courts of law and equity, and also to all acts of Assembly in force on the 1st of June, 1774, ex- cept such as may have since expired or have been altered by acts of Convention, or the Declaration of Kights, subject to the revision of the Legislature.. The Constitution of Massachusetts (1780) <3ontained this simpler provision (Chapter vi. Art. vi.) "All the laws which have heretofore been adopted, nsed, and approved in the province, colony, or State, of Massa- , chusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force until altered or repealed by the Legislature,- only excepting those 16 THE COMMON LAW. parts repugnant to the rights and liberties contained in .this Constitution." And the Supreme Court of this State, as we have seen, has said that the first settlers of the colony regarded the law of England as their law, and governed themselves by it.* The Constitution of New Hampshire (1792) adopted substantially the same provision as the one last cited from that of Massachusetts. The Constitution of New Jersey (1*776) de- clared, § 21, that the laws contained in the edition lately published by Mr. Allison, such ogly excepted as are incompatible with the Constitution, should be and remain in full force until altered by the Legislature of the colony ; and, § 22, that the common law of England as well as so much of the statute law, as has been here- tofore practiced in the colony, shall still remain in force till altered by the Legislature, such parts only ex- cepted as are repugnant to the rights and privileges contained in the new constitution. "We see, that by these constitutions the common law, as such,, was recognized ; and such may be assumed to be generally the law of those States the Constitutions of which contain no such affirmative provision. At the same . time it has been declared by the Supreme Court of the United States, to be clear that there can be no common law of the Union. The federal Government is composed of twenty-four sove- reign and independent States, each of which may have its local usages and common law; but there is no prin- ciple which pervades the' Union, and has the authority of law, that is not embodied in the Constitution or * Commonwealth vs. Alger, 7 OusMng, 63, 66. See this case for a very interesting discussion on the "Body of Liberties" adopted in 1641, by the Colony of Massachusetts. THE COMMON LAW. 17 Laws of tlie Union. The common law could be made a part of the federal system only by legislative adop- tion. It is settled that the federal courts have no juris- diction of common law offences, and that there is no common law of the tJnion.* When, therefore, a comBion-law right is asserted, we must look to the State ' where the controversy originated. What is common law in one State may not be, and fre- quently is not so considered, in another. The judicial decisions, the usages and customs of the re- spective States,, must determine how far the common law has been introduced and sanctioned in each.f It is often said that Christianity is part and parcel of the common law ; but this is true only in a modified sense. Blasphemy is an indictable offence at com- mon law ; but no person is liable to be punished by the civil power who refuses to embrace the doctrines or follow the, precepts, of Christianity ; our Constitutions extend the same protection to every form of religion, and give no preference to any. Still, though Chris- tianity is not the religion of the State, considered as a political corporation, it is nevertheless closely inter- * state of Pennsylvania vs. The "Wieeling Bridge Co., 13 Howard, 519. t Wheaton m, Peters, 8 Peters, R. 591 and 659. iSut see the very able opinion of the late Vice-Chancellor Sandford, in 'Lynch vs. Clarke, 1 Sandf. 583, where he says, p. 654, " In my judgment there is no room for doubt, but that to a limited extent the common law (or the principles of the common law, as some prefer to express the doctrine) prevails in the United States as a system of national jurisprudence. To what extent it is applicable, I need not hazard an opinion, either in general terms or in particular in- stances, beyond the case in hand ; but it seems to be a necessary conse- quence, from the laws and jurisprudence of the colonies, and of the United States imder the articles of confederation, that- in a matter whiqh by the Union has become a national subject, to be controlled by a principle coex- tensive with the United States, in the absence of constitutional or congres- sional provision on the subject, it must be regulated by the principles of the common law, if they are pertinent and applicable." 2 18 CONSTITUTIONAL LAW. ■woven into the texture of our society, and is intimately connected with all our social habits and customs, and modes of life * The grfeat body of the common law of England, and of the statutes of that country as they existed in 17*76, are, then, so far as applicable to our condition, the basis of our jurisprudence. Upon this foundation we have erected a great superstructure of law, the fabric of judicial decisions and the product of the numerous legislative bodies to which the government of the States and of the Union iS' confided. As we shall have occasion to see in the progress of this work, the statute law of the United States, and of the different members of the confederacy, form a vast body of jurisprudence, in many cases complicated, peculiar, and novel, but eminently adapted to our unprecedented situation, and of equal iritei'est for the citizen and the lawyer. To these two sources of municipal law, viz. common and statute law, must be added in America a third. "We have thought it wise to set limits to the law- making authority, and by the direct action of the people themselves to establish certain rules and prin- ciples of action which can be varied by no power less than that supreme will which calls the legislator into being. In other words, we have imposed con- stil/atiofial restraints on the legislature. Something of this same disposition is to be found in the annals of the mother country. The history of the race to which the people of America belong, in all their * WilliaiDs vs. Waiiams, 4 Seld, 625, 553 ; Ayres vs. The Methodist Epis- copal Church, 3 Sandf. 351 ; Andrews vs. N. Y. Bible and Prayer Book So- ciety, 4 Sandf. 166; Yidal vs. Gerard's Executors, 2 Howard, 127; Going vs. Emery, 16 Pick. 107 ; Executors of Burr vs. Smith, 7 Verm. 241 ; and other cases as to the doctrine of charitable and pious uses in this country. CONSTITUTIOlfAL LAW. 19 struggles for tlie attainment and preservation of free- doni, shows their marked and sedulous care in obtain- ing and preserving formal acknowledgments and records of their rights and liberties, muniments of title, as they might in technical language be ter;med. ^ So early ais the 1st of Eichard III., Parliament " de- clared that the court of Parliament is of such authority and the people of this land of such a nature and dis- position, as experience teacheth that manifestation and declaration of any trut];i or right made by the three estates of this realm assembled in Parliamentj and by authority of the same, tnaketh before all other things, niost faith and certain quieting of men's minds, and removeth the occasion of doubts."* ^o, the Barons of England were not satisfied with humbling the power of John. The^ exacted and ob-^ tained the execution of the great Charter. The re* formers in the time of Charles I. demanded his assent to the Petition of Eight ; and the throne of England now rests on the Bill of Eights, the fruit of the revo- lution of 1688, a bill prepared by the Convention Parliament, in its own emphatic language, "as their ancestors in such cases had usually done."f These, however, are all but parliamentary enact- nients, or regal concessions, intended to operate as checks on the kingly prerogative. They furnish no safeguard: against abuse of the legislative authority. Our ancestors went further, and seeking to guard against the abuses of popular, as their English pro- genitors did against those of monarchical power, both in the formation of the government of the separate States, * Cotton's Abr. of Records, Y13 — 714, quoted in Haddock's Life of Somers, 1. p. 294. t BiU of Rights, 1 W. and M., Sess. 2, c. 2. 20 CONSTITUTIONAL LAW. and in laying the foundation of the great confederacy of the Union, they carefully asserted and defined those individual rights which not even the law-making power, not even the people itself, shall be permitted to infringe. But this is not the proper place for an in- quiry into the formation of written constitutJ.ons. In- teresting as that investigation would be, and pregnant with interest to the student of history and the lover q£ liberty, it is foreign to my present subject. So far, indeed, as our Constitutions relate merely -to po- litical organization, they are entirely beyond the limits of this work. It is as forming a system of written limitations or restraints on legislative power that we shall have to consider them, and in this aspect it wiU be interesting and instructive to study their operation, to compare their analogies, and to observe their inter- pretation.. For the present, it is sufficient to remark, as we ^hall leaf n more fully hereafter when we come to consider the true boundaries of legislative and judicial authority, that the parliamentary or legislative history of this country is remarkable for nothing more than for the care with which we have endeavored to define the boundaries of the various powers which in the aggregate form the complex machine of government, and the rigor with which restraints have been imposed by the people itself on its immediate mandataries and agents. Such are some of the most prominent functions of the con- stitutions .of the ■ several States. The Constitution of the United States, designed to operate on State sovereignties, as well as on the people directly, par- takes of the character of a league as well as of a con- stitution, as the latter term is more strictly used. Of these three great components, then, Constittj- JUDICIAL mTEBPRETATION. 21 TioNAL Law, Statute Law, and Customaey or Com- mon Law, tlie jurisprudence of our municipal system is chiefly composed. Of the two first of these, this volume is intended to treat. They are entirely writ- ten law, governed, like all branches of our science, by rules peculiar to themselves, and subject to the neces- sity, incident to the imperfection of language, of con- stant interpretation and construction. The object of this treatise is to explain the technical termin- ology that belongs to them, to give their classifica- tion, describe their incidents, and finally, with what accuracy I can attain, to define the mode of their application, to declare the rules of interpretation by which they are in cases of doubt to be expounded, and to illustrate these rules by the light of adjudged cases. Both constitutional and statute law have two great attributes common to each other, which render it in- dispensable to examine them together. They are' both written ; in cases of doubt they are both submitted to the same judicial arbiter. It is plain that differences will arise in the construction of written laws. The his- tory of private discussions and of public controversies, of contracts and of trfeaties, and more than all the religious annals of our race, show the feebleness and imperfection of language, and the sad facility with which it lends itself to the various interpretations put upon it by ambition, fraud, or even honest difference of judgment. To settle these differences in regard to the civil conduct of mankind, some tribunal is necessary. On this point, as we shall see more fully hereafter, various systems have existed. ' The earliest body of jurisprudence of which we know any thing accurately, is the law of the twelve tables of Rome j wrung from the Patrician 22 JUDICIAL INTERPKETATIOK. burghers by tlie - courage and constancy of the Plebeians, it wa^ intended to define and declare the whole body of rights, public and private, that con- stituted the existence of a Roman citizen, and for nearly a thousand years it was the basis of their sys- tem ; but during that time, it was vastly expanded and altered by the practice of interpretation. The Eoman jurisconsults construed or interpreted the written code with a very liberal spirit ; and the responsa prudentmn, as we know, formed one of the leading elements of the law as Justinian compiled it* When, however, the imperial constitutions had subverted the freedom of the republic and the independence of the law, the despotic dispositions of the empire arrogated to the sovereign alone the power of interpreting as well; as of making laws. Leges coTidere soli imperatori conces- swn est, et leges interpreta/ri solo dignum imperio esse oportet.f The modern civilians adopted the same maxim. ^ws est mterpreiari legem cujus est condere. Such was the system under the government of the French em- pire.J The terrible absolutism of this doctrrae found, how- ever, opposition or at least encountered doubt even among the continental jurists ; and Voet, in his com- mentaries on the Pandects, discusses at length the ques- tion whether the right of interpretation belongs to the * The jurisprudentes, " though they professed only to interpret the twelve tables, not to make laws, their notion of interpretation was so wide that it included every thing which could be brought within the spirit of any thing which the twelve tables enacted " * * « tjjg regpoma pmdmtum thus came to be enumerated among the direct sources of law." — Sanders' Imtitutes, Introd. p. 19 and 20. t Cod., Lib. i. Tit. xiv. de legibus, 12. X See TouUier, Tit. Prel. des lois en general, section x. JUDICIAL INTERPRETATION. 23 sovereign, should be abandoned to usage, or confided to the judiciary* In the early ages of the English system, it appears that the line between the Judiciary and the Legisla- ture was not distinctly marked, and that Parliament, consisting of one great chamber in which sat both Lords and Commons, not only made, but interpreted the law.f But it has now long been settled in England, that the iuterpretation of statute law belongs to the judi- ciary alone, and in this country they have claimed and obtained an equal control over the construction of constitutional provisions.^ This treatise is, then, devoted -mainly to a consideration of constitutional and statute law, and of the control exercised by the judi- ciary over it. It is plain that the matter is of great moment. On the one hand, the nature of the case, the frequency of doubt, the impossibility of recurring to the legisla- ture or to popular sovereignties for the removal of diffi- culties, and the general analogies of our system, require the power of th& judiciary to be extended over the subject ; while, on the other hand, unless their authority be very carefully exercised and confined within strict limits, the boundary between the legislature and the judiciary would be gradually effaced and the most valuable parts of the law-making power practically fall into the hands of that branch of the government which * Comm., Lib. i. Tit. iii. de legibus. + " Originally, the Houses of Lords and Commons sat together. The courts of law were clearly subordinate to the Parliament. A writ of error lay from them to the Parliament, and they were accustomBd even to consult Parliament before they decided points of difficulty and importance." — Sit J. Campbell, argitendo, in Stockdale vs. Hansard, 9 Ad. and Ell. 1 ; see, post, cb, V. * )i t Kent, Part iii. Leo. xx. vol. i. p. 449 et seq. 24 THE - GENERAL SUBJECT. is not intended to have any sliai-e whatever in the en- actment of laws. Having thus endeavored to give a general idea of the various sources of our jurisprudence, and of the princi- pal objects of this treatise, we proceed now to a more particular examination of our immediate subject, de- siring, however, that the results at which we have thus far arrived, maybe borne in mind: That the common law is the great i basis of both JJnglish and American municipal law; that the interpretation 01* construction of the written law belongs to the judiciary; that the rules governing the application of statutes may, as a general proposition, be con- sidered the same in both countries, but that on the contrary, the head of constitutional law is wlwlly peculiar to American jurisprudence. As the authority of Congress is subordinate to that of the Constitution of the United States, and that of each Legislature both to the federal charter and the constitution of its own State, it is plain that the inquiry of the American student in all new cases, must be directed to constitutional provisions before it turns to the statute law. The prominent question in any case of first impression growing out of the pfovisions of writ- ten law, wUl usually be with every legal mind : does the alleged right initerfere with any constitutional provision, State or federal ? And it might, therefore,' appear pro- per first to speak of constitutional law ; but, as has been observed, the basis of our jurisprudence is the English system, the general rules of interpretation are the same, whether applied to statutes or constitutions; ^and as constitutions for the purpose of this work will be considered mainly in the light of restraints or limi- tations upon legislative power, it will be found better THE OEKERAL SUBJECT. 25 at the outset to examiae those rules and discuss those doctrines common to the legal science of both coun- tries. I shall first, therefore, consider the subject of Statutes. It will be remembered, however, that my leading object is not to give the actual interpretation of particular constitutional or statutory provisions. This would require a work of vast magnitude, and w6uld lead me far beyond my present purpose. That purpose is to consider the rules which govern the application of written law, to exhibit the leading principles of inter- pretation, and in regard to constitutions, to observe their analogies ^nd study their general operation. The construction of special provisions, whether of statutes or constitutions, will be carried no further than shall appear to be necessaiy for a complete understanding of the subject. Before discussing the subject of the construction of statutes in doubtful cases, it is necessary first, however, as I have , said, to imderstand the rules which govern their application where no doubt arises. . Having first examined their division and classification, their separate parts and their various incidents^ we shall be then better prepared to understand the rules which are adopted where cases of difficult or doubtful interpretation arise. CHAPTER II. GENEEAL CLASSEFIOATION AND DIVISION OF STATUTES» • ' '*' Dmsion of Statutes— In England divided into ancient and modem— DiTision .in the United States— Public and Private Acts— Declaratory and Innova- ting Statutes — Affirmative and Negative Statutes — ^Remedial Statutes — Penal Statutes — ^Kepealing Statutes. Those wlio desire to know the origin and Mstory of tlie formation of statutes, from tlie earliest periods, in the country from which our legislation derives its source, will do well particularly to consult Mr. Dwarris' very valuahle work on Statutes* The inquiry involves some of the most interesting questions connected with the early annals of England, the power of the Nor- man Conqueror and of his first successors, the rise and progress of parliaments, and many other subjects equally curious and attractive. For our present purpose it is sufficient to observe, that the original term for all laws was Assises or A, * Treatise on Statutes, by Fortunatus Dwarris, Kt.) and W. H. Armyot Second edition, 1848. The first volume js devoted to the origin and history of statutes, and the course of proceedings in Parliament The second vol- ume treats of the construction of statutes, their division, parts, authority, and incidents. '«. This latter part has been republished in the ninth volume of the first series of that valuable compilation, the Law Library, and is familiarly known to our legal scholars. The whole work has, I believe, never been republished in this country. Barrington's Observations on the Statutes is also fuU of curious learning on the same subject. ENGLISH DIVISIOBT OF STATUTES. 27 GmsUtutiones (rexprecepii vel constiPmt) ; and among the earliest monuments of Englisli legislation, there are statutes wMcL. bear the traces of a great council assisting the king, besides ordinances, grants, charters, and patents, emana;ting from the crown alone. The first statutes appear to have been enacted upon petitions which were presented, discussed, and acted on in Parliament, the statute being, at the end of each parliament, drawn up by,tthe judges, and entered on the statute roll. This was found suTbject to great irregularity and abuse; and finally, in the time of Henry "VI., bills were in the first place, as now, drawn up and presented to the two Houses.* But as this in- vestigation to us would be interesting mainly if not solely in an historical and antiquarian point of view, I shall content myself with this brief notice of so much of my subject as is entirely peculiar to England, and proceed at once to the enumeration ©f the different classes into which statutes are divided. Here we shall find the basis of the classification to be derived from the English law. The English have, however, a division of statutes which is unknown to us, viz. : into ancient and mpdern. The earliest statutes in the printed collections are those of the ninth year of Henry III., A.D. 1220. , The statutes from Magna Charta down to the end of Ed- ward II., 1326 (including also, some which, becatise it is doubtful to which of the three reigns of Henry III., Edward I-, or J^dward II., to assign them, are termed mcef'ti terr^oris)^ compose what have been called the Vetera siafwla^ or ancient statutes ; those from the be- gmning^f the reign of Edward IH. (1327) being con- h * Dwarris on Statutes, vol. ii. eh. i. 28 LANGUAGE OF OLD STATUTES. tra-distinguished by the appellation nova staimta. The former also, from some accidental circumstance of col- lection or publication, are sometimes spofeen of as prima aut secunda pars mterwrn stabutorvm* Of tne earlier statutes some are in Latin, some in French. On the accession of Richard III. (1483) the laws were first printed and promulgated in English. Since the time of his successor, Henry VII., all the statutes have been drawn in English.f %-_ * Dwarris on Statutes, p. 460. t The history of the English language is very curiously illustrated by the history of the law. As late as the middle of the lith century, all the oral proceedings in open court were in the French tongue, when by the 36th Edward IIL c. xv. (1362), the English was introduced into the tribunals. That statute recites that the laws of England are disregarded because the proceedings in court are in French, "a tongue much unknown in the said realm," so that clients do not understand what is said for or against them; that in other countries the laws are better obseryed because juslce is done in the vernacular ; and it then goes on to declare that thenceforth all pleas shall be pleaded, shWed, defended, answered, debated, and judged in the English tongue. The Latin was, however, by the same statute, preserved as the language of the written pleadings and of the record. The statutes, however, stiU continued to be enacted in Law French, till the reign of Richard III., when they first appear in English ; and so ten- acious was the hold that the language of France had acquired, that it re- mained the language of the reports till the time of the Commonwealth. Nor did theLatin disappear from the records till the 4 Geo. II. c. 26 (1731) ; when, the oral discussions and reports being in English, the final triumph of the language was achieved, and Latin was prohibited as the language of the records also. It appears by this, that for nearly 300 years, viz. : from the 36th Edward III. (1362), to the time of the Commonwealth, English was the language of oral discussion ; Frencfi, of the reports, and Latin of the records; French also being mainly the language of the statutes from 1275, or thereabouts, till the accession of Richard III. (1483). The first laws in the English statute book, a,re in Latin. The earliest statute in the French language, is the Statutum de ^caccario, 51 Hen. III. (A. D. 1266) ; and it is remarkable not only that French continued to be used as the parliamen- tary language after it had been abolished in the courts of justice, viz. : from the 36 Edward III. (1362) to the 1st of Richard III. (1483), but still more that it should ever have been the language of the laws. Bar- rington says there is no other instance of atiy country in Europe per- AMERICAN DIVISION OF STATUTES. 29 In the early periods of Englisli legislation, all the statutes of each session of Parliament were consolidated and styled one statute, each being called merely a separate chapter. In the time of Henry VIII. it first became usual to prefix a distinct title to each particular chapter of the statute* In this country we have no knowledge of the division of statutes into ancient and modern, of which we have spoken. The only divisions which we rec- ognize, spring from the authority to which the stat- utes owe their origin. We have ,,^ The Colonial Statutes, passed by the governments of the old thirteen colonies, before the authority of the mother country was thrown off: The Acts of the United States, passed by the Federal Government : TJie Laws of the States, passed by the States re- spectively; and mitting their laws to be enacted in a modern Eu/ropecm language. See his remarks on the subject, under the head of the Statutum de Skaepa/rio, 51 Henry III. A. D. 1266, p. 57. Fortescue, writing in the reign of Henry VI., states that in the Uni- versities of England, the sciences are only taught in Latin, but that the law is taught in the three languages, English, French, and Latin. Leges terne illius in tripUd lingua addiscuntur, videlicet, Anglia, GaUica, et Laiina. Fortescue de Laudibus Leg, Angl. c. 48. Chaucer's slur at the Anglo-French in common use in his time is well known: ^ " And Frenche she spake full fetously, After the scole of Stratforde at Bowe, For Frenche of Paris was to her unknowe." Peologce to the Pkioeess' Tale. The great Poet showed ,at once his sense and patriotism, by using the English tongue. But so slow has been the growth of that strong and ner- vous speech which now bids fair to assert a successful claim to univer- sal dominion. See Tyrwhitt's Essay on Language of Chaucer. * Dwarris on Statutes, vol. 2, p. 463. 30 PUBLIC STATUTES. The Acts of the Territories, passed by the govern- ments of the new territories "before they are "admitted into the Union as States. We shall also have occasion to speak of the muni- cipal ordinances of our cities,, some of which are quite equal in importance to the acts of legislation of many of the States * When we come to consider statutes not as to tiieir origin, but with reference to their subject matter, we find the leading division to Ibe into ,1'uhliG or General, and Private or Special. PiMic or General Statutes are in England, those which relate to the Mngdom at large. In this country, they are those which relate to or bind all within the jurisdiction of the law-making power, limited as that power may be in its territorial, operation, or 'by con- stitutional restraints. Primate or Special Statutes relate to certain individuals or particular classes of men.f * Coke, Inst. 116, thus envuneiates the " diyers laws within the reahn of England:" (1) The law of the Crown. (2) The law of custom of Parliament. (3) The law of nature. (4) The common law. (5) Statute law. (6) Customs reasonahle. (7) The law of arms, war, and chivalry. (8) Ecclesiastical or canon law. (9) Civil law as in the courts of the constable and marshal. (10) Forest law. (11) The kw of marque. (13) The law merchant. (13) The laws and customs of the isles of Jersey, &c. (14) The law and privilege of the stannaries. (15) The laws of the east, west, and middle marches — ^now abrogated. t Mr. D warns, p. 463, gives the English parliamentary division of statutes as follows :— " The first and principal division is into general and special, pub- PUBUO STATUTES. 31 Laws wMcli concern tlie sovereign or lieir apparejit, all officers in general, tlie wtole spirituality, all lords of manors, such, also as relate to trade in general, are in England public acts. A statute concerning aU per- sons generally, tljough. with, relation to a special or lie and private. For the convenience of citation to a_ practicing lawyer, the printed book is again divided into public general acts; local and personal acts, declared public and to be judicially noticed ; private acts printed by the king's printer, and of which printed copies may be given in evidence ; an^ private acts not printed. "In Parliament are adopted other distinctions resting upon different grounds ; there, all bills whatever from which private persons, corporations, &c., derive benefit, are subject to the payment of fees, and such bills are in this respect denominated private bUls; while among the public acts are included some merely personal, as acts of attainder and patent acts. Of private acts, some, as has been already 'shown, are local, as inclo- sure acts, and some personal, viz. — such as relate to naturalization, names, estates, divorces, &c. ; of the latter, some are fiscal^ as bills for compounding debts due to the crown, &c. In the Lords, the term 'pri- vate ' is applied technically to estate bills only, all other bills being distin- guished as local and personal. " After they have received the royal assent, private bills are divided into three classes. 1. Local and personal acts, declared public. 2. Private acts printed by the King's printer. And 3. Private acts not printed. " Every local and personal act contains a clause declaring that ' it shall be a public act and shall be judicially taken notice of as such, and receives the royal assent as a public act." Those who are desirous to consider the subject of English statutes, and the ancient laws more particularly, will do well to consult the coUeo- tions of English statutes. There are several, and they are full, of very ciifious and interesting matter. The oldest abridgment of the English Statutes, comes no lower than the 81st year of Henry VI. (1452), -and is understood to have been printed .in 1481. It is known as The Old Abridgement, arid is in French. There are one or two other, later abridgments, also in French. The first English abridgment of the statutes, is that of John Eastell. This was was 6rst printed in the 19 Henry VIII. (1527). Petyt's great Abridgment of the Statutes belongs to the year 1642, and Pulton pubhshed an Abstract of them in 1577. Mr. John Cay published his valuable Abridgment of the Public Stat- utes, 2 vols, folio, in 1739 ; and in 1743—1766, Mr. Owen Ruffhead pub- lished his Statute^ at large, in 9 vols. 4to. This last edition is perhaps the most convenient and satisfactory for the purposes of reference. 32 PRIVATE STATUTES. particular thing, as appeals, assizes, or woods in a forest, is also a public act. On the contrary, such statutes as concern only a par- ticular species, thing, or person,— as, bishops only ; acts for the toleration of dissenters ; relating only to specific traders ; acts relating to only one particular place or to several particular towns, or to one or more particular counties, or to colleges only in the universities, — ^have been in England treated as private acts.* . In this country the disposition has been, on the whole, to enlarge the limits of the class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. The subject has been considered, as we shall hereafter see, with reference to the provisions of the federal Constitution ; and it has been held that the * Dwarris on Statutes, 464; Gilh. Evidence, 39, 40 ; PhiL on Evidence, 238 ; Com. Dig. Tit. Parliament, R. 6 ; 4 Kep. 76, b. ; Kirk vs. Nowill, 1 T. R. 118 ; 4 Rep. 79 ; 4 Co. 76, a. b.79. Mr. Dwarris, vol. ii. p. 464, gives at length the distinction in England between pubUc and private acts, as I have stated it in the text, and then proceeds : — " Thus the statute 21 Henry VIII. c. 13, which makes the acceptance of a second living by a clergyman an avoidance of the first, is a general law, because it concerns all spiritual persons (4 Rep. 79). "In a general act there may be a private clause (1 Salk. 168), as in the statute 3 Jac. I. c. 5 (10 Rep. 57, b.), the clause which gives the benefices of recusants in particular counties, to the University. So, a statute which concerns the public revenue, is a pubUc statute ; but some clauses therein,- may, if they relate to private persons only, be private ; for a statute may be public in one part and private in another. — 12 Mod. 249 ; 12 Mod. 613 ; Hob. 2^7; Sid. 24. " Yet, although a statute be of a private nature (as, if it concerp a par- ticular mystery or trade), yet if a forfeiture be thereby given to the king it is a public statute (R. vs. Baggs, Skin. 429). And a private act, if recog- nized by a public act, must afterwards be noticed by the courts as a general law. — 2 Term Rep. 569. " A general or public act, then, regards the whole community ; special or private acts relate only to particular persons or private concerns." PUBLIC STATUTES. 33 • establisTiment of towns and counties and their bound- aries, court houses, jails, bridges, and ferries, are all matters of public policy, and acts relating to them are of course public acts.* So, in this country it has been intimated that acts in relation to banks are to be held public,f the reasons assigned being that their bills are a legal tender unless specially objected to, and their charters concern the currency of the country. So in Massachusetts, acts creating public ^corporations, whether sole or aggregate, are public statutes. J Acts, too, which although aflfecting only a particular locality apply to all persons, are public acts. So, an act passed for the survey of timber in the county of Pen- obscot, in the State of Maine-,§ and an act relating to the preservatioji of a particular fish in Dunston river, in Massachusetts,! were each held public acts. Although a statute be of a private character, yet if it contain any provisions giving penalties to the State, or declares or punishes any public offense, it will be held a public statute. 1" Gfenerally, if the act affects in any way public interests, it will be held public. So, an act for the creation of a wotk-house in the county of Middlesex, and for the discharge of certain poor * Bast Hartford vs. Hartford Bridge Co., 10 Howard, 511 ; Mills vs. St. Clair Co., 8 Howard,. 569; Bass vs. Fontleroy, 11 Texas, 698; Common- wealth vs. Inhabitants of Springfield, 7 Mass. 9. t Bank of Utica vs. Smedes, 3 Cowen, 662 ; 2 R. S. 374, § 3. In Missouri also, 'Douglas vs. Bank of ^ssourij 1 Missouri E. 20 ; Young vs. Bank of Alexandria, 4, Cranch, 384. J Portsmouth Liyery Co. vs. Watson^ 10 Mass. 91. § Pierce vs. Kimball, 9 Greenleaf, 54. II Burnham vs. Webster, 5 Mass. K. 268 ; Commonwealth vs. McCurdy, 5 Mass. 324. T Eex vs. Bagg, Skin. 429 ; Case of Rogers, 2 Greenleaf, 303 ; Heridia vs. Ayres, 12 Pick. 334. • 3 34 PRIVATE STATUTES. • prisoners, were held public acts* If a private act be recognized by a public statute, it thereby becomes a public act.f In order accurately to comprehend the distinction between public and private statutes, it is important to understand their incidents. Courts of justice are bound, eoo-offido, to take notice of public acts without being fuUy set forth. The tribunals are bound to give them fuU effect, so soon as they are called to their attention. They cannot, therefore, be denied by a plea of nul tiel record; and the existence of a public act is determined by the judges themselves, who, if there be any diflB.- culty, are to make use of ancient copies^ transcripts, books, pleadings, or any other memorial, to inform themselves-J Of Private Acts, on the contrary, the judges are not bound to take notice unless they be previously ghown and pleaded. They may, consequently be put in issue and tried by the record. Such parts of pri- vate acts as are essential to an action* or defence, must be specially recited in pleading.§ The result of these rules is, that the courts always decide whether an act be public or private. Such are the general principles. It is not meant, however, that courts of justice are always bound to * Rex vs. Pawlyn, Sid. 209, Bacon Ab. Stat. F. ; Jones vs. Axen, 1 Lord Baymond, 119. t Rogers' Case, 2 Greenl. 303 ;,BuUer's N. P. 224, Bacon Ab. SUt P. note. X Dwarris, 467, Kent Com. v. ii, p. 460 ; Trotter vs. Mills, 6 Wend'. 512. § Dwarris, p. 465. It is probable, however, that these rules are mate- mlly modified in this country, in those States which have adopted the re- cent innovations on the common-law system of pleading. The code of pro- cedure of New York, provides (§ 163) " that in pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof." PRIVATE STATUTES. . 35 take notice of general acts, and that parties will in all cases have the benefit of them unless they set them out in the pleading, and show that they, rely on them. Thus, it is necessary to set out and rely on the statute of limitations if the defendant intends to have the benefit of it* So as to the statute against usury, although under the general issue in assumpsit, this de- fence might he set up, it could not in debt on bond, unless specially pleaded.f In England, however, by the pleading rules of Hil. Term, 4 William IV., these technical distinctions were very much done away, and a general rule declared, that if a good cause of action at common law appear in the declaration, the defendant must plead any statutable illegality iq. the contract on which it is founded. J The instances which we have been here noticing relate, it will be "observed, to defences. As a general rule, it may be safely assumed that whether the ground of defence^arise on a public or private statute, it must be so far stated as to refer to the act, and ap- prise the plaintiff of the resistance which he is to meet. In regard to declarations or complaints, the original distinction holds good, the courts being bound to take notice of and give effect to public general laws whether pleaded or not, and not' obliged to do so in reg£|rd to private laws unless distinctly set forth. Private acts do not bind or conclude third parties or strangers ; and they are not bound to take notice of a private act, though there be no general saving clause of * Dwarris on Statutes, 467 ; Puckle vs. Moor, 1 Vent. 191 ; Lee vs. Rogers, 1 Lev. 110 ; Gould vs. Johnson, 2 Lord Baym., 838. This was at first doubted. + Dwarris on Statutes, 467 ; Hob 72 ; 5 Rep. 92 ; Mason vs. Fulwood, 1 Lutw. 466 ; Lord Bernard vL Saul, 1 Strange, 498 ; BuU N. P. 152, S. 0. X Dwarris on Stat. 469, for fule and exceptions. 36 DECLARATORY STATUTES. th^ir riglits. This is a rale of ancient date, and has been steadily adhered to * In England it is held that words of a statute apply- ing to private rights, do not affect those of the crown. This principle is well established, and is there con- sidered indispensable to the security of the public rights. It has been recognized also in this country ; and. on this ground it was held in Pennsylvania, in regard to Windmill Island, in the Delaware river opposite Philadelphia, though it was claimed under a legislative grant, that as the rights of the com- monwealth were not ceded by the act, no title was acquired as against the State.f But in this country generally, I should doubt whether this con- struction could be safely assumed as a universal rule. The English precedents are based on the old feudal ideas of royal dignity and prerogative ; and where the terms of an act are sweeping and universal, I see no good reason for excluding the government, if not specially named, merely because it is the government. The next great division-line to which our at- tention should be directed, is that between those statutes which simply declare or explain the law or the right as it stood previous to the statute, and those which introduce new legislative provisions. The former are termed Deda/ratory ; for the latter, no general phrase has been adopted. For want of a better term, I venture to call them Innovating, or introductive of new matter. It will be borne in mind that the earliest legislators * ■ ■ Lucy vs. Levington, 1 Vent. 175; Kent Com. i., p. 459; Dwarris, vol. iL p. 471 ; Barrington's Case, 8 Rep. 138 ; Jackson rs. CatUn, 2 J. R. 248 ; S.C. 8 J. R. 406. + Jones vs. Tatham, 20 Penn. R. 399. DECLAEATOEY STATUTES. ST found a great body of law estaUisfied under cover and color of custom. Sucli rules are now growing up every day around us. "WTien the attention of the law- ilaaking power is turned to new subjects, and a law is enacted in regard to them, defining rights or imposing prohibitions which are new on the stat- ute book, it often becomes a question whether the new few is declaratory of the old, or whether it is in- tended to introduce any new principle. In this laitter case, as^I have said, for want of a settled terminology, I call it innovating. Thus, for instance, to give an idea of a declaratory act, an old English law, 25 Edward III., 2, De natis ultrd mare^ recites, " Because that some people be in doubt if the children born in parts be- yond the sea, out of the ligeance of England, should be able to demand any inheritance withitf the same ligeance or not," and then goes on to enact that the children of subjects born abroad, should be deemed liege subjects of the English crown. And it has been held that this does not establish any new rule, but that the act was a merely declaratbry statute, and that 'the rule was the same at common law.* Declaratory acts, says Mr. DwarriSjf are made when the old custom of the jnngdom is almost fallen into disuse, or become disputable, in which case the Parliaifient thinks proper in perpetuum rei iestimoniuniy and for avoiding all doubts and difficulties, to declare what the conimon law is and ever hath been. Declar- atory acts are also passed to explain doubts in previous statutory provisions^ and they are then what the old. * Dyer's Reports, 324 a. ; Bacon vs. Bacon, Oro. Oar. 601 ; Doe dem. Thomas ns, Acklam, 2 B. and Ores. 779 ; Lynch vs. Clarke, 1 Sa,ndf. Ch. B. 683, 660 ; 2 Kent Com. 50, 51. t Vol. ii., p. 473. 38 APFIEMATIVE STATUTES. writers on the Roman law called acts of authentic interpretation. A very nice question arose in regard to declar- atory statutes and their effect. The old rule was, that a custom could be alleged, or prescribed against the ■ common law ; that is to say, although the common law prohibited a particular act, yet as the common law is but custom, if particular and positive evidence«could- be shotv^n of the antiquity of the practice of the act complained of, the custom might be set up in defence, and would prevail. But if a statute be passed de- claratory of the common-law rule, and prohibit the act in question by positive enactment, can the particular custom still be alleged ? This seems so, if the statute be in affirmative terms ; but if in negative terms, whether declaratory of the common law or introduc- tive of a new law, it seems that no j)rescription or custom can be set up against it.* This leads us to the consideration of the division of statutes into affirmative and negative, terms which readily explain themselves. Affl/rmatiwe Statutes are statutes passed in the affirmative ; and it has been held, with that reverence for the ancient common law which characterizes the early decisions of the English courts, that a statute containing a mere affirmative provision, without any negative expressed or implied, does not alter any com- mon-law rule existing in regard to its subject matter before the statute. Thus, by the 43 Edward III c. ii. it was enacted " that the panel of assize shall 'be arrayed four days before the day of assize;" yet if this be done two days before the day of * Dwarris on Statutes, p. 475, 477 ; Lord Lovelace's Case, "W. Jon. 270 ; Jones vs. Smith, 2 Bulst. 36 ; King vs. Bishop of London, Shower, 420. AFFIRMATIVE STATUTES. 39 assize, it is good, for two days are sufficient at common law, and when the statute is affirmative it does not toll the common kw* So, it is said that a statute authorizing a tenant in fee simple to lease for twenty-one years, would not restrain him from making a lease for sixty years ; for this power he had at common law, and there are no negative words.f So, where a remedy is given by an affirmative statute, if a remedy previously existed at common law, and is not prohibited by express words, it is nat takeji away, but the party has his election.^ Thus, it has been held in this country, that where- a statute authorizing the erection of a miU-dam, provided a summary mode of appraising and paying the damages resulting front such erection, that the common-law redress by actiQn never- theless stUl remaiQed.§ If, on the other hand, the statute does not merely aflBx a new penalty- but intro- duce new rights, then there can be no doubt that the statutory remedy must* be strictly followed, j If a new power be given by an affirmative statute, to a cer- tain person, by a particular designation, although it be an affirmative statute, still, all other persons are in general excluded from the exercise of the power, since ea^essio , unius est exclusio. alt&rius. Thus, if an action founded upon a statute be directed to be brought before, the justices of Glamorgan in Sessions, it catanot be brought before any other person or in any other place.^ So by the Scotch law, "stat- *Dwarris, p. 474; 3 Inst. 200 ; Bro.Tarl. pi. 70. t Dwarris, p. 475. I Dwarris, p. 474. , § Crittenden vs. Wilson, 5 Cow. 165. See also, Livingston vs. Van Jngen, 9 J. R. 507 ; Bardan vs. Crocker, 10 Pick. 383. - I Lang vs. Scott, 1 Black, Ind. 405 ; Almy vs. Harris, 5 J. K. 175. T 11 Rep. 59, Foster's Case, 64. iO NEGATIVE STATUTES. Titory provisions cannot be supplied by ' equipol- lents.' "* But the designation of a certain person to whom a new poVer is given, does not exclude another person who was by a precedent statute authorized t& do it, from doing the same thing.f Negative Statutes are so called because they are penned in negative terms, — as the statute of Marlbridge, which is " Won ideo puhialAir dommus per redemp- tionem /" and Magna Charta, " Nullus. capiatm' aut im- prisdneiMfP In regard to these, the rule is that if a subsequent statute, contrary to a former, have negative woMs, it shall operate as a repeal of the former ; and a negative statute controls and takes away any common- law right or remedy previously existing. J " The dif- ferent operation of affirmative and negative statutes,** says Mr. Dwarris,§ is thus illustrated : — " If a statute were td provide that it should be lawfuj for tenant in fee simple, to make a lease for twenty-one years, and that such lease should be good, this affirmative statute could not restrain him from making a lease for sixty years; but the lease for tWenty-one years would be good, because it was good by the common law, and to restrain him it ought to have words negative, — as that it shall not be lawful for him to make a lease for above twenty-one years •, or, that a lease for more shall not be good." So, an affirmative statute does not repeal a precedent affirmative statute, and if the substaice of both may stand together, they should both be enforced. So, the statute 23 Elizabeth, c i. which gave £20 per month against any recusant, did not take away the * Alison's Practice. 1 11 Rep. 39, Poster's Case, ib. 64 ; Dwarris, p. 478. % Bro. Pari. pi. 72. § Page 475. REPEALING STATUTES. 41 penalty of 12d for every Sunday, given by statute 1 Elizabeth, c. ii.* The next head ii that of Memedial Stai/aUs. — Eemedial acts are those made from time to time to supply defects in the existing law, whether arising from the inevitable imperfection of human legislation, from change of circumstances, from mistake, or any other cause. The object is some- times effected by imposing restrictions^ in which case the statute is a restraining or disabling statute ; some- times by granting powers, in which case it is an enabling or enlarging statute.f Penal Staimtes.-^'Pe-n.a]. statutes are acts by which a forfeiture is imposed for transgressing the provisions of the act. A penal law may also be remedial, and a statute may be penal in one part and remedial in another.J We shall have occasion hereafter to notice the incidents of penal statutes, but we may here men- tion the general principle that a penalty implies a pro- hibition, though there are no prohibitory words in the statute.§ R&pealmg Statutes are revocations of former statut- ory enactments ;| an(|^the effects of the repeal of laws, * Dwarris, 474, 11 Rep. 63. tDwarris, p. 478. In illustration of this ctecision and distinction, Mr. Dwarris says, — " A statute which gave bishops and other sole ecclesiastical corporations (except parson^ and vicars) a power of leasing which they did not possess before, viz. : Stat. 32 Henry Till. c. zzxviii. was an enabling statute. The Stat. 13 Elizabeth, c. x. which afterwards limited that power, is on the contrary a disabling statute." — Dwarris, p. 479. X 1 Wils. 126. § Griffith vs. "Wells, 3 Denio, 226. I Mr. Dwarris says, p. 478, " Repeal acts are revocations of former stat- utory laws authorizing and permitting the parties to whoni the repeal extend's, to forbear from acts which they were before commanded to do. Hence they are often named permissive laws; or, more briefly, iiw- missiom." This, however, seems a very narrow definition of a repeal act It 43 FOREIGN STATUTES. we shall have occasion to notice hereafter, when we come to speak of the Incidents of Statutes.* It may be useful to close this branch of our subject by stating briefly the division of statutes according to the continental jurists, with a brief sketch of their general nature and distinctive qualities. But it is necessary to premise, that by statutes the civil- ians do not mean merely the positive le^lation which in England and America is known by the same name, — viz. Acts of Parliament and of other legisla- tive bodies, as contradistinguished from the common law, — but the whole municipal law of the state, from whatever source emanating. Sometimes the word is used by civilians in contradistinction to the Koman Im- perial Law, which they sometimes style, by way of eminence, " The Common Law," since it constitutes the general basis of the jurisprudence of all conti- nental Europe, modified and restrained by local cus- toms and usages, and positive legislation. Paul Voet says, " Sequitur jus particulare, seu non cormnwWy quod uno vocabulo usitatissiim, Statutum dicitur^ quasi statum pubUcum tuens. Merlin |B,ys, " Oe term statui, s'appUque en general a toutes sortes des his et des regie- ments ; chaque disposition d''un^ hi est un statwt, — qui permet, ordonne, ou defend quelque chose. Statutes are divided by the civilians into personal, real, and mixed. Personal statutes are those which act upon the person directly, as their subject or object; would be difficult, for instance, to find any permission contained in the act repealing the general bankrupt law of the United States. * Mr. Dwarris, in his very valuable work, makes one class of statutes to consist of those which are void. It seems hardly proper to make a class of statutes which are in the eye of the law no statutes at all ; and we shall con- side^ this subject under another head, when speaking of the restrictions upon Legislative Power. CONFLICT OF LAWS. 43 fixiog and determining its state and condition, as Witt reference to birth, legitimacy, freedom, majority, &c., without mentioning things or property, except incidentally. These personal statutes are of general force and obligation everywhere. Keal statutes are those which have for their direct object or motive, things or property, whether mov- able or immovable, and independently of the personal state of the proprietor or possessor; as laws which concern the disposition which one may make of what belongs to him, whUfe living or by his will. Mixed statutes affect both persons and property, and constitute a third class, which it has been found neces- sary to admit ; there being so many statutes which are neither purely personal nor purely reial, or in regard to whichit is doubtful whether the personal or real char- acteristics prevail. The rules for distinguishing the several kinds, and the application of these rules to the particular case, are much discussed and controverted by th^ civilians, who have treated the subject with theiy accustomed learning, acumen, and metaphysical subtlety. In iis defmendis mvrum est qua/m sudcmt doctores. But this subject has been so fully discussed in that which is perhaps the greatest monument of the intel- lect and the labors of the late Mr. Justice Story, that I win here only refer to the " ComFLiOT of Laws." It would encumber the text too much to go at length into any antiqua- rian discussion as to the history of the early legislation of this country ; but I cannot refrain from giving, in this note, a brief sketch of the mode in which the first laws of at least one of the Colonies were framed^ The State of Massachusetts has, with a comiftendable liberality and re- spect for its early history, recently (1853-1855) published, in six handsome 4to. Tolumes, the legislative records of the Colony, from 1628 to 1686. 44 EARLY COLONIAL LEGISLATION. "Records of the Governor & Company of the Massachusetts Bay, in New Jlngland, printed by order of the Legislature, edited by Nathaniel B. Shurt- leff." They are extremely valuable, and throw great light not only on the character but the formation of the laws of the infant State. The early and constant attention to the subject of legislation, the care shown and the modes devised to secure a representation of all the interests to be provided for, the intermixture of the "Word of God" \yith their temporal adminis- tration, aiid the eminently equal and republican nature of the whole pro- ceedings, are of great interest with reference to the formation of some of the earliest institutions of our empire. The charter of Charles L to Sir Henry Bosewell and others, founded on the cession from the Plymouth Council, and creating the corporation called "The Governor & Company of the Mattachusett Bay in Newe England," was granted in March, 1628. , It contained the following pro- vision as to the. making of laws for the new State. (Colony Records 1, p. 16.) "And wee doe of our further grace, certen knowledg, and mere mocon, give & graunt to the Saide Governor & Company and theu: successors,, that it shall and will be lawful to and for the Governor, or Deputie Governor & Buch of the Assistants & Freemen of the saide Company for the Tyme being as shall be assembled in any of their Generall Courtes aforesaide, or in any other Courtes, to be specially sumoned and assembled for that purpose or the greater part of them, (whereof the Governor & Deputie Governor and six of the assistants to be alwaies seaven) from tyme to tyme to make, or- deine & establishe all manner of wholesome and reasonable orders, LaweS Statutes & ordinnces, du:eccons & instruccons not contrarieto the Uiwes of this our realme of England as well for setting of the formes & ceremonies of government & magistracy fitt & necessary for the said plantacon & the inhabitants there & for nameing & stiling of all sortes of officers both supe- rior and inferior which they shall flnde needefuU for that government and plantacon Sf the distinguishing & setting forth of the severall duties powers and lymy tte of every such office & place and the formes of such oathes war- rantable by the lawes & statutes of this our realme of England as shalbe respectiveUe ministred unto them for the execucon of the said severall offi- ces and places, as also for the disposing and ordering of the elecons of such of the said officers as shallbe annuall & of such others as shallbe to succeede in case of death or removeall & ministring the said oathes to the newe elected officers and fbr imposicons of lawfull fynes & mulcte, imprisonment or other lawfull correcon according to the course of other corporacons in this our realme of England and for the directing ruling and disposeing of all other matters & thinges whereby our said people inhabitante there male be soe religiously peaceablie & civilly governed as their good life and orderlie conversacon male wynn and incite the natives of country to the knowledg and obedience of the onlie true God & Saviour of mankinde & the Christian fayth which in our royal intencon and the adventurers free profession is the principall end Of this Plantacon." EARLY COLONIAL LEGISLATION. 45 At a meeting of the Oompany, held at London on the SOth of April, 1629, the Governor and Oompany were directed "to make ordeyne and establish all manner of wholsome & resonable orders, laws, statutes, ordinan- ces, directions &instrucktyons not contrary to the lawes of the Realme of England fibr the present gouernment of our plantacon and the inhabitants residinge within ye lymitts of our Plantacon ; a coppy of all which orders is from tyme to tyme to bee sent the Comp. in London." — [Colony Records, L, p. 38.] This charter created a mere Commercial Company, but in 1630 the seat of government of the association was transferred to the Colony. . With- in four years, says Mr. Bancroft, it was determined that the whole body of the freemen should be convened to elect the magistrates, and that to them, with the deputies of the several towns, the powers of legislation should b« intrusted. And thus, in the historian's expressive language, " the trading corporation was become a representative Democracy." — Bancroft, i., p. 363. I find, however, under date of 19th October, 1680, the following entry. If this be the change to which Mr. Bancroft refers, it was one of the first steps taken after the transfer of the seat of government to this country. At a general court holden at Boston the 19th of October, 1630, "it was ppounded if it were not the best course that the fireemen should have the Power of chuseing Assistants when, there are to be chosen & the Assistants from amongst themselves ta chuse a Gounr. & Deputy Gounr. whoe with the Assistants should have the power of makeing lawes and chuseing officers to execute the same. This was fully assented imto by the gen'all vote of the People and ereccon of hands. "-T-Colony Records, i., p. V9. A collection of the orders or laws very soon became a subject of consid- eration. On the 4th March, 1634, Winthrop and Bellingham appointed a committee to prepare a revision of "all orders already made," and report to the next General Court.— C. R., i., p. 13T, On the 6th May, 1635, the Governor, Deputy Governor, Mr. Winthrop and Mr. Dudley " are deputed by the court to make a Draught of such Laws as they shall iudge needefuU for the well ordering of the plantacon & to psent the same to the Court."^C. R., i., p. 147. On the 25th May, 1636, it was ordered (i., p. 174, 175) as follows: " The GbuM., Deputy Gounr., Tho Dudley, John Haynes, Rich: Belling- ham Esqr. MrCotton, Mr Peters, & Mr Shepheard, are intreated to niake a, draught of Lawes agreeable to the word of God wch may be the fiundamen- tall of this comonwealth and to present the same to the next Genall Court. And it i^ ordered, that in the taeane tyme the magistrates and their a,ssoci- ates shall pceede in the courts to heare and determine all causes according to the lawes nowe established & where there is noe law then as neare the law of God as they can, and for all business out of Court for wch there is noe certaine rule yet sett downe those of the standing counsell or some two of them shall take order by their best discrecon that they may be ordered & ended according to the rule of God's Word, and to take care for all military affaires till the nexte Genall Court." 46 EABLY COLONIAL LEGISLATION. On the 12th March, 1637 (0. R., i.'222) it was ordered as follows: " For the well ordering of these plantacons now in the begining thereof it haveing been found by the little time of experience wee have heare had that the want of written Lawes have put the court into many doubts and much trouble in many perticuler cases this Court hath therefore ordered that the freemenof every towne (or Some part thereof chosen by the rest) wthin this iurisdiction shall assemble together in their severall townes & collect the heads of such necessary and fundamentall lawes as may bee suta- ble to the times and places whear God by his pvidence hath cast us, & the heads of such lawes to deliver in writing to the Governor for the time being before the 5th day of the 4th month called June next to the intent that the same Governor, together wth the rest of the standing counsell and Richrd Bellingham Esq, Mr Bulkley, Mr Philips, Mr Peters, and Mr Sheopard elders of severall churches, Mr Nathaniell Ward, Mr WiUi : Mr Spencer & Mr Wilh Hauthorne or the maior part of them may upon the survey of suche heads of Lawes make a compendious abrigment of the same by the Generall Court in autume next adding yet to the same or detracting therefrom what in their wisdomes shall seeme meets that so the whole worke being pfected to the best of their skill it may bee psented to the Generall Court for confir- mation or reiection as the Court shall adiudge." In 1640, 13th -May, it was ordered as follows: "Whereas a breviate of Lawes was formerly sent to be considered by the Elders of the Churches and other freemen of this Comonwealth it is now desired that they will endeavour to ripen their thoughts & counsells about the same by the Generall Court in the next 8 mo: ." — C. R., i., p. 292. Ob the 7th October, 1641, " The Gov. & Mr. Hauthorne were desired to Speake to Mr. Ward for a Coppey of the liberties & of the Capitall lawes to bee transcribed-sfc sent to the Generall townes." — C. R., i., p. 340. It appears from this that the laws were still in manuscript only, and so we find [C. R., v. iL, p. 14] that on the 14th June, 1642, " Goodman Stowe is granted 100 acres of Land where he can find it convenient wthout piudice to any towne for recompence of his paines in writing the lawes already & to write such as are still to bee written." On the 7th March, 1643, the subject of a modification of the Laws is again considered & conunitted to the Govr., Mr. Dudley, Mr. Hibbens, the Magistrates residing at Ipswich and Mr. Bellingham. — C. R., ii., p. 61. On the 14th May, 1645, the subject seems to have been more systemati- cally taken up, and Committees of six members each are raised froni the respective counties of Suffolk, Middlesex, and Essex, " to consider & draw up a body of Lawes to present theili to the consideration of the next Gen- eral Court."— C. R., ii., p. 109. On the 1st of October, 1645, these Committees are called together at times and places designated for the accomplishment of the work so "that the Courte may pceede thereupon to satisfy ye expectation of the Counfry in establishing a Body of Lawes." — C. R., v. ii., p. 128. On the 22d May, 1646, is made the following entry : EARLY COLONIAL LEGISLATION. 47 " This Corte thankfully accepts of ye labors returned by ye sevrall eomittees of ye sevrall shfeires & being very unwiling such pcious labors should fall to ye ground wthout yt good successe as is genrally hoped for, have thought it meete to desire Richrd Bellingham Esqr, Mr Symonds, Leift Duncan, Leift Johnson, &' Mr Ward do cause each eomittees returne about a body of lawes to be transcribed, so as each comittee may have ye sight ofye others labors, and that ye psons mentioned^ in this order be pleased to meete together at or before ye 10th of August at Salem or Ips- wich, & on their pusing & exanlimng ye whole labors of all ye eomittees, with ye abreviation of ye lawes in force, wch Mr Bellingham tooke greate store of paines & to good purpose, in and upon ye whole & make return to ye next session of this Corte, at wch time ye Oort intends, by ye favor and blessing of God, pceed to ye establishing of so many of them as shalbe thought most fit for a body of Lawes amongst us." — 0, R., vol. ii., p. 157. On the 4:th November, 1649, this entry is made : " The Oorte, being deeply sensible of ye earnest expectation of the coun- try in genrall for this Gorts compleating of a body of Lawes for ye bettr & more ordely wielding all ye affaires of this comon wealth, wiling also to their utmost to answer their honest & harty desires therein, unexpectedly p'vented by multitude of othr pressing occasions thinke fit & necessary yt this Corte make choyce of two or three of or honored magistrats, wth as many of ye depu- ties to puse, examine, compare, transcribe, correct, & compose in good order all ye liberties, Lawes, & orders extant wth us, & furthr to puse & pfect all such othrs as are drawne up & to psent sudh of them as they find necessary for us, as also to suggest what they deeme needfull to be aded, as also to consider and contriue some good methode & order, titles, & tables for com- piling ye whole, so as we may have ready recourse to any of them upon all occasions, whereby we may n^anifest or uttr disaffection to arbitrary.gov- ermt, & so all relations be safely & sweetly directed & pfected in all their iust rights ^nd priviledges, desireing thereby to make way for printing or Lawes for more publike & pfitable use of us and or successors. Or honored Govmr, Mr Bellingham, Mr Hibbens, Mr Hill, & Mr Duncan, as a comittee for ye business above mentioned, or any three of them meeting, ye othr haveing notice thereof, shallbe sufficient to carry on ye worke." — C. R., vol. ii., p. 168. On the 26th May, 1647, the Court finding that the Committee for per- fecting the laws have " through streights of time & other things interven- ing," not completed their work, commit the task to another committee.-^ 0. R., vol. ii., p. 196. Oh the 11th November, 1647, it appears that the work was done, and arrangements were made about printing. — C. R., vol. ii., p. 209. And it is farther "agrefed by ye Corte to ye end We may have ye bet- ter light for making & pceeding about laws yt yr. shal be these books fol- lowing poured for yr use of ye Courte from time to time : Two of Sir Ed- ward Cooke upon Littleton ; two of ye Bookesof Entryes; two of Sir Ed vrd 48 EARLY COLONIAL LEGISLATION. Oooke upon Magna Charta ; two of ye Newe Tearmes of ye Lawe ; two Dalton's ^Tustice of Peace; two of Sir Edwd Cook's Keports." — Vol. ii., p. 213. On the same date, it appears that the " Lawes are now in a manner agreed upon," and a Committee is appointed in regard to alterations. — C. R., ToL ii., p. 217, 218. On the 10th May 1648 [0. R., vol. ii., p. 346], they are "at presse." And on the 27th October, 1648, the price of the printed copy is fixed. — 0. R., vol. ii., p. 262. I .have thus traced the growth of the first body of printed laws in Massa- chusetts; and on the 17th October, 1649, the Court "fijiding by experience the great benefit that doth redoimd to the Court by putting of the law in |H-int," direct the printing of all laws passed since the first publication.^ C. B., vol, ii, p. 286. CHAPTER III. THE PAETS OF STATUTES. Blaokstone's Enumeration of the Parta of a Statute : Practical Division— Title— Commencement— Preamble — Purviev — Clauses — ProTisoes — Bj^oepUons-^ Schedules. Blackstoio! says * that every law may be said to consist of four several parts : The Deda/ratory^ or that which defines the rights to he observed and the wrongs to be eschewed ; The Dvrecfory, commanding the subject to observe the right and abstain from the wrong ; The Remedial, pointing out the method to recover the right or redress the wrong ; and The Vindicatory, or sanction, declaring the penalty to be inflicted for a violation of the law. This division is correct and philosophical, but has little practical value. A statute for practical purposes is divided into the following parts : — The Title. The Gommencement. The Preamble. The Purview, or Body of the Act. Special Glauses. Provisoes. Exceptions. Schedules. * Introduction, § 2. 50 THE TITLK the Title.— Ike custom of prefixing titles to stat- utes, was not regularly introduced prior to the eleventh year of the reign of Henry VII. ; though particular in- stances may have occurred before that time. The title was formerly called the Eubric, from being written in red characters.* In the early English cases, the courts held the title to be no part of the statute ; " no more," says Lord Holt, "than the title of a book is part of the book."f This is not a very good illustration. The reason of the rule in England is better stated by Mr. Dwarris, who says that the title is usually framed only by the clerk of that house in which the bill first passes, and is seldom read more than once.J In accordance with this, the title has been said to afford no clue to the legislative intent.§ But it now seems that where the meaning of the body of the act is doubtful, the title may be relied on as an assistance in arriving at a conclusion.! The title, however, being, in strictness, no part of the act in a legal sense, it would be absurd to attempt to use it for the purpose of restraining or controlling any positive provision of the act. It can only be used for the fact of the maker's having given the law a certain name, if that fact can render any assistance in doubtful cases. Taken in connection with the other parts of the statute, the title, where the intent is not plain, may somewhat assist in removing ambiguities.^ * Dwarris, p. 500 ; Chanceus. Adams, Hard. 324. t Rex vs. WiUiams, I. W. Bl. 85; Poulter's Case, 3 Rep. 33 ; "Wills vs. Wilkjns, 6 Mod. 62. X Dwarris, p. 601. 'I § 1 Ambler, 22. il Stradling vs. Morgan, Plowden, 203 ; King vs. Cartwright, 4 T. R. 490; King vs. George Marks, 3 East. 160. T Dwarris, p. 502. THE TITLE 51 In this country it has been said, on the same prin- ciple,^ though the title cannot control the plain intent of the statute, that where the words are doubtful, it may be resorted to to remove ambiguities* "It seems to me, on the whole, however, that the original rule is the true one. The title is rarely a matter of legislative debate or scrutiny ; and though it may, and doubtless does, give a general idea of the purport of the act, still, it is precisely in cases of nicety* and doubt that it cannot with safety be relied on.f In another point of view, the title of the statute has recently received much importance in some of the States of the Union. The 16th Section of the 3d Art. of the Constitution of New York, adopted in the year 1846, declares that "No private or local bill which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title." The design of this constitutional provision has been judicially declared J to have been " to prevent the uniting of various objects, having no necessary or nat- ural connection with each other, in one bill, for the purpose of combining various pecuniary interests in support of the whole, which could not be combined in favor of either by itself ;"and^ on the ground that the provision was to be so construed as to reach this mis- chief alone, it has been held, that an act entitled " an Act in relation to the fees and compensation of certain officers in the city and county of New York," by which salaries were given to four officers of that city, in place * U. S. vs. Fisher, 2 Cranch R. 386 ; TJ. S. vs. Palmer, 3 Wheat. 610 ; State vs. Stephenson, 2 Bailey, 334'; Burgettjjs. Burgett, 1 Ham. 219. t See reference to Title for aid in case of ambiguity ; Williams vs. Wil- liams, 4 Seld. S25, 535. t Conner vs. The Mayor, 1 Seld. 285, 293. 52 THE TITLE. of the fees of their respective offices, and providing also that the fees should be paid into the city treasury and the salaries paid out of them, even assuming it to be a private bill, was not within the constitutional restriction above referred to ; that it embraced but one subjectj and that the subject was sufficiently expressed in the title* So again, where an act was passed entitled " For the relief of certain parties," and it contained, besides ^provisions for their relief, a clause repealing another statute on the same matter, which had been acted on and therefore ceased to be operative, it was held, that this did not add another subject to the bill.f So, an act entitled " an Act to enable, &c* to raise money by tax," does not violate this provision, although the law contains special provisions, and designates the objects for which the tax is to be levied ; and the Court of Appeals said, " There must be but one subject; but the mode in which the subject is treated, and the rea- sons which influenced the Legislature, cannot and need not be stated in the title, according to the letter and spirit of the Constitution.''^ The purpose of the pro- vision was, that neither the members of the Legisla- ture nor the public should be misled by the title, not that the latter should embody all the distinct pro- visions of the bill in detail. The Constitution of the State of Texas contains the same provision, and makes it applicable to all bills, whether public or private. " Every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title."§ And in that State * Conner vs. The Mayor, 1 Seld, 285. t Town of Guildford vs. Cornell, 18 Barb. 640. t Sun Mutual Insurance Co. vs. The Mayor, 4 Selden, 241. § Cons, of Texas, 1845, Art. vii. § 24. THE COMMENCEMENT. 53 also, it is held that the provision is to be liberally- construed. So, where an act which was entitled, *' to regulate Proceedings in the County Court," gave an appeal from the County Court to the District Court, and regulated proceedings therein, it was held that this was not within the mischief contemplated by the Constitution, and that the act was valid.* Tike Corrnnencemenf.— This clause, with which where there is no preamble each bill commences, varies accord- ing to the character of the authority from which the law emanates. In England, says Mr. Dwarris, The mode of stating the enacting authority, has Varied at different times,. Regulations having the force of laws^ assumed multiform shapes, appearing sometimes as ordinances ; then as grants, patents, and charters ; again, as mere directions or prohibitions of the king, but sanctioned, nevertheless, directly or indirectly, by the Lords and Commons. Formerly, the bill was in the nature of a, .petition, and these petitions were entered upon the Parliament roll; and upon these rolls the royal assent was likewise entered. Upon this ground- work the judges used, at the. end of the Parliament, ' "to draw up the act of parliament into the form of a statute, which was afterwards entered upon the statute roll. In Henry 6th's time, the former method was altered, and bUls continent's formam * Murphey vs. Menard, 11 Texas^ 673. The evil which these constitutional proyisions are intended to correct, is not of recent date. Mr. Barrington says (Obs. on Statutes, p. 44i9), " It becomes indeed, impossible, when statutes relate to matterS; of a very mis- cellaneous nature, that the title can be coextensive with the views of the Legislature. It' is, therefore, to be wished that such acts of Parliament were distinctlaws, arid not thrown together in that very strange confusion which hath now obtained the name of a Hodge Podge Act." 54 THE PREAMBLE. actus Pmiiamenti, came to be at once brought into tlie house* The established form of the commencement of a statute in England, now is: "Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that," &c. • The enacting clause of the laws of the American Union, runs thus:' "Be it enacted by the Senate and House of Representatives of the United States of Am- erica, iu Congress assembled." The enacting clause in the States differs with their different organization. In New York, it runs thus: "' The People of the State of New York, represented in Senate and Assembly, do enact as follows." The Preamble. — Both in England and this country, it was at one time a common practice to prejfix to each law a preface, prologue, or preamble, stating the motives and inducements to the making of it ; but it is not an essential part of the statute, and is now fre- quently, if not generally, omitted. "With the" civilians, the preamble is a matter of much consequence. They say, Gessante legis procemia, cessat et ipMlex. In our law it holds a far lower rank. A preamble is not only not essential and often, now indeed generally, omitted, but it is without force in a legislative sense, being but a guide to the intentions of the framer. Still, as such guide, it is often of import- ance. It is in this sense that, as Lord Coke and Lord Bacon say, the preamble is a key to open the under- standing of a statute. " The influence of the preamble," says Mr. Justice * Dwarris, p. 503. THE PREAMBLE. 65 Story, in his Commentaries on the Constitution of the United States, " has a foundation in the exposition of every code of written law, upon the universal principle of interpretation, that the will and intention of the Legislature is to be regarded and followed. The pre- amble is properly referred to when doubts or ambig- uities arise upon the words of the enacting part. The preamble can never enlarge, it cannot confer any powers per se: Its true ofl&ce is to expound powers conferred, not substantially to create them."* " The preamble to a statute," say the Supreme Court in Illinois, "is no part of the act, still it may assist in ascertaining the true intent and meaning of the Legislature."f In the modern English cases, it is said that the pre- amble may be used to ascertain and fix the subject matter to which the enacting part is to be applied. J . So, the purview or body of the act may even be restrained by the preamble, when no inconsistency or contradiction results.§ But it is well settled that where the intention of the Legislature is clearly expressed in the purview, the preamble shall not restrain it, although it be of much narrower import. | "If the words of this section," says Lord Campbell, C. J., in a * See, to same effect, Crespigny vs. Wittenoom, 4 T. R., 193 ; Edwards ■OS. Pope, 3 Scam. 465. t Edwards vs. Pope, 3 Scam. 466. X Salkeld vs. Johnson, 1 Hare, 196 ; Emanuel vs. Constable, 3 Kussel, 436 ; Foster vs. Banbury, 3 Sim. 40 ; Crespigny vs. Wittenoom, 4 T. K. 193. § Seidenbender vs. Charles, 4 S. and E. 166 ; Kent vs. Somerville, 7 Gill and J. 266. II King vs. Marks, 3 East. 165 ; Kinaston m. Clarke, 2 Atk. 205; Hol- brook vs. Holbrook, 1 Pick. 251 ; Copeman vs. Gallant, 1 P. Wm. K. 320 ; King vs. Athos, 8 Mod. 144 j Kent vs. Somerrille, 7 Gill and J. 265 ; Lees vs. Somersgill, 17 Ves. 510. 56 THE PREAMBLE. recent case, "admitted of any reasonable doubt, -we ■would look to the title and preamble, and endeavor td construe the enactments consistently with them."* So, if a clear and definite remedy is given by the act, the preamble cannot be used to introduce one more ex- tensive.f A question has arisen as to the effect of the pre- amble as matter of evidence ; or, in other words, whether the allegation by the Legislature ,in the preamble of a statute, of the existence of certain facts, can be offered as evidence of these facts in courts of justice, when private rights come in question. On this point it has been held in England, where an information for a libel contained an introductory averment that great outrages had been committed in certain parts of the country, that the preamble of an act of Parlia- • ment reciting the existence of outrages of that descrip- tion, was admissible for the purpose of proving the averment.J This decision, however, gives more weight to the preamble than would probably be allowed to it in this country. The court of Kentucky, on the question, whether the p'reamble of a private' statute could be used as evidence of the matters recited in it, said, " The fact recited in the preamble of a private statute may be evidence between the commonwealth and the applicant or party for whose benefit the act was passed. But as between the applicant and another individual Whose rights are affected, the facts recited ought not *'WUmot vs. Rose, 3 EUis and Blackburn, Q. B. 663 ; Free vs. Bur- goyne, 5 B. and C. 400. t Wilson vs. Knubley, 7 East. 128, Bac. Abr. Stat. 1 ; Adams vs. Wood, 2 Oranch, 386. t Rex vs. Sutton, 4 Maule and Sel. 582. ' THE PURVIEW. 57 to be evidence. We well know that such applications are made frequently ex parte. The Legislature, in all its inquiring forms by committees, makes no issue. Once adopt the principle that such facts are conclusive or even prima facie, evidence against private rights, and many individual controversies may be prejudged, and drawn from the sanctions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are to make laws to oper- ate on future incidents, and not a decision or forestall- iBg of rights accrued or vested under previous laws. Such a preamble is evidence that the facts were so rep- resented to the legislature, and not that they are really true."* This reasoning applies with as much force to public as to private statutes ; and the Supreme Court of Ifew York has well said that the legislature has n,o jurisdiction to determine facts touching the rights of individuals.f A preamble is sometimes prefixed to a particular clause, the tenor of which it is meant to explain or which it is intended to elucidate.J The Pwrviem, or Body of the Act. — The true mean- ing of the statute is generally to be sought in the purview, providing part or body, of the act. As we have seen, it is well settled that when the words in this, part are broad enough to take in the mischief * Elmend«rf vs. Carmichael, 4 Litt. R. 47. t Parmlee vs. Thompson, 2 Ml, 77. % Mr. Barrington, in his Observations on the Ancient Statutes, a rambling, but shrewd, sensible, and learned work, manifests considerable hostility to preambles. He says, " The most common recital for the introduction of any new regulation, is to set forth that ' doubts have arisen at, common law ' which frequently never existed." And again, with great truth, " the pre- amble often dwells upon a pretense which was not the real occstsion of the law, when perhaps the proposer had very different views in contempla- tion."— 06s. ore Stat. p. 394. 58 CLAUSES. alleged to be included, they shall be so construed though the preamble does not warrant it; in other ■words, the purview of the statute may carry the act ]?eyond the preamble. " There are a variety of cases," said Lord Mansfield, "where it has been determined that strong words in the enacting part of a statute, may extend beyond the preamble* This, then, seems to be the general principle. The title may be resorted to in cases of ambiguity, and is a guide of some, though slight, value. The preamble may be consulted to ascertain the intention of the law- making power. But it is chiefly from the main body, the purview df the act, that the will of the legislature is to be learned ; and when this is clear and express, neither preamble nor title will avail to contradict or overrule it. Aisolufa seAtentia easpositore non indiget. " This is the case," says Lord Coke, " where the words are plain without any scruple, and absolute without any saving."f "We shaU. discuss other branches of this part of our subject, when we come to examine the rules of interpretation. Clauses. — Of these in bUls, there are various kinds. Bills frequently contain an interpretation clause ; and this clause, says Mr. Dwarris, should precede the mere body of the act, since, as he says, agreeably to right reason and common sense, definitions should precede the matter to which they have reference. In America, however, the interpretation clause, where it occurs, is generally to be found at the end of the statute. The practical use of the interpretation clause will * Dwarris p. SOT ; Strode vs. The Stafford Justices, 1 Brock, 162 ; 3 Atk. 204 ; Pattison vs. Bankes, Cowper, 640 ; Doe dem. Bywater & Brand- ling, 7 B. and 0. 643. 1 2 Inst. 533 ; Dwarris, p. 519. INTERPRETATION CLAUSE. 69 te best understood from an fexample— thus : "The words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a diffei:ent meaning, shall, in this act (except where the nature of the provision or context of the act shall ex- clude such construction), be interpreted as follows: that is to say, the word Land shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, or of other tenure," &c. And again ; " Every word importing the plural number, shall extend and be applied to a female as well as to a male," &c. s. Beers, 28 id., 103 ; The People M. Purdy, 2 Hill, 31. CONSTITUTIONAL MAJORITIES. 69 be received as conclusive evidence, or not. But tli?it doubt is now f esolved, and it is settled that the judges ihay, and if they deem it necessary should, look beyond the printed statute book and examine the original engrossed bills on file in the office of the secretary of State ; and it seems that the journals kept by the two houses may also be consulted.* We have thus far considered statutes in their incip- ient stages ; we are now to consider the attributes and incidents of laws regularly and constitutionally passed ; and, first, let us examine their Authority and Jurisdiction.^ — It is well settled, that * Purdy vs. The People, 4 Hill, 384; De Bow -vs. The People, 1 Denio, 9 ; Commercial Bank of Buffalo m Sparrow, 2 Denio, 97. t Mr. Dwarris (vol. ii. p. 516) thus enumerates the incidents of statutes. His enumeration includes some ma3?i.ms which are equally applicable to the conmion law; and those I have omitted : I. An act of Parliament binds all persons, but such as are specially saved by it.— And. 148, pi. 82. II. A statute which gives corporal punishn^ent, does not bind an infant. Centra of other statutes, if they do not except infants. — Doc. and Stud., lib. 2, fol. 113. III. Every statute made against an injury gives a remedy by action, ex- pressly or impliedly. — 2 Inst., 55. rV. An act of Parliament cannot alter by reason of time ; but the com- mon law may, since cessamte ratione, cetsat l&ii. — Str. 190. V. When statutes are made, there are some things which are exempted sxiAforepmed out of the provisions thereof, by the law of reason, though not expressly mentioned; thus, things for necessity's sake, or to prevent a failure of justice, are excepted out of statutes. — Plowd. Com., 13 b; 2 Inst., 118. VI. Whenever an act gives any thing generally, and without any special intention declared or rationally to be fiiferred, it gives it always subject to the general control and order of the common law. — Show., 455. VII. Whenever a statute gives or provides any thing, the common law provides all necessary remedies and requisites.-^The Protector ^s. Ashfleld, Hard. 62 ; 1 Inst. 235 ; 2 Inst. 225 ; Bao. Ab., Tit. Statute. VIII. In statutes, incidents are always supplied by intendipents ; in other words, wherever a power is given by a statute, every thing necessary to the making pf it effectual is given by implication, iot the maxim is. 70 AUTHORITY AND JURISDICTION. while every nation possesses an exclusive jurisdiction within its own bound^ayies, neither constitutions nor statutes have any intrinsic force, exproppio vigor e^ be- yond the territory of the sovereignty which enacts them, and the respect which is paid to them elsewhere depends on comity alone.* A modification of this prin- ciple is contained in the proposition that,' although the laws of a country have no direct controlling force except within its own limits, yet that every nation has a right to bind it8 own subjects by its own laws in any place, that is to say when they return within its territorial jurisdiction so as to give an opportunity to exercise sovereignty over them.f This, however, involves the consideration of the question of allegiance and of its duration, which do not properly fall within the scope of this work. As a general proposition, the rule is good, that no nation is bound to respect the laws of another nation, except as to persons or property within the limits of the latter. This is the general rule of our law, and this, too, is the language of the great civilians. " Constat, igitwr,^'' says Eodenburg,;]: '■'•extra territoriAim legem d/lcere Ucere nemmi, idque sifecerit quis^ im/pv/ne ei non pa/reri, quippe ibi cessat statutorum fundamen- Mrriy robur, et jwrisdictioT " Nullum statutum^'' says P. Quando lex aliguid amcedit, coneedere videtwr et id per quod decenitur ad ilhd. 2 Inst., 366; 12 Rep., 130, 131 ; and Quando aliquod prohiietur, prohHetwr et omneper quod deomiiur ad, ilhd. IX. If an offense be made felony by a statute, such statute does, by necessary consequence, subject the offender to the like attainder and forfeit- ure, and does require the like construction as to those who shall be accounted accessories before or after the fact, and to all other intents and purposes, as a, felony at the common law does. — ^Dwarris, p. 517. * Story, Confl. Laws, p. 7, § 7 ; p. 19, § 18 ; p. 20, § 20. Commonwealth of Kentucky m. Bassford, 6 Hill, p. 627. Blanchard vs. Russell, 13 Mass. 1. Bank of Augusta vs. Earle, 18 Peters, p. 519. Op. of Taney, C. J., p. 584- t Story, Conflict Laws, p. 21, § 21 ; p. 23, § 22. X De Stat., ch. 8, § 1, p. T; Story, Confl. of Laws, § 21. AUTHORITY AND JURISDICTION. 71 Voet * " sive in rem^ sive in personam^ si de ratione jv/ris ciwiis s&rmo instituatur sese., exiendit ultra statu- enies territori/um." And so says BouUenois: "Of strict riglit, no la^s made by a sovereign have any force or authority except within the limits of his do- minion."f " A sovereign," says Toullier, " can issue his commands to his own subjects only ; his power does not extend to foreigners." J Within each jurisdiction, however, the law binds all alike. IJex uno ore omnes alloquitur. This maxim, says Lord Coke, is the pride of the English law.§ It is, indeed, proper to bear in mind that this principle, that within the limits of its jurisdiction the law con- trols alike, without distinction, the property and con- dition of all those who inhabit the territory, paying no regard, as a general thing, to the birth-place or origin of any particular individual, is of modern introduction, and results from the increased equality and intercourse that our times have created. At Eome, there were two systems of law, one for citizens and the other for foreigners; and in the middle ages the distinction was even more striking. "In the same district," says S^vigny, "in the same town, the Lombard lived un- der the Lombard law, the Roman imder the Eoman law. The characteristics of personal laws are equally visible in the individuals of the different Germanic tribes ; and the Franks, the Burgundians, the Goths, * De Stat., § 4, ch. 3, n. 7, p. 124. Id., 130, 138 ; ed. 1661. t " De droit etroit, toutes les lois que fait un souverain n'ont force et autorite que dans I'eteadue de sa domination." — ;1 BoullenoiSj Prin, Gen., 6, p. 4. X " Le souverain ne peut commander qu'Ji ses sujets ; sa puissance ne s'etend point sur les etrangers," — Toullier, vol. i. p. 92 ; Tit. prel. sect. 8, §112. ■ § 2 Inst. 184. 72 COMITY OF NATIONS. lived on tlie same soil, each under his own law. This is the explanation of the following passage, in a letter from Agdba/fdus to Louis le Debonnaire : ' We often see talking together five persons of whom no two obey the same law.' "* The most prominent remains of this system in our time are to be found, in the disabilities of aliens, fast giving way before a more enlightened civil- ization ; but in this country the peculiar and anomalous position of the Indian and African races furnish an illustration of an analogous state of things. To the general rule thus stated, there exists, however, one marked exception, growing out of what is called international comity. How far the laws of other states or nations will be regarded as a matter of comity, depends on various considerations. " Whatever extra- territorial force," says Mr. Justice Story, " laws are to have, is the result not of any original power to ex- tend them abroad, but of that respect which, from mo- tives of public policy, other nations are disposed to yield to them, giving them effect, as the phrase is, sub mutuce vidssitvdinia dbtentu^ with a wise and liberal regard to common convenience and mutual benefits and necessities."f " Whatever force and obligation," says the same learned writer, J " the laws of one country have in another, depend solely upon the laws or municipal * " Dans le m^me pays, dans la meme ville, le Lombard vivait d'apres la loi Lombarde, le Remain d'apres la loi Remain. L'esprit des lois personelles regnait egalement parmi les individus des divers tribus Germaniques ; et les Francs, les Bourguignons, les Goths, vivaient sur le mime sol chacun d'apres son droit. Aussi s'explique le passage suiyant d'une lettre d'Agobardus i Louis le Debonnaire : ' On voit souvent converser ensemble cinq personnes dont aucun n'obeit aux mimes lois." "— Savigny, Hist. Droit Romain au Moyen Age, ch. 3, § 80. t Conflict of Laws, p. 7, § 7. Saul «s. His Creditors, 17 Martin, 569. % Confl., § 28, p. 28. COMITY OF NATIONS. 73 regulations of the latter, tliat is to say, upon its own proper jurisprudence and polity, and upon its own ex- press or tacit consent." The principles of coftiity which, regulate the action of the municipal law, in the recog- nition and application of foreign law, have been so ela- borately examined by Mr. Justice Story, that I shall dismiss this branch of my subject with the following extract from his great work. " No nation," he says,* " can be justly required to yield up its own fundamental policy and institutions in favor of those of another nation. Much less can any nation be required to sacrifice its own interests in favor of another, or to enforce doctrines which, in a moral or political view, are incompatible with its own safety or happiness, or conscien- tious regard to justice and duty. It is difficult to conceive," he says again,f " upon what ground a claim can be rested to give to any muni- cipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other nations or to those of the subjects." And again,J " The true foundation on which th«i,adniinistration of international law must rest, is that the rules which are to govern are those which mse from mutual interest and utility, from a sense of the inconvenience which would result from a contrary doctrine, and from a sort of moral neces- sity to do justice, in order that justice may be done in return." And again,§ "There is, then, not only no impropriety in the use of the phrase ' Comity of Nations,' but it is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another. It is derived altogether from the voluntary consent of the latter, and is inadmissible when it is contrary to its known policy or prejudicial to its interests. In the si- lence of any positive rule affirming or denying, or restraining the opera- tions of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests. It is not the comity of the courts, but the comity of the natiouj which is administered and ascertained in the same way and guided by the same reasoning by which all other prin- ciples of the municipal law are ascertained and guided." * Oonfl. of Laws, p. 25, § 25. t Page 32, § 32. X Page 84, § 35. § Page 36, § 38. 74 COMITY BETWEEN THE STATES. The general principlee to wMcli I have been refer- ring have been declared applicable to the States of this Union. While recognizing the central federal authority, resulting from the Constitution of the United States, they hold in regard to each other, with the exception of the cases governed by that instrument, the position of independent and foreign powers. So it has been held, that bills drawn in one of the States on persons in another, are to be treated as foreign bills; and the Supreme ^ourt of the United States has said, " For all purposes embraced by the federal constitution, the States and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects, the States are neces- sarily foreign to and independent of each other, their constitutions and forms of government being, although republican, altogether different, as are their laws and in- stitutions,"* and their acts have,t!bnsec[uently, no extra- territorial authority .f But at the same time, the States of the Union recognize in regard to each other, to a cer- tain extent, the existence of the same principles of inter- national comity which, with reference to nations wholly independent of each other, we have already attempted to define. In a case, very elaborately argued in the Supreme Court of the United States, where suit was brought in the State of Alabama by a bank incorpor- ated by the State of Greorgia, on a bill of exchange nego- tiated to the agent of the plaintiffe within the State of * Buckner vs. Finley, 2 Peters, 586. See, to same point, Lonsdale vs. Brown, 4 Wash. 0. R., 86, and 2 Peters, approving, p. 688. Warder vs. Adrell, 2 Wash. R., 283. Bank of U. S. d«. Daniel et aL, 12 Peters, p. 32 ; and State Of Rhode Island vs. Massachusetts, 12 Peters, p. 657. t Blanchard vs. RusseD, 13 Mass., 1. Bank of Augusta vs. Earle, 13 Peters, 519. Opinion of Taney, p. 584. Commonwealth of Kentucky vs. Bassford, 6 HiU, p. 527. COMITY BETWEEN THE STATES. 75 Alabama, it w(is insisted, that a corporation could not contract in any State of the Union but in that by the law of which it was created, and that its existence would not be recognized on any principle of comity ; and the Circuit Court of the United States so decided ; but on writ of error to the Supreme Court, the judgment was reversed,* the Court holding this language : — " It has, however, been supposed that the rules of . comity between foreign nations do not apply to the States of this Union; that, they extend to one another no other rights than those which are given by the Constitution of the United States ; and that the courts of the gen- eral government are not at liberty to presume, in the absence of all legis- lation on the subject, that a State has adopted the comity of nations towards the other States as a part of its jurisprudence, or that it ac- knowledges any rights but those which are secured by the Constitution of the United States. The Court think otherwise. The intimate union of these States as members of the same great political family, the deep and vital interests which bind them so closely together, should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness toward one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has hut to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to administer the law of international comity between these States ? They are sov- ereign States ; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted toward each other the laws of comity in their fullest extent." It was certainly very difficult successfully to con- tend for the principle insisted on in this case by the defendants, for it amounted substantially to the prop- osition that a corporation of one State can do no com- mercial business, can make no contract, can, indeed, do * Bank of Augusta vs. Bai-le, 13 Peters, 519. Mr. Justice McKinley dis- sented. 76 COMITY BETWEEN THE STATES. nothing in any other State of the Union but in that in which, by the law of the State, it has been created. But the doctrine of comity between the States, pre- sents itself in other and more important aspects. So in regard to slavery, the question has arisen whether the owner of slaves which are brought from a State where domestic servitude is allowed, and taken into a State where that institution is absolutely forbid- den by its municipal legislation, can be protected in his property by the fact that the slaves are merely in transitu, and brought in with the bona fide intention of taking them to some State where their proprietor may lawfully hold them. This proposition has been affirmed in Elinois ;* it has been denied in New York,f and has been left in doubt by the Supreme Court of Massachusetts.J It is not seriously asserted that the owner's right can be maintained under the Constitution of the United States, nor that in this sense the absolute prohibition of domestic slavery by the State laws is un- constitutional ; but it is very earnestly insisted that prop- erty in slaves under these circumstances, is protected by the doctrine of comity which we have above discussed. The point is very far from being free of difiSlculty, and if the rule of comity is to be considered as set- tled to the full extent of the language of the Supreme Court above cited, it will be difficult to show that it does not cover this case ; but before it shall be so finally determined, much reflection is necessary. The doctrine of comity has been established and applied by powers wholly foreign, entirely distinct from and independent of each other, the mutual relations of * Willard vs. The People, 4 Scammon, 461. t People vs. Lemon, 5 Sandford, 681. I Commonwealth vs. Aves, 18 Pickering, 193. COMITY BETWEEN THE STATES. 11 whose citizens are comparatively rare, and almost, if not quite, exclusively commercial, and the rules of whose intercourse rest entirely on the great unwritten law of nations, of which this comity forms in fact but a part. Such is not at all the condition of the States of this Union. They are mutually dependent on each other in various ways, and all recognize in certain cases, a common sovereign ; their intercourse is in the highest degree frequent and, intimate; their relations quite as much political as comraercial; and they have under- tpiken by the terms of a carefully prepared instru- ment; to declare with precision, their relative rights and duties. In this case, to substitute for the clear and definite language of the Constitution any thing so vague and uncertain as the comity of nations, is not only to subject the relations and independence of the States to a condition of alarming perplexity, but to make the judiciary the sole arbiter of the gravest polit- ical questions, and to give them, in framing their decis- ions, no better guide than a fluctuating and unsettled notion of international courtesy. The federal Constitution contains a provision in regard to the laws of the States, and the judicial pro- ceedings of their tribunals, which, though it gives them no extra-territorial effect, has still some bearing on our present subject. The Constitutioii of the United States, by Article IV. Section 1 of that instrument, de- clares that, "Full faith and credit shall be given in each State to the public acts, records, and judicial pro- ceedings of every other State ; and the Congress may, by general laws, prescribe the manner in which such acts; records, and proceedings shall be proved, and the effect thereof" In pursuance of this power, the 78 PROOF OF STATE LAWS. Congress of the United States^ by act of May 26, 1^90, ch. 38, provided the mode "by which records and judicial proceedings should be authenticated. Under these constitutional and statutory provisions, various decisions have been made, the general re- sult of which is, that -a judgment is conclusive in every other State, if a court of the particular State where it was rendered would hold it so* But Congress has never acted on the power in the Constitution as to the public acts or laws of the States, any further than to declare that they shall be authen- ticated by having the seal of the respective States affixed thereto ;f nor is this method regarded as exclusive of any other which the States may adopt.J And the States have differed as to the manner in which they should be proved. In some cases^ strict proof of them, as foreign laws, has been required; but the courts of other States, and the Supreme Court of the United States, influenced by the peculiar aiid intimate connection of the States, have shown a disposition to relax the usual rules of proof . in this respect; in regard, however, to the details of this matter, which properly belongs to the domain of evidence, I refer th^ • reader to Mr. Grreenleaf 's very valuable work, where the authorities wiU be found coUected.§ The student of American law, in his consideration of the subject which we are now discussing, will not for- get that the laws of the States, as has been alreadv intimated, are subject in many important cases to * Mills m Duryee, 7 Cranch, 481. Hampton vs. McOonnel, 3 Wheat., 2-34. i Kent Comm., p. 250, and cases there cited, t Act of 26th May, 1790, ch. 38. t Bank of Augusta vs. Earle, 13 Peters, 526. Ogden, arguendo. § Qreenleaf on Evidence, § 489. LAWS OF THE STATES. 19 the power of the Union ; the second section of the sixth article of the federal Constitution declaring; that, "The 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, shaU be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary nof withstanding." This provision necessarily makes the States subordinate to the government of the Union, in all matters which, by the federal charter, fall within the demesne of Congress ; and the supremacy of the federal government, in these respects, is maintained and enforced, as we shall hereafter see, by the Supreme Court of the United States. WhUe discussing the question of the territorial effect of statutes, we have also to notice an interesting question which has been presented in this country with reference to the jurisdiction of the States over criminal acts, planned or contrived in a State of which the of- fending party is a citizen, but consummated in another and without the culprit ever being actually present in the latter State. It is well settled, as a general rule that penal laws have no extra-territorial effect.* And so a State cannot pass an act making the offense of counterfeiting its current bills, committed out of the State, indictable and punishable in its courts.f But, on the other hand, it is equally well settled, that in the case put, where the offense is contrived in one State and executed in another, the party is liable to the * Sooville vs. Canfield, 14 J. R., 888. t State M. Knight, Taylor's N. C. Rep., 65, 80 LAWS OF THE STATES. criminal jurisdiction of the State where thq offense is consummated, though he have never himself been within the limits of the latter State. So, where an indictment was found in Massachusetts against a resident of New York for uttering forged notes in the first-mentioned State, through an innocent agent, the defendant remaining all the while in New Yerk, the defendant was held guUty in Massachusetts* So again, where one Was indicted in New York for obtaining money by fraudulent pretenses from a firm in that State, by ex- hibiting to them fictitious receipts for property signed by a person in Ohio, although the defendant was a citizen of Ohio and had never been in New York, and the receipts were drawn and signed in Ohio, and the offense was committed by the receipts being presented in New York by innocent agents employed by the parties in Ohio, — it was held that the culprit was liable to the civil jurisdiction of New York.f It will be observed that these are cases which apply to mala per se, — to offenses against persons or property which" are such in all civUized countries; and it may well be ^oubted whether the rule would hold good as to mere mala prohibita, as, for instance, laws to protect the revenue or the currency, of which the alleged offender may be not merely ignorant, but not chargeable with knowledge. An interesting question connected with the present * Commonwealth is. Harvey, 8 Am. Jur., 69. * t People M. Adams, 3 Denio, 190; S. C. on appeal, 1 Coms. 173. See, to the same point, State m Ellis, 3 Conn., 185 ; Barkhamstead vs. Parsons, 3 Conn. 1; Commonwealth to. Gillespie, 7 Serg. &Rawle, 469 ; People w. Rathbun, 21 Wend. 609. In England, the rule that the offense is consid- ered to be committed where it is consummated, holds good as between the different counties, and as between Ireland and England. — King w. Brisac, i East, 164; Kex w, Johnson, 6 East, 583; S. C, 7 id. 65. TIME "WHEN STATUTES TAKE EFFECT. 81 branch, of our subject arises, as to the time when stat- utes are to take effect. The old English rule was, that if the act was not directed to operate from any partic- ular tiine, it took effect frdna the first day of the "ses- sion at which it passed, though this date was purely fictitious, and might be weeks or indeed months before the act was assented to by the sovereign, or, in fact, even before the bill was brought in ; and this extraor- dinary application of the doctrine of relS,tion was actu- ally adhered to and acted upon in England as late as the latter part of the last 'century.* The rule was finally altered by the statute 33 George III., c. 13, which declared that laws shall operate from the time of their receiving the royal assent. Where two statutes, passed in the same session and to conie into operation on the same day, are repugnant to each other, it is held that the act which last received the royal assent must prevaiLf This affords a curious instance how difficult it is to make the ancient rules of law conform to those of logic and reason. It is very plain that both of these provi- * 33 Henry Yl., 18 Bro., 33 ; 1 Lev., 91, Attorney General to. Pan- ter, 6 Bro. P. C.,'486. Latless V8. Holmes, 4 T. R., 486. Dwdrris on Stat., p. 544. R. m. Bailey, R. & R. C. 0. 1 ; 1 Russ., 0. & M., 109. The severity of. the old English rule is -well illustrated by the trial of Sir William Parkyns for iigh treason, in 1696, before Lord C. J. Holt, Lord C. J. Treby, and Mr. Justice Rokeby. He prayed to be allowed counsel, but was re- fused, because the statute, 7 William IIL c. 3, allowing counsel to persons indicted for treason, did not go into efiect till the next day after that on which he was tried. It was in vain that the prisoner quoted a part of the preapble, which said that such an allowance was just and reasonable. The reply of Lord 0. J. Holt was, that he must administer the law as he found it, and could not anticipate the operation of an act of parliament by even a single day. Sir William Parkyns was convicted and executed. See the case reported in the thirteenth volume of the State Trials, Howell's ed. and cited in Mr. Lieber's Hermeneuties, p. 118. See also, Kent's Com, vol. i., p. 456. t Rex DS. Justices of Middlesex, 2 B. & A. 818; 2 Bing. N. 0. 682. Dwarris, p. 544. 6 82 TIME "WHEN STATUTES TAKE EFFECT. sions are contrary to common sense, and may often pro- duce great injustice. It is impossible that the citizens or subjects of an extensive and populous country, can obtain any accurate knowledge of the purport of an act on the day of its passage ; and the doctrine that the act last signed is to prevail over one assented to a few hours previous, is obviously arbitrary and unre- liable. The evils likely to result from the first of these rules are now often obviated by a section declar- ing when the act shall go into effect ; and on a clause of this kind it has been decided, that although in an act it is expressly declared that it shall commence and take effect from a day named, yet if the royal assent be not obtained till a day subsequent, the provisions, of a particular section, in its terms prospective, do not take effect till such subsequent day.* The Code Napoleon first established the true prin- ciple as to when laws should take effect. It declared laws to be binding from the moment that their pro- mulgation should be known ; and that the promulgation should be considered as known in the department of the consular or imperial residence one day after the promulgation, and in each of the departments after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the sea,t of government and the place.f In this country, the mischievous results of the ori- ginal English rule are usually obviated either by con- stitutional or statutory provisions. So in Michigan, a constitutional provision declares J that " no public act shall take effect or be in force until the expiration of * Burn vs. Carvalho, 4 Nev. and Man, 889. t Code Civil, Art. i. ; Kent Com. i., p. 458. I Cons. Art. iv. § 20. TIME WHEI# STATUTES TAKE EFFECT. 83 ninety d^ys from the end of the session at whicli the same is passed, unless the legislature, shall otherwise direct by a two-thirds vote of the members elected to each house." In Mississippi, the constitution provides, "that no law of a general nature, unless otherwise pro- vided, for, shall be enforced until sixty days after the passage thereof."* And in New York it is declared, by a general statute,f that " every law, unless a differ- ent time shall be prescribed therein, shall commence and take effect throughout the State, on and not before the twentieth day after the day of its final passage, as certified by the secretary of state." But, in regard to federal legislation, the rule is supposed to be identical with that now in force in England: that eveiy law takes effect on the day of its passage.^ "JThis subject is of no small consequence, as the law is assumed to be known by every citizen from the time fixed for, it to go into operation ; ignorantialegis nmmwm exeusat. This maxim has, however, no more than the laws them- selves any extra-territorial application ; for the doc- trine has been declared to be, that citizens of another country, and even, in America, of another State of the Union, are not chargeable with a knowledge of the laws emanating from any jurisdiction, except that to which they belong. This, however, must be certainly taken with the qualification in regard to mala pro- Tidhita and mala p&r se, to which I have already re- ferred, and also with the general limitation . that it is to apply rather to civil than to criminal law.§ * Cons. Art. vii. § 6. t 1 R. S. 157, Part i. Ch. vii. Tit. v. § 13, X Matthews vs. Zane, 7 Wheaton, 164; The Ann, 1 Gallison, 62j 1 Kent's Com. 455. But see 1 Paine, 23. § Curtis w. Leavitt, 17 Barb., 312, 317; and Merchants' Bank m Spald- ing, Court of Appeals ; cited in the same. 84: CONTRACTS IN VIOLATION %F STATUTES. Connected with this branch of our subject is another arbitrary rule of the English law, as to amendatory statutes. An act of Parliament made to correct an error of omission, committed in a former statute of the same session, relates back to the time when the first act passed ; and the two must be taken together as if they were one and the same act, and the first must be read as containing in itself, in words, the amendment sup- plied by the last ; therefore, goods eaoported before a second law passed, but only shipped before the first, of which the second was an amendment, was enacted, were held liable to duties imposed by the latter statute on the exportation of goods* It may be observed in this connection, in regard to the authority and operation of laws, that in con- quered or ceded countries which have laws of their own, those laws remain in force till actually altered ; but it has been said in this country, that this rule " is for the benefit and convenience of the conquered, who submit to the government of the conquerors, or in the case of cession, for the benefit of the people" who by treaty submit to the^ovemment of those to whom their country is ceded, and was not applicable to the condi- tion of our ancestors, as the Indians did not submit to the government, but withdrew themselves from the territory acquired."f Contracts in Violation of Statutes. — ^The principle which enforces obedience to laws, is carried out by declaring contracts growing out of or based upon the infringement of a statute to be void, the courts refus- ing to aid either party in enforcing them. This is the general course of the decisions in England, and in this * Att. General vs. Pougett, 2 Price, 381 ; 2 Dwarris, 547. t State vs. Buchanan, 5 Harris and J. R., 317. CONTRACTS IN VIOLATION OF STATUTES. 85 country* So, wliere sales of spirituous liquors are made in violation of the positive provisions of a statute, the sale being illegal the whole transaction is void, and the seller can sustain no action therefpr.f Sp, where contracts are made on Sunday, in violation of the laws forbidding labor and business on that day.J Nor is it necessary that the contract should violate the express * steers vs. Lashley, 6 T. E. 61 ; Aiibert vs. Maze, 2 B. & P. STl ; Can- nan vs. Bryce, 3 B. & Aid. 179 ; Brown vs. Duncan, 10 B. & Cres, 93 ; Arm- strong vs. Toler, 11 Wheat. 258 ; Exparte Dyster, in re Moline, 1 Meriy. 1S5 ; Bloom vs. Richards, 22 Ohio, 388. t Boutwell vs. Foster, 24 Vemit. 485 ; Bancroft vs. Dumas, 21 Verm. 456 ; Barton vs. Port Jackson and U. F. Plank Road Co., 17 Barb. 397; Nellis vs. Clark, 4 Hill, 424 ; Hook vs. Gray, 6 Barb. 398 ; S. C, 4 Comst. 449 ; Pen- nington vs. Townsend, 7 Wend. 276 ; Tylee vs. Yates, 3 Barb. S. C. R. 223. t Fennell wRidler, 5 B. & C. 406; Smith to. Sparrow, 4 Bing. 84; Towle vs. Larrabee, 26 Maine, 464; Lovejoy vs. Whipple, 18 Verm. 379 ; Pattee vs. Greely, 13 Met. 284 ; O'Donnell vs. Sweeney, 5 Ala. 467 ; Ad- ams vs. Hamell, 2,Doug. Mich, R. 73 ; Bloom vs. Richards, 22 Ohio, 388; oyerruling. Sellers vs. Dugan, 18 Ohio, 489 ; Omit vs. Commonwealth, 21 Penn. 426 ; and other cases on the Sunday acts. In Ohio, where the constitution declares the indefeasible right of all men to worship God according to the dictates of their conscience ; that no human authbrity can interfere with the rights of conscience; that no man shall be compelled to attend or support any mode of worship without his consent ; that no preference shall be given by law ttenice of a State legislature," says Chase, J., in the Supreme Court of the U. S.,§ " or that it is absolute and without control, although its authority should not be expressly re- strained by the constitution or fundamental law of the States. * * There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legis- lative power, as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property, for the protection whereof the government was established. An act of the legis- lature (for I cannot call it a kw) contrary to the great first principles of the social compact, cannot be con- sidered a rightful exercise of legislative authority." In the Supreme Court, Mr. Justice Story has held this language : " The fundamental maxims of a free government seem to require that the rights of personal liberty and private property, should be held sacred. At least, no qourt of justice in this country^ would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the com- * Hatch vs. Vennont Central R. R. Co., 25 Vermont, p. 49, 61. t Hatch vs. Vermont Central R. R. Co., 25 Vermont, 49. t Railroad Co. vs. Davis, 2 Dev. &BaL 451. § Calder vs. Bull, 3 DaU. 386. 160 LEGISLATIVE AND JUDICIAL POWER. mon principles of justice and civil liberty, lurked under -any general grant of legislative authority, or ought to be inferred from any general expressions of the will of the people. The people ought not tp be presumed to part with rights so vital to their security without very strong and direct expressions of such an intention."* It win be observed that aU these cases more or less directly affirm the doctrine that there are certain re- strictions on legislative action, not to be found in the State constitutions nor in that of the United States ; that these restrictions grow out of certain great principles of right and justice ; and that when these principles are infringed, it is the duty of the judiciary to arrest the acts of the law-making power. The question is one full of the gravest interest. Before attempting, however, to test the reasoning of these cases, or to bring our minds to a correct conclu- sion in regard to the serious point which they present, it is necessary first to consider the precise manner in which the demarkation between the legislative and judicial functions in this country is made. This is not with us, as in England, the result of long usage, judicial decisions, or parliamentary practice. Here it is a mat- ter of positive and written law. The division of power was a leading idea in the American mind at the time of the Ee volution, and all our State constitutions bear its impress. Without, I believe, a single exception, they divide the attributes of government into three great brancTies, the executive,, the legislative, and the judicial. But, though the State constitutions generally attempt to declare, with more or less accuracy, the powers of * WillfinBon vs. Leland, 2 Peters, 627. DIVISION OF POWER. * 161 the executive branch of the govermnent, they appear to make little effort to (describe with precision the char- acter and functions of either the legislative or judicial department ; and they confine themselves, in almost every instance,* to the mere declaration that the law- naaking and judicial powers shall be kept separate and distinct; without endeavoring to define what is the true nature, object, or scope of a law, or what the correct char- 'acteristics of a judicial proceeding. In a recentlcase in New York,f it has been said, "Written constitu- tions not only declare, of what the government shall consist, into what departments it shall be separated, * * but they also prescribe the exact confines within which these functions shall be executed, to what sub- jects they may or may not extend, and the degree of power, absolute or limited, which each separate department may exert." But this claims for our constitutions much more exactness than they possess. We find their language of a very vague and general character, going, in fact, little beyond the mere crea- tion of the three great departments by name. So the Constitution of the United States declares, Art. III. § 1, "The judicial power of the United States shall be vested," &c. So the constitution of the State of New York (1821) declares, Art. I. "The legislative power shall be vested in a Senate and an Assembly ;" Art. III. "The executive power shall be vested in a Governor." The constitution of Maine provides, J "The powers of * In New Hampshire, Constitution, Part IT., an effort has been made to define the legislative power, but I think with no very marlied success, t Rodman vs. Munson, 13 Barb. 63. I Art. III. 11 162 DIVISION OF POWER. this government shall be divided into three distinct departments, the legislative, executive, and judicial. No person or persons belonging to one of these departments shall exercise any of the powers prop- erly belonging to either of the others, except in the cases herein expressly directed and permitted." So in Massachusetts,* "In the government of this com- monwealth, the legislative department shall never exeMse the executive and judicial powers, or either of them ; the executive shall never exercise the legis- lative and judicial powers, or either of them; the judicial shall never exercise the legislative and execu- tive powers, or either of them ; to the end that it may be a government of laws, and not of men." So in Maryland,-]- "The legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other, and no person exercising the functions, of one of said departments shall assume or discharge the duties of any othpr." So in Virginia, if " The legislative, executive, and judicial powers should be separate and distinct." In Alabama, the constitu- tion declares,! " The power of the government of the State shall be divided into three distinct departments, and each of them confided to a separate body of magis- tracy, to wit: those which are legislative to one, those which are executive to another, and those which are judicial to another. No person or collection of persons being one of those departments, shall exercise any'^ power properly belonging to either of the others, ex- * Constitution, Part I. § 30. t Declaration of Rights, Art.6. I Bill of Rights, Art. 5. § Article II, WHAT IS A LAW! 163 * * «ept in tie instances hereinafter expressly directed or permitted."* A very little reflection is siifficient to satisfy us that the mere use of the terms executive, legislative, and judicial, is no satisfactory definition of the respective powers ; and experience has alrcsady shown the difficul- ties attendant on this very general language. What is the legislative power? What is a law? Is it a rule of universal application; is it a rule of prospective appliqation 1 Can it be jnade in opposition to the principles of natural justice? Can a law be made to determine private rights ? Can a law be enacted to decide private controversies? We shall find these questions, both on abstract inquiry and also in reference to the necessities of our complex political organization, not easy to answer ; and yet, unless an- swered, how are we to say with accuracy in what the the legislative functions consist, or where they stop? The French Code; by a fornial and express provi- sion, prohibits all retrospective legislation, and the principle is generally admitted to be sound ; but no such universal restriction would answer with us, as our legislatures are constantly passing laws of a retrospec- tive character. Such are the laws declaring certain acts of persons irregularly elected, valid ; correcting assessment rolls irregularly made ; and many others of like character. These laws have never been ques- tioned ; and the denial of the power would, in a new * Of this constitution, the Supreme Court pf the United States has said " that, though somewhat peculiar, it is not snhstantially different from that of Virginia. The particular inhibition of its' constitution only contains, in terms, that which arises from the construction of the more general consti- tutions of the other States." Watkins vs. Holman, 16 Peters, pp. 25 and 60. 164 LEGISLATIVE POWER. country where forms are often overlooked, le&d to very serious consequences * To this we shall again have occasion to refer, when we come to speak of retrospec- tive statutes. So again, as to legislative acts affecting^ private property; By constitutional provisions gener- ally adopted, private property can be taken for public uses, on certain terms. But can it be taken for private uses ? Is an act depriving one man of his property for the benefit of another, a latv f Does it come within the scope of the legislative, or of the judicial functions ? Nor are these merely speculative or abstralct ques- tions. "We shall find them presenting themselves in a large class of cases which I am about to examine. The difficulty, generally, appears to have arisen from a want of clear perception as to the true nature of a law; or, in other wotds, a want, of accurate notions as to the boundary line which, under our systgra, divides the legislative and judicial powers. I now turn to a more detailed consideration of the cases in this country where these questions have been considered, and which, so far as they go, tend to give a practical definition ta the term law, and to define the boundaries which sep- arate the legislative from the judicial power. And first, of cases where the legislature has sought to divest itself of its real powers. Efforts have been made. In several cases, by the State legislatures to re- lieve themselves of the responsibility of their functions, by submitting statutes to the will of the people, in their primary capacity. But these proceedings have been held, and very rightly, to be entirely unconstitu- ' * Syracuse City Bank vs. Davis, 16 Barb. S. C. R. 188; 1 Kent's Com. p. 456. LEGISLATIVE POWER. 165 tional and invalid. The duties of legislation are not to be exercised by the people at large. The majority governs, but only in the prescribed form; the intro- duction of practices of this kind would remove all checks on hasty and improvident legislation, and great- ly diminisb the benefits of representative government. So where an act to establish free schools was, by its terms, directed to be submitted to the electors of the State, to become a law only in case a majority of the votes were given in its favor, it was held, in New York, that the whole proceeding was entirely void. " The legislature," said the Court of Appeals, " have no power to make such submission, nor had the people -the power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of this State is democratic ; but it is a representative democracy, and in passing general laws, the people act only through, their representatives in the legislature."* And in Pennsylvania, in the case of an excise statute,f the same stern and salutary doctrine has been applied. In some •of the more recent State constitutions this rule has been made a part of the fundamental law. So in Indiana, the principle is now framed into a constitu- tional provision which vests the legislative authority in a Senate and House of Kepresentatives, and declares that " no law shall be passed, the taking effect of which shall be made to depend upon any authority except as provided in the constitution." And under these pro- visions it has been held, that so much of an act as * Thome vs. Cramer, 15 Barb. 112; Barto vs. Himrod, 4 Seld. 483. t Parker vs. Commonwealth,. 6 Barr. 507. 166 LEGISLATIVE tOWER. relates to its submission to tlie popular vote, was null and void* For the same reason, that a legislature cannot return, or throw back upon the people the duty of making laws, for the same reason its powers cannot be dele- gated by it to any inferior authority. " It will not be contended," says Marshall, C. J., in the Supreme Court of the United States, "that Congress can delegate to the courts, or to any other tribunals, powers which are strictly legislative."f Another sort of departure from the true functions of the law-making power, -has been manifested in other cases. While, in the instances we have just noticed, the State legislatures have sought to relieve themselves from the responsibility justly devolving upon them ; in other cases they have been induced to trench on the functions of the legal tribunals, and, in the shape and under the name of laws, to assume the right to pass enactments really of a judicial nature. This practice has encountered similar opposition, and has been unfailingly and severely discountenanced. The legislature is to con- * Maize vs. The State, 4 Indiana, 342. See an able and independent opinion by Stuart, J. But I doubt whether, logically, the whole act should not fail. 2^on constat that the legislature would have passed the law without the clause in question. The New York and Pennsylvania decisions appear to me, in this respect, to rest on a sounder basis. t Wayman vs. Southatd, 10 Wheaton, pp. 1, 46. Still, it was intimated, in this case, that; the federal legislature could delegate to the courts power to make rules for their process ; and it was said, " The difference between the departments undoubtedly is, that the legislature makes, the executive- executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments ; and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.'' See also. United States Bank vs. Halstead, 10 Wheaton, 61, where the delegation of power, as far- as the process of the courts was concerned, was expressly held valid. LEGISLATIVE POWER. 167 fine itself to making laws, and cannot make decrees or determine private controversies. It has been said, that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some particular thing already doi^e or happened, while the other is a predetermination of what the law shall be for the regulation and govern- ment of all future cases falling under its provisions* This, like other definitions on this subject, may be defec- tive ; but the general idea is correct, and the efforts of the courts to repress the State legislatures within their proper limits, are very curious and instructive. It is difficult precisely to classify these objectionable laws, but they will be found, generally, to range under three heads :f First^ Where the legislature, by a special act, has sought to dispense with a general law in favor of an individual; Second^ Where the act is one of legislation for a particular case ; Third^ Where theact is, in its nature judicial, *. e. seeks to influence, directly or indirectly, the: determination of private controversies. In these cases the judiciary have, with an intelligence and firmness that do them great honor, frequently inter- posed to arrest the operations of the State legislatures ; and the legislatures, with equal intelligence and virtue, have, in a great majority of cases, recog- nized the wisdom and propriety of the judicial interference, and have, without contest or reluctance, made their action conform to the decisions of the courts. So in Vermont, an act of the Assembly releasing a debtor imprisoned on execution at the * Bates vs. Kimball, 2 Chip. 77. \ Davison us. Johonnpt, 7 Met. 889. 168 LEGISLATIVE POWER. suit of a party, from his imprisonment, and freeing Ms body from arrest for a limited time, has not the characteristics of a law, and is Void. And the court say, " A prescribed rule of civil conduct, is the correct and universally approved definition of municipal law."* So in the same State, a special act of the legislature, granting to a party the privilege of an appeal from a decision of th.6 commissioner on claims of an insolvent estate, after the time allowed by law for taking appeals in such oases, is void, " as being in the nature of a sen- tence or decree rather than a law, wholly retrospective in its operation, and taking away a vested right."f So in the same State, the legislature has been held to have no power to pass an act authorizing a probate court to renew a commission appointing commissioners upon the estate of a deceased person, after the commission has been closed, and after the expiration of the time lim- ited by the general law for its renewal. { So in Mas- sachusetts, where the Declaration of Eights declares (Art. 20), that the power of suspending the laws or the execution of the laws, ought never to be exercised but by the legislature or by authority derived from it, to be exercised in such particular cases only (which, means upon such particular laws) as the legislature shall expressly provide for, — ^it has been held, that a resolve of the legislature, empowering a judge of probate to take an administration bond in a mode differing from that prescribed by the general laws of * Ward vs. Barnard, 1 Aik. 121 ; Keith vs. Ware, 2 Verm. 175, decides the same point; see also, Lyman vs. Mower, 2 Verm. 617; and Kendall vs. Dodge, 3 Verm. 361. t Staniford vs. Barry, 1 Aik. 316. So a general act of the same kind is void, Hill vs. Town of Sunderland, 3 Verm. 607. I Bradford vs. Brooks, 2 Aik. 284. LEGISLATIVE POWER. 169 the commonwealth, is not imperative ; and that if it were, it would be unconstitutional* So in Tennessee, an act authorizing a party to prosecute a suit in the name of a deceased plaintiff, without taking out letters of administration, has been held void. The act, it was said, takes away from some tteir vested rights and gives them to ethers, changes the nature of obligations,- and dispenses with the liabili-" ties which all others in similar situations would lie under.f So in Vermont, an act granting an appeal beyond the time allowed by law, is a decree rather than a law, and void.J So an act of divorce giving alimony to the wife, has been declared to be an exercise of judicial powers, and void,§ Legislative divorces, like acts of attainder, are of English origin; and both equally result from a disregard of the true limits of legislation. As we shall see hereafter, in this country attainders are absolutely prohibited, and statutory divorces are coming to be viewed with almost equal disfavor. So an act by a State legislature declaring that a widow is entitled to dower, is a judicial determination, and void-l So an act of a State legislature authorizing a party to sell so much of the lands of a deceased per- son as would be sufficient to raise a given sum, and directing the proceeds to be applied to the extinguish- ment of certain claims against the estate of the deceased, is a judicial act, and as such unconstitutional and void.^ * Picquet, App't., 6 Pick. 65. See also Davison vs. Johonnot, 7 Met. 389. t Officer vs. Young, 5 Yerg. 320. t Bates vs. Kimball, 2 Chip, 7T. § Crane vs. Meginnis, 1 Gill & J. 463. i Edwards vs. Pope, 3 Scam. 465. H Lane vs. Dorman, 3 Scam. 238. 170 LEGISLATIVE POWER. la a case where a statute of limitations had run agaimst a demand, an act was passed allowing the plaintiff to commence and prosecute his • suit in the same way and manner as he might or could have done if the same had heen, commenced within the time pre- scribed by law ; but the court gave judgment notwith- standing the law, on the ground that the power of dis* pensing with the general law in particular cases, was not vested in the legislature* In Maine, it has been decided that the granting by the legislature of a new trial after the time for appeal was elapsed, is a judicial act and void.f So in Indiana, it was held that the alloT^ance of a new trial was a judicial act, and that an act of the legislaturegranting one, was unconstitutional and void.J And the Supreme Court of New York has well said, " The legislature has no right to deter- mine facts touching the rights of individuals.§ We have next to consider a class of cases where legis- lative bodies attempt to deal with private rights of prop- erty by authorizing sales, by changing or divesting titles. It is conceded that the legislature, in cases of necessity arising from the infancy, insanity, or other incompetency of those in whose behalf its acts are sought, has power to authorize by general laws the sale of private property for other than public uses, and that without the consent of the owner; and on this * Holden vs. James Admor, 11 Mass. 396. t Lewis vs. Webb, 3 Greenleaf, 326 ; Durham vs. Lewiston, 4 Green- leaf, 14(J. But where an act of the legislature of Connecticut granted a new trial after the term of appealing had elapsed, It was held to be constitutional on the ground that the usage of that State supported it, and that the usage was to be taken as evidence of its judicial law. — Calder et uxor vs. Bull, 3 Dan. 886; 1 Peters Cond. R. 172. } Young vs. The State Bank, 4 Indiana, 801. _ § Parmelee vs. Thompson, 7 Hill, 77. LEGISLATIVE POWER. 171 principle there are, in almost all the States of the Union, general statutes authorizing guardians or ad- ministrators, on proper application to sell the property of-infants or decedents, when the welfare of the infant or the true interest of the estate appears to require it. And the passage even of a private act authorizing an administratrix to sell real estate for the payment of debts, it being proved that the estate was insolvent, has been held by the Supreme Court ol the United States, to be within the competency of the legislature, and not to be a judicial proceeding ; and that although there was a general law on the same subject. It was in that case said, " The general law was passed from the knowledge which the legislature had of its expediency and necessity. The special law was passed from a knowledge of its propriety in the particular case, * * The legislature regulates descents and the conveyance of real estate. To define the rights of debtor and creditor is their common duty. The whole range of remedies lie within their province."* On this subject, however, there is considerable conflict between the views of the judiciary in the respective States. In Massachusetts, a resolve of the legislature authoriz- ing the guardian of a lunatic to sell his real estate and apply the proceeds to the payment of debts, has been held valid.f And so, in the same State, a resolve of the legislature authorizing a guardian to sell the real estate of his ward, notwithstanding a general power of the same kind resided in the courts, was held to be a valid law. J But in New Hampshire, * Watkins vs. Holman, 16 Peters, 25 and 61. t Davison vs. Johonnot, 7 Met. 388. J Rice vs. Parkman, 16 Mass. 326. 172 LEGISLATIVE POWEE. the court has given as its opinion, that the legislature can not authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards, on the ground that it is a judicial act* And in Tennessee, an act authorizing a guardian to sell land of his ward, the proceeds to be assets for the payment of debts, was held to be void on the same ground. "It is difficult," says the court, "to perceive how an act which determines that the prop- erty of a party is liable for a given debt, and that it shall be sold for the payment of that debt, is not a judicial act; and yet in substance, that is the case before us. It is true the sale is authorized for the payment of debts generally ; but that can make no difference. It is the same thing in principle, whether there be ten creditors or only one."f Notwithstanding the weight to which the judicial opinions of Massachusetts and of the highest federal tribunal, are justly entitled, I can entertain no doubt that the decisions which deny the propriety of legis- lative interference in these special cases, are founded on the true principle. There is no difficulty in mak- ing general laws for the administration of property in all cases ; and to these general laws, and to their appli- cation by judicial tribunals, individual cases should be left. A legislative body is, from its character, organization, and habits of business, entirely incom- petent to pass discreetly upon questions involving private rights ; and unless stringent rules prevent their interposition, it is impossible to say how miich fraud, injustice, and oppression may be perpetrated under the guise of law. * Opinion, 4 New Eamp. 572. t Jones vs. Perry, 10 Yerg. 59. LEGISLATIVE POWER. 173 There is still anotber class of cases, of this or an analogous kind, where — ^wten by reason of unforeseen contingencies, estates created by will or deed have be- come insufficient beneficially to manage the property to which they relate, and it is evident that no injury or injustice can be done^ — the legislature is considered com- petent to enlarge the powers of the person in the actual enjoyment of the property. So in case of a devise in trust for life to a woman, remainder to her issue, with, power of appointment to her by will, and the age of bearing children having passed, it is supposed compe- tent for the legislature to enlarge the power to lease, on the ground that the estate being but for life, the property cannot be advantageously used, and that no one can possibly be injured by the permission. So in Pennsylvania, a private act of Assembly authorizing the guardians of infant children the title to whose real estate is vested in the guardians, to convey the estate to a person with whom the parent of the children, before his death, contracted to sell it, is valid. " A power," says the court, " to supply the want of trustees, to enable some person to complete defective titles, instead of and for the use of infants and others, must exist somewhere in every government."* But the power of the legislature has been held to be limited to cases which, on their face, show a necessity of this nature, and that if neither the statute show any such fact, nor proof is offered of such a state of things, an act interfering in any way with a private right of pri- vate property without the owner's consent, will be void. So in New York, in a case already noticed, lands were devised to trustees for the use of the testator's * Estep vs. Hutchman, 14 Serg. & R. 435. 174: LEGISLATIVE POWER. daughter for life, witt remainder in fee to certain par- ties named in the will; and during the life of the daughter a statute was passed authorizing the trustees to sell the lands, out of the proceeds to pay their com- missions, &c. &c., and to invest the surplus upon the trusts declared in the will, — the general power of the legislature was not denied ; hut the act was held void upon the ground of no necessity appearing on the face of the statute, or in any way, that the interests of the remainder-men should be thus disposed of* Indeed, except in very special cases, the power of the legisla- ture to interfere with private rights of property, has been generally resisted, and it has been de- clared that the right to make Imos does not embrace the authority to affect or interfere with private prop- erty except where the right of eminent domain is ex- ercised as provided for in the State constitutions. So in a case involving the validity of the statutory pro- visions of the State of New York, authorizing a pri- vate road to be laid out over the lands of a person without his consent ; Mr. Justice Bronson, after admit- ting the right to take private property for public use, making just compensation therefor, held as follows : " There is no provision in the constitution that just compensation shall be made to the owner when his property is taken for private pur- poses ; and if the power exists- to take the property of one man and transfer it to another, it may be exercised without any reference to compensation. The power of making bargains for individuals, has not been delegated to any branch of the government ; and if the title of A can be, without his fault, transferred to B, it may as well be done with- * Powers vs. Bergen, 2 Seld. 868 ; I have already commented on this case, ante, p. 157. See another act of this kind in New York, entitled An Act relative to land devised by Jas. Morris, deceased ; Laws of 1853, c. 14. LEGISLATIVE POWER. , 175 out as with a consideration. This view of the question is suflScient to put us upon the inquiry where can the power be found to pass such a law as that here under consideration. It is not to be presumed that such a power exists, and those who set it up should tell us where it may be found. Under our form of'government, the legislature is not supreme ; it is only one of the organs of that absolute sovereignty which resides in the whole body of the people ; like other departments of govern- ment, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the State who transcends his jurisdiction, are utterly void. Where, then, shall we find a delegation of power to take the property of A and give it to B, either with or without compensa- tion ? Only one clause in the constitution can be cited in support of the power, and that is the first section of the first article, where the people have declared that ' The legislative power of the State shall be vested in a senate and assembly.^ It is readily admitted* that the two houses, subject only to the qualified negative of the governor, possess all the legislative power of this State ; but the question immediately presents itself — What is that legislative power, and how far does it extend ? Does it reach the life, liberty, or property of the citizen who is not charged with a transgression of the laws, and when the sacrifice is not demanded by a just regard for the public welfare ? * * * The security of life, liberty, and property, lies at the foundation of the social compact ; and to say that this grant of ' legislative power ' includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating .one of the great ends for which governments were established. If there was not one word of qualification in the whole instrument, I should feel great diflSculty in bringing my mind to the conclusion that the clause under consideration had clothed the legislature with despotic power ; and such is the extent of their authority if they can take the property of A either with or without compensation, and give it to B. The ' legi slative power of this State ' does not reach to such an unwarrantable extent. Neither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power."* * Taybr vs. Porter, 4 Hill, 140. See the case cited with approbation in Powers vs. Bergen, 2 Sel. 358. But as we have already seen, ante p. 155, Mr. Justice Bronson does not rest his decision merely on this 1T6 ■ LEGISLATIVE POWER. "We thus find that practice and experience are grad- ually supplying the definitions which the State consti- tutions omit. It is, in truth, extremely difficult to define with any precision, the exact nature of a law. Omnia deflnitid in jure civili periculosa est / parv/m est, enim, ut non subverti posset* says the Digest ; and this is eminently true of the subject before us. . Laws are usually intended for future cases ; but we shall see hereafter, that they are often rightly and necessarily retrospective. They are in one sense general and uni- form ; but in others they are strictly local and partial. They usually afifect public interests ; but they often re- late only to private objects. So that any attempt to define, by precise terms, the boundaries of the legisla- tive duties, would probably occasion difficulties greater than those resulting from the present imperfect nomen- clature. The Supreme Court of the United States has well said, "It is difficult to draw a line that shall show with precision the limitation of powers under our form of government. The executive, in acting upon claims for services Tendered, may be said to exercise, if not in form, in substance, a judicial power. And so, a court in the use of a discretion essential to its existence, by the adoption of rules or otherwise, may be said to legislate. A legislature too, in providing for the pay- ment of a claim, exercises a power in its nature judicial."f We may, however, perhaps, deduce as correct con- construction of the phrase " legislative power." He rather makes his judg- ment depend on the true appUcation of the clauses " law of the land " and " due process of law." * L 202, ff. de Reg. Jur. t Watkins vs. Holman, 16 Peters, 25. WHAT IS A LAW. 177 elusions from the decided cases which we have thus far examined : First. That a law must receive its final sanction and enactment from the legislature, and that, the trust of the popular representatives can neither be returned to the people, nor delegated to any other power. Second. That a statute which dispenses in favor of some particular individual, with the general rules gov- erning similar cases, does not come within the rightful attributes of legislative power, and is not to be regard- ed as a law. Third. That a statute which seeks to affect or influ- ence the determination of any private contested right, is for the same reasons equally vicious and void. Fourth. That a statute which, without some controll- ing public necessity and for public objects, seeks to affect or interfere with vested rights of private prop- erty, is equally beyond the true limits of the legislative power. To all these rules, the ingenious mind will readily suggest exceptions ; but while they do hot claim the accuracy of definitions, they will serve, perhaps, as an approximation to correct ideas upon the sub- ject. The correctness, of the last rule tutns, indeed, on the meaning attached to the words " vested rights It is very certain that the legislature cannot deprive a man of real property in which he has either a vested or a contingent right; but there is, unfortunately, a Targe class of cases wh^re, by statutes changing reme- dies, repealing laws, and retroactive enacinients, posi- tive and absolute rights are taken away. Thus, in the case of a law abolishing arrest and imprisonment for debt, the remedy is in the power of the legislature ; and the law may, if the legislature sees fit, be made 13 178 BILLS OF RIGHTS. retroactive, and in that case tlie right of the plaintiff against the bail, unless he is absolutely fixed, is com- pletely defeated. Cases of this and an analogous kind, frequently present great suffering and great loss, result- ing ftom reckless legislation; still, the right of the legislature to interfere has been repeatedly affirmed,, and is generally recognized. Until some clearer notion shall be hfid of the precise extent to which legislative bodies may act upon rights of property, the whole subject must be considered as in a state of very unsatis- factory uncertainty. All that we can do is, as I have said, to approach correct results. In considering the subject of the supremacy of the legislature in this country, and the power of the judiciary, we have thtis far discussed the question as turning on the organization of the three great branches of government; but other considerations present themselves, growing out of the different terms of the State constitutions in Other particulars; for though generally alike, they differ in their details. Some confine themselves to the mere organization of the government and the distribution of powers, imposing such limitations as is seen fit, on the legislalture ; but generally they contain in the shape of a declaration of rights, or bill of rights, the enumeration of certain great political truths essential to the existence of free government. As, for instance, in Maine :* " All men are born equally free and independent, and have certain natural, inherent, and individual rights, among which are those of enjoying and defending life and liberty, acquiring property, and protecting property, and pur- suing and obtaining safety and happiness. All power * Cons. Decl. of Rights, §§ 1 and 2. BILLS OF RIGHTS. 179 is inherent in the people; all free governments are founded on their authority and instituted for their benefit ; and they have, therefore, an inherent and inde- feasible right to institute government, and to alter, reform, or totally change the same when their safety and happiness require it." So in Illinois, the same principles are announced in the Declaration of Eights, and it is added that "a frequent recurrence to the fundamental principles of civil government, is abso- lutely necessary to preserve the blessings of liberty,"* So in the Pennsylvania Constitution, the 9th Article, in order that the general good and essential principles of liberty and free government may be recognized and unalterably established, declares the rights of the people substantially in the language of the Maine constitution, and goes on to say, § 26, " that in order to guard against transgressions of the high powers which we have dele- gated, we declare that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate."f These great truths will thus be found set out in a large majority of the State constitutions. They are of no little value as safeguards against errors and injustice; but I think they must be regarded rather as guides for the political conscience of the legislature, than as texts of judicial duty. Important as they are, still they are expressed in such general terms as necessarily to admit of great and prominent exceptions. All men are born "free and independ- ent ;" but we keep Africans in slavery, Indians in sub- jection, > minors in absolute tutelage till tventy-one^ * See in Illinois, the 13th Articleof the Constitution; Blackwell on Tax Titles, p. 15. t Sharpless vs. The Mayor of Philad., 21,Penn. 147. 180 JUDICIAL POWER, ■ ' ''^ and married women in a state of quasi-dependence all their lives. As to the enjoyment of life and liberty, property, and the pursuit of happiness, all these rights are daily interfered with by the legis- lature, without scruple, for the common welfare. I suppose it must be admitted that, in a judicial sense, these clauses could not easily be made available. The landmarks of the legislative and judicial authority are rather to be found in the division of power, con- tained in the constitution, among the three great branches of government, and the specific limitations imposed by the instrument on the law-making branch, than in these general declarations of political truths. Having thus attempted to consider the true meaning of the term law, and the general language of our State- constitutions, we recur to the question: "Shall the judiciary on any ground of general morality and jus- tice, exercise any power over legislative acts, independ- ently of the express restrictions in our constitutions, or necessarily resulting from them ? It will be observed that the principal arguments in favor of the doctrine, that the judiciary may arrest acts of legislation on the ground that ,they are unjust or immoral, rest on two points : first, that there should be no absolute, despotic, uncontrollable power in a free State ; and secondly, that there are certain principles of natural justice which not even the legislature can be permitted to disregard. I cannot but think both these arguments fallacious. If, by the assertion that absolute power is inadnais- sible, it is meant to insist that there should be no single supreme authority in' which all the functions of government center, and to which all the agents of the government are subordinate, like that of the Roman JUDICIAL POWER. 181 empire in its latter stages, tlie proposition is a mere truism. The bare enumeration of the division of powers under our system, sufficiently answers the com- plaint. But if it is meant to assert that there shoujd be no absolute power in each department of the govern- ment, then it is so far from being true, that, on the contrary, without such power no government could regularly exist an hour ; all would be conflict and confusion. It cannot be denied that, practically^ despotic power must somewhere exist in every system that assumes to order and regularity. Appeals must terminate, controversies must cease, discussions must end, and the business of life proceed. To effect this^ it is indispensable that there be somewhere lodged,, in regard to the operations of every department of government, a supreme, inexorable power whose de- cision is conclusive ; and whether the system be that of a monarchy, an oligarchy, a democracy, or that mixed form under which we live, such power will always be found. In the very case before us, what is the result of the reasoning but to claim for the judi- ciary the very absolutism which is denied to the legis- lature ? If the statute is conclusive^ then the legisla- ture is absolute ;-^granted. But if the judgment of the court is final, — and to be efficacious, it must be so, — then you encounter the same difficulty, at only one remove. The other argument appears equally erroneous. It is very plausible to say that the legislature ought not to be permitted to do any thing flagrantly unjust, as, to take the property of A and give it to B, to make a man judge in his own case, or to, commit any other en- ormity. But in every case there are disputed ques- tions of fact as well as of principle ; and the real point 182 JUDICIAL POWER. is whether the legislature shall decide on the nature of the public exigency and the rights of its subjects, or whether the judiciary shall assume that power. It is conceded that the power of the legislature must be confined to " making laws." But the very words of our ^tate constitutions which declare them the law-mak- ing power, exclude the judiciary from any share in it ; and such share they will undoubtedly have if they are at liberty to refuse to execute a statute, on the ground that it conflicts with their notions of morality or justice. The very vagueness of the power is, moreover, fatal to it. Constitutional provisions may be ambiguous ; the doctrine of interpretation is vague ; but these branches of the judicial authority are subject to some tests, and can be circumscribed within some limits. But who will undertake to decide what are the principles of eternal justice ? And who can pretend to fix any limits to the judicial power, if they have the right to annul the operations of the legislature on the ground that they are repugnant to natural right ? There may be, there always will be, questions not only as to the expediency but the justice of laws. But questions of public policy and State necessity are not meant to be assigned to the domain of the courts ; and I cannot but think it unfortunate for the real influence of the judiciary, that this authority has ever been claimed for them. The right of construction, the right of applying constitutional restrictions, are vast powers, which it will always require great sagacity and intelligence to exercise. Let the judiciary rest con- tented with its acknowledged prerogatives, and not attempt to arrogate an authority so vague and so dan- gerous as the power to define and declare the doctrines of natural law and of abstract right. JUDICIAL POWER. 183 It will be seen on examining the authorities which I -now proceed to cite, that the views here urged are those of many of our soundest judges and legal writers: ■" Strong expressions may he found in the books," says Mr. Justice Cowen, in the Supreme Court of New York, ■" against legislative interference with- vested rights ; but it is not conceivable that, after allowing the few restrictions to be found in the federal and State con- ■stitutions, any further bounds can be set to legislative power by written prescription."* Kent says,f " Where it is^said that a statute is contrary to natural equity or reason, or repugnant or impossible to be performled, the cases are understood to mean that the court is to give them a reasonable construction. They will not readily presume out of respect and duty to the law- giver, that every unjust Or absurd consequence was within the contemplation of the law ; but if it should happen to be too palpable to meet with but one con- •struction, there is no doubt in the English law, of the binding efficacy of the statute." J In a case where it was contended that an act of the legislature of New Jersey was void as against natural justice, Mr. Justice Baldwin, of the Supreme Court of the United States^ used this language :—" We cannot declare a legislative act void because it conflicts with our opinions of "policy, expediency, or justice. We are not the guardians of the rights of the,people of the State, unless they are secured by some constitutional provi- sion which comes within our judicial cognizance. The remedy for unwise or oppressive legislation, within con- stitutional bounds, is by an appeal to the justice and * Butler vs. Palmer, 1 Hill, 324. t 1 Com. p. 408. I See also, 1 Com. p. 488. 184 JUDICIAL POWER. patriotism of the representatives of the people. If this fail, the people in their sovereign capacity, can correct the evil ; but courts cannot assume their rights." * * " There is no paramount and supreme law which defines the law of nature, or settles those great principles of legislation which are said to control State legislatures in the exercise of the powers conferred on them by the people in the constitution."* The same conclusion is arrived at in a very able opinion of Mf. Senator Verplanck, in the Court of Errors of New York. He says, — " It is difficult, upon any general principles, to limit tte omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority. There are, indeed, many dicta, and some great authorities, holding that acts contrary to the first principles of right, are void. The principle is un- questionably sound as the governing rule of a legislature, in relation to its own acts, or even, those of a preceding legislature. It also affords a safe rule of construction for courts, in the interpretation of laws admitting- of any doubtful construction, to presume that the legislature could not have intended an unequal and unjust operation of its statutes. Such a construction ought never to be given to legislative language, if it be sus- ceptible of any other more conformable to justice ; but if the words b& positive and without ambiguity, I can find no authority for a court to vacate or repeal a statute on that ground alone. But it is only in express- constitutional provisions, limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law, settled by the deliberate wisdom of -the nation, that I can find a safe and solid ground for the authority of courts of justice to declare void any legislative en.actment. Any assumption of authority beyond this would be to place in the hands of a judiciary, powers too great and too undefined either for its own security or the protection of private rights."' ,' * * '* * * * * " Believing that we are to rely upon these and similar provisions, as the best safeguards of our rights, as well as the safest author^ities for * Bennett vs. Boggs, 1 Bald. 74 and 75. JUDICIAL POWER. 185 judicial direction, I cannot bring myself to approve of the power of courts to annul any law solemnly passed, either on an assumed ground of its being contrary to natural equity, or from a broad, loose, and vague interpretation of a constitutional provision beyond its natural and obvious sense. There is no provision of the old State constitution that, in my_ understanding of it, so limits the power of the legislature over the property of its citizens as to enable a court to set aside> these statutes, or titles acquired under them, on the ground of unconstitu- tional enactment."* In Pennsylvania, on the same principle, it has been held that the courts have no control over the legisla- tive power of taxation, however unequally or oppres- sively it may be exercised ;f and Gibson, C. J.; in deliv- ering the judgment of the court, said, — • " In every American State, the people, in the aggregate, constitute the sovereign, with no limitation of its power but its own will, and no trustee of it but its own appointee. But this sovereign, from the nature of its structure, is unable to wield its power with its own hands ; whence delegation of it to agents, who constitute the immediate' government. But it is a postulate of a State constitution, which distinguishes it from the federal, that all the power of the people is delegated by it, except such parts of it as are specifically reserved ;. and the whole of it is, with- out exception, vested in the constitutional dispensers of the people's money. As regards taxation, there is.no limitation of it. Equality of contribution is not enjoined in the bill of rights, and probably because it was known to be impracticable." * * "If equality were practi- cable, in what branch of the government would power to enforce it reside 1 Not in the judiciary, unless it were competent to set aside a law free from collision with the constitution, because it seemed unjust. It could interpose only by overstepping the limits of its sphere ; by arro- gating to itself a power beyond its province ; by producing intestine discord ; and by setting an example which other orgtos of the govern- ment might not be slow to follow. It is its peculiar duty to keep the first lines of the constitution clear, and not to stretch its power in order * Cochran vs. Van Surley, 20 Wend. 381." t Kirby vs. Shaw, 7 Harris, Penn. R. 258. 186 . JUDICIAL POWER. * to correct legislative or executive abuses. Every branch of the govern- ment, the judiciary included, does injustice for which there is no rem- edy, because every thing human is imperfect. The siim of the matter is, that the taxing power must be left to that part of the government which is to exercise it."* In South Carolina a similar doctrine has been Held, in regard to taMng private property, though with some division of opinion.f And, when we come to consider the subject of constitutional restrictions on legislative power, in detail, we shall find that the idea of any judicial power over the equity or equality of taxation has been .generally denied. J So in a late case in Penn- sylvania, the whole subject was reviewed, in an able and elaborate opinion, by Mr. Chief Justice Black, of the Supreme Court ; and he said ; — "'We are urged to hold that a law, though not prohibited, is void if it violate the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect ; and to declare it unconstitutional if it be wrong and unjust. But we cannot do this. It would be assuming a right to change the constitution ; to supply what we might conceive to be its defects ; to fill up every casus omissus; and to interpolate into it whatever, in our opinion, ought to have been put there by its framers.. The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument ; we become ourselves the aggressors, and violate both the letter and the spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away ; if we can mend, we can mar ; if we can remove the landmarks which we find established, we can obliterate them ; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely. The great powers * Kirby vs. Shaw, 7 Harris (Penn.) R. 258. t State vs. Dawson, 8 Hill R. 100. I People vs. Mayor of Brooklyn, 4 Corns. 423 ; Town of Guilford vs. Cornell, 18 Barb. 615. JUDICIAL POWER. 18Y given to the legislature are liable td be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived Of a government with power sufScient to answer its legiti- mate ends, and at the same time incapable of mischief. No political system can be made so perfect that its rulers will always hold it ta the true course. In the very best, a great deal must be trusted to the dis - cretion of those who administer it. In ours, the people have given larger powers-to the legislature, and relied, for the faithful execution of them, on the wisdom and honesty of that department, and on' .the direct ac- countability of the inembers to their constituents. There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary."* In this Conflict of opinion we cannotsafely pronounce the question settled on authority ; but I think, as a matter of reason, that we may safely hold. Firsts That the legislature is to confine itself to its function of " making laws ;" and we have considered the general features and characteristics of a law. The imperfection of language does not permit us to define with absolute precision the meaning of the term " Zaw," but each case must depend on its peculiar features. Second, That it is the right and duty of the judiciary to repress and confine the legislative body within the true limits of the law-making power; but that they have no right whatever to set aside, to arrest, or nullify a law passed in relation to a subject within the scope of the legislative authority, on the ground that it con- flicts with their notions of natural right, abstract jus- tice, or sound morality. ' * Sharplessm The Mayor, &c., 21 Penn. 147, 162. See this subject also discussed in Braddee m. Brownfield, 2 Watts & Serg. 271; Harvey vs. Thomas, 10 Watts, 63 ; Calder m. Bull, 3 Dallas, 386; Fletcher vs. Peck, 6 Cranch, 87 ; Bloodgood vs. Mohawk and Hudson R. R. Co., 18 Wend. 9 ; Terrett w. Taylor, 9 Cranch, 43 ; Bowman vs. Middleton, 1 Bay, 252 ; Bona- parte vs. Camden and Amboy Railroad Company, 1 Baldw. 0. 0. R. 205. 188 RETROSPECTIVE STATUTES. In the strict order of the argument that we are pur- suing, I should now turn to the judicial power of con- struction ; but, closely connected with the subject which we have just considered, is one which I can in no other place so fitly discuss, that of retroactive or retrospec- tive statutes, the power to pass which has been fre- quently denied on the ground that they conflict with true notions of justice and right. I shall here examine the question, and then finally 3,rrive at the subject of interpretation. Retro^ectwe or Hetroactwe Statutes. — A statute which takes away or impairs any vested righ^ acquired under existing laws, or creates a new obligation, or im- poses a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive.* The power of a legislature to pass laws having such an effect, has often been denied by philosophical writers. Puffendorf says, " A law can be repealed by the law- giver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice, to abolish with a law all the effects which it had produced."f The CivU Law says, " Zeges et constiiniUones ful/wris cer- tmn est da/re formam negotiis, non ad facta prwterita revocari, nisi nomi/naUm et de prceterito tempore et ad- hue pendentihtts negotiis cautum sit.^^X From the civil law, Bracton adopted the same maxim. '■'■Nova consti- tutio futuris formam debet imponere^ non prcderitis.^'' Lord Bacon says, in his quaint and poetical style, but in a more guarded manner : " Leges guoe ret/rospi- * Society for Prop, of Gospel rs. Wheeler, 2 Gallison, 105. t Droit de la Nat., L. i. c. 6. § 6. X Cod., L. i. Tit. xiv. § 7. RETROSPECTIVE STATUTES. 189 emnt to/to^ magna cum cautions, adhihendoe ; neque enim placet Janns in legibios. Ga/oevicl/um tamen est ne convellanlmr res judicatoe. Leges decla/ratorias ne or- dinato, nisi in casiius uhi leges cum justitia retrospi- cere possinf^* And one of tte standard writers of our law says, it is in general true that no statute is to have a retrospect beyond the time of its commehcement.f . From text-writers, the maxim has been incorporated into codes of law. The French code contains a positive provision that laws are made only for future cases, and can have no retrospective effect. "The law directs for the future cases only ; it has no retro- spective effect."J So, the constitution of New Hamp- shire § declares, " Eetrospective laws are highly injurious, oppressive, and unjust. No such laws should, therefore, be made, either for the decision of civU cases or the punishment of offenses." The principle has, indeed, been generally adhered to with great steadiness, both in England and in this country. So in a case under the statute of frauds, which,, as originally passed (29 Car. II. c. 3), enacted that no action should be brought on any parol promise, on and after the 24th June, 1677, an effort was made to extend its operation to a promise made in 1676 ; but it was held that the statute was not to re- ceive a retroactive effect ; the court saying that it would be a great mischief to explain it otherwise, to annul all promises by parol before that time, upon which men had trusted and depended, reckoning them good and * De Aug. Scient., Lib. viii. c. 3 ; Aphor. 4V, 51. t Bacon, Ahr. Statute. X La Loi ne dispose que pour I'avenir, elle n'a point d'eflfet retroactif.— .Code Civil, § 2. § Part i. § 23. 190 RETROSPECTIVE STATUTES. valid ia law ; and judgment was given for the plaintiff.* So again, in an action for a penalty in not paying a stamp duty. After verdict, tlie defendant moved to stay judgment, urging that he was entitled to relief on the ground that he had paid the duty under a clause of the act which discharged parties who had incurred penalties if they paid their duties before a certain time; and the question being whether the act related to actions commenced before its passage, the King's Bench denied the motion,- Lord Mansfield saying, " It can never be the true construction of this act, to take away these vested rights and punish the innocent pur- suer with costs."f " All "laws," says Blackstone, " should be made to commence in fuPuro, and be notified be- fore their commencement."J The effort of the English courts appears, indeed, always to be to give the statutes of that kingdom a prospective effect only, unless the language is so clear and imperative as not to admit of doubt. " The prin- ciple," says the English Court of Exchequer, " is one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legis- lature meant it to operate retrospectively."! This principle inay have been lost sight of in some cases,} but has, on the whole, been steadily adhered to. So, where a statute (8 and 9 Vic, c. 109, 8 Aug. 1845) en- * Helmore vs. Shuter, 2 Show. 17. t Couch q. tarn vs. Jefiries, 4 Burr, 2460. X Com. i. p. 46. § Moon vs. Durden, 2 Exchequer B. 22. S Towler vs. Ohatterton, 6 Bing. 268 ; Freeman vi. Moyes, 1 Ad. & EIL 3S8 ; Pickup vs. Wharton, 2 C. & M. 401 ; Grant vs. Kemp, id. 636. RETROSPECTIVE STATUTES. 191 acted that all contracts and agreements by way of gaming or ■wagering, shall le null and void, and that no suit shall he brought or maintained in any court upon any wager, it was held that the statute was not to receive a retroactive construction so as to defeat a suit on a wager commenced before the statute passed* But it also appears to be clearly settled in England, that the rule to give statutes a prospective operation, is one of construction merely ; that it will yield to the intention of the legislature, if clear beyond doubt ; and that the only question is, whether the retroactive in- tention is suflGlciently expressed ;f and this is in entire harmony with the English doctrine which we have already considered, that Parliament is supreme, and that there is no constitutional check on the supremacy of the law-making power. In this country, the same opposition to giving stat- utes a retroactive effect, hasb)een manifested ; and such is the general tenor of our decisions. There are, indeed, here, two classes of retroactive laws absolutely forbid- den by the federal Constitution. That great charter of our rights and liberties declares (Art, i.. Sec. 10) that no State shall pass any ex post facta law, or law impairing the obligation of contracts. We shall have occasion hereafter to consider this clause more particu- larly ; but we may here notice that the term ex post facto applies only to criminal laws.J Many of the State constitutions also contain clauses prohibiting ex post facto laws; but this phrase has, I believe, * Moon vs. Burden, 2 Exch. 22 ; and also, Edmonds vs. Lawley, 6 M. & W. 285 ; and Ashburnham, 2 Atk. 36. t Moon vs. Burden, 2 Exch. 22, per Parke, B. t Colder and wife vs. Bull and wife, 3 Ball. 386 ; Dash vs. Van Kleeok, 7 Johnson, p. 477. 192 RETROSPECTIVE STATpTES. been uniformly held to apply only to criminal legislation. And we have already noticed that the obligation of contracts does not include the remedy. With these niodifications, however, the power of the federal tribunals has been steadily exercised, and State laws of a criminal nature having a retroactive effect, or laws in any way impairing the obligation of contracts, are held .to be void, and their operation arrested by the government of the United States. It is, however, equally well settled, that a law is not unconstitutional under the Constitution merely because it is retrospec- tive in its terms. A conflict arose in the State of Penn- sylvania, as to lands held under what were called Connecticut titles ; and in 1825, on a case growing out of this question, the Supreme Court of Pennsylvania held that the relations between landlord and tenant could not exist between persons holding under siich a title. Immediately after this decision, the legislature of Pennsylvania passed an act by which it was enacted that the relation of landlord and tenant should exist, and be held as fully between Connecticut settlers and Pennsylvania claimants, as between other citizens of the commonwealth ; and this act, the Supreme Court, in a subsequent case, held to be retrospective in its effect. A writ of error was taken to the Supreme Court of the United States ; but the judgment was affirmed, — ^the court saying that the act did not impair the obligation of the contract. " It is said to be retro- spedtive. Be it so ; but retrospective laws which do not impair the obligation of contracts or partake the character of ex post facto laws, are not condemned or forbidden by any part of the Constitution."* * Satterlee vs. Matthewson, 2 Peters, 880. RETROSPECTIVE STATUTES. 193 We have already* considered tlie retrospective effect of repealing statutes, and the efforts that have been made to limit that operation. It has often, indeed, been said that statutes can never be made to work retrospectively so as to defeat or destroy a vested right ; but we have already had occasion to question the correctness of this proposition as a general rule in regard to the operation of statutes. What is a vested right of property ? Some vested rights are protected by the Federal Constitution, others by the general limitation of the law-making power to which I have just referred. Other rights again, although created by positive law, are considered entirely under the control of legislation, and, indeed, treated as not being vested at all. The same difficulty of drawing the precise line, and of laying down any definition, exists here that we have already noticed in regard to the term law. The inherent difficulty of the subject can only be mastered by a frequent reference to principles, and a familiar acquaintance with adjudged cases. But we may affirm as a general rule, that — ^with the exception of those cases outside of the true limits of the law-making power, of those cases growing out of the restrictions of the Fed- eral Constitution ; and excepting also where, as in New Hampshire, the States themselves have adopted a posi- tive prohibition — it is in this country considered com- petent for the State legislatures to pass laws having a retrospective effect; the only judicial check on the power being that the courts refuse^ to give statutes a re- troactive construction unless the intention is so clear and positive as by no possibility to admit of any other con- struction. But, on the other hand, it is equally true that they are greatly discountenanced, and that the desire * Ante, p. 134. 13 194: RETROSPECTIVE STATUTES. and effort of the courts is always to give a statute a pro- spective Operation only. The subject was considered at an early day in the State of New York. The Su- preme Court of that State, in a case arising on the construction of an act giving prisoners charged in exe- cution certain gaol liberties, held that a return or recaption before suit would be no excuse to the sheriff in an action against him for an escape.* Upon this the legislature passed an act (5th April, 1810, 33 Sess., c. 187) declaring that a return or recaption before suit brought should be a good defence. An action was brought against a sheriff for an escape, in which after issue joined the act in question having been passed, it was insisted that the sheriff was entitled to the benefit of the statute, on the ground that it should be held to operate retrospectively ; and it was alsa strenuously insisted that the act was an explanatory act, and |ihat if it was in any way competent for the legislature to alter the law retrospectively, they had in this case done it. The court was divided; but the majority held that the plaintiff bad a Vested right of recovery ; that the act was not expressly retrospective ; that the statute would, if , retrospectively construed, operate unjustly, as it would defeat a suit already commenced upon a right already vested, and thus punish an innocent party, with costs, as well as divest him of a right previously acquired under the existing law. Thompson, J., said, " It may in general be truly observed of retrospective laws of every description, that they neither accord with sound legislation nor the fundamental principles of the social compact. How unjust then, the imputation against the legislature, that they intend a law to be of that description, unless the * Tillman vs. Lansing, 4 J. R. 45. EETEOSPECTIVE STATUTES. 195 most clear and unequivocal expressions are adopted !" Kent, J., said* " I think it can be shown that the act cannot be adjjadged to operate either as a new rule for the government of a past case, or as interpreting a former statute for the direction of the courts ; and I should be unwilling to consider any act so intended, unless that intention was made i^anifest by express words ; because it would be a violation of fundamental principles, which is never to be presumed."* So again, in the same State, more recently, it has been held to be a general rule that a statute affecting rights and liaibilities should not be so construed as to act upon those already existing. To give it that effect, the statute should in terms declare an intention so to act.f So again, in another case, the court say, " Not- withstanding the peculiar phraseology of the section relied on by the plaintiffs' counsel, we think it ought not to be so considered as to give it a retroactive effect."J So again, in the same State, a statute authorizing a writ of error in behalf of the people, to review a judgment rendered in favor of a defendant, has been held not to authorize such writ to review a judgment rendered prior to the passing of the statute,§ and j * Dash vs. Van Kleeck, 7 J. R. 477. Spencer and Yates, were in favor of the retrospective effect. Kent, Thompson, and Van Ness united in the judgment. See this case cited in Wood vs. Oakley, 11 Paige, 400. t Johnson vs. Burrell, 2 Hin, 238. In this case it was held that the provision of the revised statutes which declares that all actions upon judg- ments rendered in ' any court not heing a court of record, shall be com- menced within six years next after the cause of action .occurred, does not apply to justices' judgments rendered before 1830. X Bailey vs. the Mayor, &c., 7 Hill, 146 ; and it was held that the third section of the act passed May 7th, 1844, authorizing interest to be taxed upon verdicts, &c. (Sess. Laws of 1844, p. 508), does not apply to verdicts rendered before the act was passed, but is to be construed prospectively. § The People vs. Carnal, 2 Selden, 463. I Lawrence vs. Miller, 2 Corns. 245, 251. 196 , RETROSPECTIVE STATUTES. Mr. Justice Shankland, in another recent case, well calls the maxim which I have above cited from Brac- ton, " the primary rule xfor the interpretation of statutes," So too, in Mississippi, it has been said that " as a general rule for the interpretation of statutes, it may be laid down that they never should be allowed a retrospective opera-tion where this is not i-equired by express command, or by necessary and unavoidable im- plication. Without such command or implication, they «peak and operate upon the future only ; especially •should this rule of interpretation prevail when the •effect and operation of a law are designed apart from "the intrinsic merits of the rights of parties to restrict the operation of those rights." And the court decided that the act of that State, passed in 1846, limiting the effect of foreign judgments against citizens of Mississippi, ■to three years from the rendition thereof, could have no effect on judgments obtained before the passage of the act ; or in other words, that it was not to be con- strued retroactively, and that a judgment recovered in Louisiana in 1844, was not to be affected by it.* So in Pennsylvania, a statute allowing a writ of error in cases where none lay before the passage of the act, has been held not to apply to a judgment obtained before the act was passed. " My respect for the legislature," said Eogers, J., in delivering the opinion of the court, " is too great to allow me for a single instant to suppose that they designed so great a wrong as by a retrospec- tive act, to make that right which was clearly wrong. But granting that intention to be clearly expressed, I have no hesitation in saying that the act is unconstitu- * Boyd vs. Barrenger, 23 Miss. R. 270 ; Garrett vs. Beaumont, 24 Miss. R 377 ; Murray vs. Gibson, 15 Howard, U. S. R. 421. RETROSPECTIVE STATUTES. 197 tipnal and void. The legislature has no power, as has been repeatedly held, to interfere with vested rights. To give the property of A to B, is clearly beyond legis- lative authority."* In Maine, by the constitution of which State rfihe right is secured to ^very citizen, of possessing, acquir- ing, and enjoying property, it has been decided that a statute of limitation fixing the time within which actions are to be brought for the recovery of lands, can- have no retroactive effect on titles existing when it was passed ; and the same principle was apphed to a dis- seizin act relating to the mode of adverse possession.f So in Vermont, it has been held that statutes of limitation are not to have a retrospective operation. J In 1850, the legislature of Connecticut passed an act declaring that " all real estate conveyed to a married woman during coverture, in consideration of money or other property acquired by her personal services during such coverture, should be held by her to her sole and separate use ;" and it has been held that the statute was not to have a retrospective effect. " Thd presumption is," said the court, " that all statutes are to operate pro- spectively, and were not made to impair vested rights. In some cases, statutes may have a retrospective effect ; yet, such a construction is never to be given to thent unless required in the most explicit terms."§ We have already noticed the clause in the constitu- tion of New Hampshire, prohibiting retrospective iegis- * McCabe vs. Emerson, 6 Har. Penn. R. 111. t Proprietors of Kennebec Purchase vs. Laboree et als., 2 Greenleaf Eep. 275 ; Oriental Bank vs. Freese, 18 Maine Rep. 109 ; Austin vs. Stevens, 24 Maine R. 520 ; Preston vs. Drew, 5 Law Repotter,jN. S. 189 ; Webster vs. Cooper, 14 Howard, U. S. R. 488. J Wires & Peck vs. Farr, 25 Vermont, p. 41. § Plumb vs. Sawyer, 21 Conn. 351. 198 RETROSPECTIVE STATUTES. lation ; and it seems to have been faitlifiilly carried out. So an act of the legislature repealing a statute of limi- tations, is void with respect to all actions pending at the time of the repeal, and which are barred by the statute * So, in the same State, where a statute gives a penalty incurred under it to an individual (as certain militia fines to an officer of a company), the right to a perialty incurred under the statute in a civil cause, is within the meaning of the clause in the bill of rights which prohibits the passing of retrospective laws for the decision of civil causes ; and the right of such indi- vidual can not be taken away by a repeal of the statute under which the penalty was incurred.f We have thus far considered cases where laws have been denied a retroactive effect. We have now to ex- amine the converse class of decisions. There is, indeed, a large number of cases in which appeals are made for legislative relief or assistance, in which it would be very injurious to assert the doctrine that the legislature is incompetent to pass laws having a retroactive effect. Such are laws declaring valid acts of official persons irregularly elected ; amending charters of incorpor- ated companies ; correcting assessment roUs irregularly made ; extending the time for collection of taxes or for reports required by law ; altering and amending judi- cial procedure. In these, and many other cases, it is difficult to avoid giving the acts of the legislature a retroactive effect ; and every such effect must or may influence injuriously some individual case. But the interests of the community are paramount. These cases are not treated as touching vested rights, and the power of the legislature is admitted. We proceed now * Woart vs. Winnick, 8 New Hampshire, 473. t Dow vs. Norris, i N. H. 16. RETROSPECTIVE STATUTES. 199 to examine cases of this kind where statutes have been construed retrospectively. It has been said in Massachusetts, that the legisla- ■ture may constitutionally enact laws to alter the limits -of prison yards ; to render valid and legal the ^ioings^of public officers ; to confirm the acts of towns and other ■corporMions, invalid for some informality, although by such enactments individuals may be deprived of rights previously vested* So in the Supreme Court of the TJnited States, it has been said, that " every law that takes away or impairs rights vested agreeably to exist- ing laws, is retrospective, and is generally unjust, and may be oppressive ; and it is a good general rule, that a law should have no retrospect. But there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent their commencement."f In New York, it has been held, that when the rule of compensation for attorneys and counselors is changed by the legislature, during the progress of a suit, the icosts of such suit are to be taxed according to the stat- ute in force at its termination. " It is competent," said Mr. Justice Jewett, "for the legislature, at any time defined and defended by Coke, in the case of the Monopolies : Dispensatio mali prehibiti est dejure, Domino Begi eommissa, propter impossiiilitatem provi- dendi de omnilms particularibris, et dispensatio est mali prohibiti provida relaxatio, utilitate seu necessitate. It was considered as a sort of anticipatory and more extensive pardoning power. Hobart, Plowden, Vaughan, had all treated the existence of the prerogative to some extent as unquestionable, and it had been repeatedly recognized by the courts. On the other side, the right of dispensation in general was, it is true, denied ; but the main question raised in the reign of James II., was, admitting its existence, whether the right covered the particular case. It was agreed by tha crown lawyers that the dispensation must be confined to the case of an individual, and could not be general ; but that presented no difficulty in this instance, the patent being to Hales alone. It was admitted also, that the dispensation could only be of mala prohibita, and not Of mala per^ se ; JUDICIAL CONSTRUCTION. 209 tion to the crown. Tlie influence of this alteration was almost immediately perceptible ; the same magistrates who, holding their offices de bene placito would have been sycophants and time servers, became so soon as they occupied their seats qyamdiu se hene gesserint, bold and honest public servants* and it was strenuously discussed whether the prohibited act in this case belonged to the one or the other class. It was admitted that the dispens- ing power could not apply to those laws which concern property, but it was insisted that it did cover those relating to the policy of government. It is curious to observe, that so far as the act of 25 Charles IT. imposed a religious test, it would now be almost universally regarded even in England, as unwise and unjust ; and that thus a great principle of liberty was estab- lished by maintaining and defending in its full violence, a fanatical and arbi- trary statute. But the law was the will of the nation, the non obstante patent was the act of the king. And there is the true interest and the real merit of the question. A century before, no lawyer would probably have disputed the dispens- ing power in its fullest extent. The Parliament that passed the act of 31 Henry VIII., giving the king power to make laws by mere proclamation, would have hardly ventured to quarrel with a,non oisiante ; but,\in the next century the power of the sovereign had dwindled, the dimensions of the nation had expanded, and that flej^ible thing called the English Constitution, adapted itself to the new state of things. Looking at the question, however, as it presented itself in the reign of James II., either to the strict technical lawyer of that age, or to men with any tendency to the principle of toler- ation, the judgment affirming the prerogative does not seem so great an ' enormity as it is now generally regarded. * By the 12 and 13 William IIL (1700), c. 3, § 3, it was provided that after the said limitation (i. c, of the crown to the House of Hanover) "shall take effect as aforesaid, judges' commissions be mads quamdiy, se tene gesse- rint, and their salaries ascertained and established, but upon the address of both Houses of Parliament, it may be lawful to renibve them." And by Geo. III. c. 23, the judges were continued in office during'good behavior, notwithstanding the demise of the crown. Still, the traces of the old distrust of the judiciary are apparent in England, down to a very recent period. Notwithstanding the alteration of their tenure, the judges were still the organs of a system of vicious privilege and of a sanguinary penal code ; and it is little more than half a century since Parr called them "the furred homicides" of Westminster Hall. It is not, I think, much more than a generation since this hostility has entirely 14 210 JUDICIAL CONSTRUCTION. The character of the bench being changed, the mis- chievous abuses of the judicial power gradually tended disappeared, and since the reputation of the English judiciary for moder- ation and humanity, has been as generally admitted as it has alvrays been for learning and' ability. It is curious to observe that the same abuse of judicial authority took place in France also; and there the judges carried their power of con- struction to such lengths that it became necessary to arrest it by positive V^w. The power of the judiciary to construe the statute law and the authority of judicial decisions or acts generally, has been the subject of great controversy in France ; Dupin says, no point more so. {Juriipru- denoe des Arrets, p. 19.) Under the old monarchy, the judges united certain legislative with their judicial functions; they pronounced their decisions in litigated cases, or Arrets, as they were called, because they arrested (arretaient) all further controversies, and terminated the cause (Dupin's Jur. des Arrets, p. 1) ; and they also made arrets d'enregistre- ment, and arrets de reglement. The former applied to royal edicts, declara- tions, letters patent, &c., and furnished a practical check on the despotic power of the sovereign, more or less eflBcacious, as the case might be. Tel idit enregisl/ri d Pairis ne Vaura point itd ou d Toulouse ou a Eouen, et rCy fera point loi pa/r consequent ; ou Men il Waura ite enregistre giCanec des modificatiomt qui restreignent ses dispositions. — Camus, Etudes d^un Amaat, Ame Lett/re, p. 82. The latter, a/rrets de reglement, decided questions of customary law (d/roit coutumier), police, professional discipline, practice ; and had the force of law until the sovereign interfered by an edict or royal ordinance. (Dupin's Jur. des Arrets, p. 48.) In regard to the arrets or decisions in litigated cases, the judges grad- ually fell into the mischievous practice of giving their judgments without stating any reasons whatever. (Jur. des Arrets, p. 62.) This, of itself, would naturally tend greatly to diminish, if not entirely destroy, the weight and value of their decisions, and it finally came to be insisted by jurists of high authority, that they should not be cited at all. Camus goes so far as to say, " Onne dexrait jamais citer que des a/rrtts de regUment; en alle- guer Wauires simplement eomme des exemples et des prejugis, c'est un abus que les gens senses devraient hannir, parcequ'un exemple ne saurait etre eoneluant qu^autant que leseir Constances sont entiremetit semblables ; or en tnipposant la possihilite de cette similitude pa/rfaite, il reste A I'etailir, ee qui est ordinairement une chose impossible. Mais ee mauvais usage dHmo- quer les arrets subsistera long temps." — Camus' Studes d'un Avocat, p. 101. The disfavor with which the proceedings of the judges were regarded, was greatly increased by their abuse of the power of making arrets de regie- ■ ment. Exercising what was truly a legislative function, when a law of the kind we have above enumerated came before them and they found either % JUDICIAL CONSTRUCTION. 211 to correct themselves. As the statutes became more plain and explicit, as the legislature ceased to be the doubt, or a emus omissus, or what they considered an error in the law, they removed the difficulty or supplied the omission by an a/rrtt de reghment, which applied to all future cases, and operated like a statutory enactment. This practice, as can easily be imagined, led to great abuses ; and an attempt was made to check it by declaring that the business of the judges was sim- ply to obey the law, and a general prohibition was made of judicial inter- pretation. This prohibition made, originally, so far back as 1667, was renewed by the Constituent Assembly in 1790. (Portalis' Discours Prelim- inaire, Code Civil, Art. 4.) The judges, to take their revenge for this inter- ference, adopted a new line of practice ; and whenever the law appeared doubtful or obscure, they refused to decide the cause, and referred the whole matter to the legislature. {lb.) This, however, was speedily condemned as an abuse, by the Court of Cassation ; and the Code Civil contains a pro- vision which at first sight looks very odd to the English jurist, declaring that the judge cannot, without rendering himself liable as guilty de deni de justice, refuse to decide the cause on the ground of the silence, the obscu- rity, or the defectiveness of the law ; whUe at the same time it is declared that the judge may construe the statute in the particular case, but cannot make any general regulations. The provisions are very curious. Ze juge quirefusera dejuger souspretexte du silence, de Vobstmrite, ou de Vinsuffisance de la loi, powna etre pomrsuim eomme coupdble de deni de jimtice. (§ 4 ) II est defendu aux juges de prononcer pa/r voie de disposition generale et reglementavre sw les causes qui leur sont sowmises. (§ 5.) The abuse first above referred to was corrected by a law passed by the Constitutional Assembly in 1790, requiring the judges in deciding causes, in all cases to state the questions of fact and law involved, andthe reasons of the judgment they pronounced. {Jur des Arrets, p. 68.) Since this period, the value of the French decisions has generally increased ; but the whole subject of the judicial power in France is, or has been till a comparatively recent period, in great uncertainty. Portalis, in his admirable biscours Preliminaire to the Code Napoleon (1803) devotes several pages to prove the propriety of judicial construction of legislative acts as opposed to a ref- erence of each litigated case turning on a doubtful point of statute law to the legislature ; and in 1822, M. Dupin published his Ju/risprudence det Arrets, for the purpose of defining the precise 'amount of authority rightfully due to judicial decisions. In the course of it, the leafned author repeats the arguments of Portalis as to the propriety and necessity of judicial con- struction {Jur. des Arrets, pp. 10 and 12), and gives minute and copious rules for the choice and mode of citing the arrets of the French courts. It is a curious and interesting, but to the English or American jurist, appears a very rudimentary treatise. The eleventh chapter of the treatise of Mr. 212 JUDICIAL CONSTRUCTION. mere arena of political controversy, and devoted itself to framing general rules for the conduct of aflfairs, the judges themselves set limits to the powers' they had arrogated ; and abandoning all pretensions of a right to exercise any control over legislation, to correct its errors or supply its deficiencies, they confined their power of construction to admitted cases of doubt. Such is now the settled doctrine both in England and in this country. " The language of the statute is plain and unambiguous, and when such is the case, the will of the legislature must be obeyed."* " It is the office of the courts to administer the law as the legis- lature has declared it, not to alter the law by means of construction in order to remedy an evil or incon- veniences resulting from a fair interpretation of the law."f " It is scarcely necessary, we trust," says Mr. Chief Justice Redfield, in the Supreme Court of Ver- mont, "at this late day, to say, that the judicial tri- bunals of the State have no concern with the policy of legislation. That is a matter resting altogether within the discretion of another co-ordinate branch of the government. The judicial power cannot legiti- mately question the policy, or refuse to sanction the provisions, of any law not inconsistent with the funda- mental law of the State. And they would never Dwarris, is devoted to the subject of the boundaries of legislation and of judicialinterpretation; in it he makes copious extracts from the Diacours PreliminaiTe of Portalis, and among other things, remarks, "that even among our enlightened neighbors, and at a very recent period, the bound- aries of legislation and of judicial interpretation veere so vaguely defined and so imperfecl.ly understood, that the judges were constantly either mis- taking the principles or erring in their application of them." — ^Dwarris, p. 697, 783. * Ellis vs. Paige et al., 1 Pick. 43. t Per Paige, J., in the Court of Appeals ; James vt. Patten, 2 Selden, p. 9. CONSTITUTIONAL LIMITATIONS. 213 attempt to do this even, except upon obvious or satis- factory grounds."* Thus have the lines of demarkation^ as they now exist, been established between these two great branches of government. The legislature gradually ceases to interfere with private rights, and tends more to confine itself to the establishment of uniform, gene- ral, and prospective rules. The judges resign and dis- claim the power of correcting the errors or supplying the deficiencies of the legislature, and confine them- selves strictly to the duty of construction and interpre- tation in doubtful cases. This power is now fully con- ceded to them both here and in England. The rules' controlling the exercise of this power, we shall shortly examine; but before doiiig so, we have to. consider our second head, i. e., the limits of the judicial power a» used to apply and enforce constitutional provisions. This branch of judicial authority deserves particular attention. It is entii'ely the growth of American juris- prudence ; it confers vast powers on the judicial body ; and it is one of the surest preservatives of our liberties. In England there exist certain principles of what is there termed constitutional government, to be found in, or deduced from Magna Carta of King John, the statute called Confvrmatio Ohartarum^ and various^ * In re Powers, 25 Vermont, p. 265. " If the provision that the legisla- tive and judicial powers shall be preserved separate and distinct, be not found in our own constitution in terms, it exists there in substance, in the' organization and distribution of the powers of the departments, and in the declaration that the ' supreme legislative poWer ' shall be vested in the Sen- ate and Assembly. No maxim has been more universally received and cherished as a vital principle of freedom. And without having recour.se to the authority of elementary writers, or to the popular conventions of Europe, we have a most commanding authority in the sense of the Ainerican people, that the right to interpret laws does, and ought to belong exclusively to the courts of justice."— Dash is. Van Kleeck, per Kent, J., 7 J. R. p. 477, 60B-9. 214 CONSTITUTIONAL LIMITATIONS. other corroborating statutes passed between the reign of Edward I. and Henry IV. ; the petition of right in the time of Charles I., the bill of rights framed at the revolution of 1688, and the act of settlement adopted to fix the succession in the house of Brunswick, From these are derived not only the principal guaranties of public liberty in England, but they are also said to declare and ^protect those rights of personal security, liberty, and private property, which, taken together, form what is called the English Constitution.* * See Blackstone's first chapter, on the rights of individuals. Mr. Creasy, in his valuable work on the English Constitution, says : — "The great primeval and enduring principles of our constitution are as follows : " The government of the country by an hereditary sovereign, ruling with limited powers, and bound to summon and consult a parliament of the whole realm, comprising hereditary peers and elective representatives of the commons. • " That without ihe sanction of parliament no tax of any kind can be imposed, and no law can be made, repealed, or altered. " That no man be arbitrarily fined or imprisoned, that no man's property or liberties be impaired, and that no man be in any way punished, except after a lawful trial. "Trial by jury. " That justice shall not be sold or delaryed. "These great constitutional principles can all be proved, either by express terms or by fair implication, from Magna Carta, and its above- mentioned supplement. "Their vigorous development was aided and attested in many subsequent statutes, especially in the Petition of Right and the Bill of Rights; in each of which the English nation, at a solemn crisis, solemnly declared its rights, and solemnly acknowledged its obligations : — two enactments which deserve to be cited, not as ordinary laws, but as constitutional compacts, and to be classed as such with the Great Charter, of which they are the confirmers and exponents. " Lord Chatham called these three ' The Bible of the English Constitu- tion,' to which appeal is to be made on every grave political qaestion. The great statesman's advice is still sound. It deserves to be considered by sub- jects as well as by princes, — by popular leaders without the walls of parlia- ment, as well as by ministers within them." — SUe and Progress of the English Constitution, by E, S. Creasy (1856, p. 3). CONSTITUTIONAL LIMITATIONS. ^215 But these rights all rest either on regal concession or legislative enactment ; and, in England, it has never been alleged that there exist any precise writ- ten provisions which in any way limit the absolute and supreme power of parliament. It is not difficult to understand why this should be so. The great efforts of the lovers of law and liberty in England, have been to set bounds to the royal prerogative, and to put limits to the authority of the crown. The power opposed to the crown has been the parliament. It has consequently been the interest and duty of all op- posed to the arbitrary* powers of the sovereign, to seek to amplify the authority of the legislature. If ever parliament shall become the only powerful body in the state, there will be felt the want and there will arise the necessity in England, as with us, of express written constitutional restrictions. The necessity of checks upon powet- -was perfectly understood by the sagacious men who formed the gov- ernment of this country ; and foreseeing that — in the absence of a church establishment, hereditary classes and standing armies — popular majorities and the pop- ular bodifes representing those majorities, would, in this country, unless checked, obtain an absolute and despotic control over the, whole business of govern- ment, they from the outset imposed upon our legis- lative bodies, in the shape of constitutions, certain restraints which were devised and intended to protect individuals and minorities from the arbitrary exercise of the power of majorities. Hence it is that in this country the subject of constitutional law has assumed such importance. The Federal Constitution and those of the different States, all declare certain principles and establish certain restrictions for the very purpose 216 CONSTITUTIONAL LIMITATIONS. of limiting legislative power. No State slmllpass cmy law impairing the obligation of contracts. Private property shall nx)t he taken for public use without just ' compensation. These are specimens of the peremptory language by which the people have sought to keep their agents in constant control. The power of applying these checks, is in the hands of the judiciary ; and there is nothing more curious in our history, than the fact that without any provision either of constitution or of law giving this power to the courts of justice, they have since the earliest days of our republic, steadily and vigorously applied it.* They decide in any and every case, what the true con- struction of a doubtful constitutional provision is, and whether any legislative act brought before them does or does not violate it ; and theij- decision that a given law is " unconstitutional," at once destroys its vitality and puts an end to all proceedings under it. The im- portance of this feature of our system, and its bearing on the character of the judiciary, is at once apparent. It limits the power of the legislature, it erects the judi- ciary in some sense, into a co-ordinate political author- ity, it practically associates them with the law-making branch, and has had a very marked effect on the char- acter of the legal mind and education of the country. It has compelled our lawyers constantly to examine, and our judges to keep in view the great principles of government, and has given breadth and depth to our discussion of all legal questions. We proceed now, in our subsequent chapter's, to consider the rules that have been laid down in regard * The doctrine may be considered as having been finally settled in Mar- bury vs. Madisoo, 1 Oranch, 137. See also, Kent, Com., toI. i. p. 4*8, for a review of the cases on the subject. LEGISLATIVE ANB JUDICIAL POWERS. 217 to the construction of statutes ; and shall afterwards examine tlie manner in which the judicial duty of protecting the Constitution, is exercised. Throughout the investigation on which we are thus about to enter, it will be necessary to keep in view the line of demark- ation that we have endeavored to trace, between the legislature and the judiciary. All history teaches that it is too readily lost sight of. There is an inherent and eternal difficulty in confining power of any kind within its proper limits. This general rule holds eminently true in regard to legislative and judicial bodies. The legislature tends to disregard private rights, and to overstep the limits of the Constitution ; the judiciary to annul or evade laws which appear to it needlessly or improperly made, and which, when applied to the affairs of life, seem calculated to work injustice. Either prac- tice is an evil strictly to be guarded against. If the legislature should be kept strictly within the bounds of its constitutional provisions, so on the other hand the judiciary should not be permitted to overstep the limits within which the fundamental principles of our system have confined it. We have seen, in the course of the preceding discus- sion, how in the earlier ages of English history the j udges have abused their power. This has been owing partly, no doubt, to political causes which have prevented the legislature from giving that attention totthe details of the law which the general interests of jurisprudence demanded ; partly to the narrowness and severity of many of the maxims of the common law ; partly to the brevity with which the early statutes were framed and the apparent necessity of applying to them very liberal doctrines of interpretation ; partly to the rapid and perpetual changes to which society was subjected 218 JUDICIAL POWER. by war, revolutions, and religious controversies j partly to the dependence of the judiciary on the sovereign ; but much has been due to the want of keeping before the judicial mind, the true boundary between legisla- tion and interpretation.* It is to be borne in mind that these excuses no longer exist : the legislator has now time to frame his statute in simple and intelligible language; the de- mands of commerce have made peace the normal state of the world, and religious toleration is recognized as the true interest of every nation whatever may be. its creed ; the great interests of society and the duties of government, are better understood ; the fundamental doctrine of equality before the law, is recognized in all civilized countries ; and it is time that the true line of demarkation between the legislature and the judiciary, should be strongly marked and strictly maintained. Unless this be done, jurisprudence will always fall short of the scientific character to which it aspires.f The undisputed powers of the judiciary are very great ; they not only expound statutes and mold and modify their own judgments, but they declare what is meant by the comity of nations, and apply the laws of foreign countries. The daily habits of business are under their control ; new customs every day arising, stand or fall by * Dwarris, p. 708. t St. Augustine says (DeVeraJReligione, p. 31), Non licet judicibut de legibus judiea/re, sed secundum ipsas. Argentre, an eminent French legist, in his work on the customary law of Britanny, says, ^''Stulta videtur sapientia qum lege vult Bwpientior videri. Our de legejudicas, qui sedes ut secundum legem judices f Plus sibi sapere viai, insuUant legiius etsibi conscientias architectantur contra publicas leges. Aut igitu/r sedere desinant, aut secundum leges judicent. — Argentraeus in Antiq. OoMuet. Bret. § 323, glos. 1, n. 5 ; Mb. Conauet. art. 627, cited in Dupin's Jurisprudence des Arrets, p. 125. , JUDICIAL POWER. 219 their decisions ; and under cover of the right to enforce public policy and to protect good morals, they exercise a large and undefined authority over private conduct. To all this is added in America, the undisputed right to declare constitutional law, and thus, in certain cases, to over-ride the express will of the legislature itself. These functions are ample enough to qualify the most eager love of power, to. demand the exercise of the noblest intellect and the application of the most vigor- ous industry. Let the magistrate be contented with this large authority ; and let him not, by endeavoring to extend it, endanger the power that he now securely possesses. . The judicial department should be the most vigilant by its example to resist " that spirit of encrpachment which tends to consolidate the powers of all the departments in one, and thus create, what- ever the form of government, a real despotism;"* Before leaving this branch of my subject, I may take notice of a subject indirectly connected with it. It has sometimes been the practice for judges to decry certain statutes as being contrary to good morals, such as the usury laws and the statute of limitations ; and, going even further than this, they have in many cases mani- fested their disapprobation of these laws by the mode in which they have exercised their discretionary powers in regard to them. So, they have refused to let these statutes be set up by way of defence when it was neces- sary for that purpose to apply to the favor of the court.f So again, it has been customary for judges strongly to condemn the permission which our law gives to insol- vent debtors to make assignments with preference. So * Washington's Farewell Address. t Fulton Bank vs. Beach, 1 Paige, 429 ; Utioa Insurance Co. vs. Scott, 6 Cosren, 606 ; Jackson vs. Varick, 2 Wend. 294. 220 JUDICIAL POWER. in a late case, speaking of the recent change in our legislation as to the rights of married women,* one of the justices of the Supreme Court of New York declares it to be " an extraordinary law, a law which is well calculated in its influences, to embitter the chief springs of social enjoyments; to degrade the sacred relation of man and wife, leaving in full vigor only the secular and sordid companionship of baron and feme." But it may well be considered doubtful if it is competent for the judiciary to make any such distinc- tions. It is the duty of the bench to expound and construe the law of the country, such as that law is made by the legislature. They are not at liberty to nullify it when once clearly declared. As little can they be considered at liberty to discriminate between one class of statutes and another, and to cen- sure a defendant for acting according to that standard of morality which the law-making power has made the rule of conduct for both judges and litigants. These ideas have already been expressed by some of our most sagacious magistrates. In New York, Mr. Jus- tice Harris has recently said, " Courts in the exercise of their discretion in allowing amendments, have thought it proper to discriminate between what have been regarded as hard and unconscionable defences, and such as have been considered with more favor.f The soundness of this discrimination may well be doubted. The legislature of this State have thought it wise to declare usury to be a legal defence to an action tipon the usurious contract. In doing so they have but followed every other civilized State. With the * American Home Missionary Society vs. "Wadhams, 10 Barb. 568. t Fulton Bank vs. Beach, 1 Paige, 429 ; Utica Insurance Co. ■os. Scott, 6 Cow. 606 ; Jackson vs. Varick, 2 Wend. 294. JUDICIAL POWER. §21 policy of sueh laws, courts have nothing to do. When a plaintiff willfully violates the law by taking a greater amount of interest than it allows, I do not see upon what principle a court should take it upon itself to pronounce the defence with which the law has pro- vided' the defendant, hard or unconscionable. But such has been the practice, and perhaps that practice has now become so inveterate that it cannot be dis- regarded."* So again, in the Court of Appeals, when an appli- cation was made at the trial under the New York Code of Procedure, to amend a defective allegation of usury in an answer, the Superior Court denied it ; but the Court of Appeals held this denial wrong, and said, "We are not, I conceive, warranted in applying a different rule to the defence of usury, from that which we should hold applicable in other cases. It ia a defence allowed and provided by law. The defend- ant did not claim an indulgence from the court, but simply asked for the application of those rules which the legislature has provided for all cases indiscrimin- ately, whether the party invoking their exercise was seeking to vi^it his adversary with a forfeiture or not. The law has not made any difference between such defences and those where no forfeiture is involved ; and the court can make none. If the sense of the legisla- ture is plainly expressed, we have no judgment to pass upon the policy of their provisions."f * Bates vs. Voorhies, 7 How. Pr. Eep. 234:. t Catlin vs. Gunter, 1 Kern. 368. 222 AUSTIN. ON JtJEISPRUDENCE. We have in this chapter discussed the subject of legislative power in an entirely practical point of view, considering the actual application of laws to the daily affairs of life ; but the subject is often treated in a different aspect, and I give in this note a very brief summary of one of the ablest works on abstract jurisprudence, which this century (not fertile in such treatises) has produced ; it will serve to give an idea of this sort of investigation. The work to which I refer is. The Province of Jurisprudence Determined, by John Austin, Esq., Barrister at Law, London, 1832. Mr. Austin's ob- ject (Pref. p. 5 and 8), in accordance with his title, is to distinguish positive law, the appropriate matter of jurisprudence, from various objects with which it is connected by resemblance, and from various other objects to which it is allied by analogy, all being- connected and often confounded by the common name of " laws." Mr. Austin's leading propositions are these : Laws are a species of commands (p. 21), but the term is often improperly applied to various objects having really -nothing of an imperative charac- ter; and the writer classes laws as follows : 1st. Divine Lom», or the law of God, revealed, and unrevealed or tacit. This branch does not include the natural laws, which come under the fourth or last head. 2d. Positive Laws, constituting what is commonly known as Jurispru- dence : laws set by political superiors to political inferiors (p. 199) ; set by a monarch or sovereign number, to a person or persons in a state of subjec- tion to the author. 3d. Laws of Positive Morality, embracing positive moral rules proper (distinguished, however, from the laws of God), and also, the moral rules set by opinion, as code of honor, laws of fashion ; these last are laws by analogy only ; they are really opinions, and are improperly called laws (chap, v., p. 130, note). 4th. Laws Metaphorical or Mgwative. — ^Laws of physics or of matter. These, the author says, are not really laws at all. They are only called laws by a figure or metaphor of speech (p. 183). The law of God consists of the revealed or express commands, and the unrevealed or tacit. As the index to the tacit commands of the Deity, the author adopts the theory of utility, and prefers it to either that of a moral sense, or to one compounded of the two. This is discussed at great and perhaps disproportionate length. Laws are a species of commands (p. 12). Commands are of two species, " Laws or Rules," and " occasional or particular commands." A command is a wish expressed by one rational being to another, that the latter do or forbear something, under the penalty of evil proceeding from the former, and to be incurred by the latter in case of non-compliance (p. 11.) Command also implies the idea of superiority on the part of the person uttering it (p. 20). It is a wish, with the power and purpose of enforci&g it (p. 6). AUSTIN ON JURISPRUDENCE. 223 Whenever there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a command, and imposes a duty (p. 9). Command and duty are correlative terms (p. 7). Command and duty, or obligation and sanction, are inseparably con- nected terms (p. 11). Thus far, Mr. Austin's laws are undoubtedly a species of commands, and this division of laws is accurate, though the nomenclature is perhaps inapt. But is the definition of command entirely correct? Command implies a duty, it is said. "What of illegal, criminal, or merely hostile commands ? Take the decree of a revolutionary or usurping power ; the " stand and deliver" of a highwayman; the "surrender" of an enemy ; do these impose duty or obligation ? If so, in what sense of the word ? In one place in Mr..Austin's work (p. 6), command implies power and purpose to enforce itself, and in another (p. 9), the least chance of the enforcement makes it a command. Is not this a contradiction ? I proceed with the analysis of Mr. Austin's work. Third Class (p. 143). — The positive moral rules which are laws properly so called, are : First. Those imperative rules set by men living in a state of nature. Second. Those set by sovereigns, but not as political superiors. Third. Those set by subjects as private persons, and not in pursuance of legal rights. 1st. As an instance of this, any imperative rule imposed by man in a state of nature; though, because he is in a state of nature, it is not imposed in pursuance of any legal right. 2d. Laws imposed by one sovereign or supreme government, on another sovereign or supreme government. 3d. Laws or rules set by parents to children, masters to servants ; by len- ders to borrowers ; by patrons to parasites ; rules of clubs. 'Shese all pro- ceed from determinate sources, but they are set by persons, as private per- sons, and not in pursuance of legal rights. I may remark, that to class rules set by patrons to parasites, under positive moral rules (p. 146), seems not a very happy nomenclature. The positive moral rules which are laws improperly so called, are such as laws of honor, laws of fashion^ law of nations set by opinions current among ilations. Here there is no determinate author and no strict sanc- tion ; and their chief analogy to a law is that the party violating will suffer some evil consequence, and hence uniformity is produced. Sect. 6th, p. 196. — In order to complete the explanation of the marks distinguishing positive laws, the author in this chapter defines various terms — such as sovereignty, subjection, independent political society, unconstitu- tional ; and in this he incidentally discusses the division of powers into legislative and executive, or administrative. I cannot but think that this chapter would have been fuller, the analogies more ample, and objections, which naturally suggest themselves, more completely answered, if the'writer 224 AUSTIN ON JURISPRUDENCR had been more familiar with our complex political organization For instance, Mr. Austin says, — "In the State of New York, the ordinary legislation of the State is controlled by an extraordinary legislature. The body of citizens ap- pointing the ordinary legislature forms an extraordinary and ulterior legisla- ture, by which the constitution of the State was directly established, and every law of the ordinary legislature which conflicted "with a constitutional law directly proceeding from the extraordinary, would be treated by the courts of justice as a legally invalid act. That such an extraordinary and ulterior legislature, is a good or useful institution, I pretend not to af&rm. I merely affirm that the institution is possible, and that in one political society, the institution actually obtains." Not a very audacious affirmation, considering that this "institution " is the fundamental legal idea in thirty-two " politi- cal societies " called States of the Union, as well as of the Union itself Mr. Austin is a disciple of Bentham. His work is, as I have said, one of the few works which this century has produced in our language, of abstract disquisition on the subject to which it relates. I think his power of reason- ing more remarkable than the fitness of his nomenclature. But the work is very valuable, and will well repay a careful perusaL It has never been republished in this country. CHAPTER VI. GENERAL RULES FOR THE CONSTRUCTION OP STATUTES. General rules for the construction and interpretation of statutes — Ifecessity for cpnstruction and interpretation growing out of the ambigi^ty of language, and other causes — Various rules given by standard writers — ^Vattel's rules — Domat's rules — Rutherforth's rules — Maekeldey's — Lieber's'^Rules of our law — Intention of the legislature, to govern — Mode of arriving at the legislative intention — Lord Coke's rules — Blaokstone's rules — Statutes in pari materia — Contemporaneous exposition — Legislative exposition — Judicial construction — Usage — Language used in statutes — Technical terms — Liberal and strict construction. It is hardly necessary to assert the proposition, that in the use of language uncertainty and ambiguity are sure to occur. Contracts, treaties, statutes, and the books of our religion itself, furnish instances that will at once present themselves in numbers to the mind. The imperfection of language is a serious evil "when it occurs in those legislative com- mands on which the repose, discipline, and well-being of society depend. In regard to laws, as in other cases, difficulties will arise, in t^ie first place from the disputed meaning of individual words, or, as is usu- ally said, of the language employed ; and in the second place, assuming the sense of each separate vord to be clear, doubt will result from the whole context. It is to meet cases of these two kinds that principles of interpretation, or construction, become necessary ; and leaving out of^ view, for the present, the rules by 15 2:26 EXILES OF INTERPRETATIOlir. wWcli the sense of single words, phrases, and technical terms is arrived at, we shall first consider the general principles of interpretation. Many efforts-have been made to lay down precise and positive rules for the construction of statutes ; and in order to facilitate this, a nomenclature has been sought to classify different modes or species of inter- pretation. So, Vattel uses the terms extensive and re- strictive interpretation ; Kutherforth, liberal, natural, and mixed ; and Mackeldey, andkentica^ usimlis^ and doc- trinaUs. Professor Lieber has endeavored to carrylihis refinement to still greater length. He distinguishes between interpretation* and construction, and divides * The following is Prof. Lieber's derivation of the word Interpret : "To interpret, as is well known, is derived from the Latin interpres, interpretari, a compound of inter and preta/ri. The latter belongs, as nearly all truly- Latin words, according to its root, to that language which was spoken by the original inhabitants or settlers of Europe, and of which the Gothic, ancient High^ German, Swedish, Icelandic, Latin, &c., are but descended, and which was likewise eiljier the first foundation of the Greek, or so strongly influenced it, that the root of innumerable words is easily traced through all these languages." * * " Pretari is of the same root with many words in Teutonic languages : Praia, in Swedish, is speaking. We have prating and prattling. The German reden (pronounced raden), speaking, is the same ; for d and t easily change, while a consonant before another (p in this case) is frequently dropped ; or it may be that reden is the original. Praten signifies to this day, in some parts of Germany, speaking loud and monotonously. Praidicare, and the Greek ^faC,ci.v, belong to the same family of words. It is very possible that pretari aAl prating are of the same root with SroatS— German, hreit — speak broadly, plainly. The present German word for interpreting is auslegen, laying out, laying open, unfolding." — Lister's Legal and Political Sermeneutics (1839), p. 20, in notBi The etymologists, however, do not agree. Richardson's Dictionary (1839) says, " Interpret, interpretari, of uncertain etymology,'' and gives, with a query, "Pretari, from IIpai-TEiv." I have annexed to this chapter .copious extracts from the works of Vattel, Domat, and Professor Lieber, which will serve to Illustrate their mode of reasoning on the subject, and to compensate for any error that I may make in underrating the value of the careful classifications and nicely drawn rules of the writers of this class. RULES OF INTERPRETATION. 227 tlie former into close, extensive, extravagant, limited or free, predestinated and authentic ; and the latter into close, comprehensivB, transcendent, and extrav- agant. Under these classifications it has laeen attempted to frame formal rules for the v«,rious modes of interpreta- tion, as — It is not allowable to interpret what ha6 no need of %nterpretation.-^ When we see what is the sense that agrees with the intention of the instrum&nt^ it is not allowahle to wrest the words to a coni/rary meaning. ■ — No text imposing obligations is tmderstood to demand impossible things. And to elucidate the use of these definitions, and the application of these rules, cases actual or possible are resorted to,, exhibiting many varieties of doubt and difliculty. So, if by the terms of a treaty a town is not to be surrounded by walls, the question is asked, whether, upon' a proper construction, it may be in- closed with fosses and ramparts. So, the law con- demns to death him who strikes his father. Shall we punish him who strikes and shakes his father to re- cover him from a fit? So, where' it was enacted that whosoever drew blood in the public highway should be severely punished, a barber opened a vein of a ' person taken in the street with apoplexy. "Was he guilty or not ? These, and similar disqussions, have amused the fancy and exhausted the arguments of text writers. I cannot, however, consider them of much value for ithe student of jurisprudence. Ours is eminently a practical science. It is only by an intimate acquaintance with its application to the affairs of life, as they actually occur, that we can acquire that sagacity requisite to decide new and doubtful cases. Arbitrary formulae, 228 RULES OF INTERPRETATIOlir. metaphysical subtleties, fanciful hypotheses, aid us but little in our work. Nor do I believe it easy to prescribe any system of rules of interpretation for cases of ambiguity in written language, that will really avail to guide the mind in the decision of doubt. It is with the utmost difficulty, if at all, that we can define or direct any one intellectual pro- cess. How is it to be expected that we can, with success, lay down rules which are' generally to govern the oper- ations of the mind? The attempt is ingenious, meta- physically curious, but of little practical utility in the study or the application of the science of the law. What is required in this department of our science is not formal rules, or nice terminology, or ingenious classification, but that thorough intellectual training, that complete education of the mind, which lead it to a correct result, wholly independently of rules, and, indeed, almost un- conscious of the process by which the end is attained. It would seem as vain to attempt to frame positive and fixed rules of interpretation as to endeavor, in the same way, to define the mode by which the mind shall. draw conclusions from testimony. Still, although we may reject the curious nomen- clature, and the arbitrary rules to which I have referred, it is not to be supposed that a subject so important as the construction and interpretation of laws is to be left to the mere arbitrary discretion of the judiciary. This would be to put in their hands po^er really superior to that of the legislature itself. There must be some general principles that control the matter ; and I believe it will be found, that the prin- ciples which control the interpretation of statutes may, for all practical purposes, be not unaptly arranged under the same heads, and reduced analyticaUy to the RULES OF INTEEPRETA^ON. 229 same elements, as all other branches of legal inquiry. In all cases of judicial examination we have two great heads of investigation : 1st. The object to be attained. This is, in all cases, a qitestion of fact. We do^ indeed, distinguish in our ordinary legal language between questions of fact and questions of law ; but this is only with reference to the tribunal, *'. a, the judge or the jury, which is to decide. The question is always one of fact. The only differ- ence is the nature of the fact. It is not always a physical fact, but it must be a fact. So we say the construction of a doubtful provision in a will is a ques- tion of law, but the point to be decided is really one of fact ; it is, generally, what was the intention of the testa- tor ? So in regard to the construction of statutes, the questions that arise are, in one sense, questions of law, that is to say, they are to be decided by the court ; but in reality, as we shall see, the court have, as a general rule, only to discuss and determine a question of fact. 2d. The means to be employed. In regard to trials of fact, this is controlled by the rules of evidence ; in regard to general questions of law, by positive rules to be found in statutes or in adjudged cases. Such, too, will, I believe, be found the true analysis of our rules in regard to the construction of statutes. First. The object to be attained. This is, as a general rule, the intention of the legislature. Second. The means to he employed; i. e. what facts within and without the statute are to be inquired into to ascertain the intent of the doubtful phraseology. To be more precise : The object to be attained. We have said that the object of judicial investigation is, as a general rule, to determ- 230 EULES OF INTERPRETATION. ine some fact. So is it in regard to the construction of statutes, with the exception of constitutional questions, and also of those cases arising under the doctrine of liberal and strict construction, where, as we shall see hereafter, the judicial function is blended witb" and lost in the legislative attributes. Where a statute appears to be of a doubtful naeaning, the courts have the power to construe it. In discharging this duty, the first thing is to have a clear idea of the object in view. What is doubtful? The answer evidently is, the mtent of the legislature who passed the act. What did the legislature in fact intend ? The doubt does not refer to 'th« policy of the act ; for with that, as we have seen, the judges have nothing to do. -^ They are judges, and not law-makers. Nor does the doubt regard the motive of the legislator, for over that the judges have no right of control. As little does the doubt refer to the motive of the parties, or their knowledge of the law ; for of these, as we have seen, with the exception of those cases . where the essence of crime depends on motive, the judges take no notice. It then follows, necessarily and unavoidably, that if the judges are to execute the will of the legislar ture, and if they are to disregard the motives and knowl- edge of the parties, the only doubt that can arise in applying a statute must be as to the meaning of the legislature ; subject, however, as has been already said, to the exception of those cases, which will be no- ticed in the next chapter, where there is no guide* to the legislative meaning, and where, consequently, the judicial function is really merged in the legislative. We may, therefore, affirm, as a general %ruth, that, independently of constitutional questions, and independently of those doctrines of liberal and strict THE INTENT OF THE LEGISLATURE. 231 construction which, really, as I have said, vest a sort of legislative power in the judge, the object and the only object of judicial investigation, in regard to the con- struction of doubtful provisions of statute law, is to asom'tain the intention of the legisldtwre which fra/med the statute. This rule, though often asserted, has been in practice frequently lost sight of; but there is abund- ant authority to sustain it. " The only rule," says Lord Ch. J. Tindal,"for the construction of acts of Parliament is, that they should be construed accord- ing , to the intent of the Parliament which passed the act."* The rule is, as we shall constantly see, cardinal and universal, that if the statute is plain and, unam- biguous there is no room for construction or interpret- ation. The legislature has spoken ; their intention is free from doubt, ^nd their will must be obeyed. " It may be proper," it has been said in Kentucky, " in giving a construction to a statute, to look to the effects and consequences when its provisions are ambiguous, orthe legislative intention is doubtful. But when the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial action."f So, too, it is said, by the Supreme Court U. S. : " Where a law is plain aiid unambiguous, whether .it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." J Thus it is only when the language is ambiguous that * Dukedom of Sussex, 8 London Jur., V95 ; Furman vs. City of New York, 5 Sandf., 16. t Bosley vs. Mattingly, 14 B. Monroe, Kentucky, 89. t Fisher vs. Blight, 2 Oranch, 368, 399 ; Casew. Wildridge, 4 Indiana, 51. "232 THE INTENTION TO GOVERN. tHe courts are called on to construe or interpret ; and then, as I have said, the object is to ascertain the intent of the legislature. So^ where a statute declared, that if a corporation did not organize and commence its business within a year from the time of the passage of the charter it should become void, a company, formed under the statute, did not organize or commence its business within the year. ; but within that time, and eighteen days before its expiration, an act was passed amending the charter, continuing the directors in office for a year, and authorizing the stock subscrip- tion books to be again opened. It was held, that the fair construction of. the amendatory act was to give the company one year from the time of its passage for its organization and the commencement of its business, on the ground that it was wholly improbable that the legislature expected or intended that the company should complete its organization and commence its business within " the short space of eighteen days." * " It is a sound principle," say the Court of Appeals in New York, " that such a construction ought to be put upon a statute as may best answer the intention which the makers had in view; and that is some- times to be collected from the cause or necessity of making it, at other times from other circumstances. Whenever the intention can be discovered it ought to be followed, with reason and discretion, in its construe- tion, although such construction may seem contrary to its letter." In this case the following point was decided in regard to wills : The signatwre of the testator was always required ; but both in England and here it had * Johnson M. Bush, 8 Barb. Ch. E., 207 & 238; see also Young fs. Dake, 1 Selden, 463. THE INTENTION TO GOYERN. 233 been held that the -writing of the name of the testator in the body of the will, if 'written by himself with the intent of giving validity to the will, was a sufficient signing within the statute. To meet this the Eevised Statutes of New York provided, that wills should be subscribed by the testator at the md of the wiU. In a case where a will was made with a map, so annexed as to make part of the instrument, and the testator's signature was affixed at the end of the testamentary part of the document, but not of the whole instru- ment, it was held, on the ground that the intent of the statute was satisfied, that the will was valid* In New York a qyu) warranto being brought against the Utica Insurance Company, for exercising banking powers, the right claimed by the defendant was held to be so manifestly repugnant to the general scope and object of the act of incorporation as to be evidently contrary to the intention of the legislature; and on this ground judgment of ouster was rendered. Thom'p- son, J., said : " That in construing a statute' the intention of the legislature is a fit and proper subject of inquiry, is too well settled to admit of dis- pute. That intention is to be collected from the act itself, and other acts in fari materia. It may not, however, be amiss to state and keep in view some of the established and well-settled rules on the subject. Such construction ought to be put upon a statute as may best answer the intention which the makers had in view. And this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances ; ^nd whenever sucb intention can be discovered it ought to be followed, with reason and discretion, in the construction of the statute, although such construc- tion seem contrary to the letter of the statute. Where any words are obscure" or doubtful, the intention of the legislature is to be resorted to, * Tonnele tis. Hall, 4 Comstock, 140. 234 THE INTENTIOMT TO GOVEEK. in order to find the meaning of -the words. A thing which is wjthin the intention of the makers of a statute is as much within the statute as if it were within the letter ; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers ; and such construction ought to be put upon it as does not suflFer it to be eluded."* So in tlie same State, where, by a statute concern- ing judgments and executions, it was declared not to be lawful for any sheriff or other officer, to whom any writ of execution should be directed, or any of their deputies, to purchase any property at the execu- ' tion sale, it was held that it never could have been the intention of the legislature to have prevented a deputy-sheriff, when plaintiff in an execution, from bidding, in order to secure his own money. The ob- ject, it was said, was to prevent abuse, — that the sheriff or his deputies should not be allowed to make pur- chases at their own sales, and thereby be induced to conduct themselves,corruptly in relation to them. But it never could have been intended to place these persons in a worse situation than others as to the collection of their own demands.f So again, in the same State, as to the revivor of an act by implication, but not in terms.J On the same principle, too, it has been held, in many cases, that the mere change in the phraseology of a statute will not be deemed to alter the law, unless it evidently appears that such was the intention of the legislature. This rule has been frequently laid down in j-egard to the modified re-enactment of British * People vs. Utica Ins. Co., 15 J. R., 358, 380. t Jackson ex dem. Scofleld m. Collins, 3 Cowen, p. 89. J Crocker m. Crane, 21 Wendell, 211. * THE MEANS. TO BE EMPLOYED. 235 statutes, and tlie revision of our own, in the different States* The notion that the intention of the legislature is to .govern has, indeed, as we shall see, often been carried, in one sense, much too far, and the judiciary have some- times endeavored to discover and declare a legislative intent in direct defiance of the language employed, and in utter disregard of the proper means to be used. But the general principle is only perhaps made the more evident by this strained application of it. Considering it, then, to be clear that the object to be attained in all cases of doubtful construction is the intention of the legislature, we next have to consider the mecms to he employed to a/rrwe at that result ' and we cannot, perhaps, better introduce the subject i^an by the rules laid down in regard to construction by the judges in the reign of Elizabeth. "And it was resolved by the Barons of the Exchequer," says Lord Coke, " that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discussed and considered : " 1. What was the common law before the making of the act ? " 2. What was the mischief and defect for which the common law did not provide ? " 3. What remedy the Parliament hath resolved * So in New York, in regard to the Statute of Administrators (Taylor 'OS. Delancy, 2 0. C. B., 148), the Haheas Corpus Act (Case of Yates, 4 J. R., 318, 359). So in regard to the act relative to absconding, concealed, and non-resident debtors (Matter of Brown, 21 Wend. 816) ; and so in regard to the statute regulating the landlord's claim for rent due, under executions (In the matter of Theriat »«. Hart, 2 Hill, 380). See also as to point that intention is to govern, Cannon w. Vaughan, 12 Texas, 399. 236 LORD COKE'S RULES. and appointed to cure the disease of the common- wealth, " 4. The true reason of the remedy. " And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inven- tions and evasions for continuance of the mischief and pro privato com/modo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Q.ct^ pro hono pvhUco." * * Heydon's Case, 3 Rep., 7. I may here notice the fact that there is in England a class of exceptions to the usual rules of construction, growing out of what are called, as we have seen, the Ancient Statutes. " Prudent antiquity," says Coke, " in- cluded much matter iif few words." (2 Inst., 306, .401.) The early English Statutes, written in French or Latin, are expressed with a brevity which renders them now almost unintelligible, and in applying them in modem times the courts have thought themselves free to take great liberties with the contents. It is, therefore, with some excuse that of these staftutes, as we have seen, it has been said (Sheffield vs. Redclifle, Hob., 346) " that judges have power over them to mold them to the truest and best use, according to reason and best convenience." Blackstone's rules of interpretation are as follows : — " The fairest and most rational method to interpret the will of the legis- lator is by exploring his intentions at the time the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law. Let us take a short view of them all. 1. Words are generally to be understood in their usual and most known signification ; not so much regarding the propriety of grammar, as their general and popular use. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. (Vol. I., p. 59.) 2, If words happen to be still dubious, we may establish their meaning from thecontext, with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem or preamble is often called in to help the consti-uction of an Act of Parliament. Of the same nature and use is the comparison of a law with other laws that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point 8. As to the subject-matter, words are always to be understood as THE MEANS TO BE EMPLOYED. 237 These resolutions indicate an approach to the true principles on the subject ; but, as we shall presently see, the ideas are loosely expressed. In the first place, it seems to be assumed that all statutes are intended to remedy some mischief for which the Com- mon Law did not provide. But this is very far from being true. Again, the notion that the object of in- terpretation is to arrive at the legislative intent, is very clearly stated ; but there is great vagueness in regard to the means to be employed in attaining the end in view. The nature of the means to be made use of is, however, a matter of great importance and nicety. To this we now turn. The means to be employed in arriving at the legislative intent arrange themselves under two heads, — first, those within the statute under considera- tion ; and, secondly, those outside the statute. Of the means to he found wiihm the statwte itself. In the first place, it is an ancient and well-settjed rule, that where any cause of doubt arises, although appa- rently the doubt attaches only to a particular clause, the whole statute is to be taken together, and to be having a regard thereto ; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. 4. As to the effects and consequences, the rule is, where words bear either none, or a very absurd signiflcation, if literally understood, we must a little deviate from the received sense of them. (Vol. 1., p. 60.) 5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. (Vol. I., p. 61.) There are three points to be considered in the construction of all reme- dial statutes ; the old law, the mischief, and the remedy — that is, how the common law stood at the making of the act, what the mischief was for which the common law did not provide, and what remedy the Parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy." tVoL I., p. 8T.) 238 ENTIRE ACT TO BE EXAMINED. examined, to arrive at the legislative intent. " The best expositor of all letters patent," says Lord Coke, " and acts of Parliament, are the letters patent and the acts of Parliament themselves, by construction, and comparing all the parts of them together. Optima slatuti mterpretaUo est (ormiihus particuUs ejusdem inspectis) ipmmi statutum • wjustwn est nisi tota lege inspecta^ v/na aUqtia ejus- pa/rticula proposita judicare vel responderey The, rule has been repeatedly affirmed. So in Penn- sylvania it has been said that in construing any part of a law the whole must be considered ; the different parts reflect light on each other ; and, if possible, such a construction is to be made as will avoid any contra- diction or inconsistency.* So in Massachusetts it has been said that in putting a construction upon any statute, every part shall be regarded ; and it shall be so expounded, if practicable, as to give some effect to every part of it.f So again in Michigan it has been decided a cardinal rule that, in ijae construction of a statute, effect is to be given, if possible, to every clause and section of it ; and it is the duty of courts, as far as practicable, so to reconcile the different provisions as to make the whole act consistent and harmonious. If this becomes impossible, then we are to give effect to what was manifestly the intention of the legislature, though by so doing we may restrict the meaning or application of general words. J We have already had occasion to notice the rule which allows reference to the preamble, and even the * Commonwealth vs. Duane, 1 Binn., 601. t Commonwealth vs. Alger, 7 Gush., 68, 89. t Attorney-General ex rel. McKay vs. Detroit and Erin Plank Road Co, 2 Michigan, 188. MEAI^S OUTSIDE OF THE STATUTE. 239 .title, of the act * " If," says Lord C. J. Tinda,!, " any doubt arise from, the language employed by the legisla- ture, it hag always been held as a safe means of collect- ing the intention, to call in aid the ground and cause of making the statute, and. to have recourse to the pre- amble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the act, and ' the mischiefs which they intended to redress." f And so, where the preamble of an act passed on the petition of the corporation of the city of New York, recited the petition of the corporation on which it was . passed, it was held that the preamble containing the petition might be referred to, to ascertain the intention of the legislature. % "We come next to the means to be employed outside of the statute. It is clear that the judges are to inform themselves of the previous state of the law, and of the mischiefs which the statute to be construed was passed" to obviate. And the principle has been frequently acted on. The following case presents a strong instance of the application of Lord Coke's rule, that in construing a statute the antecedent legislation is. to be kept in view. A junior creditor applied to redeem lands sold under execution, the statute declaring that when this is done the creditor applying to redeem shall pre- sent to the sheriff a copy of the docket of the judg- ment under which he claims. This formality was omitted ; and it was insisted that the statute was merely directory, and ought to be dispensed with. But it was decided otherwise ; and in so doing reliance was placed oti the previous legislation, and this lan- * Ante pp. 50, 51, 54, et aeq. t Dukedom of Sussex, 8 Lond. Jur., 795. f X Furman m. The City of New York, 5 Sand., 16. 240 MEANS OUTSIDE OF THE STATUTE. guage was held : — " The act of 1826 did not prescribe the evidence to be produced by a creditor claiming the fight to redeem. The consequence was, that this matter was left, in a great degree, to the discretion of the sheriff and his deputies. Different officers were at liberty to adopt different rules of proceedings and the same,, officer might sometimes receive, and at other times reject, the same kind of evidence. Besides leaving the ' parties in doubt and uncertainty about their legal rights, a wide door was left open for favoritism and injustice. To remedy these evils, the legislature, in 1830, specially prescribed the evidence which should be presented by the creditor ; and thus made the rights of the parties depend, not on the discretion" of the officer, but on the law of the land. That this was a salutory provision can hardly be doubted ; bnt if it were otherwise, the remedy belongs to another branch of the government." * And the bill filed to redeem was dismissed. But when it is said that the judges are to take into consideration the previous state of the law, and the mischiefs which the enactment was intended to pre- vent, a doubt at once suggests itself as to the mode to be pursued aifd the evidence to be required. The judges may be supposed to have, and may perhaps be reason- ably charged with, a knowledge of the existing state of the law at any given time ; but how are they to know the exact mischiefs which the legislator had in view ? They cannot be presumed to have an^ official knowledge of the general state of the community, or of every local disturbance or local want. What means are they, then, to employ? — what evidence to consult? All * Waller vs. Harris, 20 Wend., 665. LEGISLATIVE INTENT HOW ASCERTAINED. 241 this is left very much in the dark by Lord Coke and his successors. ^Ve are not to suppose that the courts will receive evidence of extrinsic facts as to the inten- tion of the legislature ; that is, of facts which have taken place at the time of, or prior to, the passage of the bill. So in Pennsylvatiia, in regard to th6 con- struction of a bank charter, where it was contended that the bank was exempt from taxation, it was held that the evidence of public embarrassment, the proc- lamation and message of the governor, the journals of the House of Kepresentatives, and the reports of committees, should be wholly disregarded.* "The journals are not evidence," say the same court, in a still more recent case, "of the meaning of a stat- tute ; because this must be ascertaiined from the lan- guage of the act itself, and the facts connected with the subject on which it is to operate."f On the other hand, there is no doubt that very emi- nent judges have, in the construction of statutes, been wont to permit their minds to be influenced, and in fact to take a sort of judicial cognizance of many ex- trinsic facts, in regard to which evidence certainly would not have been permitted, and which, indeed, could not perhaps be proved. The English statute, 26 Geo. IL, c. 23, declared all marriages of children under age void, unless the con- sent of the parents or guardians was first obtained. The question was brought before the Kings Bench, whether the act was to be interpreted to include * Bank of Pennsylvania vs. Commonwealth, 7 Penn. State K., 144. t The Southwaik Bank vs. The Commonwealth, 26 Penn. State R., 446. But it is also ruled in this last case, that the journals are the highest evi- dence of the fact of the enactment of a law, or of any other fact connected with its passage. 16 242 LEGISLATIVE INTENT, HOW ASCERTAINED. illegitimate children ; and Lord Mansfield, in holding that it did so, put his decision on the ground of the .^ischiefs which the act was intended to obviate: "This act was passed in order to prevent the illegal practice of clandestine marriages, which were become so very enormous,, that places were set apart in the Fleet and other prisons for the purpose of celebrating' clandestine marriages. The Court of Chancery, on the ground of its illegality, made it a contempt of the court to marry one of its wards in this manner. They commit- ted the offenders to prison ; but that mode of punish- ment was found ridiculous and ineffectual. Then this act was introduced to remedy the mischief."* It may very well be that, in the condition of English jurisprudence in former times, when laws were few and rarely passed, when the business of legislation was .confined to a small and select class, to which practi- cally the judiciary belonged, when the legislative and the judicial bodies sat in the same place, and, indeed, ia the same building, — ^in such a state of things, it may well be that the judiciary might suppose themselves to possess, that they might indeed really possess, a con- siderable personal knowledge of the legislative intent, and that they might come almost to consider them- selves as a co-ordinate body with the legislaturci But in modern societies, where the division of politi- cal attributes is so much more nice and rigorous, where the business of legislation has become multifarious and enormous, and especially iu this country where th^ judiciary is so completely separated from the legisla-, tare, it must be untrue in fact that they can have any personal knowledge sufficient really to instruct them as * The King vs. Inhabitants of Hodnett, 1 T. R. 96. LEGiSLATIVE INTENT, HOW ASCERTAINED, 243 to the legislative intention ; and if untrue in fact, any general theory or loose idea of this kind must be dan- gerous in practice. I believe that, subject to the rules hereafter declared, and subject to the exceptions of equitable construction to be discussed in the next chapter, the tendency of all our modern decisions is to the effect tTiat the intention of the legislettwre is to he found in the statute itself and ( that there only the judges are to look for the mischiefs meant to be obvi- ated, and the remedy meant to be provided. In a case on the embargo laws, the Supreme Court of the United States said, " In construing these laws it has been truly stated to be the duty of thfe court to effect the intention of the legislature ; but this intention is to be searched for in the words which the legislature has Employed to convey it." And, after saying thatthe object was to lay an embargo, and to prevent evasions of the law, and that certain acts had been prohibited, the court proceeded : " But should this court conjecture that some other act, not expressly forbidden, and which is in itself the mere exercise of power over property which all men possess, might also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly transcend its own duties and powers, and would create a rule instead of apply- ing one already made. It is the province of the legis- lature to declare, in explicit terms, how far the citizen ** shall be restrained in the exercise of that power over property which ownership gives ; and it is the prov- ince of the court to apply the rule to the case thus ex- plicitly described,^not to some other case which judges may conjecture to be equally dangerous."* * Schooner Paulina's Cargo vs. The United -States, 7 Cranch, 62, 60, 'I 244 LEGISLATIVE INTENT, HOW ASOEETAINED; In a case on the Bnglisll Bankrupt Act, Lord Ten- terden said, " The intention of this act certainly was to prevent voluntary preferences; the words may, probably, go beyond the intention ; but if they do, it rests with the legislature to make an alteration ; the duty of the Court; is only to construe and give effect to the provision."* In another case where an effort was made to include a writ of pcme or distvmgas under the term execution, which is confined to executions on judgments, the ap- plication was denied ; and Lord Tenterden said, " Speak- ing for myself alone, I cannot forbear observing, that I think there is always danger in giving effect to what is called the equity of a statute, and that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to •them."f "Where an English statute provided, that no indent- ure of apprenticeship should be "valid and effectual" unless " approved of by two justices of the peace, un- der their hcmds cmd seah^'' an indenture executed by the justices und^r their hands only was held void ; and the King's Bench, per Bagley, J., said, "I do not know how to get rid of the words of this section of the act of Parliament, and where the legislature, in a very modern act of Parliament, have used words of a plain and definite import, it is very dangerous to put upon them a construction, the effect of which will be to hold* that the legislature did not mean that which they have expressed.''^ *Notley m. Buck, 8 Barn. & Ores. 160, 164. t Brandling us. Barrington, 6 Barn. & Ores., 467, 476. X The King w. Inhabs. of Stoke Damerel, 7 Barn. A Ores., 568, 568, 569. LEGISLATIVE INTENT,. HOW ASCERTAINED. 245 In a case upon the English poor laws, which pro- vided that, in order to gain a settlement, the rent of a tenement " should be pai4 for one whole year at least," it was insisted, with reference to the great inequality of rents, that this was very absurd and unjust; but the act was strictly construed, and the King's Bench said, "It is very desirable in all cases to adhere to the words of an act of Parliament, giving to them that sense which is their natural import in the order in which they are placed."* " "We are bound,"' said Lord Denman, " to give to the words of the legislature aU possible meaning which is consistent with the clear language used. But, if we find language used which is inqapable of a meaning, we cannot supply one. It is extremely probable that the alteration suggested would express what the legisla- ture meant, but we, looking at the word as judges, are no more justified to introduce that meaning than we should be if we added any other provisiou."t "The court," said Coleridge, J., "should decline to mold the language of an act for the sake of an alleged convenience, or an alleged equity, upon doubt- ful evidence of intention."^ And again, the same learned and experienced judge said — "If I thought the construction we are adopting put any force on the meaning of the act, I should be the last to con- cur in it ; for the longer I sit here the more I feel the importance of seeking only the meaning of a statute According tp a fair interpretation ?of its words, and * King V8. Inhabs. of Ramsgate, 6 Barn. & Ores., 712, 715. See also King vs. Inhabs. of Barham, 8 Bam. & Ores., 99. t Green vs. Wood, 7 Q. B., 178, 185. X The King vs. Poor Law Commissioners, 6 A. & E. 1, 7. 246 LEGISLATIVE INTENT; HOW ASCERTAINED. resting upon that."* Says Patteson, J., — " I see the necessity of not importing into statutes words which are not to be found there. Such a mode of interpreta- tion only gives occasion to endless difficulty ."f " We are required," says LordDenman, " to add some arbi- trary words to the section. We cannot introduce any such qualification; and I cannot help thinking that the introduction of qualifying words in the interpretation of statutes, is frequently a great reproach to the law." J Tindal, C. J., says, — "It is the duty of all courts to confine themselves to the words of the legislature — nothing adding thereto, nothing dimini8hing."§ The Court of Appeals in New York says, "Whether we are considering an agreenjefit between parties, a statute, or a constitution, with a view to its interpre- tation, the thing we are to seek is, the thought which it caresses. To ascertain this, the first resort in aU cases is to the natural signification of the words em- ployed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If thus regarded the words embody a definite meaning, which involves no absurdity, and no contradiction be- tween different parts of the same writing, then that meaning apparent on the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for co6struction. That which the words declare, is the meaning of the instrument ; and neither courts nor legislatures have the right to add to or take away from that meaning." | * 6 A. & E. p. 7. f King m. Burrell, 12 A. & E., 468. X Lamond vs. Eiffe, 8 Q. B., 910. § Everett vs. Wells, 2 Scott N. 0. 53l. I Newell vs. The People. 8 Seld. 97. See the subject also discussed la M'Cluskey iia. Cromwell, 1 Kernan, 598. STATUTES IN PARI MATERU. 247 In Michigan it has been said, " It is only where a statute is ambiguous in its terms, that courts exercise the power of so controlling its language as to give effect to what they may suppose to have been the intention of the lawmaker. In the statute before us, the language admits of but one construction. No doubt can arise as to its meaning. It must, therefore, be its own interpreter."* The result of this investigation then, is, that for the purpose of ascertaining the intention of the legis- lature, no extrinsic fact, prior to the passage of the bill, which is not itself a rule of law or an act of legislation, can be inquired into or in any way taken into view. We now proceed with the inquiry, what a/re the means outside of the statute which we may legitimately em- ploy to arrive at the desired result, viz. the legislative intent. Statutes mpa/ri materia, to he tahen together. — ^It is well settled, that in construing a doubtful stattite^ and for the purpose of arriving at the legislative intent, all acts on the same subject-matter are to be taken together and examined, in order to arrive at the true result. "All acts in pa/ri materia,^'' said Lord Mansfield,f " are to be .taken together, as if they were one law." "Where," he said, on another occasion, " there are different statutes in pari materia,, though made at different times, or even expired, and not re- ferring to each other, they shall be taken and con- strued together as one system, and as explanatory of each other." And in various cases before him, Lord * Bidwell e« al. vs. Whitaker et al., 1 Mich. 469, 479. t The Earl of Ailesbury vs. Pattison, Doug., 30. 248 STATUTES IN PARI MATERIA. Mansfield applied this doctrine to the laws concerning church leases, bankrupts, and the poor* This sound mle has been frequently recognized in this country. On this principle, " in many instances," say the Court of Errors of the State of New York, " a remedy provided by one statute will be extended to cases arising on the same matter under a subsequent statute."f And so it was held, that a provision for compensation embraced in an original act of 1817, ex- tended to cases arising under an act passed in 1820, conferring additional powers on canal commissioners. The subject has been considered and explained in Connecticut ; and it was there said, " Statutes are in pat/ri mafe^-ia, which relate to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the word svrmHAs. It is used in opposition to it, as in the expression, magis pares svM qua/m similes ; intimating not like- ness merely, but identity. ' It is a phrase applieable to public statutes or general laws, made at different times and in reference to the same subject. Thus, the ImgUslb laws concerning paupers, and their bankrupt 'acts, are construed together, as if they were one ? statute, and as forming a united, system ; otherwise the system might, and probably would, be inharmonious and inconsistent. Such laws are in ^ar* waferw. But private acts of the legislature, conferring distinct rights on different individuals, which never can be considered as being one statute, or the parts of a general system, are not to be interpreted by a mutual + Rex m. Loxdale, 1 Burr., 445 ; Duck vs. Addington, 4 Term R., 447. t Rogers vs. Bradshaw, 20 J. R., 786, 744. STATUTES m PARI MATERIA. reference to each, other. As well might a contract between two persons be construed by the terms of anotker contract between different persons." And so, the charters of various different banks were held not to be iiijc>airi materia* So, in New York it has heejx recently decided, where an act passed in 181 iT for the construction of the Erie Canal vested the fee of the lands taken for the purpose in the, people of the State, and lands were taken for the construction of the canal, under an act passed in 1819 omitting any provision as to the title, that the people took the same interest under the act of 1817 as they did under that of ISlO.f So in Kentucky it has been said, that where two statutes of the same date relate io the same thing, but one is more comprehensive than the other, there wiU be an effort to give to one some operation not em- braced in the other, so that each may, if possible, have some effect,— that the legislation may not appear to have been vain and useless. And in that State, where by statute all lands held by a seminary are declared free from all taxation whatever, and by another statute of the same date it is declared that ,the land on which any * seminary is erected, to the extent oifrve a^yres held sev- eralhf or mdmiduall/y^ is exempt from taxation, it was held to give effect to both statutes, that lands on which a seminary is erected, owned by the seminary, though exceeding five acres, should be exempt, but if no't owned by the seminary only five acres should be exempt. J ♦ Hosmer, J., United Soc. m. Eagle Bank, 7 Conn., 457, 469, 470. t Eeiford m. Knight, 15 Barb., 627. X Naz. Lit. & Ben. Inst. ot. Commonwealth, 14 B. Monroe, 266 ; Acts in pari materia to be taken together, Cannon m. Vaughan, 12 Texas, 899, 402. 250 STATUTES IN PABI MATERIA. t So, it has been said that all the acts of Congress relating to the reservation, grant, and sale of the six- teenth section in the several Congressional townships, in the different States of the Union, for the use of schools, being in relation to the same subject-matter^ are to be taken in pa/ri materia and considered as one act, in ascertaining the purpose of the grant of the sixteenth section of the several townships in any one State.* So, in Indiana, where at the same session an act was passed fixing the salaries of an auditor of a particular county, and also another fixing the salaries of auditors generally, the Supreme Court said that the rule of construction was well settled, viz. to regard these enactments in pa/ri materia, to consider them as one statute, and give them such an exposition as will sustain what appears to have been the main intent of the law-makers.f The rule that statutes in s. Peck, 11 Wend. 604, for cases where church elections have been held good though statutory provisions as to time and notice of holding, &o. have not been complied with. * Pond i>8. Negus et al. 3 Mass. 230. Williams vs. School District, 21 Pick. 75. t Marchant vs. Langworthy, 6 Hill, 646 ; 3 Denio, 526. I Gale == s. Mead, 2 Denio, 160. Thomas m. Clapp, 20 Barb. 165. § City of Lowell m. Hadley, 8 Met. 180. 374 STATUTES/ WHEN TREATED AS DIRECTORT. The Revised Statutes of New York* provide tliat every person elected to the office of sheriff shall withia twenty days after he shall receive notice of his election, execute a bond, i&c., to the people of the State. This provision also has been held to be a dir^- tion, ,and not a limit%tion.f In another recent case in the same State, it was said that statutory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is a matter of conveniehce rather than of substance.^ Indeed, the rule has been carried so far as to hold, where a statute directed the vote of the common council of the city of New York to be taken by ayes and nays, that this provision is merely directory.§ And,' again, it has been decided that the provision of a statute requiring inspectors of corporate elections to take an oath, is only directory. | The rule has also been applied to popular elections ; and an election has been held valid, though the inspectors were sworn not on the Bible but on some other book, though they kept open the polls after the time fixed by law, and committed other minor irregularities, — on the ground, that in all these respects the enactments of the statute were directory ; that provision was made for the punishment of the officers for willful or corrupt conduct ; that no actual evidence of fraud was ad- duced, nor any proof that the irregularity complained of had produced an improper result.^ * 1 R. S. 378, § 67. t The People va. HoUey, 12 Wend., 481. i The People w. Sohermerhorn, 19 Barb., 540. § Striker vs. Kelly, 7 Hill, 9. I In the Matter of the Mohawk and Hudson R. R. Co.,- 19 Wend., 143. IT People w. Cook, 14 Barbour, 259; S. C, 4 Seld., 88, «9, 93. STATUTES WHEN TREATED AS DIRECTORY. 376 I ttink it may well be doubted whether in the desire to sustain proceedings against which no bad faith has been alleged, a proper regard for form and regularity has not been lost sight of It is extremely difficult in these cases to prove actual fraud ; the very object of forms of proceeding is to secure regularity and fair dealing, and the recognition of the doctrine that explicit provisions of statutes can be disregarded with entire impunity as to the result of the p^ticular proceeding, is likely to lead to unbounded negligence • and indifference on the part of public officers, who have, as a general rule, little to fear from criminal proceedings directed against themselves personally. The general principle, that statutory provisions may in certain cases be treated as purely directory, has been recognized in all the States, In regard to capital trials for murder in Michigan, a statute requiring a circuit judge to assign a day for the trial, has been held clearly directory, so far as time is concerned* So in Indiana, an act authorizing the governor of the State to appoint arbitrators, in regard to a railroad, " two of whom shall be- men of legal attainments," was held from its vagueness to be merely directory, and that his action in the premises could not be re- viewed, although no two of the arbitrators appointed by him had the prescribed qualifications.f So, too, in Louisiana, it has been held that a provision in an act providing for the subscription by municipal corpora- tions, to the stock of companies undertaking works of * The People «s. John Doe, 1 Michigan, 452, 453. t The State «s. McGinley, 4 Indiana Reports, p. 7. 376 STATUTES WHEN TREATED AS DIRECTORY. internal improvement, requiring that the commissioners of election should be furnished with a properly cer- tified list of the authorized voters, is directory merely.* In Connecticut, it has been said that, when a duty i» required by statute to be performed on a certain day, and the object contemplated by the legislature cannot otherwise be carried into effect, the time prescribed must be considered imperative; but if there is nothing indicating that -the exact time. is essential, it is to be considered as directory. So, where a city charter required that a certain number of jurors should be chosen on the first Monday of July, and they were not chosen till the first of August, it was said that the provision was directory, and the jury was held to be legal.f In Alabama, a clause in an act for the final settlement of the affairs of a bank, requiring the^ trustees to sell the remaining property, " within thirty days from the first Monday in November," has been held not to be mandatory, but directory merely ; and that a sale made after the expiration of the time speci- fied was good, on the ground that the act contained nierely affirmative, and not negative words.J » (My of New Orleans vs. St. Eowes, 9 La. Ann.R. 573. Vide the idig- senting opinion of Buchanan, J. t Colt w. Eves, 12 Conn. 243. A statute in Texas providfed that certain lands therefore located, should be surveyed within twelve months, or the location should be null and void. The locator applied to the surveyor to survey, and the surveyor refused. A mandamus was applied for within the twelve months to com- pel the surveyor to survey, and obtained; but the survey was not com- pleted within the twelve months. It was held, nevertheless that the survey was valid, on the ground that it was not intended to compel a party to do an act wholly out of his power, Edwards vs. James, 13 Texas, 52. ■ X Savage et al. vs. Walsh et al. 26 Ala. 620. For other cases see Ex parte STATUTES WHEN TREATED AS DIBEOTORy. ,377 I may here notice that this same principle has been applied to the construction of constitutions. The con- stitution of Neiw York provides, in regard to all laws, "that the question upon the final passage shall be taken immediately upon the last reading, and the yeas and nays entered in the journal." (Cons., art. iii. § 15.) It has been held, in regard to this provision, with what, I say it in all deference, appears to me an extreme laxness, that it is merely directory, and that the disregard of it would have no effect upon the law.* It, seems to me difficult to deny that the practice of sanctioning the evasion or disregard of statutes which, we have had occasion to notice in the cases thus examined, has been carried beyond the line of sound discretion. This idea has been repeatedly expressed. "I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory," says Hubbard, J. in the Supreme Court ot Vermont. " If one positive requirement and provision of a statute may be avoided in that way, I see no reason why another may not."f But it is not to be denied that the practical inconveniences likely to result from insisting with literal severity on strict compliance with all the minute details which modern statutes con- tain, create a pressure on the judiciary very difficult to be resisted by sagacious and practical men who desire to free the law from the reproach. of harshness or ab- surdity. If it should be thought, on a review of these He%th and others, 3 Hill, 42 ; People®*. Holley, 12 Wend. 481 ; Jackson ««. Young, 5 Cowen, 269 ; Holland «« al. vs. Osgood, 8 Verm. 276, and Corliss lis. Corliss, iiid. 873. * The People against the Supervisors of Chenango, 4 Seld., 317. t Briggs lis. Georgia, 15 Verm., 61, 72. 3761 GENERAL RULES. cases, that the judiciary have, in regard to the con- struction of statutes as directory, really infringed on the province o£«the legislature, the only practical remedy for it appears to be a more careful preparation of the statutes, and an habitual insertion of the precise con- sequence which the lawmaker intends to follow from the disregard of his directions. " Perhaps," says Lord Denman, in a case of this kind, " this discussion may incline the legislature to say, on future occasions, in what respect they mean any particular provisions to be void which they declare to be so in general terms, and what consequences they intend should result from this invalidity. In the absence of this, we have great difficulty in all such cases."* We approach the end of a path which the careful reader must have long since perceived to be beset with difficulties, contradictions, and perplexities. In the cases that we have examined in this chapter, we find that sometimes laws are construed strictly, and some- times liberally, — sometimes liberally for one purpose, or in one aspect, and strictly in another, — sometimes exceptions are inserted to obviate suggestions of hard- ship or inconvenience, and sometimes the courts refuse to make such, qualifications, — sometimes statutes are interpreted with strict and literal severity, and some- times obedience to their mandates is declared to be a matter of entire indifference. It is obvious that in this state of things it is impossible to arrive at any rules of interpretation other than those which are derived from a classification such as we have attempted to make. It is equally obvious, however, that serious evils are * Reg. ««. Inhabs. of Fordham, 11 A. &. E., 88. GENERAL RULES. 379 sure to result from a latituljl of construction so con- siderable as we find to exist ; and I, therefore, attempt, with great deference for the able and learned magis- trates who are practically engaged in the administra- tion of justice, to frame the following rules as those which ought to govern in this department of our science. The intention of the legislature should control abso- lutely the action of the judiciary; where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment.* The means of ascertaining that intention, are to be found in the statute itself, taken as a whole and with all its parts, — in statutes on the same subject, antece- dent jurisprudence and legislation, contemporaneous and more recent exposition, judicial construction, and usage ; and to the use of these means, and these alone, the judiciary is confined. No other extrinsic facts are 'in any way to be taken into considerationi It is not until these means fail, and until the attempt, to ascertain the legislative intent is hopeless, that the judiciary , can with propriety assume any power of con- struing a statute, .strictly or liberally, with reference either to the particular character of the stati^e, or to * " No principle is more firmly established, or rests on more secure foun- dations, than the rule which declares, when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for- construction;" "resort is not permitted to extrinsic facts to ascertain the meaning of a statute otherwise clear." — Per Gold- thwaite, J., in Bartlett vs. Morris, 9 Porter Ala. 26,8, 269. Bee this case, also, with reference to the point that the title of a statute may explain what is doubtful, but cannot control what is contained in the body of the act. 380 GENERAL RULES. their own ideas of ipoWy or equity. Where the meaning of the statute, as it stands, is clear, they have no power to insert qualifications, engraft exceptions, or make modifications, under the idea of providing for cases in regard to which the legislature has omitted any specific provisions. In cases where the intent of the legislature is am- biguous, and the effort to arrive at it is hopeless, and in these cases only, does the power of construing a statute strictly or liberally exist ; and in regard to its exercise, as of discretionary power generally, no other rule c§in be laid down than that it must be exerted under the guidance of learning, fidelity, and practical sagacity. In regard to the cases where statutes are held to be directory, the greatest", difficulty exists; and in these there appears no mode of obviating it until legislative enactments shall be framed so as to specify with pre- cision the consequences intended to follow upon a dis- regard of their provisions. To the practiced mind these rules may at first sight • appear useless or trivial ; but perhaps they will not be so considered on a careful consideration of the laby- rinth of cases in which we have been wandering, and on observing the difficulty of obtaining or of giving a clue to its dark and tortuous passages. That difficulty appears to me mainly to arise from the abuse of the power of strict and liberal construction, to which our attention cannot be too often called. . The idea that an act may be strictly or liberally construed, without reference to the legislative intent, according as it is viewed either as a penal or a reme- dial statute, either as in derogation of the common law or a beneficial innovation, — is, in its very nature. GENERAL RULES. 381 delusive and fallacious. Every statute may be said to have two aspects : if it be severe in regard to an indi- vidual, it is beneficial to the comiriunity ; if it punishes crime, it also prevents fraud ; if it infringes on some venerable rule of the ancient law, it also introduces more simple, rapid, and less expensive modes of pro- cedure ; — so that every act iscapable, if this doctrine be admitted, of being construed in two ways diametrically opposed to each other, according to the temper of the magistrate to whom the task is confided. Again, the same act will be differently viewed under different circumstances. The acts diminishing the severity of imprisonment for debt, will be at one time looked upon as loose and profligate enactments, impair- ing the rights of creditors ; and at another as laws in favor of freedom and humanity. The usury laws will be at one period regarded as- salutary restraints on the rapacity of capitalists, and at another as absurd restrictions on the commercial dealings of mankind ; so that, if construed according to the different lights in which they are viewed, the same laws will be differently interpreted at different times, and even in different places at the same time. The inconsistences and discrepancies, as they now exist, do, in truth, too often arise from a desire, often an unconscious one, to substitute the judicial for the legislative will ; and they can only be corrected by adhering to the cardinal rule that the judicial functions are always best discharged by an honest and earnest desire to ascertain and effect the intention of the law- making body.* * See the opinion of Chief Justice Edwards, -in Hardin vs. Owings, ] Bibb, 215 Kentucky, — a case on the form of an appeal bond, — for a clear and forcible statement of the evils resulting from the loose notions of con- struction which have heretofore prevailed. 382 INTENTION OF THE LEGISLATURE. The Intention of the Legislature.— Wq hare had repeated occasion to make use of this term in the course of the two last chapters, and it may not be amiss here to analyze the phrase more closely than has been done in the text. Where, then, in what minds, can the irUent of a given legis- lative act be found, and hovr can its existence be proved ? The question is asked as an abstract one, and without reference to any technical rule of any kind. In regard to the general purport, or object, or intention of an act, no difS- culty presents itself. If an act be passed to make a railroad, or to raiie troops, no doubt can arise that every member of the majority which votes for the bill, concurs in the intention to accomplish the general object of the laws, viz. — to make the road, or to raise the levies. But in regard to the particular meaning of particular phrases or clauses — those out of which all the difficulties of construction grow — the case is very different. Take for instance the statute forbidding sheriffs to buy at sales on executions issued to them (ante, p. 304), which has been construed to mean, "except- ing in cases where sheriffs are plaintiff's,"— or the statutes authorizing all persons to make wills {cmte, p. 303), and which has been construed not to include married women, — or any still nicer cases. Did the legislature in these cases mean to exclude sheriff-plaintiff's, or to include married women f What was the legislative intent? In seeking for an answer, many things are to be considered. In the first place, the intention is to be found in the acts of the majority, and the objects or purposes of those voting against the bill are to be left out of view. Of those who voted for the bills, how many considered the grecise question, — as that a sherifTmight be a plaintiff'? How many khew any thing of the rule of the common law, that married women are incompetent to make vrills ? How is it to be known in the case of the sheriffs' statute, that some one or more of the majority, even if they considered that a sheriff might be a plaintiff, did not intend, having this in their minds, to make an arbitrary and peremptory rule, like the statute of frauds, to prevent collusion or perjury. Again, if the clause be inserted by amendment, is the majority who voted for the amendment the same as the majority who voted for the bill? Amendments are very frequently voted for by members hostile to a biU, for the purpose of defeating it, and yet the bill passes. Again, a commit- tee reports a bill with one object, and it is completely or partially altered by amendments in its passage through the legislative body. These con- siderations, moreover, all apply to two bodies, thereby doubling the difficulty of arriving at the real intention of the lawmaking power. niustrations oi this kind might be extended almost indefinitely. Thsy appear to me to be quite sufficient to show that even if the utmost latitude of proof was allowed, if reports and journals were consulted, if even the members themselves were put on the stand, it would be utterly impossible INTENTION OF THE LEGISLATURE. 383 in the great majority of cases to prove what the intent of the legislative body actually was in framing or inserting any given particular clause or provision. These considerations are not without practical weight. They go to show the only safe rule to bej that the legislative intent must be taken as expressed iy the words which the legislature has used, that all attempts by any kind of evidence to get at a legislative meaning different from that embodied in the words of the enactment, would from the nature of things prove illusory and vain ; that interpretation in these cases is necessarily conjecture, tending to assume the shape of mere arbitrary discretion ; and that construction should be strictly confined to pases of ambiguity or contradiction. " I hold that in respect to the intention of the legislature, where- the language of the act is explicit, the courts are bound to seek for it in the words of the act, and are not at liberty to suppose that they in- tended any thing different from what their language imports." — Mr Senator Porter, in The Supervisors of Niagara vs. The People, 7 Hill, 511. CHAPTER VIII. THE CONSTRUCTION AND APPLICATION OF STATUTES IN PARTICULAR OASES. Statutes Relegating public authority — Revenue laws — ^Penal Laws — Laws as affecting the rights of the goTcrnmcnt — Effect of statutes on contracts in violation of them — Cumulative remedies and penalties — Retroactive effect of laws — ^Waiver — ^Rule that the last statute in point of time prevails — Computation of time in statutes-subject matter — General words — Mis- description and surplusage — Remoteness of effect — Statutes against wagers — Corporations — ^The interpretation and proof of foreign laws — Revision of statutes'— State-laws, how construed in the courts of the United States — Interpretation of particular words — Miscellaneous cases — Grants or Patents. Having in the previous chapters considered the general principles of interpretation applicable to statutory law, I now proceed, for the more complete understanding of the Subject, to examine the con- struction and application of statutes in particular cases. This will lead me, perhaps at the risk of a repetition of matters already somewhat discussed under the head of the incidents and attributes of statutes, to consider certain classes of enactments, the application of cer- tain general rules or maxims of our law to this special branch of it, to speak of certain arbitrary rules of interpretation which have been adopted, and finally to examine the sense in which particular words are received. Statutes delegating authority to ptiMio officers. — We have already* called attention to the subject of public * Ante, pp. 102, 108. STATUTES DELEGATING PUBLIC AUTHOEITT. 385 officers created by statute ; and althougli the general disposition of the judiciary seems to be to treat such agents with liberal confidence, so long as they appear to be acting in good faith, with due discretion, and withia the limits of their conceded powers, and although in the exercise of mere discretionary authority, the courts are unwilling to interfere, — yet where public ' officers overstep the bounds of their authority, and the courts are appealed to as matter of strict right, the actions of these agents are vigilantly watched, and their infringements of private right unhesitatingly repressed. This doctriae we have already partially considered under the heads of summary judicial and administrative proceedings.* So where a statute of the State of Illinois authorized certain commissioners to borrow money and issue bonds, but the stock or bonds pf the State were in no case to be sold for less than their par value, — it appearing that the securities had been sold for less than par, the sale was held to be void, and an injunction against the purchaser ordered.f So in Michigan, where a statute authorized the agent of the State-prison to let out convicts, and required him to give notice in a public newspaper for sealed proposals for letting the convicts, it was held that the statute must be strictly pursued ; and a contract made without the statutory notice was adjudged void. J So again, where county commissioners were authorized to loan money on mortgage, and upon nonpayment the commissioners were directed' by statute to advertise for sale in three places, it was held that a * AnU, p. 360. t The State of Illinois vs. Delafleld, 8 Paige, 527. See this case for a discussion of the meaning of the word par, and of the subject of exchange. X Agent of State-Prison va. Lalthrop, 1 Michigan, 438. 25 386 STATUTES DELEGATING PUBLIC AUTHORITY. compliance with the statute was indispensable ; and the directions of the act having been neglected the sale was held void.* In cases of authority of this kiud, where personal trust or confide^e is reposed in the agent-^where his discretion is to be exercised — the authority is purely personal, and cannot be delegated. Thus,, where authority was conferred upon canal commis- sioners to enter upon lands, &c., it was held that the power could only be exercised by them ia person, or by their express direction, and that an engineer, or other sub-agent could not exercise the power with^ out the express directions of the commissioners. " It is of the greatest public importance," says Mr. Senator Verplanck, " to establish the general rule of agency, that ' delegated authority cannot be delegated again without special power so to do,' as governing the official powers, acts, and contracts of our State offi- cers."f Where a public body or officer has been clothed by statute with power to do and act concerning the public interest or the rights of third persons, thp execution of the power may be insisted on as a duty, even though the phraseology of the statutei be permissive only ; and * Denning m. Smith, 3 J. C. R. 382 ; Nixon «s. Hyserott, 5 J. R. 68. In regard to these questions of the power and jurisdiction of public ofBcers, we may here notice the rule that process regular on its face, and apparently within the jurisdiction of the court or officer issuing it, is a complete justification to the ministerial officer by whom it is executed, though in fact the court or officer had no jurisdiction. So it has been de- cided in regard to an execution, regular on its face, issued on a justice's judgment in a case where the justice had no jurisdiction ; Savacool vt. Boughton, 5 Wend. 170 ; and also in regard to a school-district tax- warrant regular on its fece, though the district meeting at which the tax was voted, was illegal ; Abbott vs. Yost, 2 Denio, 86. + Lyon DS. Jerome, 26 Wend., 485, 496. QUORUM. 38? if the duty is not performed, an action will lie. So, where the corporation of the city of New York were empowered to cause sewers to te made in that city, • and to cleanse the same, it was held that it was their duty to keep them clean, and that an actioij would lie for negligence in relation thereto* But in order to- succeed in such an actiouj it must he clear that a duty is imposed by law. So, where in New York the officers. and agents of a city corporation assumed to build a bridge, under the authority of a statute not constitu- tionally passed for want of the I'eqiiired legislative majority, and the bridge fell by reason of its negligent construction, the corporation was held not to be liable.f In regard to the number requisite to constitute a qmrum, of the members of a public body, or the number requisite to do business, it has long been settled that, where a statute constitutes a board of commissioners or other officers to decide any matter, as to open books, to receive subscriptions, and* distrib- ute the stock of a railroad company, but makes no provision that a majority shall constitute a quorum; all must be present to hear and consult, though a majority may then decide.^ * The Mayor of N. Y. vs. Furze, 3 Hill, 612 ; Henley m. Mayor et at of Lyme Regis, 5 Bing. 91, 3 Barn. & Adol. 77 ; 1 Bing. N. C. 222, S. 0. in error. + The Mayor, &o. of Albany «s. Cunliff, 2 Goms. 165. It must, how- ever, be admitted that in this case it is not easy to ascertain from the opinions of the different members of the court, what was the precise point which they intended to decide. I give the substance of the marginal note- See also People vs. Cooper, 6 HilJ, 616. X Withnell m. Gartham, 6 T.R. 388. Grindley ei al. vs. Barker et aL 1 B. and P. 229 ; Bx parte Rogers, 7 Cow. 526. Crocker vs. Crane, 21 388 REVENUE LAWS. Revenue Laws. — We have already referred* to the language which has been held in regard to laws passed for the collection of revenue, with reference to the principles of strict and liberal construction. We have here to consider the general principles of interpreta- tion which are to be applied to them. The Supreme Court of the United States has said that "laws impos- ing duties on the importation of goods, are intended for practical use and a,pplication, by men engaged in commerce. Merchants are not supposed to be men of science, — naturalists, geologists or botanists ; and it is a settled rule in the interpretation of statutes of this description, to construe the language adopted by the legislature, and particularly in the denomination of arti- cles, according to the commercial understanding of the terms used."f Wend. 211. Babcock vs. Lamb, 1 Cowen, 238. In New York the Revised Statutes provide, "Whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or ofScers are authorized or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or officers so entrusted or empowered, unless special provision is otherwise made." 2 R. S. part iii. chap. viii. title 17, § 27, vol. ii. p. 656. In New York the act of 1848, creating the office of Auditor of the' Canal Department, conferred on him no power to look behind a draft drawn by one of the canal commissioners, and adjudge that the commissioner was without the authority to make it. His powers and duties are strictly of a ministerial character. People m. Schoonmaker, 19 Barb. 667. * Ante, p. 834. t Two Hundred Chests of Tea, 9 Wheat. 430, 488. Elliott b». Swart- wout, 10 Peters, 187 ; see this case, as to the distinction between woolen goods and worsted goods. "Public poUcy, national purposes, and the regular operations of govern- ment, require that the revenue system should be faithfully observed and ' strictly executed," says Mr. J, Chase, in Priestman m. The United States, 4 DaOas, 28, 84. REVENUE LAWS. 389 Mr. Justice Story, on tte first Circuit, has said that, — Acts of this nature are to be interpreted, not according to the abstract propriety of language, but according to the known usage of trade and business, at home and abroad. If an article has one appellation abroad^ and another at home, not with one class of citizens merely, whether mer- chants or grocers or manufacturers, but with the community at large, who are buyers and sellers, — doubtless our laws are to be interpreted^ according to that domestic sense. But, where the foreign name is well known here and no different appellation exists in domestic use, we must presume that, in a commercial law, the legislature used the word in the foreign sense. I say nothing, as to what rule ought to prevail where an article is known by one name among merchants and another by man- ufacturers or the community at large, in interpreting the legislative meaning of the Tariff Act. Congress, under such circumstances, may perhaps be fairly presumed to use it in the move general or more usual sense, rather than in that which belongs to a single class of citizens. But this may well be left for decision until the very questions arises. I agree in the law as laid down in the case of Two Hundred Chests of Tea, Smith, Claimant, 9 Wheaton R. 435. That case was as fully con- sidered, and as deliberately weighed, as any which ever came before the Court. It was there laid down, that in construing revenue laws, we are to consider the words not as used in their scientific or technical sense, where things are classified according to their scientific charaic- ters and properties, but as used in their known and common commer- cial sense in the foreign and domestic trade. Laws of this sort tax things by their common and usual denominations among the people^ and not according to their denominations among naturalists or botan- ists, or men in science.* Fenal Laws. — Under the head of incidents and attributes of statutes in our fourth chapter, and under that of strict and equitable construction in the last, we have already had occasion to consider many ques- • tions in regard to penal statutes. Certain other rules remain, which more properly belong to this place. * U. S. m Breed, 1 Sumner, 159, 163, 164. 390 PENAL LAWS. The question is often raised, whether a given statute is properly to be classed as a penal or a remedial law ; and it does not seem clearly settled what constitutes a penal statute. A statute declaring that an indictment for an offense committed on board of a boat navigat- ing a, river or canal, may be found in any county through which the vessel shall pass, has been said not to be properly speaking a penal statute, as it neither creates the offense, prescribes the punishment, nor alters the mode of trial ; it merely changed the venue* In Maine, it has been said, that a statute de- claring that any person who assists a debtor to defraud his cijeditor by making a fraudulent concealment or tranisfer of his property, shall be answerable in a special action on the case to any creditor, in double the amount so fraudulently concealed or transferred, is not a penal statute.f A statute giving double damages to a landlord against a stranger for assisting a tenant in carrying off and concealing his goods, by which the plaintiff was prevented from distraining for his rent, has been said in England to be a purely remedial statute.:^ And so, in Massachusetts, a statute giving double damages against a town, for an injury to the plaintiff caused by a defect in a highway, has been similarly regarded?* Shaw, C. J., in delivering the opinion of the court said, " We think the action in the present case is purely remedial, and that it has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty, operate to a certain * The People m. Hulse, 3 Hffl, 809. t Frohook m. Pattee, 88 Maine, 103 ; see also, Quimby ®«. Carter, 20 Maine, 218 ; Philbrook vs. Handley, 27 Maine, 58 ; Thacher vs. Jones, 31 Maine, 528. X Stanley vs. Wharton, 9 Price, 801. PEITAL LAWS. ■ 391 extent as punishment ; but the distinction is (in the case of a penal action), that it is prosecuted for the purpose of punishnient, and to deter others from offending in like manner. Here, the plaintiff sets out , ihe liability of the town to repair, and an injury to Mmself from a failure to perform that duty. The law gives him enhanced damages ; but they are recoverable to his own use, and in form and substance, the suit calls for indemnity."* So, too, it has been, said, a statute giving four times as much damage as is allowed l)y law for the detention of other debts, is penal in its character; but as it is given to theparty injured, who seeks the recovery of a just debt to which the increased damages are made an incident, a suit therefor is not properly to be regarded as a penal action.f But on the contrary, where a staltute gave treble damages against any person who should commit waste on land pending a suit for its recovery, the court said, that the act did not apply to a party whoUy ignorant that any suit was pending, saying, " We can hardly suppose the legislature intended to punish so severely, a tres- passer wholly ignorant of the pendency of the suit. , The statute is highly penal, and should therefore be limited in its application to the object the legislature had itL view." J Wiere a bridge company act declared * Reed vs. Northfleld, 13 Pick. 94, 100, 101. And on the ground that it was not a penal action, it was held in this case not to be necessary that the declaration should conclude, contra formam statuii. See to this latter point, "Wells m. Iggulden, 5 Dowl. & Ryl. 13 ; S. 0. 3 Barn. & Ores. 186 ; Peabody ns. Hayt, 10 Mass. 36 ; Nichols ««. Squire, 5 Pick. 168 ; Lee vs. Clark, 2 East, 333 ; Newcomb vs. Butterfleld, 8 J. E. 266. t The SuflFolk Bank vs. The Worcester Bank, 5 Pick. 106 ; Keed vs. Northfleld, la Pick. 94; Palmer vs. York Bank, 18 Maine, 166 ; Bayard v». Smith, 17 Wend. 88. X Reed ««.. Davis et al. 8 Pick. 515, 516. 392 PENAL LA-VrS. that it should not be lawful for any person to cross the lake over which the bridge was constructed, withiu three miles of it, without paying toll, a person entered the lake on the ice six miles from the bridge, and came off on the other side sixty rods from it. In an action brought to recover back tolls paid, the court held that no toll could be demanded, saying, " The act is in a measure penal, and ought to be strictly construed. In the construction of statutes made in favor of- corpora- tions and particular persons, and in derogation of com- mon right, care should be taken not to extend them beyond their express words and their clear import."* Some special rules are to be noticed. Where a penalty is imposed by statute upon a party for enter- ing into a contract, the imposition of the penalty in law amounts to an implied prohibition of the act for which the penalty is inflicted, and the contract is thereby rendered illegal and void.f In penal suits, unless a general form of declaration is expressly authorized by statute,- the declaration must set forth the particular acts or omissions which constitute the cause of action, and by which the alleged penalty was incurred. This is the general rule.J * Spague m. Birdsall, 2 Gowen, 419, 420. t Williams vs. Tappan, 3 Foster, 385. Brackett m. Hoyt, 9 Foster, 264. It was decided in this case that it was the offer for a sale of pressed hay, and not the sale unaccompanied by an offer, that was made illegal by the statute. X 1 Chit. PI. 405; Cole vs. Smith, 4 John. 193; Bigelow vs. Johnson, 13 John. 428 ; Collins vs. Ragrew, 15 J. R. 5 ; The People vs. Brooks, 4 Denio, 469. The Revised Statutes of New York authorize a more com- pendious mode of declaring in proceedings of this class, by merely alleging the "indebtedness" of the defendant, with a reference to the statute. 2 R. S. 482, § 10. But this is abolished by the Code of Procedure, § 140, and the old rule, as stated in the text, is revived. Morehouse et al. vs. Oiilley, 8 Howard Pr. R. 431. PENAL LAWS. 393 Where a statute authorizes any person on giving security for costs to prosecute for penalties against an excise law in the name of the overseers of the poor, where those officers had neglected for ten days to pros- ecute, the defendant cannot object that the ten days had not elapsed, nor that sufficient security had not been given* In Pennsylyania where a statute forbids the sale of liquors on Sunday, and prescribes a penalty of fifty dollars against any one who shall be duly convicted thereof, the proper proceeding under it is a criminal proceeding, and not a qid td/m action.f It has been said that the same expressions may be differently construed, according to their appearing in a civil or a criminal action. So in a prosecution for libel, where the defendant was convicted, motion was made in arrest of judgment, on the ground that the act under which the conviction was obtained, had been repealed after conviction. Its language was doubtful; but^ it was said by Tilghman, C. J., "It is said, the law is not drawn so clearly as it might have been. If the same expressions had been applied to a civil action, I should have thought myself war- ranted in giving it a different construction, because then it would have operated in a retrospective manner, so as to take away a vested right. But there is a wide difference between a civil and a criminal action. In nothing is the common law which we have inherited from our ancestors more conspicuous, than in its mUd and Inerciful intendment toward those who are objects of punishment; we apply the pAnciples of the law to * Thayer w. Lewis, 4 Denio, 269. + Specht vs. The Commonwealth, 24 Penn. 108. 394 PEITAL STATUTES. the construction of statutes." And the judgment was arrested* It has been said that although legislative enactments of an ordinary remedial or directory character in ref- erence to corporations, may perhaps be applicable to some stock associations formed by articles of copartner; ship, provisions creating misdemeanors and imposing penalties and forfeitures- can not be so extended by im- plication without violating a fundamental rule in the interpretation of statutes, and enacting an ex post facto law by judicial legislation.f A question has been raised, whether two penalties can be incurred in one and the same day ; and it seems to depend much on the nature of the offense and the language used. So; for keeping or injuring greyhounds, it was held that but one penalty could be demanded.^ But for selling books illegally, it was held that where there had been two distinct acts of sale on the same day this constituted two different offenses, for which two penalties were recoverable.§ In England it has been decided in regard to what are called qui tarn actions, or those brought by in- formers for the violation of statutes, that the right to the penalty vests in the informers immediately on filing the information ; and therefore though the king may pardon the offense so as to discharge the share of the crownj he cannot deprive the informer of his portion. | * Commonwealth m. Duane, 1 Binney, 601. t Curtis w. Leavitt, 17 Barb. 89, 862. X Marriott es. Shaw, Com, a?* ; The Queen us. Mathews, 10 Mod. 27 ; Hardyman m. Whitaker, Bull. N. P. 189 n. (S.) ; Rex vs. Bleasdale, 4 T. R. 809 ; Dwarris, p. 642. So too, for exercising a trade on Sunday, ^Cripps *s. Burden, Dwarris, p. 643. , § Brooke, q. t. vs. MillikeUj 8 T. R. 509. v I Grosset vs. Ogilvie^ 6 Bro. P. C. 627. LAWS AFFEOTIlira THE STATE. 395 The Revised Statutes of New York declare, that where the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed either in the same section contain- ing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.* Laws as affecting the state or government. — We have already had occasion to call attention to the force and meaning of the maxim nvMv/m tempus occwrrit regi (ante, p. 105) ; and also to the general rule in the construction of statutes declaring or affecting rights and interests, not to interpret them so as to embrace the sovereign poWer of the state unless that idea be distinctly expressed, or result by necessary implication. So in Mississippi it has been said to be the settled doctrine that the general words of a statute do not include the state or affect her rights, unless she be specially named, or it be clear and indisputable from the act that it was intended to include the state.f * 2 E. S., part iv. chap, i., title 6, vol. ii., p. 696, § 55. [Sec. 39:|l t Josselyn vs. Stone et al., 28 Mississippi, 753 ; ante, p. 36. See also p. 62, as to proTisioiis ; 1 Black. Com., 261 ; Com. Dig. tit. Parliament, R. 8 ; The King m. Allen, IB East, 333 ; The King m. Inhabitants of Cum- berland, 6 Term R. 194; United States m. Hoar, 2 Mason R. 314; Com- monwealth vs. Baldwin, 1 Watts Penn. R. 54 ; People vs. Rossiter, 4 Cowen, 143 ; [Jhited States vs. Hewes, U. S. D. C. for Pennsylvania, Jlily, 1840 ; 1 Kent Com. p. 460. In regard to royal grants, the old rule appears to have been that they were taken, contrary to the present rule in regard to grants, most strongly in favor of the gfantee, 2 BI. Com. 347; Stanhope vs. Bishop of Lincoln et al. Hob. 243 ; Turner & Atkyns, B. Hard. 309 ; Bro. Abr., Patent, 62. But the rule appears subject to many qualifications. Sir John Moljyn's Case, 6 Co. 5. ; Alton Woods Case, 1 Cctke, 26. See opinion of Mr. Justice Story in Charles River Bridge vs. Warren Bridge, 11 Peters, 589. The idea seems to have resulted from a notion of the impropriety of setting strict bounds to royal munificence. See Domat's rules, § 17, ante, p. 285. 396 ACT3 IN VIOLATIOK OF STATUTES. Effect of statnites on contracts^ or acts in violation of t7iem.—-'We have already* called attention to the rule which declares void all agreements made in contra- vention of statutes ; the subject is of sufficient import- ance to demand here more particular attention. The general principle is that an individual shall not be assisted by the law in enforcing a demand originating in a breach or violation on his part of its principles or enactments.f This is expressed in the maxims JEke twrpi cont/racPu oritv/r non actio ; Mb dolo mcHo non oritwr actio^ and other similar and familiar forensic adages. The rule finds frequent application in the common law and has decided a great number of cases. So, agree- ments in consideration of future illicit cohabitation ; for the sale of libelous or immoi"al works; immoral wagers ; agreements in restraint of trade or of marriage, for the sale of offices, affecting the course of justice, relating to trading with an enemy; and generally all contracts tainted in any way with fraud, are absolutely void and incapable of being enforced. J The general principle is the same in regard to legis- lative enactments, and is uniformly true in regard to all statutes made to carry out measures of general policy. This often results from the terms of the stat^ utes themselves. So, the statutes against usury, against gaming, against stock-jobbing, and in many other cases, peremptorily declare all contracts in violation of their provisions void. And the rule holds equally good if there be no such express provision, in regai^d to all statutes intended generally to protect the public in- terests or to vindicate public morals. * Ante, p. 84. t Ohitty on Contracts, ch. iv. ; Parsons on Contracts, 882 note a. X Chitty on Contracts, ch. iv. ACTS m VrOLATION OF STATUTES. 397 So, policies effected in Eagland on vessels sailing during war, in contravention of the convdy acts, were held void* So where the voyage was against the provisions of the East India Company acts,f or the South Sea Company acts. J So, a note discounted by the teller of a bank for his own benefit, in violation of the statute of the State of New York (1 R. S., 595, § 28) concerning the discounting of 'commercial paper by officers and agents of banking corporations, is void.§ It is very important, how-ever, to observe the modi- fications and qualifications by which this, like almost all the general rules of our system, is hedged ^bout. We have a|ready|| had occasion to notice that when the statute violated is only passed to secure the revenue, ^as for instance, prohibiting sales of certain articles without a license, and containing a penalty by way of securing payment of the license-money,— -the mere violation of this revenue statute can not be set up as avoiding a contract,^ So again, a sale of property out of England, the seller not bein^ a British subject, is'held valid, though he knows that the purchaser intends to smuggle the property into England,** * Wainhouae vs. Oowie, 4 Taunt., 178. Darby vs. Newton, 6 Taunt., 544. t Johnson vs. Sutton, 1 Doug., 254. Camden vs. Anderson, 6 T. K., 709. Chalmers vs. Bell, 3 B. & P., 604. I Toulmin m. Anderson, 1 Taunt., 227. Hodgson vs. Fullarton, 4 Taunt, 787. § Henry vs. Salina Bank, 1 Corns., 83. || Ante, pp. 87 and 89. 1 Johnson vs. Hudson, H East, 180. Brovm vs. Duncan, 10 Barn. & Ores. 98. Cope vs. Rowlands, 2 Mees. & Wels. 157. See Harris vs. Kunnels, 12 Howard, 79. ** Holman vs. Johnson, Cowp. 841 ; Biggs vs. Lawrence, 3 D. & E. 454 ; Clugas vs. Penaluna, 4 D. & E. 466 ; Warnell vs. Reedf 5 D. & E. 599 ; Pellicat vs. Angel, 2 C. M. &.Ros. 811. 398 ACTS IN VIOLATION OF STATUTES. It has been said that eyea though a statute merely inflicts a penalty for doing a certain act, without ex- pressly prohibiting it, a contract having such matter for its consideration or object is wholly invalid.* But this seems subject to qualification, dependent on the point whether the act is ■ prohibited, or whether a penalty is merely attached to its violation. It has been said that the merely selling goods knowing that' the buyer will make an illegal use of thpm, is not sufficient to deprive the vendor of his just right of payment ; and that to effect this it is necessary that the vendor should be a sharer in the illegal transactidh.f This was said in a case where the act prohibited was forbidden for the purposes of revenue ; but when we take into view the formidable consequences of the rule that every one is presumed to know the law, the doctrine may not be unjust in general application. A seller, for in- stance, may know the destination intended by the purchaser for the articles which he sells, that desti- nation may be illegal, the law presumes that the seller knows the fact of the illegality as well as the fact of the sale, although in truth he may be perfectly ignouant of the legal objection, or his attention may be in no way called to the point. . We may here notice a point bearing upon this branch of our subject, as connected with the conflict of laws. We have just seen that sales of property out of England by a foreigner, of goods intended to * Seidenbender m Charles, 4 Serg. & R. 150. De Begnis w. Annistead, 10 Bing. 187, citing Lord Holt's dictum in Bartlett vs. Vinor, Carthew, 252, that a penalty ipaplies a prohibition. Vide p. 898, also ante, pp. 392 and 41. t Hudson M. Temple, 6 Taunt. 181. ACTS IN VIOLATION OF STATUTES. 399 be smuggled into Englaijd is valid ; and so in this country, as to contracts of sale, mere knowledge on the part of the seller that the goods are to be used in another State, contrary to the laws of such State,^ does not make the sale illegal in a State where the sale is not prohibited, and consequently the contract is valid. So, where spirituous liquors were sold in Massachusetts, where the sale was legal, upon an action being brought in New Hampshire, where such sales are Ulegal, it was held that mere knowledge on the part of the vendor that the purchaser intended to sell them in New Ha,mpshire, contrary to the laws of that State, was not a defence to the action.* Again, where a statute is framed merely for a special or collateral purpose, as an act passed to give to a certain class a readier mode of redressiijg their rights, a violation of this statute will not render the whole transaction illegal, nor deprive the violator of the statute of his legal remedies in other respects.f Thus, where a statute prohibited masters of vessels under a penalty, from shipping seamen without a cer- tain agreement being signed, but did not declare the voyage reijdered illegal by reason of thp violation of the statute, — an insurer on the ship was held not to be thereby relieved from his contract. So again, a buyer of spirits cannot refuse payment because the seller violated the revenue laws' in the sale, by not transmitting a permit truly specifying the strength of the spirits. " Where the consideration and the matter to be performed are both legal," says the King's Bench, " we are not aware that the plaintiff * Smith vs. Godfrey, 8 Foster, 379. t Redmond «« Smith, 7 Man. & Gr,, 457. 400 ACTS IN VIOLATION OP STATtTTES. has ever been precluded by an infringement of the law not contemplated by the contract, in the performance of something to be done on his part-"* So on the same principle, in Pennsylvania, it has been held that a party who erects an obstruction in a navigable stream, and thereby occasions an injury to another, cannot, in an action for such injury, set up as a defence that the plaintiff was unlawfully engaged in worldly employment on Sunday, when the injury occurred. The law relating to the observance of the Sabbath defines a duty of the citizen to the State, and to the State only.f " We should," says the Supreme Court of Pennsylvania, " work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the Jaw to the injury of another, to set off against the plaintiff that he, too, is a public offender." We have already had occasion^ to call attention to the rule that where an instrument contains a clause or provision in contravention of a statute, it renders the whole instrument invalid. I may here remark that the rule is in its nature arbitrary, and calculated to work injustice, and that it appears to be subject to conceptions. So, where there are different and indepen- dent covenants in the same instrument, part may be good and part bad. So, a personal covenant to pay a rent charge may be good, and the security of the rent charge on the living may be bad.§ * Wetherell vs. Jones, 3 Barn. & Ad., 221, t Mohney vs. Cook, 26 Penn., 342. I Ante, p. 91. § Mouys vs. Leake, 8 T. R., 411. Kerrison vs. Cole, 8 East, 234. Dwarris, p. 638. See Chitty on Contracts, p. 636. r CUMULATIVE REMEDIES AND PENALTIES. 401 Cumulative JRemedies and Penalties. — ^Where a precise remedy for tlie violation of a right is provided by statute, it often becomes " a matter of interest to know whetlier the statutory remedy is the only one that can be had, or whether it is to be regarded as merely cumulative, the party aggrieved having also a right to resort to his redress for the injury sustained, at common law, or independently of the statute. In regard to this we have already noticed the rule that where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, in such a case the party violating the statute is liable to the penalty only ; but that where a right of property is vested by virtue of the statute, it may be vindicated by the common law, unless the statute confines the remedy to the penalty. So, where a statute vested in a town the right of disposing of the privilege of tak- ing alewives in a river within the limits of the town, and enacted that persons obstructing the passage of the fish should be subject to a penalty, it was held that the remedy prescribed by the statute was cumula- tive, and that a common-law action on the case would lie, by the vendee of the privilege against any person obstructing the passage of the fish.* So, too, in England, under the original copy- right statute, 8 Anne, c. 19, it was held that the pen- alties and forfeitures imposed by the act were merely cumulative remedies, and that a common-law action on * Ante, p. 95 ; Barden vs. Crocker, 10 Pick. 383, 389. The regulation and preservation of the alewive fishery, has been an object of the J>articular attention of the legislature in Massachusetts ; see Coolidge vs. Williams, 4 Mass. R. 144, where it is said to be a part of the common law of the State, that a town may appropriate the fish in its waters, if not appropriated by the legislature. 402 CUMULATIVE REMEDIES AND PENALTIES. the case would lie for an infringement of the owner's right of property * So also in New York, in the act giving K. E. Livingston an exclusive right to the navigation of the Hudson Kiver, the statutory • for- feitures imposed on parties infringing his privilege were held to be cumulative, and an injunction was sustained.f We have also noticed the rule, that if a statute gives a remedy in the affirmative, without a negative expressed or implied, for a matter which was actionable at the common law, the party may sue at the common law as well as upon the statute ; for this does not take away the common-law remedy.^ So, where the legislature authorized the erection of a milldam, and provided a summary mode of appraising the damage of those who might be injured by it, it was held that the remedy was merely cumulative, and did not take away the common-law iright of action on the case for the injury; and stress was laid on the fact that the act was not couched in negative terms.§ But on the other hand, it is a rule of great import- ance, and frequently acted upon, that where by a statute a newright is given and a specific remedy provided, or a new power and also ^e means of executing it are provid- ed by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute. So, an indebitatus assumpsit will not lie for the benefit derived from a sewer, where the law has * Beckford vs. Hood, 7 T. R. 620, cited with approbation jn Barden vs. Crocker, 10 Pick. 383. t Livingston vs. Van Ingen, 9 J. R. 606, 562, 671. The acts creating the monopoly were deemed by the Supreme Court of the United States to be unconstitutional, so far as they conflicted with the general coasting system of the United States, Gibbons m. Ogden, 9 Wheat. 1. I Com. Dig. Action upon Statute C. 2 Inst. 200. Ante, p. 98. § Crittenden vs. Wilson, 5 Co wen 165 CUMULATIVE REMEDIES AND PENALTIES. 403 provided for its construction by tax or assessment.* So, where a party by subscribing an act of association, as for the purpose of making a road or building a bridge, simply engages to become the proprietor of a certain number of shares, without any distinct or specific promise to pay such assessments as may be imposed, the only remedy in case of non-payment is by a sale of the shares to raise the sum assessed on them, upon the ground that the coirporation has no power at common law to make any assessments of this kind, and tliat, when a statute gives a new power and at the same time provides a means of executing it, those who claim the power can execute it in no other way. "Where on the other hand there is an express promise to pay the assessment, then the party is answerable to the corporation on the promise, and an action will lie.f So in Massachusetts when an action was given by stat- * City pf Boston vs. Shaw, 1 Met. 130, 188. t In Massachusetts, see New Bedford and Bridgewater Turnpike Co vs. Adams, 8 Mass. 188 ; Andover and Medford Turnpike Co. vs. Gould, 6 Mass. 40 ; Worcester Turnpike Co. vs. Willard, 5 Mass. 80. In Franklin Glass Co. vs. White, 14 Mass. 286, the same rule was applied to a manu- ' facturing Co. ; see also Essex T. Co. va. Collins, 8 Mass. 292. In Taunton and S. B. T. Co. va. Whiting, 10 Mass. 827, the subscriber was held liable. See also Ripley va. Sampson, 10 Pick. 370, and Chester Glass Co. vs. Dewey, 16 Mass. 94; see also Trustees of Phillips Limerick Academy es. Davis, 11 Mass. 113, where it was held that no action would lie on a voluntary subscrip- tion to erect an academy. In Connecticut the whole subject has been very elaborately examined, in the Hartford and New Haven R. R. Co. m Kennedy, 12 Conn. 607, et seg. per Huntington, J., where assumpsit for an assessment was held to lie against the stockholder of a corporation. In New York see Jenkins va. Union Turnpike Co., 1 Oaines' Cases in Error, 86; The Goshen and Minisink Co. va. Hurtin, 9 J. R. 217 j. The Dutchess Cottcin Manufactory va. Davis, 14 J. R. 238; and Spear va. Crawford, 14 Wend. 20, where the defendant was held liable. The question seems generally to turn on the precise form qf the association or corporation, and whether a promise to pay is to be implied gr not. As to assessments on pews, see Trustees of F. P. 0. in Hebron vs. Quackenbuah, 10 J. R. 217. 404 CUMULATIVE REMEDIES AND PENALTIES. ute against the directors of an insolvent bank, it was held that no action would lie against them at common law, on the same ground'that where a new right is given or a new duty imposed by statute, and a remedy provided to enforce such duty or for the viola- tion of such right, the remedy given must be pur- sued.* So, too, in the same State an action of debt does not lie upon an award of damages of a committee of the sessions for locating a highway ; a remedy by dis- tress warrant, being prpvided by the statute. " Where a statute gives a right and furnishes the remedy, that remedy must be pursued."f And so, as at common law and before the statutes of 18 Eliz. and 6 Geo. II. the putative father of an illegitimate child was under no legal liability to mainfain his illegitimate oflfepring, and as that liability has been created wholly by statute, the remedy prescribed must be followed : the father is liable under the filiation order, but no action of assumpsit for the support of the child will lie. J So too, in Indiana w,here the exclusive privileges of ferries were not known till they were created by statute, the owners of ferries must rely on the provisions of the act for their security.§ So, too, it has been said in Michigan, that where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued and the party is confined to that remedy only, — as to recover threefold the amount * Hinsdale vs. Lamed, ei al. 16 Mass. 65. t Gedney m. Inhabitants of Tewksbury, 3 Mass. 307, 309, per Sedg- wick, J. vide ante, p. 94. \ Monoriefus. My, 19 Wend. 405. Cameron vs. Baker, 1 Can & Payne,. 268. Furillio vs. Crowther, 7 Dowl. & Ryl., 612. § Lang vs. Scott, 1 Blackford, 405 ; approved Almy r«. Harris, 6 John. K. 175. CUMULATIVE REMEDIES AND PENALTIES. 405 • • • • * of usurious interest paid * In New Hampsliire it has been said that where a statute authorizes the doing of certain acts (such as the destruction of a highway by a railway company), the necessary consequence of which will be to injure the property of another, and at the same time provides a remedy for the recovery of the damages, the party injured is confined to the stat- ute remedy for such damages, and no remedy can be had upon a common-law declaration.f In Maine, it has been said that if a statute gives merely a new remedy where one before existed at common law, it is cumulative, and the party injured is at liberty to pursue either. If a statute give the same remedy which the common law does, it is merely affirm- ative, and the party has his election which to pursue. But if a statute withhold the remedy which before existed at common law, the common-law right ceases to exist. J The analogy of these rules holds good in the criniinal law. Thus, where an offense intended to be guarded against by a statute, is punishable before the making of any statute prescribing a particular method of punishing it^ then such particular remedy is merely cumulative, and does not take away the former remedy ; but where the statute enacts that the doing of auy act not punishable before shall for the future be punishable in such and such a particular manner, there it is necessary that the particular method prescribed by the act be specifically pursued, and not the com- mon-law mode of an indictment.8 * Thurston vs. Prentiss, ei al. 1 Kichigan, 193. t Henniker m. Oontoocook Valley R. R., 9 Foster, 147. X Gooch vs. Stephenson, 13 Maine (1 Shepley) 371., § By Lord Mansfield, in Rex vs. Robinson, 2 Burr. 799, where held that xin indictment would lie for disobedience to a filiation order of the quarter 406 RETROACTIVE EFFECT OF LAWS. It has been said, however, to be a clear and established principle, that when a new offense is created by act of Parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause, upon the ground of its being a misdemeanor* ' It is no objection in this country to an indictment for an offense against a statute of a State, that the de- fendant is liable to punishment for the same act under a law of the United States, A State may pass laws declaring acts criminal, and may punish the violation of the law, although the offender may be again prose- cuted by the Federal Grovernment for violating her laws by the same act which violated the law of the State. -In other words, a party in committing a wrong- ful act, may by one act violate the laws of the two governments, and render himself amenable to both.f Rei/roactvve effect of laws. — We have already spokenj of laws in this aspect ; and we have stated the general rules to be, that retrospective laws which conflict with a State constitution,§ which violate the sessions, though a particular forfeiture of twenty shillings per month was affixed jxt any disobedience of the statute under which the order was made. See Castle's Case, Oro. Jac, 644. In Stephens vs. Watson, 1 Salk. 45, it was held that an indictment would not lie for keeping an ale-house without a license, because it was no ofiense at common law, and the statute making it an offense had made it punishable in another manner.' See Rex m'^ Robinson, approved in Sturgeon vs. The State, t Blackf , Ind. 39. • The King ■»«. Harris, 4 T. R., 206. See this case cited and com- mented on in the Hartford & N. H. R. R. Co. vs. Kennedy, 12 Conn., 499, 527.. t The State vs. Moore, 6 Indiana, 436. , X Ante, p. 188. § The Constitution of Tennessee, art. xi., § 20, contains a positive declaration, " That no retrospective law, or law impairing the obligation of contracts, shall be made." EETROACTIVE EFFECT OF LAWS. 407 provisions of tlie Constitution of the United States by impairing the inviolability of the obligation of contracts, or which tend to divest vested rights of property, are absolutely void, as not being within the scope of the legislative power ; and that the courts will always struggle to give laws a prospective construc- tion or interpretation. But in cases which do not come within the foregoing exceptions, it is in the power of the legislature to pass retroactive laws ; and the judiciary will not interfere with them. The ques- tion is of so much practical importance, that the fol- lowing decisions ought hot to be overlooked. "It is not in the power of the legislature," says the Supreme Cpurt of Maryland, " to give a, statute a retrospective ' operation, so as to divest vested rights acquired under a will."* Says the Supreme Court of Louisiana, — " However repugnant to logic and ^sound policy retrospective laws maybe, retrospective laws in civil matters do not violate the constitution unless they tend to divest vested rights, or to impair the obligation of contracts.f In Pennsylvania, it has been held that no statute should be held to operate retrospectively, unless its language admits of no other construction ; and so it was decided that the act of 2Qth of April, 1850, in regard to the lien of judgments on the estates of decedents, was not retrospective. J ' * Wilderman vs. Mayor and City Council of Baltimore, 8 Maryland, 551. t Municipality No. 1 w. Wheeler, 10 La. Ann. R. 745, 746. And the court cites Marsade, § 62 : " Mais enfln, tant qu'une loi existe, si mauvaise, si peu logique qu'elle puisse dtre sous tel ou tel rapport, le pouvoir judici- aire ne pent pas ne point I'appliquer. Dura fex, sed est fee. En fait, done, le kgislateur pent porter une disposition retroactive; et toute irrationnelle que sera cette disposition, elle n'en devra pas moins s'appliquer.'' X Neffs Appeal, 21 Penn., 243. 408 RETROACTIVE EFFECT OF LAWS. I In MicWgan, this language has been held : " In these United States, it is said that in a private case between individuals, the court will struggle hard against a con- struction which, by a retroactive operation, will affect the rights of parties ; and statutes are generally to be construed to operate in future, unless a retrospective effect be clearly intended;" but the mere fact of a statute being clearly retrospective does not of itself make it unconstitutional,* In Connecticut, an act authorizing a sale by the courts of equity of real estate, and of any rights corporeal or incorporeal existing or growing out of the same, which are held in joint tenancy or coparcenary, when- ever partition cannot be made in any other way, has been held " not to be retroactive within the legal im- port of that term, but to be purely a remedial law acting upon existing rights, and providing a remedy for existing evils;" and it was added, "if this were in fact a retroactive law it would not for such reason be an unconstitutional one."f In Massachusetts, where a statute was passed givjng towns a remedy against paupers for expenses incurred for their support, it was held that, as prior to the act no such suit could be maintained, the act must be con- strued to have a prospective operation only, on the ground that the legislature could not have enter- tained the opinion that a citizen free from debt by the laws of the land, could be made a debtor merely by a legislative act declaring him one.J The subject of the retroactive effect of statutes * Scott vs. Smarts' Exrs., 1 Mich., 295. t Richardson vs. Muryson, 23 Oonn. 94. t Medford ««. Learned, 16 Mass. 216. RETEOACTIVE EFFECT OF LAWS. 4:09 constantly presents itself in connection witli the sub- ject of vested rights and their immunity from legisla- tive interference. We have already* considered the difficulty of drawing a line between those vested rights that are absolutely sacred, and those held to be under the control pf the legislature. The subject is of vast importance in reference to the daily exercise of legis- lative power; but until some clear and settled rules are declared by authority, we can only hope to arrive at an approximation to correct principles by a careful examination of the adjudged cases. . In Ohio, it has been held that a retrospective act passed in March, 1835, to, render valid previous con- veyances by married women, which were then void as not complying with a statute of ,1820, is an unauthor- ized exercise of legislative power, and as such null — on the ground that the act divested married women of their property, without consent, without compensation, and not for crime.f A Pennsylvania act of Assembly, declaring«fche chil- dren of a particular bastard child " able and capable" to inherit and transmit the estate of the deceased mother of the bastard as fully as if the bastard had been born in wedlock, has been construed'not to divest real estate which had previously passed by descent from the mother to her ■ brother, so as to vest it .in the children of the deceased bastard. Such a construction would be in hostility to the rule of the common law, that a bastard cannot inherit: if con- strued retrospectively, the act would divest vested rights, a,nd be in direct hostility to the provision of * Ante, p. 177. t The Lessee of Good vi. Zerohw, 12 Qhio, 394. 410 RETROACTIVE EFFECT OF IaWS. the bill of rights of the State, which declares that no citizen shall he deprived of his property, unless by the law of the land.* Prior to 1848, the courts of Pennsylvania had decided that a testator's mark to his name at the foot of a testamentary paper, but without proof that the name was written by his express direction, was not a" valid signature under their statute of wills of 1833. To overrule this, an act was passed in 1848, directing, that every will theretofore made, or thereafter to be made, to which the testator had made his mark, except such as niight have been finally adjudicated prior to the passage of the act, should be valid. A question arose as t© the applicability of the act to a will exe- cuted in 1840; and the court held that the act of 1848, if retroactive, was an exercise of judicial power in set- tling a question of interpretation, and as such was void ; and moreover, if construed retroactively, it was void on the further ground that it violated the consti- tutional* provision giving to property the protection of the law of the land ; they consequently held that the act was merely prospective in its operation.f The subject of the retroactive effect of statutes with reference to vested fights, has been examined in a very interesting case in Maryland. Suit was brought in 1846 on a single bill executed by the defendant in 1840. The defendant pleaded that the note was usurious and void, under an act of 1'704. The plain- tiff replied a statute passed on the 10th of March, 1846, declaring substantially that in any suit or » * Norman vs. Heist, 5 Watts & Ser. 171. t Greenough V8. Greenough, 11 Penn. 489. See C. J. Gibson's interest- ing opinion, and cases cited. EETRO ACTIVE EFFECT OF LAWS. 411 action thereafter to be brouglit in any court of law or equity upon any contract, the plaintiff should be at liberty to recover the principal and legal interest. It was insisted on behalf of the defendant, that the act of 1846 should not be construed retrospectively ; that if retrospective, it was unconstitutional, or beyond the sphere of legislative power, so far as operating on existing contracts, upon the ground that it divested the vested right of pleading usury as it existed before the act of 1846. But the. act was held valid. The court admitted the rule to be that an act is to "be construed as prospective in its operation in all cases susceptible of doubt ; but held that this could have no application to a case where the legislature had directed, in language too express and plain to be mistaken, that they designed to give the statute a retroactive operation, — ^that in such a case there was no room for interpretation.* The objection as to the unconstitutionality of the law was also overruled, on the ground that it was obvious that no provision of the Constitution of the United States was violated ;f and as to the provision in the Mary- land Bill of Eights, art. 15, declaring "retrospective laws punishing acts committed before the existence of such laws, to be oppressive and unjust," that it related solely to retrospective criminal laws, and was an ex- press recognition of the legislative power to pass retrospective laws in regard to civil cases and con- tracts, as laws healing imperfect deeds or validating defective acknowledgments. The objection that the * See also on this point Goshen ot. Stonnington, 4 Conn. -220. < t Satterlee m. Matthewson, 2 Peters, 413; Watson vs. Mercer, 8 Peters, HO. 412 EETROACTIVE EFFECT OF STATUTES. riglit to plead usury under the act of 1704 was a ■Rested right, and that the act of 1846 was void as tending to divest it, shared a similar fate. The court admitted the sacredness of vested rights, and declared that an act which divested a right under the pretense of regulating the remedy was as objectionable as if aimed at the right itself But they held that when vested rights were spoken of as being guarded against legislative interference, they were those rights to which a party may adhere, and upon which he may insist, without violating any principle of morality. They held that the borrower Had no moral right to repudiate his contract so as to escape the payment of the sum actually received, and that the act in question was no more than an exercise of legislative authority on the subject of remedies, a power which the legislature might exercise in relation to past as well as future contracts.* A New York act of 1860, chap, 172, declares, that " no coi-poration shall hereafter interpose the defence of usury" in any action. It has been said that this is in the nature of a penalty or forfeiture remitted by the legislature ; and held, that the act was applicable to* an equity case where the defence was set up, and the proofs taken and closed, before the act was passed.f The defence of usury is so odious in all highly civil- ized and especially in all commercial communities, that it is very difficult to obtain for it an impartial hearing ; but as long as the prohibition stands on the statute book, it certainly is the duty of the judiciary fairly to carry out the legislative will ; and I cannot * Baugher vs. Nelson, 9 Gill, 299. The case is 'indexed as Grinder vs. Nelson. t Curtis «s. Leavitt, 17 Barb. 811. BETROACTIVE EFFECT OF STATUTES. 413 understand how an act can be considered within the just limits of the legislative power, nor how it can be regarded otherwise than as an invasion of the judi- cial prerogative, which by a sweeping change of the law, not only affects the interests of parties litigant, but absolutely controls the determination of suits at the time of its passage pending for decision in the proper forum. If the legislature has this power, it is very obvious that a valid law might be framed general in its terms, but really intended to affect private objects, and calculated to work the grossest injustice. In conijiection with this subject, the following case in New York is important : Clark and Cornell, com- missioners of highways in a town, by direction of the voters of the town sued a turnpike company; they were unsuccessful, and obliged to pay costs. These costs the town refused to pay. The commissioners then sued the town ; and the court of last resort held that they had no remedy. The legislature then (1851) passed an act directing the question, whether the commissioners should be paid or not, to be sub- mitted at the next meeting of the voters of the town. The voters decided that they would not tax themselves for the purpose. The legislature was then again appealed to; and in 1852 a law was passed, appoint- ing three commissioners to determine the amount of costs, &c., due Clark and Cornell, to make an a^ard thereof; and declaring it the duty of the supervisors of .Chenango county, in which 'the town was situated, to apportion the amount upon the taxable property of the town, and to provide for its collection like other taxes. Suit was brought by the town against the supervisors, to restrain the levy of the tax, on the ground of its being unconstitutional, as 414 RETEOACTIYE EFFECT OF LAWS. infringing the vested rights of the tax payers of the town. But the law was sustained, as a mere exercise of the power of taxation, and on the ground that the act of 1851 was not in the nature of, a contract, nor judi- cial in its character. Perhaps the decision may be Sustained on the grounds on which it is put ; but it is obvious that the result of the matter is that the legis- lature compels payment out of the pockets of the defendants of a claim which the law had already pro- nounced they were not bound to pay. Clark and Cornell were the agents of the town. They present to their principals a claim which is rejected and contested. The courts decide that the principal is not liable. The legislature then steps in, and in effect compels the payment of the claim by the defendants. This may be called taxation, but in truth it is the reversal of a judicial decision.* The power of taxation is a great governmental attribute, with which the courts have very wisely, as we shall hereafter see, shown extreme unwillingness to interfere; but if abused, the abuse should share the fate of all other usurpations. In England, on the subj ect of retrospective statutes, it has been held, that an act in regard to practice — declar- ing that when a new trial was granted on the ground that the verdict was against evidence, the costs of the first suit should abide the e^ei^t, unless the court should othePwise order — was retroactive ; but a clause in the same act, that error might be brought upon a special case unless the parties agreed to the contrary, was held not to be so ; and Maule, J., said, "As a general rule an act is to be construed so as to be prospective only ; for * Town of Guilford vs. Superyisors of Chenango Co., 3 Kernan, 147. THE MORE RECENT STATUTE CONTROLS. 415 if it were otherwise construed, it wopld often defeat the intention of the parties who acted under the old law."* Last statute in point of time controh. — We have alreadyf had occasion to remark, that importance is attached to the time of the expression of the will of the legislature. So, if two statutes repugnant to each other be passed in the same session, the latter only shall have effect.! So again it is said, if the latter part of a statute be repugnant to the former part thereof it shall stand, and so far as it is repugnant be a repeal of the former part ; because it was last agreed to by the makers of the statute.§ And this principle has been declared by the Supreme Court of the State of iSTew York. I So in Kentucky it has been said, " If there be an absolute inconsistency between these stat- utes, the act bf 1825 being posterior in date, and also more comprehensive in its terms, must have superseded the other so far as they conflicted."^ So in Pennsyl- vania it has been said, that in cases of irreconcileable repugnancy the rule is to let the last part determine ihe intentions of the lawgiver.** But it is only in cases of irreconcilable r^ugnancy that thi^ rule applies ; it gives way to the fundamental principle, that the intention of the legislature is to govern. " A subsequent statute," says Parsons, C. J, " generally wUl ^©ntrol the provisions of former stat- * Hughes «s. Lumley, 4 Ellis & Blackb. 358, 359 ; Jenkins vs. Betham, 15 0. B. 169 and 190. t Ante, pp. 60, 63, 81, 129. X Bacon, Abr. Stat. B.' § Bacon, Abr. StatD: 1 Harington m. Trustees of Rochester, 10 Wend. 547. T Naz. Lit. & Benev. Inst. m. Commonwealth, 14 B. Munroe, 266, ** Packer m. Sunbury & Erie E. R. Co., 7 Harris (Penn.) R. 211. 416 MISDESCRIPTION AND SURPLUSAGE. iites, which are repugnant to it according to its strict letter. But there are ezceptions to this rule, depending on the construction of the last, statute agreeably to the intention of the legislature."* " The general rule is conceded to be ," it has been said in Pennsylvania, " that where two statutes contain repugnant provisions, the oiie last signed by the governor is a repeal of one previously signed. But this is so merely because it is presnmed to be so intended by the law-making power. Where the intention is otherwise, and that intention is manifest upon the face of either enact- ment, the plain meaning of the legislative power, thus manifested is the paramount rule of construction. It is no part of the duty of the judiciary to resort to technical subtleties to defeat the obvious purposes of the legislative power in a matter over which that power has a constitutional right to control."f Misdescription and swphisage.—The maxim, Falsa demonsPratio non nocet; applies to statutes as well as in other cases. It was early held that, in an act of Parliament, the misnomer of a corporation where the express i^ention appears shall not avoid the act, any- more than in a will, when the true corporation intended is apparent. J So, where a statute is referred to by general descriptive particulars, some of which are mani- festly false and others true, the former may be rejected as surplusage, provided the remainder is sufficient to show clearly what is meant.§ Thus again, where a statute referred to the vote of a town by a wrong date, * Pease i)S. Whitney, et al. 5 Mass. 880, 382. t The Southwark Bank M. The Commonwealth, 26 Pennsylvania Eeports, pp. 448, 449. X The Chancellor of Oxford's Case, 10 Rep. 57. § The Wateryliet Turnnjke Co. m. M'Kean, 6 Hill, 616. CAUSE AND EFFECT. 417 •where the reference -would have been good ■without any date at all, it was held that the erroneous date might be rejected as 'slirplusage.* Oofmection between cause and effect. — The relation of cause and effect sometimes presents itself in regard to the construction of statutes ; and here we find a class of questions analogous to those growing out of the iubject of remoteness or consequentiality of damages, and dependent on the maxim, proxima coMsa nxm remota spectatur.j; So, where the embargo act of •22d December, 1807, required a bond conditioned to reland certain goods in some port of the United States, "the dangers of the seas only excepted," it was held by the Supreme Court of the United States, where a vessel was driven by stress of weather into one of the West Indies, and there detained by the government of the island, that this was a casualty within the exception; the court saying, "an effect which proceeds inevitably and of absolute necessity from a specified cause, must be ascribed to that cause."J In Pennsylvania it is provided by statute (act of 22d April, 1846), that when money is collected on a recognizance given for the appearance of a person charged with a criminal offense, it shall be applied, after payment of costs and expenses, to satisfy the damages sustained by any person by reason of the misdemeanor. A party being indicted for keeping a gambling-house, and his recognizance being forfeited, a person who lost money at play in the house claimed a part of the moneys collected on the recog- * Shrewsbury lis. Boylston, 1 Pick. 108. t Sedgwick on the Measure of Damages, chap. iii. X The United States vs. Hall, 6 Oranch, 171, 178. 2T 418 , COMPUTATION OF TIME. nizance ; but he was held not to be so entitled, on the ground, among others, that his misfortune was not the natural consequence of the misconduct of the keeper of the gambling-house ; " the direct and imme- diate cause of the loss, was his own inexcusable folly."* Computation of Time. — Where the computation of time, as prescribed in statutory enactments, is to be made;, from an act done, much controversy has taken place as to whether the first day — that on which the act is done, that on or from which the time is to begin to run,. ^s to be included in the reckoning. The earlier En- glish decisions included the day.f But in New York from an early period, it was decided to exclude the day on which the act is done, and the same rule applies to notices ; and such is, I believe, now the English rule.J In New York, it has been said, that " in questions of the computation of time arising under our own rules, our statutes, and upon promissory * Commonwealth m. Robbins, 26 Penn. 165, 167. t The King vs. Adderley, Doug. 463 ; Castle vs. Burditt, 3 T. R. 623 ^ Glassington m. Rawlins, 3 East, 407. In Lester vs. Garland, however,- 15 Ves. 248, the day was excluded, and it was intimated that no general rule existed. X 3 Chit. Practice, 109. Pitt vs. Shew, 4 Barn. & Aid. 208. Ex parte Dean, 2 Cowen, 605. Jackson vs. Van Valkenburgh, 8 Cowen, 260. Coftiml. Bank of Oswego vs. Ives, 2 Hill, 8S6. Homan vs. Liswell, 6 Cowen, 659. Columbia Turnpike Road vs. Haywood, 10 Wend. 422. See Small vs. Edrick, 5 Wend., 187, where a contrary construction was giveff to pecu- liar phraseology. Comml. Bank of Oswego vs. "Ives, 2 Hill, 856. The decisions in the other States do not seem uniform. Sims vs. Hampton, 1 S. & B. 411. Portland Bank vs. Maine Bank, 11 Mass. 204. Presbrey vs.. Williams, 15 «5i(Z. 193. Bigelow us. Willson, 1 Pick. 486. Commonwealth vs. Keniston, 5 Pick. 420. Hampton vs. Erenzeller, 2 Browne's B. 18. Ryman vs. Clark, 4 Blaokf. 329. Jacobs vs. Graham, 1 ihid. 892. Arnold vs. The U. States, 9 Cranch, 104. Pierpont vs. Graham, 4 Wash. C, C. R. 232. Cornell vs. Moulton, 3 Denio, 12. COMPUTATION OF TIME. 419 notes, the day of the date is excluded."* In the , same State, where a statute requires fourteen .days, notice of trial ; fourteen days are required exclusive of the first day of the court.f And in the same State, the day on which the Revised Statutes took effect was - excluded, in computing the time in regard to the statute of limitations.^ In Alabama, it has been held that, in the compu- tation of time from an act done, the day of perform- ance is to be excluded; the court saying that the law refuses to recognize the parts or fractions of a day. So, where a statute provided that the lien acquired by an execution should not be lost if an alias execution should issue without interval of more than ninety days, an original execution was returned on the 14th April, and an alias issued on the 14th July next thereafter, or on the ninety-first day, held that the lien was not lost ; § the court saying that the statute must be cpnstrued as if.it had said that the lien should not be lost if an execution issued to the sheriff without interval of more days ihcm ninety days. But this rule as to disregarding frac- tions of a day, does not apply to statutes which as between different acts, give a preference or priority to the one which is first done.| In the same State it is said to be the practice of the courts in the computation' of {imCj to include one day and ex- clude the other, except where the statute requires * Wilcox vs. Wood, 9 Wend. 348, per Savage, 0. J. t Columbia Turnpike Road vs. Haywood, 10 Wend. 422. t Fairbanks vs. Wood, 17 Wend. 329. § Lang vs. Phillips, 27 Ala.y 811. Judd vs. Fulton, 10 Barb. 117. 1 Lang vs. Phillips, 27 Ala., 311. 420 COMPUTATION OF TIME. specially a given number of entire days to intervene, in which case both are excluded.* When the last day for the performance of a gi^htx act falls on a Sunday, the act must be done on the "preceding day.f It was early settled in England, that in all acts of Parliament where " months " were spoken of without the word " calendar," and nothing added from which a clear inference could be drawn 'that the legislature intended calendar months, they should be understood to inean lunar months, or a month of twenty-eight days.J Lord Kenyon regretted this ; but the rule was early adopted, though with equal reluctance, in New York. " The courts," it was said in one case, " have taken the rule as they found it settled, that where there is nothing in a statute from which they can infer that calendar time was intended, the month must be co&sidered a lunar one." But as the legislature never in fact intended a lunar month, the courts have relied on any circumstances inducing the belief, that calendar time was in fact in their contemplation.§ All doubt has now been removed in New York, by a statutory provision,! which declares, that wherever the word * Owen «». Slatter et at, 26 Alaba. 547. See, in N. T. Fairbanks m. "Woods, 17 Wend. 329 ; Snyder «s. Warren, 2 Cow. 518. t Broome vs. Wellington, 1 Sandf. Sup. Ct. Rep. .664; Ex parte Dodge, 7 Cowen, 147 k Anon. 2 Hill, 376. t Bishop of Peterborough vs. Catesby, Cro. Jac. 167, 168. Barksdale Ds. Morgan, 4 Mod. 185. Sir Wollaston Dixie's Case, 1 Leon. 96. The King «.?. Peckham, Carth. 406. The King vs. Adderley, Doug. 462. Castle vs. Barditt, 3 T. E., 623. Lacon vs. Hooper, 6 T. R. 224, per Lord Kenyon. § Loring vs. Hailing, 15 J. R. 119. Snyder vs. Warren, 2 Cowen, 518. Parsons vs. Chamberlin, 4 Wend. 512. People vs. Mayor, &c. of New York, 10 Wend. 393. In the last three cases the statute was interpreted to mean calendar months. See also Jackson vs. Van Valkenburgh, 8 Cow. 260. 5 1 R. S. 606, § 4. WAIVER. 421 montk is used in a statute, it sliall mean a calendar month. In Massachusetts and Pennsylvania, the rule appears to be, that where the word month is used generally in a statute or contract, it will be considered to mean a calendar month.* A year is the time in which the sun completes his circuit through the twelve signs of the zodiac, viz. 365 days, and about six hours ; but in leap-year, the st|iBte 24 Geo. II. c. 25 enacts that the year shall ^msist of 366 days, the intercalary day being accounted with the day preceding it as one day ; and in New York, the same provision has been adopted.f Waiver. — ^Under this head we have already noticed the general rulej that statutory provisions designed for the benefit of a party may be waived ; but that where the enactment is to secure general objects of policy or morals, no consent will render a non -compli- ance with the statute effectual. . In Connecticut, a law of 1850 provided, that auditors might be appointed in actions of assumpsit, if the cause of action embraced matters of acccmnt. An auditor was appointed by consent, ip an action brought by a declaration embrac- ing a count on a note and the common counts. No other claim was in fact made than on the note, but the parties went to trial before the auditor, without objection ; after a report by the auditor, the defendant opposed its acceptance by the court, on the ground t * Hunt vs. Holden, 2 Mass. 170 ; Avery et dl. m. Pixley, 4 Mass. 460 ; Churchill vs. Merchants' Bank, 19 Pick. 632 ; Brudenell »«. Vaux, 2 Dall. 302 ; Commonwealth vs. Chambre, 4 Dall. 148 ; Moore vs. Houston, 8 S. & R. 144. t 2 R. S. part i. chap. xix. tit. 1, § 3 ; See The King m. Inhabitants of Worminghall, 6 Maule & Selw. 360, a case on a yearly hiring. \ Ante, chap. iv. p. 109. 4:22 SUBJECT MATTER. that tlie case did not come within the act of 1850 ; but the objection was considered bad, and it was said to be like the cases where parties are held by their acts to waive objections to judges, commissioners, to a juror, or the panel of jurors.* In the same State it has been held under a statute declaring a contract made on a usurious consider- ation to be utterly void, that the statute was made for the benefit of the party liable upon the Mitract, and that he might at his option avoid the security or waive the benefit of the law.f So, the provisions of a statute requiring a bond with surety to be given by the party appealing from the judgment of a justice of the peace, is made solely for the benefit of the obligee, who may waive a strict compliance therewith.^ Consent, however, will never give jurisdiction. Thus, where an appeal is taken in a cause not appealable, or to a court not having jurisdiction, it is not in the power of the parties to confer jurisdiction by waiving all objections.§ SuhjecPmatter. — It is a general and very sound rule, applicable to the construction of every statute, that it is to be taken in reference to its subject-matter. In this way often the operation of general words may be limited. So, the stock-jobbing acts are general, and their terms would apply to transactions in foreign * Andrews vs. Wheeton, 23 Conn. 142. See also, King la. Lacey, 8 Conn. R. 499 ; Selleck m. Sugar Hollow T. P. Co. 13 Conn. 453 ; Smith m. The State, 19 Conn. 493 ; Crone vs. Daniels, 20 Conn. 331 ; Quinebaug Bank vs. Leavens, 20 Conn. 87; Groton and Ledyard vs. Hurlburt et al. 22 Conn. 178. t Wales OT. Webb, 5 Conn. R. 164. I Ives m. Pinch,- 22 Conn. 101. § Ives vs. Finch, 22 Conn. 101. WAGERS. 423 •stock; a construction, however, •whicli the courts have rejected, in obedience to the obvious intention of. the< legislature that the provisions of these enactments are to apply only to British stocks* General words hyw qualified by pa/rticula/r words. — It is a rule of right reason that general words may be qualified \)j particular clauses of a statute, but that on the other hand a thing which is given in par- ticular shall not be taken away by ^general words. This in the civil law is expressed by the phrase. In toto jure generi per speciem derogatur^ et illud potis- eimum habitum quod ad speciem direetum mt. In the less classical Latin of the early English law, the same idea is conveyed in the words, generalis clausula non porrigitur ad ea quoe speciaUter smt comprehensa. In conformity to this doctrine it is held that where a general intention is expressed in a statute, and the a,ct also expresses a particular intention, incompatible with the general intention, the particular intention shall be considered as an exception.f Where general words follow particular words, the rule is to construe the former as appliciable to the things or persons particularly mentioned.^ So, a statute treating of persons or things of an inferior rank, cannot by general woi-ds be extended to those of a superior.§ Statutes in regard to wagers. — At common law, wagers are not unlawful, unless immoral or against public policy ; but the tendency of legislation in this * Salkeld m Johnston, 1 Hare, 196 ; Henderson m. Bise, 3 Starkie, 1S8 ; Wells m Porter, 2 Bing. N. C. 722; Elsworth w. Cole, 2 M. & W. 31. t Churchill vs. Crease, 5 Bing. 180 — 492-3. ' t Sandiman vs. Breach, 7 B. & C. 100. § 4 Rep. 4 ; 2 Rep. 46 ; 2 Inst. 478 ; Dwarris, 656. But see, contra, 2 Inst. 136. 424: CORPORATIONS. country, is to make them so without exception. In New York, a statute* declares all wagers, bets, or stakes, on racing, gaming, or any lot, chance, or un- known or contingent event, void, and all contracts for or on account of any money or property, &c. wagered, bet, or staked, void; the act, however, being declared not to apply to insurances on interest, nor to contracts on bottomry or respondentia. Under this statute it has been held, that an agreement in the sale of a horse, — that the animal should on or before a given day trot a certain distance at a certain rate of speed, and in case he failed, then that the vendor should deduct or pay back to the purchaser one half of such sum as the. failure might take from the market value of the horse, — is an agreement in the nature of a stake or wager on a race, and as such void under the statute.f Corporations. — The Eevised Statutes of New York declare that the charter of every corporation that shall hereafter be granted by the legislature shall be sub- ject to alteration, suspension, and repeal in the discre- * 1 R. S. part i. chap. xx. title 8, art. 3. t Hall VI. Bergen, 19 Barb. 122. The policy of different countries varies very much on the subject of wagers. In England, at common law wagers are valid contracts, unless contrary to public policy, or immoral, or in any way tending to the detri- ment of the public ; or, unless they affect the interest, feelings, or character of a third person (see Ohitty on Contracts, in voo. Wagers). But the courts have frequently expressed their disapprobation of these contracts, and in some cases, where trivial or contemptible, have refused to try actions upon them. Gaming debts and securities are void by statute. The French Code declares as a general rule the invalidity of wagers : " La hi rCatxorde aucune action pour une dette du jeu ou pour le paie- ment d'un joon."— Code Civil, Liv. 3, Tit. 12, Chap. Prem. § 1965. But a class of exceptions is created in favor of martial sports, foot and horse races, tennis, &e., subject, however, to the discretionary exercise of the , judicial power, where the demand appears exorbitant. FOREIGN STATUTES. " 425 tion of the legislature.* In construing this provision, it has been said that the legislature could not convert a rplroad company into a banking, insurance, or mining company, for the obvious reason that such an act would create a new company of a new and distinct character ; but that an act authorizing the railroads of the State, with the consent of two thirds in value of the stockholders, to subscribe to a railroad in Canada, was constitution'al, as the subscribing com- panies would remain the same as before as to their character, structure, objects, and business.f But in cases where no such power is reserved by the legislature, the true doctrine is that no radical change or alteration can be made or allowed in the charter of a corporation, by which new and additional objects are to be accomplished, or new responsibilities incurred, so as to bind the individuals composing the company without their assent. J InterjoretaHon and proof of foreign statutes. — When the statutes of other countries, or of other States of this Union, come up for construction, the deci- sions of the courts of the State enacting the law are held to be a conclusive or authentic interpreta- tion ;§ and this very rightly, for it must always be impossible for any tribunal to have the same means of judging of the true intention, scope, and purport of a foreign statute as the courts of the State or country where it was framed, and the institutions of which it was intended to fashion or control. * 1 R. S. 600^ § 8. t White vs. Syracuse and Utica Railroad Co., 14 Barbour, 561. I Hartford and New Haven Railroad Company vs. Croswell, 5 Hill, 384. Middlesex Turnpike Company vs. Locke, 8 Ma?s. R. 268. § Thompson vs. Alger, 12 Met. p. 428. 426 FOREIGN STATUTES. The Supreme Court of the United States has said, that where English statutes, such for instance as the statute of frauds and the statute of limitations, have been- adopted into our legislation, the known and settled construction of those statutes by their courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority. It was said that this rule did not strictly apply to the English statute of monopolies, under which the grants of patents have there issued ; but that the principles and practice which had regulated their grants of patents, as being tacitly referred to in some of the provisions of our patent statute, afforded materials to illustrate it.* Connected with this subject, another and very interesting question has arisen, which is whether the interpretation of foreign laws is a question for the jury, or for the court. In some cases it has been intimated that the interpretation of foreign law is matter of fact, for the jury. " The question in such a case," says the Supreme Court of Ohio, " is not what is the just and true interpretation, but what is the actual interpret- ation of the statute by the foreign tribunal. It is a matter of fact."-}- In a case in Massachusetts, turning on the construction of a statute of the State of Georgia, the statute itself was proved, and the depositions of eminent lawyers in that State, relating to the construction given there to the statute in question, were also read, and the court was requested to decide what was the law of Georgia in regard to the matter in hand ; but the application was * Pennock & Sellers vs. Dialogue, 2 Peters, 1, 18. t Ingraham vs. Hart, 11 Ohio, 256 ; Burchard, J. dissented. FOREIGN STATUiaiS. 427 denied, and it was held to be a question of fact, for the jury to decide, as to what had been the construction given by the courts in the State of Georgia, to the statute before them.* But on the contrary, it has been expressly decided in Pennsylvania and Alabama, that the interpretation of a foreign statute belongs to the court.f As to the proof of foreign laws, it has been said in Massachusetts, that a volume purporting on the face of it to contain the laws of a sister State is admissible as prima facie evidence to prove the statute law of that State : " The connection, intercourse, and constitutional ties which bind together these several States, require that this species of evidence should be sufficient, until contradicted." But it was said at the same time, that the court did not mean to decide that the law of any country merely foreign could be so proved.^ In Michigan, it has been said that the court will pre- sume the law of a sister State to be the same as their own State, unless the contrary is shown.§ It has been held in Pennsylvania, that judicial cognizance will be taken of the law of another State, no proof of it .whatever having been given. || It appears to me very * Holman vi. King, 7 Met. 388. . y t Bock vs. Lauman, 24 Penn. 4'36. In Connecticut it is regulated by a statute ; see Hale w. N. J. Steam Nav. Co. 15 Conn. 539 ; Lockwood «s. Crawford, 18 Conn. 361. Inge m. Murphy, 1.0 Alab. 885. X Raynham ««. Canton, 3 Pidk. 293. § Crane vs. Hardy, 1 Michigan, 56. II Bock w. Lauman, 24 Penn. 436. See, on the subject of proving for- eign law as matter of fact, Bristow w. Sequeville, 5 Exch. 275. A student in a foreign university is incompetent to prove the law of that country. See also Trimbey m. Vignier, 1 Bing. N. 0, 151. In this case, in the Kings Bench, the question being on a point of French law, growing out of the construction' of the Code de Commerce, and the opinions of French 428 REVISION OF STATUTES. proper that the interpretation of a foreign law, as of a domestic, should be confided to the court; and equally dangerous to assume the existence of the law of another jurisdiction, whether of another State or a wholly foreign country, as a fact, without submilvfcing it to the ordinary tests of proof. We may remark, as connected with the question of foreign statutes, in regard to the rule which we have already (p. 99) had occasion to notice, that ignorance of law is no excuse, that the principle does not apply to foreign law. Juris ignorcmtia, est cum jus nost/rv/m ignoramus ; and it has been held that ignorance of the law of a foreign government is ignorance of fact; and the laws of the other States of the Union being in this respect regarded as foreign laws, it has been de- cided in Massachusetts that money paid by mistake, through ignorance of the law of another of the United States, can be recovered back.* Revision of statutes. — It is proper here to notice some principles peculiar to this country, growing out of the frequent revision of our statutory law, and the changes consequent thereupon. In New York it has been said that " it has long been, a cardinal and controlling maxim, that where a law antecedently to a revision of the statutes is settled either b]^ clear expressions in the statutes, or adjudi- cations on them, the mere change of phraseology shall advocates haying been taken by consent, but appearing contradictory, the court examined the Code itself, and decided the case upon its own con- struction of the clause in question. Vander Donokt vs . Thellusson, 8 0. B. R. 817 : Belgian laws proved by a merchant and stock-broker. Inglis et al. ts, Usherwood, 1 East, 615, turned upon a question of Russian law, but the construction or meaning seems to have been admitted. * Haven w. Foster, 9 Pick. 112. REVISION OF STATUTES. 429 not be deemed or construed a change of the law, unless such phraseology evidently purport an iiltention in the legislature to work a change.* So in New Hamp- shire, it has been held that upoh the revision of the statutes the construction will not be changed by such alterations as are merely designed to render the pro- visions more concise.f In the adoption of the Code, it has been said in Alabama that, the legislature must be presumed to have known the judicial construction which had been placed on the former statutes ; and therefore the re-enactment in the Gode of provisions substantially the same as those contained in a former slatute, is a legis- lative adoption of their known judicial construction.;]: In Massachusetts it has also been held in regard to the revision of statutes, to be a well-settled rule that when any statute is revised or one act framed from an- other, some parts being omitted, the parts omitted are not to be revived by construction, but are to be con- sidered as annulled ; to hold otherwise would be to im- pute to the legislature gross carelessness or ignorance, which is altogether inadmissible. So, in that State a Very useful statute passed ia 1*754, concerning donations and bequests to pious, and charitable, &c. was decided not to be in force, on the ground that the legislature * Yate's Case, 4 J. R., 359. Matter of Theriat vs. Hart, 2 Hill, 380. Pannelee vs. "f hompson, 7 Hill, 77. Taylor ««. Delancy, 2 C. C. in Error, 150. Goodell vs. Jacksdh, 20 J. B., 722. Crosfrell vs. Olrane, 7 Barb., 191. Young vs. Dake, 1 Seld., 463. Elwood vs. Klock, 13 Barb., 50. Douglass vs. Howland, 24 Wend., 35. Dominick vs. Michael, 4 Sand. S. C. R. per Duer, J. 874, 409. t Mooers vs. Bunker, 9 Foster, p. 421. I Duramus vs. Harrison &'Whitilian, 26 Ala., 326. 430 CONSTRUCTIOlir OF STATE LAWS IN U. S. COURTS. had in 1 '78 5 legislated on the same subject, and omitted to re-enact the provisions of the statute* Another rule connected with the subject of the revision of statutes, may be appropriately stated here. In this country the State statutes have been frequently revised and altered upon the report of officers appointed for the purpose^ revisors or commissioners ; and in sub- mitting their proposed revision or alteration to the legislature, the legal advisers of the State have stated in the shape of a reports or of notes their reason for the proposed change of phraseology' or provision, and the meaning which they affixed to it ; but it has been held that such reports or notes are not to be taken as an authoritative construction of the revised or amended law, as the revisors might have meant one thing and the legislature another ; and that the meaning of the statute is to be obtained and arrived at in the usual way.f » State staVwbes how construed in the United States courts.' — One great object of the Federal Constitution among others, was by the creation of a national judi- ciary to secure a tribunal free from all local influences to decide on controversies between the States them-* selves, between citizens of different States, and be- tween citizens and foreigners. Besides this, in order to secure the supremacy of the Constitution of the United States, An appeal lies, in cases affecting- the construction of the Federal charter or of acts of Con- gress, from the highest State courts to the Supreme * Ellis e«. Paige et al. 1 Pick. 4:8 ; Bartlett, et al vi. King, Exr., 12 Mass. R. 537 ; Nichols vs. Squire, 6 Pick. 168. t Forrest vs. Forrest, 10 Barb. 46. CONSTRUCTION OF STATE LAWS IN U. S. COURTS. 431 Court of tke United States.* It necessarily results that statutes of the several States, come constantly under revision in the Supreme Court of the United States. The rules of constructiou which are there applied to them, become therefore a matter of the highest interest. .On this subject the general doctrine is, that in construing the statutes of the several States, so far . as those statutes belong to the local law of the States, the Supreme Court of the United States looks ' to the decisions of the highest courts of the State; and where the construction is settled by such tribunal, the Fed- eral tribunal adopts it as its own.f And the same principle has been declared to hold good in regard to State constitutions. J So, in an early case in the Supreme Court of the United States, turning on the Pennsylvania, actsi respecting the i^gistry of deeds, C. J. Marshall said, "Were this act of lYlS now for the first time to be construed, the opinion of this court would certainly be, that the deed was not regu- larly proved. But in construing the statutes of a State on which land-titles depend, infinite mischief would ensue should this court observe a different rule from that which 'has been long established in the State;" * * * " th*e court yields the construc- tion which would be put on the words of the act, to that which the courts of the State have put on it, and * Martin vs. Hunter's Lessee, 1 Whisat. 364 ; Cohens vs. Virginia, 6 Wheat. 413, where the appellate jurisdiction was sustained in an elabo- rate opinion by Marshall, C. J. ' t M'Keen «s. Delancy's Lessee, 5 Or. 22; Polk's Lessee vs. Wendell et al. 9 Cr. 87; Gardner vs. Collins etal. 2 Pet. 58; Shelby vs. Gruy, 11 Wheat. 861; Green vs. Lessee of Neal, 6 Pet. 291 ; Nesmith vs. Sheldon, 8 How. 812. X Webster vs. Cooper, 14 How. 488. i 432, CONSTEUCTIOlir OF STATE LAWS IN U. S. COURTS. on which many titles may probably depend."* " The laws imposing a tax on lands, and regulating its col- lection, in perhaps almost all the States," says Mr. Justice M'Lean speaking for the Supreme Court of the United States, " are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has to some extent influenced the construction of those laws. There can be no class of laws more strictly local in their character, and which more directly concern real property, than these. They not only constitute a rule of property, but their construction by the courts .of the States should be followed by the courts of the United States, with equal, if not greater strictness than the con- struction of any other class of law8."f The rule of aooption of State constl-uction by the Federal judiciary has "been said to grow out of the constitution of the Federal tribunal. The jurisdiction of the Supreme Court, over cases where citizens of another State than the one in which ,the suit arises are concerned, rests upon the ground that the Federal courts, in applying the law, will be more free from Undue influence. But the law to be applied is the local law, and that law is to be administered as it is, not reviewed or altered. And the tribunals of each State are rightly considered best to understand what is * M'Keen vs. Delancy's Lessee, 6 Cranch, 22, 32, 33. It has been said, that the Supreme Court adopts the local law of real property as ascertained by the decisions of the State courts, whether those decisions are upon the construction of the statutes of the State, or form a part of the unwritten law of the State. Jackson «s. Chew, 12 Wheat. 153 ; Also see Shelby vs. Guy, 11 Wheat. 861, as to the adoption of State law generally; and Swift vs. Tyson, 16 Peters, pp. 1 and 18. t Games et al, vs. Stiles, 14 Peters, 322, 328. STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. 433 I the law of the State* This course is pursued, it has been again said, " not on the ground of authority, but of policy .f It would be injurious to the citizens of a State to have two rules of property. Such a course by the courts of the Union would produce unfortu- nate conflicts, and encourage litigation," * But the rule is not without exceptions. It does not apply to decisions on charters granted by the British crown, under which certain rights are claimed by the state on the one hand and by private indi- viduals on the other; and in regard to these, the Supreme Court reserves its absolute independence of judgment. J So, again, it has been said by the Supreme Court of the United States, that the rule of that court recognizing the decisions of the highest courts of the States made in regard to State statutes, as containing an authoritative exposition of their true meaning, does not relate to private- statutes, relating to particular persons, or to statutes giving special jurisdiction to a State court for the alienation of private estates, "for the reason that whatever a State court may do in such a case, its decision is no part of the local law."§ But I may be permitted to doubt whether the same reasons of comity, policy, and practical expediency which recommend the rule as to public statutes, should not make it operate with equal effect on private statutes ; evejcy statute affecting the tenure of real property in a State, whether public or private, is certainly in some sense a part of the local law. * Wood arguendo, in Martin vs. Waddell, 16 Peters, 367, 390 ; Elmen- dorf M. Taylor, 10 Wheaton, 152 ; Bell vs. Morrison, 1 Peters, 3'59 ; Green vs. Neal, 6 Peters, 801. t Woolsey vs. Dodge, 6 M'Lean, 142. * \ Martin vs. Waddell, 16 Peters, 367, 418. § Williamson et al. vs. Berry, 8 How. 495, 548. 28 - 434 STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. So, too, vhere the Supreme Court of tlie United States have first decided upon State laws, the Federal tribunal does not feel bound to surrender their con- victions on account of a contrary decision of a State court.* So, again, when the decisions of a State court are conflicting, the Supreme Court of the United States does not consider itself bound to follow the last case contrary to their own convictions, and especially, they have said, where after a long course of decisions some new light springs up, or an excited public opinion has brought out new doctrines subversive of former safe precedent. In Michigan, the original manuscript of the statute of limitations left out the saving clause " beyond seas ;" but the published law contained the exception, and had been so received and construed by the people and the courts for a long series of years, and a subsequent legislature sanctioned the law as published ; nevertheless, the Supreme Court of Michigan decided that the printed statutes did not form a part of the laws of that State, but that the original roll must be received as the exact record of the legislative will. But the Supreme Court of the United States disregarded the decision of the Michigan tribunal, and decided that the printed statute might control the case.f In a case before the Supreme Court of the United States, it was contended that the decisions of the local tribunals on questions of general commercial law were to be treated as having the binding force of statutory enactments. But the court rejected the proposition. J * Rowan vs. Runnells, 5 Howard, 139. t Pease vs. Peck, 18 Howard, 695. I Swift vs. Tyson, 16 Peters, pp. 1 and 18. As to harmony between the decisions of tribunals of co-ordinate jurisdiction in regard to the con- CONSTRUCTION OF PARTICULAR WORDS. 435 Having, in the previous pages, endeavored to give a general outline of tlie system of our law in regard to the interpretation and application of statutes, I close this branch of my subject by some instances of the power of interpretation "and construction as ^- plied tp particular words. It is not designed to ■So more than to give an idea of the mode in which the judicial authority in this respect is exercised. Banking PrmGijples.—K statutory authority to a corporation to loan and negotiate their moneys and effects upon banking principles, has been said, "if the phrase has any peculiar meaning, to be an authority to deduct the interest at the commencement of loans, or to make loans upon discounts, instead of the ordinary forms of security for an accruing interest.^'* Billiards. — A license by the legislature of billiard tables, cannot be understood to authorize any other species of gaming.f Burgla/ry at common law means the crime of break- ing into a house in the night time, with the intent to steal or commit a felony ; and it has been held in Alaba,ma, that this term, when used in their Code, must receive the same construction.^ Oattle. — Various cases have been decided as to struction of statutes, I may notice that in Merville vi. Townsend, 5 Paige, 80, Mr. Chancellor Walworth said " that where the Supreme Court had given a judicial construction to a provision of a recent statute, that decision, if not clearly wrong, should be followed by the Court of Chancery, so that different rules of construction might not prevail in the courts of law and equity in relation to the same statutory provisions." * Maine Bank vs. Butts; 9 Mass. 49. t Barker vs. The State, 12 Texas, 273. X Ex parte Vincent, 26 Ala. 145, the court say, "When words are used by the legislature in relation to a matter or subject, which, when used ^ in reference to the same subject at the common law, have obtained a fixed and definite meaning, the inference, we think, is irresistible, that they were intended to be used in the common-law sense.'' 436 CONSTRUCTION OF PARTICULAR WORDS. what are considered cattle in England ; and the con- struction varies with' the statutes in which they are used* Corporate Name. — "Where an act required certain suits to be brought in the corporate name of cities or villages, it was held that the phrase meant th$^ name by which the city or village was designated in its charter, and a suit brought in the name of the " President and trustees " of the village, &c. was held imprbperly commenced.f Ckt/rtilage. — This term, which . is peculiar to En- gland, and not very applicable to this country, has been held in Michigan to embrace a barn standing eighty feet from a dwelling house, in a yard or lane with which there was a communication from the house by a pair of bars. J Deny. — Where, in case of an alleged encroachment on the highway, the occupant must, within a limited time after notice, deny the encroachment, his denial must be in writing.§ Descent. — "Descent from the mother" can not be held to mean descent from the maternal grandfather.! From. — The word " descent from a parent," cannot be construed to mean " descent through a parent."^ * 3 _Bing. 581. 2 W. Black. 723. Ex pa/rte HiU, 3 0. & P. 225.. Dwarris, p. 750. t The President & Trustees of the village of Romeo vs. ChapmaD^ 2 Mich. 179. ' X The People vs. Taylor, 2 Michigan, 260. § Lane «s. Gary, 19 Barb. 637. See. to same effect, Gilbert «s. OoL Turnpike Co. 3 John. Cas. 107 ; and Matter of Cooper, 15 John. 638. In M'Ewen m. Montgomery Insurance Co., 5 Hill, 101, it was held that a verbal notice is good, unless the notice be a legal proceeding, and then it must be in writing. \ Case «s. Wilbridge, 4 Indiana, 51. T Gardner m. Collins, 2 Peters, 58. CONSTRUCTION OF PARTICULAR WORBS. 437 High Seas. — This word, as used in the Crimes Act of the United States (1825, ch. 2T6, § 22), is used in contradistinction to arms of the sea, and bays, creeks, &,c. within the niVrow headlands of the coast ; and comprehends only the open ocean which washes the seacoast, or is not included within the body of any oounty in any particular State.* It has been held that by the same phrase, under the act of 30th April, 1790, is meant any waters on the seacoast which are without the boundaries of low-water mark.f Improvidence. — As to what improvidence is, for which a person will be held incompetent to be an administrator, see Coope vs. Lowerre, 1 Barb. Ch. K. 45. Justifiable cause. — Where an act declares it to be a <5rime for, a master to force a seaman on shore in a foreign port without justifiable cause, these words do not mean such a cause as in the mere maritime law might authorize a discharge, but such a cause as the known policy of the American laws on the subject contemplates as a case of moral necessity for the safety of the ship and crew, and the dug performance of the voyage.^ Maliciously. — ^When an act declares it to be a ■crime to force a seaman on shore '■'• maUciousVy and without justifiable cause,"- the word maliciously is not limited to acts done from hatred, revenge, or passion, but it includes all acts wantonly done, or willfully done, that are against what any man of reasonable knowledge and ability must know to Jbe his duty.§" * U.^S. «j. Grush, 5 Mason, 290.* U. S. xis. Robinson, 4 Mason, 307. t U.*S. m. Ross, 1 GaU. 624. % Per Story, J., U. S. m. Coffin, 1 Sumner, 394. § Per Story, J., IT. S. w. Coffin, 1 Sumner, 394. U. S. «!. Ruggles, 5 Mason, 192. Phillips' Case, 1 Moody's Crown Cases, 264, 2V3. 438 CONSTEUCTION OF PARTICULAR WORDS. May and shall. Shall and may. Shall or may. — These words have been a fertile source of difficulty. In an early case on the construction of an English statute, empowering churchwardens and overseers to make a rate to reimburse constables, it was insisted that the statute only put the act in their power by the word "wjoy/' and did not require the doing it as a duty. " Sed non allocatur • for where a statute directs the doing of a thing for the sake of justice, or the public good, the word may is the same as the word shall: thus, the 23 Hen. VI. says the sheriff may take bail ; this is construed shall, for he is compellable to do so."* So, under the acts giving the chancellor power and authority to grant a commission of bank- ruptcy, it was held not to be discretionary but dejure.f This subject has been recently much considered in England on the true construction of the act called^he County Courts Extension Act, which declares that in certain cases " a judge at chambers may, by rule or order, direct that the plaintiff shall recover his costs." The word m^y was here held not to be discretionary, but to mean ^hall / and the court said that " when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application; that the word may is not used to give a discretion, but to confer a power upon the court and judges, — and the exercise of such power depends not upon the dis- * Rex et Regina vs. Barlow, 2 Salk. 609. t Alderman Backwell's Case, 1 Vern. 152; 1 Cas. in Eq. Abr., 52 j 2 Ch. Oases, 143-190. Stamper vs. Miller, 8 Atk. 211. CONSTRUCTION OF PARTICULAR WO»DS. 4:39 cretion of the court or the judge, but upork the proof of the particular case out of which such power arises."* The Supreme Court of the State of New York, has . said that where a statute declares that a public officer or public body " may " have power to do an act which concerns the public interests or the rights of third persons, may means shall^ and the execution of the power may be insisted on as duty ; and so it was decided in regard to a power conferred on the corporation of the city of New York, to repair sewers, &c.f Thus the rule that " may " is to be interpreted as '■'■ shall" or '■'•must'''' is not by any means uniform; its application depends on what appears to be the true intent of the statute. So, in a case upon a bank charter, where it was said " that the capital stock of said corpor ration moAj consist of 500,000 dollars ," the Supreme Court of the United States said, " Without question such a construction (viz. shall for way), is proper in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power." But no general rule can be laid down upon this subject, further than, that exposition ought to be adopted, in this as in other cases, which . carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning * MacDougall m. Paterson, 11 C. B. 755. This decision of the pommon Pleas is at variance with the rulings i of the Court of Exchequer on the same act in ^ones «s. Harrison, 6 Exch. 328, 2 L. M. & P. 257, and Latham «s. Spedding, 20 Law Journal, N. S., Q. B. 802, where the court held the grammatical rule to govern, and that the use of the word moAi left the whole matter discretionary with the judges. See also on this subject The King m. The Mayor of Hastings, 1 Dowl. k Eyl. 68. t The Mayor, &c., of N. York m. Furze, 3 Hill, 612. 440 CONSTRUCTION OF PARTICULAR WORDS. of ihe language must be presumed to be intended, unless it would manifestly defeat the object of th^ provisions. Now, we cannot say that there is any . leading object in this charter .which will be defeated by construing the word " may" in its common sense."* Where the words of a statute were " It shall and may be lawful for the president, &c., to remove a toll- gate," the words were held not to be imperative, but that the renfoval was left to the discretion of the com- pany, on the ground 4h at may in statutes means sTudl only in cases only where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power be exercised.f So too, where a statute was in these words, "If any person die, &c., his heirs 'shall or ma/y'' recover in one action," — ^it was held that they were not bound to unite in one proceeding, but that they might bring several suits.J Navigate. — The words " navigating a river," should be construed in reference to the understanding of per- sons engaged in the business of navigation.§ Notice. — ^Where a statute requires service of a no- tice on an individual, it means personal service, unless some other mode of service is specified. | * Minor m. Meeh's. Bk. of Alex'a, 1 Peters, 46, 64. In thfe King vs. the Bailiff's, &o., of Eyre, the words " shall and may ' ' were held to be permissive and not mandatory. Smith on Statutes, p. 726 ; 2 D. & R.; 172. t The Newburgh Turnpike Co. w. Miller, 5 John. Ch. R. 112. J Malcolm vs. Rogers, 6 Cow. 188. See Attorney General m. Lock, S Atk. 164, where the words "shall and may,^' were held to be obligatory. § The People vs. Hulse, 8 Hill, 309. II Ruthbun vs. Acker, 18 Barb. 893. JUDICIAL LIABILITY. ' 441 Sted. — The. word steal, in a statute implies a simple larceny* I may here notice a few miscellaneous cases of gen- eral interest. In Alabama it has been said that where a statute affects a community, and requires as a con- dition to its validity that something should be donie before it goes into operation, in such a case the act has no force or effect until the thlhg required to be done is performed. But where the statute affects one or more designated persons, it matters not whether they are natural or artificial, those interested in the object of the act, may always dispense with a prelim- inary step, and may claim the benefit of its provisions without requiring the performance of a condition which can affect themselves alonfe.f We have already had occasion to notice the ancient rule of the English system, which holds a judge ex- empt from all responsibility, civil or criminal, for any act done or omitted to be done by him in his judicial capacity. This rule, however, has been infringed upon in some of the States by statute. So in Alabama, the county court judges are required to give official bonds, on which actions at law will lie " for any in- jury, waste, or damage sustained in any estate in con- sequence of any neglect or omission of taking good and sufficient security from guardians, executors, or administrators ;" but under this statute no suit can be maintained on the bond for the faUure of the judge to require a guardian to renew his bond, or to give fur- * Alexander ««. The State, 12 Texas, 540. See Dwarris 670, 693, for the construction of many particular words in (the English statutes. t Savage et al. va. Walshe et al. 26 Ala. 619. 442 BANKING SYSTEM OF NEW YORK. ■felier security on account of the insolvency or removal of the original sureties.* The Supreme Court of Massachusetts have said, " That the language of a statute is not to be enlarged or limited by construction, unless its object and plain meaning require it." And a statute declaring that in case a collector of customs should die or resign^ the collector so resigning, or the representative of the col- lector so dead, should divide the fees with the suc- cessor in office, was held not to apply to a collector removed from office.f Where a party was sentenced on the 6th of Octo- ber, 1825, to solitary confinement for ten days,, and hard labor for two years, and committed on the same day, it was held that the commitment was to be reck- oned as part of the term ; for, as the liberty of the sub- ject is concerned, the statute ought to receive a con- struction favorable to the prisoner, J * Hamilton w. Williams, 26 Ala., 527. t Doane m. Phillips, Currier ®s. Phillips, 12 Pick. 223. X CommoBwealth m. Keniston, 6 Pick. 420. See the People us. Hennessey, 15 Wend., 147, for a case upon a statute against embezzlement by servants. The BanMng System of New Yorlc.—l have thought it desirable to compress into this note the principal decisions interpreting and applying the statutes of the State of New York, on this important subject. Prior to the year 1838, an act commonly called the Restraining Act, 1 R. S., 589, part 1st, ch. xx., tit. 20, prohibited in New Yoi;k under heavy pen- alties almost every branch of banking, such as receiving deposits, mak- ing discounts, issuing notes for circulation, &c., to all persons, associations, institutions, or companies, not specially authorized by law. In consequence, it became the practice to grant special charters conferring the privilege of banking. And to regulate this corporate banking so carried on under' BANKING SYSTEM OF NEW YOEK. 44:3 special charters, a system of elaborate checks, restraints, and penaltie^ was imposed; see R. S., 589, part i. oh. viii. tit. 2, " Of Monied Corpor- ations. Art. 1 being entitled. Regulations to prevent the insolvency of monied corporations, and to secure the rights of their stockholders and creditors ; and Art. 2, Regulations concerning the election of directors of monied corporations. • The granting of these charters in time became tainted with favoritism and abuse; and the State Convention of 1821 inserted in the Constitution then framed a provision requiring the assent of two thirds of the members elected to each branch of the legislature, to every bill creating, altering, &c., any body politic or corporate. Cons, of 1821, Art. 7, Sec. IX. This, however, was not found sufficient to reach the root of the eviL In February, 1837, the Restraining Act was in part repealed ; and on the 18th of April, 1838, the whole system was remodeled, and the business- thrown open to general competition, by the passage of an act entitled " An Act to authorize the business of banking," permitting all persons on certain conditions to form associations for the purpose of carrying on the busi- ness. It has been a subject of great interest to know how far the provi- sions of the old system attach to the new ; see Tracy vs. Talmadge, 18 Barb., 456, where a history of the changes are given, per Roosevelt, J. The first question that arose was, whether the associations formed under the act were corporations. In Thomas vs. Dakin, 22 Wend., 9, the Supreme Court held, that they possessed all the essential features of corporations, and that they were corporations; that it was competent, however, for the legislature to create corporations or authorize their creation by a general law; that the act of the 18th of April, 1838, was valid and constitu- tional, on the assumption that it received the assent of two thirds of the members elected to each branch of the legislature, that being the majority requisite to the valid creation of a corporation ; and they also held that it would be presumed to be thus passed, unless the fact was denied by plea j and they refused to pass on the question upon demurrer. Nelson, C. J., dissented, on the ground that the legislature could not pass a bill of this kind as a majority bill. In Warner vs. Beers, 23 Wend., 103 (April, 1840), the Court of Errors held that the associations organized under the general b'anking law, and in conformity with its provisions, were not bodies politic and corporate within the spirit and meaning of the consUUiPion, and that the act of the 18th of April, 1838, to authorize the business of banking, was constitutionally passed, although it might not have received the assent of two thirds of the members elected to each branch of the legislature. It was admitted that the associations formed under the free banking law had cor- porate powers ; and whether they were corporations, mere partnerships, or joint-stock companies, and whether, if corporations, a law permitting cor- porations to be formed ad Ubituni came within the spirit of a constitutional restriction on corporations with grants of exclusive privileges, were the chief points discussed in the Court of Errors. From the nature of that tribu- M4 BAI^TKING SYSTEM OF NEW YORK. nal, however, it is impossible to leam the precise views of the majority of the court on the subject. The strongest argument was probably the iwgiir mentum ad inconvenienti growing out of the capital already invested in the free banks. See the result of the decision stated in GiUet vs. Moody, S Comsi, 485. • In Purdy vs. The People, 4 Hill, 384, the case was whether a law alter- ing the charter of the city of New York was constitutionally passed, it not having received a vote of two thirds of the members of both houses. The court decided that the law was void ; and language was used which has been often relied on as going to show that all corporations being within the constitutional prohibition, it necessarily followed that the banking associa- tions were not corporations ; but the only point really decided was, that municipal corporations came within the constitutional restrictions upon the creation of corporations. See The People vs. Purdy commented on in The Supervisors of Niagara vs. The People, 7 Hill, 510. In The Supervisors of Niagara w. The People, 7 Hill, 504, it was, however, finally decided that the associations under the act of 1838 were " monied or stock corporations" within the meaning of statutes passed long anterior to the act of 1888, subjecting such corporations to taxation on their capital. Senator Porter, in delivering the prevailing opinion of the court, said it was obvious that Warner vs. Beers, and Purdy vs. The People, decided only that the banking associations were not corporations toithin the spirit and, mean- ing of the State constitution, and that municipal corporations were embraced in the State constitution ; for the purposes of the principal case, he was of opinion that the banking associations were corporations within the tax laws. For that purpose, however, he went into an elaborate investigation of the principal points of difference between corporations and partnerships, and in- sisted that the free banks were evidently endowed with a corporate^haracter. The decision of this involved question may be stated to be, that the free banking associations are corporations to all intents and purposes; but that the intent of the State Constitution being to impose restraints on special grants of privilege, and these associations being, on the contrary, a modified form of free banking, they did not come within the spirit of the constitution as if the constitutional clause had stood, " Corporations shall not be created unless, &c., provided the charters contain any exclusive grants of privilege." See Gillet vs. Moody, 3 Com., 485, for C. J. Bronson's statement of the result of the controversy. The question, however, still remains, assuming these institutions to be corporations, how far they are subject to the detajls of the old system devised to regulate chartered banks. In The matter of the Bank of Dansville 6 Hill, 370, it was endeavored to apply to the free banks the provisions of the Revised Statutes (I. 598) which gave the Supreme Court power, by sum- mary proceeding, to review the elections of the specially-chartered insti- tutions. It was insisted that the free bank in question was a corporation ; but the summary jurisdiction was denied on the ground, among others, that " the only monied corporations in existence at the time those powers BANKING SYSTEM OF NEW YORK. 445 were conferred, were such as had an organization prescribed by law." A board of directors or trustees was provided by the old charters, elected at stated periods, and for a stated time, and in a specified manner ; whereas the general banking law provided in terms for no other ofBcers than a ' treasurer and cashier ; and it was said that it could not be supposed that the legislature intended the court should have a summary jurisdiction over the contracts upon which the banking associations were organized under the free banking law. In Gillet vs. Campbell, 1 Den., 320, it was held that an assignment by the president and cashier of part of the effects of a free bank exceeding $1,000 in value, did not come within the 8th section of the statute to pre- vent the insolvency of moneyed corporations, and that the assignment was valid although not authorized by a previous resolution of the board of direct- ors. But the decision has been questioned by the same learned judge who delivered it. See Gillet vs. Moody, 3 Coms., 486. Gillet vs. Moody, 3 Opmst., 479, was a bill filed by a receiver of a bank- ing association against a stockholder and director to set aside a transfer of certain state bonds made in exchange of his stock, and which came within tit. ii. art. 1, § 1) declaring it unlawful for the directors of any monied tjie terms of the provisions- of the Revised Statutes (part i. ch. xviii. corporation to divide, withdraw, or in any manner pay to the stockholders or any of them any part of the capital stock, &c., or to reduce the capital stock, withoi/t the consent of the legislature, and ; it.was held by the Court of Appeals that the bainking associations were not corporations in any qualified sense, as within the intent and meaning of some particular statute, buit cor- porations to all intents and purposes ; and that the transaction was illegal and void, although a doubt was intimated whether the provisions of the 10th section applied to the directors personally. It may be noticed that in this case it was also held that stopping payment by a bank is prima /ode evi- dence of insolvency; and also that the title of the Revised Statutes in regard to moneyed corporations was a beneficial statute, not to be defeated by a narrow construction. Talmadge vs. Pell, 3 Seld., 328, was a bill filed to set aside an operation in stock, on the ground that traffic in stock did not come within banking power. The transaction was held illegal on that ground, and it was further held that the tree banking associations were moneyed corporations, and as such liable to all general laws relating to that class of corporations, except in so far as those laws or some of their particular provisions have been modi- fled or superseded by, or are inconsistent with, the free banking act of 1838. In Tracy vs. Talmadge, 18 Barbour, 456, Mr. Justice Roosevelt, who was in the legislature in 1838, and who is very familiar with the whole - matter, said, speaking of this subject, "The only question is. Did the legislature in forming these associations, or rather in authorizing their self-formation, intend that certain penal provisions of law previously enacted to govern the action of chartered banks, undisputed corporations, 446 BANKING SYSTEM OF NEW YORK. should apply to these new forms of limited partnership ; and is that inten- tion, if entertained by the law-making power, expressed in a manner so clear as to require no implication or interpretation to discover it? — the rule being inflexible, and as just as it is inflexible, that penal enactments when not perfectly clear admit of no extension by judicial interference." I haye no room for a discussion of the question ; but considering the differences between the organization of the old safety-fund banks, as they were called, and the free banks, it must be admitted that the precise extent to which the provisions of the revised statutes are to be applied to the new institutions, and especially to their officers, is still unsettled. Since writing the above note, and while this sheet is passing through the press, I have received a work specially devoted to " The Banking System of New York," for which I am indebted. to the kindness of the learned author, John Oleaveland, Esq. The volume contains a vast quantity of in- formation, both of a legal and historical character, which is nowhere else to be found collected, and must undoubtedly prove of great value to all per- sons, whether in or out of this State, who occupy themselves in any way with matters relating to this most important branch of finance. Mr. Cleave- land's long familiarity with this particular subject, his devotion to his pro- fession, and his reputation as an accurate jurist, are sufficient guarantees in regard to the execution of the work. CHAPTER IX. OP THE INTERPRETATION AND APPLICATION OP TREATIES, OP PATENTS OR GRANTS OP LAND, AND OP MUNICIPAL ORDINANCES. Treaties — Part of the Supreme Law of the Union — How far they affect State Legislation — How far they may have a retrospective effect — Patents or Grants of Land — Resumptions of, in early times — Rules of construction applicable to Municipal Ordinances — Centralization and Local Sovereignty — Instance of the former in Rome and France. Development and appli- cation of the latter in America. Towns and Cities. Delegation of Legis- lative Sovereignty. Mode of the exercise of the delegated authority. Cases — General authority of the Courts — Contracts in violation of Ordin- ances void — Passage of Ordinances. In treating of the interpretation and application of written law, we have thus far considered the exercise of legislative power in regard to the enactment of statutes, in cases in which that power is unre- strained by any paramount or fundamental law. Before passing to the subject of constitutional limita- tions upon legislative action, we have to examine some topics which are so intimately connected with our general subject, that they cannot with propriety be omitted. Treaties, Patents or Grants of Land, and Municipal Ordinances, form a part of our written law, and are all in some respects^overned by considera- tions and rules of the same kind as those wfiich apply to statutes'. 448 TREATIES. Treaties. — The Constitution of the United States* declares that all treaties made or to be made under the authoritj of the United States, shall 'form a part of " the supreme law of the land ;" and the con- struction o^ these instruments thus necessarily enters into the scope of this work. The subject has been so fully discussed by writers on international law,^ that any elaborate examination of it here would be out of place. Some brief observations must, howe'rer, be made. The effect produced by the grant of the treaty- making power to the Federal Government and by the recognition of treaties as a part of the supreme law, is very important in regard to questions affecting State sovereignty, and vested rights of property. Thus, it has even been intimated that the stipulations in the treaty of Peace between the United States and En- gland, of 1^83, were, in regard to the confiscation laws, paramount to the constitution of Pennsylvania.f It has been insisted that the Federal Government had no power to make a treaty that could operate to annul a legislative ^ct of any of the States, or to destroy vested rights ; but the contrary has been expressly decided. So, it has been held that the treaty of peace of 1783 with England repealed an act of the legisla- ture of Virginia, of ITTT, concernifig sequestrations and forfeitures, and that a suit might be brought for the recovery of a debt, though it was barred by the State law. J So. again in New York, a State statute incon- sistent with a treaty has been held to be repealed by it.§ * Art, 6, I 2. *" t Mssee of Henry Gordon vs. Kerr, 1 Wash. C. 0. R. 823. X Ware w. Hylton, 8 Ball. 286. § Denn ex dem. Fisher ds. Harnden, 1 Paine C. C. R!, 54. TREATIES. 449 It Has even been decided tliat a treaty may operate retrospectively, so as to destroy rights not only vested, but fixed by judicial action. In 1800, an American ship captured a Frencli schooner, and a decree of condem- nation was pronounced by the Circuit Court on the 23d of September, 1800. Pending a writ of error, on the 21st of December 1801, a convention was ratified with France, by which it was agreed that all property captured should be mutually restored. The Supreme Court held that they were as much bound by a treaty as by an act of Congress, and reversed the judgment on this ground alone ; and Marshall, 0. J. said. The Constitution of the United States declares a treaty to be the supreme law of the land. Of consequence, its obligation on the courts of the United States must be admitted. * * It is in the general true that the province of an appellate court is only to inquire whether a judg- ment when rendered was erroneous or not. But if subsequent to the judgment, and before the decision of the appellate court, a law inter- venes and positively changes the rule which governs, the law musit be ■obeyed or its obligation denied. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction, which will, by a retrospective operation, affect the rights of parties ; but in great national concerns where individual rights acquired by war are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import ; and^'if the nation has given up the vested rights of its citizens, it is not for the court but for the government to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be afBrmed but in violation of law, the judgment must be set aside.* On the other hand, in regard to the effect of the war of 1812, with England, on the treaty of 1*794, with that country, it has been determined by the * U. S. vs. Schooner Peggy, 1 Cranch, 109. 29 4^50 TREATIES. Supreme Court of the United States, without deciding the general point whether treaties in all cases become extinguished ipso facto by war, that the termination of a treaty even if effected by war," cannot divest rights of property already vested under it. " If real estate," said the Court, " be purchased or secured un- der a treaty, it would be most mischievous to admit that *he extinguishment of the treaty extinguished the right to such estate. In truth, it no more affects such rights, than the repeal of a municipal law affects rights acquired under it. If, for example, a statute of descents be repealed, it has never been supposed that rights of property already vested during its existence were gone by such repeal. Such a construction would overturn the best-established doctrines of law, and sap the very foundation on which property rests."* A treaty is in many cases merely a contract, and not a legislative act ; in cases of this kind it addresses itself to the political, not to the, judicial department ;. and the legislature must execute the contract before it can become a rule for the court.f But there are many other cases where the treaty is to be regarded not as a contract but as a rule ; and in these cases it has the effect of an act of the legislature. J v It is important to notice the rule that in the construction of this class of documents the judiciary, in one respect, do not occupy the same position nor hold the same language that they do in regard to other matters of written law. "Whenever the nation, by * Society, &o. w. New Haven, 8 Wheat., 494. t Poster & Elam m. Neilson, 2 Peters, 314 ; See United States e«. Peroheman, 7 Peters, 61. I United States «s. Arredondo, 6 Peters, TvSS. PATENTS OF LAND. 451 its properly constituted agents has declared its inter- pretation of a treaty, that interpretation becomes binding on the courts. The Supreme Court of the United States has said, " However individual judges might construe a treaty, it is the duty of the court to conform itself to the will of the legislature, if that will has been clearly expressed ; the courts cannot pro- nounce the course of their own nation erroneous."* Grants or Patents of Lam,d. — The doctrine of the English law is, that the king was the original owner of all the land in the kingdom, and that the crown is the only source of title. ' We declare and apply the same principle 'in regard to our republican govern- ment ; and it is our fundamental rule that all individ- ual title to land within the United States must derive either from the grants of our own local state or territo- rial governments, or from that of the United States, or from royal governments established here prior to the Revolution, or from the English Crown.f Grants or 'patents of land, therefore, emanating as they do directly from the sovereign power, though, like charters of incorporation, they are in some respects mere priva,te instruments, — in other respects they so largely affect public interests as to "approach the dignity of statutes, and cannot with propriety be altogether omitted in a work like the.present. * Foster et al vs. Neilson, 2 Peters, 253, 307, a case upon the construc- tion of the treaty of San Ildefonso of 1st Oct., 1800: Many cases have been decided, both in the Supreme Court of the Uni- ted States and in the courts of the several States, upon the construction of particular treaty stipulations ; but they do not fall strictly, within the prov- ince of this work, and a notice of them would swell this volume far beyond its intended limits. , t See 2 Black Com., 51-59, 86, and 105 ; -See also Kent Com., part vi., ch. li., vol. iii., p. 878, > 452 PATENTS OF LAND. The tenure by grant or patent from the crown in early times, partook of the precarious character which then attached to all political power. A pretext or a reason being found in the allegation that the liberality of the government was abused or misapplied, these grants were- frequently resumed, sometimes by the executive, sometimes by the legislative branch. There are cases of the same kind in the colonial periods of this country ; and their history in both instances bears strong traces of that want of a proper understanding of the true limits of the lawmaking power, and of those loose notions of the sacredness of vested rights, from the influence of which we are not yet altogether emancipated.* * See A Biseowrse upon Ch'cmts and Eeswmptions; showing how our ancestors home proceeded with such ministers as have procured to themselves grants of the crown revenue; and that the forfeited estates ought to he applied towards the payment of the -public debts. By the author of the Essay on Ways and Means: London, 1700. It is a ^151017 of various resumptions of crown grants, cited as authorities for the resumption, then proposed, of the Irish grants. This, which is one of the most recent instances of the vicious exercise of legislative power in England in^ disregard of private right on a large scale, deserves more particular notice. The estates of the adherents of James '11., in Ireland, were, upon the triumph of William III., forfeited to the crown, and distributed by him among his favorites, male and female, in the shape of grants. A strong opposition to the government existed in Parliament ; they laid hold on this abuse, as they considered it, of the royal power ; a bill was introduced into the Commons to resume the grants, tacked to a bill of supply, in that way forced through the Lords, and, notwithstanding the great reluctance and indignation of the king, became a law. Smollett's Hume, ch, vi., § 25, 26 ; Lord Campbell's Chan., vol. iv., pp. 146, '7. In order to do justice to pur- chasers and creditors, or rather to mitigate the injustice of the act, trustees were appointed to hear and determine all claims; and they were also empowered to sell the lands to the best purchaser, and the proceeds were appropriated to the army arrears. The act is the 11 and 12 William III., c. 2, and is entitled, an Act for granting an aid to his majesty by sale of the forfeited and other estates and interests in Ireland, and by a land tax in PATENTS OF LAND. 453 I have said that the governments of the Union and of the States have succeeded to the right of the British sovereign in the public lands. That right was fre- quently exercised during the colonial power, and England for the several purposes therein mentioned of two shillings in the pound. Speaking of this transaction, Mr. Hallam says " that as thfe grants had been made in the- exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for resumption of grants were obsolete and from bad times. * * Acts of this kind shake the general stability of possession, and destroy that confidence in which the practical success of freedom consists, that the absolute power of the legislature, which in strictness is as arbitrary in England as in Persia, will be exej'cised in conformity with justice and lenity. * * There can be no doubt that the mode adopted by the Commons of tacking, as it was called, the provisions for the purpose to a money-bill, so as to render it impossible for the Lords even to modify them without depriving the king of his supply, tended to subvert the constitution and annihilate the rights of a co-equal House of Parliament. * * If the Commons have desisted from encroachments of this kind, it must be attributed to that which has been the great preservative of the equilibrium in our government, the public voice of a reflecting people averse to manifest innovation, and soon offended by the intemperance of factions." — Comt. Hist. vol. iii., ch. 15, § 192, '3. A striking case of the same disregard of private rights occurs about the same time in the history of the colony of New York. An act of the Colonial Assembly of New York, entitled an act " for the vacating, breaking, and anmJling several grants of land made by Colonel Fletcher, "the late governor of this province under his majesty," passed the 12th of May, 1699, recites in the preamble that, " their excellencies, the lords justices of England have, by their instructions unto his excellency the governor, bearing date the 10th day of November, 1698, directed his said , excellency to use all legal, measures for the breaking of extravagant grants of lands in this province." It then goes on to recite eight grants to God- frey Dellius, DeUius and others. Nicholas Bayard, John Evans, The Church- wardens, &c., of Trinity Church, and Caleb Heathcote ; declares them all extravagant within the meaning of the lord justices' instructions ; breaks, vacates, and annuls them, and directs the records to be obliterated, and declares the crown to be re-seized and possessed of the premises. What- ever may be thought of the right t^o .annul these grants ; as to their extrava- gance a notion may be formed from the first to Godfrey Dellius, which contained about seventy miles on the Hudson river, by twelve broad, at the reserved rent of one racoon-skin per annum ! Van Schaick's Laws, vol. 454 PATENTS OF LAND. many titles grow out of royal grants or patents. In regard to these, it has been said that in England nothing passes as against the' crown by implication, and that royal grants are always to be strictly con- strued.* But we have already had occasion to notice that on this subject the cases are somewhat conflicting. In regard to this rule of strict construction, so far as it exists, the Supreme Court of the United States has said that the decisions and authorities on this point apply properly to a grant of some prerogative right to an individual to be held by him as a purchase, and which is intended to become private property in his hand. i., pp. 31 and 61. This act was repealed on the 27th of November, 1702, andihe repealing act was itself repealed, or rather disapt)roved by the queen on the 26th of June, 1708. The act of 1699 also contained a clause that it should not be in the power of the provincial governors to grant or demise certain lands for any longer period than for their own time in the government, and in regard to this, in Bogardus vs. Trinity Church, 4 Sandf. Oh. E., 737, it was contended that the effect of the repeal or disapproval of the repealing act was to undo all that had been done while the repealing law continued in force ; but it was held not to be so. "Such a rule of construction," said Mr. V. 0. Sandford, "applied to private rights, would be deemed most tyrannical, arbitrary, and unjust. For instance, we have an act of Congress requiring a residence of five years to entitle an aUen to naturaUzation. Suppose that Congress at its late session had repealed this law, and enabled aliens at once to become citizens, and an alien now arriving here should take the necessary oaths, become a citi- ■ zen and purchase lands, and at the next session of Congress the act of the late session should be repealed, — would not the doctrine that thereby all that was done under the statute while it existed was avoided, be deemed monstrous and absurd ? The principle is the same in respect of the repeal act of 1702. Rights acquired under it prior to the Queen's dis- approval were as valid and effectual as if the act of 1699 had never been enacted." I ought not to close this long note, without saying that my attention has been drawn "to the subject of it by the-kindness of my very learned friend, M. S. Bidwell, Esq. * Banne Case, Davies Rep., 157; Jura Coronse, 117; 7 Conn. R. 200. See also Charles River Bridge vs. Warren Bridge, 11 Peters, 420. PATENTS OF LAND. 455 For instance, the grant to an individual of an exclu- sive fishery in any portion of it, is so much taken from the cofnmon fund intrusted to his care for the common benefit. In such cases, whatever does not pass by the grant still remains in the crown for the benefit and advantage of the whole community. Grants of that description, are therefore construed strictly."* There are in the State of New York, many grants from colonial governors, which have been upheld to pass the land under water if within the grant, on the aground that the king of England was originally the proprietor of the soil under navigable waters, that his title extended to the province of New York, that he had power to grant such title to a subject, and that the power was delegated to the colonial governor, as the immediate representative of his sovereign.f And in cases of this kind the conveyance of land by the sovereign authority invests the grantees with the reqilisite power to take and hold them.J The subject of grants or patents of land is still one of great importance in this country. Vast districts of land still belong, in this country, in fee simple to the government of the United States. Other tracts belong to the separate States. The legislative bodies * Martin et al. vs. Waddell, 16 Peters, 367, 411. But with great deference for that high tribunal, it is to be doubted whether this be the origin of the rule. In the times when it originated, there was but little regard for the interest of the community, little respect paid to private rights where they came in conflict with the government, and the profoundest deference for the royal power and dignity. It is rather in the old feudal notions of this class that the doctrine will, I think, be found to have originated. t Gould M. James, 6 Oowen, 369. Rogers w. Jones, 1 Wend. 237. The People ■»«. Schermerhom, 19 Barb. 540.' X Goodel vs. Jackson, 20 J, R. 706. Jackson vs. Lervey, 5 Cowen, 397. North Hempstead vs. Hempstead, 2 Wend. 109. 466 PATENTS OF LAND. exercising the power of* these sovereignties, which have succeeded to the rights of the British Crown,* have appointed certain public officers to sell and grant these lands, and have provided many forms and checks to secure regularity and to protect equally the public and private rights. , But the general principle is, that when these proceedings are consummated by a grant the earlier steps can no longer be inquired into, and that in the absence of fraud a good title is acquired. The patent or grant establishes the fact of every prerequisite having been performed.f In New York it is now declared (1 K. S. 198, part i., chap, ix., title 6, art. 1), that the commissioners of the land office shall have the general care and superin- tending of all lands belonging to the State, the super- intendence whereof is not vested in some other office or board ; and they have also the power to direct the granting of the unappropriated lands of the State according to the directions from time to time to be prescribed by law. This includes the power to grant * Martin vs. Waddell, 16 Peters, 3B7. t Polk's Lessee vs. Wendell et al. • 9 Cranch, 87 ; Polk's Lessee vs. Wendell et ai. 5 Wheat., 293 ; Bouldin i>s. Massie's Heirs, 7 Wheat., 122, 149 ; Stringer et al. vs. Lessee of Young et al. 3 Pet., 320, 340; Patterson vs. Winn, 11 Wheat., 380 ; Patterson vs. Jenks et aV 2 Pet., 227 ; Sam- peyreac and Stewart vs. The United States, 7 Peters, 222 ; New Orleans vs. The United States, 10 Peters, 662 ; Pollard and Pickett vs. Dwight et al. 4 Cranch, 421 ; Bodley and others vs. Taylor, 5 Cranch, 191 ; Massje vs. Watts, 6 Cranch, 148 ; Blunt's Lessee «s." Smith and others, 7 Wheat., 248 ; BOardman and others vs. The Lessees of Reed and Ford et al. & Peters, 328 ; Bagn^U et al. vs. Broderick, 13 Peters, 436 ; The Philadelphia and Trenton Railrbad Co. vs. Stimpson, 14 Peters,448; Brush M.Ware et al. 15 Peters, 93 ; Stoddard et al. vs. Chambers, 2 Howard U. S. R., 284; The People vS. Mauran, 5 Defiio, 389; Jackson®*. Marsh, 6 Cowen, 281'; See Mr. Blackwell's able work on Tax Titles, p. 99. PATENTS OP LAND. " 45T lands under the waters of navigable waters, op lakes.* Tlie New York statute provides ttat every appli- cant for a grant of land under water shall, previous to his application, give notice thereof, by newspaper advertisement, for six weeks ; and it has been held that this preliminary notice, directed by the statute, is absolutely necessary to confer jurisdiction of any particular case on the commissioners, and that without it any grant by them is void.f No grant of land under water can be made to any person other than the proprietor of the adjacent land, and every such grant that shall be made to any other person shall be void ; and it has been decided that ejectment will lie for the interest conveyed by these State grants of land under water.J The statute requires that letters patent shall contain an exception and reservation to the people of the State of ail gold and silver mines ;§ but the omission of this reservation does not vitiate the letters patent. * 1 R. S. 208, part i., chap, ix., title 5, art. 4. ■ Gould vs. James, 6 Oowen, 369. Rogers ««. Jones, 1 Wend. 237. The People ««. Schenner- hom, 19 Barb. S. C. R. 640. t -People vs. Schermerhom. 19 Barb. 540. We have already seen that a somewhat analogous provision in regard to application to the legislature, Ijas been held to be merely directory. Ante, p. 66. ^ Smith vs. Helmer, 7 Barb. p. 416, and the People vs. Mauran, 5 Denio, 389, decide also, that the notice iS not essential, on the ground that omnia solemnia, premmuntur rite acta, and on the general doctrine which makes State grants conclusive evideiice of the correctness of the previous proceedings. This rule we have alreaidy had occasion to notice., I 1 R. S. lit supra; Champlain and St. Lawrence R. E. vs. Valentine, 19 Barb. 484. See Furman vs. The City of New York. 5 Sandf. 16, as to graints of land under water by the corporation of that city. The act authorizing the corporation to make these grants was based on the petition of the city government; and the preamble of the act referred to, and in part recited, the petition. It was held that both the preamble and the petition might be referred to, to remove ambiguities in the act. § 1 R. S. p. 198, § 6, vt supra. 458 ' GRANTS OF LAND. The authority of the commissioners may be executed by their issuing letters patent under the seal of the State ; or the commissioners may grant land under their own seals* Where the legislature authorizes owners of lands on the shore of a river or sea to fill up and dock out in front of their lands to a designated exterior line, the shore being irregular and crooked, and the exte- rior line straight, questions of difficulty have presented themselves as to the relative share of the proprietors in the new front ; the Superior Court of New York has declared that the following rule, previously applied by the Supreme Court of Massachusetts to the formation of alluvial deposits on a river, is sound and just :f — (1) Measure the bank or line of the river opposite to the newly-formed line, and compute how many rods, yards, or feet each proprietor owns on the original river line ; (2) then let the number of feet or rods on the newly- formed line to which each proprietor is entitled, bear the same proportion to the number he owns on the old line, as the whole length of the new line bears to the whole length of the old. This prin- ciple, however, could not be applied if the whole line were not to be adjusted, but only a boun- dary between two conterminous proprietors. This latter case has been considered both in Maine and in New York ; but as the matter is one of detail, I refer to the cases.;}:. * The People vs. Mauran, 5 Denio, p. 389. t Deerfleld vs. Ames, 17 Pick. 45 ; O'Donnell vs. Kelsey, 4 Sandf. 202. I Emerson vs. Taylor, 9 Greenleaf. 44 ; O'Donnell vs. Kelsey, 4 Sand- ford, 202. In Maine, as to the rules for apportioning flats to the owners of up- • lands, see Treat vs. Chapman, 35 Maine, p. 34, and cases there cited bolh in that State and Massachusetts. MUNICIPAL ORDINANCES. 459 Mwaicvpal Ordinances. — The remaining brancli of this portion of our subject is one of much interest in many points of view, and especially in this country. In the application of authority and intelligence to the administration of public affairs, two great systems have, from the earliest times, divided the minds of men, — centralization, and local or distributed power. With reference to our peculiar system, we sometimes call the latter local sovereignty. Of the former, or the concentration of authority in one single, central head and hand, in th© old world Imperial Rome pre- sents the greatest exemplar. In the modern world, France offers the most favorable specimen. This sys- tem, by whatever name the government be called, republic, monarchy, or empire, and whether nominally administered by a consul, a king, or an emperor, is practically a despotism. Its essential idea is complete subordination of all interests to the predominance of a single will. Under some circumstances, under certain conditions, when by some rare fortune virtuous inten- tions, moderation, and intelligence inspire and actuate the master, such a system may result in that tranquil- lity and prosperity which are the certain evidences of good g(fvrernment.* Cases of this Mndj however, are but exceptions to the great rule which teaches that * " If aman," says Gibbon, " were called upon to fix the period of the world during which the condition of the human race was most happy and pros- perous, he would without hesitation name that which elapsed from the death of Domitian to the accession of Commodus. The vast extent of the Roman empire was governed by absolute power, under the guidance of virtue and wisdom. The army was restrained by the firm but gentle hand, of four successive emperors whose characters and authority commanded involuntary respect. The forms of the civil administra,tion were carefully preserved by Nerva, Trajan, Hadrian, and the Antonines, who delighted 460 ' MUNICIPAL ORDINANCES. permanent prosperity can only flow from equality and justice. Centralization or despotism corrupts the sov- ereign, debilitates and demoralizes tlie subject ; and history aflfords no instance where, within a brief period, it has not ended in convulsion and disaster. Of the other scheme, or the distribution of power among local authorities, England affords the only signal instance in the Old World. Notwithstanding the theo- retical despotism of her Parliament, her system practi- cally secures that division of authority, those checks and counter-checks, which are only another name for lib- erty. But to obtain a correct idea of the full extent and operation of local action and local sovereignty, a wider range of observp.tion must be taken. Beyond all doubt, this country affords the strongest and best instance of its operation. American freedom is based on the idea of local action, localized power, local sov- ereignty,' and has received its best developments from the intelligence and energy of its people, fostered to the highest degree by a system which seeks, as far as safely possible, to strip the central authority of influ- ence, and to distribute its functions among local agents and bodies.* The two great national governments, therf, which have been thus far the most successful in forming a in the image of liberty, and who were pleased to consider themselves as the accountable ministers of the laws." — Hkl. ch. iii. Gibbon surveyed the anpient world with an eye of wonderful scrutiny and wisdom. His authority is now as absolute as when he wrote. But in regard to the affairs of his^ own time, he appears to have had little more philosophy or independence than any other placeman. * Of this system, perhaps the convention of the State of New York of 1846 presents the strongest illustration of what is commonly called decentraliza- tion. By the means of frequent local elections and division of power, it has carried local sovereignty to a point never tried before. It cannot yet he said with confidence, whether the Via% of wisdom has not been passed. MUNICIPAL ORDINANCES. 461 compromise between tlie principles of local* action and centralization, are England and the United States. Their aim has been to combine the benefits of order and discipline resulting from a central authority, with that freedom of thought and action which can only be obtained in the highest degree, by the absence of authority and supervision. Of these two, however, our system,, based as it is on a federation of state sov- ereignties supreme in the great mass of their domestic affairs, these state sovereignties again sedulously en- deavoring to distribute authority among the smaller political and geographical subdivisions, is far the most conspicuous as exhibiting the benefits resulting from localized power and action. It is in connection with these considerations, that the subject of municipal ordinances has its chief inter- est to us in this country. Corporations or associations endowed with certain artificial attributes relating to their management and duration were borrowed from the civil law, and very early applied to the adminis- . tration of many kinds of business. And the same system, i. e., grants of charters, was extended to the, government of boroughs and towns in England. In this country, the town goyernments or organizations are among the most important parts of the machinery by which the local action and independence of the country is preserved. When the towns become pop- ulous they generally receive charters of incorporation, and. act upon the' interests of person and property con- fided to them by means of whkt are called municipal ordinances. The rules governing this branch of writ- ten law thus become matters of great importance.* * The account which the learned and:,'sagacious historian of the Anglo- Saxon period in England gives, of the condition of thie boroughs or towns 462 MUNICIPAL ORDINANCES. So far as these municipal institutions fall under the general rules applicable to corporations, a highly fertile and complex branch of our law, they have been very ably treated by various writers, and fall outside of the scope of this work. But municipal ordi- nances or laws regarded as the enactments of the gov- erning-power of towns or cities made by virtue of a dele- gated sovereignty, fall directly within the limits of our subject, and by reason of the multiplicity of these insti- tutions and the immense number of individuals and the masses of property under their control, are of very great importance. I shall, therefore, in this chapter, state some of the prominent rules that govern enact- ments of this kind, which, within the sphere of their authority, have all the force of statutes. We have had occasion (ante,- pp. 164, 166) to notice the general rule that a legislative body is not at Jhat early period, is very curious. He says, " What, then, was the Situa- tion of the Anglo-Saxon burghs? Rendering a light and easy tribute, and performing moderate services, they were protected against compulsory taxation. Beyond their settled and accustomed contribution, no pecuniary aid could be required, except by an illegal exertion of power. As a body, they were often, if not always, freed from the feudal bond. The rights of the territorial magistracy resulted from their own internal condition, and not from the nomination of the crown. The Laghman acted as judge, not by virtue of the king's 'writ' and 'seal,' but because he owned the Man- sus to which the judicial right or duty appertained ; and if, as there is every reason to suppose^ the election of Reeves and other similar officers by the Leet juries has descended from the Anglo-Saxon age, the other func- tionaries were virtually appointed by the people. Legislation was the prerogative of the sovereign and his Witan ; yet, though the laws thus enacted, extended in general terms to all those who were subjected to his supremacy, still, the mode of accepting the statutes and of carrying them into effect, depended upon the deliberations of the burghmoot, and the discretion of its members ; and London was as much entitled to the name of a distii^ct state or community as the Kentish kingdom."— Palgrave's Commonwealth, vol. i., ch. 21, pp. 682 and 683. MUNICIPAL ORDINANCES. 468 competent to delegate its functions. But this is sulb- ject, like most of the general rules in our complex and artificial system, to a large class of exceptions. It is well settled that in many case's, a certain amount of legislative power may be entrusted to municipal corporations. Sp in New York, a city ordinance in regard to the sale of coal by weight, fixing the num- ber of weighers and imposing a penalty on those who should sell coal not weighed, has been sustained.* So in New Hampshire, it has been said that the legislag ture may constitutionally authorize a city to etiact, ana a city may enact, an order that no intoxicating liquors shall be used or kept in any refreshment saloon or restaurant within the city, for any purpose whatever.f So in the same State, it has been held that an act declaring that a bowling-alley within twenty-five rods of certain specified buildings should be deemed a pub- .lic nuisance, but that the act should only be in force in such towns as should adopt it, has been held consti- tutional ; and an indictment for keeping a bowling- alley in the situation contemplated by the statute, in a town where the act had been adopted, has been sustained on the general ground that powers of local legislation may be granted to, cities, towns, and other municipal corporations.^ So, too, it has been held that the taxing power for local purposes may be delegated to the local authori- ties; and on this ground acts authorizing municipal corporations to subscribe to railroad corporations have been sustained, against the objection that they * stokes & Gilbert vs. The Corporation of New York, 14 Wend., 87. t The State vs. Clark, 8 Foster, 176. t The State vs. Noyes, 10 Foster,"279. 464 MUNICIPAL OEDINANOES. were void as being a delegation of the Supreme authority.* But I confess that it appears to me, not- withstanding the weight of authority on this head, that a delegation of the power to municipal corpora- tions to tax their citizens for works of such large and general utility as railroads, cannot be fairly called a taxation for local purposes, nor justified on that ground. The road may benefit the locality, but it is not easy to see h'ow it can be properly called a local object. 1^ Again, the highe,st powers of the State are some- times delegated to these corporations for purposes of general safety. So in New York, on an order of the mayor and two aldermen of the city, buUdings may be destroyed to prevent the spread of a conflagration.f In this act provision was made for compensation to the owner; and it seems to be settled, under the general constitutional clause declaring that private property shall not be taken for public use without compensation, that when acts in connection with mea- sures of municipal regulation authorize .the taking of private property, compensation must be provided, or the appropriation will be unconstitutional and void. J But if private property is not absolutely taken, it seems clear that cities acting within the powers conferred by their charter, may, when necessary to the health of the city, direct and control the occupation of prop- * Sharpless vs. The Mayor of Philadelphia, 21 Penn., 147 ; Moers vs. City of Reading, 21 Penn., 188; State of Louisiana m. Executors of John McDonogh, 8 La. Ann. R., 171 ; New Orleans vs. Graihle, 9 La. Ann. R., 561 ; Slack vs. MaysvUle and Lexington R. R., 13 B. Monroe, 1 ; The Jus- tices of Clarke Co. vs. The P. W. and R. R. Turnpike Co., 11 B. Monroe, 143. t The Mayor, &c. of New York vs. Lord, 17 Wend. 285; S. C, 18 ibid., 126; Russell vs. The Mayor, &c. of New York, 2 Denio, 461. t Baker vs. The City of Boston, 12 Pick, 184; Clark vs. The Mayor, &c., of Syracuse, 13 Barb., 32. MUNICIPAL OEDINANCES. 465 erty, and may in so doing, to some extent, interfere wi^ private rights without providing for compensa- tion.* So in Boston it was held that the city authori- ties were authorized to fill up a creek in the exercise of their powers for the preservation of the health of the city.f The same power is exercised in regard to nuisances. So the city of Albany being authorized by its charter to remove and abate nuisances in and about the docks and wharves, and to prevent obstructions in the Hud- son river opposite the city, it has been held to have the power ^o remove an ark or float moored in the basin and obstructing the navigation.^ So again when at the time of the first appearance of the Asiatic chol- era in this country, the Board of Health of Albany declared certain buildings a nuisance and they were pulled down, it was held to be rightly done. But this J)ower of abolishing nuisances by mere municipal ordinances, without any judicial investigation and without any obligatory notice to the party in interest, involves great interference with private property; and it is well settled that it will not be permitted, unless the charter clearly confers the authority ;§ and on this principle it has been recently decided that the city of Syracuse, in the State of New York, had not the power. I In regard to the e:^ercise of judicial construction with respect to the powers delegated to these subor- dinate bodies, it has been said in England generally, * Clark vs. The Mayor of Syracuse, 13 Barb., 32. t Baker vs. The City of Boston, 12 Pick., 184 t Hart vs. The Mayor of Albany, 9 Wend., 571. § The People vs. Jhe Corporation of Albany, 11 Wend., 639. 1 Clark vs. The Mayor of Syracuse, 13 Barb., 32. 30 466 MUNICIPAL ORDDfANCES. ia speaking of by-laws framed by corporations, tbat tbey ought to have a reasonable construction ; that they are not to be construed so strictly as to make them void, if every particular reason of making them does not appear* But in regard to corporations of a public character, this does not seem to be the mod- ern English doctrine. "When" public functionaries," says Lord Cottenham, speaking of the Poor-Law Com- missioners, "depart from the powers which the law has vested in them, and assume a power which does not belong to them, the court no longer considers them as acting under their commission, but treats them, whether a corporation or individuals, as persons dealing with property without legal rights ; and when such persons infringe or violate the rights of others, they become, like all other individuals, amenable to the jurisdiction of this court by injunction."f In this country, in regard to the ordinances of municipal corporations, and the exercise of their dele- gated sovereignty, the doctrine is in conformity with the general rule which we have elsewhere noticed in regard to special powers, as well as with the principles in regard to corporations generally, that the authority conferred upon these subordinate bodies is to be strictly construed, and must be closely pursued. In New York it is declared by statute, in regard to towns and corporations, that' they shaU. not possess any power except such as was specially given, or as * The Master, &c., of Vintner's Co. va. Passey, 1 Burr. 235, 289. + Erewin vs. Lewis, 4 M. & Oraig, 249 ; see also Agar vs. Regent's Canal Co. Cooper's Equity Cases, 77 ; The River Dun Navigation Co. vs. North Midland Railway Co., 1 Railway Cases, 185 ; Attorney General vs. Aspin- wall, 2 M. & C, &c., 618 ; Same vs. Corporation of Poole, 4 M. & C, 80 ; Same vs. Mayor of Dubhn, 9 Bligh, 896. MUNICIPAL ORDINANCES. 46Y shall be necessary to the Exercise of the powers so given;* and these provisions are in general strictly construed. So the common council of a city, under general words which give it power to provide for the good government oi the city, have no authority to fur- nish an entertainment for the citizens and guests of the city at the public expense. A contract for such purpose is absolutely void, and even if performed by the party with whom it is made, payment cannot be enforced against the city.f So a town, which is only authorized to sue and be sued in its own name, cannot authorize commissioners of highways to bring a suit in their own names for injuries to the property of the town. A resolution to that effect is void, and the commissioners who bring the suit are remediless for their costs and expenses.^ Nor can there be any sub- sequent ratification of an act or proceeding which the town has no authority to order. So where a munici- pal corporation was recognized as having an exclusive right to control and regulate the use of the streets of a city, and as being endowed in that respect with legislative sovereignty, it was held that an ordinance making a perpetual grant of a right to lay down a railway m a street of the city was not a legislative act, but a practical surrender of the power jof the cor- poration, and void.§ When the supervisors of the city of New York refused to pay certain salaries, on the ground of the unconstitutionality of the law under which the salaries were claimed, and the common » 1 R. S., 337, § 22 ; 1 E. S., "699, § 1, 3. t Hodges 1)8. City of Buffalo, 2 Denio, 110. X Cornell vs. Town of Guilford, 1 Denio, 510 ; see the continuation of the controversy, Town of Guilford »«. Cornell, 18 Barb., 616. § Milhau ««. Sharp, 17 Barb., 486. 468 MUNICIPAL OEDINANOIS. council assumed the defence of the suits brought against the supervisors for the penalty incurred by the violation of their duty, it was held that they had no right to do so, and that the drafts given for the expenses of the suits were void* So a common council authorized to make and pub- lish ordinances for the purpose of abating nuisances, has no power to direct the removal of -a person sick with an infectious or contagious disease, from one place to another, without his consent ; and still less to order the forcible seizure of a person's house and its occupation as a pest-house against his will.f In the same State the Court of Appeals has said, " The ordi- nance of a municipal corporation must conform strictly to the provisions of the statute giving power to pass the ordinance in question, or its proceedings will be void." • So when the Common Council of the city of Schenectady was authorized by ordinance to pitch, level, and flag streets " in such manner as they might prescribe," and they passed an ordinance delegating this power to a city superintendent, and directing the expenses to be paid by the owners of the property in front of which the improvement was made, it was held that the ordinance was void.J In Massachusetts, however, the rule that the dele- gated power is to be strictly construed, does not seem so severely adhered to. Where a city ordinance was passed directing an assessment for certain work, and the * Halsted vs. The Mayor; &c. of the City of New York, 8 Com., 481 ; for other cases growing out of this same matter, see Purdy «s. The People, 4 Hill, 384; andMon-is vs. The People, 8 Denio, 392. The unconstitution- ality of the appointment of the ofBcers in question was left open by the latter case. t Boom vt. City of Utioa, 2 Barb., 104. { Thompson vs. Schermerhorn, 2 Selden, 92. MUNICIPAL ORDINANCES. 4:69 work was done, but not in conformity to the ordinance * the Supreme Court of Massachusetts said, " The gen- eral principle that the city ordinance must^be adhered to, is a Bound one ;" but the assessment was held binding, and the court in deciding the cause used this language : " Without prescribing any general rule on this subject, and conceding that the subject of devia- tion from the ordinance is not free from difficulties in limiting the extent to which departures may be per- mitted in the mode of construction, the court are of opinion, that the grounds of defence here relied upon are insufficient ; and that, when the deviation is made at the request,-or with the assent of the land-owner liable to be assessed, he should be estopped from set- ting it up ; and also when the departure is not sub- stantially and palpably an intended deviation from the ordinance, especially when not attended with any substantial increase of expense, and an assessment is made therefor by the city authority, it is not compe- tent for one who is otherwise duly assessed to avoid the payment of his assessment by raising the objection of a departure from the ordinance in the mode of con- -struction." It is a general rule that municipal by-laws and ordi- nances must not be iu conflict with the general law ; and on this ground it has been held in Connecticut, that a by-law of a borough prohibiting the taking of oysters from the waters within the borough during a certain period of the year, under a penalty therein prescribed, which the borough is authorized by its charter to make, is abrogated by a general law of the State, passed subsequent to the granting'of the charter * City of Lowell w. Hadley, 8 Met., 180. 470 MUNICIPAL ORDINANCES. prohibiting the doing of the same act under a penalty- prescribed in the statute, so far as such by-law pro- hibits the act, whether such by-law was made before or after the passing of the general law ; and therefore no action for the doing of the act after the passing of such general law can be maintained upon the by-law* A case of great interest has presented itself in New York, in regard to the general powers of municipal corporations and the control of the courts over them. While an application was pending, before the Common Cbuncil of the city of New York, in 1853, for leave to construct a railroad in Broadway, the main avenue of the city, suit was brought in the Superior Court for an injunction restraining the members of the Common Council from making the grant. The complaint charged that the corporation had no power in the premises under their charter ; that the grant would create an injurious monopoly; that the road would be a public nuisance, and that the members of the city government were actuated by fraudulent and corrupt motives. The injunction was granted, and served on the members of the Common Council. That body,^ however, totally disregarded it ; declared by resolution, "that the courts had no power to interfere with the municipal legislation of the city ; that the Common Council would not allow any other body to interfere unlawfully with the authority which it held from the people, and which it was bound to exercise according to its own judgment and on its own responsibilities, and not according to the views and directions of any judge or any other individual citizen;" and proceeded to pass the grant. The authority of .the court thus being * Southport 1)8. Ogden, 23 Conn. R., 128. MCTNICIPAL ORDINANCES. 471 » set at defiance, an application was made for an attach- ment against all the members of the Common Council, as for a contempt. The course taken by the Common Council neces- sarily involved the precise question whether the courts could exercise any jurisdiction over a" municipal cor- poration for a breach of trust, violation of gefieral principles of law, or bad faith. The question was one of very great interest, and attracted the attention which its importance deserved. Many objections were urged to the application for the attachment ; but the one of principal importance was, that the resolution in question was an act -of legislation, with which the courts could not rightfully interfere. And it was contended that no court of equity could interfere jn any case, or for any purpose, with the legislative ac- tion of a municipal corporation, no matter how gross the violation of law, or even of the provisions of its own charter, or hOw great the nuisance threatened, or how corrupt the motive. , But the doctrine was denied : it was declared that there was no distinction between a muniqjpal corpo- ration or any other corporation aggregat^n respect to the powers of courts of justice over its proceedings ; and that "although such a municipal body is clothed with legislative and even political powers, yet in the exercise of all its powers, it is just as subject to the authority and control of courts of justice to legal process, legal restraint, and legal correction, as any other .body or person, natural or artificial." This doc- trine was asserted on the uniform authority of the English cases and those of our own courts, and also on tie constitutional provision, "that all corporations 472 MUNICIPAL ORDINANCES. shall have the right to sue and shall be subject to be sued iu all courts, iu like cases as natural persons ;"* while it was admitted that the court had no right to interfere with the proper legislative discretion of the corporation, it was declared that it could interpose its authority whenever it was necessary to prevent abuse, injustice, or oppression, the violation of a trust, or the consummation of a fraud. On the ground, therefore, that the complaint alleged sufficient cause to give the court jurisdiction, that the injunction was rightly issued, and that as long as in force it was entitled to obedience, an attachment was granted.f Where a municipal corporation has power to make reasonable by-laws, it has been said that the question whether a given by-law is reasonable, is a question for the court, and not for the jury, and evidence on the subject is inadmissible.^ If unreasonable, the court holds them void.§ So, a by-law of the city of Boston * Cons, of N. Y., 1846, art. 8, § 3. t Davis vs. The Mayor, &c. of the City of New York, 1 Dujer, 461. The cause^me up again on the return to the' attachment. People vs. Compton, 1 Due™512. The doctrine of .the previous case was sustained; one of the aldermen was imprisoned for fifteen days, and the rest, with the'exception of one who apologized, were fined $100 and costs. t Commonwealth vs. Worcester, 8 Pick. 462. But how is the court to obtain the necessary knowledge ? In Vandine's Case, 6 Pick. 191, it is said, " To eirrive at a correct decision, whether the by-law be reasonable or not, regard must be had to its object and necessity. Minute regulations are required in a great City, which would be absurd in the country.'' Ne- cessity is certainly a fact ; and how is the judicial knowledge of this fact to be arrived at ? I believe it mayTse said that there is a deficiency in our system of the administration of justice, in not providing the courts with means to obtain for themselves satisfactory evidence or instruction in re- gard to questions of fact which are left to them to decide. The difficulty presents itself in regard to the construction of technical words in statutes, as well as in the matter above referred to. § Vandine's Case, 6 Pick. 187, 191. MUNICIPAL ORDINANCES. 473 in regard to sewage, has been held in that Stat% to be void for inequality and unreasonableness* We have already seen that a statute of a local or municipal character is as fatal to the validity of all contracts based on a violation of it, as if the act be one of a general char^^jjfer. And it has been intimated that a corporation ordinance was equally efficacious.f In regard to the enforcement or sanction of by-laws, the rule is that they can only be enforced by a pecuniary penalty, unless there is some express act giving power to inflict other punishment- J As to the passage of municipal ordinances, the fol- lowing decision is to be observed. It is a general rule of practice in legislative bodies which consist of two branches, that alL business before them, and un- finished at the end of a session, is discontinued ; and that if taken up at all at a session following, it must be taken up de novo. It has been held in New York, that the analogy of this rule applies to acts of a municipal cor- poration of a legislative character ; and consequently an ordinance granting to a city-railroad company leave to use the streets for that purpose, which passed the Board of Assistant Aldermen of the city of New York in 1852, but was not passed by the Board of Aldermen till 1853, after a new Board had been elected, has been decided to be void.§ * City of Boston M. Shaw, 1 Met. 130. t JExparie Dyster m re MbUne, 1 Mferivale, 155 ; Bell va. Quin, 2 Sand- ford, 146 ; Beman vs. Tugnot, 5 Sandf. 154, amte, p. 86. i Gee vs. WUden, 2 Lvtw. 1320 ; Bosworth'w. Budgen, 7 Mod. 459 ; 2 Str. 1112 ; Leathley va. Webster, Sayer, 251 ; Gray on Corporations, 8 ; Hills vs. Hunt, 15 Com. B. 1, 6 J. Scott, 1, 26. § Wetmore vs. Story, Abbott's Practice Cases, vol. iii. p. 263. Some points -of local municipal interest may here be noticed. In New ^ 474 MUNICIPAL ORDINANCES. ^i reference of tlie admissibility of the books of a municipal corporation as evidence, the Supreme Court of the State of New York has said, " that the corpora- tion of the city of New York more nearly resembles the legislature of an independent state, acting under a constitution prescribing its pig^ers, than an ordinary private corporation. The acts of tbis corporation concern tbe rights of the inhabitants of the city ; it -.jexercises a delegated power, not for its own emolu- ment, but for the interests of its constituents ; and while it keeps within the limits of its authority, tbe constituents are bound by the acts of the corporation. When tbe citizen wisbes to show those acts, he must resort to the authentic record of them ; which is the original minutes of the corporation."* York, as to the power of the corporation as to the construction of piers and bridges, see Marshall m. Guion, 4= Denio, 681. In the same State it has been held that an arrest cannot be made on Sunday for a violation of a corporation ordinance. Wood vs. City of Brook- lyn, 14: Barb. 425. ^ee Trustees of Clintonyille ve, Keeting, 4 Denio, 841, for a decision on the validity of a trustee's ordinance imposing a fine for selling ardent spirits. For a long and interesting case on the subject of the powers of muni- cipal corporations, see the Attorney General of the State of New York vi. The Mayor, &c., of New York, 3 Duer, 119. * Denning vs. Roome, 6 Wend., 651, note 800 ; 8 Phillips on Evidence, p. 1160. CHAPTER X. LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION. The general character of conatitutional proTisions regarded as limitations upon legislative power-r-Prinoipal Restrictions imposed by the State oonstitu- tions— Guarantee of private property — Trial by jury — ^Protection of law — Searches and seizures — Taxation — Police regulations — Titles of bills — Amendments — Repeal — Constitutional majorities — Religious tests — Reli- gious societies — Creation of judges — Incorporations — ^Tru|t funds — Di- Torees— Suits against the State. We have thus far examined the subject of written law with reference to the general principles of 'the jurisprudence which we have derived from the English stock, and which govern wherever that system ob- tains. We now proceed to consider a branch of the great topic which is confined exclusively to this coun- try — I mean CoNSTiTUTioiirAL Law.. The late chief justice of the United States, in his survey of the. events leading to the Declaration of Independence, on which he looked with almost a con- temporary eye, when speaking of the first State gov- ernments organized in lYYG, says that "the untried principle was everywhere adopted of limiting the constituted authorities by the creation of a written constitution prescribing bounds not to be transcended 4r76 CONSTITUTIONAL LAW. by the legislature itself."* It is in this point of view that I have now to examine the subject of our consti- tutional law. The provisions of the constitutions of the several States of the Union, as well as those of the Federal charter itself, may be divided into two great heads : those which relate to political power and organization ; and those which are intended to serve as securities for private rights, and which are specially framed as checks on legislative action. Of the constitutional provisions which distribute, arrange, and determine political power, this work is not intended to treat. It is confined to the consideration of those clauses which, for the purpose of protecting private and personal rights are inserted as limitations upon legislative action. This gteat head of Constitutional Law is peculiar to American jurisprudence.f It is full of importance * MarshaU's Life of Washington, vol. ii., p. 871. He makes an excep- tion as to the novelty of the idea, in favor of " Connecticut and Rhode Island, whose systems had ever been in a high degree democratic." t I have already (ante, p. 214) had occasion to notice what are called the principles of the English OonstitutioDi and have stated the fact that they do not in any wise interfere with the theoretical supremacy of the British Parliament. Mr. Justice Story has said, " According to the theory of the British Oonstitution, their Parliament is omnipotent. To annul cor- porate rights might give a shock to public opinion which that government haS chosen to avoid; but its power is not questioned." Dartmouth College VI. Woodward, 4 Wheat., 518. "The absolute power of the legislature," Bays Mr. Hallam, speaking of the resumption of the Irish grants in 1699, " in strictness is as arbitrary in England as in Persia." Hallam's Comi. Sist; vol. iii., p. 198, ch. xv. In regard to Canada, I may notice that an act was passed in 1840, entitled an act to re-unite the provinces of Upper and Lower Canada, and for the government of Canada, 28d July, 1840 — 8 and 4 Vict., c. xxxv. — which operates as a sort of constitution for the united provinces. The act declares that from and after the re-union of the two provinces, there shall CONSTITUTIOITAL LAW. 47T to every citizen of the Republic ; to the la-wyer it is a matter of commandbig interest ; nor will it ever be possible to understand the character ot to write the history of our people, without a complete knowledge of this fertile and complex subject.* It is not possible that the eminently sagacious men who framed our systems of administration supposed that they would remain forever inviolate ; and it is one of the most curious circumstances connected with their formation, that in laying, down these barriers against legislative invasions of private right they wholly omitted to provide any positive guarantee or specific protection for them. No sanction or penalty is at- tached. A prohibition or command not to do certain things is laid on the legislature, but not a word is said as to the mode in which the fact of violation is to be established, or how the prohibition is to be enforced. • be in the proTince a Legislative Council and Assembly, and that within the province Her Majesty shall have power, by and with the advice and con- sent of the Council and Assembly, to make laws for the province, — such laws Twt teing repugnant to this act or such parts of an act of the 81 Geo. IIL, as are not repealed, or to any act of Parliament made or tO be made and not hereby repealed, which does or shall by express enactment or by necessary intendment extend to the provinces of Upper and Lower Can- ada, or to either of them, or to the province of Canada. The act, however, mainly relates to the arrangement and distribution of political power, in- cluding the subject of the church, taxation, and the judiciary and does not seem to contain, except incidentally, any such guaranties of private rights as are to be found in our State constitutions. It is interesting, however, as containing the germ of the great principle of constitutional limitation upon legislative power. * The term Constitution, like many others in our law, appears to claim a Latin original, and to have been primarily used for the will of the sove- reign declaring, decreeing, and expounding the law. " Qiiodewmque, igitwr, Imperator per eputolam et subteripUonem staimt, vel cognoscens cUorevit, vel de piano interheutm est, vel edieto prceeepit, legem esse constat. Mma stmt qvas vulgo Oonatitutumes appellanms." — Dig. de Cqpstitutionibus Prin- icpum, 1. 1, § 1 ; Vicat. Vooab. Utriumq. Juris in voo. 478 CONSTITUTIONAL LAW. If the draughtsmen of our Constitutions thought it wisest to leave this important point to be decided by the practical sagacity of the people for whom they were framing new institutions, the *event has thus far jus- tified their confidence. No difficulty whatever has as yet resulted from the absence of any' specific provision on the subject; the authority to determine the consti- tutionality of a law, or in other words, to decide whether the legislature has in a given case overstepped the line of the Constitution, and the power to arrest the action of the ministerial officers of justice when a decision adverse to the validity of a law is arrived at, have been claimed by and surrendered to the judi- ciary. Nor is it less curious to observe that this is the result of the action of the judiciary itself. The subject was early considered in a case in Pennsyl- vania ; and Mr. Justice Patterson asserted the power of the judiciary in very distinct and emphatic terms. He said, " It is an important principle which, in the discus- sion of questions of the present kind, ought never to be lost sight of, that the judiciary in this country is not a subordinate but co-ordinate branch of the govern- ment ; and whatever may be the case in other coun- tries, yet in this there can be no doubt, that every act of the legislature repugnant to the constitution is absolutely void."* In New York, the rule was asserted in 1791 ;f in South Carolina, in 1Y92 ;J and in 1802, in Maryland.§ * Van Home's Lessee v>. Dorrance, 2 Dallas, 804, a case in relation to the territorial controversy between Pennsylvania and Connecticut. t Hayburne's Case. X Bowman vs. Middleton, 1 Bay, 262 ; Lindsay vs. The Charleston Com- missioners, 2 Bay, 88. § Whittington ve. Polk, 1 Harr. it is undoubted, shall be exercised with extreme caution, and nfever where a serious doubt exists as to the true interpretation of the provisions alleged to be repugnant. Especially has this been said to be so when the objections do not touch the substance of the law or the authority of the legislature, but are merely criticisms on its sense and phraseology ."f So in lUinois,^ it has been said, the inquiry into the Validity of an act on the ground that it is unconstitu- tional, is an inquiry whether " the will of the repre- sentative as expressed in the law, is or is not in con- flict with the will of the people as expressed in the constitution. And unless it be clear that the legisla- ture has transcended its authority, the courts will not interfere." J In Massachusetts it has been said that " acts * Clark m. The People, 26 Wend. 599. t The Sun Mutual Insurance Go. m The City of New York, 5 Sand- ford, 10. t Lane et al. vs. Dorman et wis., 3 Scam. 238. In Maryland it has been said, that it is the province of the judiciary to decide upon the law arising in questions before them, and upon the constitution as the pfiramount.law. But it is more in fulfillment of their own duty than to restrain the excesses of a co-ordinate department of the government. Crane w. Meginnis, 1 am & Johnson, 463. 484- . CONSTITUTIONAL LA"W. of a legislature constitationally organized are to be presumed constitutional, and it is only wliere they manifestly infringe some of the provisions of the con- stitution, or violate the rights of the subject, that their operation and eflfect can be impeded by the judicial ,, power."* In Pennsylvania it has been expressly de- * Foster et al. m. The Essex Bank, 16 Mass. 245. See this case>for a discussion of the power of the legislature to pass retrospective laws. A banking company was incorporated in 1799 for the term- of twenty years. In 1819, before the term had expired a general law was passed whereby all corporations then existing and thereafter to be estatjished, whose power would expire at a given time, were to be continued in existence as bodies corporate, for three years after the time limited by the cbarter, for the purpose of suing and being siJfed, settling and Closing their concerns, and dividing their capital stock, but not for continuing their business. After suit brought by the plaintiff, the twenty years for which the bank was originally chartered expired, and a suggestion was filed that the corpora- tion was dissolved. It was insisted that the act of 1819 was retrospective, and that it impaired the obligation of contracts, and that it violated vested rights, — on the ground that the right of the corporation was to exist for twenty years, that this right could in no way whatever be interfered with, and that the contract was altered. The objection, however, was overruled. It was decided that the law was within the constitutional power of the legis- lature, and the banking corporation were held to answer. Parker, J., said, " If the legislature were to enact that A. B. was guilty of treason, and that he should suffer the penalty of death, it would be the sworn duty of the court, or of any member of it, to grant a habeas corpus and discharge him. Or if they should enact that his estate should be conflscatad or transferred, or taken for the use of the public without an equivalent, such acts would not be laws, and they never could be executed but by a court as corrupt or as passionate as the legislature which should have passed them. " So, if the legislature should attempt to destroy or impair the legal force of contracts, by declaring that those who were indebted should be dis- charged witl;out paying their debts, or on paying a less sum than they owedj or in something different from what was agreed, such acts would be unconstitutional although not expressly prohibited ; because, by the funda- mental principles of legislation, the law or rule must operate prospectively only, unless in cases where the public safety and convenience require that errors and mistakes should be overruled ; the power to do which has been immemorially exercised, and is, we believe, within the constitutional power of the legislature, for it is doing no one wrong to prevent his taking advantage of a mere error or mistake. The law complained of is a general law, oper- CONSTITUTIONAL LAW. 485 clared to be an established principle of construction, that where the meaning of the constitutional Clause is doubtful, a statute alleged to conflict with it must be held valid* Where, however, the violation of the constitution is clear, no argument of inconvenience has any weight. So in Indiana, it has been said, " It is urged in argur ment that this ruling may be a deadly blow to the common-school system of Indiana. We do not so ating upon all bodies corporate ; and it is convenient for them and the pub- lic that their power of suing and being sued should be continued beyond the period within which they are empowered to make coiitracts, in order that their concerns may be properly adjusted. Upon the whole, we cannot discern any principle by which it can be decided that this statute is void. It is not retrospective in the proper sense of that term, for it provides for a future existence of the corporation for limited and Specific purposes. It does not infringe or interfere with any of the privileges secured by the char- ter, unless it be considered a privilege to be secured from the payment of debts or the performance of contracts ; and this is a kind of privilege which we imagine the constitution was not intended to protect. It does not im- pair the force or obligation of contracts, but on the contrary provides a way of enforcing them both in favor of and against the corporation. " Many statutes have been referred to in the argument, which are much more 'questionable as to their constitutionality, than thp one under consider- ation : The statutes of limitation, operating upon contracts already in force ; The suspension of those statutes after the debtor may have considered that he had a right to be discharged within a certain period ; The statutes made for curing defects in the proceedings of courts, towns, officers, &c., when the party to be affected might be said to have a vested right to take ad- vantage of the error. The truth is, there is no such thing as a vested right to do wrong ; and a legislature which, in its acts not expressly authorized by the constitution, limits itself to correcting mistakes, and to providing remedies for the furtherance of justice, cannot be charged with violating its- duty or exceeding its authority. Had they provided that all corporations- should cease to transact business three years before the time for which they were created, expired, in order that they might bring their affairs to a cloise, it might justly be said that their privileges were|taken away, and th& grant of the government was impaired. But to provide for their continu- ance for such purpose, three years beyond their term, is no breach of their privileges, and is in fact nothing more "than establishing a mode by which their business may be closed and their contracts carried into execution." * Th§ Farmers and Mechaftcs' Bank vs. Smith, 3 Serg. & R. 63, 73. 486 CONSTITUTIONAL LAW. regard it. However that may be, tlie responsibility does nbt lie with the judiciary. If the legislative department will infringe on the constitution, the duty of the courts may be arduous and unpleasant, but it is a plain one regardless of the consequences.* So in the same State, " It will not be for us," says the Su- preme Court of Indiana, " to inquire whether the law be a good or a bad one in the abstract, unless the fact, as it might turn out to be, should become of some consequence in determining a doubtful point on the main question, that is, whether it is a violation of the constitution."! The subject has been examined by a very learned and accomplished jurist in New York, and the follow- ing language held : — It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no weight with me. It is not for us, but for those who made the instru- ment, to supply its' defects. If the legislature or the courts may take that oflBce upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitu- tions will be worse than useless. Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power, — some evil to be avoided, or some good to be attained, by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. My rule has ever been to follow the fundamental law as it written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure ' * The State vs. Springfield Township, 6 Indiana, 84. t Beebe m. The State, 6 Indiana, 501. CONSTITUTIONAL LAW. 487 defects by forced and unnatural constructions, tliey inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow ; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them."* As in regard to statutes, so in regard to constitutions: contemporaneous and legislative exposition are fre- quently resorted to, to remove and explain ambiguities. So, in regard to the Constitution of tlie United States, it was objected that the judiciary act of 1*789 was unconstitutional, on the ground that it assigned circuit duty to the judges of the Supreme Court. But the Supreme Court said, in 1803, "To this objection, which is of recent date, it is sufficient to observe that prac- tice, and acquiescence under it for a period of several years, commenciug with the organization of the judicial system, affords an irresistible answer, and has, indeed^ fixed the construction. It is a contemporary interpre- tation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled."f And the same language has been held in regard to State constitutions. In Pennsylvania, it has been said that " the uniform construction given to a provision of the constitution by the legislature, with the silent acquiescence of the people, including the legal profession and the judiciary, and the injurious results which would ensue from a contrary interpreta- tion, are proper elements of a legal judgment on the subject." J So in New York, — " Great deference," says * Bronson, J., in Oakley m. Aspinwall, 3 Corns., BAT, 668. t Stuart vs. Laird, 1 Oranch, 299. I Moers vs. The City of Reading, 21 Penn., 188; Norris «s. Olymer, 2 Penn, 277. 488 CONSTITUTIONAL LAW. Marcy, J., in the Supreme CoTirt, " is certainly due to a legislative exposition of a constitutional provision, and especially when it is made almost contempora- neously with such provision, and might be supposed to result Irom the same views of policy and modes of reasoning which prevailed among the framers of the instrument expounded."* " Upon a question of real doubt," says Chancellor Walworth, in the Court of Errors in New York, " as to the meaning of a partic- ular clause in the constitution, a legislative construc- tion, if deliberately given, is certainly entitled to much weight, although it is not conclusive upon the judicial tribunal."f As to the general rules of construction and inter- pretatioii to be applied to the particular phraseology of a statute, it has been said by the Court of Appeals of Maryland, " that constitutions are not to be inter- preted according to the words used in particular clauses. The whole must be considered with a view to ascertain the sense in which the words were em- ployed ; and its terms must be taken in the ordinary and common acceptation, because they are supposed to have been so understood by the framers and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people ; and they judged it by the meaning apparent on its face according to the general use of the words employed, when they do not appear to have been used in a legal or technical sense."^ ♦ People j)s. Green, 2 Wend., 266, 274. t Coutant vs. The People, 11 Wend., 511. t Manly vs. The State, 7 Maryland, 185. CONSTITUTIONAL LA"W. 489 The principle that a statute is void only so far as its provisions are repugnant to the constitution, that one provision may thus he void and this not affect other provisions of the statute, has been frequently declared* "The principle is now "well understood," says the Supreme Court of the State of Massachusetts, " that where a statute has been passed by the legislature under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of the legislative power, or is repugnant to any provision of the constitution, such part thereof will be adjudged void and of no avail ; whilst all other parts of the act, not obnoxious to the same objection, will be held valid and have the force of law. There is nothing inconsistent in declaring one part of the same statute valid and another part void."f It seems to be settled in regard to constitutions as to statutes, that no ^trinsic evidence can be received as to their intent or meaning. " A constitution or a statute is supposed to contain the whole will of the body from which it emanated ; and I would ^st as soon resort to the debates in the legislature for the constitutionality of an act of Assembly, as to the debates in the convention for the construction of the Constitution.''^ I have already had occasion to notice, that consti- tutions, like statutes, are in some cases construed * Edwards vs. Pope, 3 Scam., 465; 8 Marshall, 73; Ely vs. Thompson, 3 Wash. C. 0. R., 313 ; Gibbons vs. Ogden, 9 Wheaton, 1, 203 ; City of New York vs. Mihi, 11 Peters, 102 ; Clark vs. Effis, 2 Blacljf. 8. t Fisher vs. M'Girr, 1 Gray 22; Commonwealth vs. EimbaU, 24 Pick., 361;"Norris vs. Boston, 4 Met, 288; Clark *. Ellis, 2 Black- ford, 10. i Per Gibson, J., in Eakin vs. Eaub, 12 Serg. & Rawle, 352. It is, howe'ver, a dissenting opinion. 490 CONSTITUTIONAL LAW. to be directory merely * Indeed, the jfollowing lan- guage has been used by a very accomplished judge in Pennsylvania : "That every thing in the Constitution addressed to the legislature by way of positive com- mand is purely directory, will hardly be disputed. It is only to enforce prohibitions, that the interposition of judicial authority is thought to be warrantable."f In regard to the change, of a State constitution, it has been held that the new constitution creates no new State, that all laws in force when the latter took effect, and which were not inconsistent with it, remained in force without an express provision to that effect, and that all inconsistent or repugnant laws were repealed by implication; and where the new constitution of the State of Ohio contained a clause to this effect, "The General Assembly shall never authorize any county, town, or township, by vote of its citizens or otherwise, to becoroe a stockholder in any joint-stock company, corporation, or association ;" it was held that a law enacted before the adoption of the new constitu- tion, authorizing such subscription, was not repealed by implication, as the new clause referred only to future laws. J The Supreme Court of Louisiana has very discreetly expressed its unwillingness to decide a question as to the unconstitutionality of the law of another State, when the question was still open in the State which * Ante, ch. vii., p. 878. + Per Gibsq^, J., in Eakin w. Raub., 12 Serg. & Rawle, 364. It is, however, a dissenting, and without any disrespect to this able and lamented jurist, I may add, a very heterodox opinion; vide ante, p. 479. t Cass vs. Dillon, 22 Ohio, 607. But see Mr. J. Ramsay's able dissent- ing opinion. CONSTITUTIONAL LAW. 491 passed tlie law, and tlie case could be decided on other grounds,* In regard to the subject of strict and liberal con- struction, considerations analogous to those which we have discussed under this head as to the interpreta- tion of statutes present themselves, in regard to tlie . interpretation of constitutions. Where a constitutional provision is of doubtful import, it is frequently suscep- tible of two interpretations, one the more restricted or severe, and the other more enlarged or equitable. Questions of this kind have presented themselves in the history of many if not all the individual States ; but we are more familiar with them in regard to the Federal Constitution. So in regard to the Bank of the United States, it was contended by the advocates of an enlarged or equitable construction, that the clause giving Congress power to make all laws necessary and \ proper to carry into execution the powers specifically \ granted, confeiTed on that body the power to create ^ the institution ; whUe on the other hand the advocates of a stricter interpretation, insisted that this general clause could only be used to enlarge powers already expressly given, and could not be construed to give a new and distinct head of authority. So again, the advo- i cates of a protective tariff have found the congressional / authority in the clause giving power to regulate com- merce; while the friends of free trade have insisted upon a stricter construction, and asserted that the authority to regulate commerce could not be so exerted as to protect manufactures. These questions have given rise to two great schools of construction : the topics which they involve are of * Shelden vs. Miller, 9 La. Ann. R. 187. 492 CONSTITUTIONAL LAW. perpetual and vital interest; but they approacli so near the demesnes of politics, and are so mucli influ- enced by the organization and shape of parties, that they are out of place here. Still, some general con- siderations are too apparent to be overlooked. An ar- bitrary or equitable power over acts of ordinary legis- lation, has been resisted on the ground " that the leg- islature is ever at hand," as it has been said, to explain its meaning. This consideration in favor of a re- stricted interpretation of statutory enactments, has less weight in regard to constitutional law. There are, as a general rule, no regular or frequent convocations of the people to revise or consider the fundamental law ; and in regard to the Constitution of the United States, any serious amendment, requiring as it would the concur- rence of two thirds of the legislatures of all the States, can scarcely be thought within the regions of hope or probability ; so that it is apparent that the arguments of hardship, irregularity, injustice, and inconvenience, will address themselves to the judiciary in constitu- tional cases with more force than in regard to ordinary legislative acts, just in proportion as it is more difficult to revise a constitution or to escape its power, than to amend or to evade a statute. Another con- sideration will impress itself still more forcibly on the minds of those who are called to consider questions connected with the interpretation of constitutional law. Statutes can and do enter into the details of our daily transactions, they can and do prescribe minute directions for the control of those affected by them. Constitutions, on the other hand, from the nature and necessity of the case, in many instances go little beyond the mere enunciation of general principles ; and it is impossible and would l^ad to endless absurdity, to endeavor to CONSTITUTIONAL LAW. 493 apply to a declaration of principles tlie same rules of con- struction tliat are proper in regard to an enactment of details. In regard to a statute, the general duty of tlie judge is that of a subordiaate power, to ascertain and to obey the will of a superior ; in regard to a constitu- tion, his functions are those of a co-ordinate authority, to ascertain the spirit of the fundamental law, and so to carry it out as to avoid a sacrifice of those inter- ests which it is designed to protect. No absolute rules of interpretation in such a matter, can be framed. Still, I cannot refrain from saying, as a general rule, while a strict adherence to the mere letter of a written Consti- tution would rehder our system practically intolerable, that on the contrary, a loose and careless mode of inter- pretation is attended by the most serious dangers. It puts all our institutions in the power of the judiciary ; it abolishes all restraints on legislation, and tends directly and inevitably to alter the very nature of our government.* Having thus considered the general principles to be applied to the construction of constitutional limita- tions upon legislative power,/ we approach the examina- * The analogies of history often throw light upon the annals of remote and obscure periods ; and our schools of strict and liberal construction may tend to render intelligible the sects or schools of Roman ^aw, " The freedom of Labeo was enslaved by the rigor of his own conclusions. He decided according to the letter of the law the same questions ^hich his in- dulgent competitor (Capito) resolved with a latitude of equity more suitable to the common sense and feelings of mankind." See Gibbon, ch. XUv. Our Labeos and Capites, our Sabinians and our Proculeans, might easily be named. Indeed, the analogies between the whole body of Roman juris- prudence and the English, are most curious and striking. The division into two great bodies, of strict and equitable law ; the formulae by which questions of fact were distinguished from questions of law ; the severe re- gard to mere symbolical forms, are as apparent in the one system as the other. 494 GUARANTEE OF PRIVATE PROPERTY. f. tion of particular provisions ; and of these, as I have said, there is none more important than that which declares that — Private property shall not he taleen for pvhlio pw- poses without compensation. — In considering the sub- ject of constitutional checks as imposed in this coun- try on legislative power, we find two limitations of paramount importance : the one guaranteeing th&invi- olability of private property, the other protecting the obligation of contracts ; the one intended to guard present ownership and enjoyment, the other to se- cure future transactions, or rights of property not yet converted into possession. These provisions are both to be found in the Constitution of the United States^ and the latter in some of the State constitutions ; but as the one in regard to private property is to be found, with the exception of New Hampshire and South Carolina,* in all the State constitutions, I shall con- * The constitution of New Hampshire is silent on the subject of com- pensation ; but it has been held that the duty to provide remuneration is none the less imperative. Bristol vs. New Chester, 3 N. H. E. 535. In South Carolina there is no constitutional provision whatever ;' and it has been there held that the legislative power over private property is supreme and absolute. The State w. Dawson, 3 Hill, 100. This was an indictment for obstructing road commissioners in cutting down timber to repair a road ; the act giving them general power to take so much timber, earth, or rock as should be necessary to keep roads in repair. The case was chiefly put on the question whether the act infringed the constitutional guarantee of the " law of the land," which we shall hereafter consider. It was upheld chiefly on the ground of long usage and acquiescence ; and Evans, J., de- livering the prevailing opinion of the court, says expressly, that the general power of the legislature to appropriate private property, is not involved. Since the decision of this case, however, the precise question seems to have been considered and determined. It was held in a case growing out of a right to a ferry, that the legislature has the constitutional right to deprive an individual of his property for great national purposes. Stark d«. M'Gowan, 1 Nott and M'Cord, 387. On the other hand, in New Hampshire the abstract right to compen- GUARANTEE OF PRIVATE PROPERTT. 49& sider it under our present head, reserving the clause in regard to the obligation of contracts till we come to the subject of the Constitution of the United States. In discussing the constitutional guarantee of pri- vate property, I shall first consider the precise nature of the legislative power over private property, and to what branch or branches of the sovereign power of the State the restricting clause is intended to apply ; Secondly, consider, under the head of delegation of the power, by whom it can be exercised ; Thirdly, examine the question, what is a taki/ng of private prop- erty within the meaning of the clause ; and lastly, speak of the rules which determine how and when compensation must be made. Before entering, how- ever, into this examination, it is proper to give the leading provisions of the different State constitutions on the subject, in order the more fully and accurately to understand the precise nature of the question as it presents itself in the several States : Maine. — " Private property shall not be taken for public us6s with- out just compensation, nor unless the public exigencies require it."* New Hampshire. — " No part of a man's property shall be takeii from him or applied to public uses, without his own consent or that of the representative body of the people."! sation, independent of all constitutional provision, has been declared. "The power of the legislature is limited, undoubtedly, in its nature, by the public exigencies ; but it is a power recognized by the constitution. There is no doubt that when this power is exercised, a just compensation is to be made. The constitutions of some of the States exprtssly declare that such compensation shall be made ; and natural justice speaks on this point when a constitution is silent." Bristol vs. New Chester, 3 N. H. 535. * Cons, of Maine, art. 1, § 21. t Cons, of New Hampshire, Bill of Rights, § 12. 496 GUARANTEE OF PRIVATE PROPERTY. *. Vermont. — " Private property ought to be subservient to public uses when necessity requires it ; nevertheless when any person's property is taken for the use of the public, the owner ought to receive an equiva- lent in money." " No part nf any person's property can be justly taken from him or applied to public uses without his own consent or that of the representative body of freemen."* Massachusetts. — " No part of the property of any individual can with justice be taken from him or applied to the public use, without his own consent or that of the representative body of the people." -" And whenever the public exigencies require that the property of any indi- vidual shall be appropriated to public uses, he shall receive a reason- able compensation therefor."f Rhode Island. — " Private property shall not be taken for public uses without just compensation." J Connecticut. — " The property of no person shall be taken for public use without just compensation therefor."§ New York. — " Nor shall private property be taken for public use without just compensation.'' "When private property shall be taken for any public use, the compensation to be made therefor when such com- pensation is made by the State, shall be ascertained by a jury or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law ; but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of freeholders; and such amount, together with the expenses of the proceedings, shall be paid by the persons to be benefited."|| New Jersey. — " Private property shall not be taken for public use without just compensation ; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made."^ Pennsylvania. — " Nor shall any man's property be taken or applied * Cons, of Vermont Decl. of Rights, ch. i., art. 1, §§ 2, 9. t Cons, of Massachusetts Decl. of Bights, art. 10. X cSns. of Rhode Island, art. 1, § 16. § Cons, of Conn., art. 1, § 11. \ Cons, of New York, art. 1., § 6 and 7. t Cons, of New Jersey, art. 1, § 16. 6UABANTEE OF PRIVATE PROPERTY. 497 to public use, wiihout the consent of his representatives, aud without just compensation being made."* Delaware. — " Nor shall any man's property be taken or applied to publid use, without the consent of his representatives, and without compensation being made."f y Maryland. — " The legislature shall enact no law authorizing privates property to be taken for public use without just compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation."J Virginia. — " The General Assembly shall not pass any law whereby private property shall be taken for public use without just compensa- tion ."§ Louisiana. — " No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made."|| Ohio. — " Private property shall ever be held inviolate, but subserv- ient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money ; and in all other cases where private property shall be taken for public use, a compensation therefor shall be first made in money, or first secured by a deposit of money ; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."^ Indiana. — " No man's particular services shall be demanded with- out just compensation. No man's property shall be taken by law without just compensation, nor, except in case of the State, without just compensation first assessed and tendered."** Illinois. — " Nor shall any man's property be taken or applied to public use, without the consent of his representatives in the General Assembly, nor without just compensation being made to him."ff * Cons, of Pennsylvania, art. ix., § 10. t Cons, of Delaware, art. 1, §8. X Cons, of Maryland, art. iii.; § 46. § Cons, of Virginia, art. iv., sect. 5, § 15. 1 Cons, of Louisiana, art. 105. H Cons, of Ohio, art. 1, § 19. ** Cons, of Indiana, art. 1, § 21. tt Cons, of Illinois, art. xiii., § 11. 32 498 GUARANTEE OF PRIVATE PROPERTY. Florida. — " We declare — that private property shall not be taken or applied to public use, unless just compensation be made therefor."* Alabama. — " Nor shall any person's property be taken or applied to public use, unless just compensation be made therefor."f Mississippi. — " Nor shall any person's property be taken or applied to public use without the consent of the legislature, and without just compensation being first made therefor."| Tennessee. — " No man's particular services shall be demanded, or property taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor."§ KentucJey. — " We declare — nor shall any man's property be taken or applied to public use without the consent of his representatives, and , without just compensation being previously made to him."|| Having thus given the leading provisions of tt«^ State constitutions on the subject, I now procef ^'^ consider first, the precise nature of the power ot one State over private property, and the precise extent of the constitutional limitation. The language of the clauses above cited is very broad and sweeping, and a hasty consideration is sufficient to satisfy us that the words cannot be taken in a strict or literal sense. It may be here remarked at the outset, that this clause furnishes a good illustration of the impossibility of construing constitutional provisions in a spirit of literal strictness. When a tax is levied, " private property" is clearly taken for public use, and taken without " compensation ;" and so in other cases which will present themselves in the examination of the subject. If, therefore, the clause was rigidly inter- preted, it would at once arrest the operations of any government to which it was applied. Such, however, ' • Cons, of Florida, art. 1, § 14. t Cons, of Alabama, art. 1, § 13. X Cons, of Mississippi, art. 1, § 18. § Cons, of Tennessee, art. 1, § 21. J Cons, of Kentucky, art. xiii, § 14. EMINENT DOMAIN. 499 is not its construction. The restriction on taking private property without making compensation, is confined to only one branch of the public authority over private rights of property, and does not apply to the power of taxation or to the general police powers of the legislature. These legislative powers are not limited by it, and there are other less important exceptions which we shall be obliged to notice. We have, therefore, to keep as clearly as we can in view, the exact nature of the powers of the State over property. They embrace not only the power of taxation, as well as general control for the p-^r^oses of police, public health, and public morals, t3^^p.so the power of taking private property when any public interest of T^hatever degree calls for it ; and of this demand or exigency, the legislature or sover- eign power of the State being the sole and absolute judge, whether in part or the whole, whether required for the ordinary expenses of government or for rare and extraordinary emergencies, whether absolutely required for the public safety or called for by mere considerations of convenience, the subjection of private property to the State or government is complete and universal. This absolute power of the State over the property of its citizens or subjects, seems to be conceded by all writers, and to be declared under all systems of government. Differences exist as to the right to compensation ; but all agree that when the government demands, private rights must give way, that the property of the indiyidual must be surrendered to the general welfare. The power which commands and enforces these concessions, seems to derive its 500 EMINENT DOMAIN. name from a- French original, and is known by the term eminent domain.* The abstract power is, as I have said, universally recognized. As to the limitations on the power, differ- ent systems recognize very different rules. In France, the right to compensation is universally and peremp- torily declared.f In England, though in no country is a wiser and more scrupulous respect paid to private rights, still their doctrine of parliamentary supremacy recognizes no absolute right to remuneration. " If the legislature thought it necessary," said Lord Kenyon,. spe,aking of turnpike acts, paving acts, and navigation * Vattel says, seo. 1, c. xx., § 244, " Le droit qui appartient A la soeieU ou au souverain, de disposer en cog de neeeasiU etpour lesalut public de tout hien renfermi dam Vetat, ia/ppelle Domairie Eminent. Ge droit faitpartie du smtverain pouvoir." See Domat as to the right to take private propertyj Des Loix Civiles, lib. i., tit. ii., sect, xiii., 432, et seq. He cites a curious old ordinance of 1303, in the time of Philippe le Bel ; Et possesaorea ilia- rum possemonum ad eas demittendMmjusiopretio compellantur. •' All separate interests of individuals in property are held by the govem- ment under the tacit agreement or implied reservation that the property may bt taken for public use upon paying a fair compensation therefor, wheneret the public interests or necessities require that it should be so taken. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government or in the aggregate body of the people in their sovereign capacity ; and they have a right to resume the possession of the property in the manner directed by the constitution and laws of the State, whenever the public interests require it. The only restriction upon this power is, that the property shall not be taken for the public use without just compensation to the owner, and in the mode prescribed by law. The right of emin&it domain does not, however, imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full com- pensation, where the public interests will be in no way promoted by such transfer." Beekman vs. Saratoga and Schenectady R. R. Co., 8 Paige, 73. See also, as to eminent domam, Varick vs. Smith, 6 Paige, 159. t The Code Napoleon (book ii. tit. ii. 645) says, " No one can be com- pelled to give up his property except for the public good, and for a just and previous indemnity." See also Kent's Comm. ii., 339, note. EMINENT DOMAIN. 501 acts, " as they do in many cases, they would enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, prbvided the commis- sioners do not exceed their jurisdiction."* In this country, we have thought it wise to put restraints on the exercise of this power, and these restraints are expressed in the constitutional clauses which I have above cited. But, as I have said, the constitutional limitation which requires compensation for the sacrifice of private! property, does not apply to every branch of- the power of eminent domain. It is only intended to operate on the exercise of the legis- lative power where property is taken for objects of general necessity or convenience, such as roads, canals, public buildings, public works of all kinds, and does not attach to the power of taxation, or the general au- thority over property with reference to public health or public morals. As we shall see hereafter, certain special constitutional limitations have been imposed by some of the States on the power of taxation ; but neither that nor the general police powers are affected by the clauses in regard to the taking of private property. In regard to taxation, it is well settled that neither the provision that private property shall not be -taken for public use without just compensation, nor the other clause, which we shall hereafter examine, declaring that no person shall be deprived of his property without, due process of law, limits the legislative power. Therefore, an act of the legis- * Governor, &c. of Cast Plate Manufacturers m. Meredith, 4 Term, 795 ; -action against defendants as commissioners under a paving act ; and held that they were not liable. 502 TAXATION. lature directing a certain tax to be assessed upon a particular town, is constitutional and valid.* So, too, in Pennsylvania,, in a case already cited {ante^ p. 185), it tas been decided that, no matter how une- qually or oppressively the power of taxation be exer- cised, the courts have no power to interfere.f Under this head of taxation is now generally under- stood to be embraced, the mode usually practiced in this country of assessing the expense of local improve- ments ; and thus property is daily taken for opening streets and other objects of a similar nature, often without any pecuniary compensation, and the bur- then thrown on a particular and small locality. In opening streets and making other similar local im- provements in the United States, it is the general practice when authorizing the work to be done, to cause the expense, which includes the value of the property taken, to be assessed exclusively upon the owners of real estate immediately adjacent to the projected improvement. These lands are adjudged to be benefited by the improvement, and are taxed in proportion to the aniount of such benefit; and the whole tax and expense is levied upon them. It has been urged that this mode of disposing of private property was a violation of the clause declaring that private property was not to be taken without just compensation, and that it disregarded the proper prin- ciples of taxation. But all these objections have been overruled, and it has been decided in many of the States, that in the absence of any express constitutional * People ««. Mayor of Brooklyn, 4 Corns., 428 ; Town of Guilford ««., Cornell, 18 Barb.. 615; ^own of Guilford «s. Supervisors of Chenango-" Co., 3 Kernan, 147; Ante, p. 414. t Kirby rs. Shaw, 19 Penn. (7 Harris), R., 258. LOCAL IMPROVEMENTS. 503 provision upon the subject of taxation, the power to tax implies the power to apportion the taxation ; and that the remedy against unwise and unjust mades of tax- ation lies with the legislature and with the people, and not with the judiciary* So in Pennsylvania, the doubts seem now set at rest, and the constitutionality of these proceedings maintained.f In Connecticut, also, it has been decided that a statute authorizing a municipal corporation to grade and improve streets, and to assess the expense among the owners and occupants of land benefited by the improvement, in proportion to the amount of such benefit, is a > constitutional law ; that such an assess- ment is an exercise of the power of taxation vested in the State government, and is not in conflict with any provision of the constitution. The same rule applies where power is given to lay out highways, streets, and avenues ; and though in cases of this kind the assess- ment for benefit,, as it is called, may equal the value of the property taken for the improvement, still it is said not to conflict with the provision that private property shall not be taken without compensation. Where an assessment for benefit falls on the same person from whom property is taken, it is said that * Pe6ple vs. Mayor of Brooklyn, 4 Comstock, 419 ; overruling the People vs. The Mayor of Brooklyn, 6 Barb., 214; Livingston vs. The Mayor of New York, 8 Wend., 85 ; In the Matter of Opening Fttrman Street, 17 Wendell, 649. See in Kentucky, Sutton's Heirs vs. Louisville, 5 Dana, 30 ; City of Lexington vs. M'Quillan's Heirs, 9 Dana, 613. t M'Master vs. Commonwealth, 3 Watts, 292 ; In the Matter of the District of the City of Pittsburgh, 2 Watts & Serg., 320 ; In the Matter of Fenelon's Petition, 7 Penn. 173 ; and Extension of Hancock Street, 18 Penn. (6 Harris) 26, where it is declared to be no longer an open question in Pennsyl- vania ; Schenley and Wife vs. City of Allegheny, 25 Penn., 128, affirms Sharpless vs. City of Philadelphia, 9 Harris, 147, as to the paving and grading of streets in cities, and the assessment of the expense of the same. 504 LOCAL IMPROVEMENTS. the estimated benefit is tlie compensation for tlie land taken ; but that this is only a mode of taxation* In Michigan, too, it has been decided that the terms "private property" and the "property of individ- uals," in the constitutional provisions prohibiting the taking of property for public use without compensa- tion, &c., were not intended to include money raised by assessment for the purpose of paving streets ; and that money attempted to be raised for these purposes is not sought to be taken by virtue of the sovereign right of eminent domain, but in the exercise of the sovereign power of taxation. And the provisions of the constitution relative to taking private property for public use or improvement, and the mode of ascer- taining the compensation therefor, does not apply to to such assessment.f In Louisiana, however, where the constitution (art. 105) provides that " taxation shall be equal and uni- form throughout the State,"J the system of assessing the expense of street assessments and other municipal improvements on such neighboring proprietors as are most benefited by them, has been pi'onounced uncon- stitutional, on the ground that in that State the right of eminent domain and the power of taxation are both limited under the constitution ; and that the legislature has no power of apportioning taxation for * Nichols vs. Bridgeport, 23 Conn., 189 ; The People ex rel. Griffln vs. The Mayor, 4 Corns., 419. t Williams- Bs. Mayor of Detroit, 2 Michigan, 660. A distinction is here taken between the power of eminent domain and that of taxation. I believe that in strict language the power of eminent domain, as the general phrase, expresses the absolute power of the State over private property for all purposes ; and that the power of taxation is but a branch of it. But see post, p. 508 ; Commonwealth vs. Alger, 7 Gushing, 53, 85. I See also Camming vs. Police Jury, 9 La. Ann R., p. 503. POLICE POWERS. 505 public purposes whatever, of a local nature, except on tte principles of equality and uniformity* In Pennsylvania, it lias been decided that an act authorizing municipal corporations to subscribe to the stock of a railroad corporation, is within the constitu- tional powers of the legislature ; that it is not a ,taking of private property for public use without compensa- tion, because though the property of the citizen may be more heavily taxed than before, it is not taken; and that the acts of this kind fall within the scope of the legislative power to permit the appropriation of a local tax within the consent of the local authorities,f and the same point has been decided in Louisiana, after much deliberation.^ It being thus settled that the clause in regard to private property does not apply to taxation, we have next to notice a further limitation of its sweeping phraseology. The clause prohibiting the taking of private property without compensation, is not in- tended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary £|c the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full * Municipality No. 3 ■»«. White, 9 La. Ann. R., 447. t Sharpless W Tlie Mayor of Pliiladelphia, 21 (9 Harris) Penn., 147. Black, C. J., Woodward, and Enox, concurred in the judgment. See to same point, Moers w. City of Reading, 21 Penn., 188. In the last case, Lewis and Lowrie, JJ., dissented. The discussion is able and interesting. t Police Jury vs. M'Donogh's Succession, 8 La. Ann. R. 341 ; New Orleans «». Grarhle, 9 L. Ann. R., 561. See also in iEentucky, Slick ««. Maysville and Lexington R. R. Co., 13 B. Mfjinroe, p. 1 ; Justices of Clarke Co. m. The P. W. & K. R. Turnpike Co., M B. Munroe, 143. 506 POLICE POWERS. enjoyment of private property, and though no com- pensation is given. So, an act authorizing harbor- masters to direct vessels where to station, though interfering with private engagements, is not a violation of the constitution.* A statute of Massachusetts which, without compensation, imposes a penalty on any person who shall take, carry away, or remove any stones, gravel, or sand from any of the beaches in the town of Chelsea for the protection of the harbor of Boston, and the prohibition of which extends as well to the owner of the soil as to strangers, has been held constitutional and valid ; this is not such a taking of private property and appropriating it to public use, as to render it void because no compensation is pro- vided for the owners, upon the ground that it is only a just and legitimate exercise of the power of the legis- lature to regulate and restrain such particular use of property as would be injurious to the publicf In the same State, it is well settled that the legis- lature has power to make regulations in the nature of police regulations, which, though affecting the value and even the enjoyment of private property, are helc^iot to conflict with the constitutional provisions devised to secure and protect private property. By an ordinance passed in 1641, by the colony of Massa- chusetts, the proprietors of upland bordering on the sea have an estate in fee in the adjoining flats above low-water mark, and within one hundred rods of the upland ; but notwithstanding this right, the legislature has power to establish lines in the harbor of Boston, * Vanderbilt v». Adams, 7 Cowen, 849. t Commonwealth vs. Tewksbury, 11 Met. 56. It was well said in this case, to be extremely difGcult to lay do jrn any general rule. POLICE POWERS. 607 beyond wHcli no wharf shall be extended or main- tained, and to prohibit building beyond such lines; and such statutes, although they make no compensa- tion to the proprietors, are not unconstitutional as taking private property and appropriating it to public uses without compensation* In this case the Court said : We think it is a settled principle, growing ouVn the nature of ■well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well that in the interior as that bordering on tide- waters, is derived directly or indirectly from the government, and held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable liniitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. • This is very diflFerent from the right of eminent domain, — the right of a government to take and appropriate private property to public use whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain, and establish all man- ner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not ffipugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easiei; to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well-ordered governments, and where its fitness is so obvious that all * Commonwealth vs. Alger, 7 Cush. 5S, per Shaw, 0. J. 508 POLICE POWERS. well-regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material ; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades ; to prohibit the raising of a dam and causing stagnant water to spread over meadows near inhabited villa^^ thereby raising noxious exhalations, injurious to health and dangRus to life. Nor does the prohibition of such noxious use of property, a pro- hibition imposed because such use would be injurious to the public, although it may diminish the profits of the owner, make it an appro- priation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building, and cover it with shingles, he might obtain a larger profit of his land than if obliged to build of stone or brick, with a slated roof. If the owner of a warehouse in a cluster of other build- ings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building for a small-pox hospital or a slaughter house, he might obtain an increased rent. Eut he is restrained, not because the public have occasion to make the lik§ use or to make any use of the > property, or to take any use of the property, or to take any benefit or profit to themselves fi:om it, — but because it would be a noxious use, contrary to the maxim, sic utere two ut alienum non ladas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner ; and it is therefore not within the principle of property taken under the right of eminent domain. The distinction, we think, is manifest in principle ; although the facts afid circumstances of different cases are so various that it is often diflB- cult to decide whether a particular Zeroise of legislation is properly attributable to the one or the other of these two acknowledged powers.* There is now no occasion and no ground to deny or question the full and sovereign power of the commonwealth, within its limits, by legislative acts to exercise dominion over the sea and the shores of the * Oommonwealth vs. Alger, 7 Gush. B8, 84. I have already, ante, p. 600, called attention to what I suppose to be the true rules of terminology in regard to eminent domain and taxation. POLICE POWERS. 60& sea, and all its arms and branches, and the lands under them, and all other lands flowed by tide-water, subject to the rights of riparian owner- ship. Whether any portion of this sovereignty reniained in the British crown, it is now immaterial to inquire ; for it is quite certain that the entire right of property in the Boil, was granted to the colonists in their aggregate capacity ; and if any power remained in the crown, it was that of dominion and regulation of the public right ; and this was wholly determined by the Declaration of Independence, acknowledged and acceded to by the treaty of peace, sanctioned by an act of Parliar ment. This right of dominion and controlling power over the sea and its coasts, shores^ and tide-waters, it is settled that it vested in the several States in their sovereign capacity respectively, and was not transferred to the United States by the adoption of the Constitution intended to form a more perfect union. Special jurisdiction has been from time to time vested in the General Government for special purposes ; but the general jurisdiction remains with the several States, subject, hov^ver, to such regulations as Congress may make in the exercise of their admitted powers to regulate foreign cammerce and commerce among the States. Such is the principle determined by the Supreme Court of the United States, the ultimate tribunal to decide questions of this kind.* So it has been expressly decided in the same State that the clause in the constitution declaring that private property is not to be taken for public use without com- pensation, does not apply to the laws declaring that certain property shall be destroyed or confiscated as being injurious to the. interests of public policy, as liquor or gunpowder. It is competent for the legisla- ture to. declare the possession of certain articles of property, either absolutely or when held in particular places and* under particular circumstances, to be un- lawful, because they would be injurious, dangerous, or obnoxious.f * Commonwealth w. Alger, 7 Gushing, 53, 83, citing New Orleans vs. The United States, 10 Pet. 662, 737 ; PoUard vs. Hagan, 3 How. 212. t Fisher w. M'Girr, 1 Gray, pp. 26, 41, 510 PUBLIC WATERS. On the same general grounds, the power of the legislature over the great internal communications of a State, whether by land or water, has been asserted. It has been contended that a navigable river is a public highway, and that the legislature cannot inter- fere with its use without adequate indemnity. But the contrary has been decided. In Massachusetts, an act of the legislature authorizing the building of a bridgef over navigable waters within the limits of the commonwealth, has been held not unconstitutional. The legislature are to determine when the public con- venience and necessity require such an obstruction to navigation, and upon what terms and conditions it shall be allowed. It has power to regulate aad control by law, ail public highways and navigable waters.* So in Maine, it has been held that the legislature may lay out a highway or change the course of a public river, when the public convenience requires it, although private rights may be thereby affected.f "We have next to consider another limitation on the general words of the clause under consideration. The constitutional restriction on legislative action in regard * Commonwealth vs. Breed, 4= Pick. 464. In this case it was insisted that the act was obtained by fraud. The court said, " If a legislative act may be avoided for this cause, yet fraud is always a question of fact pecu- liarly within the province of a jury, and cannot be inferred by the court." The question whether and to what extent it can be shown that a given legislative act was obtained by fraud, seems stiU open. • In regard to strictly private bills, strong arguments may be urged ; but there seems, even in these cases, great diflBculty in asserting the power of the judiciary over the subject. See Stark «s. M'Gowan, 1 Nott & M'Cord R. 400, n. ;. t Spring w. Russell eJ al, 7 Greenleaf, 292 ; where held that a plain tiff had no right of action against certain canal proprietors who, under the authority of the legislature, had turned the][channel of Saco River, and thus prevented the plaintiff from floating his logs down*the river, as he otherwise would have done. INCHOATE RIGHTS. 611 to private property, does not prevent the sovereign power from acting upon personal rights that are not vested at the time of the passage of the law. So in regard to the husband's interest in the wife's property, it has been held that as to real property belonging to her at the time of the marriage, he takes, by the rules of the common law, a vested interest which no subse- quent legislation can defeat; but as to her future acquisitions they may be regulated by law, — ^in other words, he takes whatever interest, if any, that the legislature before she is invested with them may think proper to prescribe. All prospective possible rights arising from existing le^slation, are liable to be abridged or revoked by future legislation ;* and consequently they do not conflict with the legislative provisions as to the obligation of contracts, nor with those relating to the inviolability of property.f So" again in regard to mere inchoate rights, as of dower during coverture, the right can be divested or regulated by an act of the legislature, at any time during the husband's life. J Having arrived, therefore, at the result that the constitutional restrictions upon the power of eminent domain do not apply to those branches of it which regulate taxation and police enactments, nor affect rights not actually vested, we have next to observe that the power to take is universal and absolute : it applies to every species of property, and the legisla- ture is the sole judge of the exigency calling for the interposition of its authority. * Sleight M. Read, 18 Barbour, 159. t White vs. White, 5 Barb. 474 ; Blood vs. Humphrey, 17 Barb. 660. i Moore vs. City of New York, 4 Sandf. 461. 512 ALL PROPERTY CAN BE TAKEN. First, all property can be taken, lio 'matter whether real or personal, whether susceptible of manual pos- session or a mere chose in action. So in Pennsyl- vania, it has been held, where land is taken for a railroad, that the interest which tenants hold under a covenant for a renewal of their leases, is a proper sub- ject of compensation.* Thus a franchise to build and maintain a toll-bridge, may be appropriated, and the right of an incorporated company to maintain such a bridge under a charter from a State, may, under the right of eminent domain, be taken for a highway ; and so of a railroad.f So too in Vermont, it has been decided that an act of the legislature authorizing the Supreme and County Courts to take the fran- chises of a turnpike corporation for a public highway, on making compensation, is constitutional. J So in New Hampshire, it has been held that the franchises of a corporation may be taken by virtue of the exercise of the power of eminent domain.§ As the power to take is universal, so it is absolute : that is to say, the legislature are the sole judges of the existence of the exigency which demands the sacrifice of the rights of individuals. " I admit," says Mr. Chancellor Walworth, "that the legislature are the sole judges as to the expediency of exercising the right of eminent domain for the purpose of making" * North Penn. R. E. Co. vs. Davis, 26 Penn. R. (2 Casey) 238. t West River Bridge vs. Dix, 6 How. 507 ; Richmond F. and P. R. R. vs. Louisa R. R., IS How. 88 ; Boston and Lowell R. R. Corp. vs. Salem and Lowell R. Co. 2 Gray, 1. X Armington et al. vs. Barnet et al, 15 Verm. 875 ; see the sagacious remarks of Mr. J. Redfield, in this case, on the Charles Eiver Bridge Case, 11 Peters, 589. § Backus m. Lebanon, 11 N. H. R. 19. NECESSITY FOR TAKING. 513 public improvements either for the benefit of the inhabitants of the State generally, of of any particular section thereof."* " It is the undoubted and exclusive province of the legislature," says the Supreme Court of the State of Maine, " to decide when the public exigencies require that private property be taken for public uses."f , In New York, it has been decided that an act au- thorizing commissioners to enter upon and appropriate the lands of individuals for the purpose of draining a swamp, is a lawful exercise of the power of eminent domain, and the taking of such lands as far as is neces- sary, is a lawful taking of the same for public use. It is for the legislature to judge of the degree of the necessity which exists for the exercise of the right of eminent domain ; and the courts will not interfere to restrain the commissioners by injunction, unless they are violating the plain and manifest intent of the statute, or are proceeding in bad faith.J Thus far we have observed that the clause in regard * Varick vs. Smith, 5 Paige, 160. t Spring «s. Russell, 7 Greenl. 292. I Hartwell vs. Armstrong, 19 Barb. 166. But the condition of providing a full compensation to the owner, is fundamental and imperative; and where an act authorizing the draining of a swamp, provided that the dam- ages or compensation to the owners of lands taken, should be made col- lectable and payable by assessing the same on the several owners of the land drained, according to the number of acres respectively owned by each, — it was held that this was not the just compensation required by the consti- tution, because the burden ought to be borne by the public at large bene- fited by the improvement, and because the apportionment by area of surface was inequitable ; and the act was held yoid. The constitutionality of a law to drain wet lands at the expense of others, is discussed in Woodruff vs. Fisher, 17 Barb. 224 ; and it was intimated that unless the work was for the public good and not for private benefit, the act could not be sustained; but it was said that perhaps after such an act of legislation, it is to be presumed that the work will be beneficial to the owners of the lands generally. 33 514 PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. to private property has no effect upon legislative su- premacy in regard to taxation or general police povi^efs — however these powers may be affected by other spe- cial constitutional clauses, — nor in regard to rights not vested at the time of the passage of any given legisla- tive enactment. "We have also stated that the power to take private property applies to all property, and that the legislature is the sole judge as to the fact whether the public welfare demands the sacrifice of the private right. We have still to consider certain other questions which have presented themselves in. regard to the power of the State legislatures over pri- vate property. And of these the most important is whether, under our forms of government, and under the operation of the constitutional clause above cited, pri- vate property can be taken for any but public purposes. It seems to be the sounder construction, that the declaration that private property shall not be taken for public use without compensation, impliedly prohib- its private property being taken for private use at all. So, in New York, the Supreme Court has said, " The constitution, by authorizing the appropriation of pri- vate property to publio use^ impliedly declares that, for any other use^ private property shall not be taken from one and applied to the private use of another.* So, again, in the Court of Errors, Mr. Senator Tracy said, that the words "private property shall not be taken for public use without just compensation, should be construed as equivalent to a constitutional declara- tion that private property, without the consent of the * In the matter of Albany Street, 1 1 Wend., 151. In this case it was held that the corporation of the city of New York had no power to take more of the land of an individual for the purpose of a street than was actually required for that purpose. PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 515 owner, shall be taken only for the public use, and then only upon a just compensation."* This accords with the principles in regard to the nature of a law^ which we have already discussed at I'ength. An appropriation of private property for private purposes, is a mere- abuse of the powers of legislation. An act framed for such purposes has not the character of a law, and is prohibited by the general ideas which define and limit the proper functions of the legislature. Indeed, in the same State it has been expressly decided that a stat- ute which authorizes the transfer of one man's prop- erty to another, without the owner's fconsent, is uncon- stitutional and void although compensation be made. So, a city corporation cannot, for the purpose of making a street, take the whole of a lot, if a portion only be wanted for the object; and the act under which the proceedings are had must be read as if con- taining a proviso that the owners consent as to the part not actually needed, — otherwise the act is unconstitu- tional and void.f Having thus considered the nature of the power of eminent domain so far as it is intended to be lim- ited by the constitutional restriction, before proceed- ing to the second head — ^that of delegation of the power — some other decisions in regard to this constitu- tional clause, growing out of circumstances peculiar to the several States of the Union, may be noticed here. In New York it ha^ been held that the stat- * Bloodgood vs. The Mohawk and Hudson R. R. Co. See 18 Wend. 9 and 59.; see, also, matter of John and Cherry streets, 19 Wend. 659, and Varick m. Smith, 5 Paige, 137. t Embury w. Conner, 3 Coms. 511, and cases cited. The same doctrine is asserted in Taylor «s. Porter, 4 Hill, 140 (ante) ; Beekman vs. Saratoga and Schy. R. R. Co., 3 Paige, 73 ; and Varick »s. Smith, 5 Paige, 159. 516 SPECIAL CASES. I utory provisions whicli authorize towns to determine wlien cattle may run at large on highways, are uncon- stitutional and void, inasmuch as they authorize the appropriation without com'pensation of the grass and •herbage on the track of highways, which, subject to the public right of way, are the property of private proprietors.* In the same State, the general highway act giving to commissioners of highways the power to lay out new roads through wild or unimproved lands, without the consent of the owner of the lands taken, is pronounced unconstitutional and void, because no compensation is made to the proprietors; and has been so recently held, although the power has been sanctioned by statutes and exercised nearly ever since the State had an existence or a government.f In Pennsylvania, it has been the invariable usage, from the first settlement of the commonwealth down to the present day, to reserve six 'acres out of every hundred for roads ; and it is held that this six per cent, belongs to the State, and she may constitution- ally appropriate it to the use for which it was meant without compensation. J In the same State, it has been held, in regard to turnpikes or plank roads, that a 'person on whose land such a road is located can recover damages to an amount which, if added to the present value of his land, would make it worth as much as it was before the road was made.§ An act of the legislature of Massachusetts incorpo- * Tonawanda Railroad Co. vs. Hunger, 5 Denio, 25'6. t Wallace vs. Karlenowefski, 19 Barb. 118; Gould vs. Glass, it. 179. I Plank Road Company vs. Thomas, 20 Penn. R,, 93. § Plank Road Co. .vs. Thomas, 20 Penn. R., 93. DELEGATION OF THE POWER. 517 rated an aqueduct company for tlie purpose of supply- ing a village with pure water, with adthority to take springs ; but the act did not in terms require the corporation to supply,' on reasonable terms, all—per- sons applying for water. It was insisted that this act was unconstitutional, on the ground that it authorized the taking of private property for a use not public. But it was held good, on the ground that if such a corporation should undertake, capriciously and oppres- sively, to enhance the value of certain estates by fur- nishing them with a supply of water, and depreciate that of others by refusing them, it would be a plain abuse of their franchise.* Delegation of the Power of Eminent Domain. — Having thus attempted to define the limits of the legislative power in regard tO private property, the next important question arises, by whom the power must be exercised. It has been insisted that the power of taking property by virtue of the right of emi- nent domain, must be exercised by the State directly, without the intervention of any ii^rmediate agents ; but all doubts in regard to thiy are now put at rest, and the contrary doctrine firmly established. So; it has been decided in New York, that the right of eminent domain may be exercised in regard to rail- roads and other similar public works, either directly or through the medium of corporations or joinifc-stock companies ; while at the same time it has been held, as we shall - see hereafter, that statutes authorizing the appropriation, in order to be constitutional and valid, must make provision for the assessment and 518 DELEGATION OF THE POWER. payment of tlie damages of the land owner.* " In all the cases where individuals or corporate bodies are authorized to take private property for the purpose of making highways, turnpike roads, and canals ; of erecting and constructing wharves and basins; of establishing ferries ; of draining swamps and marshes, and of bringing water to cities and villages, the object of the legislative grant of power is the public^ benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies or of individual enterprise."f In Connecticut, it has been said, "It is now established by the current of decisions, that the property of indi- viduals taken by railroad feompanies and similar cor- porations under their charters is, from the public benefits resulting therefrom, to be deemed to be taken for the public use within the constitutional provision on that subject.''^ In Michigan, it has been said, " In the second of the articles of compact, the ordinance of 17 8 7, it is among other things provided that no man shall be deprive"of his liberty or property, but by the judgment of his peers or the law of the land; or should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full conlpensation shall I be made for the same. This provision was evi- dently framed with a jealous eye to arbitrary execu- tive power, and was not designed to restrict judicial * Bloodgood ««. Mohawk and Hudson R. R. Co., 18 Wend., 9 ; S. C. in. error, 18 Wend,, 17, 78. t Beekman vs. The Saratoga and Sch'y R. R. Co., 3 Paige, 75, per Walworth, Ch. I Bradley vs, N. Y. and N. H. R. R. Co., 21 Conn., 294. WHEN PROPERTY DEEMED TAKEN. 519 or legislative authority, but rather to limit and confine the power ove» persons and property to them ;" and under the above clause it was held, that the territorial legislature could lawfully authorize a railroad corpo- ration to take private property for their use ; in other words, that the power of eminent domain could be delegated* In Tennessee, it has been held that the taking of the land of an individual for the erection of a grist- mill thereon, at which all the inhabitants of the neighborhood should be entitled to have their grind- ing done in turn, and at fixed rates, was such a public use as to authorize the exercise of the right of eminent domain, though the whole property and profits of the mill were to belong to the individual proprietora,^on the ground of the public utility of having such a mill, where each individual had an equal right to be served.f When property is deemed to he taken. — The next principal subject of inquiry in regard to the guarantee of private property, is as to what taking or appropri- ation the limitation applies. It seems to be settled that, to entitle the owner to protection under this clause, the property must be actually taken in the physical sense of the word, and that the proprietor, is not entitled to claim remunera- tion for indirect or consequential damage, no matter how serious or how clearly and unquestionably result- * In this case, it was also held that it was no objection to the charter of a railroad, in a constitutional point of view, that it did not provide for notice to the owners of the lands, of proceedings to assess the damages for taking-the same. Swan vs. Williams, 2 Michigan, 437. t Harding vs. Goodlet, 3 Yerger, 41. In New Hampshire it has been said by the Supreme Court of that State, that the power of eminent domain may be exercised either through the action of general laws or of judicial tribunals. Bachus vs. Lebanon, 11 N. H. 19. 520 WHEN PROPERTY DEEMED TAKEN. ing from the exercise of the power of eminent domain. This rule has been repeatedly declared fc. many of the States of the Union. So, in New York, the conse- quential damages resulting from the raising of the grade of a city street sustained by adjacent proprie- tors gives no action against the railroad corporation, acting under the authority of the legislature and with the consent of the city government.* So, in the same State, in taking land for railroad purposes, the only right of the party whose property is entered on is to be paid for the land taken, and that without any reference to the fact that the land of whicli he is deprived is taken for the construction of a railroad, and that its use by the railroad company may be seri- ously injurious to the rest of his adjacent property.f So, again, the damage likely to result from a road to a mill on the proprietor's adjacent land, is not a subject of inquiry. J So, again, in New York, a franchise may be said to be " taken within the meaning of the con- stitutional guarantee of private property, when the owner is deprived of the power or means of exercising it ;" but it is not " taken" when its emoluments are merely diminished by an improvement which does not destroy or impair such power or means. This is on the ground that, when the public good calls for new grants, it is right they should be made, although they may become rivals to pre-existing establishments made under legislative authority. And thus it has been held, that where a public avenue was opened across a * Radcliff'sEx'rs. vs. Mayor &c., of Brooklyn, 4 Comstock, 195 ; Chapman 118. Albany and Schenectady R. R. Co., 10 Barb., 360; see, also. First Bap- tist Church m. Utica and Schenectady R. R. Co., 6 Barb., 313. t Albany Northern Railroad Company vs. Lansing, 16 Barb., 68. I Canandaigua and Niagara Falls R. R. Co. vs. Payne, 16 Barb., 273. WHEN PROPERTY DEEMED TAK^. 621 stream, and nearly alongside of a toll-bridge, the apprehended diminution of the tolls on the bridge is not a grievance for which the bridge proprietors are entitled to redress, the statute granting their franchise not having conferred an exclusive right ; and it was also held that, as the proposed avenue did not occupy any part of the site of the bridge, but merely passed over one end thereof, and occupied a portion of the causeway leading to it, the proprietors were not enti- tled to compensation, it not-appearing that the appro- priation of the part of the causeway required for the avenue would, of itself, diminish the travel over the bridge or throw any physical obstacles in the way of crossing it.* So, in Pennsylvania, in regard to taking private property for railroads, it has been decided, in making compensation, that consequential damages are not to be estimated unless provided for in the act of incorpo- ration; and acts of incorporation are constitutional though no provision be made for such damage.f So, in the' same State, it has been held that, under the constitutional provision declaring that " private prop- erty shall not be taken or applied to public use with- out just, compensation being made," no remedy is provided for damages done by cutting down the grade of a street, although such 'cutting down destroy a building on adjacent property. The Supreme Court, Gibson, C. J., delivering this opinion, said,, that they grieved to say there was no redress ; " the ' constitu- * Matter of Hamilton Avenue, 14 Barb., 405. f Monongahela Navigation Co. m. Coons, 6 W. & Serg. 114; Henry M. Pittsburgh and Allegheny Bridge Co., 8 Watts & Serg. 85 ; MifBn vs. Railroad Company, 16 Penii. 198 ; Reitenbaugh vs. ''Oh'ester Valley Rail- road Co., 21 Penn, 100. 622 WHEN PROPERTY DEEMED TAKEN. tional provision for tlie case of private property taken for public use extends not to the case of property injured or destroyed."* So, in the same State, it has been held the legislature has the power to vacate or close a public street without the consent of those whose private interests may be affected by it, and with- out providing compensation for the injury. The value of property may be taken away by closing the ave- nues which lead to it ; but it is a consequential loss, and must be borne by thos$ who suffer it,f So, in Connecticut, it has been decided that, to entitle a person to the assessment of damages in his favor sanctioned by the laying out of highways, the ^damages must be direct and immediate, producing a legal injury, and not remote and consequential. Thus the loss of the use of a creek, crossed by the highway, for the transportation of merchandise in common with the public, is not a damage for which the claimant is entitled to be indemnified. J In Massachusetts it has been held that a mere entry of commissioners, under an act of the legislature, authorizing certain boundaries to be ascertained, is not unconstitutional though no compensation is provided for the entry. No property is appropriated.! In Maine the compensation provided by statute for damages occasioned by the location and construction of .railroads, has been said to extend only to real estate or materials taken ; and it has been held that for dam- ages indirectly resulting from the legal acts of a char* * O'Connor »s. Pittsburgh, 6 Harr. Penn. R., 187. t Paul M. Carver, 26 Penn. 223. I Clask vs. Saybrook,'21 Conn. 318. § Winslow lis. GifFord, 6 Cashing, 327. WHEN PROPERTY DEEMED TAKEN. 623 tered corporation, the law affords no remedy.* The true construction of the provision has been elabor- ately examined in the State ; and the Supreme Court has there decided that by the taking of property within the scope of this clause, is meant such an appropriation of it as deprives the owner of his title or a part of his title, and that it does not prevent the legislature from authorizing acts operating injuriously to private property and without compensation, unless such property is taken and appropriated or attempted to be taken and appropriated, for the owner.f In Vermont too, the course is to limit the compen- sation to damages sustained by the actual taking of property, all other loss sustained by individuals comes under the head of da/mnum absque injwria^ ftr under the head of sacrifices which individuals must bear for the common benefit.^ *. Rogers m. Kennebec and Portland Railroad Con, 85 Maine, 319. t Cushman w. Smith, 34 Maine, 247. I See Hatch us. Vt. Central R. R. Co., 25 Vermont, 49, where the subject is discussed in an able opinion of Redfleld, J. . For other cases where private property is injured by.the construction and grading of highways and railways, when it is not taken within the clause, see Day et al. vs. Stetson, 8 Greenl. 365 ; Callenderm Marsh, 1 Pick. 418 ; Canal Appraisers vs. The People, 17 Wend. 571 ; Susquehanna Canal Co. M.Wright, 9 Watts & Serg. 9. In England, the disposition seems to be to extend "the protection of private property so as to reach every thing' that injuriously affects it, as where high embankments are made in front of adjacent premises, or where annoyance and injury is caused by the close proximity of a railroad, or by the noise of its engines, and in many other cases. Queen bs. Eastern Counties R. Co., 10 Ad., and El. 681 ; Glover vs. North Staff. R. Co., 5 Eng. Law and Eq. R. 335. The act of the 6 and 7 Will. IV. c. 109, gives remuneration to proprie- tors for lands taken, used, damaged, or injunously affected, in the construc- tion of the ShefBeld and Rotherham Railway Company ; Turner et al. vs. The SheflSeld and Rotherham Railroad Co., 10 Mees. & Wels. 425, where held that the Company was liable to make compensation for dust and 624 WHEN PROPERTY DEEMED TAKEN. To differ from the voice of so many learned and sagacious magistrates, may almost wear tte aspect of presumption ; but I cannot refrain from the expression of the opinion, that this limitation of the term taking to the actual physical appropriation of property or a divesting of the title is, it seems to me, far too narrow a construction to answer the purposes of justice, or to meet the demands of an eq'ual administration of the great powers of government. The tendency under our system is too often to sac- rifice the individual to the community ; and it seems very difficult in reason to show why the State should not pay for property of which it destroys or impairs the value, as well as for what it physically takes. If by reas«n of a consequential damage the value of real estate, is positively diminished, it does not appear arduous to prove that in point of fact the owner is de- drifting frcan the railway station and embankment into the plaintiff's hpuse. The statute & and 9 Victoria, c. 18, 8th May, 1845, entitled "An act for con- solidating in one act, certain provisions usually inserted in acts authorizing the taking of lands for undertakings of a public nature," and commonly called the Land piauses Consolidation Act, provides compensation for land or any interest taken or injuriously affected by the execution of public works; Jind the right to compensation extends to consequential damage. Bast and West India Docks and Birmingham Junctfon Railway «s. Gattke, 3 Man. & Gr. 165; 6 Railway Oases, 871. See also, Glover «s. North Staffordshire Railway Co., 15 Jur. 678, 20 L. J., Q. B. 876 ; where lands held to be injuriously affected by the proximity of the railway and passage of the. trains. See also, Shelford's Law of Railways, by the Hon. Milo L. Bennett, of the Supreme Court of Vermont, where the American cases are also to be found on many subjects connected with railroads. It is not an agreeable observation to make, but I believe it cannot be denkd, that the protection afforded by the English government to property, is much more complete in this respect than under our system; although Parliament claims to be despotically supreme, and although we boast our submission to constitutional restrictions ; so difficult is it to judge of systems until their practical operation is carefully observed. COMPENSATION. .525 prived of property, thougli a particular piece of prop- erty may not be actually taken. Objections of tbe same kind migbt be urged to our system of assessment for local improvements, by which, in too many cases, the only compensation for real estate actually taken, is in an hypothetical and imaginary benefit conferred. It may be true that if the benefit cbnferred by an improvement on adjacent proprietors were not taken into consideration, some inequality would result; but it seems more conformable to equity, and indeed to the language of the constitutional clause, that an indi- vidual advantage should be conferred in a few cases on a citizen, than that in many he should be a direct and certain loser, in consequence of public improve- ments. But considerations of this kind have been silenced by the universal demand for works tending to develop the internal resources of the country ; a general dis- position has been felt not to cramp these entej-prises by a too sweeping or extensive compensation; and the matter can only be now remedied by the insertion of carefully drawn clauses in our legislative acts, which shall give to property the full protection that the constitutional guarantee has failed to secure. Compensation. — In our examination of the clau'se which we are now discussing, the last head to be con- sidered is in regard to the time and mode of making compensation. On this subject much diversity of opinion has existed, as to whether payment or tender of compensation should be made a condition precedent ^ to any act of interference with private property. The only certain guarantee, of course, would be to make compensation, in all cases, precede the first act of inter- ference with individual property ; but it is at once 626 COMPENSATION. apparent, in this as in many other acts of administra- tive power, that coniicting interests present themselves, difficult to be reconciled. In the construction of works of public improvement, as railroads or canals for in- stance, before it is known what lands wUl be wanted, preliminary steps, such for instance as surveys, are indispensably necessary. These preliminary steps are, in themselves, a trespass, and may sometimes, as by the felling' of trees, work actual injury to the proprietor. On the other hand, if payment be not made before the work is actually begun, then, if it be discontinued or left in an imperfect state, the owner might be entirely remediless. In such a conflict of interests the current of decisions seems to tend to establish the rule that, the preliminary steps in regard tO public works may be taken without making compensation, but that, before any definitive act be done toward the construc- tion of the improvement which is in the nature of the assertion of ownership, payment must be made or ten- dered, or a certain -and adequate remedy he provided; and, unless this is done in the act authorizing the work, the statute is wholly unconstitutional and void, and any step taken under it is an unauthorized trespass.* So, in New York, it has been decided, in regard to the exercise by the State of its right of eminent do- main, not to be necessary that payment or compensa- tion should be made before entry ; all that is requisite is that the law should provide a certain and adequate remedy by which the individual can obtain compensa- * In Mississippi, as we have seen above, the clause is explicit that con- pensation shall be first made ; and under that provision it has been there held that payment is a condition precedent to the seizure for public use. Thompson vs. Grand Gulf R. R. and Banking Co., 3 How. Miss. R. 240. COMPENSATIOir. ■ 527 tion without unreasonable delay. The owner is not to be left dependent on the future justice of the legisla- ture to provide compensation for his property * It is sufficient, however, that the law provides for compen- sation, and it is not necessary that the payment of such compensation should be made a condition precedent to entry upon appropriation of the premises.f In Maryland, the constitution provides (art. iii., § 46 ; cmte^ p. 497) that the compensation, as agreed on between the parties or awarded by a jury,- shall be first paid or tendered to the party entitled to such compensation ; and under this it has been held that it is sufficient if provision be made for compensation, first to be paid or tendered to the owner, to be fixed either by contract with him or by the assessment of commissioners, giving, the owner the right of appeal from their decisions and securing a trial by jury in the appellate court ; and the neglect or refusal to appeal is held as a waiver of the right to a jury trial ; and on payment or tender of the compensation assessed, the property may be taken for* public use. The pro- hibition against taking private property for public use until compensation be paid or tendered, means taking the property from the owner and actually applying it to the use of the public, and does npt prevent a sur- ' vey and other necessary preliminary steps. The owner is secure in the use and enjoyment of his property until his damages are regularly ascertained and paid * Bloodgood vs. Mohawk and Hudson E. R. Co., 18 Vend., 9 ; Baker r». Johnson, 2 Hill, 342; People w. Hayden, 6 Hill, 359; Rexford m. Knight,! Kern. 308. t People vs. Hayden, 6 Hill, 359 ; Smith vs. Helmer, 7 Barbour, S. C, R. 416. 528 . COMPENSATION. / or tendered ; and this satisfies the (Constitutional pro- vision* So, in Maine, it has been held that the legisla- ture may authorize a temporary occupation of property, as an incipient proceeding, without compensation; but before the taking is completed, payment must be made or tendered.-}- When the power of taxation in a municipal corpora- tion is so limited as to be inadequate to pay the dama- ges occasioned by the laying out of a street within a reasonable time, the Supreme Court of Pennsylvania has held that it would restrain the opening of the street by injunction till security for proper compensation should be given.J The mode of making compensation is next to be considered. It was said, in an early case, that the legislative discretion was absolute only as to the ex- istence of the necessity to take private property ; that as to the amount of compensation, it could only be arrived at in one of three ways : (1.) By the parties : that is, by stipulation between the legislature and the proprietor. (2.) By .commissioners mutually elected by the parties. (3.) By the intervention of a jury. And in this case it was held, that an act appointing commissioners at the mere pleasure of the legislature, * Stewart vs. The Mayor, 7 Maryland, 601. t Cushman lis. Smith, 34 Maine, 247. For cases as to whether pay- ment must precede or be. simultaneous with taking, see Hooker «s. The New Haven and Northampton Co., 14 Conn. 146 ; Smith m. Helmer, 7 Barb., 416; People vs. Hayden, 6 Hill, 3S9 ; Rubottom vs. M'Olure, 4 Blackf., 505 ; Thompson vs. Grand Gulf R. R. and Banking Co., 8 How. Miss., 240 ; Pittsburgh vs. Scott, 1 Penn. 309. In England it has been decided, under a railroad act providing for compensation to be made for all injury done, that trespass could not be brought till damage was actually sustained, Thick- nesse M.Lancaster Canal Co., 4 Mees. and Wels. 472. t Keene vs. The Borough of Bristol, 26 Penn., 46. COMPENSATION. 529 and jto make compensation in vacant lands, was for both reasons unconstitutional and void* But it does not seem now to be necessary that the com- pensation should be assessed by a jury, in the common- law sense of the phrase. Mr. Chancellor Walworth, in the Court lof Errors in the St^ate of New York, has used this lajiguage : " The mode of ascertaining dama- ges by commission (i. e. commissioners appointed by the governor) has been adopted by the legislature in a great variety of cases ; and I can see nothing in the provisions of the constitution which render such a course exceptionable." * ' * " The provision of ^he constitution as to the right of trial by jury, has no relation to cases of the kind now under considera- tion."+ The constitution of New York declares that when private property is taken the compensation shall be ascertained by a jury or by not less than three com- missioners appointed by a court of record.;}: This pro- vision is not satisfied by a Sitj charter which author- izes the common council to appoint five disinterested freeholders to appraise and fix the compensation in regard to a public work; and the act is unconstitu- tional.§ Under this same provision, it has been also decided that by this section is not meant a common- law jury, ^nd that unanimity is not required;' but that the action of a majority of twelve appraisers satisfies the clause, the Court of Appeals using this language :|| * Van Home's Lessee vs. Dorrance, 2 Dall. 313, 315. f Beekman vs. Saratoga and Schy. R. R. Co., 3 Paige, 75. X Cons. art. L, § 7, ante, 496. § Clark vs. City of Utica, 18 Barb. 461. I Cruger vs. Hudson R. R. Co., 2 Kern. 196, per Johnson, J. 34 530 COMPENSATION. The question then remains, whether these appraisers are a jury- within the meaning of the constitution. If that term had not acquire($ a peculiar meaning when applied to this class of cases, by prior leg^- lative usage, and had not been continually in use in that special sense up to the time of the convention by which the constitution was framed, I should, without any doubt resting on my mind, be of opinion that the peculiar tribunal provided wy this act, was not a jury. That term^ when spoken of in connection with trial by jury in the second section of the same article, 'imports a jury of twelve men whose verdict is to be unanimous. Such must be its acceptation to every one acquainted with the history of common law, and aware of the high estimation in which that institution so constituted, has for so long a period been held.- But from an examination of the statutes upon the subject of taking ^jrivate property for public purposes, during a period of twenty years immediately preceding the sitting of the convention, it is apparent that the term " a jury" had been in frequent use, as descriptive of a body of jurymen, drawn in the ordinary mode of drawing juries, to whom was committed the appraisement of damages for private property taken for public uses, and whose decision was to be made by a majority. It seems to have been thus used because the term was descriptive of the civil condition of the persons composing it, and by way of distinguish- ing between such a body of jurymen and the commissioners appointed by courts, under many other act^ to perform the same functions. "V^e have been furnished with references to many of these acts, by the coun- sel for the defendants. These instances are certainly sufficient to establish the position that at the time of the convention there was a known legislative usage in respect to this subject, according to which the term "jury" did not necessarily import a tribunal consisting of twelve men acting only upon a unanimous determination, but on the contrary was used to describe a body of jurors of different numbers, and deciding bj^majorities or otherwise, as the legislature in each instance directed. The conven- tion ought, therefore, to be deemed to have used this term in the sense in which it was then known to the law, and to have selected out of the- modes of proceeding theretofore in use in taking private property, those- two modes which they thought best calculated to secure both public and private rights, — appraisement by commissioners, or by juries, giving to this latter term not the restricted meaning which belongs to it when used in reference to trial, civil or criminal, but the broader sense which it had acquired by legislative use. Had they intended to confine it tO' COMPENSATION. 631 the narrower meaning, familiar ^ they were with the previous practice upon the subject, I think they would have found clear terms to express that intention. As to the kind of property or currency in wMcli compensation should he made, it was intimated in an early case hj the Supreme Court of the United States, that no just compensation could Tbe made except in money, on the ground that money is the common standard by which all values are ascertained ;* bnt in New York it has teen expressly decided that the benefit accruing to a person whose land was taken for a street, might be set off agaiast the loss or damage sustained by him by the taking of his property for a street, and if equal to the damage or loss, it was a just compensation for the property taken, to the extent of such benefit ;f and a similar residt has been arrived at in. Pennsylvania.^ Indeed, in the latter case, it was intimated " that it should rest in the wisdom of the legislature to determine the nature and kind of com- pensation to be made ;" but there seems no good reason for permitting the mere legislative discretion to be the supreme arbiter of the meaning of the constitutional provision in this, any more than in any other respect. The compensation, to be constitutional must be a just one. Some special rules have here to be noticed. In Massachusetts, in estimating the damages for land taken for a highway or railroad, any direct or peculiar benefit or increase of value accruing therefrom to land * Van Home's Lessee vs. Dorrance, 2 Dall. 313, said in Satterlee vs. Matthewson, 16 Serg. & Rawle, 179, to have been questioned, t Livingston vs. The Mayor, &c., 8 Wend. 85. X M'Master vs. The Commonwealth, 3 Watts, 292. 532 COMPENSATION. of the same owner adjoining or connected with the land taken, and forming part of the same parcel or tract, is to be considered by the jury and allowed by way of setrojff; but not any general benefit or increase of value received by such land in common with other lands in the neighborhood, or any benefit to other land of the same owner, though in the same town. And the time at and from which the benefit accruing to the owner of land taken for a highway or railroad, is to be estimated, in assessing his damages for such taking, is that of the actual location of the work* It has been held in New York, that where the right of eminent domain is once exercised and lands taken for a public use, as for a canal,, the fee is divested, and though the use may be abandoned, the property does not revert to the original owner.f In Massachusetts too, it has been held that where the land of an individual is taken under the authority of the legislature for public use, and a fuU compensation is paid to the proprietor for a perpetual easement therein, and the same land is afterwards appropriated by legis- lative authority to another public use of a like kind, the owner of the land is not entitled to any further compensation. So, where a turnpike has by law been converted into a common highway, no new claim for . compensation can be sustained by the owner of the land over which it passes. So, too, where a canal com- pany paid full damages for the flowing of the plaintiffs land, and the canal was afterwards discontinued, and the land was flowed by another company, it was held that * Meacham vs. Fitchburg R. R. Co., 4 Oush. 291. t Heyward vs. The Mayor, &o., of N. Y., 3 Seld. 814 ; Rexford vs. Knight, 1 Kern. 808. COMPENSATION. 633 the plaintiff was not entitled to redress, ,and his com- plaint was dismissed.* Under the act of the State of New York of 1851, in relation to railroad companies, such companies have no right to enter upon and occupy, or cross, a turnpike or plank road, without the consent of the owners, except upon the condition of first paying the damages sus- tained by the turnpike or plank-road company, after the same shall have been ascertained under 'the stgjUte.f It may not be amiss to sum up the result of our examination. If the brief and sweeping clause, " Pri- vate properk/ shall not he taken for pvMio use without just compmsaiion^'' be made to express the modificar tions and qualifications which construction has inserted in it and added to it, it will stand nearly as -follows : Private property shall in no case he taken for private use. Private property may he taken for public use vn the exercise of the general police powers of the State, or of taxation, without moikmg compensation tJierefor. And the power of taooation includes the power of cha/rg- ing the expense of local improvements exclusiveh/ upon, those immiediatehf henefited thereby. Private prc^erty may also be taken for pubUc use in the exercise of the power of eminent domain, hut not without just comperv- sation hei/ng made or provided for before the taking is absolutely consummated. The right of compensation, how- ever, does not attach vn cases where the vahie of property is merel/y impaired and the title to it not dimested, nor does it exist in cases where the right to the property taken is not " Chase vs. Sutton Manufacturing Co., 4 Cush. 1S2. t The Ellicottville and Great Valley Plank Road Co. vs. The Buflalo and P. R. R. Co., 20 Barb. 644. 634: LAW OF THE LAND. absolutely vested at the time of the legislati/oe act affecting it. This is substantially the form that the constitutional provision has assumed in the hands of the courts ; and upon a careful examination of the process by which this result has been arrived at, it must be admitted that in practice our constitutional guarantees are very flexible things, and that the judicial power exerts an influence in our system which makes the subject of interpretation one of the first magnitude. The Lam of the land, and due course of law. — jj^e next come to the great constitutional provision which guarantees to life, liberty, and property the protection of law. Magna Carta declares, " NuLlus Uber homo ca/piatur vel imprisonetur, aut dissaisietur, a/at reiega- tur, aut exulatur, aut aliquo modo destruetur., nee super eum ibi/mus, nee super eum mittemus, nisi per legale judicium pa/rium . suorum, vel pee legem teee.^."* And deducing its origin from this grand original, this important limitation of legislative power is to be found, I believe, without exception, in the constitu- tion of all the States of the Union .f In order to understand precisely how private rights are in this respect secured, I give the clause as it stands in the fundamental law of several of the States : — New Hampshire. — " No person shall be held to answer for any crime or offense, until the same is fully and plainly, substantially and I formally described to him, nor be compelled to accuse or furnish evi- dence against himself. And every person shall have a right to produce all proofs that may be favorable to himself, to meet the wit- nesses against him face to face, and to be fully heard in his defence, by himself and counsel. And no person shall be arrested, imprisoned, * Magna Carta, § 29. t As to the identity of meaning between the phrases "Law of the land " and " due process of law," see Mayo vs. Wilson, 1 N. H. R. 55. LAW OF T^ LAND. 535 despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land."* Vermont. — " That in all prosecutions for criminal offenses, a person hath a right to be heard by himself and his counsel, to demand tlie cause and nature of his accusation, to be confronted with the wit- nesses, to call for evidence in his favor, and a speedy public trial by An impartial jury of his country ; without the unanimous consent of which jury, he cannot be found guilty ; nor can he be compelled to give evidence against himself; nor can any person be justly deprived of his liberty, except by the laws of the land or the judgment of his peers."f Massachusetts. — "No person shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally described to him, or be compelled to accuse or furnish evidence against himself. And every person shall have a right to produce all proofs that may be favorable to him, to meet the witnesses against him face to face, and be fully heard in his defence, by himself or his counsel, at his election. And no person shall be arrested, imprisoned, or despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the.law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law. of the land."^^ Rhode Islarid. — " In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be con- fronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defence; and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land."^ Connecticut. — " In all criminal prosecutions the accused shall have a right to be heard, by himself and by counsel, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process to obtain witnesses in his favor, — aiid in all prosecutions by indictment or information, a speedy public trial * Constitution of New Hampshire, part i. § 15. t Constitution of Vermont, ch. !.,•§ 10. I Constitution of Massachusetts, part i., § 12. § Constitution of Rhode Island, art. i., § 10. '536 LAW g^ THE LAND. by an impartial jury. . He shall not be compelled to give evidence- _ against himself, nor be deprived of life, liberty, or property, hut by due course of law. And no person shall be holden to answer for any crime the punishment of which may be death or imprisonment for life, unless on a presentment or an indictment of a grand jury, except in the land or Dav,al forces, or in the militia when- in actual service, in time of war or public danger."* New York. — " No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers."f " 6. No person shall be subject to be twice put in jeopardy for the same oflfense ; nor shall he be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation."J Pennsylvania. — " That he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property,, unless by the judgment of his peers or the law of the land."§ " That all courts shall be open, and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by the due course of law, and right and justice administered without sale, denial, or delay ."|| Delaware. — "The accused shall not be compelled to give evidence against himself; nor shall he be deprived of life, liberty, or property,, unless by the judgment of his peers or law of the land."*^ "All courts shall be open; and every man for an injury done him in his representation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered accord- ing to the very right of the cause and the law of the land, without sale,, denial, or unreasonable delajf or expense."** Maryland. — "That every free man, for an injury done him in his person or property, ought to have remedy by the course of the law of the land, and ought to have justice and right, freely without sale, fully * Constitution of Connecticut, art. i., § 9. t Constitution of New York, art. i., § 1. t Constitution of New York, art. i., § 6. § Constitution of Pennsylvania, art ix., part of § 9. II Constitution of Pennsylvania, art. ix., part of § 11. IT Constitution of Delaware, art i., part of § 7. ** Constitution of Delaware, art i., part of § 9. LAW OF THE LAND. 537 ■without any denial, and speedily without delay, according to the law of the land.'"* " That no free man ought to be taken and imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land; provided, that noHiing in this article' shall be so construed as to prevent the legisla- ture from passing all such laws for the government, regulation, and disposition of the free colored population of this State as they may deem necessary ."f Virffinia. — " Nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land, or the judgment of his peers."J South Carolina. — " No freeman of this State shall be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or out- lawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."^ Much, discussion has taken place in regard to what is meant by the phrase, the law of the land. J'erhaps,^ in most respects, there is nowhere to "be met with a better definition ^f it than is to be found in the argu- ment of Mr. "Webster, in the Dartmouth College case. " By the law of the land is most clearly intended the general law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, properto, and immunities under the protection of general rules which govern society. Every thing which may pass under the form of an enactment is not the law of the land." The same doctrine has been declared in a very elab- • * Constitution of Maryland, art. 1,, § 17. t Constitution of Maryland, art. i., § 21. X Constitution of Virginia, Bill of Eights, § 8. § Constitution of South Carolina, art. ix., part of § 2. 538 LAW OF THE LAND. orate case in the State of New York. An act of that State authorizing private roads to be laid out over the Igpds of an' owner without his consent, provided for the damages to be assessed by a jury of six freehold- ers, and declared that the road should, when laid out» be for the use of the applicant and his assigns ; and in an action of trespass the validity of this statutory pro- vision came up for consideration. The constitution of the State, as it then stood, provided " that no member' of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers" (Cons, of 1821, art. vii., § 1); and also, that " no person shall be deprived of life, liberty, and property, without due process of law" (7J. § 7). Af- ter showing that the act worked a transfer of property from one individual without his consent to another, the. Supreme Court held that no such legislation was compatible with "the law of the land," nor such a proceeding compatible with " due process of law." They said, " The words ' by the law of the land,' as used in the constitution, do not mean a statute passed for the purpose of working the wrong. That con- struction would render the restriction absolutely nuga- tory, and turn this part of the constitution into mere nonsense. The people froul'd be made to say to the two Houses, ' You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for the purpose.' In other words, You shall not do the ^rong unless you choose to do it." * * * " The meaning of the sec- tion is, that no member of the State shall be disfran- chised or deprived of any of his rights and privileges. LAW OF THE LAND. 539 unless the matter shall be adjudged against him upon trial had according to the course of the common law. Itinust be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." So, of the phrase " due process of law," it was said, " It cannot mean less than a prose- cution or suit, instituted and conducted according to the prescribed forms and solemnities for asserting guilt or determining the title to property. The same measure of protection against legislative encroachment is extended to life, liberty, and property ; and if the latter can be taken without a forensic trial and judg- ment, there is no security for the others. If the legis- lature can take the property of A and transfer it to B, they can tak6 A himseW, and either shut him up in, prison or put him to death. But none of these things can Jj>e done by mere legislation. There must be due process of law."* In North Carolina and Ten- nessee, the term law of the laud has received the same construction.f In New York, the subject has been again recently considered, in reference to the temperance laws. An act, passed in 1855 (9th April), entitled An Act * Taylor w. Porter, per Bronson, J., 4 Hill, 140. Nelson, J. jdiasented, on the ground of the antiquity of the system of laying out private roads in the State of New York, and the universal acquiescence in its propriety. t Hoke vs. Henderson, 3 Dev., 12; Jones vs. Perry, 10 Yerg., 59. See also, in Iowa, Reed vs. Wright, 2 Greene, Iowa, 22. . In Texas, James vs. Reynolds, 2 Texas, 251, In Pennsylvania, Brown vs. Heummel, 6 Barr, 87, and Ervine's Appeal, 16 Penn. R., 256 ; Kinney vs. Beverly, 2 Hen. & Munf., 336 ; Arrowsmith vs. Burlingim, 4 M'Lean R., 498 ; and Blackwell on Tax Titles, 27, 34. 640 LAW OF THE LAND. for the prevention of intemperance, pauperism, and crime, declared sutstantially that intoxicating liquor should not be sold, or kept for sale, except for medical, sacramental, chemical, and mechanical purposes ; and a violation' of this provision was declared a misde- meanor, punishable by fine and imprisonment. It was further enacted that, upon complaint of a violation of this prohibition, liquor illegally kept should be seized, and if found to be kept in violation of the act, or if not claimed, should be adjudged forfeited and destroyed. Proof of the sale of liquor was to be considered sufficient to sustain an averment of an ille- gal sale, and proof of delivery, to be prima facie evi- dence of sale. No person was to be allowed to main- tain an action to recover for any liquor sold or kept by him, unless he could prove that the liquor was lawfully sold or kept within the act ; and finally, it was declared that all liquor kept in violation of the act should be deemed a public nuisance. Toynbee and Berlaerich having been found guilty of violatii^ the act, appealed to the Supreme Court ; and the act wa& held to be in conflict with the constitutional provision above cited. It was considered that the object of the statute was to prohibit the common and ordinary use of a species of property long and familiarly known ; that liquor came clearly within the definition of prop- erty ; that the prohibition of its sale worked a virtual deprivation of property ; that to do this by fines, for- feitures, and imprisonment, coupled with a presumption against nuisance, was not due process of law; that the right of protection belonging to the citizen was seriously impaired by requiring him, preliminarily, to prove that the liquor was lawfully kept ; that it was not competent for the legislature to declare any recog- LAW OF THE LAND. 541 nized species of property a nuisance; and that the whole act was void as being an arbitrary interference with the rights of property guaranteed by the consti- tution.* Some other decisions may be noticed. The vested interest of a husband in a legacy bequeathed to his wife cannQ#be altered by subsequent legislation; and the act of 1848, by which it was attempted so to operate retrospectively, is unconstitutional on the ground that it takes away property without due pro- cess of Icnv.j- . We have already J had occasion to notice that certain summary administrative proceedings, have been sus- tained against the objection that they did not conform to the la,w of the land. So, in Louisiana, the construc- tive service of a tax bill, by advertisement in the of&cial newspaper, without any personal service whatever, has been held not to conflict with the provision in the State constitution that "no person shall be deprived * People w. Berberich & Toynbee, 11 Howard Pr. R. 289. Mr. Justice Brown delivered the leading opinion. Mr. Justice Strong, concurring with him, adverted to the invasion of the rights of property effected by the abo- lition of slavery, and observed that the question whether it was competent for the legislature to prohibit the manufacture of liquors, was not before them. Mr. Justice Rockwell concurred in the reversal on a minor point — that of the defendant being tried at the special sessions ; but dissented from his brethren in their general views of the constitutionality of the act, hold- ing it to be a legitimate exercise of the discretion of the legislature, found^jh on considerations of public policy tending to promote the morals, healtl^F and safety of the community. The whole discussion is Very able, and of great interest to all persons investigating the fundamental principles of our government. The decision has been affirmed on appeal, and has been reported while these pages are passing through the press. Wynehamer vs. The People, 3 Keman, 378. t Westervelt w. Gregg, 2 Keman, 202. , X Ante, p. 352. 642 TRIAL BY JUET. of life, liberty or property, without due process of law."* The Superior Court of New Hampshire has said, " There is no doubt of the great fundamental principle that parties shall be heard before judgment shall be passed against them ; but when the legislature have fixed the particular time and manner of giving notice to parties, it is not for us to set aside the statute unless it is clearly uncon8titutional."f Trial hy Jury. — ^The, trial by jury is very dear to the race to which we belong. There can hardly be named any institution which has survived so many changes, or existed under such various forms of gov- ernment. JVuUtis Uber homo capietw, vel vmprisone- tur, nisi per legale judicitim pa/rivmi suorum, are- the words of Magna CaHa^ more than six centuries ago. "When this country threw off the government of En- gland, the passionate attachment of our people to this form of procedure was repeatedly and energetically declared ; and the constitution of the youngest State of the American confederacy adopts the trial by jury as a part of its fundamental law. Springing up under the feudal despotism .of the Plantagenets, it has sur- vived alike their rule, that of the house of Tudor, dnd of the house of Stuart, and now flourishes with all its original vigor under the mildest and wisest form of monarchy of which history makes mention ; while fdring the same period, transplanted to a different emisphere, it has struck deep its roots into the new soil, and is, perhaps, the most cherished institution of the greatest exemplar of free and intelligent govern- ment that the world has ever seen.J * City of New Orleans vs. Cannon, 10 La. Ann. R., 764. t Webster w. Alton & N. D., 9 Foster, 869, 884 X The Declaration of Rights made by the first Continental Congress, in TRIAL BY JURY. 548 The following extracts from some of the State con- stitutions, will give a sufficient idea of the manner in which this institution has been incorporated into the fundamental law of the several States. It is proper to remark that the clauses here given apply, as a general rule, to civil cases, and that the State constitutions contain special provisions in regard to the trial by jury in criminal cases : — Maine. — "In all civil suits and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases wliere it has heretofore been otherwise practiced ; the party claiming the right may be he'ard by himself and his counsel, or either, at his election."* New Hampshire. — " In all controversies concerning property, and in all suits between two or more persons, excepting in cases wherein it hath been heretofore otherwise used and practiced, the parties have a right to a trial hy jury, and this right shall be deemed sacred and inviolable ; but the legislature may by the constitution be empowered to make such regulations as will prevent parties from having as many trials by jury in the same suit or action, as hath been heretofore allowed and prac- ticed, and to extend the civil jurisdiction of justices of the peace to the trials of suits where the sum demanded in damages doth not exceed four pounds, saving the right of appeal to either party. But no such regulations shall take away the right of trial hy jury, in any case not in this article before excepted, unless in cases respecting mariners' wages."! Vermont. — " That when an issue in fact, proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial hy jury, which ought to be held sacred."| 1V74, declares that " the respective colonies are entitled to the great and inestimable privilege of being tried' by their peers of the viciijage, accord- ing to the course of the common law." And the Declaration of Independ- ence, in its eloquent recital of the causes of separation, commemorates among others, " acts of legislation for depriving us, in many cases, of the benefits of trial by jury." Shepard's Const. Text Book, p. 262. * Constitution of Maine, art. i., §'20. »« t Constitution of New iHampshire, part i., § 20. % Constitution of Vermont, ch. i., § 12. 54:4 TRIAL BY JURY. Massachusetts. — " In all controversies concerning property, and in all suits between two or more persons (except in cases in which it has heretofore been otherwise used and practiced), the parties have a right to a trial hyjury ; and this method of procedure shall be held sacred ; unless in oases arising on the high' seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it."* Rhode Island. — " The right of trial by jury shall remain invio- late."! New York. — " The trial by jury in all cases in which it has been heretofore used, shall remain inviolate for ever. But a jury trial may be waived by the parties in all civil cases, in the manner to be pre- scribed by law."J New Jersey. — " The right of trial by jury shall remain inviolate ; but the legislature may authorize the trial of civil suits, when the mat- ter in dispute does not exceed fifty dollars, by a jury of six men."§ Pennsylvania. — " That trial by jury shall be as heretofore, and the right thereof remain inviolate."|| Delaware.—" Trial by jury shall be as heretofore."^ Virginia. — " That in controversies respecting property, and in suits between man and man, the ancient trial by jury of twelve men, is pref- erable to any other, and ought to be held sacred."** South Carolina. — " The trial by jury, as heretofore used in this State, and the liberty of the press, shall be for ever inviolably pre- served."ff ^ Michigan. — "The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law."U "The legislature may authorize a trial by a jury of a less number than twelve men."§§ * Constitution of Massachusetts, part i., § 15. t Constitution of Rhode Island, art. i., § 16. X Constitution of New York, art. i., § 2. § Constitution of New Jersey, art«i., § 7. I Constitution of Pennsylvania, art. ix., § 6. T Constitution of Delaware, art. i., § 4. ** Constitution of Virginia, Bill of Rights, § 11. tt Constitution of South Carolina, art. ix., § 6. XX Constiftition of Michigan, art. vi., § 27. §§ Constitution of Michigan, art, iv., § 46. TRIAL BY JURY. 545 Georgia. — " Trial by jury, as heretofore used in this State, shall remain inviolate."* ' Florida.; — " The right of trial by jury shall for ever remain inviolate."! Alabama. — " The right of trial by jury shall remain inviolate."J Mississippi. — " The right of trial by jury shall remain inviolate."§ Tennessee. — " The right of trial by jury shall remain inviolate." | Kentucky. — " We declare — that the ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to . such modifications as may be authorized by this constitution."^ Ohio. — "The right of trial by jury shall be inviolate."** Indiana. — " In all criminal cases whatever, the jury shall have the right to determine the law and the facts. In all civil cases the right of trial by jury shall remain inviolate."f f Illinois. — " The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in con- troversy."JJ The general idea intended to be conveyed by the constitutional guarantee of the trial by jury, undoubt- edly -is, that all contested issues of fact shall be determined by a jury, and in no other way; and this doctrine has been very faithfully carried out by the judiciary. Indeed, it may be claimed for them as a merit in this country, that they have never evinced any jealousy of the great co-opdinate power of the jury, and that they have always striven to carry out the theory of our system in regard to it.; So, in Indi- ana, where a statute exists for the relief of iona-fide * Constitution of Georgia, art. iv., § 5. t Constitution of Florida, art. i., § 6. I Constitution of Alabama, art. i., § 28. § Constitution of Mississippi, art. i., § 28. 1" Constitution of Tennessee, art. i., § 6. • t Constitution of Kentucky, art. xiii., § 8. ** Constitution of Ohio, art. j;, § 6. tt Constitution of Indiana, art. i.,' §§ 19 and 20. , It Constitution of Illinois, art. xiii., § 6. 35 546 TRIAL BY JUEY. I occupants of land who make improvements while" holding under a title which proves defective. In cases of this class, where the honorfide occupant has put improvements on his land, and a superior title is established against him, if he is willing to pay for the value of the land without the improvements, the suc- cessful claimant can not obtain possession until he pays the value of the improvements made by the occu- pant. But where a statute of this kind provided that the value of the improvements, and of the land with- out the improvements, should be assessed by three persons to be appointed by the court, it was held that this part of the law was unconstitutional and void, on the ground that the assessment should be made by a jury; and the court said, "Where facts are to be found, or the value of property assessed, the method must be determined in accordance with the clause in the constitution."* In Ohio, it has been held that this constitutional limitation places the essential and peculiar features of the institution, as known to the common law, beyond the reach of legislative control ; and, consequently, an act directing certain cases to be tried by a jury of six men was decided to be unconstitutional and void, the court saying that both the number and the unanimity of the jury were inherent attributes secured by the constitutional provision.f The same general principle has been .declared in Kentucky, and in many other of the States. J * Armstrong w. Jackson, 1 Blackf., 375. t Work M. The State of Ohio, 22 Ohio State R., 296. It was, however, admitted that in regard to proceedings in which a jury was not required at common law, the legislature'might in its discretion authorize a jury of any umber. I Bnderman vs. Ashby, Pr. Dec, 65 ; Stidger «s. Rodgers, Pr. Dec, 64 ; TRIAL BY JURY. 547 Indeed, the constitutional provision has been in some of the States very largely construed; and it has been held that any improper interference with the functions of the jury comes within the spirit of the clause. So, as to the power to discharge a jury, it has been held in Alabama* that within the meaning of the constitutional provision, a court has no power arbi- trarily to interfere and arrest a jury trial; and that this can only be done in cases of pressing and legal necessity. An unauthorized discharge, whether in the •case of a murder or a felony, is equivalent to an ac- quittal.* But, on the other hand, the guarantee is to be rea- sonably interpreted. It was not intended by this pro- vision to tie up the hands of the legislature, so that no regulations of the trial by jury could be made ; and it has been decided that the provision is not violated, so long as the trial by jury is not substa;ntially im- paired, although it be made subject to new modes and even rendered more expensive.f It is also to be understood, that when the constitu- tion guarantees the right of trial by jury, it does not mean to secure that right in all possible instances, but only in those cases in which it existed when our consti- Carson vs. Commonwealth, 1 A. K. Marsh. 290 ; Hughes vs. Hughes, 4 Monroe, 43. * Ned vs. The State, 7 Porter, 187 ; Oobia vs. The State, 16 Ala., 781 ;, M'Cauley vs. The State, 26 Ala., 135. The rule seems substantially the same in the other States. See as to the power of discharging a jury, or entering a nolle prosequi in criminal cases. Commonwealth m. Tuck, 20 Pick. 856; Mount m. The State, 14 Ohio, 295 ; Mahala vs. The State, 10 Yerg., 532; The People m. Denton, 2 Johns. Cases, 275. The People «s, Olcott, 2 J. C, 301 ; The People vs. Barrett, 2 Caines, 305. In civil cases, the courts possess an unlimited power to order new trials; and to these, there- fore, the rule does not at all apply. Mc Parte Edward Henry, 24 Ala., 638. t Beers vs. Beers, 4 Conn. K., 539 ; Colt vs. Eves, 12 Conn., 243, 263. 548 TRIAL BY JURT. tutions were framed. It is well settled that the consti- tutional guarantee of a trial by jury, in the usual terms that "the trial by jury shall remain inviolate," does- not apply except to offenses which at the time of the adoption of the constitution were such, either by stat- ute or common law ; and that it is competent for the legislature to make offenses created by statute since that period triable by summary proceedings without a jury* So, on the same principle, it has been settled in Virginia that where, by statute passed previous to the adoption of the constitution, the Court of Chancery had jurisdiction to try a matter without the interven- tion of a jury, that right was not taken away by the adoption of the constitution.f And in Kentucky it has been decided that'the constitutional clause does not enlarge the right of trial by jury, so as to extend it to cases where, previous to the constitution, that mode of trial did not belong to the party as a matter of right.J So, too, in the State of Pennsylvania, it has been held that an act prohibiting the sale of intoxica- ting liquors on Sunday, and authorizing a conviction for the violation of the statute, is not unconstitu- tional by reason of not providing for a trial by jury, .The legislature may declare a new offense, and pre- scribe the mode of trial.§ Indeed, extensive and sum- mary police powers are constantly exercised in all the States of .the Union for the repression of breaches of * Boring vs. "Williatos, 17 Ala., 510 ; Tims vs. The State, 26 Ala , 165. t Watts «s. Griffin, 6 Litt., 247. • t Harris ««. Wood, 6 Munroe, 642 ; Creighton vs. Johtison, 6 Litt , 241 ; Swing vs. Directors of the Penitentiary, Hardin R., 5 ; Harrison vs. Chiles, 8 Litt. R., 200. See in Pennsylvania, Emerick vs. Harris, 1 Binney, 416. . § Van Swartow vs. The Commonwealth, 24 Penn., 131. TRIAL BY JURY, ,S49 the peace and petty offenses ; and these statutes are not supposed to conflict with the constitutional provi- sions securing to the citizen a trial by jury ; and so it has been held, in Vermont, in regard to drunkenness and the sale of intoxicating liq^u'ors* Statutes giving -sumnaOTy remedies against public officers and their ■sureties have, in Kentucky, been held not to be within i;he constitutional limitation ;f but in Indiana, a con- trary opinion has been expressed.^ Where a law creates or extends a summary juris- -diction for the trial of causes without a jury, it does not violate the constitutional provision securing "that right, provided on an appeal the party is entitled to a jury as of right, — upon the ground that the defendant, if he thinks proper, can have his case decided by a Jury before it is finally settled-! In Connecticut, the Bill of Eights declares "that in all criminal prosecutions the accused shall have a right ^o be heard by himself and by counsel, to demand the nature and cause of the accusfitibn, to be confronted by the witnesses against tim, and to have compulsory process to obtain witnesses in his favor." But this has * In re Powers, 25 Vermont R., 261 ; Murphy vs. The People, 2 Cowen, .^15 ; Jackson ex. dem. Wood ra. Wood, 2 Oowen, 819. See in Mp,^sachu- setts, Mountfprt vs-. Hall, 1 Mass., 443 ; Inhahs. of Shirley vs. Lunenburgh, 11 Mass., 379. t Murry vs. Askew, 6 J. J. Marsh. 27; Wells vs. Caldwell, 1 A. K. Marsh. 441. t Dawson vs. Shaver, 1 Blackf., 204. § Morford vs. Barnes, 8 Yerger, 444; Beers vs. Beers, 4 Cpnn., 535,; Emerick m. Harris, 1 Bmney, 416 ; M'Donald «s, Schell, 6 Serg. & Eawle, •240 ; Stewart vs. Mayor, &c., 7 Maryland, 501. As to trial by jury, gener- ally, see Mr. J. Strong's opinion' in People w. Berberrick & Toynbee, 11 Howard P. R., 333, and Wynehamer m The People, 3 Kernan, 878; The People vs. Duflfy, 6 Hill, 75. 650 TRIAL BY JURT. been held not to apply to the proceedings of a grand jury in finding an indictment.'^ As to the question of interest in a juror, in Massa- chusetts, it has been held to be no sufficient exception to an indictment for an offense to which the law annexes a fine for the use of the town where the offense is committed, that the foreman of the grand jury who found the indictment is a taxable inhabitant of the town.f In connection with this subject, it is proper to call attention to the provision to be found in some of our fnore recent constitutions, forbidding the court to instruct juries in regard to the facts of a cause. So, the constitution of California declares that "judges shall not charge juries with respect to matter of fact, but may state the testimony and declare the law."J I cannot but regard this as a very unfortunate inno- vation. The jury loses no small portion of its value when deprived of the aid of an upright and intelligent judge, accustomed to scrutinize, to compare, to analyze and to weigh testimony. Indeed, so long as the right to state the testimony is left, the prohibition becomes almost nugatory ; it would be difficult, if not impos- sible, for the most skillful magistrate so to sum up the evidence as to avoid communicating to the jury his view of the verdict which should be rendered. The provision, I think, comes from a jealousy of the bench,, for which no atdequate reason can be alleged.§ » The State M.Wolcott, 21 Conn., 272. t Commonwealth vs. Thos. Ryan, 6 Mass. R., 90. I Cons., art. 6, § 17. § The Constitution of Tennessee, art. vi., § 9, contains the same provi- sion in the same words. In Massaq^usetts, it has been held that a statutory provision authorizing. SEARCHES AND SEIZURES. 551 Searches and Seizures. — The provisions in. regard to search-warrants, to be found in both the State and Federal constitutions, were no doubt suggested by the abuses which experience had show;i to result in England, from the practice of granting gen- eral warrants issued on suspicion, and without any specification whatever, tb search any house, to break open any receptacle, seize, and carry away all or any property. These general warrants w^re declared ille- gal in the last century ; and Lord Camden's reputation derives no. 'small portion of its luster from the vigor with which he on that occasion ^defended some of the fundamental principles of liberty.* I give below the provisions of several of the State constitutions on this important subject: — Maine. — " The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures ; and no war- rant to search any place, or seize any person or thing, shall issue with- out a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause supported by oath or affirmation."j- Feraiojii.---" That the people have a right to hold themselves, additional punishment to be inflicted on a convict upon an information, is not unconstitutional. Ross's Case, 2 Pick. 165. The statute permitting a judge of probate to appoint a guardian to a spendthrift is' not unconstitu- tional, on the ground that the spendthrift might -appeal to the Supreme Court,, where a trial by jury can be ordered. Bond m. Bond, 2 Pick., 382. A strong opinion has been expressed in that State, that a pecuniary pen- alty cannot be constitutionally imposed by a court-martial without a jury. Brooks vs. Daniel, 22 Pick., 498. Morton, J., said, " It assuredly is a nov- elty to find a court-martial dealing with mulcts and forfeitures, or a com- mon-law court sustaining an action upon the sentence of a court-martial." But the case was decided on another ground. * Entick m. Carrington, 19 Howell's State Trials, No. 1029 ; Commonr wealth m. Dana, 2 Met. 335. f Constitution of Maine, art. i., § 5. 652 SEARCHES Airo SEIZURES. their houses, papers, and possessions, free from search or seizure ; and therefore, warrants without oath -or affirmation first made affording sufficient foundation for them, and whereby an officer or messenger may be commanded or required to search such suspected places, or to seize any person or persons, his, her, or their property, not particularly described, are contrary to that right, and ought not to be granted."* Massachusetts. — "Every person has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously sup- ported by oath or affirmation, and if the order in a warrant to a civil officer to make search in all suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied "with s, special designation of the persons or objects of search, arrest, or seizure ; and no warrant ought to be issued but in such cases, and with the formalities prescribed by the laws."f Rhode Island. — " The right of the people to be secure in their persons, papers, and possessions, against unreasonable searches and seizures shall not be violated ; and no warrant shall issue but on com- plaint in writing, upon probable cause, supported 'by oath or affirma- tion, and describing as nearly as may be, the place to be searched and the person or things to be seized."J Connecticut. — " The people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, ■shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."! , JV^ew Jersey. — " The right of the people to be secure in their per- sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue but upon prbbable cause, supported by oath or affirmation, and particularly describing the pfece to be searched, and the papers and things to be seized."! Fennsylvoinial—" 8. That the people shall be secure in their per- sons, houses, papers, and possessions, from unreasonable searches and * Constitution of Vermont, ch. i., § 11. t Constitution of Massachusetts, part i., § 14. J Constitution of Rhode Island, art. i., § 6. § Constitution of Connecticut, art. i., § 8. ; i Constitution of New Jersey, art. i., § 6. SEARCHES AND SEIZURES. • 553 seizures ; and that no warrant to search any place, or to seize any per- son or things, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation."* Delaware. — " The people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizures ; and no warrant to search any place, or to seize any person or things, shall issue without describing them as particularly as may be, nor then, un- less there be probable cause, supported by oath or affirmation."! Maryland. — "That all warrants, without oath or affirriiation, to search suspected places, or to seize any person or property, are grievous and oppressive ; and all general warrants to search suspected places or to apprehend' suspected persons, without naming or describing the place or the person in special, are illegal, and ought not to be granted."^ The provisions above cited are of great import- ance as guarantees of private right against lawless invasion ; but very few cases have arisen in regard to them. I notice some of the most prominent. Where a search-warrant recites an information on oath, that certain described goods have been stolen by A and B, and are in the house of C, it is not neces- sary that the warrant should state the name of the owner of the goods.§ But the warrant must describe the persons whose houses are to be entered and the goods which are the object of search.J K a search-warrant for lottery tickets, and a complaint correctly describ- ing the things to be seized, be on the same paper, and the warrant direct the officers to search for the things mentioned in the complaint, the warrant is legal and * Constitution of Pennsylvania, art. ix., § 8. . + Constitution of Delaware, art i., .§ 6. I Constitution of Maryland, art. i., § 23. § Bell ®s. Clapp, 10 J. R. 263 ; see also, as to search warrants in New York, Beaty «s. Perkins, 6 "Wend. 382. 1 Sandford vs. Nichols, 13 Mass. 288, decided with reference to the provision of the Constitution of the United States on this point, 6th art. of Amendments. 554 . TAXATION. sufficient, though the warrant itself contain no further description.* The clauses which we have thus considered, together with that in regard to the obligation of contracts, which we shall examine in the next chapter, are by far the most important provisions that our State con- stitutions contain for the protection of the property, liberty, and life of the citizen. They are, indeed, the principal safeguards that our system contains. Many other minor checks upon legislation have,- however, been suggested by the gradual acquisition of experi- ence ; and to some of the more important of these I now turn the attention of the reader. TaxaUon. — Under the head of the clause in regard to private property we have had occasion to notice,f that the restraining effect of that limitation has never been applied to taxation ; and that, as a general rule, the taxing power has been treated by the judiciary as vested in the absolute discretion of the legislative bodies. This doctrine has been repeatedly declared, both by the State and Federal tribunals. So it has been said in New Hampshire, that the power of taxation is essentially a power of sovereignty or eminent doniain. J So, the Supreme Court of the United States have said, that tjiere is no limitation whatever upon the legislative power of the States, as to the amount or .objects of taxation. In truth, the wisdom and justice of the representative body, and its dependence on its constit- uents, furnish the only security against unjust and * Commonwealth vs. Dana, 2 Met. 329. t Ante, p, 600. X 'ferewster u. Hough, 10 N. H. R. 148. TAXATION. 565 excessive taxation, except only in those States where express provisions have been inserted in their constitu- tions, intended to secure equality and uniformity in the exercise of the power. In these cases, of course the construction and application of the constitutional check bring the matter, to a certain e:j:tent, within the . control of the courts.* So, in the State of Vermont, the Supreme Court has said, " If the legislature have the right of taxation over any given property or pos- session, that power is admitted to be unlimited and un- controllable, except by their own discretion. "f In several of the States, however, owing perhaps to the results of experience in regard to the abuse of the legis- lative power, various precise and specific constitutional restrictions have been laid upon the taxing power. The insertion of these clauses of course brings the subject of- taxation within the ultimate control of the judiciary"; and the matter is so important that I annex some of the provisions on the subject, 4o be found in th^ more recent constitutions. Michigan.-^-" 1h.& legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes stall be levied on such property as shall be prescribed by law."* Illinois. — " The General Assembly shall provide for levying a tax by valuation, so that any person and corporation shall pay a tax in pro- portion to the value of his or her property; such value to be ascer- tained by some person or persons to be elected or appointed in such manner as the General Assembly shall, direct, and not otherwise ; but the General Assembly shall have power to tax peddlers, auctioneers, bro- * Providence Bank vs. Billings, 4 Peters, 614 ; Brewster vs. Hough, 10 N. H. 138 1 Mack vs. Jones, 1 Poster, 893 ; Blackwell on Tax Titles, p. 9. t Herrick vs. Randolph, 13 Verm. 529. Taxes are neither judgments nor contracts, and are not the subject of set-off as such. Peirce vs. City of Boston, 3 Met. 520. I Constitution of Michigan, art. xiv., § 11. 556 . TAXATION. kers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, grocery-keepers, toll-bridges, and ferries, and persons using and exercising franchises and privileges Id such manner as they shall from time to time direct."* Tennessee. — '• All property shall be taxed according to its value ; that value to be ascertained in such manner as the legislature shall direct, so that the same shajj be equal and uniform throughout the State. No •one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value ; but the legislature shall have power to tax merchants, peddlers, and pijivi- leges, in s^oh manner as they may froni time to time direct. A tax f on white polls shall be laid in such manner and of such an amount as may be prescribed by law."f ^ Louisiana. — " Taxation shall b? fequal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shall be levied. The legis- lature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade, or profession." J . California. — " Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law."§ Wisconsin. — " The rule of taxation shall be uniform, and taxes shall he levied upon such property as the legislature shall prescribe."! Texas. — " Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to, its value, to be ascertained as directed by law, except such property as two thirds •of both houses of the legislature may think proper to exempt from tax- ation. The legislature shall have power to lay an income tax, and to -tax all persons pursuing any occupation, trade, or profession, provided that the term " occupation" shall ,not be construed to apply to pursuits either agricultural or mechanical."^ ArJcansas. — " All property subject to taxation shall be taxed accord- * Constitution of Illinois, art. ix., § 2. t Constitution of Tennessee, art. ii., § 28. t' Constitution of Louisiana, tit vi., § 123. § Constitution of California, art. xi., § 13. 1 Constitution of Wisconsin, art. viii., § 1. IT Constitution of Texas, art. vii., § 27. TAXATION. . ^57 ing to its value ; that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and ^uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of prop- erty of equal value ; provi(^d, the General Assembly shall have power to tax merchants, hawkers, peddlers, and privileges, in such manner as may from time to time be prescribed by law ; and provided further; that no other or greater amounts of revenue shall at any time be levied than required for -the necessary expenses of government, unless by a concurrence of two thirds of both houses of the General Assenibly. No poll-tax shall be assessed for other than county purposes. -No other or greater tax shall be levied on the productions or labor of the country, than may be required for expenses of inspection."* Missouri. — " All property subject to taxation in this State shall be taxed in proportion to its value."f • Massachusetts. — " And, further, full power and authority are hereby given EUd granted to the said General Court, from time to time, to impose and levy proportionable and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident and estates lying within, the said commonwealth ; and also to impose and levy reasona- ble duties and excises upon any produce, goods, wares, merchandises, and commodities whatsoever; brought into, produced, manufactured, or being, within the same."I In construing these provisions it has been held, in many of the States, that the words " equal and uni- form" apply only to a direct tax on property ; and that the clause in regard to uniformity of taxation does not limit the power of the legislature as to the objects of taxation, but is only intended to prevent an arbitrary taxation of property, according to kind or quality, without regard to value. Specific taxes have there- fore been sustained as a valid exercise of the legisla- tive power. Thus a road tax in Illinois,§ a bank tax * Constitution of Arkansas, art. ix.. Revenue, § 2. t Constitution of Missouri, art. xi., § 19. X Cons, of Massachusetts, § 1, art. iv. § Sawyer vs. City of Alton, 3 Scammon, p. 127. 658 EXEMPTIONS FROM TAXATION. in Massacliusetts,* and a tax on merchants and "bank- ers' licenses in California,! have all been held legal and binding. J In construing the clause in Te^rd to uniformity of taxation in Louisiana, it has been held that this pro- vision applies as well to municipal and parochial as to State taxes, and that an ordinance of a parish police jury, to compel the inhabitants of a particular portion of the parish to pay for certain embankments, is uncon- stitutional.§ Many interesting cases have arisen on the subject of exemption from taxation. It has been decided that, where exemption from taxation is made a condition of a grant, it is in the nature of a contract : the gra4t ^ad its conditions are equally inviolable. || But where the exemption results from a general law, and does not form a portion of a grant, any subsequent legislature * Portland Bank vs. Apthorp, 12 Mass., p. 252. t People vs. Dorr, Same vs. Hussey, not yet reported. X See, also, in Texas, Aulanier vs. Gov., 1 Texas, 653 ; see contra, Crow vs. The State of Missouri, 13 Miss. R. § Cumming vs. Police Jury, 9 La. Ann. R. 503. In regard to "proportional taxation" in Massachusetts, see City of Lowell vs. Hadley, 8Met. 181; City of Boston vs. Shaw, 1 Met. 137. An act providing that the expense of building a particular bridge shall'e borne in part by the county within which it is situated, when by the operation of the general laws of the commonwealth the expense would be borne wholly by the town within which it is situated, does not violate the consti- tutional provision of Massachusetts requiring taxation to be proportional and reasonable. The Inhabitants of Norwich vs. The County Commission- ers of Hampshire, 13 Pick. 60. A city by-law requiring the owners or occupants of houses to clear the snow from the side-walks in front of their property, is not strictly a by-law levying a tax. It is rather to be regarded as a police regulation. The duty required is a duty upon the person in respect to the property which he holds, and is valid under the constitution of Massachusetts. Goddard, Petr., 16 pick., 504. B State of New Jersey vs. Wilson, 7 Cranch., 164. EXEMPTIONS FROM TAXATION. 559 may repeal the exemption * In New Hampshire, it lias been said that the legislature could pass laws con- ferring exemptions from taxation, which would be valid till repealed. But it was intimated that it was not competent for the legislature to make any contract by which a party should be perpetually exempted from taxation, upon the ground that no such power was dele- gated to the legislature, — ^that it could not grant away the essential attributes of sovereignty or right of emi- nent domain ; that these did not seem to furnish the subject matter of a contract.f By a statute of 1793, in Massachusetts, ail persons who had held the office of a subaltern, or of higher rank, were exempted from militia duty. This statute was repealed on the 4th of March, 1800, and the future exemption of militia officers was limited to such as should complete a term of five years' service, or be superseded. In March, 1810, the last statute was- repealed and a new class of exempts defined, including the subalterns and officers mentioned in the act of 1Y93, on condition of an annual payment of two dol- lars. The case was presented of a subaltern officer, honorably discharged in May, 1Y99, and who, under the operation of the act of 1793, was exempted from militia duty. Under the act of 1810 a fine was im- posed on him, and it was resisted on the ground that an exemption once acquired under existing laws could not be revoked ; it being argued that the defendant had * Herrick vs. Randolph, 18 Verm., 525. See cases in Connecticut as to exemption from taxation, Atwater ««. Woodbridge, 6 Conn., 223 ; Os- borne vs. Humphrey, 7 Conn., 335 ; Parker vs. Redfield, 10 Conn., 490 ; Langdpn vs. Litchfield, 11 Conn., 261. t Brewster us. Hough, 10 N. H., 145. 660 RELIGIOUS TOLERATION. a vested right to his exemption. But tlie objection was overruled ; and while adputtiug that there might be cases in which it would be deemed a breach of the public faith to revoke such exemptions, the court said that they were not authorized to weigh those motives, nor interfere with the right Of the State to the military- services of the citizen.* The constitution of Indiana contains a provision, that no man's particular services shall be demanded without just- compensation :f under this it has been held that a statute requiring professional services to be gra- tuitously rendered, would be unconstitutional and void ; and it was also said, that a law which requires gratui- tous services from a particular class in office, imposes a tax upon that class clearly in violation of the funda- mental provision for a uniform and equal rate of assess- ment and taxation upon all citizens.^ The constitution of Tennessee contains the same pro- vision declaring " that no man's particular services shall be demanded, or property taken or applied to public use without the consent of his representatives, or with- out just compensation being made therefor." The use of the disjunctive conjunction is worthy of notice.§ Heligious Toleration. — Most, if not all of our State constitutions contain , provisions designed to secure the great principle of freedom of conscience. But there has been so little disposition to infringe this class of guarantees, that, like the other clauses in regard to attainder, freedom of the press, the right to bear arms, and standing armies, they have been very rarely * Commonwealth «4. Baird, 12 Mass., 443. t Constitution of Indiana, art i., § 2i. J Webb vs. Baird, 6 Indiana, 13. § Cons, of Tennessee, art. i., § 21. RELIGIOUS TOLERATION. 661 flLTOught "within the range of judicial interpretation. Some few cases may be noticed. In Maine, the constitution declares substantially that all men have a natural and inalienable right to worship Almighty God according to the dictates of their own conscience ; that no one shall be hurt, molested, or restrained in his person, liberty, or estate for worship- ing God after his own conscience ; and that no subor- dination or preference of any sect or denomination to another shall ever be established by law ; nor shall any religious tests be required as a qualification for any office or trust under the State.* It also provides, as follows: "A general diffusion of the advantages of edu- cation being essential to the preservation of the rights and liberties of the people, to promote this important object the legislature are authorized, and it shall be their duty, to require the several towns to make suit- able provision, at their own expense, for the support and maintenance of public schools."f Under this general authority an act was passed in that State giving to school committees the power to " direct the general course of instruction, and what books shall be used in the respective schools." In a case arising upon this act, it has been held by the Supreme Court of Maine, that a requirement by a superintending school commit- tee, that the Protestant version of the Bible should be read in the public schools of the town, by the scholars who are able to read, is in violation of no constitutional provision, and is binding on all the members of the schools, though composed of divers religious sects ; and it was said, " The legislature establishes general rules * Constitution of Maine, art. i., § 3. t Constitution of Maine, art. yiii. 36 562 RELIGIOUS TOLERATIOlf. for the guidance of its citizens. It does not necessarily' follow tliat they are linconstitutional nor that a citizen is to be legally absolved from obedience, because they may conflict with his conscientious views of religious du;fcy or right. To allow this, would be to subordinate the State to the individual conscience. A law is not unconstitutional because it may prohibit what a citizen may conscientiously think right, or require what he- may conscientiously think wrong. The State is gov- erned by its own views of duty. The right or wrong of the State is the right or wrong as declared by legis- lative acts constitutionally passed ;" and it was held^ that for a refusal to read the books thus prescribed, the committee might, if they saw fit, expel the disobe- dient scholar.* In the State of Massachusetts, it has been held, on consideration of the second article of their Bill of Rights, which is similar to the iionstitutional provisions of Maine in regard to religious liberty above cited, that the rejection of a witness as incompetent by reason of his want of religious belief, was not in violation of it ; the court saying, " It was intended to prevent prosecu- tions by punishing any one for his religious opinions, however erroneous they might be."f Connected with this subject, I may here call atten- tion to the original provisions of the constitution of Massachusetts ; which, to a certain extent, recognized and declared a relationship and connection between the church and the State. The third article of the original Massachusetts Declaration of Eights. was as follows: — * Donohoe w. Richards, 88 Maine, 879, 410. This is the only judiciat decision of which I am aware, which touches on what has been familiarly called the Higher Law. t Thurston vs. Whitney, 2 Cush. 104. RELIGIOUS TOLERATION. ' 563 " The people have a right to invest their legislature with power to authorize and require, and the legisla- ture shall from time to time authorize and require, the several towns, parishes, precincts, and other bodies corporate and politic, and religious societies, to make suitable provision, at their own expense, for the insti- tution of the public worship, of God, and for the sup- port and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily." And it was further declared in the same article, " that the people of this commonwealth have a right to, and do, invest their legislature with authority to enjoin upon all their subjects, an attendance upon the instructions of the public teachers aforesaid, at stated times and sea- sons, if there be any on whose instructions they can conscientiously and conveniently attend." In Adams vs. Howe et al.^ 14 Mass. 346, the object and pur- pose of these clauses is stated as follows: — "Three great objects appear to have been the influential causes of this solemn declaration of the will of the people : 1. To establish at all events, liberty of con- science and choice of the mode of worship ; 2, To assert the right of the State, in its political capacity, to require and enforce the public worship of God ; 3. To deny the right of establishing a,ny hierarchy, or any power in the State itself to require conformity to any creed or formulary of worship." The provision was soon, however, considered un- friendly to the great interests of religious liberty ; sev- eral statutes were passed designed- to relieve individuals from any necessity of supporting the dominant religious sect in the State ; and various cases are to be found in the Massachusetts reports, which are of much interest upon the subject to which they relate. So, under this 564 RELIGIOUS TOLERATION. clause it was held that a person claiming ministerial taxes must be the public teacher of one, and that an incorporated, society * But these decisions are now of little practical im- portance, as the provision was struck from the Bill of Rights by a popular amendment of the constitution in the year 1833. It may be that as the cycles of human affairs revolve, the interest of the questions connected with these decisions, will again become actual an\i p]*essiDg.f Under the first constitution, or charter, of the State of Connecticut also, provision for the support and maintenance of religious worship was treated as a * See Barnes vs. First Parish in Falmouth, 6 Mass. 400, where the general character of the constitutional proTision is discussed ; Turner vs. Second Precinct in Brookfield, 7 Mass, 60. See also, Kendalls w. The In- habitants of Kingston, 6 Mass. 624 ; see Adams vs. Howe, 14 Mass. 341, as to the constitutionality of certain exemptions from the operation of the constitutional clause created by statute. See also, Holbrook vs. Holbrook, 1 Pick. 248, for another case on exemptions. See also. Gage vs. Currier, 4 Pick. 399. t Many points of a general bearing will be found decided in the cases to which this controversy gave rise. So, in a case on the Massachusetts stat- ute, exempting parties from the constitutional obligation to support the church, the Supreme Court of that Stale said, per Wilde, J. — " In many statutes it will be found that the preamble states imperfectly the views of the legislature, and can afford but little aid in the construction of the en- acting parts. It is not unfrequently merely introductory to the first sec- tion, and it appears to me that it was so used in this statute." Holbrook vs. Holbrook, 1 Pick. 248. In another case it was said, " Where the provisions of twp statutes are dissimilar but not repugnant, a party may pursue the provisions of either. As if by one statute jurisdiction of a matter be given to one court, and afterwards by a new statute the same matter is made cognizable by another court, a party may select either tribunal. So, if a special statute providing that the inhabitants of a particular town may separate from a religious society on certain conditions, and a general statute is passed dissimilar but not repugnant, it is sufficient for a person to bring himself within the pro- visions of either." Gage vs. Currier, 4 Pick. 399. DIVORCES. 565 duty resting on the State ; and that provision was made and carried into effect througli the instrumental- ity of local ecclesiastical societies, established by the State, through its legislative power ; and under that constitution the General Assembly constantly exer- cised the power of establishing and dividing local ecclesiastical societies ; but the present constitution of the State provides* that " no person shall, by law, be compelled to join or support, nor to be classed with or associated to, any congregation, church, or religiouSi association ;" and under this constitution it has been there decided that it is not competent for the legisla- ture to divide an ancient local ecclesiastical society.f Divorces. — ^Legislative acts granting divorces from the marriage tie, like the still more objectionable class of acts of attainder, derive their origin from the early periods of English history, when the line between legislative and judicial power was feebly drawn and ill understood, and when private rights were &,lmost completely at the mercy of violent and reckless parti- san legislation. But that age has fortunately passed, and the marked improvement that is visible in our jurisprudence on the subject of legislative divorces deserves special comment. The facility with which laws annulling the marriage contract were obtained from the legislatures of the several States, in our early history, was discreditable to our system ; but many of our recent constitutions have shown their increased respect for the sacred institution of marriage by pro- hibiting, expressly and absolutely, all divorces,' except * Cons, of 1818, art. Tiii. 1 1. t The Second Eccl. Socy. of Portiand m. The First Eocl. Socy. of Port- land, 23 Conn. 255. 566 DIVORCES. such as are granted by courts of justice. Some of the clauses are here given ; — New York. — " Nor shall any divorce be granted otherwise than by due judicial proceedings."* California. — " No divorce shall be granted by the legislature."! Missouri. — " The General Assembly shall not have power to grant a divorce in any case."J Arkansas.— ^^ The General Assembly shall not have power to pass any bill of divorce, but may prescribe by law the manner in which such cases shall be investigated in the courts of justice, and divorces granted."§ • Texas. — " No divorce shall be granted by the legislature."|| Wisconsin. — " The legislature shall never grant any divorce."^ Tennessee. — " The legislature shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law ; provided that such laws be general and uniform in their operation throughout the State."** Indiana. — "The General Assembly shall pot pass local or special laws in any of the following enumerated cases : " Granting divorces. * * * * * * * " In all the cases enumerated in the preceding sections, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State."ff Michigan. — " Divorces shall not be granted by the legislature."U Louisiana. — " No divorce shall be granted by the legislature."§§ iowa. — " No divorce shall be granted by the General Assembly ."||| These changes i^ 'the fundamental law of so many * Constitution of New York, art. i., § 10. t Constitution of California, art. iv., § 26. X Constitution of Missouri, art. iii., § 32. § Constitution of Arkansas, art. iv., § 24. II Constitution of Texas, art. vii., § 18. IT Constitution of Wisconsin, art. iv., § 24. ** Constitution of Tennessee, art. xi., § 4. tt Constitution of Indiana, art. iv., § 22. II Constitution of Michigan, art. iv., § 26. §§ Constitution of Louisiana, art. vi., § 114. III Constitution of Iowa, art. iv., § 28. TITLES OF LAWS. 567 of our States, are very curious and interesting; they show the facility with which our institutions lend themselves to improvement, and, at the same time, the rapidity with which a regulation or a law that com- mends itself to the national judgment is propagated from one member of the confederacy to another, thus keeping in harmony, though under various govern- ments, the general organization and jurisprudence of the component parts of the empire. Titles of Laws. — Some of the most important of the recent additions to our constitutional guarantees, are to be found in the restrictions imposed on what may be called the practice and procedure of our legislative bod- ies. Great abuses have been found to result from a prac- tice, already mentioned, of ancient date, of incorporat- ing in the same bill subjects of a very heterogenous nature„resorted to either for the purpose of surprising the good faith of the lawmaking body, or of enlisting hostile interests in suppdrt of the proposed act* To put a stop to this practice, many States of the Union have incorporated into ' their -fundamental laws, .the provisions some of whic)i I proceed to give. * Acts of this kind are called, in the country from which we derive most ■of both our virtues and our defects, hodge-podge acts. The English stat- ute, 17 Geo. II., c. 40, is entitled thus: "An act to continue the several -laws therein mentioned, for preventing theft and rapine On the northern boi:ders of England ; for the more effectual punishing wicked and evil dis- posed persons going around in disguise, and doing injuries and violences to the persons and properties of his Majesty's subjects, and for the more speedy bringing the offenders to justice ; for continuing two clauses, to pre- vent the cutting or breaking down the bank of any river or sea-bank, and -to prevent the malicious cutting of hop-binds ; and for the more effectual punishmeiit of persons maliciously setting on fire any mine, pit, or delph of -coal or cannel coal ; and'of persons unlawfully hunting or taking any red •or fallow deer in forests or chafes, or beating or wounding the keepers or ■other officers in forests, chafes, or parks; and for granting a liberty to (668 TITLES OP LAWS. California. — " Every law enacted by the legislature shall embrace but one subject, and that shall be expressed in the title."* Missouri. — " No private or local bill which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title."f Iowa. — "Every law shall embrace but one object, which shall be expressed in its title."! Wisconsin. — " No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be ex- pressed in the title."§ «i Michigan. — " No law shall embrace more than one object, which shall be expressed in its title."| Indiana. — "Every act shall embrace but one subject, and matters properly connected therewith ; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, Such act shall be void only as to so much thereof as shall not be expressed in the title."^ carry sugars of the growth, produce, or manufacture of any of his Majesty's- sugar colonies in America, from the said colonies directly to foreign ports in ships built in Great Britain, and navigated according to la* ; and to explain two acts relating to the prosecution of offenders for embezzling naval stores, or stores of war ; and to prevent the retailing of wine within either of the Universities in that part of Great Britain called England, with- out license." I take this from a very interesting ',' Report from the Com- mittee upon Temporary Laws, Expired or Expiring," ordered to be printed 13 May, 1796, Pari. Reg., vol. xliv., p. 822. The Report contains a general review of the condition of the statute law of the kingdom, and severely censures it as "discordant, perplexed, incongruous, verbose, tautologous,, and obscure." See also, ante, p. 51. * Constitution of California, art., iv., § 25. t Constitution of Missouri, art. iii , § 34. X Constitution of Iowa, art. iv., § 26. § Constitution of "Wisconsin, art. iv., § 18. 1 Constitution of Michigan, art. iv., § 20. H Cons., art. iv., § 19. This section deserves notice for its precise state- ment of the consequences of a disregard of the constitutional mandate, and is well worthy of imitation. It puts an end to the mischievous conse- quences which might flow from the idea of construing a constitutional direction as directory merely ; and it asserts very distinctly, though indi- rectly, the power of the judiciary over unconstitutional acts. The consti- tution of Indiana, in other respects, bears the marks of more accurate legal knowledge than is always manifest in our constitutions. TITLES OF LAWS. Ohio. — " No bill shall contain more than one subject, which shall 1)6 clearly eixpressed in its title."* KentucJey. — "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."f Louisiana. — " Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title."J The evjls whicli these provisions are intended to preyent, are well stated by the Supreme Court of Louisiana. " The title of an act often afforded no clue to its contents. Important general principles were found placed in acts private or local in their operations ; provisions- concerning matters of practice or judicial proceedings, were sometimes included in the same statute with matters entirely foreign to them ; the re- sult of which was, that on many important subjects the statute law had become almost unintelligibie, as they whose duty it has been to examine or act under it'can well testify. To prevent any further accumulation to this chaotic mass, was the object of the constitutional provision under consideration "§ In the same State, it has been said to be improper to give this provision " too rigorous and technical a construction." If in applying it we should follow the rules of a nice and fastidious verbal criticism, we should often, frustrate the action of the legislature, without fulfilling the intention of the framers of the constitution ; and so it has been said, that an act enti- tled an act to ^^provids a homestead for widows and children " was good, though in fact the statute only * Constitution of Ohio,' art. ii., § 16. t Constitution of Kentucky, art. ii., § 37. X Constitution of Louisiana, tit. vi., ? 115. § Wallser vs. Caldwell, 4 Ann. R., 298. 5t0 TITLES OF LAWS. provided/ the pecuniary means sufficient to pv/r chase a homestead* In the State of Maryland, it has been said that the provision that " every law enacted by the legislature shall embrace but one subject, and that shall be designated by the title," was to prevent graft- ing upon subjects of great public benefit and import- ance foreign and pecuniary matters for local and selfish purposes.f In California, much less importance has been at- tached to the provision, the court saying, " "We regard this section of the constitution as merely directory ; and if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution, seems to have consid- ered this section as directory ; and almost every act of that and the subsequent sessions would be obnoxious to this objection. The contemporaneous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it. so that it has become a rule of property, must govern our decision." J Amendment of Laws. — Serious confusion is con- stantly caused by the great looseness which prevails in our legislative bodies in regard to the practice * Succession of Lanzetti, 9 La. Ann., 329. See, also, Lsefon ps. Dufrocq, ibid, 540. t Davis w. The State, Court of Appeals, 7 Maryland, 151. In Texas, as to the proTJsion that every law must embrace but one object, which shall be expressed in the title, see Battle vs. Howard, 13 Texas,,345. X Washington w. Murray, 4 California, 388. AMENDMENT OF LAWS. 571 pursued hj them on the subject of repealing or ^mend- ing laws* The former branch of the subject has not yet received with us the general attention which it merits ; but at least one State (Maryland)has acted on it, and many of our recent State constitutions con- tain provisions on the subject of amending legislative enactments which are well worthy of careful attention and of general adoption. I give Some of them :■ — Maryland,- — " The style of all laws of this State shall be, ' Be it enacted by the General Assembly of Maryland ; ' and all laws shall be passed by original, bill ; and every law enacted by the legislature shall embrace but one subject, and that shall be described in the title ; and no law, or section of law, shall be revised, amended, or repealed, by reference to its title or section only.''f * " Perhaps the greatest evil of all, as it affects^ the interests of the com- munity at large, is the utter uncertainty that prevails as to what is, and what is not, repealed. This arises frpm the vicious practice already noticed, and which pervades the whole body of the statute law, of repealing some former acts or enactments, not by express reference, but by provisions that 'so much of any former act of Parlia/ment, heretofore made, as is inconsist- ent with or repugnant to the act in question, shall ie, and is thereby, repealed ; ' or, as continually occurs, by clauses, upon the same subject) and for the most part to the same effect, as other clauses in former acts •(but without any express reference to former acts), leaving it doubtful whether the later enactments supersede and repeal the earlier, or whether both are still to remain in force and constitute distinct provisions in the statute law. The doubts and di£3culties, and, consequently, the vast amount of litigation, of which this uncertainty is the cause, are -quite beyond calculation. It has been thought that more than half of the busi- ness of all the courts of law and equity in the Kingdom consists of disputed questions upon the construction of acts of Parliament ; and, if that be so, it is certain that more than a fourth of the whole is caused entirely by this mischievous course of legislation. It is- often found ioipossible to reconcile these accumulations of enactments; hence the multiplicity of suits, argu- ments, and discussions, and, at length, difference among the judges them- selves, and, ultimately, appeals to tribunals of the last resort." I take the above extract from a very interesting letter by Sir Fitzroy Kelly, recently placed at the head of the new commission upon the consolida- tion of the statute law of England, as I find it extracted in the Boston Law Reporter for JanuaBy, 1857. t Cons, of Maryland, art. iii., § 17. 572 AMENDMENT OF LAWS. Texas. — ■' No law stall be revised or amended by reference to its title ; but in sudi case the act revised, or section amended, shall be re- enacted, and published at length."* Michigan. — "No law shall be revised, altered, or amended, by reference to its title only ; but the act revised, and the section or sec- tions of the act altered or amended, shall be re-enacted, and published at length."f Indiana. — " No act shall ever be revised or amended by mere reference to its title ; but the act revised, or section amended, shall be set forth and published at full length."J Ohio. — " No law shall be revised or amended unless the new act contain the entire act revised or the section or sections amended ; and the section or sections so amended shall be repealed."§ Louisiana. — " No law shall be revised or amended by reference to its title ; but, in such case, the act revised or section amended shall be re-enacted, and published at length."|| In regard to the subject of repeal, it has been decided, in Maryland, that the constitutional provision that "no law, or section of law, shall be revised, amended, or repealed, by reference to its title or sec- tion only," is not inconsistent with the doctrine of repeal, by implication, of all laws inconsistent with an independent act of the legislature establishing a new or revising some previous policy of the State. And, in "regard to the general policy of the restriction, it has been said, in the same State, that " this clause was inserted in the constitution for the purpose of pre- venting incautious and fraudulent legislation, and to enable members to act knowingly upon all subjects, and to guard them from the contingency of voting for the repeal or revival of laws, through mistake or acci- * Constitution of Texas, art. vii., § 25. t Constitution of Michigan, art. iv., § 25. X Constitution of Indiana, art. iv., § 21. § Constitution of Ohio, art. ii., §16. II Constitution of Louisiana, tit. vi., § 116. CONSTITUTIONAL MAJORITIES. 573 dent, under the deceptive language often employed in the title of acts."* Constitutional Majorities. — The constitutions of most of the States contain provisions in regard to certain subjects deemed of special importance, by which no legislative action can be had unless positive and specific majorities are obtained-}-. Some of the most prominent are as follows : — • Texas. — " No private cofporation shall be created unless the bill creatiDg it shall be passed by two thirds of both Houses of the legisla- ture ; and two thirds of the legislature shall have power to revoke and repeal aill private corporiations, by making compensation for the fran- chise,"J Michigan. — " The legislature shall pass no law altering or amending any act of incorporation heretofore granted, without the assent of two thii'ds of the members elected to each house ; nor shall any such act be renewed or extended. This restriction shall not apply to municipal corporations."§ " The assent of two thirds of the members elected to each house of the legislature, shall be Requisite to every bill appropriating the public money or property for,local or private purposes."! *• * Davis vs. The State, 7 Maryland, 151. In Indiana, as to the construc- tion of the clause, see Rogers' Admrs. »s. The State, 6 Indiana, 31. The Constitution of Tennessee contains a provision to the effect, that after a bill has been rejected, no bill containing the same substance shall be passed into a law during the same session. — Cons., art. ii., § 19. t For cases decided on these provisions, as to the requisition of a certain number of votes, and how the fact is to appear, see Thomas vs. Daken, 22 Wend. 112 ; Warner vs. Beers, 23 Wend. 108 ; Hunt vs. Vanbelstyer, 25 Wend. 605; Purdy m. The People, 4 Hill, 384; Buffalo and N. Falls R. R, vs. Buffalo, 5 Hill, 209 ; People ex rel. Lynch vs. Mayor, 25 Wend. 680 ; People vs. Morris, 13 Werid. 325 ; Lansing vs. Smith, 8 Cowen, 146 ; Coml. Bk. of Buffalo vs. Sparrow, 2 Denio, 97 ; IQe Bow vs. The People, 1 Denio, 9 ; Gifford ««. Livingston, 2 Denio, 380 ; Russell vs. The Mayor, 2 Denio, 461 ; Warner vs. The People, 2 Denio, 272 ; Supervisors of Niagara vs. People, 4 Hill, 20 ; Supervisors of Niagara vs. People, 7 Hill, 504 ; see, also, ante, ch. iii., p. 68. f I Constitution of Texas, art. vii., § 31. § Constitution of Michigan, art. xv., § 8. \ Constitution of Michigan, art. iv., § 45. 574 THE JUDICIARY. Indiana. — " A majority of all the members elected to each house shall be necessary to pass every bill or' joint resolution."* In Micliigan, under tlie clause above cited,— that the legislature shall pass no act of incorporation, unless with the assent of at least two thirds of each house, — it has been decided that by this phrase is meant the legislative body, or quorum to do business, com- prising a majority of the members elected, to and qualified to act as members of the body.f The Judiciary. — Most of the State constitutions, as has been elsewhere said, seek to draw a clear line between the legislative and judicial functions ; but in hardly any thing have they less agreed than in regard to the creation and the tenure of judicial office. In some cases the States disagree with each other ; and in others their own policy, at different times, is irrecon- cilably variant and discrepant. In New Hampshire, the constitution in noble language declares it to be " essen- tial 'to -the preservation of the rights of every individ- ual, his life, liberty, property, and character, that there be an impartial interpretation of the laws and adminis- tration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, that the judges of the Supreme Judicial Court should hold their offices so long as they behave well, — subject, how- ever, to such limitations, on account of age, as may be provided by the constitution of the State; and t.,at they should have honorable salaries, ascertained and established by standing laws."J * Constitution of Indiana, art. iv., § 25. t Southworth vs. Palmyra and Jackson R. R. Co., 2 Michigan, 287. t Constitution of New Hampshire, part i., art. 35. THE JUDICIARY. 575 On the otLer hand, 'the constitution of Mississippi holds this language : " No "person shall ever be ap- pointed, or elected to any office in this State for life, or during good behavior ; but the tenure of all offices shall be for some limited period of time, if the person appointed or elected thereto shall so long behave well."* The practice of the States has been equally discrepant. In some, the judges'have been appointed for a term of years ; in some, during good- behavior ; in some, till a specified age ; in some, they have been created by a governor and senate ; in some, by the legislature ; and now, within the last ten years, since the adoption of the New York constitution of 1846, many of the States have made them eligible by the popular voice, and for terms of office varyiijg from six to fifteen years. I have intended to avoid, in this volume, the discus- sion of any questions having any political bearing; nor can it justly be said that. these various systems have been as yet sufficiently tried to furnish a com- plete J;est of what may be the best mode of creating these officers ; or as to that which is probably more important, what should be the tenure of judicial office in this country ; but all will agree that there is no subject of greater importance ; and that every other consideration must finally give way to the paramount necessity of securing an honest and an able judiciary. In Louisiana, the provisions of the State constitu- t'on creating the judiciary, and prescribing the mode of their appointment or election, have been held to be incompatible with the statute authorizing a judge who is incompetent, or who declines to try a cause,-^or, in the language of that State, recuses himself, — to appoint * Constitution of Mississippi, art. i., § 80. 516 SUITS AGAINST THE STATE. a member of the bar for the purpose ; and the act has been declared void.* Suits against the State.— Several of the States have, by special constitutional clauses, abolished the old feudal doctrine which forbids all judicial redress against the government. These provisions are so much the more important, because they tend to diminish the number of those applications to legislative consideration which are among the most fertile sources of that corruption which is one of the great evils of our age. I annex the pro- visions as they stand iu several of the State constitu- tions : — California. — "Suits may be brought against the State in such manner and in such courts as shall be directed by law."f ^ Wisconsin. — " The legislature shall direct, by law, in what manner and in what courts suits may be brought |gainst the State."J Arkansas. — "The General Assembly ^hall direct, by law, in what courts and in what manner suits may be commenced against the State."§ Missouri. — " The General Assembly shall direct, by law, in what manner and in what courts suits may be brought against the State."|| Illinois.—" The General Assembly shall direct, by law, in what manner suits may be brought against the State."^ Indiana. — " Provision may be made, by general law, for bringing suit against the State as to all liabilities originating after the adoption of this constitution ; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed."** In New York, the old rule prevails, that the State cannot be sued, in her own courts, for any cause of * The State of Louisiana vs. Judge of Sixth District, 9 La. Ann. K. 62. t Constitution of California, art. xi., § 11. I Constitution of Wisconsin, art. iv., § 27. § Constitution of Arkansas, art. iv., § 22. II Constitution of Missouri, art. iii,, § 26. 1 Constitution of Illinois, art. iii., § 84. ** Constitution of Indiana, art. iv., § 24. Vide ante, p. 568, note, as to the Constitution of Indiana. MISCELLAHEOUS PEOVISIOITS. 571 action. In conformity witli tliis. principle, it has been decided, that the State courts have no power to restrain, by injunction, the acts of officers of the State who are proceed.ing under the authority of law ; and that th« fact of the statute in question being uncon- stitutional forms no ground for granting the injunc- tion.* The courts of the Federal government, how- ever, are the legal superiors of th,e States in cases in which they have jurisdiction; and it has been held that an injunction may be granted by the United States courts to restrain State officers from collecting a State tax which was unlawful under the laws of the United States.f A few interesting miscellaneous provisions of our State constitutions may be noticed. By art. iv., § 11, of the constitution of Alabama, the power to remit fines and forfeitures is given to the governor ; and in that State it has been held, thg,t this power cannot be exercised by the legislature, and that, there- fore, any act which attempts, directly or indirectly, to * Thompson in. The Commissioner of the Canal Fund, 2 Abhott's Pr. Rep. 248. In regard to municipal corporations, the contrary doctrine is held ; and where an act of such a corporation is clearly illegal, and the necessary effect of the act will be to injure or impose a burthen on the property of a corpo- rator, it will warrant the interference of the court by injunction ; Chris- topher vs. The Mayor, &c. of N. Y., 13 Barb. 567. So, if the municipal corporation is guilty of a breach of trust; Milhau vs. Sharp, 15 Barb. 193. So, again, the same principle has been decided where the act of the corporation was in violation of an express law, and tindeii to increase the taxes ; De Baun m. The Mayor, 16 Barb. 392. In this case Edmonds, J., and Morris, J., dissented. Under the former judicial system of the State, the Court of Chancery had no power to enjoin proceedings for the collection of an illegal assess- ment ; Meserole vs. Mayor of Brooklyn, 8 Paige^ 198 ; reversed on appeal, by the Court of Errors, 26 Wend. 132. t Osborn vs. The U. S. Bank, 9 Wheat. 738. sr 578 MISCELLAN-EOUS PE0TISI0N3. remit a fine, either "before or after it has been paid, is Tinconstitutional* lu Louisiana, the constitution declares that the State shall not become a subscriber to the stock of any corporation or joint-stock company ;f but it has been held that this does not take from the legislature the power to authorize a subscription by a municipal corporation to a corporation or joint-stock company. J The constitution of New York, of 1846, making an effort to eradicate the manorial tenures or long leases, reserving rents in money, produce, or services, which, in the language of Mr. Justice Gridley, "experience had proved to be prejudicial to the prosperity and interests of the State, as a question of political econ- omy," prohibited leases or grants of agricultural land for more than twelve years, in which any rent or ser- vice should be reserved. It has been held, that this provision applies only to such rents and services as are certain, periodical, and which issue out of the land, and not to covenants for the performance of duties not cer- tain nor periodical, nor confined to the use of the land alone.§ The constitution of the State of Indiana declares] " that all trust funds held by the State shall remain inviolate, and be faithfully applied to the purposes for which the trust was created ; " and under this clause * Haley vs. Clark, ,2&. Ala. 439. t Art. 121. I Police Jury ®s. McDonogh's Succession, 8 La. Ann. R. 341 ; CityoflTew Orleans vs. Graihle, 9 La. Ann. R. 661. § Stephens vs. Reynolds, 2 Seld. 454. The constitution of Michigan contains a similar proviso : " No lease or grant hereafter of agricultural land, for a longer period than twelve years, reserving any rent, or service of any kind, shall be valid." — Cons., art xviii., § 12. I Cons., art. viii., § 7. GENERAL OPERATION. S79 it has been held, that a law diverting the proceeds of the sixteenth section, granted by Congrfess to the inhabitants of each township for the use of schools, fi-om the use of schools in the congressional township where the land was situated to the use of the school system of the State at large, is unconstitutional and void* In terminating the examination, necessarily extremely partial and incomplete, of this interesting subject, the most superficial observer cannot fail to be struck with the great and growing uniformity in the fundamental organization of so many governments which, in their several spheres, are absolutely independent. Pro- visions inserted in the revision of one State constitu- tion are adopted by others;, the judicial interpretation adopted by the courts of one member of the Union is followed by its sister States; so that the similarity between our institutions is daily becoming more and more manifest. In regard to the division and general arrangement of political power, the right of suffrage, the guarantees of private property, the protection of private rights, — the gradual result of the three quarters of a century which have elapsed since the foundation of our institutions was laid, aided by the active intercourse and communication of our citizens, and by a press of great intelligence and vigor, has been to bring the members of the qonfederacy to a similarity of condition greater than any other age or any other people can show. So marked a uniformity of language, laws, and institutions, prevailing through territories so vast or among populations so numerous, the world has never before beheld. * The State vs. Springfield Township, 6 Indiana, 88. 580 GENERAL OPERATION. On one subject alone does any considerable diversity of condition or difference of opinion exist. That sub- ject is rendered embarrassing beyond all others by disparity of race, and by dissimilarity of climate and production. But our past history affords us reason- able grounds to hope and to believe that if the ques- tion be approached in the fraternal spirit which our history inculcates, and in the humane temper which marks our national character, a solution of the diffi- culties attendant upon it will be found, worthy of the practical sense to which we lay claim, and calculated to perpetuate that Union on which not only our dear- est interests, but the best hopes of humanity depend. As to the power of the judiciary to investigate the correctness of legislative action founded on a question of f%ct, the following case may be noticed : The constitution of New Tork, of 1846, provided that every county should be entitled to a member of Assembly ; and that no new county should be Iiereafter created, unless its population shall entitle it to a mem- ' ber. The county of Schuyler was created by laws of 1854, c. 386. The question was, whether the legislature, in determining the question of popu- lation, was confined to the decennial State census, taken in 1845, or whether its own decision on the point was to be considered conclusive, — ^De Camp vs. Eveland, 19 Barb. 81. A repealing clause in an unconstitutional statute, declaring that all laws contravening the provisions of this act be, and the same are hereby, repealed, does not affect the previous laws,— Tims m. The State, 26 Ala. 165. Where an act is void because unconstitutional, an amendatory act is of no effect to give it validity, — Bradley vs. Baxter, 15 Barb. 131 ; M'Spedon & Baker w. Stout, Sup. Court, N. Y., by Davies, J. (not reported.) Mr. Rawle's work on the Constitution, published in 1825, contains the following statement : — " The provincial constitutions of America were, with two exceptions, modeled with some conformity to the English theory ; but the colonists of Rhode Island and Providence Plantations were empowered to choose all their oflBcers — legislative, executive, and judicial; and, about the same time, a similar charter was granted to Connecticut. And thus, complains Chalmers, a writer devoted to regal principles, ' a mere democ- racy, or rule of the people, was established. Every power, deliberative HOFFMAN'S LEGAL OUTLINES. 581 ■# and active, was invested in the freemen or their delegates ; and the supreme executive magistrate of the 'empire, by an inattention which does little honor to the statesmen of those days, was wholly excluded.' He expresses his own doubts whether the king bad a right to grant such charters. " But, although in all the other provinces the charters were originally granted, or subsequently modified, so as to exclude the principle of repre- sentation from the executive department, these two provinces, at the time of our Revolution, retained it undiminished. The suggestion of the full, Tinqualifled extension of the principle of representation may, therefore, be justly attributed to the example of Rhode Island and Connecticut, which when converted into States, found it unnecessary to alter the nature of their governments, and continued the same forms in all respects, except the nom- inal recognition of the king's authority, till 1818, when Connecticut made some minor changes and adopted a formal constitution. Rhode Island, however, is still satisfied with the charter of Charles XL, from which it has been found sufficient to expunge the reservation of allegiance, the required conformity of its legislative acts to those of Great Britain, and the royal right to a certain portion of gold and silver ores, which, happily for that State, have never been found within it." — Rawle on the Constitution, p. 9. " Connecticut," says the Federalist, Letter 38, " has always been con- sidered as the most popular State in the Union." Mr. Hoffman, in his Legal Outlines, defines the Constitution of a State to be " The fundamental regulations which determine the manner of execut- ing the public authority, and which define the relation between the political body and its members." — ^Lect. ix. p. 365. Mr. Hoffman's work was, unhappily, left incomplete, the first volume only, relating to the elements of natural, political, and feudal jurisprudence, was published. The second and third volumes, intended to treat of the elements of municipal law, never appeared. The volUme which we have is the production of an accomplished lawyer and scholar, full of the jnarka of extensive reading and accurate reflection. The seventh chapter, of law and its general properties, is particularly valuable. CHAPTER XI. LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTITUTION OF THE UNITED STATES. V Clanses of the Federal Constitution which operate as checks on legislative action — General nature m{ the Legislative Power of the Union — General Principles of Constitutional Construction or Interpretation — Interpreta- tion and application of Particular Clauses — Habeas Corpus — Bills of Attainder — Ex-post-faoto Laws — Fugitives from Justice — Fugitives from Labor — Religious Freedom —Freedom of Speech and of the Press — Search Warrants and Seizures — Only one Trial for Offenses — Due Process of Law — Compensation for Private Property taken for Public Purposes — Trial by Jury — Excessive Bail and Cruel Punishments — The Obligation of Con- tracts — ^Vested Eights — Conclusion, Iw my eonsideration of tlie Constitution of the United States, with reference to the subject of this work, I shall pursue the same general course which I have followed in regard to the Constitutions of the several States. I shall, therefore, not treat of the organization of political authority, nor of the distri- bution of power between the State legislatures and the general government, resulting from the provisions of the Federal charter! I shall, on the contrary, con- fine myself mainly to the consideration of those clauses of the instrument which act as limitations on the action either of Congress or of the legislatures of the several States, in regard to matters of private right. BILL OF RIGHTS. S83 k I omit, therefore, as falling outside of the scope and province of this work, all the interesting cases grow- ing out of the clauses of the Federal Constitution in regard to the judiciary, the regulation of commerce, emission of bills ;of credit, the borrowing of money, levying of taxes, naturalization, bankruptcy, coinage, the post-office, patents, copyrights, and the like. These belong, strictly, to a treatise on the Con- stitution' of the United States, a subject that has already been treated by a hand far abler, far more familiar with the theme, but which now, unhappily, rests from its useful and incessant labors.* My chief object, as I have said, being to tr|at of written law as settling and declaring private rights and duties, I shall, after an examinatiori of the general principles of interpretation applica- ble to the Constitution of the United States, limit myself almost exclusively to a consideration of those clauses which have no direct connection with the organization or distribution of political power, but are intended, by limiting legislative supremacy, to operate as definitions of private duty or guarantees of private right, — to those clauses, by virtue of which it has been said, that the Constitution of the United States contains what may be deemed a Bill of Rights * In addition to the great work of Mr. Justice Storj, and the volumes of Mr. Rawle and Mr. Sergeaut, the student of constitutional law who wishes Jumrire fontes -will recur to the Madison Paipers and the Federalist, Mr. Tucker's Blackstone, the writings of Jefferson and Hamilton passim, and to our truly national work, the Commentaries of Mr. Chancellor Kent. In recent days, the speeches and writings of Mr. Webster anfl of Mr. Cal- houn, great rival chiefs of widely adverse schools, furnish most important instruction. There is no better or more pleasing cempend for popular use or elementary instruction, than the Constitutional Jurisprudence of the Hon. Wm. Alexander Duer, 2d edition, 1856. ,*, 584 ■ CONSTITUTIONAL PROVISIONS. for the people of each. State ;* and in regard even to these, I shall discuss them in ^ brief and summary way, for the same reason that they may be found ably and amply discussed elsewhere. The sections of the Constitution of the United States, containing the clauses designed to perform the functions to which I have referred, will be found to be the following : — Article I,, Section 9. (2.) The privilege of the writ of habeas corpus shall not be sus- pended, unless when, in cases of rebellion or invasion, the public safety may require it. (3.) No bill of attainder, or ex post facto law, shall be passed. Section 10. (1.) No State shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obli- gation of contracts, or grant any title of nobility. Article III., Section 2. § 3. The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may, by law, have directed. Section 3. (1.) Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the • Fletcher vs. Peck, 6 Cranch, 138. "In like manner," says the Federalist, "the proposed Constitution, if adopted, will be the Bill of Rights of the Union." (Letter 84.) That it did not contain a Bill of Rights in form, was, as is well known, one of the chief arguments used against its adoption. Story Com. § 1858. CONSTITUTIONAL PROVISIONS. 586 testimony of two witnesses to the samp overt act, or on confession in open court. (2.) Tlie Congress shall have power to declare the punishment of treason ; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. Article IV. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of any other State ; hnd the Congress may, by general laws, prescribe the manner in which such acts, rec- ord?, and proceedings shall be proved, and the effec't thereof. Section 2. (1.) The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. ,» (2.) A person charged in any State with treason, felony, or other crime, who shall fleefrom justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. (3.) No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regu- lation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Article VI. (3.) The senators and representatives before mentioned, and the members of the several State legislatures, and all executive and judi- cial officers, both of the United States and of Ihe several States, shall be bound by oath or afiSrmation, to support this Constitution ; but no religioiis test shall ever be required as a qualification to any office or public, trust under the United States. AMBsnMENTS. — Article I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. 580 OONSTITUTIOBTAL PEOVISIONS. Article II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Article III. No soldier shall, in time of peace, be quartered in any house without the consent of the owner ; not in time of war, but in a man- ner to be prescribed by law. Article IV. The right of the people to be secure in their persons, houses, papers, and eflfects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place ' to be searched, and the persons or things to be seized. Article V, No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in* cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same oflFense, to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and dis- trict wherein the crime shall have been committed, which district shall have been previously ascertaiued by law,'anct to be informed of the nature and cause of the accusation, to be confronted with the wit- nesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. Article VII. In suits at common law where the value in controversy shall exceed twenty dollars, the right of tiial by jury shall be preserved, and CONSTITUTIONAL PROVISIONS. 587 no fact tried by a jury shall be otherwise re-examined, in any court of the United States, than according to the rules of the coinmon law. Article vill. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Article X. The powers not delegated to the United States by the Cdnstitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Before proceeding to discuss the interpretation of these clauses in detail, it is desirable to have a general idea of the nature of the legislative power of the Union, as well as of the leading principles of con- struction applicable to the Constitution of the United States. Eules of interpretation vary with the instru- ment to be expounded. A statute is not controlled by the same maxims as those applicable to State constitu- tions ; and State constitutions are subjected, in some respects, to different principles of construction from those which are held proper in regard to the Con- stitution of the United States.* * Mr. Justice Story, in the fifth chapter of the second book of his Com- mentaries on the Constitution, states the rules of interpr^etation applicable to the Constitution of the United States, to be: I. That it is to be construed according to the sense of the t^ms and the intention of the parties. II. We are to consider its nature and objects, its scope and design as apparent &om the structure of the instrument viewed as a whole, and, also viewed in its component parts, taking into view the antecedent situation of the country and its institutions, the existence and operations of the State governments, the powers and operations of the confederation, contemporary history, contemporary interpretation, and practical exposition. III. It is to receive a reasonable interpretation of its language and its powers, not straining its words beyond their common and natural sense, but giving their exposition a fair and just latitude. 588 LEGISLATIVE POWER OF THE UOTOU. The great political idea, if it may be so called, on this subject of the Federal Charter, is the one expres- sed in the tenth amendment above cited, and repeat- rV. Where a power is granted in general terms, the power is to be con- strued as co-extensive with the terms, unless some clear restriction upon it is deducible from the context. V. A power given in general terms is not to be restricted to particular cases, merely because it may be susceptible of abuse. VI. A given power is not to be extended by construction beyond the fair scope of its terms, merely because the restriction is inconvenient, im- politic, or even mischievous. VII. No construction of % given power is to be allowed which plainly defeats or impairs its avowed objects. VIII. Where a power is remedial in its nature, there is much reason to contend that it ought to be construed liberally. IX. In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. X. Powers may be implied. XL As between the States and ■ general government, some of the powers conferred on the latter are concurrent, and some exclusive. XII. The maxims which have found their way not only into judicial discussions but into the business of common life, as founded in common sense and common convenience, are applicable to the construction of the Constitution. XIII. The rational import of a single clause is not to be narrowed so as to exclude implied powers resulting from its character, simply because there is another clause enumerating certain po\^ers whicb might otherwise be deemed implied powers within its scope. XIV. Every word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. XV. Where words have different meanings, resort must be had to the context to determine the construction. XVI. Where technical words are used, the technical meaning must be given them. XVII. The same word is not necessarily to be construed in the same sense wherever it occurs in the same instrument. XVIII. A constitution does not, and cannot from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Some of these rules are, it will be observed, principles of what may be called political construction ; others, very sound and sagacious maxims ap- plicable to all interpretation, and especially to that of constitutional law. LEGISLATIVE POWER OF THE UNION. 589 edly in various ways affirmed* that as to the general outline of the instrument, and the government created by it, the Constitution oOhe United States is a grant and not a limitation of power. Congress can exercise no powers except those expressly delegated. Of course, however, this idea does not apply to the ex- press prohibitions contained in the instrument, whe- ther imposed upon the States or on the general govern- ment. In regard to these, the Constitution of the United States, like those of the several members of the confederacy, is a limitation on legislative power. This broad- line of distinction between the powers of the Federal government and that of the States, leaves little room in regard to the government of the Union, The learned author also elaborately discusses the subject of the formation of the government, whether created by the States as such or by the people directly, as well as the general question whether the Constitution is to be Strictly construed. These questions are of the deepest interest, but they relate more particularly to the distribution of political power ; and I there- fore content myself here with a bare reference to them. A Constitution, from its nature, deals in generals, not in details. Its framers cannot perceive minute distinctions which arise in the progress of the nation ; and therefore confine it to broad and general principles. Bank U. S. vs. Deveaux, 5 Cranch, 87, a case as to the citizenship of corporations aggregate. * The Federal government is one of delegated powers. All powers not delegated to it, or inhibited to the States, are reserved to the States or the people. Briscoe vs. Bank of Commonwealth of Kentucky, 11 Peters, 257 ; see this case in regard to the clause prohibiting the States to issue bills of credit. " A different rule obtains in interpreting the powers in the constitutions of the United States and the States. In ascertaining the powers of the for- mer, we examine to see what powers are expressly granted or are neces- sarily implied for their exercise. In the latter we only examine to see what are denied by the Federal and State constitutions ; and my view of the law- making power of these State governments is, that they can do any legisla- tive act not prohibited by the Constitution; and. without and beyond these limitations and restrictions, they are as absolute, omnipotent, and uncon- trollable as Parliament." Mason vs. Waite, 4 Scammon, 134, 690 LEGISLATIVE POWER OF THE UNION, for the discussion of some of the general questions in reward to the exercise of the law-making authority which we have elsewhere considered. But the Federal Constitution intends to preserve the same lines of demarkation between the executive, the legislative, and the judicial powers, as those which the States have described ; and this separation has given rise to a dis- cussion in regard to the delegation of legislative power by Congress, analogous to that we have already con- sidered. The government of the United States have by various acts, adopted the legislation of the respec- tive States in regard to writs, process, imprisonment for debt, and other matters ;* and in so far as this adop- tion is a mere application of rules already known and in force, to questions arising under the jurisdiction of Congress, it appears to be unobjectionable ; but it has been intimated that Congress could not adopt prospec- tively future acts of State legislation on any given subject, upon the ground that it would be a delegation of legislative power.f * We have already considered the rules which govern the adoption by the Federal tribunals of the decisions of the State courts, in relation to their constitutions and their local law.J In deciding, however, on ques- tions which are not questions of mere local municipal law, but arise under the law merchant, the Supreme * Wayman va. Southard, 10 "Wheat. 4; Bank of the U. S. vs. Halstead, 10 Wheat. 51 ; Beers vs. Haughton, 9 Peters, 829. t U. States «j!. Knight, 3 Sumner, 369 ; In the Matter of Watson Free- man, 2 Curtis, p. 495 ; Oooley vs. Board of Wardens of Philadelphia, 12 How. 299. i Webster vs. Cooper, 14 Howard, 488 ; Greene vs. James, 2 Curtis, 187 ; an£«, p. 483. GENERAL EULES OF CONSTRTJCTIOJJ'. 591 Court pronounces its own judgment, and does not accept the Tules of tlie State courts as authority* Having thus glanced at the general notions of the legislative power of the Union, we proceed to consider the leading rules of interpretation applied to the Con- stitution of the United States. The political rules of construction in regard to the federal Charter, have been stated as follows hj Marshall, C. J., who, assisted by a bar and a bench of unsurpassed ability, may fairly claim the title of Expounder of the instrument. The government, then, of the United States, can claim no powers which are not granted, to it by the Constitution ; and the powers actu- ally granted' must be such as are expressly given or by necessary im- plication. On the other hand, this instrument, like every other grant, is to have a reasona,ble construction according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication; The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen, that this would be a perilous and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrut- able purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present-time might seem salutary, might in the end prove •■ * Swift vs. Tyson, 16 Peters, 1 ; Carpenter vs. Prov. W. Ins. Co. 16 Peters, 495 ; Foxcroft vs. Mallett, i How. ^77 ; The Gloucester Ins. Co. vs. Younger, 2 Curtis, 338. 692 GENERAL EULES OF CONSTRUCTION'. the overthrow of the system itself. Hence, its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers as its own wisdom and the public interest should require.* And again, the same eminent man has said, — To say, that the intention of the instrument must prevail ; that this intention must be collected from its words ; that its words are to be understood in»that sense in which they are generally used by those for whom the instrument was intended ; that its provisions are neither to be restricted into insignificance, nor extended to objects not compre- hended in them, nor contemplated by its framers, — ^is to repeat what has been already said more at large, and is all that can be necessary.^- I proceed now to state the rules of construction not of a political nature, which are applicable to the instrument. The Unconstitutionality must he Clear. — It has been repeatedly held, that to warrant the courts in setting aside a law as unconstitutional, the case must be so clear that no reasonable doubt can be said to exist. The Supreme Court has said, — The question whether a law be void for its repugnancy to the Con- stitution, is at all times a question of much delicacy, which ought sel- dom or ever to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be un- worthy of its station could it be unmindful of the solemn obligation which that station imposes. But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The oppo- sition between the Constitution and the law, should be such that the judge feels a clear and strong conviction of their incompatibility with each other. If such be the rule by which the examination of this * Martin m. Hunter's Lessee, 1 Wheat. 306—326. t Marshall, 0. J., in Ogden w, Saunders, 12 Wheat 218 — 882. CONTEMPORANEOUS EXPOSITION. 593 case is to be igoverned and tried (and that it is, no one can doubt), I am certainly not prepared to say that it is not, at least, a doubtful case, or that I feel a clear conviction that the case in question is in- compatible with the Constitution of the United States.* Contemporaneous Mcposition. — It is well settled tliat aid, in regard to the construction of tlie Constitution of the United States, may be derived from contempo- raneous exposition and legislative exposition ;f but this cannot be carried so far as to permit usage to override the express terms of the instrument ; and Mr. Justice Story has said that contemporary interpreta- tion must be resorted to with much qualification and reserve.^ Mol/rinsic facts not admitted to contradict the words of the instrument. — The general principle on which we have heretofore insisted, that the meaning of a written law is to be found in its terms, and that we are not at liberty to resort to extrinsic facts and (jircumstances to ascertain what the framers might have intended, has * Fletcher w. Peck, 6 Cranch, 128 ; see also, to same point, U. S. vs. Wonson, 1 Gallison, pp. 4 and 18 ; U. S. Bank vs. Halstead, 10 "Wheat, p. 63 ; Parsons m. Bedford, 8 Peters, 433, 448 ; Ogden vs. Saunders, 12 Wheat. 294. In Green vs. Biddle, Mr. Clay, arguendo, said, " The Court will exercise its power with the most deliberate caution. This Court is in- vested with the most important trust that was ever possessed by any tribunal for the benefit of mankind. The political problem is to be solved in America, whether written constitutions of government can exist. They certainly cannot exist without a depositary somewhere of the power to pro- nounce upon the conformity of the acts of the delegated authority to the fundamental law. This court is that depositary, and I know not of any better. But the success of this experiment, so interesting to all, that is dear to the interests of human nature, depends upon the prudence with which this high trust is executed." 8 Wheat. 48. t Johnson, J., in Ogden vs. Saunders, 12 Wheat, p. 290; Stuart vs. Lakd, 1 Cranch, 299 ; Martin vs. Hunter's Lessee, 1 Wheat. 304; Cohens vs. Virginia, 6 Wheat. 264, 418 to 421. X Com. on Con. § 406. 38 594 EXTEINSIC FACTS. frequently been declared to apply to the Constitution of the United States. " It is well settled that the spirit of a Constitution is to be respected no less than its let- ter ; yet that spirit is to be collected chiefly from its its words, and neither the practice of le^lative bodies nor other extrinsic circumstances, can control its clear language." Such was the language of Mar- shall, C. J., in answer to the objection that the State insolvent laws did not contravene the prohibition upon laws impairing the obligation of contracts, because they were supported by the unbroken practice of the State legislatures for thirty years ; and he proceeded to say, — It would be dangerous in the extreme to infer from extrinsic cir- cumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and com- mon import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.* Words to be taken in their natwral sense. — Chief Justice Marshall has said, " As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the patriots who framed our Con- stitution, and the people who adopted it, must be * Sturges m. Orowninshi^ld, 4 Wheat. 202, 203. TRANSPOSITION OF CLAUSES. 595 understood to liave employed words in their natural sense, and to have intended what they have said."* Tran^osition of Clcmses. — In regard to the trans- position of sentences in order to arrive at the construc- tion of a constitutional provision, Mr. Justice Wash- ington has used this sensible language : — In the construction of this clause of the tenth section of the Con- stitution, one of the counsel for the defendant supposed himself at liberty so to transpose the provisions contained in it as to place the prohibition to pass laws impairing the obligation of contracts, in juxtaposition with the other prohibition to pass laws making anything but gold. and silver coin a tender in payment of debts, inasmuch as the two pro- visions relate to the subject of contracts. That the derangement of the words and even sentences of a law, may sometimes be tolerated in order to arrive at the apparent meaning of the legislature, to be gathered from other parts or from the entire scope of the law, I shall not deny. But I should deem it a very hazardous rule to adopt in the construction of an instrument so maturely considered as this Con- stitution was by the enlightened statesmen who framed it, and so severely examined and criticised by its opponents in the numerous State conventions which finally adopted it.f Reference to clauses struch out. — It has been said by the Supreme Court, that although a clause may have been struck from the Constitution* by amendment, it may still be referred to as an aid in the construction of those clauses with which it was originally associated. J Acts void in pa/rt and valid in part. — It is well set- tled that an act may be void in part by reason of its violation of a constitutional provision, and gobd as to the remainder. " If any part of the act be unconstitu- tional," said the Supreme Court of the United States, " the provisions of that part may be disregarded, while * Gibbons to. Ogden, 9 Wheat. 188, per Marshall, C. J. t Ogden vs. Saunders, 12 Wheat, p. 267, 268. X Fletchers. Peck, 6 Cranch, 189. 596 EFFECTS OF UNCONSTITUTIONALITT. full effect will be given to such as are not repugnant to the Constitution of the United States, or of the State, or to the ordinance of 178T."* Effects of UnconstitutionaMt/y. — The effect of a judgment or decree declaring a statute ^oid for un- constitutionality, is very stringent. It has been said by the Supreme Court of Massachusetts, that an act of the legislature which it has no constitutional right or power to pass, is a nullity, and all proceedings under it are void. So, where an insolvent debtor is dis- charged from his debts by virtue of an unconstitu- tional State bankrupt-law a creditor will not be conrfdered to have assented to, or ratified the dis- charge, notwithstanding he may have proved his debt under the commission and received a dividend, or have acted as one of the assignees. The dividend received by him will be considered as a payment pro tanto of his debt.f In closing this branch of our subject we may remark, that it is settled that where the limitations on the law-making power contained in the Consti- tution of the United States, are expressed in general terms, they are' naturally and necessarily applicable to the government created by that instrument alone, and have no application to the legislative power of the State governments. So, it has been decided in regard to the fifth amendment, declaring that * Bank of Hamilton «s. Dudley's Lessee, 2 Peters, 526 ; see also, Ogden vs. Saunders, 12 Wheat. 295, per Johnson, J. " It was not denied on the argument, and I presume cannot be, but that a law may be void in part and good in part ; or in other words, that it may be void so far as it has a retrospective application to past contracts, and valid as applied prospec- tively to future contracts." + Kimberly «s. Ely, 6 Pick. 440. POWER OF THE FEDERAL JUDICIARY. S97 private property shall not be taken without com- pensation * So, in regard to the sixth amendment, securing the right of trial by jury in criminal cases.f So, in regard to the seventh amendment, in regard to the right to trial by jury in civil cases. if So, in regard to the fourth amendment, protecting indi- viduals against unreasonable seizures.§ So, too, in regard to the prohibition on cruel and unusual punish- ments.! Iji *^1 these cases the limitations act upon Congress, and not on the State legislatures. It is also to be observed, that the judiciary of the United States has no general authority to declare acts of the States void simply because they are repugnant to the constitution of the particular State. Such power only belongs to it when it administers the local law of the State, and' acts as a State tribunal must act.^ It is important to notice the rule which has been stated, that where a constitution passes, taking away the power from the legislature to pass laws on a par- ticular subject, this is eqjiivalent to a repeal of existing laws on that subject.** * Barron v». The Mayor, &c., of Baltimore, 7 Peters, 243. t Murphy vs. The People, 2 Cow. 815 ; Jackson vs. Wood, 2 Cowen, 819. X Livingston vs. The Mayor, 8 Wend. 100 ; Colt w. Eves, 12 Conn. 243, § Reed m. Rice, 2 J. J. Marsh. 45. II James vs. The Commonwealth, 12 Serg. and Rawle, 220 ; Barker vs. The People, 8 Cowen-, 687. t Calder m. Bull, 3 Dall. 386 ; Satterlee vs. Matthewson, 2 Peters, 380. The Supreme Court has no authority on a vrit of error from a State court, to declare a State law void on^account of its collision with a State constitu- tion, it not being a case embraced in the judiciary act, which alone gives power to issue a writ of error. Jackson vs. Lamphire, 3 Peterg, 289. ** Ogden vs. Saunders, 12 Wheat. 278, per Johnson, J. I may here notice that it has been said in Illinois, that a proviso in a constitution, as in a statute, cannot enlarge the enacting clause, it can only restrain, qualify, or explain. Sarah vs. Borders, 4 Scam. 344 ; see this 598 WRIT OF HABEAS CORPUS. Having thus considered the principal general rules which govern in the interpretation of the Constitution of the United States, I proceed to consider some of the leading decisions made upon the above-cited clauses of the instrument, reserving to the last, the examina- tion of the provision contained in the tenth section of the first article, in regard to the obligation of con- tracts, which thus far has proved, in regard to private rights, to be practically the most important clause that the instrument contains. Habeas Corpus. Art. i. sect. 9, § 2. — The writ of of Jiaheas corpus ad svhjidiend/wm, was first secured to English liberty by the famous statute 31 Car. 11. c. 2 ;, but in England, like all the other guarantees of private right, it is subject to the pleasure of Parliament. Here, we have fixed it in the Constitution, and de- clared that it can only be forfeited during periods of warfare or rebellion. Practically as yet, Congress ha^ never authorized the suspension of the writ. It is understood that as the unlimited power is vested in. Congress, the right to judge of the expediency of its exercise is also absolute in that body.* Bills of AUavnder. Art. i., sect. 9, § 3. — Bills of attainder (the enactment of which is forbidden with us as well by the States as by Congress), as they are strictly called when inflicting capital punishments, and Bills of pains and penalties, or those which award lesser punishment, are believed to be equally within the scope of the constitutional restriction. f They botb case as to the ordinance of 1787, and the constitution of Illinois. On the subject of the ordinance of 1787, see also, 1 Missouri, 4:72, 725 ; Walker,. Miss. 36 ; 20 Martin, 699. * Martin ot. Mott, 12 Wheat. 19. t Fletcher vs. Peck, 6 Cranch, 188. EX POST FACTO LAWS. 599 belong in fact, as we have already noticed, to the most vicious class of judicial legislation* The history of England is filled with instances of the gross abuse of this tremendous engine of political power ; but they are now, apparently, as little likely to be resorted to there as here, unless some violent domestic convulsion should disturb the equilibrium of that eminently prac- tical and conservative people.f JEoc^osirfacto Laws. Art. i., sect. 9, § 3. — This phrase is now jrell settled to apply only to acts of a criminal nature. An ex post facto law is one which renders an act punishable in a manner in which it was not punish- able when it was committed, whether by personal or pecuniary penalties.^ The prohibition, whether in regard to the government of the Union or of the several States, has no application to retrospective laws of a civil character, nor any tendency to protect prop- erty or vested rights of a civil description.§ * AnU, p. 146. t See Wooddeson's Law Lectures, lect. 41. Mr. Justice Story in his Commentary, § 1338, says that the power of passing bills of attainder was used during the American Eevolution with a most unsparing band. In Jackson rg. Catlin, 2 J. R. 248, it is said, "The act of 22d October, 1779, attainted, among others, Thomas Jones, of the offense of adhering to the enemy of this State. It was a specific offense, and was not declared or understood to amount to treason ; because many of the persons attainted had never owed allegiance to this State. The forfeitures arising from the attainder, must be sought for in the act and nowhere else." It Is an inter- esting case as to the effect of an act of attainder. Mr. Austin, in his valuable work on Jurisprudence, says, "The sove- reign Roman people solemnly voted or resolved, that they would never pass, or even take into consideration, what I will venture to denominate a bill of pains or penalties. This solemn resolution or vote was passed with the forms of legislation, and was inserted in the twelve tables in the follow- ing imperative terms — Frivilegiam irrigawto." : X Fletcher vs. Peck, 6 Oranch, 138. § Watson vs. Mercer, 8 Peters, 110; see, also. Dash vs. Van Kleeck, 7 J. R. 477. This restricted interpretation of a phrase which, on its face, is 600 JUDICIAL PROCEEDINGS. Faith and Credit of Judicial Proceedings. Art. iv,, sect. 1. — I have already* called attention to this pro- vision. The act of May 26, ITQO, provides the manner of authenticating acts and records, and declares that when so authenticated they shall have such faith and credit given to them in any court within the United States, as they have by law or usage in the courts of the State from whejice the records are taken. Under this, it has been decided that if a judgment has the s. Sharp, 6 How. 301. This case contains the follow- ing brief and comprehensive summary of the decisions of the courts on this clause, by Mr. Justice Woodbury : — " Where a new law has taken the property of a corporation for high- ways, under the right of eminent domain, which reaches all property, private or corporaie, on a public necessity, and on making full compensa- tion for it, and under an implied stipulation to be allowed to do it in all pubEc grants and charters, no injury is committed not atoned for ; nothing is done not allowed by pre-existing laws or rights, and consequently no part of the obligation of the contract is impaired. See case of the "West River Bridge, and authorities there cited, in 6 Howard, 807. THE OBLIGATION AND THE REMEDY. 655, Wliere a railroad charter passed in 1828, provided for a mode of determining the value of land wanted for the road, by the inquisition of a jury, the fee to vest in the company oii, payment or tender of the sum assessed, in 1836 an inquisition was had and the dam- ages assessed; but in 1841, before payment or tender made, the legislature interposed and ordered a new " So, where the legislature afterward taxthe property of such corpora- tions, in common with other property of like kindin the State, it is under an implied stipulation to that efifect, and violates no part of the contract contained-in the charter. . Armstrong vs. Treasurer of Athens County, 16 Peters, 281. See Providence Bank m. Billings, 4 Peters; 614 ; 11 Peters, 567 ; 4 Wheat. 699 ; 12 Muss. Rep. 252 ; 4 Gill and Johns. 132; 4 Burn, and East, 2 ; 5 Barn, and Aid. 157 ; 2 Railway Cases, 23. " So, where no clause existed in the charter for a bridge against author^ izing other bridges near at suitable places, it is no violation of the terms or obligation of the contract to authorize , another. Charles River Bridge vs. The Warren Bridge etal, 11 'Peters, 420. " Nor is itj if a law make deeds by femes covert good when Txyna fde, though not acknowledged in a .particular forin; because it confirms rather' than impairs their deeds, and carries out the qriginal intent of the parties. Watson vs. Mercer, 8 Peters, 88. " Or if a State grant lands, but makes no stipulation not to legislate fur- ther upon the subject, and proceeds to prescribe a mo'de or form of settling titles, this does not impair the force of thejgrant, or take away any right under it. Jackson vs. Lamphire, 3 Peters, 280. " Nor does it, if a State merely changes the remedies in form but does not abolish them entirely, or merely changes the mode of recording deeds, o^ shortens the statute of limitations.- 3 Peters, 280 ; Hawkins Vs, Barney's Lessee, 5 ib. 457. "It has been held also, not only that the, legislature may regulate anew what i5 merely the remedy, but some State courts have decided that it may make banking corporations subject to certain penalties for not performing their duties, such as paying |iheir notes OU' demand in specie, and that does not violate any contract. Brown vs. Penobscot Bank, 8 Mass. Eiep. 445 ; 2 Hill, 242 ; 5 Howard, 342. It is supposed to help enforce, and not impair, what the charter requires. But on this, being a very different question, we give no opinion. "But look a moment at the other class of decisions. Let a charter or grant be entirely expunged, as in the case of the Yazoo claims in Georgia, 656 THE OBLIGATIOM' AND THE EEMEDT. inquisition to be taken, — -it was helpl tliat tliis did not impair the contract contained in the original charter, that the company had acquired no vested right by cojltract yrith the State, and that consequently none was impaired* An interesting question has been recently presented in New Jersey, in which a sound and vigorous inter- pretation has been given to the clause. The Somer- villes Water-Power Company, incorporated by the State of New Jersey, borrowed money on an issue of their negotiable bonds secured by a mortgage of the and no one can doubt that the obligation of the contract is impaired. Fletcher vs. Peck, 6 Cranch, 87. " So, if the State expressly engage in a grant that certain lands shall never be taxed, and a law afterwards passes to tax them. State of New Jersey vs. Wilson, 7 Cranch, 164. Or that corporate property and fran- chises shall be exempt, and they are taxed. Gordon w. Appeal Tax Court, 3 Howard, 133. " So, if lands have been granted for one purpose, and an attempt is made by law to appropriate them to another, or to revoke the.grant. Terrett vs. Taylor, 9 Cranch, 43 ; Town, of Pawlett vs. Clark, 9 Cranch, 292. "Or if a charter, deemed private rather than public, has been altered as to its government and control. Dartmouth College vs. Woodward, 4 Wheat. 518. " Or if owners of land granted without conditions or restrictions, have been by the legislature deprived of their usual r.emedy for mesne profits, or compelled to pay for certain kinds of improvements for which they were not otherwise liable. Green vs. Biddle, 8 Wheat. 1. " Orif after a mortgage, new laws are passed prohibiting a sale to foreclose it unless two thirds of its appraised value is offered, and enacting further that the equitable title shall not be extinguished until twelve months after the sale. Bronson vs. Kinzie, 1 Howard, 311 ; M'Cracken «s. Hayward, 2 ib. '608 ;" Planters' Bank vs. Sharp et al. 6 ib. 331. * Baltimore and Susqttehanna Eailroad Co. vs. Nesbit, 10 Howard, 395. See, in Pennsylvania, the Erie and North East R. R. vs. Casey, 26 Penn. 287, a case of great interest, growing out of the repeal of a railroad charter. The repealing act was held constitutional, and various points in regard to the true construction of the clause in regard to the obligation of contracts, the repeal of charters, and the nature and effect Of a preamble, will be found discussed. THE OBLIGATION AND THE REMEDY. 657 real estate of the company, conditioned that on default of payment the lenders should have the right to re-enter and sell, A bill in equity having been filed against the company, and receivers appointed, a stat- ute was passed by th^ State of New Jersey, in the year 1856, authorizing the receivers to sell the real estate of the company free and dear from all incumbrances^ including the mortgages in question ; and under the act a sale took place. A bill was thereupon filed by one of the mortgage creditors, to set aside this receiver's sale, to foreclose in his own behalf, and praying that the act of 1856 might be decreed unconstitutional and void. Mr. Justice Grier, on the New Jersey Circuit, has declared that the act authorizing the sale impairs the obligation of the contract in so far as it alters the estate of the mortgagee in the premises, and moreover violates the State constitution of New Jersey, which, as we have elsewhere seen,* prohibits any change of remedy existing at the time of the making of the contract.f * AnU, p. 617. t John M. Martin vs. The Somerville Water-Power Company and others. I find the case reported in the New York Evening Post for April 4th, 1867. In his opinion in this case, Mr. Justice Grier says, " Previous to the 29th of June, 1 844, the State of New Jersey was governed by the old colonial constitu- tion, adopted on the 2d of July, 1776. This contained no bill of rights, nor any clear limitation of the powers of the legislature. The history of New Jersey legislation exhibits a long list of private acts and anomalous legisla- tion on the aflEairs of individuals, assuming control over wills, deeds, parti- tions, trusts, and other subjects usually coming under the jurisdiction of courts of law or 'equity ; consequently, the decisions of the courts of New Jersey of questions arising under the old constitution, cannot be cited as precedents applicable to the present one, which carefully defines and limits the powers entrusted to the legislature, the executive, and the judiciary." The remark is important, and tends to throw light upon the 42 658 THE OBLIGATION AND THE KEMEDY. Some of the recent State decisions, however, exhibit a tendency again to relax the rule. It has been held in New York, that where the law has conferred an extra- ordinary remedy upon a particular class of creditors, a statute taking away such remedy, but leaving the ordinary means for the collection of the debt in full force, is not, though operating upon existing contracts, within the constitutional provision ; and it was accord- ingly decided, that an act (1836, c. 369, § 2), repealing the provisions of a prior statute allowing a landlord to claim rent out of the proceeds of property seized in execution on. the demised premises, was valid in its application to cases existing when the act was passed * So, it has been h^eld in the same State, following the intimation made ohiter in Bronson vs. Kinzie, that a law exempting certain property from sale and execu- tion, applies to judgments and executions on debts contracted before as well as after its passage.f These decisions present questions which are, however, still to be distinctly passed on by the Federal tribunal. We have thus far considered cases where the effect of the act in question was directly upon the final remedy. But the preliminary procedure also forms part, and a very important part, of the remedy ; and it seems to be settled that statutes of limitation pertain to the remedy, and not to the essence of the contract; and, in regard to this also, that it is within the power cases of Mason vs. Haile, 12 Wheat, p. 876 ; Ante, p. 645 ; and WilkinsGn vs. Leland, 2 Peters, ante, p. 645, decided under the old constitution or charter of Rhode Island, which was equally lax in its definition and distri- bution of the powers of government. * Stocking vt. Hunt, 3 Denio, 274. t In Quackenbush vs. Banks, 1 Denio, 128, affirmed by a divided court, 1 Coins., 129, a contrary result was arrived at; but the point has been finally decided in Morse vs. Goold, 1 Kernan, 281. STATUTES OF LIMITATION. 659 of the State legislatures to regulate the remedy and modes of proceeding, in relation to past as well as to future contracts. This power is subject only to the restriction that it cannot be exercised so as to take away all remedy upon the contract, or to impose upon it new burdens and restrictions which materially impair the value and benefit of the contract. And, accord- ingly, it has been held to be within the undoubted competency of the State legislatures to shorten the period of limitation of actions, to change existing rules of evidence, and to prescribe new rules of evidence and judicial procedure, — alt to affect both past and future rights of action. Such acts are held to be invalid only when they deprive the party of all remedy, by changing the period of limitation, or destroying the validity of the proof on which his claim rested, so as to render it impossible to establish his right.* The Supreme Court of Massachusetts has said, — If the legislature of any State were to undertake to mate a law preventing the legal remedy upon a contract lawfully made, and bind- ing on the party to it, there is no question that such legislature would, by such act, exceed its legitimate powers. Such an act must neces- sarily impair the obligation of the contract within the meaning of the Constitution ; and the courts of law would be found, therefore, to con- sider it as a void act of legislation, and as having no force or authority. But to extend this principle to acts for the limitation of suits at law which, when enacted with a due discretion, and a reasonable time allowed for the commencement of suits on existing demands, are whole- some and useful regulations, would be extravagant. It must be left to the discretion of the legislature to fix the proper limitations. In the * Bronson vs. Kinzie, 1 How. 311 ; M'Cracken vs. Hayward, 2 How. 608 ; Jackson vs. Lamphire, 3 Peters, 290 ; Briscoe vs. Anketell, 28 MisB., 361. See, also, to what is said as to statutes of limitation and usury in Sturges vs. Crowninshield, 4 Wheat., 206. 660 STATUTES OF LIMITATION. case under consideration, the term of a year is not, in our opinion, un- reasonably short. But a true construction of the statute in question will not extend it to passing actions on bonds where, the escape having taken place before the passing of the act, a right of action had vested in the creditor.* The following case exhibits, in a strong light, the power which our legislatures wield by this concession to them of an almost unlimited authority over statutes of limitation. "Where the State of Mississippi passed a law, declaring that all judgments which had been obtained in any other State, prior to the passage of the law, sliould be barred, imless suit was brought upon the judgment within two years after the passage of the stat- ute, — the act was held within the power of the State, even in a case where the person against whom the judg- ment was given became a citizen of the State upon the day on which he was sued ; and although the Supreme , Court, in deciding the case, admitted that the statute of Mississippi invited to the State and protected abscond- ing debtors from other States, by refusing the creditor a remedy in his judgment, which was in full force in the State when the debtor absconded.f In regard to recording acts, an interesting question has arisen. By a law passed in 1813 (April 12, 1813, 1 K. L. 369), the State of New York enacted that all deeds made after February, 1799, of lands in certain counties specified, should be recorded, and that every such deed should be adjudged fraudulent and void as * Call vs. Hagger et al, 8 Mass. 429. See, also, Holyoke vs. Haskins, 6 Pick. 26; Smith vs. Morrison, 22 Pick. 431. t Bank of State of Alabama vs. Dalton, 9 Howard, 527. It is worthy of observation, however, that the clause in regard to obligation of contracts does not appear to have been discussed. RECORDING ACTS. 661 against any subsequent hona-flde purchaser or mort- gagee, unless it should be recorded before the record- ing of the deed or conveyance under which such subsequent purchaser or mortgagee should claim. In & case arising under this act, Mr. Chancellor Walworth held that it could not be construed retrospectively; that if it were, it would destroy or materially impair a vested right under a previous contract, and be inop- erative and void. On appeal, the decree was affirmed. Mr, Senator Verplanck, in delivering the decision of the Court of Errors, went further, and said that, even if prospective, the act was void as to all previously executed deeds, as impairing the obligation of con- tracts ; that the effect of the statute would be to enact that valid contracts should be held invalid, unless a further legal sanction were added ; and that thus the contract was impaired.* But this does not seem to be the opinion of the Supreme Court of the United States. In March, lYOY, the legislature of New York passed an act to settle disputes concerning titles to land in the county of Onondaga, in that State, by which it was enacted that commissioners should be appointed to hear and der termine all disputes in regard to land titles in that eounty ; that their decision or award should be final and conclusive, unless the parties^ deeming themselves ;aggrieved should file a dissent within two years, and within three years bring suit in J;he ordinary courts of the State. A controversy arose as to lands in this county, granted under letters patent by the State of New York, in 1790, to John Cornelius, — one party claim- * Varick vs. Briggs, 6 Paige, 832 ; Varick's Exrs. vs. Briggs, 22 Wend. S46. 662 RECORDING ACTS. ing under a deed from the original patentee, dated the Itth of January, 1T84, and recorded on the 25th of April, 1*795 ; the other party claiming under a deed dated the 23d June, 1T84, and recorded the 3d of April, 1Y95. The commissioners, in December, 1799, decided in favor of the second deed, which, as it appears, was subsequent in point of date, but prior in point of record. No dissent was filed ; and suit was brought by the heir of the grantee in the first deed, in May, 1825. It was contended for the plaintiff, that the patent from the State created a contract with the grantee, his heirs and assigns, that they should enjoy the land therein granted free from any legislative regu- lations to be made in violation of the State constitu- tion ; that the act in question did violate some of the provisions of that constitution; that it consequently violated the obligation of a contract; and that the award of the commissioners was a nullity. But the Supreme Court of the United States held otherwise. They said that the patent contained no covenant to do, or not to do, any farther act in relation to the land, and they could not create one by implication; they jaid that the State had not, by the act, impaired the force of the grant ; that it did not attempt to take the land from the assigns of the original patentee and give it to one not claiming under him, nor did the award produce that effect ; and they proceeded to hold this language, — « Presuming that the laws of New York authorized a soldier to convey his bounty land before recovering a patent, and that, at the date of the deeds, there was no law compelling the granter& to record them, they would take priority from their date. This is the legal result of the deeds; but there is no contract on the part of the State that the priority of title shall depend solely on CHANGE OF CONSTITUTIONS. 663 the principles of the common law, or that the State shall pass no law imposing on a grantee the performance of acts which were not neces- sary to the legal operation of his deed at the time.it was delivered. It is within the undoubted power of State legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger if the prior deed is not recorded within the limited time; and the power is the same, whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts. Such, too, is the power to pass acts of limitations, and their effect. Seasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time and manner of their opera- tion, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the title, the situation of the country, and the emergency which leads to their enactment. Cases " may occur where the provisions of a law on those subjects maybe so unreasonable as to amount to a denial of a right and call for the inter- position of the court ; but the present is not one.* It results from the general nature of the Federal government, and its supremacy over the States within its legitimate sphere, that a contract can no more be impaired by the change of a State constitution than by a State law. In 1845, the State of Ohio had chartered a bank, and stipulated the amount of taxes payable. In 1851, the people of that State adopted a new con- stitution, declaring a new mode by which taxes therein be levied on banks ; and, in 1852, the legislature passed an act, in conformity to that constitution, levying taxes on the bank to a greater amount than as stipulated in the act of 1845, and on a different principle. It was held, that the act of 1852 was void as impairing the obligation of contracts; that it derived no validity * Jackson m. Lamphire, 3 Peters' B.,' p. 289. 664 EMINENT DOMAIN, from the fact of being ia conformity with the State constitution of 1851* We are still to consider the effect of the constitu- tional clause with reference to the right of eminent domain. The important question, whether the clause in regard to the inviolability of contracts places State charters beyond the reach of the exercise of the sove- reign control over all property with reference to public convenience and necessity, first came before the Su- preme Court in a case where a bridge, held by an incorporated company under a charter from the State - of Vermont, was occupied and taken as part of a public road, under a law of that State: the court held that the act was not unconstitutional ; that the charter was a contract, but, like all other property, hela by tenure from the State, and, also like all other property, held subject to the right of eminent domain ; and that no distinction could be drawn between the franchises of a corporation and property held by an individualf The doctrine has been since affirmed; * Dodge vs. Woolsey, 18 Howard, 331 ; and, also. State Bank of Ohio vs. Knoop, 16 Howard, 869. See the former case, also, for one of the most recent cases expounding the rights and duties of the Supreme Court of the United States, as an ultimate tribunal to determine whether laws enacted by Congress, or by State legislatures, and the decisions of State courts, are in conflict with the Constitution of the United States. t West River Bridge Co. i>a. Dix et al, 6 How. p. 607, by Daniels, J. See, in this case, Mr. Justice Woodbury's opinion. It contains the suggestion of some important — if practicable — qualifications in regard to the exercise of the power of eminent domain. He says, p. 541, in regard to the com- parative protection of private rights here and in England, "Notwithstand- ing the theoretical omnipotence of Parliament, private rights and contracts have been, in these particulars about compensation and necessity for public use, as much respected in England as here." Vide ante, p. 524, in note. The definition of the power of eminent domain given by the court, substantially agrees with that which I have suggested ante, pp. 500 and 504. "In every political sovereign community there inheres necessarily the EMINENT DOMAIN. 665 and, in a recent case, it was again decided that the grant of a franchise is of no higher order, and confers no more sacred title, than a grant of land to an individual ; and, when the public necessities require it, the one as well as the other may be taken for public purposes on making suitable compensation ; nor does such an exer- cise of the right of general domain interfere with the inviolability of contracts.* This important rule has been repeatedly laid down also in the State courts. From the fact that a franchise is property, it necessarily results that any contract in a charter may be impaired provided compensation is secured.f In Massachusetts, it has been decided that an act of the legislature, in the exercise of the right of * - right and the daty of guarding its own existence, and of protecting and pro- moting the interests and welfare of the community at large. This power , and this duty are to be exerted not only in the highest acts of soTereignty, and in the external relations of governments ; they reach and comprehend, likewise, the interior polity and relations of social life, which should be reg- ulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the State, is, as its name imports, para- mount to all private rights vested under the government ; and these last are, by necessary implication, held in subordination to this power, and must yield, in every instance, to its proper exercise." — Page 532. The three cases — of the Dartmouth College, declaring State charters to be contracts within the protection of the Constitution; of the Charles River Bridge, declaring the principles of interpretation applicable to such acts ; and, finally, of the West River Bridge, declaring corporate franchises to be subject to the power of eminent domain — are all cases of extreme interest, and cannot be too often consulted as fixing some of the most important landmarks of legislative power and providing some of the most valuable guarantees of private right. * The Richmond R. R. Co. vs. The Louisa R. R. Co., 13 Howard, 82.. s^ t Piscataqua Bridge ns. N. H. Bridge, 7 N. H. 65. The principle of the Piscataqua Bridge Case is affirmed in Barber m. Andover, 8 N. H. 398 ; and in Backus «». Lebanon, 11 N. H. 19, the power of the State, by virtue of its eminent domain, over corporations, even to the extent of taking their franchises, was declared. The Enfield Toll Bridge Co. vs. The Hartford and N. H. R. R. Co. 17 Conn. 40. 666 EETROSPECTIVE LEGISLATION. eminent domain, appropriating to public use, on pay- ment of a full equivalent, property or rights in the nature of property granted by the State to individuals, is not a law impairing the obligation of contracts within the Constitution of the United States. And it was intimated that the power would extend to take the entire franchises of a corporation.* Before quitting this branch of our subject, it may be well to notice some cases of alleged infringement of vested rights, where the constitutional objection has been taken, but where it has not been sustained. By the original statute law of Connecticut, to render a marriage valid it was necessary that it should be solemnized by a clergyman "ordained and settled in the work of the ministry ;" and all marriages not so soleffinized were void. Difficulties arising under the .act, another statute was passed, in 1820, declaring that all marriages which had theretofore been performed and celebrated by a minister authorized to celebrate marriages according to the forms and usages of any religious society or denomination, should be deemed good and valid to all intents and purposes whatever. A marriage having been solemnized, in 1805, by a clergyman ordained but not settled within the prior law, its validity came up, on a question of pauper set- tlement, in 1821 ; and it was held that the act of 1820 was valid, and that, though the marriage was void when solemnized, the subsequent statute rendered it * The Boston Water-Power Oo. vs. The Boston and Worcester R. R. Co., 23 Pick. 361. The general doctrine of the Charles River Bridge Case, that any ambiguity in the terms of the contract must operate against the corporation and in favor of the public, and that the corporation can claim nothing but what is clearly given by the act, is affirmed and applied in the Richmond, &c., R. R. Co. m. The Louisa R. R. Co., 13 How. 81. RETROSPECTIVE LEGISLATION. 667 good; Hosmer, J., said there was no pretense that it was a law which impaired the obligation of con- tracts, and that the legislature had the power to pass retrospective laws to accomplish just and proper ends* * He said, " The interposition of the legislature to pass retrospective laws promotive of justice and the general good, is familiar. The judgments of courts, when by accident a term has fallen through, have been established ; the doings of a committee and conservator, not strictly legal, have been confirmed ; and other laws have been passed, all affecting vested rights ; but, being inoontrovertibly just, no disapprobation has ever been expressed. " In result, I feel myself authorized to assert that the question, where no constitutional objection exists^ whether the judiciary may declare a retro- spective law operating on vested rights to be void, is undetermined ; that men of profound' learning and exalted talents have greatly differed on the subject ; and that it is an inquiry beset with difficulty. "With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit restraint, I can- not agree. Should there exist — what I know is not only an incredible sup- position, but a most remote improbability — a case of the direct infraction of vested rights too palpable to be questioned and too unjust to admit of vin- dication, I could not avoid considering it as a violation of the social compact and within the control of the judiciary. If, for example, a law were made, without any cause, to deprive a person of his property, or to subject him to imprisonment, who would not question its legality, and who would aid- in carrying it into effect? " On the other hand, I cannot harmonize with those who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable ; and the right of the legislature to enact one of this description I am not speculatist enough to question. I beUeve no person will deny that the exercise of legislative authoriiy, merely, and without further conse- quences, to confirm marriages not duly celebrated, is valid, although clearly retrospective and manifestly operating on the rights of individuals. And as every law intrinsically implies an opinion of the legislature that they had authority to pass it, and that it is just and reasonable on all occasions that may arise, it is proper to demand that the supposed unjust violation of legal rights by statute should be established with great clearness and certainty. If a judge of the Supreme Court of the United States was authorized in th< f-ssertion (Oalder et vx. vs. Bull et ux. 3 Dallas, 386, 395) that he would not decide any law to be void except in a very clear case, with equal propriety may other judges adopt the same resolution in respect of laws 668 RETROSPECTIVE LEaiSLATIOK. An execution was levied on land in the State of Connecticut, in December, 1823. The law, as it then stood, required land taken on execution to be appraised by three freeholders of the town ; and if the parties neglected, or could not agree, the appraisers were to be appointed by any justice of the town. In the case in question, the sheriff omitted to certify, in his return, the fact that the justice who made the appointment resided in the town ; and, as the return to the levy was the only evidence of title, the levy was fatally defective and void, and* the plaintiff acquired no title. These facts appearing in the inferior court, pending the which cannot be brought to the definite test of a written constitution, but which, as violations of the social compact, are claimed to be unwarrantable. " The act of May, 1820, was intended to quiet controversy and promote the public tranquillity. Many marriages had been celebrated, as was be- lieved, according to the prescriptions of the statute. On a close investiga- tion of the subject, under the prompting scrutiny of interest, it was made to appear that there had been an honest misconstruction of the law; that many unions which were considered as matrimonial were really meretri- . cious ; and that the settlement of children in great numbers was not in the towns of which their fathers were inhabitants, but in different places. To furnish a remedy co-extensive with the mischief, the legislature have passed an act confirming the matrimonial engagements supposed to have been formed, and giving to them validity, as if the existing law had precisely been observed. The act intrinsically imports, that the legislature consid- ered the law of May, 1820, to be conformable to justice and within the sphere of their authority. It was no violation of the constitution ; it was not a novelty ; such exercises of power having been frequent and the sub- ject of universal acquiescence, and no injustice can arise from having given legal efficacy to voluntary engagements and from accompanying them with the consequences which they always impart. The judiciary, to declare the law in question void, must first recognize the principle that every retro- spective act, however just and wise, is of no validity ; and that, for the cor- rection of every deviation of the legislature from absolute right, theirs is the supremacy. Impressed with the opinion that this is beyond the confines of judicial authority, I am satisfied with the decision at the circuit, and would not advise a new trial." — Goshen vs. Stonington, 4 Conn. R. p. 226. RETEOSPECTIVE LEGISLATION. 669 application to the court above for a new trial a law was passed, in 1825, to ratify and establish executions thus defectively executed or returned. It was objected that the act was unconstitutional, because it impaired the obligation of contracts ; but it was said that, between the parties, there never was any contract relative to the land ; that the levy of the execution was altogether m invitvm, and that the objection pointed at an object which had no existence ; and the statute was held valid on the ground that, although retrospective, it was a just and reasonable law* Another case has presented itself, in the same State, in relation to an act, passed in 1826, declaring that no levy of an execution theretofore made should be * The court said, "In Goshen vs. Stonington, 4 Conn. Rep. 209, it was adjudged by this court that a retrospective law impairing vested rights, if it be not clearly imjusi, is entitled to obedience ; and that to disregard an act of the legislature, unless it be inequitable, oppressive, and in violation of the social compact, is not within the confines of judicial authority. I dis- cern nothing of this character in the law under consideration. It is the ordinary exercise of legislative authority, in similar cases sometimes requi- site to prevent grtat injustice and public inconvenience. In the case before us, the error arose from slight and unobserved alterations at the late revision of the law relative to the levy of executions. The wide-spread mischief to officers who had faithfully performed their duty according to their best knowledge, and the rights of numerous creditors whose debts were in jeop- ardy, furnished strong political and equitable reasons for the interposition of the legislature. On the other hand, to the mistaken levy of the execu- tion the debtors had no reasonable objection; and creditors and purchasers, always acting with full information derived from the records of land titles, could not justly complain that; they were not permitted to wrench from those who had levied their executions defectively the properly to which they had, at least, an equitable title. The real question to be determined is merely this : Whether every retrospective law acting on vested rights is invalid. If it is not, there are few cases the equity of which more impe- riously demands legislative interposition than those within the purview of the late law." Mather vs. Chapman, 6 Conn. Rep. 58 ; S. P. Norton m. Pettibone, 7 Conn. 319 ; and Booth vs. Booth, 7 Conn. 351. 670 VALUE OF THE CLAUSE. deemed void by reason of defects which, in the then state of the laws, were fatal. In a case where a levy had been made, an action brought by the execution creditor, trial had, and the levy held bad at the cir- cuit before the confirmatory act passed, the Supreme Court held that the act was valid and that it made the levy good, — that though retrospective, it was valid because just* We have thus terminated our consideration of this important clause of the -Constitution. Its value has cer- tainly been very great ; but if we observe its practical operation in connection with that other fundamental guarantee of our rights, that private property shall not be taken without compensation, some deductions will perhaps have to be made from the commendations * Hosmer, C. J., said, "Every act of the legislature intrinsically implies an opinion that the legislative body had a right to enact it. And the judi- ciary will discover sufficient promptitude if it determine a law to be invalid that operates by retrospection unjustly on person or property. This princi- ple steers a correct medium, admitting the sovereignty of the legislature to do justice by an act unquestioned by the court of law, while it equally repels the supposed uncontrollable omnipotence of the same body to require the observance of an unjust law in subversion of fundamental rights and in opposition to the social compact. The question is not free from dif- ficulty; but unless the doctrine sanctioned by the court be embraced, this extreme would be resorted to, that every retrospective law, however just or wise, affecting the property of an individual, must be considered as of no validity. And thus, in cases the most equitable and salutary, the judiciary must deny the legislative right to pass a law oppressive to no one and pro- motive of entire justice, and this upon the authority of general principles. I am not speculatist enough to yield my sanction to this course of proceed- ing. Beach es. Walker, 6 Oonn. 198. " Under the power to maintain an army and navy, Congress may author- ize infants to make a valid contract of enlistment ; and an indentured infant, bound out by the managers of an alms-house as an apprentice, may enlist with the consent of the master, even although the consent of the manager is not obtained." Commonwealth vs. Murray, 4 Binn. 487 ; Commonwealth vs. Barker, 6 Binn. 428. VESTED RIGHTS. 671 which we bestow on our system of constitutional law. In the one case, by a very rigid and technical inter- pretation of the word to take^ and in the other by a most subtle and refined distinction between the contract and its remedy, it is difficult to deny that the pro- tection intended to be given by both these provisions has been seriously diminished. In truth, the very protection sought to be afforded to private- rights by our system of constitutional limi- tations in some sense diminishes their security; the interests that elsewhere are guarded by a general sense of the importance of refraining from all interference with individual rights, here seek the protection of pre- cise texts of written law. It is not a protection of principle, so much as of authority ; and the exercise of authority always, and eminently with us, excites jealousy and provokes resistance. But this aspect of the case opens a wide field for discussion, involving the peculiar character of our complex system of government, and the wants and necessities of a new country. Vested Mights.^ — Having thus surveyed the great field of constitutional law, and considered the opera- tion and effect of the most prominent clauses in the fundamental law of the Federal and State govern- ments, devised to operate as checks on legislative * This phrase is one of most frequent occurrence. In a case in Maine, it was said, "The act is unconstitutional and cannot be carried into effect, because such operation would impair and destroy vested rights, and deprive the owners of real estate and of their titles thereto, by changing the principles and the nature of those facts by means of which those titles had existed and been preserved to them in safety." Proprietors Ken Purchase vs. Laboree, 2 Greenleaf, 295. "It cannot be denied that the legislature possesses the power to take away by statute what was given by statute, except vested rights." The Peo- ple vs. Livingston, per Savage, 0. J., 6 Wend., 531. 672 VESTED RIGHTS. power, and to act as guarantees of private property, we are better prepared, before taking final leave of our subject, to approacli this branch of it in detail, and to form some general conclusions as to the rules by whicb and the extent to which private rights are secured under our form of government from gov- ernmental invasion — in other words, to what extent vested rights are protected. This subject, i. e. the protection of vested rights, as they are called, has been repeatedly referred to in the progress of this work,* and the difficulty of laying down any precise rule in regard to them pointed out.f Its importance, too, has " Ante, pp. 177 and 193. t In England, as a matter of practice, vested rights are very sedulously protected ; as a matter of theory, their doctrine of Parliamentary suprem- acy leaves little room for the judicial discussion of theln. The most promi- nent case, perhaps, of Parliamentary examination of the question, occurs in the great dehate on Fox's East India Bill. Mr. Burke said, — " The rights of men, that is to say, the natural rights of mankind, are indeed sacred things ; and if any public measure is proved mischievously to affect them, the objection ought to be fatal to that measure, even if no charter at all could be set up against it. If these natural rights are further afiSrmed and declared by express covenants ; if they are clearly defined and secured agaiijst chicane, against power and authority, by written instru- ments and positive engagements, they are in a still better condition : they partake not only of the sanctity of the object so secured, but of that solemn public faith itself which secures an object of such importance. "Indeed, this formal recognition by- the sovereign power, of an original right in the subject, can never be subverted but by rooting up the radical principles of government, and even of society itself. The charters which we call by distinction great, are public instruments of this nature: I mean the charters of King John and King Henry the Third. The things secured by these instruments may, without any deceitful ambiguity, be very fitly called the chartered rights of men. " These charters have made the very name of a charter dear to the heart of every Englishman. But, Sir, there may be, and there are, charters not only different in nature, but formed on principles the very reverse of those of the great charter. Of this kind is the charter of the East India Com- pany. Magna chairta is a charter to restrain power, and to destroy monop- oly. The East India charter is a charter to establish monopoly and to create power. Political power and commercial monopoly are not the rights VESTED EIGHTS. 673 been already repeatedly insisted on. Indeed, it is manifest that in both the framework and the daily operation of our government, this is the great practi- cal object songht to be obtained. Some governments may chiefly seek to guard against the turbulence of the poorer classes ; some to repress the oligarchical insolence of a privileged class ; some to prevent the union of the powers of the Church and of the State ; some to check the authority of the sovereign. These points were certainly not overlooked by the founders of our gavernment, — the heroes and leaders of a popular revolution ; but it will hardly be denied that with us as a practical question, the legislative power is the most formidable, nor that our system chiefly aims to guard the citizen against the legislature, — ^to pro- tect him against the power of a majority taking the shape of unjust law. And it is to be observed, also, that the unjust action of government with us is most likely to take the shape of attacks upon rights of property. All government, indeed, resolves itself into the protection of life, liberty, and property. Life and liberty in our fortunate condition are, however, little likely to be injuriously affected by the action of the body politic. Property is very differently situ- ated. It is therefore of the highest moment, if pos- sible, to obtain a clear idea as to the nature and extent of the protections which guard our rights of property of men ; and the rights of them derived from charters, it is fallacious and sophistical to call ' the chartered rights of men.' "These chartered rights (to speak of such charters and of their effects in terms of the greatest possible moderation) do at least suspend the natu- ral rights of mankind at large, and in their very frame and constitution are liable to fall into a direct violation of them." — Burhe's Speech on Fox's Hast India Bill. 43 674 TAXATION. from attack under color of law, — to determine, in other words, what is a vested o^ight. The fundamental guards and guarantees of this class are to be found first in the great constitutional restric- tions, whether of the Federal or State charters. Private property is not to be taken without compen- sation. No law is to be passed impairing the obligation of contracts. Property is not to be taken without due process of law ; and every individual right is placed under the protection of the law of the land. In those States where they exist, the clauses intended to secure uniformity of taxation should be added. The questions connected with taxation are, indeed, every day becoming of more and more pressing importance. The taxing authority is after all but one arm of that tremendous power of eminent domain, at the foot of which, so far as uncontrolled, every citizen lies pros- trate; and the consequences of the earlier decisions leaving this engine in the hands of unrestrained legis- lative authority, seem to have awakened that conserv- ative jealousy of power which never lies long dormant in the breast of our people. Certain it is, that the more recent constitutions and the more recent judicial decisions, show a disposition not to abandon the tax- ing power to the often ill-regulated and despotic will of our fluctuating and hasty legislation.* * In Missouri, while conceding the uncontrolled power of taxation to the legislature, subject only to the restriction contained in the constitution of that State, thatj"all property subject to taxation shall be taxed in pro- portion to its value," and conceding also the right to delegate the power to subordinate agencies, such as municipal corporations, they have denied the power arbitrarily to tax the property of one citizen and give it to ano- ther ; and on this ground have held that the legislature cannot authorize a CONSTITUTIONAL SAFEGUARDS. 675 With this qualification, the great provisions referred to, i. e. compensation for private property taken for public uses, sanctity of contracts, and law of the land, seem to furnish the principal guarantees of our lib- erty and rights. The other provisions as to trial by jury, titles of bills, searches and seizures, constitutional majorities, and the like, which we have considered, relate rather to modes and details than to principles. The above provisions are those which are to be found everywhere, and on which chiefly, so far as written law goes, our rights depend. These three constitutional checks, then, guard pri- vate property from the invasions of the State, protect contracts from violation under guise of law, and finally, insure to every person impleaded, attacked, or charged, the invaluable right of systematic procedure, evidence, and judicial trial. All these clauses have been expounded, and in some cases, restricted by construction and explanation; and the nature of those restrictions we have considered and discussed. In addition to these, our attention has also municipal corporation to tax for its own local purposes land lying beyond the corporation limits. Wells i)s. City of Weston, 22 Miss., p. 385. • As to the difficulty of drawing a line between a legitimate exercise of the taxing power, and the arbitrary seizure of the property of an individ- ual under the mask of this power, see Oheany !)s. Hooser, 9 Ben Monroe, 389. See also on this point. City of Covington vs. Southgate, 15 Ben Monroe Law and Equity R., 491, where held that though the legislature has the power constitutionally to extend the limits of towns and cities, and include adjacent agricultural lands without the consent of the owner, yet the town or city cannot tax such property as town property and subject it to the city burthens without the consent of the owner, until it shall be laid off into lots and used as town property. This decision was made distmctly on the ground that the act in question was an invasion of private property con- trary to the principles of our constitutional law, under color of the power of taxation. 676 LEGISLATIVE POWER. been called to one other check on the vicious action' of legislative bodies, not derived from express provision but from the division of political power growing out of the general structure of our system ; this is, that the legislature can do no act which is not a law. This idea is sometimes conveyed in the phrase (the meaning of which we have elsewhere considered),* that the legislature can do no judicial act ; and it is almost identical with the constitutional declaration which insures to all persons attached or charged, the protection of the law of the land. If, as we have seen, by the right to the law of the land is meant the right to judicial procedure, investi- gation, and determination, whenever life, liberty, or property is attacked ; and if it be conceded, as it must be, that our legislatures are by our fundamental law prohibited from doing any judicial acts, — then it would seem, as far as the present question is concerned, that the rights of the citizen are as perfectly protected by the guarantee of the law of the land, as they can be by a peremptory distribution of power. In fact, the special clause works a division of power. But these are rather speculative questions ; and the great idea of the protiection intended to be conferred by our division of powers into executive, legislative, and judicial, is perhaps best expressed by the proposition just stated, that the work of the legislature is to be confined to the passage of laws, as distinguished from judicial and executive acts. And this brings us to the precise ques- tion of vested rights ; for the prohibition, so far as it exists, of retrospective acts, whether directf or in the shape of repealing statutes,^ and the non-interference, * Ante, pp. 163 and 167. t Page 198. f Page 135. LEGISLATIVE POWER. 677 SO far as it is enforced, with vested rights, in cases which do not come within the prohibition of the posi- tive clauses in our constitutions. State or Federal, in regard to private property and contracts, will be found to be summed up in the idea that the legislature can only make laws, or legislative enactments, as contra- distinguished from judicial sentences and decrees. If we renounce, as I think we must,* the idea that the validity of a law can be determined by the judi- ciary on abstract notions of justice and right ; if we admit, as we must, that the denial of the right to make retrospective laws cannot, as a universal proposition, be maintained, — then outside of the cases depending on positive constitutional inhibitions, no other restriction can be imposed on legislative action except such as is derived from the idea, perhaps, as we have said, expressed with equal clearness in the guarantee of the law of the land, that legislative power only is granted to it, and that vested rights of property can only be interfered with by it so far as is competent to be done by the enactment of laws.\ This, however, is merely a circuitous statement of the proposition that vested rights are sacred. Let us, therefore, sum up the result of our researches, and * Ante, ch. v., p. 180, and p. 187. t The 47th letter of the Federalist discusses the subject of the division of power between legislative, executive, and judicial, and shows that it has never been strictly carried out in England, or in any of the States of the Union, any more than in the Federal government itself. The Supreme Court of New York has denied the right of the legislature to determine the rights of parties to land, either by themselves or commis- sioners. " If they attempted this, they clearly were assuming powers which belonged to another branch of the government. If they converted them- selves into a court of law, their acts in that capacity were unauthorized by the Constitution, and of course not binding on the parties." Jackson m. Frost, 5 Co wen, 346. 678 PEIVATE AND PUBLIC ACTS. state as accurately as we can what direct interference witli private rights and interests of property can and cannot be accomplished by laws. The difficulty of this subject fully equals its import- ance : on the one hand, any interference with rights acquired under existing laws is a positive evil and injury ; while on the other, to deny to the legisla- ture power to make such changes as the social or polit- ical condition requires, would reduce us to' a state of Chinese stagnation and immobility, and would be absurdly inconsistent with the condition of our coun- try and the character of our people. These inherent difficulties have led to frequent contradiction ; and there is perhaps no subject of equal importance on which there are greater incongruities than on the point, what rights are vested so as to be beyond the reach of legislative action, and what are within its proper and regular control. It will be well to recall the attention of the reader more particularly to the branches of this subject which we have already incidentally discussed. At the outset we are to keep in mind the distinction between private acts and public acts, and the general rule,* that in regard to the former, they only affect those expressly named, and that they do not conclude third parties or strangers. But our observations now relate to public acts.f * Ante, p. 34. t In 1774, the interest of George Croghan in certain lands in the State of New York was sold, under sheriff's sale, to Thomas Jones. In 1779 Thomas Jones was attainted. In 1788, a private act was passed authorizing the surveyor general to sell the lands so purchased by Jones, and to pay the money upon the sheriff's sales which had been arrested by the war. The Supreme Court decided that nothing passed by the sheriff's sale to Jones, on the ground that the provisions of the statute of frauds had not been com- PEIVATE AND PUBLIC ACTS. 679 Before proceeding, however, we may also notice the often-declared principle of the common law, that the division of an empire creates no forfeiture of previ- ously vested rights of property.* With these preliminary suggestions, we may remind the reader that we have already considered a large class of cases in which it has been decided that the legislature has no power to perform a judicial act.f So, acts granting appeals after the time allowed by law, and, in many other cases, deciding on questions of pri- vate contested rights, have been held void. "We have, also, already seen that in some cases the legislature is competent, by the operation of a repeal- plied with. It further decided, that the act of 1788, and sales under it, had no effect upon the rights of the heirs of Oroghan. They said " It is a private act, and liable to the rules of construction applicable to such statutes. In England a general saving clause is now always added, at the close of every private act, of the rights and interests of all persons except those whose consent is obtained ; and before this practice of inserting the saving clause, it was held that a private act did not bind strangers. 2 Black. Gom. 345 ; 4 Cruise Big. 518. In Boswell's Case, 26 and 26 Eliz., cited in Barrington's Case, 8 Co. 138 a, it was resolved in the Court of Wards, that when an act of Parliament maketh any conveyance good against the king or other per- son certain, it should not take away the right of any other." Although there be not any saving in the act and although the constitution of New York then had no clause as to private property, it was said that if this -act had declared the sale to be a bar to the claim of Croghan, a very seinous ques- tion would have arisen on the validity of a statute taking away private prop- erty without the consent of the owner, and without any public object or any just compensation. Jackson ®«. Catlin, 2 J. R. 248 ; affirmed in error, •8 J. R. 520. In Jackson m. Cory, 8 J. R. 888, it is said, "that to take away private property, even for public uses, without making just compensation, is against the fundamental principles of free government. And this limitation is to be found, as an express provision, in the Constitution of the United States." * Hilour's Case, 7 Rep. 27 ; Kelly «s. Harrison, 2 Johns. Cases, 29 ; Jackson m. Lunn, 8 Johns. Cases, 109 ; Terrett m. Taylor, 9 Oranch, 50. t Ante, p. 169. 6B0 RETROSPECTIVE LAWS. ing act, to put an end to pending proceedings, and to take away rights under existing laws, as that of a mortgage debtor to redeem, and to put an end to pend- ing suits where a good right of action or a valid de- mand existed ;* but that in others, both in England and in this country, a disposition has been shown to prevent this arbitrary interference with the rights of parties, so far as existing rights of action were con- cerned.f We have also considered, J under the head of retro- spective laws and the retroactive effect of laws,§ a great class of decisions where, in some cases, it has been held competent for the legislature to interfere with vested rights of property, and where, in others, it has been denied!. * Ante, p. 131. When the revised statutes of New York, of 1828, went into opera- tion, the fifth section of the act repealing previous statutory provisions conflicting with them, used this language: "The repeal of any statutory provision by this act shall not affect any act done, or right accrued or es- tablished," &c. ; and it was held that, where a junior creditor's right to redeem was acquired after the revised statutes, that right must be presented and prdsecuted under the provisions of the revised statutes, and not accord- ing to the antecedent legislation, — on the ground that it related merely to the remedy, over which the legislature had power. The People m. Livingston, 6 Wend. 527. See, in this case, the different phraseology of various repeal- ing acts commented on. "It will not be denied, I presume," says Savage, J., "that it is competent for the legislature to repeal any act upon which a suit has been brought ; and, if the repeal is absolute, such suit is at an end." The People m Livingston, 6 Wend. 530. t Ante, p. 135. X Ante, p. 198 and p. 406. § Ante, pp. 667 et seq. \ At common law, improvements made and annexed to the freehold, by a tenant for life or years, became a part of the estate of inheritance and went to the reversioner. In 1843, an act was passed in Maine declaring that, in all actions then pending or thereafter brought by reversioners against assignees or grantees of tenants for life, such grantees or assignees could obtain com- VESTED RIGHTS. 681 We have, also,* considered the effect of treaties on rights of property and of action, and considered how far they may have a retrospective effect. I merely here refer to these cases, and proceed to cite some others on the same general subject. It has been repeatedly decided, that it is not com- petent, by any act of legislation, to divest a vested interest in real estate. Such acts are undoubtedly void, for several reasons : they take away private property without compensation ; they take away property with- out any process of law; and they are not acts of a legislative character. Thus, in New York, it has been held, — where military bounty lands were vested, under a particular act, in an officer or soldier, constituting him a stock of descent, and passing the lands to his heirs ex parte paterna, and, for default of them, then ex parte materna^ that the legislature could not, by a subsequent act, divest the title thus vested in one set of heirs and pass it to another, as from the heirs ea? pa/rte materna to those who were heirs ex parte pa- terna but aliens, and as such incapable to take inde- pendently of the second act.f So, where land was vested in four heirs of a decedent, by virtue of the treaty with Great Britain of 1'794, and, an act subse- pensation for improvements put by the tenants for life upon the premises. In a case where the tenant for life died in 1841, the Supreme Court held that the rights of the reversioners was clearly vested ; that the improve- ments made by the person in possession for life became incorporated into the reversioner's estate on the decease of the tenant; and that the act could not have any retrospective operation, as such interpretation would bring it in direct conflict with the provisions of the State constitution in regard to the enjoyment of property. Cons. art. iii. § 1, 2, art. vi. § 1, art. iv. § 1, art. i. § 31 ; Austin vs. Stevens, 24 Maine, 525. * Ante, p. 449. t Jackson ex dem. M'Cloughry us. Lyon, 9 Cowen, 664. 682 VESTED RIGHTS. quently passed giving it to one of sucli heirs, it was treated as inoperative and void.* So, an act vesting the title of the State in escheated lands in an alien next of kin, after the widow of the decedent had ac- quired a good title to the land by release from the commissioners of the land-office under a general act, is wholly inoperative and void.f But even vested interests in real estate have been deemed subject to legislative control, where the power has been considered by the court as used for the benefit of the parties interested. A retrospective statute, turn- ing estates in joint tenancy into tenancies in common, has been held, in Massachusetts, unobjectionable. There seemed to the court no constitutional objection to the power of the legislature to alter a tenure by substi- tuting another tenure more beneficial to all the ten- ants; — an absolute interest in one half being consid- ered better than an uncertain interest in the whole.J And what the legislature cannot do directly it can- not effect indirectly, as by the operation of a statute of limitations. By a Massachusetts statute, passed in 1817, no action by an heir, to recover real estate sold by an administrator under a license from the Probate Court, shall be sustained unless brought within five years after the delivery of the deed. An action was brought, in or about 1825, by an heir, to set aside a sale made, previous to the passage of the act, under a license, by an administrator ; and it appeared that the letters were void for want of jurisdiction, and, that, * Jackson vs., Wright, 4 John. R. 79. t Englishbee w. Helmuth, 3 Conn. 296. X Holbrook «s. Finney, 4 Mass. 566; Miller vs. Miller, 16 Mass. 59; Burghardt vs. Turner, 12 Pick. 589. But the equity of this conversion might depend entirely on the relative ages and constitutions of the parties. EXEMPTIONS FROM TAXATION. 683 consequently, the sale conveyed no title. The act was relifed on to bar the action; but the court said that' it could only apply to sales made subsequently to its passage ; " it could not be construed to extend to sales made more than six years previous, without a violation of vested rights."* And we have seen the same point substantially decided in Pennsylvania-f So, too, we have seen the same point determined by the courts of Mississippi. J So, it has been declared, that it is not in the power of the legislature to create a debt from one person to another, or from one corporation to another, without the consent expressed- or implied of the party to be charged. Thus, where a statute was passed requiring one county of the State of Massachusetts to pay out of its treasury money belonging to it, to another county, the latter county having before the passage of the statute in question, no legal right to the money, — it was held to have no operation as law.§ Thus far it seems sufficiently clear, as a general rule, that the legislature cannot interfere with existing rights of property; but when we leave the subject of vested interests in real estate or actual property in possession, we find the subject surrounded with diffi- culty. We have seenf that there is no such thing as a vested right to exemption from militia duty ; and ex- emptions from taxation depend on the question whether * Holyoke vs. Haskins, 5 Pick. 20 ; Same vs. Same, 9 Pick, t Eakin va. Raub, 12 S. and Rawle, p. 889 ; ante, p. 479. X Boyd vs. Barrenger, 23 Miss. 270; ante, p. 196. § Hampshire vs. Franklin, 16 Mass. 86. II Ante, p. 559. 684 ACTS CONFIRMING INVALID MARRIAGES. the act creating them is to be treated as a contract ;* and rights of action of all descriptions, seem to a large extent under the control of the legislature. We have seen that acts have been held valid con- firming invalid marriages,f and declaring valid invalid ministerial proceedings, such as sheriffs' levies,;]: al- though they directly destroyed rights previously exist- ing, and even in litigation at the time of the passage of the act. The same principle has been applied in Massachu- setts, and the general power of the legislature asserted over all matters of general policy, without reference to the rights of individuals.! * Ante, pp. 558 and 630. t Ante, p. 667. In this respect, we have English precedent on the same side, though apparently not sustained by positive judicial decision. The SO Geo. II. c. xxxiii., provided that the banns of matrimony should be published in certain chapels, and that unless so published, the marriage should be void, and the parties solemnizing it held guilty of felony. In The King against The Inhabitants of Northfield, Douglas, 661, the King's Bench applied this act, and declared that marriages of which the banns were published in other chapels than those directed, were absolutely void. But Lord Mansfield intimated that time " or the interposition of the legisla- ture " might cure the marriages already solemnized in unauthorized chapels. Thereupon, an act was passed, 21 Geo. III. c. xxxiii., declaring all such marriages valid in law, and exempting the clergymen who had celebrated them from the penalties of the 26 Geo. II. c. xxxiii. X Ante, p. 668. § By a Massachusetts act of 1784, in adherence to a policy pursued by several provincial statutes, the courts of sessions were authorized " to fix and determine the boundaries of the jail-yards to the several jails apper- taining." Under this act, the Court of Sessions for the county of Cumber- land, fixed and determined the limits or bounds of the town of Portland, exclusive of the islands, as the limits and boundaries of the jail-yard." But the Supreme Court held, that this was an abuse of the power given by the act ; that the practice under the former laws for half a century, was irresist- ible evidence of the ture construction of the power of the Sessions ; that they had no authority so to appropriate private property to public uses without compensation ; and that they could not extend the limits of the jail-yard ACTS CONFIRMING INVALID PKOOEEDINGS. 685 If the power of the legislature be conceded over ministerial and administrative proceedings, the ques- tion still remains how far they can act upon judicial proceedings which have already taken place ; how far beyond the land of the county, with the highways adjoining or leading to the prison. Baxter vs. Taber, 4 Mass. 360. Thereupon, in 1808, the legislature passed a law, and in 1809 one sup- plementary to it, the two in snbstance declaring that the boundaries of jail- yards theretofore fixed and determined by the Courts of Sessions, should be valid and legal so far forth that no person found anywhere within them, should be considered as having committed an escape. And this act was held a valid exercise of the legislative power. The court said, The statute is like the laws frequently made to confirm the acts ^nd doings of towns and other corporations which have been void for some informality, and in reviv- ing terms of courts which have failed from accident. Such acts have never been questioned on constitutional ground. And the acts of 1808 and 1809, were held to defeat actions brought for escapes before they were passed. Waller vs. -Bacon, 8 Mass. 471. Patterson vs. Philbrook, 9 Mass. 151 ; Locke us. Dane, 9 Mass. 360. The first of these cases is a short, per-euriam opinion. The second was decided on the authority of the first, and the third on the authority of the other tvro. The subject does not seem to have received the attention that its importance merited. A statute passed in Massachusetts, narrowing the gaol liberties after a day named in the act, has been held not to be unconstitutional, as applied to a bond given before the passage of the statute ; and the debtor having, after the day fixed by the statute, made use of the liberties in their previous extent, was held guilty of an escape. Reed vs. FuUum, 2 Pick. 158. In Maine, under the acts of that State of 1836 and 1836, in actions on jail bonds, given as security against the escape or discharge of debtors charged in execution, the plaintiff was entitled to recover as damages the amount of the execution costs, fees, and costs of commitment, with twenty- five per cent, interest. And in 1838, while these acts were in force, such a bond TV^as taken. In 1839 the legislature passed a law declaring that in cases of this kind the plaintiff should only recover his actual damages sus- tained. In a case in which the plaintiff relied on the prior legislation, it was insisted that the act of 1839 was unconstitutional and void ; but the court held that it merely controlled the remedy, as such was valid, and the plaintiff was nonsuited. Mr. J. Shipley said, " The constitutional provision in regard to the right of private property, does not prohibit the legislature from passing such laws as act retrospectively not on the right of property or obligation of the contract, but only upon the remedy which the laws ACTS CONFIRMING INVALID PROCEEDINGS. tliey can interfere with the regular operation of justice ; how far particular laws can be passed where general rules exist; how far defective proceedings can be cured. On all these subjects many and conflicting decisions, as we have seen, have been made. In some cases, as we have seen, the supremacy of the legislature has been asserted; in others, the strict division of. powers has been enforced. Great contrariety is to be observed ; but I think that on a careful observation of the cases, and especially the later decisions turning on the interpretation and application of the phrase, " the law of the land," among which may be specially noticed the determinations on the temperance laws, it is obvious that there is a strong and increasing dispo- sition on the part of the judiciary, strictly to enforce the constitutional prohibitions, and to restrain the legis- latures from those invasions of private rights to which the haste of our law-jnaking operations frequently tends.* afford to protect or enforce them. The legislature must necessarily pos- sess the power to determine in what manner the person or property of a debtor shall be subjected to the demands of a creditor, and of making alter- ations in such laws, as a change of circumstances or the public good may require; and in doing this, one may be deprived of a right, which he has by existing laws, to arrest the body or to attach or seize a certain description of property, without infringing any constitutional provision. When a per- son, by the existing laws, becomes entitled to recover a judgment, or to have certain' real or personal estate applied to pay his debt, he is apt to regard the privilege which the law affords him, as a vested right, not considering that it has its foundation only in the remedy, which may be changed, and the privilege thereby destroyed." Oriental Bank m. Preese, 18 Maine, 112 ; see also. Potter vs. Sturdivant, 4 Greenleaf, 154. * I may be permitted, in this note, to notice some of these cases. Some of them have been already more briefly referred to : — Jonathan Jenckes, a citizen of New Hampshire, died, seized of lands in Rhode Island. The estate was insolvent. Letters were taken out in New Hampshire, and a license granted by the judge of probate of that State, to sell the land of the testator for the payment of debts. Under that order. ACTS CONFIRMING INVALID PROCEEDINGS. 687 In some cases the legislature acts directly on tLe subject-matter. But the question of the extent of legislative power often arises in regard to statutes which affect a right of property indirectly, by acting the land in Rhode Island was sold in 1791. In 1792 an act was passed by the legislature of Rhode Island, ratifying and confirming the title acquired under the sale. In an action of ejectment brought by the heirs-at-law of Jonathan Jenckes, against parties claiming under the sale and legislative ratification, it appeared that the sale of lands in Rhode Island by virtue of an order made by a New Hampshire judge of probate, was absolutely void, and the title of the defendant depended on the validity of the confirming statute of Rhode Island. The Supreme Court of the United States held the' act good, and that the title passed by it, on the ground that the estate of the heirs of Jenckes was a vested estate in fee, but that it was subject to the payment of the debts of the decedent, and that the act divested ne vested rights except in favor of existing Mens of paramount obligation ; that the act was to be considered not as a judicial act, but as an exercise of legisla- tion ; that no attempt was made to impeach the sale for fraud ; and that as to want of notice, it might well be presumed after the lapse of more than thirty years. Wilkinson vs. Leland, 2 Peters, 627 ; see the case again, 10 Peters, 294. The court disposes of the question of judicial power very sum- marily, sayingjthat the act purports to be a legislative resolution, and not a decree. Itcouldhardly purport to be any thing but what it was. The ques- tion was whether it operated like a decree. And in examining the case, it is obvious that in arriving at its decision, the court was largely influenced by the peculiar character of the then government of Rhode Island, which* had had no written constitution of government, but was governed under the Charter of Charles II., which did not attempt to divide the powers of government, but gave to the General Assembly a very sweeping power of making laws, under which a long series of acts was proved, showing a frequent exercise of the same kind of authority. In a case in Pennsylvania, it has been held that a judgment erroneously entered on the first day of term in 1817, was cured by an act passed in 1822. The court said, this law had impaired no contract, disturbed no veste'd right. Every confirming act is in its very nature retrospective. Retrospective acts which only vary the remedies, divest no right, but merely cure a defect in proceedings otherwise fair. The omission of formalities which do not diminish existing obligations contrary to the situation when entered into and when prosecuted, is consistent with every principle of natural justice. Underwood vs. Lilly, 10 S. & R. 97. In Massachusetts, the constitution in force in 1820, gave the legislature full power and authority to make, ordain, and establish all manner of 688 ACTS CONFIRMING INVALID PROCEEDINGS. on the proceedings in courts of justice, or as it is said by acts affecting the remedy. In regard to this, the legislature may affect existing rights in the first place, by statutes of limitation restricting the time within wholesome and reasonable orders, laws, statutes, directiots, and instruc- tions (so as the same be not repugnant or contrary to the constitution) as they shall judge to be for the good and welfare of the commonwealth, and of the subjects thereof; and it was also declared that each individual of the society has a right to be protected by it, in the enjoyment of his life, liberty, and property, according to standing laws ; and by an act of 1783, the courts of probate were empowered to sell the real estates of minor children. In 1790 certain real estate was vested in the minor children of Asaph Rice, in right of their deceased mother; and in 1792, a resolve was passed by the General Court, or legislature, of the State, authorizing the father to sell and convey the premises for the best price that could be got, and invest the proceeds for the benefit of the children. Under this resolve the property was sold, and the validity of the sale coming up for adjudica- tion, it was contended that the resolution was void as an act of judicial power. But it was held valid as not being a judicial act ; and while it was conceded that under the general grant of legislative authority, the legisla- ture could not deprive a citizen of his estate, or impair a valuable contract, it was held that the resolve in question, being for the benefit of the minors, was good. Rice vs. Parkman, 16 Mass. 326. The opinion in this case is delivered by a very able judge, Parker, 0. J., but it appears open to criticism. It is said, "that this was not a judicial act, that it was not a case of controversy between party and party, nor is there any de- cree or judgment affecting the title to property." That there was no controversy nor any opportunity for controversy, as there would have been in a regular judicial proceeding, is the very ground of complaint ; and the precise allegation is, that the resolve is in its operation and effect a decree or judgment affecting the title to property. It is admitted in the defence, that the legislature could not deprive a citizen of his estate ; but that is exactly what is done in this case. The property belongs to minor heirs, the legislature directs it to be sold, or in other words, divests them of their estates. It is alleged to be for their benefit. That may or may not be. It may have been a fraud, and the proceeds embezzled. The true question is whether a party can' be deprived of his property without having the benefit of pleading, evidence, hearing, and trial. If the legislature takes away property without any of these proceedings, it does what the judiciary only can do after going through them, and in this sense must be said to perform a judicial act. In Massachusetts, by the constitution in force in 1814, it was declared PROCEDURE. 689 which actions may be brought. ' Secondly, by acts in regard to the evidence or procedure, by altering the that " the power of suspending the laws or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for." This provision seems to have been suggested by the English Bill of Rights and its provisions, in regard to the dispensing power. In 1813, on the petition of Holden, a resolution was passed by the legislature^ authorizing him to prosecute certain claims against the estate of Hannah. Ranger, as if the same had been commenced within the time prescribed by law, and declaring that the operation of any statutes of limitation of the State, that might bar the claims of Holden, should be by this resolution suspended. An action being brought by Holden against the administrator of the estate, it appeared that the claims were in fact barred by the general statute of limitations; but the resolution was relied on. The court, how- ever, held that though the general power of suspending laws resided in the legislature, they had not the power to suspend a general law in favor of an individual, nor in an individual case ; and the plaintiff was accordingly nonsuited. Holden vs. James, 11 Mass. 896. A mortgage executed to Eames and Ryder, loan commissioners for the county of Kings, in New York, having become due in 1843, notice was pub- lished that the premises would be sold. The term of office of one of the com- missioners (Ryder) expired in 1843, and the remaining commissioner (Eames) proceeded to sell the premises. The law of the State was well settled on grounds which we have elsewhere considered, under the head of " sum- mary administrative proceedings " (ante, p. 351), that a sale by one of sev- eral loan commissioners was wholly void, and that no title could be thus acquired. Olmsted vs. Elder, 1 Seld. 144. On the 12th of May, 1844, an act was passed entitled an "Act to confirm certain official acts of the com- missioners for loaning the moneys of the United States of the county of Kings," which declared that all the official acts of the commissioners for loaning money in Kings Co., and all proceedings by the same, performed or transacted solely by Eames, he being one of the said commissioners, or by any other person being one of said commissioners, at any time after the expiration of the term of office of any associate commissioner, and before a successor to such associate commissioner had been duly qualified, should be, and be held to be, of the same force as if such acts or proceedings had been performed by such commissioners jointly ; and all deeds and other papers executed by the said Eames, or by any one of such commissioners, should be, and be held to be, of the same force and validity as if such deed and other papers had been sealed and subscribed by both of said commis- sioners. In an action brought by a party claiming against the foreclosure and sale by Eames, the invalidity of the proceeding being established, it was 44 690 ' STATUTES OF LIMITATION. remedy or prohibiting a defence. Of these in their order. As to statutes of limitation, the rule appears to be insisted by the defendant, that it was confirmed and rendered valid by the act of 1846 ; but all retrospective effect was denied to it. The court said, " The act could not, and did not, act retrospectively, so as to take away any existing rights. We hold our right of property under a higher power, which cannot be overturned by the legislature." And the plaintiff had judgment. Pell vs. Ulman, per S. B. Strong, J. (not reported.) I take the decision from the printed case, obligingly furnished me by J. Townsend,- Esq., counsel for the plaintiff. A question very analogous has arisen under the act of 1850, to confirm proceedings in surrogates' courts, by which an attempt has been made to confirm proceedings entirely void, because not taken in conformity to the statutes conferring jurisdiction on the surrogate. Dean vs. Dean, 2 Mass. 150, is a case turning on a legislative resolve authorizing an appeal from a probate-court decree, after the time to appeal had expired. The appeal was dismissed, but the power of the legislature to pass the act was not denied nor, indeed, discussed. Where a statute of Massachusetts provided that bank commissioners should be authorized to examine the State banks, and if on examination they appeared to the commissioners insolvent or in a hazardous condition, then that on their report a justice of the Supreme Court should, without further investigation, be required to issue an injunction restraining their operations, it was held that this was not an exercise by the legislature of judicial power, on the ground that it made the report prima facie evidence of the facts? Commonwealth ve. Farmers and Mechanics' Bank, 21 Pick. 543. An act authorizing the guardian of an infant to sell and convey at public or private sale, under the direction and sanction of the judge of probate, is a valid act, and not unconstitutional as an exercise of judicial power. Mason m. Wait, 4 Scamnion, 134. A provision that a municipal charter shall not take effect until approved of by a majority of the inhabitants of the district incorporated, is not the delegation of legislative power, it is the mere question of the acceptance of a charter. City of Paterson vs. The Society, &c., 4 Zabriskie, p. 385. A statute in Indiana, after enumerating certain specific causes for which divorces may be granted by the courts, declares that they may be granted for " any other cause for which the court shall deem it proper that a divorce should be granted." (2 Rev. Stat, of Indiana, p. 235.) In a case arising under this act, it was insisted that this provision was unconstitutional, be- cause it conferred legislative power on the courts ; but the objection was held void on the ground that it only authorized the exercise of the discre- tionary power of the court. Ritter «s. Ritter, 5 Blackf. 81. EVIDENCE. 691 tKat they cannot be made so to retrospect as absolutely to cut off an existing right of action ; but within these bounds, it is said that the legislature has full power over the subject. By the Kevised Statutes of Massachu- setts, it was provided that all actions upon judgments should be commenced within six years next after the cause of action shall accrue. The Eevised Statutes were passed on the 4th of November, 1835, and went into operation on the 1st of May, 1836. After the 1st of May, 1836, suit was brought on a judgment recovered in 1817. The law was held not to be uncon- stitutional as impairing the obligation of contracts, since, as -it was enacted on the 1st of November, 1835, and did not go into operation till the Ist of May, 1836, the creditor had an opportunity in the interval to bring his action on any such judgment recovered more than six years before the 1st of May, 1836 ; and it was said " Whether the time allowed for creditors to commence their actions was a reasonable time or not, was a question within the exclusive power of the legis- lature to determine."* The same rule seems to hold good in regard to evi- dence ; the legislature may alter the rules of testimony in regard even to suits pending, however seriously the change may affect the rights of parties ; but the power must not be so exercised as to cut off a clear valid right. The Supreme Court of Massachusetts has said, " The legislature may prescribe rules of evidence by which parties must support their acknowledged rights. If at any time evidence was required by law which would defeat a constitutional right, the same would not be binding on the court8."f * Smith m. Morrison, 22 Pick. 430. t Kendall vs. Kingston, 5 Mass. 533. 692 REMEDIES. In regard to remedies generally, the right of the legis- lature has been repeatedly asserted, and in very sweep- ing terms. So, in Massachusetts it has been said, " There is no such thing as a vested right to a particular remedy. The legislature may always alter the form of administering right and justice, and may transfer juris- diction from one tribunal to another."* It has been said in the same State, to be very clear that a statute authorizing representatives in a suit to come in and to prosecute to judgment, is a valid act and may weU apply to cases pending at the time it passed."f A statutory provision allowing an executor to maintain trespass quare clausum for an injury done to the land in the lifetime of the testator, is not unconstitutional as applied to a trespass committed before this pro- vision went into operation, as it affects the remedy only.J So, we haVe seen that there is no vested right to the defence of usury.§ So, again, a Massachusetts statute, of 1838, regu- lated proceedings by insolvents to obtain their dis- charge. On the 6th of April, 1841, a party applied for the benefit of the statute. An act was passed in 1841, going into effect on the iTth of April, declaring that no certificate of discharge should be granted if the debtor, within six months before his application, should have made an assignment with preferences. On the 3d of April the debtor had made such an assignment. It was insisted that the insolvent was still entitled to his discharge under * Springfield vs. Hampden Commissioners of Highway, 6 Pick. 501,— a mandamus to Commissioners of Highways, t Holyoke vs. Haskins, 9 Pick. 268. X Wilbur vs. Gilmore, 21 Pick. 260. § Baugher vs. Nelson, 9 Gill, 299 ; ante, p. 412. REMEDIES. 693 the act of 1838 ; but the court held otherwise, say- ing, " It is clear that the appellant had no vested right to a discharge at the time of filing his petition."* So, even when a suit is definitively decided, it has been held that a right of appeal can be given by a stat- ute passed for that purpose. Suit was brought hj Sam- peyrac,in the Circuit Court of Arkansas, to establish his title to certain lands. An answer was put in, on behalf of the United States, den^ng the claim, and setting up that the plaintiff's grants were forged. In 1827, how- ever, a decree was made in favor of the title. No appeal was taken, and the time for appealing expired. In 1 8 30, Congress passed an act authorizing the courts of Ark- ansas to proceed, by bills filed or to be filed by the United States, to review any decrees of the court alleged to have been made on forged warrants or grants. Under this act, a bill of review was filed by the United States to set aside the decree in question ; the case was brought before the Supreme Court of the United States, and it was insisted that the act of 1830 deprived the claimant of a vested right ; but the court held that, considering the act of 1830 as providing a remedy only, it was entirely unexceptionable; that it only organized a tribunal with judicial powers ; that the retrospective operation of a law providing a remedy formed no objection to it ; and it was said that, " almost every law providing a new remedy affects and operates upon causes of action existing at the time the law is passed." And, it appearing that the plaintiff was a fictitious person and the alleged grant a forgery, the original decree w0,s reversed.f * Mc parte Lane, 3 Met. 213. t United States vs. Sampeyrac, 7 Peters, 222; S. C, Hempstead's Arkansas C. C. R. 119." We have seen (ante, p. 196) that, in Pennsylvania, 694: REMEDIES. It has been said by the chancellor of the State of New York, that where naked trustees might be com- pelled to transfer the legal title to cestui que trusts under the decree of a court of equity, there could be no doubt that the legislature had the power to transfer the title * In regard to this matter of remedies, it has been in several cases held, that the right of the legislature to interfere depended on the? point whether the end sought to be attained by the legislature was a good one. So, an act cutting off the defence of usury was held valid, because usury was considered as an immoral defepce.f So, the Supreme Court of Massachusetts has said, there could be no vested right to do wrong. J So, the act confirming invalid marriages was held to be good, because the object aimed at by the legislature was commendable.§ But this is a formidable if not a fal- lacious line of reasoning. It assumes that a power exists in the judiciary to decide on the morality, wis- dom, or justice of acts of legislation, and to treat them accordingly. This authority I have already had occa- sion to deny. If the cases which I have here grouped and to which I have referred, be carefully considered, I think it must be admitted that I have not at all exaggerated the difficulty of defining vested rights ; that no gen- eral rule can be laid down which will describe with the power of the legislature to pass a statute giving a writ of error in a case where none lay before the passage of the act, has been denied. * Dutch Church in Garden Street vs. Mott, 7 Paige, 82 ; Morgan et al. vs. Lesler, Wright's Ohio R. 144. t Baugher vs. Nelson, 9 Gill, 299; ante, p. 412. X Foster vs. The Essex Bank, 16 Mass. 245 ; ante, p. 484. § Goshen vs. Stonington, 4 Conn. 226 ; ante, p. 668. VESTED' RIGHTS. 695 precision the extent to which legislative interference with rights or interests in property, under our system, is permitted or prohibited. The construction of the great constitutional clauses in regard to private property, the obligation of con- tracts, and the right to process of law, is settled with considerable accuracy ; but beyond this the subject is infested with plain and painful contradiction. On the one hand, we have the propositions, — that the legisla- ture can only make laws ; that a judicial act, not being a law, is beyond its competency; and that private rights are entitled to the protection of the law of the land. Taking, on the other hand, the conceded power of the legislature over the procedure and remedy,^ their right to pass repealing acts, and in many cases retrospective acts, and I think the result of the investi- gation is, that in no branch of our subject clear lines of demarkation are more imperatively required, nor in any more difficult to establish. At present, all that can be done is to bring each case to the test of pre- vious decisions, and of principle, and as far as possible, to endeavor to restrict the operation of laws to future cases. Every sudden alteration of existing rights, duties, or relations, by the operation of law, as a general rule tends to insecurity and danger. This idea is expressed to a certain extent, in Mas- sachusetts, in a case already cited, where the court said, "A creditor has no vested right in the mere remedy, unless he may have exercised that right by the commencement of legal process under it before the law making an alteration concerning it shall have gone into operation."* So, too, m Penn- * Bigelow w. Pritchard, 21 Pick., 174. 696 VESTED EIGHTS. sylvania, under an act for the sale of vacant lands, passed April, l'792j it was held sufficient for a person holding a land warrant, in a suit against an intruder without title, to show that he, the warrantee, had been prevented by reasonable apprehension of the Indians from making a settlement on the warranted lands. Thereupon the legislature, in 1814, passed a law requiring the warrantee in such suits to prove that he had personally gone on to the land. The Supreme 'Court of Pennsylvania held, that this explanatory act -could not apply to suits before its passage ; that nothing less than positive expressions would warrant the court in giving a construction which would work manifest injustice. " It must not be supposed that the legislature meant to do injustice ; and what but injustice would it be to subject a man to the loss of his action and the costs of suit by a retrospective law, although at the time when he commenced his suit, he was entitled by the established law to recover ?"* The same idea has been expressed still more clearly and emphatically in the fundamental law of New Jersey. The constitution of that State declares that, "The legislature shall not pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts, or depriving a pa/rty of any remedy for enforcing a contract whicTi existed when the cont/ract was madeP-\ This provision is evidently drawn to obviate the difficulties and answer the objections grow- ing out of the subtle distinction taken between the obligation and the remedy. It very clearly declares that the substantial remedial legislation existing at the * Bedford m. Shiling, 4 S. & R., 401. t Cons, of New Jersey, art. iv., sec. Tii., § 3. WRITTEN LAW. 697 time a contract is made, enters into and forms part of the agreement ; it is the assertion, Iby a populous and flourishing community, that vested rights may be safely protected to this extent; and it seems to me every way worthy of commendation for its vigorous justice and sound sense. I here bring to a close this attempt to state the rules which govern the interpretation and application of written law. On a careful consideration of the whole subject, its importance cannot fail to impress the mind. "Absolute liberty, just and true liberty, equal and impartial liberty, is the thing we stand in need of!"* This is the fervid language of the great apostle of toler- ation; and the longing should be as earnest and the prayer as devout now as when the emphatic words were uttered. But in our time,' liberty will not be secured by violent effort or convulsive action. Liberty will only be preserved by steady determination and sys- tematic habit, by the practice of those virtues of fortitude and self-command, most" difficult, whether for nations or individuals. Most eminently is this true of this country. Liberty, here, can only exist in fellowship with Law. Whatever the glories of our past history, however grand our present, however brilliant our' future, it is vain to suppose that American freedom can be maintained except just so long as our people shall exhibit the capacity justly and intelligently to administer, and the disposition steadily and loyally to obey, the government. of Weitten Law. * Locke, Pref. to Letter on Toleration. 698 PHILLIMORE ON JURISPRUDENCE. While this last sheet is going through the press, I have for the first time seen " The Principles and Maxims of Jurisprudence," by John George Phillimore, Q. 0., M. P., London, 1866; and I can only wish that I had been able to avail myself of it at an earlier stage of my work. Mr. Phillimore's thorough knowledge and enlightened appreciation of the sci- entific order of the Roman law, and his liberal and courageous recognition of the defects of English jurisprudence, have already been made well known by his "Introduction to the Study and History of the Roman Law," Lon- don, 1848 ; but the present work is calculated still more strongly to turn the- professional mind of the present age to the comparative merits of the two systems. The work is a skillful selection of some of the most terse and profound maxims of the Roman law, with comments on them by the author, showing by the light of the decided -cases of English and American law, the extent to which the principles of the civil jurisprudence are recog- nized or disregarded by^he Anglo-American tribunals. Mr. PhiUunore's work is one eminently of a character to arouse the minds' of the legal students and practitioners of our time to the true dignity of the science to which their lives are devoted. In the present chaotic state of our own law, particularly, nothing can be more desirable than to keep in as frequent recollection as possible the simplicity, order, and equal justice of ^^the great system of jurisprudence by which the Roman world was governed. INDEX. ADMINISTRATIVE PROCEEDINGS, Summary, 331, 641. AGREEMENT, when annulled by statute, 635. AGREEMENTS in violation of statutes, when void,'85, 396. AMENDMENT OF LAWS, constitutiosal provisions as to, 571. ANNULLATION of an agreement by statute, when, 635. ANGLO-SAXON BURGHS, condition of, 462. APPLICATION for passage of statutes, 65. notice o^ when required, 66. APPRENTICESHIP, indentures of, when held void, 244. ARRETS, law of, in France, 210. ASSESSMENTS for opening streets, 602, 503, 504, 531. ASSISE or COMTITUTIONES, original name for laws, 26. ATTAINDER, bills of, prohibited, 598. ATTRIBUTES OP STATUTES, 65. AUSTIN, JOHN, on Jurisprudence, cited, 222. AUTHORITY and jurisdiction of statutes, 69. B. BANKING SYSTEM of New York, 442. BANKRUPT ACT, EngUsh, decision on, 244. BANKRUPT LAWS, 641. BENTHAM, JEREMY, cited, 293. "BEYOND SEAS," how construed, 304. BILLS, REJECTED, not again introduced at same session in Texas and Tennessee, 123, 6T3. BILLS OF RIGHTS, 179, 480. BILL OF RIGHTS, Constitution is, 583. BOWLING ALLEYS, act relating to, 463. BY-LAWS. See " Municipal Ordinances," 469, 472. 700 INDEX. - c. CANADA, act of Parliament relating to, 477. CANALS, act for enlargement of, in New York, declared unconstitutional, 86. CASUS OMISSUS in statutes, how, to be treated, 307. CAUSE AND EFFECT, 417. CENTRALIZATION in government, its effect, 459. CHARTERS OF INCORPORATION strictly construed, 388, 424. protected by Federal Constitution, 625. CHRISTIANITY, how far'part of the common law, 17. CLAUSES OP BILLS, 58. COLONIAL RECORDS of Massachusetts, 43 et seq. COLONIAL STATUTES, 29. COMITY between mations, 72. the States of the Union, 75, 77. COMMENCEMENT of Statutes, 53. COMMON LAW, statutes in derogation of, strictly construed, 313. a body of customs, 5. the, the basis of American jurisprudence, 8, 10, 12. adopted so far as applicable here, 12, 13. has no force here since the Revolution, 14, 15. none of the Union (aed qucere), 17 and note. statutes in derogation of, strictly construed, 313. COMPENSATION for private property, 527. COMPUTATION of time, 418. CONSTRUCTION (see Interpretation), general rules of, 225. • Lord Coke's rules, 235. CONSENT cannot give jurisdiction, 422. COmriTUTIO or ASSISA, original term for laws, 26, 27-477. CONSTITUTIONAL LAW, 475. origin of, in America, 18. a source of jurisprudence, 21. CONSTITUTIONAL limitations on legislation, 213. CONSTITUTIONAL MAJORITIES, 573. CONTRACTS in violation of statutes, when void, 85, 396. obligation of, 616. CONTEMPORARY EXPOSITION of statutes, 251. of constitutions, 593. CONVEYANCERS, English, influence of, 255. COPYRIGHT in statutes, 188. CORPORATIONS. See Charters, 424. INDEX. 701 COSTS, how regulated in New York, 859. statutes giving, how construed, 358. COUNTIES, provision as to division of, in New York, 580. COURTS MARTIAL, 551. CUSTOM (see Oiog'e), an element of jurisprudence, 3. force of, recognized by the civil law, 4. operation of, described by Forti, 4, 5. influence, in construction of statutes, 256. CUSTOMS, Provincial of France, 5 and note. CY PRES, doctrine of, 265. CUMULATIVE remedies and penalties, 93, 401. D. DECLARATORY STATUTES, 87. DELEGATION of legislative power, 164, 166. to municipal bodies, 463. of power of eminent domain, 517. DIRECTORY, when statutes held to be, 368. when constitutions, 377, 570. DIVORCES, legislative prohibitions of, 565. how far they can be granted in the United States, 635, in Missouri, 636. in Connecticut, 637. in other States, 637. DOMAT, his rules of construction, 283. DOWER, how far protected by the Federal Constitution, 636, 638. DUE PROCESS OF LAW, 610. See Law ofihe Land, 534. DUTY OF THE JUDGE, 310. DWARJIIS on Statutes cited, 26 (et passim). E. ELECTION OP REMEDIES, 93. See Oumulatwe Remedies, 401, EMBARGO LAWS, construction of, 243.. EMINENT DOMAIN, power of, 500, 504, 664. delegation of, 517. with reference to obligation Of contracts, 664. EQUITABLE CONSTRUCTION, 259, 291, 702 INDEX. EQUITY, no relief in, against statutes, 104. EQUITY of a statute, 296, 362. EXCEPTIONS IN STATUTES, 62. when to be negatived in pleading, 63, 117. EXEMPTIONS FROM TAXATION, 559, 629, 631. EXEMPTIONS, statutes conferring, how construed, 344. EXPLANATION, statutes of, 358. EX-P08T-FA0T0 LAWS, 191. prohibited by Federal Constitution, 599. EXTRINSIC PACTS not admitted to explain statutes, 241. EXTRINSIC EVIDENCE not to be received to explain constitutions, 489, 593. F. FERRY FRANCHISE in New York, 343. FIRES in New York, statutes relating to, 365. FOREIGN STATUTES, interpretation of, 425. proof of, 427. FORFEITURES, statutory, 97. PORTI, FRANCESCO, cited, 6. FRANCHISES, rules of construction as to, 339. FRAUD, whether it can be alleged against a statute, 510, 621, 622. FREEDOM OF SPEECH and of the Press, 608. FRENCH JUDICIARY, power oi, over statutes, 210 and note. FUGITIVES FROM JUSTICE, 604. SERVICE, 606. G. GAME LAWS, penalties under, when single, 98. GENERAL WORDS, how qualified by particular words, 423. GOOD FAITH, no excuse for violation of statute, 99. ORANTS OP FRANCHISES, rules of construction as to, 339. ORANTS OF LAND, 451. Irish, 452. ORANTS AND RESUMPTIONS in Ireland, 452. INDEX. 703 H. HABEAS CORPUS, under Federal Constitution, 698. HARDSHIP not to affect interpretation, 309. HIGHER LAW, 562. HODGE-PODGE ACTS, 567. HOFFMAN, DAVID, cited, 581. HUSBAND, interest in wife's choses in action, 541. • I. IGNORANCE, no excuse for violation of law, 83, 99. IMMUNITIES of citizens under Federal Constitution, 600. IMPLICATION, repeal by, 125. INCORPORATION, charters of (see Charters of), 338, 424. INCIDENTS OF STATUTES, 65. INDICTMENT in actions on statutes, 115. INFANTS, statutes in regard to, 101. INJUNCTIONS against public officers, 577. municipal corporations, 577. INTENTION of the legislature, to govern, 231. to be found in the statute itself, 243, 382. INTERNATIONAL COMITY, 72. INTERSTATE COMITY, 75, 77. INTERPRETATION (see Comimction), rule of civil law as to, 22, 148. practice as to, early in England, 23, 144, 203. ' general rules of, 225. Lord Coke's rules, 235. Blackstone's rules, 236. , means of, within the statute, 237. outside the statute, 239. J. JUDGES in England, when made permanent, 209. in the United States, tenure of office, 575. not liable civilly, 44. exception in Alabama, 441. JUDICIAL PROCEEDINGS under Federal Constitution, 600. JUDICIAL CONSTRUCTION of statutes, 253. 704 INDEX. JUDICIAL and legislative functions, how defined in this country, 160. JUDICIAL DECISIONS, English, how far authority here, 9. JUDICIAL POWER, boundaries of, 142. JUDICIAL PROCEEDINGS, Summary, 347. JUDICIARY, power of, over legislation, independent of constitutional pro- visions, 147, 180. power of, over statutes, 205. tenure of, when altered in England, 209. tenure of, in this country, 575. JURISDICTION OF STATUTES, 69. of the States of the Union over offenses committed in other States, when, 79. cannot be given by consent, 422. JURY, TRIAL by, 548. under Federal Constitution, 612. K. KING, not bound by statute of limitations unless named, 105, 396. L. LANGUAGE, English, history of, 28. LAST STATUTE, in point of time prevails, 81, 416. LAW, general, influence of, 1, 2. the moral, 1, 2. of nations, 1, 2. of nature, 1, 2. of the Twelve Tables, 6, 22. what is it? 163. of the land, what it is, 584, 610, See Due Process of Law. LAWS, when they take effect, 83. publication of, 189. LEASES, agricultural, restrained in New York and Michigan, 579. LEGACY TO WIFE, husband's interest in, 541. LEGISLATIVE and JUDICIAL functions, how divided and defined in this country, 160. LEGISLATIVE exposition of statutes, 252, et seq. POWER, boundaries of, 148, 164, 677. INDEX. Y05 LEVIES, laws confirming invalid, 669, 684. LETTER, statutes construed against, 299. LIBERAL CONSTRUCTION, 290. LIEBER, PROFESSOR, his rules of interpretation, 286. cited, 226. LIMITATIONS of actions upon statutes, 104. king not bound by, unless named, 105. United States, not bound by, unless named, 106. States of the Union not bound by, unless named, 106. as to suits for land in New York, 107. statutes of, regarded with disfayor by judiciary, 108. statutes of, how construed, 321. as to obligation of contracts, 669, 691. LIMITED PARTNERSHIPS, statutes regarding, 366. LOCKE, JOHN, cited, 149, 697. M. MAJORITIES, certain, required in certain cases, 67, 68. MARRIAGE ACT, English, 241, 684. MARRIAGES, how far contracts in the United States, 635. laws confirming, invalid, 666, 684. MARRIED WOMEN, restriction of Connecticut statute relating to, 197. MASSACHUSETTS, colonial records of, 43. MAY AND SHALL, construction of, 438. MAXIMS. "Lex uno ore omnes aUoquitur," 71. "Ignorantia legis neminem excusat," 83. " Nullum tempus occurrit regi," 105. "Jus publicum privatorum pactis mutare non potest," 109. " Privatorum conventio juri publico non derogat," 109. " Modus et conventio vincunt legem," 109. " Consensus toUit errorem," 109. "Est conveniens naturali equitati unumquodque dissolvi eo liga- mine quo legatum est," 121. "Omnis deflnitio injure civili periculosa est," 176. " Nova constutio futuris formam debet imponere, non prseteritis, 1 88. "Ejus est interpretari legem, cujus est condere," 203. " Oontemporanea expositio est fortissima in lege, 251. "Stare decisis," 253. " Optimus legum interpres consuetude," 255. "A communi observantia non est recedendum," 255. 45 706 INDEX. MAXIMS — continued. " Index animi sermo," 260. " Non observata forma infertur adnullatio actus," 319. " Causa proxima non remota gpectatur," 417. " In toto generi per speciem derogatur," 423. " Generalis clausula non porrigitur ad ea quse specialiter sint com- prehensa," 423. MILITIA DUTY, exemption from, 559.. MIXED STATUTES, 43. MONOPOLIES, statutes creating, how construed, 338. MONTH, meaning of, 420. MONTESQUIEU'S definition of law, 3 and note. MORAL LAW, 1, 2. MUNICIPAL LAW, definition of, 1, 2. elements of, 8, 21. MUNICIPAL CORPORATIONS, 463. Contracts made by, 634. Injunctions against, 577. MUNICIPAL ORDINANCES, contracts in violation, void, 86. interpretation of, 459. N. NEW JERSEY, constitution of, peculiarities in, 657. clause as to obligation of contracts in, 696. NEGATIVE STATUTES, 40. J^ON OBSTANTE, cases of, 207 note. NON USER, repeal by, 121. NUISANCES, abolition of, for public safety, 465, 468. o. OBLIGATION OF CONTRACTS, 616. with reference to eminent domain, 664. OBLIGATION AND REMEDY, distinction between, 643. OMNIPOTENCE OF PARLIAMENT, 160, 153, 214, 476. ORDINANCES MUNICIPAL. See Municipal Ordinances, 86, 459, 577. INDEX. 707 p. PARI MATERIA, statutes in, 247. PARLIAMENTARY SUPREMACY, 150, 153, 214, 476. PARTICULAR WORDS, interpretation of, 260. - PARTY, interpretation of, 262. PASSAGE OF STATUTES, 65. PATENTS OF LAND, rules in regard to, 451. PENAL STATUTES, 41. pleading in actions on, 112. how construed, 824, 390. PENALTIES, several, 98 PENALTY implies a prohibition, 41, 87. actions for, under code of procedure in New York, within what time brought, 107. PERSONAL STATUTES, 42. PHILLIMORE, Robert, on International Law, cited 289. PHILLIMORE, John George, his worlds on Roman Law, 698. PLEADING in actions on statutes, 111. POLICE POWERS of the States, 507. POLICY not to affect construction of statutes, 308. acts of public, are not contracts, 633. PREAMBLE OF STATUTE, effect of, 54, and 564 note. PRIVATE PROPERTY not to be taken without compensation, 494. PRIVATE ROAD, waiver of unconstitutional proceeding as to. 111. law of the land as to, in New York, 538. PRIVILEGES OP CITIZENS under Federal Constitution, 6.00. PRIVATE STATUTES, 32, 678. incidents of, 34. PROCEDURE, statutes in regard to, .319, 689, 691. PROOF OP STATUTES, 34, 78, 118. under Constitution of United States, 78. PROPORTIONAL TAXATION in Massachusetts, 558. PROTECTION to private property in England, 623. PROVISOS IN STATUTES, 62. when to be negatived in pleading, 63, 117. PUBLIC OFFICERS, created by statute, relief against, 102, 384, 466 PUBLIC STATUTES, 30. incidents of, 34. 708 INDEX. PUBLICATION OF LAWS, 139, 140. PURVIEW of a statute, 57. Q. QUI TAM ACTIONS, 107. QUORUM, what constitutes, 387. R. RAILROADS IN NEW YORK, 470, 472, 473. REASONABLENESS OP BY-LAWS, 472. RECORDING ACTS as to obligation of contracts, 661. REAL STATUTES, 42. REJECTED BILL or resolution, cannot be brought up again at same s sion in Texas or Tennessee, 123, 573. RELIEF, against acts of public officers created by statute, 103. none in equity against statute, 104. RELIGIOUS FREEDOM, 607. RELIGIOUS TOLERATION in Maine, 560. in Massachusetts, 662. in Connecticut, 565. REMEDIAL STATUTES, 41, 359. REMEDIES for violation of statutes, 91. election of, 93. See Gumulative Remedies, 401. REPEAL OF STATUTES, 121. constitutional provisions as to, 571. REPEAL BY IMPLICATION, 123 et seq. effect of, 129. retroactive effects of repeal, 132, 193, 680. of a repealing statute, 137. REPEALING CLAUSE, 61. in unconstitutional act, effect of, 580. REPEALING STATUTES, 41. REPORTS of judicial decisions, publication of, 139. RESUMPTIONS of grants of land, 452. RETROSPECTIVE STATUTES, 188, 406, 479, 484, 680, 696. INDEX. 709 RETROACTIVE EFFECT of repealing statutes, 132, 192, 193. RETROACTIVE STATUTES, 188. when allowed, 198, 406, 479, 484, 680, 696. of trustees, 449. REVENUE LAWS, how construed, 384, 888. REVISION OF LAWS, operation of, 429. constitutional provisions as to, 571. ROADS, reservation for, in Pennsylvania, 616. ROBBERY, interpretation of, 262. S. SAVIGNY, cited, 71, 289. SCHEDULES IN STATUTES, 64. SEARCHES AND SEIZURES, 551. SELL, interpretation of, 262. SERVICES, not to be required without compensation in Indiana and Ten- nessee, 560. SEVERAL PENALTIES, 98. SHALL AND MAY, 438. STAMP ACTS, to be strictly construed, 358. STATE, laws affecting the, 105, 395. suits against the, 576. STATE STATUTES, how construed in Federal tribunals, 430. STATUTES, classification and division of, 27. ancient and modern, 27. - colonial, 29. public and private, 30. their incidents, 34, 36. declaratory, 87. affirmative, 38. negative, 40. remedial, 41. penal, 41. repealing, 41. as divided by the civilians, 42. ^ parts of, 49. title of, 50, 52. Commencement of, 53. preamble of, 54. purview of, 57, 60. clauses of, 58, 61. TIO INDEX. STATUTES— continued. provisions in, 62, 117. exceptions in, 62, 117. schedules in, 64. attributes and incidents of, 65. passage of, 65. majorities, what, and when required, 67, 68. authority and jurisdiction of, 69. regarding the Sunday, 85. in regard to contracts violating them, 84 et seg. time when they take effect, 81, 83, remedies for violation of, 91. election of, 93. good faith no excuse for violation of, 99. ignorance " " 99. in regard to infants, 101. relief against acts of public ofBcers invalid by, 102. no relief in equity against, 104. limitation of actions upon, 106. king not bound by, unless named, 105. United States not bound by, unless named, 106. as to States of the Union, 106. waiver of, 109. pleading in actions on, 111. indictments on, 116. proof of, 34, 78, 118. repeal of, 121. by implication, 126. effects of, 129. repealing, repeal of, 137. copyright in, 1S8. STATUTE LAW, a source of jurisprudence, 3, 18. STATUTES, English, how far law here, 14, 15, 16. STATUTORY FORFEITURES, 97. STORY, Mr. Justice, cited, 43. STREETS, assessments for opening, 502, 504, 531. STRICT CONSTRUCTION, 259, 291. SUMMARY ADMINISTRATIVE PROCEEDINGS, 351, 641. SUMMARY JUDICIAL PROCEEDINGS, 347. SUMMARY PROCEEDINGS for landlords, 318. SUNDAY, laws for the observance of, 86. SUPERSEDE, interpretation of, 262. SUPREMACY OF PARLIAMENT, 160, 158, 214, 466. INDEX. 711 T. " TAKING," meaning of the phrase in regard to constitutional protection of private property, 519. TAXATION, statutes in regard to, 413. ^ by municipal bodies, 463, 502. power of, 502, 554, 674. restraints on, 554. exemptions from, 559, 629, 630, 631. TAX SALES, 256. statutes relating to, how construed, 353, 641. TECHNICAL "WORDS, interpretation of, 261. TEMPERANCE LAWS, 540, 611, 686.' TENURE OF JUDICIARY, when altered in England, 209. TIME, computation of, 418. when statutes take effect, 81, 83. TITLE OF STATUTE, effect of, 50. constitutional provisions as to, 52, 567. TREATIES, interpretation of, 447. retrospective operation of, 449. TRIAL BY JURY, 542. under Federal Constitution, 612. TRIAL, new, 609. TWELVE TABLES, law of the, 6, 22. u. . UNIFORMITY OF TAXATION, constitutional provisions as to, 655. ' USAGE (See Custom), an element of jurisprudence, 3. influence of, in construction of statutes, 256. USURY LAWS, regarded with disfavor, 219. . how construed, 336. retrospective act of, as to pleading, 410. no vested right of pleading, 412, 692, 694. V. VATTEL, his rules of construction, 266. VESTED RIGHTS, what they are, 177, 193, 410, 484, 671. VOID AND VOIDABLE, construction of, 302. 712 INDEX. W. WAGERS, statutes regarding, 423. WAIVER OF STATUTES, 109, 421. WAIVER OF CONSTITUTIONAL PROVISIONS, 111. WATER LINES, rules as to, 458. WORDS, interpretation of, 260, 262. banking principles, 435. billiards, 435. burglary, 435. _ cattle, 435. corporate name, 436. curtilage, 436. deny, 436. dissent, 436. final, 260, 262. from, 436. high seas, 437. jurisprudence, 437. justifiable cause, 437. maliciously, 437. may and shall, shall and may, shall or may, 438. navigate, 440. notice, 440. party, 260, 262. robbery, 260, 262. sell, 260, 262. steal, 441. supersede, 260, 262. YEAR, meaning of, 420. J^ KF 11-25 ^^ °'l Author Sedgwick, Theodroe Vol. Title A Treatise on the rules Copy • • » Date Borrower's Name