REESE LIBRARY 
 
 OP THK 
 
 UNIVERSITY OF CALIFORNIA. 
 
 Received v^S^^^C^C*? 
 
 Accessions No,_-?^/_^O'6 Shelf 'No. _. 
 
 
THE INTERPRETATION AND CONSTRUCTION 
 
 OF 
 
 STATUTORY AND CONSTITUTIONAL LAW. 
 
 BY 
 
 THEODORE SEDGWICK, 
 
 AUTHOR OF A "TREATISE ON T&S MEASURE OF DAMAGES." 
 
 WITH NUMEROUS ADDITIONAL NOTES 
 
 BY 
 
 JOHN NOETON POMEEOY, LL.D., 
 
 AUTHOR OF "AN INTRODUCTION TO CONSTITUTIONAL LAW," 
 AND OF "AN INTRODUCTION TO MUNICIPAL LAW." 
 
 " Maximum interpreiatianis juridicce mysterium." 
 
 a;. Test. Fact et Ex. XII. ix. 
 
 UNIVERSITY 
 
 lv : 
 BAKER, VOORHIS & CO., PUBLISHERS, 
 
 66 NASSAU STREET. 
 1ST4. 
 
Entered according to the Act of Congress, in the year 1874, by 
 
 RIDLEY WATTS, Executor of THEODORR SEDOWICK, 
 In the office of the Librarian of Congress, at Washington. 
 JL. / <J T" 
 
 BAKER & GOI<WIN, Printers, 
 26 Park Kow, N. Y. 
 
TO THE 
 
 MEMORY OF MY WIFE 
 
 TVHIS VOLUME 
 
 IS 
 
 DEDICATED. 
 
THE treatise upon the Interpretation and Application of Stat- 
 utory and Constitutional Law, like that upon the Measure of Dam- 
 ages by the same author, has been, from the date of its publication, 
 regarded as a legal classic. Based, in the main, upon the decisions 
 of American courts, and discussing the principles of statutory con- 
 struction as they have been expounded and illustrated by those 
 tribunals, it has been far more useful to the American lawyer, and 
 has been more readily accepted as a guide and helper by American 
 judges, than any work upon the same subject founded chiefly upon 
 Englisn precedents and drawing its materials from English sources. 
 Originally published in the year 1S57, the first impression was long 
 ago exhausted, and a new edition has long been demanded. This 
 want is now supplied, and a new edition is offered to the profession. 
 It is proper for the editor to explain its plan, and the nature and 
 scope of the additions which he has made. 
 
 Mr. Sedgwick's text has been left unchanged, and the additional 
 matter has all been placed in the form of notes. These notes, how- 
 ever, have not been broken up into numerous and short portions, 
 and connected with every paragraph or proposition of the text. All 
 the cases bearing upon each general topic discussed by the author, 
 and the remarks deemed appropriate to be made upon them, have 
 been collected and arranged together, and the notes are thus essays 
 more or less elaborate, each treating at large upon an entire doctrine 
 or principle of the law. In the first part of the treatise, that 
 which is concerned with the construction and interpretation of ordi- 
 nary statutes, the additions chiefly consist of the American decisions 
 bearing upon the text, brought down to the time when this edition 
 was passing through the press, with only so much of comment as 
 was necessary to explain them and to develop the principles which 
 
Vi PREFACE TO THE SECOND EDITION. 
 
 they announce. This course seemed to be entirely sufficient, because 
 the author's treatment was exhaustive, and nothing more was needed 
 than the further illustration s which, the recent cases furnish. In 
 the second part of the work, that which is concerned with the 
 guaranties of private rights contained in the State and national con- 
 stitutions, the additions made by the editor are much more exten- 
 sive. The notes upon these constitutional provisions are, in fact, in- 
 dependent essays, complete in themselves. It was the design of the 
 editor that his discussions upon the right of eminent domain, trial 
 by jury, citizenship, vested rights, the titles and subjects of statutes, 
 statutes impairing the obligation of contracts, and other similar sub- 
 jects, should embrace all the points which have ever been determined, 
 and refer to all the important cases, in addition to those quoted in 
 the text, which have ever been decided, by the- State and national 
 tribunals. The extent and scope of the additions can be partially 
 inferred from the fact that more than two thousand five hundred 
 citations are to be found in the editor's notes. The author's notes 
 can be easily distinguished from those added by the editor: the for- 
 mer being printed in two columns, while the latter extend across 
 the entire page, and are separated from the original matter by a 
 dividing line. The Index has been entirely rewritten, and will fur- 
 nish an easy reference to all the matters contained in the text or in 
 the notes. An attempt has been made, by a minute subdivision of 
 heads and by numerous cross-references, to make this necessary part 
 of every law book as full and as accurate as possible. 
 
 In conclusion, I desire to acknowledge in the fullest manner the 
 assistance rendered in the preparation of tins edition by F. V. BALCH, 
 Esq., of the Boston Bar. To his diligence and accuracy are due the 
 examination and selection of a large number of the cases which have 
 been cited, and the matter which he thus furnished forms a very 
 considerable portion of the substance of the notes which were ar- 
 ranged and composed by the editor. 
 
 JOHN N.ORTCM POMEROY. 
 
 ROCHESTER, N. Y., Oct. 7th,* 1874. 
 
PREFACE TO THE FIRST EDITION. 
 
 A VERY slight glance at the field of jurisprudence is sufficient 
 to convince us of the extent to which written law is making in- 
 roads upon the field of unwritten, customary, or common law. 
 
 One branch after another of the great topics of our science, be- 
 come subjects of legislation. Statutes, codes, and constitutions suc- 
 ceed 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 country, with equal 
 certainty, if not with equal rapidity. Here particularly, in the ab- 
 sence of the State machinery and the social and religious organiza- 
 tions of the Old World, the very essence of our system may be said 
 to be the government of Written Law. 
 
 This volume then, is an attempt to state the rules which con- 
 trol 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 preceded me in this 
 path. There are various works on the subject of constitutional 
 law, among which 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, 
 
Viil PREFACE TO THE FIRST EDITION. 
 
 is confined to Statutes. It is a work of great soundness as well 
 as of great originality of thought ; and my frequent references 
 show at once the extent of my obligations to it, and my profound 
 sense of its ability and value. 
 
 In taking leave of .a task which has beguiled many hours of 
 their weariness which has furnished a partial solace for the sad- 
 ness 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 magni- 
 tude of the subject, is my sense of the deficiencies in my treat- 
 ment 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 my ability, I have made the treatise one 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 any claim of merit or util- 
 ity that it may possess. 
 
 T. S. 
 
 NEW TOKK, May, 1857. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 PLAN OF THE WORK. 
 
 The Sources of Municipal or Civil Law usually'Twofold : Usage, or Common Law; 
 and Statute Law. In America a Third superadded : Constitutional Law. The 
 last Two 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 Consti- 
 tutional and Statute, in other words, of Written Law p. 1 
 
 Additional Notes. Presumption that the Law of a Foreign State is the same as that of the Forum. The 
 Doctrine discussed, 12, 13. Whether Christianity is part of the Law. Sunday Laws. Blasphemy. 
 Bible and Religious Teaching in Public Schools, 14. 
 
 CHAPTER II. 
 
 GENERAL CLASSIFICATION AND DIVISION OF STATUTES. 
 
 Division of Statutes. In England divided into Ancient and Modern. Division in 
 the United States. Public and Private Acts. Declaratory and Innovating 
 Statutes. Affirmative and Negative Statutes. Remedial Statutes. Penal Stat- 
 utes. Repealing Statutes 21 
 
 Additional Notes. Affirmative Language implying a Negative. Expressio unius, 31. 
 
 CHAPTER III. 
 
 THE PARTS OF STATUTES. 
 
 Blackstone's Enumeration of the Parts of a Statute: Practical Division. Title. 
 Commencement. Preamble. Purview. Clauses. Provisos. Exceptions. 
 Schedules 38 
 
 Additional Notes. The Title and Sub-Titles, 39. A Preamble, 45. Saving Clauses, 47. Proviso, effect 
 of, 49, 50. 
 
 CHAPTER IV. 
 
 THE ATTRIBUTES AND INCIDENTS OF STATUTES.' 
 
 Application for the Passage of Statutes. Contracts to obtain the Passage of Stat- 
 utes, or to withdraw Opposition. Authority and Jurisdiction of Statutes. 
 Time when Statutes take effect. Effect of Statutes to avoid Contracts in viola- 
 tion 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 52 
 
 A dditional Notes. Motives of Legislators cannot be inquired into, 54. Journals of the Legislature, effect 
 of. Publication of Statutes. Approval by Governor, 55, 56. When a Statute takes effect, 67, 68. 
 Waiver of Objection to the Constitutionality of a Statute, 88. Repeal in cases of Re-enactment or 
 Amendment, 95,96. Repeal by Implication, Doctrine discussed, 98-103. Including. Such Repeal 
 not favored, 98. The Rule, generalia sfecialibus non derogant, 98,99. When the last Statute or 
 Section prevails, 100. Cumulative Remedies, 100. Instances of Implied Repeal, 100, 101. Instances 
 of no such Repeal, 102. Extent of the Repeal, 102. Whether the Legislature can prescribe a Mode 
 of Repeal, 103. Effectof Repeal and of Amendment, 108-111. Revivalof the old Law, 108. Effecton 
 Individual Rights, 108. Unconstitutional Repealing Statutes, no. Amendatory Statutes, no. 
 
X CONTENTS. 
 
 CHAPTEE V. 
 
 OF THE BOUNDARIES OF LEGISLATIVE AND JUDICIAL POTVER. 
 
 Division of Legislative and Judicial Functions in England. Bills of Attainder. 
 Division in this Country. Disputed Power of Judiciary, independently of In- 
 terpretation and Constitutional Limitation. What is a Law? Power of the 
 State Legislatures examined. Retrospective Laws. Result of the Examination. 
 Judicial Power of construing doubtful 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. . . 119 
 
 Additional Notes. Submission of Laws to Popular Vote, 135-137. What is a " Law" as distinguished 
 from a Judicial Act, so as to be within the Province of the Legislature ? The Doctrine discussed, 
 138-144, including Private Statutes in relation to Persons not sui juris, Charities, &c., 140. Cura- 
 tive Statutes, 141. Retrospective Statutes, general Rule of Construction, 161. The Rule applied 
 to several particular Classes of Statutes, 162, 163. 
 
 CHAPTEE VI. 
 
 GENERAL RULES FOR THE CONSTRUCTION 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. Rutherford's Rules. Mackeldey's. Leiber's.- -Rules of our 
 Law. Intention of the Legislature to govern. Mode of arriving at the 
 Legislative Intention. Lord Coke's Rules. Blackstone's Rules. Statutes in pari 
 materia. Contemporaneous Exposition. Legislative Exposition. Judicial Con- 
 struction. Usage. Language used in Statutes. Technical Terms. Liberal and 
 Strict Construction, 190. 
 
 Additional Notes. Intent of a Statute, how ascertained, certain Rules discussed. 199-201 ; ditto, 203,204. 
 Statutes in pari materia^ Rule as to, 209, 210,212. Certain special Rules of Interpretation stated 
 and illustrated, 223-230, including : The General Principles. Common and Technical Terms. 
 Grammar and Punctuation. General Scope of the Statute. The whole Statute to be harmonized. 
 Limiting relative and subsequent Clauses. Consequences of a particular Interpretation Construc- 
 tion ut res magis valeat. Contemporaneous Construction. Legislative Construction. Stare 
 decisis, Presumption. Implication. Revisions. Reterer.ee Statutes.' 
 
 CHAPTEE VII. 
 
 OF STRICT CONSTRUCTION, AND OF LIBERAL OR EQUITABI/E CON- 
 STRUCTION. 
 
 The Line separating Judicial Construction from Judicial Legislation. Strict Con- 
 struction, and Liberal or Equitable Construction. Statutes when strictly con- 
 strued. Statutes conflicting with a Constitution or Fundamental Law. Stat- 
 utes 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 Burdens. Statutes authorizing summary Judicial Proceedings. Stat- 
 utes authorizing summary Administrative Proceedings. Statutes of Explana- 
 tion. 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 250 
 
 Additional Not ei. The literal Meaning when not to be followed, 255 Statutes in derogation of the 
 Common Law, Rule in relation to, discussed and applied in different Classes of Cases, 267-271. 
 Penal Statutes, 279, 280. Revenue Statutes, 288. Charters and Grants to Corporations, 291,292. 
 Statutes derogating from Common Rights and Exemptions, 296, 297. Remedial Statutes, 308. 
 Equity ot Statutes, 311. Liberal Construction. 312. Directory and Mandatory Provisions, Rules 
 lor distinguishing between them, and numerous instances of each, 316-318, 
 
CONTENTS. XI 
 
 CHAPTER VIII. 
 
 THE CONSTRUCTION AND APPLICATION OF STATUTES IN PARTIC- 
 ULAR CASES. 
 
 Statutes delegating Public Authority. Revenue Laws. Penal Laws. Laws as 
 affecting the Rights of the Government. 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. Inter- 
 pretation of Particular Words. Miscellaneous Cases. Grants or Patents. . 329 
 
 Additional Notes. When Statutory Remedies are exclusive, 341. Retrospective Laws, 346, 347. Mistake 
 and False Description, 354, 355. Computation of Time, 356. Construction of General Words, em- 
 bracing words ejusdein generis. Implied Exceptions to General Language. General Language 
 limited by the Object of the Act, 360, 361. Revisions, 365. Construction of State Statutes by the 
 U. S. Courts. 367,368. Interpretation ot certain Particular Words arranged alphabetically, 371-373. 
 " May " and " Shall," Interpretation of, 375, 376. 
 
 CHAPTER IX. 
 
 OF THE INTERPRETATION AND APPLICATION OF TREATIES, OF PAT- 
 ENTS OR GRANTS OF LAND, AND OF MUNICIPAL ORDINANCES. 
 
 Treaties. Part of the Supreme Law of the Union. How far they affect State Legis- 
 lation. 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 
 foimer 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 Authority of the Courts. 
 Contracts in Violation of Ordinances void. Passage of Ordinances 384 
 
 Additional Notes. Effect and Extent of Rights acquired by Treaty, 387. 
 
 CHAPTER X. 
 
 LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CON- 
 STITUTIONS OF THE SEVERAL STATES OF THE UNION. 
 
 The general Character of Constitutional Provisions regarded as Limitations upon 
 Legislative Power. Principal Restrictions imposed by the State Constitutions. 
 Guaranty of Private Property. Trial by Jury. Protection of Law. 
 Searches and Seizures. Taxation. Police Regulations. Titles of Bills. 
 Amendments. Repeal Constitutional Majorities. Religious Tests. Religious 
 Societies. Creation of Judges. Incorporations. Trust Funds. Divorces. 
 Suits against the State .' 404 
 
 Additional Notes. Unconstitutional, in part, 413,414. Implied Restrictions in the Constitution, 418. 
 Taking Private Property for Public Uses. Eminent Dem. ;in. Provisions of the State Constitu- 
 tions, 420-423. Taxation, 425-432, including Definition and General Principles, 425. Local Assess- 
 ments, 426-429. What Objects are Public, so that they may be made the Occasions of Local Taxa- 
 tion, 429, including Municipal Aid to Railroads, 420-431 ; ditto to Educational Institutions, 431 ; ditto 
 to other Private Enterprises, 431. Bounties to Volunteers, 432. Other Local Matters, 432. Police 
 Powers. General Doctrine discussed, and numerous Illustrations and Examples, 435-437. Taking 
 Private Property for Public Uses. Eminent Domain. A full Discussion of the Doctrine, embrac- 
 ing the following separate Notes : What can be taken, 443, 443. The question, " What is a Public 
 Use ? " a Judicial one, 443, 444. The Necessity, Expediency, or Propriety of the Taking, 444-446. 
 What is a Public Use ? numerous Examples of, 446-450. Who can take ? 452, 453. What consti- 
 tutes a Taking of Private Property for Public Use, 454-459, embracing Indirect and Consequen- 
 
CONTENTS. 
 
 tial Injuries, 455, 457. Illustrations of ".Taking," 457. Imposing additional Easements, 458, namely, 
 Turnpikes and^Plankroads, 458; Steam Railroads in Streets, 458. Horse Railroads in Streets, 458, 
 459. The Compensation, 463-467, including the General Doctrine, 463-466. Amount of, 466. Set-off 
 of Betterments or Benefits, 466, 467. Extent of the Taking, whether a Fee or an Easement, 472. 
 The " Lam of the Land" or " Due Process of Law." Constitutional Provisions, 474, 475. Discus- 
 sion of the Guaranty, with Illustrations and Examples, 475-478. Trial by Jury. Constitutional 
 Provisions, 482-486. A full Discussion of the Constitutional Guaranty, 486-495. This Note in- 
 cludes: General Principles as to Civil Cases, 486, 487. As to Criminal Cases, 487. 488. As to Equity 
 Suits, 488. As to Statutory Proceedings, 489. As to Special Proceedings, Private, 490 ; ditto, Pub- 
 
 Uniform, &c. ( with Illustrations of various Classes of Special Taxes, 503-506. Taxation and Repre- 
 sentation, 506. State and National Taxation, 507, 508. Certain special Constitutional Provisions, 
 509, 510. Religious Freedom^ 512. Titles and Subjects of Statutes. Constitutional Provisions, 
 518. A full Discussion of the Rules growing out of these Provisions, 519-530. Amendment of 
 Statutes, Constitutional Provisions, 531. Discusion of these Provisions, 532. Majority of Two- 
 thirds, 533. Uniform Operation of General Laws. Discussion of the Special Provisions in many 
 Constitutions, 534-536. Various Special Provisions in State Constitutions, 538-540. 
 
 CHAPTER XI. 
 
 LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CON- 
 STITUTION OF THE UNITED STATES. 
 
 Clauses of the Federal Constitution which operate as Checks on Legislative Action. 
 General Nature of the Legislative Power of the Union. General Principles of 
 Constitutional Construction or Interpretation. Interpretation and Application 
 of Particular Clauses. Habeas Corpus. Bills of Attainder. Ex post facto Laws. 
 Fugitives from Justice. Fugitives from Labor. Religious Freedom. Free- 
 dom of Speech and of the Press. Search Warrants and Seizures. Only One 
 Trial for Offences. Due Process of Law. Compensation for Private Property 
 taken for Public Purposes. Trial by Jury. Excessive Bail and Cruel Punish- 
 ments. The Obligation of Contracts. Vested Rights. Conclusion 544 
 
 A dditional Notes. Construction of certain Provisions in Arts. V, VI, and VII of the Amendments, 547, 
 54 8 > 555- Treaties, effect of, 556. Ex post facto Laws, 557-561. Forfeitures and Confiscations, 557- 
 559. Renewal of Penalty, 559. Increase or Change of Penalty, 559, 560. Changes in Proceedure, 
 Pleading. <&c., 560. Civil Remedies, 561. Citizenship, 562-566. Privileges and Immunities of Cit- 
 izens under Art. IV, sect. 2, i, 562, 563 ; ditto, under Amendments XIV and XV, Discussion of 
 these Amendments, 563-566. Only One Trial for the same Offence. Provisions of the State Con- 
 
 abjec 
 
 vision ? 581-589. Marriage, 581. Municipal Corporations, Charters of, and Contracts by, 582-584. 
 Permission to Sue the State, 584. Licenses, 584. Public Offices, 585. Charters of Private Cor- 
 porations, 585. Collateral Stipulations in such Charters, especially in reference to Taxation and the 
 Right of Eminent Domain, 586-588. What is included in the Contract, as forming a part of it? 589. 
 What is meant by the " Obligation of a Contract ? " 603, 604. What State Laws impair the Obliga- 
 tion of Contracts, 605-622. Laws which apply directly to the Terms of the Contract, 606-609, vlz - ' 
 Insolvent Laws, 606 ; Laws affecting Private Corporations, 607 ; Laws affecting the Power of Tax- 
 ation, 608 ; and of Eminent Domain, 609. Laws which Operate directly upon the Remedy, 609-617, 
 viz. : What is the Remedy ? 600 ; Stay Laws, 610 ; Exemption Laws, and Homestead Exemptions, 
 612 ; Arrest, 613 ; Statutes of Limitation, 613 ; Recording Acts, 614 ; Methods of Administering 
 Justice, Procedure, Evidence, &c.. 614 ; Scaling Laws, 615 ; Redemption Laws, 615 ; Appraisement 
 Laws,6i6; Miscellaneous, 616. Changing the Remedy, 617. Statutes affecting Municipal Corpora- 
 tions, 618, Laws incidentally affecting Contracts, 619. Extent of the Legislative Power when the 
 Right to alter, amend, or repeal Charters, &c., has been reserved, 620-622. Vested Rights. Effect 
 of the Provisions protecting applied to various Classes of Statutes, 643-645. 
 
TABLE OF CASES CITED. 
 
 Abbott v. Doling. 269. 
 
 v. Lindenbower, 142, 478. 
 
 v. Yost, 330. 
 
 Abercrombie v. Baxter, 615, 620. 
 Abington v. Duxbury, 161, 162. 
 Ablert v. Pritchard, 103. 
 Abynst v. Louisville, 426. 
 Adams r. Bancroft, 289. 
 
 0. Beale, 109. 
 
 . Corriston, 494. 
 
 0. Hamelt, 69. 
 
 0. Hillyer, 56. 
 
 v. Howe, 515. 
 
 v. Palmer, 142. 
 
 v. Saratoga, &c. R. R. 296. 
 
 0. Wood, 43. 
 
 Adamson v. Davis, 613. 
 Addison 0. Saulnier, 436, 503. 
 Agar v. Regent's Canal Co. 397. 
 Agent of State Prison v. Lathrop, 330. 
 Agew 0. Platt, 622. 
 
 Aiken v. Western R. R. 227. 
 
 Ala. &c. Ins. Co. v. Boykin, 144. 
 
 Ala. &c. R. R. v. Burkett, 467, 472, 607. 
 
 In re, 371. 
 
 Albany &c. R. R. v. Brownell, 459, 619. 
 Albany & North. R. R. v. Lansing, 460. 
 Albany St. Matter of, 445, 450, 472. 
 Alcorn v. Earner, 135, 136, 426. 
 Alderman Blackwell's Case, 376. 
 Aldridge 0. Mardoff, 200. 
 Alexander v. HcKenzie, 585. 
 
 v. Milwaukee, 456. 
 
 v. State, 365, 378. 
 
 Alexander's, Mrs., Cotton, 559. 
 Allbyer 0. State, 103, 535. 
 Allen 0. Archer, 143. 
 
 v. Armstrong, 143. 
 
 v. Colby, 500. 
 
 v. Drew, 427. 
 
 v. Joy, 425, 431. 
 
 v. Miller, 277. 
 
 v. Staples, 500. 
 
 v. Watson, 13. 
 
 Allen Co. v. Silvers, 414. 
 Allison v. Smith, 371. 
 
 Almy v. Harris, 30, 75, 77, 344. 
 American Fur Co. v. U. S. 282. 
 
 American Home Miss. Soc. v. Wadhams, 
 
 185. 
 
 Ames v. Port Huron, &c. Co. 477. 
 Amey v. Mayor, 430. 
 Amsbry v. Hinds, 161. 
 Amy Warwick, the, 559. 
 Anderson 0. Baker, 558, 559. 
 
 v. Commonwealth, 532. 
 
 0. Fisk, 645. 
 
 v. Kerns Drain Co. 447. 
 
 v. Turbiville. 464. 
 
 Andover, &c. Turnp. Co. v. Gould, 343. 
 Andrews, Ex parte, 512, 535. 
 
 v. Montgomery, 562. 
 
 v. N. Y. Bible, &c. Soc. 14. 
 
 0. Saucier, 414. 
 
 v. Wheeton, 359. 
 
 0. Worcester, &c. Ins. Co. 614.. 
 
 Ann, the, 67. 
 
 Anonymous, 3, 111. 
 Antoni 0. Wright, 607. 
 Apple 0. Apple, 224. 
 Annington 0. Barnet, 408, 442. 
 Armstrong v. Berreman, 532. 
 
 0. Garrow, 88. 
 
 0. Jackson, 494. 
 
 0. State, 493. 
 
 v. Toler, 69. 
 
 0. Treasurer, &c. 631. 
 
 0. U. S. 74. 
 
 Arnold v. Hudson Riv. R. R. 45. 
 
 0. Tallmadge, 93. 
 
 0. U. S. 357. 
 
 Arrowsmith c. Burlington, 480. 
 
 Ashburnham v. , 164. 
 
 Ashley v. Patterson. 500. 
 Ashuelot R. R. 0. Elliott, 616. 
 AspenwallV Commissioners, 588. 
 Atcheson 0. Everitt, 309. 
 
 0. Bartholomew, 535. 
 
 Atkins 0. Kinnan, 300. 
 
 0. btate, 573. 
 
 Atkinson 0. Duffy, 530. 
 
 0. Dunlap, 139. 
 
 0. Fell, 258. 
 
 0. Marietta, &c. R. R. 539. 
 
 Att'y Gen. 0. Aspenwall, 397. 
 
 0. Bank of Charlotte, 586. 
 
XIV 
 
 TABLE OF CASES CITED. 
 
 Att'y-Geu. 0. Bay State, &c. Co. 510. 
 
 v. Brown, 102. 
 
 v. Chelsea Water Co. 49, 107. 
 
 v. Clergy Soc. 61-9. 
 
 v. Earl of Powis, 45, 220, 371. 
 
 v. Lock, 378. 
 
 v. Mayor of Dublin, 397. 
 
 v. Newman, 107. 
 
 v. New York, 403. 
 
 v. Panter, 65. 
 
 v. Poole, 397. 
 
 v. Pougett, 69. 
 
 v. Squires, 585. 
 
 0. Winnebago, &c. PI. R. Co. 
 
 504. 
 
 Atwater v. Woodbridge, 511. 
 .Aubert v. Maze, 69. 
 Augusta v. Bank of Augusta, 429, 617. 
 Aulanier v. Governor, 508. 
 Auld v. Butcher, 610, 613. 
 Aurora v. West, 429. 
 Aurora &c. Co. v. Holthouse, 161, 607. 
 Austin c. Stevens, 169, 652. 
 
 v. Univ. of Penn. 407. 
 
 Avery v. Fox, 455. 
 
 v. Pixley, 358. 
 
 Aycock v. Martin, 611. 
 .Ayres v. Meth. Epis. Ch. 14. 
 
 Babbitt v. Doe, 300. 
 Babcock v. Lamb, 331. 
 
 0. Middleton, 583, 618. 
 
 Backus 0. Lebanon, 442, 454, 490, 586, 
 
 639. 
 
 Bacon v. Bacon, 29. 
 Bagnell v. Broderick. 390. 
 Bailey v. Bryan, 269. 
 
 0. Mason, 108. 
 
 0. Mayor, &c. 168. 
 
 v. Miltenberger, 443, 448. 
 
 0. Mogg, 118. 
 
 v. Power St. Ch. 622. 
 
 0. Rolfe, 216. 
 
 Baker v. Baker, 271. 
 
 0. Boston, 396. 
 
 0. Braman, 88. 
 
 0. Cincinnati, 503. 
 
 v. Johnson. 468. 
 
 0. Kelly, 477, 478. 
 
 0. Milwaukee, 102. 
 
 0. State, 574. 
 
 Balch . N. Y. &c. R. R. 372. 
 Baldro 0. Tolmil, 109. 
 Baldwin 0. Cooley, 269. 
 
 0. Hale, 606. 
 
 0. N. Y. 494, 5SO. 
 
 Ball v. Wyeth, 613. 
 
 Baltimore v. Bd. of Police. 582. 
 
 v. State, 412, 507. 
 
 Baltimore &c. R. R. 0. Nesbit. 605, 632 
 
 0. Union R. R. 443 
 0. Wilson, 229. 
 
 Bancroft v. Dumas, 69. 
 
 Bane 0. Wick, 227. 
 
 Ban field 0. Solomons, 290. 
 
 Baugor &c. R. R. 0. Smith, 608. 
 
 Bank v. New Albany, 588. 
 
 0. Supervisors, 507. 
 
 Bank of Alabama 0. Dalton, 635. 
 
 Bank of Augusta . Earle, 57, 60, 61, 63. 
 
 Bank of Cheuango 0. Brown, 135, 137. 
 
 Bank of Columbia 0. O'Keley, 623. 
 
 Bank of Commerce 0. N. Y. 507. 
 
 Bank of Dansville, Matter of, 381. 
 
 Bank of Easton 0. Common'th, 294. 
 
 Bank of Hamilton 0. Dudley's Lessee, 554, 
 578. 
 
 Bank of Monroe v. Widner, 74. 
 
 Bank of Old Dominion 0. McVeigh, 619. 
 
 Bank of Penn. 0. Common'th, 203. 
 
 Bank of Republic v. Hamilton Co. 297, 
 539, 609. 
 
 Bank of Rome 0. Rome, 135, 428, 429. 
 
 Bank for Savings v. Collector, 209. 
 
 Bank of U. S. . Daniel, 60. 
 
 0. Deveaux, 549. /- 
 0. Halstead, 550, 552. 
 
 Bank of Utica 0. Mersereau, 217. 
 0. Smedes, 25. 
 
 Bankhead 0. Brown, 444, 445, 448. 
 
 Banks, Ex parte, 375. ^ 
 
 0. Darden. 269. 
 
 v. Mayor, 507. 
 
 Bank Tax Case, 507. 
 Banne's Case, 389. 
 
 Bansemer 0. Mace, 375. 
 
 Baptist &c. Union 0. Peck, 644. 
 
 Barber 0. Andover, 639. 
 
 0. Dennis, 259. 
 Barbour 0. Barbour, 581. 
 Barclay 0. Brown, 278. 
 Bardon 0. Crocker, 30, 342. 
 Bargis 0. State, 300. 
 Barker 0. Dayton, 644. 
 , 0. People, 555, 580. 
 
 0. Pittsburgh, 600. 
 
 v. State, 373. 
 
 Barkhamstead 0. Parsons, 65. 
 B lay 0.- Glover, 611. 
 Barksdale 0. Morgan, 358. 
 Barlow 0. Gregory, 589. 
 Barnard 0. Houghton, 316. 
 Barnes 0. Atchenson, 427. 
 
 0. Barnes, 611. 
 
 0. Bell, 200. 
 
 0. First Parish, 515. 
 
 Barrett 0. State, 574. 
 
 0. Stockton &c. R. R. 293. 
 
 Barrington's Case, 27, 650. 
 
 Barren 0. Mayor of Baltimore, 555, 577,^ 
 
 580. 
 
 Barry 0. Iseman, 612. 
 Bartemeyer 0. Iowa, 565. 
 Bartholomew 0. Harwinton, 432. 
 
TABLE OF CASES CITED. 
 
 XV 
 
 Bartlett v. Achey, 280. 
 
 v. King, 105, 3G6. 
 
 v. Morris, 325. 
 
 0. Viner, 71, 339. 
 
 Bar to . Himrod, 137. 
 
 Barton . Port Jackson &c. R. R. 69, 88. 
 Bartruff . Reney. 161. 
 Barwell . Brooks, 215. 
 Baskett v. Cunningham, 117. 
 
 ?'. Univ. of Cambridge, 117. 
 
 Bass v. Fontleroy, 25. 
 Bates v. Kimbari, 143, 146. 
 
 v. Voorhees, 186. 
 
 Battle v. Howard, 526, 530. 
 Baugher v. Nelson, 659, 660. 
 Baumgardner r. Circuit Ct. 631. 
 Baxter v. Taber, 654. 
 
 Bay v. Gage, 162. 
 
 Bayard v. Klinge, 255, 533. 
 
 . Smith, 334. 
 
 Bay City v. State Treasr. 430. 
 
 Bay City &c. R. R. . Austin, 280. 
 
 Beach v. Walker, 642. 
 
 Beals v. Amador Co. 506. 
 
 Bean v. Briggs, 13. 
 
 I5eaty v. Lessee of Knowler, 294. 
 
 v. Perkins, 500. 
 
 Beaumont v. Mountain, 94. 
 Beckford r. Hood, 342. 
 Bedard v. Hall, 427. 
 Bedford v. Shilling, 114, 662. 
 Beebe v. O'Brien, 109. 
 
 v. State, 407, 408, 411. 
 
 Beekman v. Bigharn, 306. 
 
 v. Saratoga &c. R. R. 451. 453, 
 
 470, 490. 
 Beers v. Beers, 491, 496, 497. 
 
 v. Haughton, 550. 
 
 Bein v. Heath, 578. 
 Bell. Clapp, 500, 571. 
 
 v. Morrison, 369. 
 
 v. Quinn, 70, 402. 
 Bellinger . N. Y. Cent. R. R. 457. 
 Bellingsley . State, 209. 
 Bellows v. Weeks, 143. 
 
 Beman v. Tugnot. 70. 402. 
 Benden v. Nashua, 467. 
 Bender v. Crawford, 613. 
 Benedict v. Goit, 458. 
 Beneke v. State, 136. 
 Benjamin v. Benjamin, 272. 
 Bennett's Branch Co.'s Appeal. 459. 
 Bennett v. Am. Art. Union, 78, 79. 
 
 . Bennett, 644. 
 
 v. Boggs, 157. 
 
 v. Fisher, 143. 
 
 v. Holman, 267. 
 
 . McWhorter, 228. 
 
 Bensby v. Ellis, 163. 
 Benson v. Mayor of 
 
 429. 
 Beridon v. Barbin, 99. 
 
 Berley v. Rampacher, 161. 
 Berry . Ransdall, 613. 
 Berthold v. Fox, 616. 
 
 v. Holman, 616. 
 Bethel v. Demarest, 606. 
 Betts r. Bagley, 622, 623. 
 Bibb Co. L. Ass. v. Richards, 539. 
 Biddes . James, 94, 95. 
 Bid well v. Whitaker, 208. 
 Bigelow v. Forest, 559. 
 
 . Johnson, 335. 
 
 i\ Prit chard, 626, 661. 
 
 v. Stearns, 300. 
 
 e. West Wis. R. R. 267, 466. 
 
 . Wilson, 357. 
 
 Biggs . Lawrence, 339. 
 Billings v. Hall, 613, 645. 
 
 v. Harvey, 365. 
 
 Billingslea v. Baldwin, 210. 
 Billmeyer v. Evans, 611, 614. 
 Bingham v. Supervisors, 227. 
 Binghampton Bridge Case, 588. 
 Bird, Exparte,, 512. 
 
 Bishop . Marks, 427. 
 
 v. Schneider, 229. 
 
 Bishop of Peterboro' v. Catesby, 358. 
 
 Bishops, Case of the, 116. 
 
 Black's Case, 562. 
 
 Black . Delaware &c. Canal, 292, 367. 
 
 u. State, 574, 575. 
 
 Blackman v. Wheaton, 267. 
 Blackwood t>. Vanvleet, 616. 
 Blain v. Bailey, 99. 
 Blair i\ Forehand, 436. 
 
 v. Milwaukee <fec. R. R. 607. 
 
 v. Ridge ley, 558. 
 
 Blake . Bradkett, 96, 354. 
 v. Portsmouth &c. R. R. 376. 
 
 t. Rich, 472. 
 
 v. Sherman, 316. 
 
 .Blakemore v. Glamorganshire &c. Co. 293. 
 Blanchard v. Russell, 57, 60. 
 Blanding v. Burr, 506, 582. 
 Blaun 0. State, 617. 
 Blauvelt 0. Wood-worth, 644. 
 Bleecker . Ballon, 261. 
 
 0. Wiseburn, 277, 278. 
 Bliss v. Hosmer, 442. 
 
 v. Krauss, 138, 427. 
 
 r. Lilley, 371. 
 
 Blood v. Humphrey, 441. 
 
 v. Mercclliott, 522. 
 
 Bloodgood 0. Gracey, 367. 
 
 v. Mohawk, &c. R.R. 159,451, 
 
 453, 468. 
 Bloom v. Burdick, 300. 
 
 v. Richards, 14, 69. 
 
 Bloomfield &c. Gas Co. v. Richardson, 
 
 446. 
 
 N. Y. 129, 296, i Blunt's Lessee v. Smith, 390. 
 I Blythe 0. State, 510. 
 1 Board of Comm'rs v. Cutler, 212. 
 
xvi 
 
 TABLE OF CASES CITED. 
 
 Board of Comm's v. Potts, 102. 
 Board of Education v. Fowler, 583. 
 Board of Int. Imp. v. Scearce, 608. 
 Board of Pub. Works v. Columbia Coll. 
 
 562. 
 
 Board of Supervisors v. Campbell, 504. 
 Boardman v. Lessees of Reed, 390. 
 Bock v. Lanman, 364. 
 Bodley t>. Taylor, 390. 
 Bogardus . Trinity Ch. 7, 388. 
 Bonaparte v. Camden & A. R. R. 159. 
 Bond . Bond, 498. 
 10. Hiestand, 476. 
 
 10. Kenosha, 426. 
 
 v. Munro, 161. 
 
 v. State, 495. 
 
 Bonham's Case, 125. 
 Boom v. Utica, 399. 
 Boon v. Bowers, 228. 
 Boonville . Ormrod, 228. 
 
 v. Trigg, 532. 
 
 Booth v. Booth, 641. 
 
 v. Woodbury, 432. 
 
 Borden v. Fitch, 562. 
 
 Boring v. Williams, 496. 
 
 Borough of Dunmore's Appeal, 582. 
 
 Boseley . Mattingly, 195, 226. 
 
 Bostick 0. North Staffordshire R, R. 293. 
 
 Boston . Shaw, 402, 510. 
 
 Boston &c. Co. . Condit, 346. 
 
 . Newman, 447. 
 Boston, &c. R. R. t>. Cilley, 163. 
 
 v. Greenbush, 459,621. 
 
 v. Old Colony R. R. 
 
 455. 456, 466. 
 v. State,. 608. 
 Boston & Lowell R. R, v. Salem &c. R. R. 
 
 442, 596. 
 Boston Water &c. Co. v, Boston &c. R. R. 
 
 443, 639. 
 Boswell's Case, 650. 
 
 Bosworth . Budgen, 402. 
 Bouldin v. Massie's Heirs, 390. 
 Bounifield v. Bidwell, 430. 
 Boutwell v. Foster, 69. 
 Bowen v. Argall, 315. 
 
 v. Lease, 106. 
 
 Bowers c. Sonoma Co. 317. - 
 Bowles v. State, 493. 
 Bowman v. Cockrill, 530. 
 
 v. Middleton, 159, 406. 
 
 Boyce v. Sinclair, 143. 
 Boydfl. Barrenger, 168, 653. 
 
 v. Elles, 476. 
 
 v. State, 585. 
 
 Boyer v. Jones, 508. 
 Boyers v. Crane. 52. 
 Bovle, In re, 540. 
 Boyle . Arlidge, 367. 
 
 v. Zacharie, 613. 
 
 Boy lea . Murphy, ,371. 
 Brackett v. Hoyt, 335. 
 
 Bradbury v. Wagenhorst, 226. 
 Braddee v. Brownfield, 159. 
 Bradford v. Brooks, 145. 
 Bradley . Baxter, 542. 
 v. Buffalo &c. R. R. 608. 
 
 v. McAtee, 587, 588. 
 
 v. N. Y. & N. H. R. R. 294, 454. 
 
 v. People, 507. 
 
 Bradshaw . Omaha, 54. 
 Bradstreet v. Clarke, 116. 
 Bradwell v. Illinois, 565. 
 Brainard v. Colchester, 587. 
 Brandling v. Barrington, 204. 
 Brandon v. State, 520, 522, 527. 
 Branham . Lange, 527, 532. 
 Branin v. C. &. P. Riv. R. R. 617. 
 Brason v. Dean, 601. 
 Braynard v. Marshall, 622. 
 Bree v. Holbeck, 277. 
 Breitenbach . Bush, 611. 
 Brenham v. Story, 141. 
 Brett v. Beale, 94. 
 Brewer r. Otoe Co. 618. 
 Brewster v. Hough, 501, 511, 599. 
 0. Kitchen, 601. 
 
 v. Syracuse, 506, 520, 529, 582. 
 
 Bridge Co. v. Hoboken Co. 291, 371. 
 Bridgeford v. Hael, 521. 
 
 Briggs v. Easterly, 255. 
 
 . Georgia, 324. 
 
 Bright 10. McCullough. 525. 
 Brightman v. Kirner, 103. 
 Brighton *. Wilkenson, 620. 
 Brimmer v. Boston, 619. 
 Brinkley v. Swicegood, 108. 
 Brinton v. Seevers, 142. 
 Brisbin . Farmer, 47. 
 Briscoe v. Anketell, 634. 
 
 v. B'k of Common'th of Ky. 549. 
 
 Bristol v. Newchester, 419. 
 Bristow v. Sequeville, 364. 
 Brittain v. Kinnaird, 82. 
 Britton v. Moody, 415. 
 Broadbent v. State, 298. 
 Brodhead v. Milwaukee, 432. 
 Brodnax v. Groom, 56. 
 Bronson v. Kinzie, 613, 629, 632, 634. 
 . Newberry, 626. 
 
 v. Wiman, 94. 
 
 Brook v. Milliken, 336. 
 
 Brooklyn &c. R. R. v. Brooklyn &c. R. R. 
 458, 583. 
 
 v. Coney Island R. R. 
 
 458. 
 
 Brooklyn Park Comm'rs v. Armstrong, 
 
 589. 
 Brooks v. Daniel, 498. 
 
 v. Hyde, 535. 
 
 v. Mclntyre, 476. 
 
 v. Mobile School Comm'rs, 200. 
 
 Broome v. Wellington, 358. 
 Brown v. Beatty, 414, 464, 467. 
 
TABLE OF CASES CITED. 
 
 XV11 
 
 Brown 0. Buzan, 31. 
 
 v. County Commis'rs,' 98, 105, 
 
 106. 
 
 v. Duncan, 69, 71, 339. 
 
 r. Fitield, 268. 
 
 v. Heummel, 480. 
 
 0. Hunn, 371. 
 
 v. Kelly, 500. 
 
 0. McMillan, 104. 
 
 v. Penobscot Bk. 632. 
 
 v. Somerville, 256. 
 
 0. State, 495, 535. 
 
 0. U. S. 457. 
 
 Bruce v. Del. & 11. Canal Co. 83. 
 Brudenell 0. Vaux, 358. 
 Bruffett 0. Gr. West. R. R. 607. 
 Brush 0. Ware, 390. 
 Bryan v. Slate, 491. 
 Bryson v. Campbell, 601. 
 Buchanan 0. Smith, 270. 
 Buckingham 0. Billings, 298. 
 
 0. Steubenville &c. R. R. 
 
 102. 
 
 Buckley v. Lowry, 301. 
 Buckner r. Finley, 60. 
 Buell 0. Lockport, 87. 
 Buffalo &c. R. R. 0. Buffalo, 533. 
 
 0. Uoinmon'th, 609. 
 Buffalo Bayou &c. R, R, 0. Ferris, 4fi3 to 
 
 467, 490. 
 
 Buffalo City Cemetery v. Buffalo, 297. 
 Bulk ley 0. Eckert. Sol. 
 
 " v. N. Y. & N. H. R. R. 608. 
 Bull v. Conroe, 426, 644. 
 
 -p. Read, 135,137. 
 Bullock 0. Geomble, 492. 
 Bum pus P. Miller, 459. 
 Bunn v. Gorgas, 611. 
 Burch 0. Newbury, 139, 255. 
 Burchfield 0. North. Cent. R. R. 372. 
 Burden 0. Steen, 446. 
 Bureau Co. v. Chicago &c. R. R. 505. 
 Burford, ex parte, 572. 
 Burgett . Burgett, 40. 
 Burghardt e. Turner, 653. 
 Burhop 0. Milwaukee, 534. 
 Burke 0. Barron, 643. 
 
 0. Jeffries, 99. 
 
 Burn 0. Carvalho, 66. 
 Burnam . Common'th, 476. 
 Burnett 0. Sacramento, 426. 
 Burnham 0. Acton, 529. 
 
 0. Steven?, 229. 
 
 0. Webster, 26. 
 
 Burns 0. Atchinson, 429. 
 
 0. La Grange, 492. 
 
 Burnside P. Whitney, 269. 
 Burr 0. Ross, 55. 
 Burroughs 0. Payton, 645. 
 Burrows s. Bashford, 270. 
 
 Burt 0. Merchants' Ins. Co. 448, 453. 
 
 B 
 
 Burt 0. Williams, 611. 
 Burton's Appeal, 619. 
 Burwell 0. Tulles, 162, 212. 
 Bushnell 0. Beloit, 431. 
 Bussey 0. Story, 212. 
 Butler 0. Dunham, 430. 
 
 0. Kent, 77. 
 
 0. Palmer, 111, 112, 113, 114, 115, 
 
 156, 616. 
 
 0. Pennsylvania, 585, 600. 
 
 0. Putney, 432. 
 
 0. Toledo, 346, 561. 
 
 Butz0. Muscatine, 367, 610, 618. 
 Byers 0. Commonwealth, 491. 
 
 Cady 0. Watertown, 373. 
 Cahoon 0. Commonwealth, 103. 
 Cain 0. State, 209. 
 Calcraft 0. Gibbs, 80. 
 Calder 0. Bull, 131, 146, 159, 165, 170, 
 555, 561, 605. 
 
 0. Kurby, 584. 
 
 Calderwood v. Estate of Calderwood, 373. 
 Caldwell v. Albany, 278. 
 
 0. Justices, 429. 
 
 Calhoun 0. Calhoun, 619. 
 
 0. McLendon, 139. 
 
 California Tel. Co. 0. AltaTel. Co. 588. 
 Calkins 0. State, 371. 
 Call0. Chadbourne, 135, 136. 
 
 0. Hagger, 635. 
 
 0. Wilbridge, 374. 
 Calleuder 0. Marsh, 462. 
 Calvert 0. Williams, 139. 
 Camden v. Allen, 341. 
 
 v. Anderson, 107, 338. 
 
 Cameron v. Baker, 344. 
 Campan 0. Detroit, 110, 414. 
 
 0. Fairbanks, 300. 
 
 Campbell 0. Evans, t35. 
 
 v. Perkins, 315. 
 
 Canal Appraisers 0. People, 7, 462. 
 Canal Comm'rs 0. People, 7. 
 Canal Co. 0. Dauphin Co. 296, 372. 
 
 v. R. R. Co. 106, 256. 
 
 Canandaigua &c. R. R. 0. Payne, 460. 
 Canastota &c. R. R. v. Parkhill, 101. 
 Cancemi 0. People, 494. 
 Cannan 0. Bryce, 69. 
 Cannon 0. Henaphill, 530. 
 
 9. Vaughan, 197, 211. 
 
 Cantwell 0. Owens, 200. 
 
 Cargill 0. Power, 616. 
 
 Carleton i\ Goodwin's Ex'or, 139. 
 
 v. t<3ople, 414. 
 
 Carlton 0. Carlton, 540. 
 Carpenter 0. Commonwealth, 561. 
 
 . Landaff, 466. 
 
 0. Oswego &c. R. R. 458. 
 
 0. Prov. W. Ins. Co. 551. 
 
 0. Snelling, 507. 
 
XT111 
 
 TABLE OF CASES CITED. 
 
 Carson v. Carson, 581. 
 
 v. Central R. R. 459. 
 
 v. Coleman, 467. 
 
 v. Commonwealth, 495. 
 
 Carter v. Burt, 101, 560. 
 Caruthers v. Andrews, 535. 
 Case v. Wildridge, 195. 
 Casey v. Harned, 98, 102. 
 Cass'Township . Dillon, 416, 432. 
 Cassitv v. Storms, 613. 
 
 Castle" v. Burditt, 356. 
 
 Caswell v. Allen, 80. 
 
 Cate v. State, 98. 
 
 Gates v. Knight, 267. 
 
 Cathcart v. Robinson, 7. 
 
 Catlin v. Gunter, 186. 
 
 Central Bank v. Empire Stone &c. Co. 
 
 109. 
 
 Central Bridge Co. v. Lowell, 443. 
 Central Park, Matter of, 445, 447, 453. 
 Central Plank-Road v. Hannaman, 530. 
 Central &c. R. R. r. Holler, 463. 
 Chadwick . Moore, 626. 
 Chagrin Falls &c. PI. R. v. Cane, 458. 
 Chalker v. Ives, 163. 
 Chalmers v. Bell, 338. 
 Chamberlain v. Western Trans. Co. 270. 
 Chambers v. Satterlee, 427. 
 
 v. State, 355, 532. 
 
 Champlain &c. R. R. v. Valentine, 85, 
 
 391. 
 
 Chance v. Adams, 39. 
 Chandler . Main, 57. 
 
 v. Northrup, 310, 644. 
 
 Chancy v. State, 163. 
 Chapin r. Crusen, 607. 
 
 v. Persse, 270. 
 
 . Sullivan R. R. 472. 
 
 Chapman v. Albany &c. R. R. 459. 
 Chappee v. Thomas, 437. 
 Charity Hospital v. De Bar, 436. 
 Charles v. Lamberson, 67, 312. 
 
 v. People, 92. 
 
 Charles River Bridge v. Warren Bridge, 
 292, 293, 294, 337, 389, 595, 605, 632. 
 
 Charleston v. Benjamin, 14. 
 
 Chase v. Sutton Manuf. Co. 473. 
 
 Chealey v. Brewer, 261. 
 
 Cheany v. Hooser, 647. 
 
 Cheever . Wilson, 562. 
 
 Cherokee Tobacco, Matter of, 556. 
 
 Chesapeake &c. Canal Co. v. Baltimore 
 &c. R. R. 443. 
 
 Chester Glass Co. v. Dewey, 73, 343. 
 
 Cheval v. Nichols, 276. 
 
 Chicago v. Baer, 427. 
 
 v. Lamed, 427, 429. 
 
 . Sheldon, 618. 
 
 Chicago &c. R. R. v. Adler, 560. 
 
 v. Boone Co. 505. 
 0. Sandford, 464. 
 v. Wilson, 445, 447. 
 
 Childsr. Shower, HO, 645. 
 
 v. Smith, 31. 
 
 Chiles v. Drake, 527, 575. 
 
 v. Munroe, 526. 
 
 Christ Church v. Philadelphia, 586, 587_ 
 
 Christmas v. Russell, 562. 
 
 Christopher v. Mayor &c. 538. 
 
 Christy v. Board &c. 585. 
 
 Church v. Stadler, 103. 
 
 Churchill t. Crease, 48, 113, 361. 
 
 v. Merchants' B'k. 358. 
 
 Cincinnati Mut. H. A. Co. v. Roseuthal, 
 
 562. 
 
 Citizens' B'k v. Wright, 102. 
 City v. Empire P. R, Co. 411. 
 
 v. Lamson, 618. 
 
 City of Boston v. Shaw, 76, 343, 402. 
 City of Charleston v. Benjamin, 69. 
 City of London v. Wood, 119. 
 City of Lowell v. Hadley, 321, 399. 
 City of New Orleans v. St. Rowes, 323. 
 City of New York v. Miln, 413. 
 Clapp o. Cedar Co. 430. 
 Clark, Matter of, 569. 
 
 v. Brown, 74, 75. 
 
 v . Clark, 602. 
 
 v. Cordis, 476. 
 
 v. Davenport, 99. 
 
 v. Dick, 645. 
 
 v. Ellis, 413, 415. 
 
 v. Hatch, 623. 
 
 V. Hayes, 140. 
 
 v. Janesville, 371, 431, 529, 540. 
 
 T. Martin, 610, 611. 
 
 i\ People, 409. 
 
 v. Rochester, 135, 136, 429. 
 
 v. Saybrook, 461. 
 
 v. Syracuse, 396, 397. 
 
 v. Ticknor, 619. 
 
 v. Utica, 221, 470. 
 
 Clark's Adm'rs v. Han. & St. Jo. R. R. 
 
 608. 
 
 Clary v. Hoagland, 228. 
 Clayton . Adams, 215. 
 
 v. Chicago, 505. 
 
 v. Drake, 372. 
 
 Clemens v. Conrad, 507. 
 Cleveland v. State Bank, 360. 
 
 v. State Bank of Ohio, 373. 
 
 . Wick, 467. 
 
 Cleveland &c. R. R. v. Erie, 291, 539. 
 Cleveland &c. Co. v. Fire Comm'rs, 288.. 
 Clinton v. Cedar Rapids R. R. 459, 536. 
 
 v. Draper, 523. 
 
 Clippinger v. Hepbaugh, 53. 
 Clugas v. Penaluna, 339. 
 Coates v. Mayor, 600. 
 Coatsworth ?. Barr, 371. 
 Cobia i. State, 495. 
 Cochran t>. Surlay, 605. 
 
 v. Taylor, 200. 
 
 r. Van Surlay, 157- 
 
TABLE OF CASES CITED. 
 
 XIX 
 
 Coe v. Shultz, 138, 436. 
 Coffin v. Coffin, 490. 
 
 v. Kiel, 209, 226, 347, 585, 616, 617. 
 
 v. Tracy, 87. 
 
 Coffman v. Bank of Ky. 611. 
 Cohens 0. Virginia, 367, 553. 
 
 v. Wright, 478, 557, 612, 
 
 Colbrane . Barnes, 255. 
 
 Colclough 0. Nashville &c. R. R, 464. 
 
 Golden v. Eldred, 75, 76. 
 
 Cole v. Green, 320. ' . 
 
 v. Smithy 335. 
 
 v. Supervisors, 99. 
 
 Collector 0. Day. 508. 
 
 v. Hubbard, 644. 
 
 College of Physicians v. Harrison, 115. 
 Collins v. Blantern, 273. 
 
 v. Collins, 371. 
 
 ' 0. Ragrew, 335. 
 
 Colt v. Eves, 323, 496, 555. 
 Columbia &c. Co. v. Haywood, 357. 
 
 0. Muir, 427. 
 
 Columbus &c. R. R. v. Simpson, 467. ' 
 Colwell v. Mayo Landing &c. Co. 267. 
 Comer v. Folson, 432. 
 Commercial B'k of Buffalo v. Sparrow, 55, 
 
 533. 
 
 Commercial B'k of Oswego v. Ives, 357. 
 Commissioners v. Bowie, 465. 
 
 0. Holyoke &c. Co. 620, 
 
 621. 
 
 v. Nichols, 430. 
 v. Withers, 455. 
 Commissioners of Knox Co. v. McComb, 
 
 99. 
 
 Commissioners of Leaveuworth Co. v. 
 
 .Miller, 429. 
 
 Commissioners of Shawnee Co. v. Carter, 
 
 143. 
 Commonwealth v. Alderman, 573. 
 
 v. Alger, 12, 434,438,440. 
 
 0. Aves, 62. 
 
 v. Bacon, 600. 
 
 v. Baird, 512. 
 0. Baldwin, 337. 
 v. Barker, 642. 
 , 0. Bassford, 57, 60. 
 v. Borden, 56. 
 0. Boyle, 573. 
 v. Breed, 441. 
 r. Brennan, 584. 
 v. Bubser, 575. 
 0. Byrne, 477. 
 v. Cancannon, 31. 
 0. Gary, 543. 
 0. Chambre, 358. 
 0. Churchill, 116. 
 0. Cochituate Bank, 614. 
 v. Cotnm'rs of Alleghany, 
 
 102. 
 
 0. Conyngham, 226. 
 0. Cook, 573. 
 
 Commonwealth 
 
 Cooley, 105, 111. 
 Council of Montrose, 
 
 200. 
 
 Daitey, 495. 
 Dana, 498, 500. 
 Drewry, 530. 
 Duane, 111, 336. 
 Eastern R. R. 620. 
 Easton Bank, 106. 
 Edwards, 47. 
 Erie &c. R. R. 458, 563. 
 Essex Co. 620, 621. 
 Farm. & Mech. B'k, 
 
 657. 
 
 Fayette &c. R. R. 622. 
 Fells, 574. 
 
 Gardner, 101, 547, 560. 
 Garrigues, 337, 341. 
 Geltiuam, 279. 
 Gillespie, 65. 
 Green, 520, 573. 
 Greener, 547. 
 Griffin, 209. 
 Hall, 561. 
 Harvey, 64. 
 Herrick, 107. 
 Hitchings, 413. 
 Howe, 436. 
 Hudson, 575. 
 Jackson, 56. 
 Judges, The, 136. 
 Keefe, 575. 
 Kelliher, 101. 
 Keuiston, 357, 379. 
 Kimball, 105, 263, 415. 
 Kneeland, 14. 
 Knowlton, 7, 9. 
 Lahy, 575. 
 Leach, 9. 
 Long, 547. 
 Loring. 284. 
 McDonough, 110. 
 McMurdy, 26. 
 Maun, 600. 
 Many, 573. 
 Marshall, 105, 111, 141, 
 
 143, 355. 
 Martin, 284. 
 Maxwell, 356. 
 Murray, 642. 
 Newburyport, 139. 
 Painter," 135, 136. 
 Penn. Canal Co. 607. 
 People's Bank, 510. 
 Pittsburgh &c. R. R. 
 140, 293, 465, 466. 
 Pointer, 99. 
 Porter, 579. 
 Robbins, 356. 
 Rowe, 494. 
 Ryan, 497. 
 Shea, 575. 
 
XX 
 
 TABLE 0? CASES CITED. 
 
 Commonwealth 0. Slifer, 40. 
 
 v. Springfield, 25. 
 
 0. Tewksbury, 438. 
 
 0. Tracy, 570. 
 
 v. Tuck, 496, 573. 
 
 v. "Walton, 547. 
 
 v. Wei her, 259. 
 
 v. Westchester &c. R. R. 
 
 227. 
 
 v. Wilkinson, 458. 
 
 v. Williams, 494. 
 
 0. Wolf, 14. 
 
 v. Worcester, 402. 
 Company of Cutlers 0. Ruslin, 115. 
 Comter v. Reed, 301. 
 Conally v. Peck, 609. 
 Concord R. R. 0. Greeley, 444, 445. 
 Cone v. Bowles, 307. 
 
 0. Donaldson, 508. 
 
 Conger v. Barker, 229. 
 Congregational Soc. v. Curtis, 599. 
 Conkey v. Hart, 610, 614. 
 Conley v. Calhoun Co. 365. 
 
 v. Palmer, 79. 
 
 Connecticut &c. Ins. Co. r. Cross, 488. 
 Conner v. Elliott, 567. 
 
 0. Mayor, 523, 529. 
 
 v. New York, 585. 
 
 Connor v. Mayor, 40. 
 
 r. Southern Express Co. 98. 
 
 Conrad v. Nail, 110. 
 
 Contra Costa R. R. i\ Moss, 445. 
 
 Converse v. U. S. 210. 
 
 Conway v. Cable, 478. 
 
 Cook v. Gregg, 435. 
 
 v. Kendall, 613. 
 
 v. McChristian, 161. 
 
 v. Moffat, 613. 
 
 0. N. Y. &c. Dock Co. 109. 
 
 V. Smith, 609. 
 
 Cooley v. Board of Wardens, 550. 
 Coolidge v. Williams, 296, 342. 
 Coope v. Lowerre, 374. 
 Cooper, Matter of, 374. 
 
 v. Chester R. R. 465. 
 
 0. State, 493. 
 
 Coosa River St. Bt. Co. 0. Barclay, 346, 
 
 608, 617. 
 
 Cope v. Rowlands, 71, 72, 339. 
 Copemann v. Gallant, 43. 
 Corbett r. Bradley, 316. 
 
 v. Nutt, 312. 
 
 Corbin v. Hill, 142, 478. 
 
 v. March, 457. 
 
 Corbitt v. Poelnitz, 215. 
 
 Corfield v. Coryell, 567. 
 
 Coriell r. Ham, 610. 
 
 Corliss v. Corliss, 323. 
 
 Corn Exch. Ins. Co. v. Babcock, 268, 269. 
 
 Cornell 0. Guilford, 898. 
 
 v. Hichens, 614. 
 
 v. Moultou, 357. 
 
 Corning r. Green, 135, 533. 
 
 0. McCullough, 86. 
 
 Cornwall 0. Todd, 288. 
 Corson v. Ball, 371. 
 Corwin 0. Cowan, 472. 
 
 r. Ward, 535. 
 
 Coster v. Tide Water Co. 444, 445, 450. 
 Gotten v. Ellis, 585. 
 
 0. Leon Co. 135, 429, 430, 431. 
 
 Couch v. Jeffries, 113, 164. 
 
 r. Steel, 74, 77. 
 
 County Comm'rs v. Franklin R. R. 525. 
 County of Dane v. Smith, 510. 
 Coutaut r. People, 214, 412. 
 Covington v. McNickle, 45, 360. 
 
 r. Southgate, 426, 647. 
 
 Cowan r. McCutchen, 614. 
 Coxe v. Martin, 611. 
 Coxon 0. Doland, 226. 
 Coy r. Coy, 361. 
 Craig 0. Dimmock, 507. 
 
 0. Flanagan, 478, 645. 
 
 0. Kline, 139, 435. 
 
 0. Rochester &c. R, R. 458. 
 
 Cramer 0. State, 96. 
 Crandall 0. James, 490. 
 
 0. Nevada, 508, 562. 
 Crane 0. McGinnis, 146, 410. 
 
 0. Reeder, 99. 
 
 Craneford 0. Halsted, 109. 
 Crawford 0. Delaware, 457. 
 Crear . Crossly, 448. 
 Creighton v. Johnson, 496. 
 
 0. Manson, 429. 
 
 0. Pragg, 109. 
 
 Creole 0. Chicago, 427. 
 Crcspigny 0. Wittenoorn, 43. 
 Cripps 0. Durden, 336. 
 Crisp *. Bunbury, 104, 267. 
 Crittenden 0. Wilson, 30, 343. 
 Crocker v. Crane, 197, 331. 
 Crone 0. Daniels, 359. 
 Cronise v. Cronise, 413, 581. 
 Crooke 0. De Vandes, 222. 
 Crosby . Bennett, 76. 
 
 0. Brown, 288. 
 
 0. Hanover, 443. 
 
 0. Patch, 96. 
 
 Crosley v. Arkwright, 259. 
 Cross 0. Milwaukee, 506. 
 Croswell . Crane, 365. 
 Crow v. Missouri, 508. 
 Crowell 0. Van Bebber, 269. 
 Cruger 0. Hudson R. R. 470, 493. 
 Cuff 0. Commissioners, 464. 
 Cumberland 0. Magruder, 50, 99. 
 Gumming T>. Police Jury, 434, 510. 
 Cummings 0. Missouri, 478. 
 Cummins 0. Jefferson Co. 430. 
 Cunningham 0. Bucklin, 82. 
 
 v. Campbell, 466. 
 
 Curran 0. Arkansas, 604, 629. 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Curran v. Shnttuck, 296, 4C4, 465. 
 Currier v. Marietta &c. R, R. 291. 
 
 v. Phillips, 379. 
 Curry v. Landers, 616. 
 Curtis v. Gill, 101, 490. 
 
 v. Leavitt, 68, 336, 351. 
 
 v. Morrow, 615. 
 
 v. Whiffle, 431. 
 
 v. Whitney, 615. 
 
 Gushing v. Warrick, 225, 226. 
 Cushman v. Smith, 482, 469. 
 Cusic v. Douglass, 47, 612. 
 Cutler v. Howard, 376. 
 Cutlip v. Calhoun Co. 523, 528. 
 Cutts v. Hardee, 611, 615. 
 Cypress &c. Co. v. Hoopes, 447. 
 
 Dailey 0. Burke, 372. 
 
 v. State, 494. 
 
 Dalby v. Wolf, 137. 
 Dallis v. Fosdick, 566. 
 Dalton v. Murphy, 316. 
 Damman v. Comm'rs, 589. 
 Dane r. Dunning, 494. 
 Danforth v. Woodward, 298. 
 Darby v. Newton, 338. 
 Darcy v. Ketchum, 562. 
 Darling v. Rogers, 535. 
 Darlington v. New York, 432, 582. 
 Dart v. Houston, 585. 
 
 Dartmouth College v. Woodward, 405, 
 
 594. 601, 632. 
 
 Dash 0. Van Kleek, 165, 167,' 180, 561. 
 Daughdrill v. Ala. &c. T. Co. 588. 
 Davidson v. Farrell, 437. 
 
 v. Johonuot, 145, 147, 170. 
 
 v. Ramsay Co. 430. 
 
 Davies v. Fairbairn, 104. 
 Davis v. Bank of Fulton, 522. 
 
 v. Bronson, 619. 
 
 v. Marshall, 300. 
 
 v. Mayor, 402. 
 
 v. Menasha, 139, 146. 
 r. O'Farrell, 162. 
 
 r. Packard, 87. 
 
 0. Pierse, 612. 
 
 0. State, 526, 528, 530, 533. 
 
 v. State Bank, 143. 
 
 T. Woolnough, 521, 535. 
 Davis' Lessee v. Helbig, 140. 
 Davison r. Gill, 275, 2'J9. 
 
 Davy 0. Burlington &c. R, R. 226. 
 
 v. Morgan, 288. 
 
 Daw v. Metropolitan Board, 102. 
 Dawson v. Horace, 490. 
 
 v. Stafer,497. 
 
 Day v. Munson, 228. 
 
 v. Savage, 125. 
 
 v. Stetson, 462. 
 Deaderick v. County Court, 479. 
 D'Allex v. Jones, 280. 
 
 Dean0. Borchsenius, 506. 
 
 Dean 0. Charlton. 143. 
 
 v. Dean, 657. 
 
 0. Nelson, 476. 
 
 Dean of Ely v. Bliss, 104. 
 Deans v. McLendon, 368. 
 Dearborn v. Brookline, 201. 
 De Baun v. Mayor, 538. 
 
 Do Begnis v. Armistead, 71, 339. 
 
 De Berner v. Drew, 372. 
 
 De Bow v; People, 55, 533. 
 
 De Camp r. Eveland, 409, 542. 
 
 De Chastelleux v. Fairchild, 407. 
 
 Deegan ?:. Morrow, 530. 
 
 Deerfield v. Ames, 391. 
 
 Delaplaine 0. Cook, 306. 
 
 0. Crenshaw, 216. 
 
 De Mill 0. Lockwood, 140, 644. 
 
 Den 0. Harndon, 385. 
 
 Denham 0. Holernan, 526. 
 
 Denning 0. Roome, 403. 
 0. Smith, 330. 
 
 Denny 0. Mattoon,139, 141. 
 
 Denton 0. Polk Co. 466. 
 
 De Pauw v. New Albany, 506. 
 
 De Peyster v. Michael, 171. 
 
 Derby Turn p. Co. 0. Park. 592, 594. 
 
 De Ruyter 0. St. Peter's Church, 7. 
 
 Desban 0. Pickett, 102. 
 
 Des Moines v. Layman, 491, 493. 
 
 Detmold 0. Drake, 467. 
 
 Detroit v. Detroit &c. Co. 49, 292. 
 
 Deutzee v. Waldie, 144. 
 
 De Varaigue 0. Fox, 472. 
 j Devoy 0. New York, 110. 
 j De Vries 0. Conklin, 268. 
 
 Dew 0. Cunningham, 539. 
 
 Dewart 0. Purdy, 162. 
 
 Dewey 0. Goodeuough, 267. 
 
 0. McLain, 559. 
 
 De Winton 0. Mayor, 201. 
 
 Dexter &c. PI. R/Co. 0. Allen, 104. 
 
 Diamond v. Cain, 582. 
 
 Dicas 0. Lord Brougham, 82. 
 
 Dickenson v. Fitchburg, 466. 
 
 Dickey 0. Tennison, 448. 
 
 Dike 0. Lewis, 305. 
 
 Dill c. Roberts, 506. 
 
 Dillingham 0. State, 494. 
 
 Dillon v. Dougherty, 644. 
 
 Dingley 0. Boston, *446, 472. 
 
 Dishon 0. Smith, 56.' 
 
 District of the City of Pittsburg, Matter 
 
 of, 433. 
 District Township r. Dubuque, 31, 199, 
 
 418. 
 
 Divine 0. Harvey, 261. 
 Doane 0. Phillips, 379. 
 Dobbins v. State, 573. 
 Dock Co. 0. Browne, 292. 
 Doc Lomas ?:. State, 566. 
 Dodd 0. Miller, 584, 618. 
 
 0. State, 111. 
 
XX11 
 
 TABLE OF CASES CITED. 
 
 . Chandler, 372. 
 
 v. Gridley, 212. 
 
 0. Woolsey, 598, 638. 
 
 Doe B. Avaline, 209, 296. 
 
 n. Bridges, 77. 
 
 v. Gully, 116. 
 
 v. Nayior, 116. 
 
 v. Richards, 114. 
 
 v. Routledge, 276. 
 Dolan v. Thomas. 101, 560. 
 Dominick v. Michael, 385. 
 
 v. State, 575. 
 
 Donahoe v. Richards, 14, 514. 
 Donberger v. Reed, 490. 
 Donelly v. Corbett, 606. 
 Donner v. Palmer, 163. 
 
 Donovan 0. Vicksburg, 435,- 476, 492. 
 
 Don-worth 0. Coolbaugh, 109. 
 
 Dorgan v. Boston, 428. 
 
 Dorman v. State, 436. 
 
 Dorrance Street, Matter of, 427, 428. 
 
 Doswell v. Impey, 82. 
 
 Doughty v. Hope, 30i. 
 
 Douglas v. Bank of Missouri, 25. 
 
 v. Boonsboro' Turnp. Co. 458. 
 
 0. Rowland, 365. 
 
 0. Pacific Mail &c. Co. 372. 
 
 Dow v. Norris. 170. 
 
 0. Wakefield, 139. 
 
 Downham 0. Alexandria Council, 562. 
 Downing v. Rugar, 303. 
 Dozier v. Ellis, 277. 
 Drainage &c., Matter of, 447. 
 Draper 0. Emerson, 367. 
 
 v. Fally, 532. 
 
 Drehman v. Stifle, 437, 561, 589, 619, 
 
 645. 
 
 'Drennan v. People, 367. 
 Drexel . Commonwealth, 504, 506, 587. 
 Dronberger v. Reed, 464, 465. 
 Dubois 0. Killy, 9. 
 Ducat 0. Chicago, 504, 562. 
 Dudley v. Mahew, 74, 76, 87. 
 
 v. Reynolds, 226. 
 
 Duer v. Small, 508. 
 
 Duffield v. Smith, 114. 
 
 Duffy v. People, 491. 
 
 Dugan 0. Bridge Co. 49, 291. 
 
 Duncornbe v. Prindle, 45, 267, 522. 
 
 Dunham v. Chicago, 505. 
 
 Dunlap V. Pulley, 464. 
 
 Dunn's Adm'r 0. Sargent, 643. 
 
 Dunwell 0. Bid well, 108. 
 
 Duramus v. Harrison, 366. 
 
 Durfee v. Old Colony R. R. 622. 
 
 Durham v. Lewiston, 146. 
 
 Durkee v. Janesville, 477, 520. 
 
 Dutch Church 0. Mott, 660. 
 
 Dutchess Cotton Man. Co. v. Davis, 343. 
 
 Dwelly v. Dwelly, 269. 
 
 Dyson v. West's "Ex'or. 272. 
 
 Dyster, Exparte, 69, 402. 
 
 Eakin v. Raub, 407, 415. 653. 
 Earl of Ailesbury r. Pattison, 210. 
 Earl of Buckinghamshire r. Dourv, 216. 
 East Hartford v. Hartford Bridge Co. 25, 
 
 296, 600, 605. 
 East India Docks &c. R. R. v. Gattke, 
 
 462. 
 
 East Saginaw &c. Co. v. E. Saginaw, 586. 
 East St. Louis v. St. John, 453. 
 v. Wehrung, 504. 
 
 East Tenn. R. R, v. Love, 443, 464. 
 Eastern &c. R. R. 0. Marriage, 373. 
 Easton v. Calendar, 82. 
 Easton Bank v. Commonwealth, 586, 587. 
 Eaton v. Boston, &c. R. R. 455, 458. 
 Eddiugs v. Sea-brook, 456. 
 Edgar 0. Greer, 99. 
 Edmunds v. Lawley, 164. 
 Edrich's Case, 220. 
 Edward, Henry, Exparte, 496. 
 Edwards v. Dick, 257, 258. 
 
 r. James, 323. 
 
 r. McCaddon, 613.' 
 
 0. Pope, 43, 146, 413. 
 
 0. Stonington &c. Ass. 447. 
 
 Egyptian Levee Co. v. Hardin, 427, 447. 
 Elam 0. Rawson, 224. 
 
 Eldridge v. Knott, 95. 
 
 v. Smith, 442, 445, 447. 
 
 Elias 0. Nightingale, 279. 
 Elizabethtown &c. R. R. v. Helm, 467. 
 Ellah v. Leigh, 215. 
 
 Ellicottville &c. PI. R. 0. Buffalo &c. PI. 
 
 R. 473. 
 Elliott 0. Fairhaven &c. R. R. 458. 
 
 v. Lochnane, 99. 
 
 0. People, 574. 
 
 0. Swartwout, 332. 
 
 Ellis 0. Batts, 98. 
 
 0. Murray. 225. 
 
 0. Page, "179, 366. 
 
 Ellison 0. Jackson, 110. 
 
 a. Mobile &c. R. R. 201. 
 
 Ellsworth 0. Cole, 360. 
 Elmendorf v. Carmichael, 44. 
 
 v . Taylor, 369. 
 
 Elrod 0. Gililand". 102. 
 
 El*on 0. Eason, 222. 
 
 Elwood v. Klock, 365. 
 
 Ely 0. Holton, 110, 162. 
 
 Emanuel v. Constable, 43. 
 
 Embury 0. Conner, 88, 451, 473. 
 
 Emerick 0. Harris, 498, 497. 
 
 Emery 0. San Francisco Gas Co. 426, 427. 
 
 Emmerson 0. Taylor, 392. 
 
 Empire City Bank, Matter of, 476, 488, 
 
 588. 
 
 Enderman'0. Ashby, 495. 
 Enfield Toll Bridge Co. 0. Conn. River 
 
 Co. 594. 
 
 0. Hartford &c. 
 
 R. R. 639. 
 
TABLE OF CASES CITED. 
 
 XX111 
 
 English v. New Haven R. R. 620. 
 
 . v. Supervisors, 583. 
 Englishbee v. Hehnuth, 652. 
 Enking v. Simmons, 300. 
 Entick v. Carrington, 498. 
 Entwhistle v. Dent, 318. 
 Ericsson v. Brown, 373. 
 Erie v. Erie Canal Co. 582, 607. 
 Erie R. R. v. Commonwealth, 609. 
 
 v. New Jersey, 563. 
 
 Erlinger v. Boneau, 527. 
 Ernst v. Kunkle, 427. 
 Ervine's Appeal, 480. 
 Eskridge v. McGurder, 208. 
 Essex Turnp. Co. . Collins, 343. 
 Estep v. Hitchman, 143. 
 Esterly's Appeal, 269. 
 
 Evans v. Browne, 55, 56. 
 
 0. Eaton, 581. 
 
 . Haefner, 472. 
 
 v. Meyers, 218. 
 
 v. Montgomery, 626. 
 
 v. Sharp, 506, 530. 
 
 Evansville &c. R. R. v. Dick, 457. 
 Everett v. Wells, 208. 
 
 Ewing . Directors &c. 496. 
 
 . Filley, 490. 
 
 Executive Communication, Matter of, 533. 
 Executors of Burr . Smith, 14. 
 Exline v. Smith, 494. 
 
 Fairbanks v. Antrim, 283. 
 
 v. Wood, 357. 
 
 Fairtitle . Gilbert, 601. 
 
 Falconer v. Robinson, 520, 532. 
 
 Farley . Dowe, 521. 
 
 Farmers' L. & T. Co. . Walworth, 88. 
 
 Farmers' & Mech. Bk. . Smith, 410, 613. 
 
 Farnsworth v. Vance, 610, 611. 
 
 Farr v. Brackett, 365. 
 
 Farrell Foundry . Dart, 310. 
 
 Farrington v. Morgan, 275. 
 
 Fashion v. Wards, 222. 
 
 Faxton v. McCosh, 509. 
 
 Fellows v. Deniston, 387. 
 
 Felt v. Felt, 99. 
 
 Feuelon's Petition, Matter of, 433. 
 
 Fennell v. Redler, 69. 
 
 Ferguson c. Miners &c. B'k. 25. 
 
 v. Sandrarn, 88, 432. 
 
 Ferris v. Bramble, 448, 465. 
 Fetter, matter of, 568, 569. 
 
 . Wilt, 477. 
 
 Field 9. Goldsby, 227. 
 Fifield . Close, 507. 
 Figg v. Snook, 373. 
 Find v. McDowell, 116. 
 Finney v. Ackerman, 161. 
 
 Fire Department . Harrison, 486, 489. 
 v. Helfenstein, 425, 504, 
 
 562. 
 Fireman's Ass. . Lounsbury, 522. 
 
 First Baptist Ch. v. Utica & S. R. R. 
 
 459. 
 
 First Mass. Turnp. v. Field, 277. 
 Fisher v. Blight, 195. 
 
 . Horicon Co. 372. 
 
 v. McGirr, 415, 440. 
 
 Fishkill v. Fishkill PI. R. Co. 527, 528. 
 Fisk v. Briggs, 162. 
 
 v. Foster, 622. 
 
 v. Framingham Man. Co. 447. 
 Fitchburg R. R. v. Grand Junction R. R. 
 
 608, 620. 
 Fitzgerald v. Champneys, 99. 
 Fitzpatrick v. Gibhart, 226. 
 Flaherty v. Thomas, 101, 560. 
 Fletcher v. Lord Sondes, 281. 
 
 v. Oliver, 530. 
 
 v. Peck, 113, 159, 409, 545, 552, 
 
 554, 557, 588,590, 591, 632. 
 
 v. Rutland &c. R. R. 619. 
 
 Florentine v. Barten, 140. 
 Flournoy v. State, 573. 
 
 Floyer v. Edwards, 217. 
 
 Foley v. State, 528. 
 
 Foliauib's Case, 75. 
 
 Folkestone v. Woodward, 372. 
 
 Fontaine v. Phoenix Ins. Co. 78. 
 
 Foote v. Prowse, 318. 
 
 Ford v. Chicago &c. R. R. 445, 458. 
 
 Fordyce v. Goodman. 55. 
 
 Forrest v. Forrest, 219, 366. 
 
 Fort Miller &c. PI. R. Co. v. Payne, 76. 
 
 Forth v. Chapman, 222. 
 
 Forward v. Hampshire &c. Canal Co. 443. 
 
 Fosdick v. Perrysburg, 67, 99. 
 
 Foster . Banburv, 43. 
 
 v. Essex B'k, 410, 660. 
 
 v. Kenosha, 428. 
 
 v. Neilson, 386, 387. 
 
 v. Pritchard, 47. 
 
 v. State, 575. 
 
 Fouke v. Fleming, 55, 200. 
 Fowler v. Stoneum, 7. 
 Fox, Matter of, 509. 
 v. Dunkel, 435. 
 
 v. Western Pacific R. R. 465. 
 
 Foxcroft v. Mallett, 551. 
 Frank v. San Francisco, 316. 
 Franklin Glass Co. v. White, 343. 
 Frantz' Appeal, 508. 
 Free v. Burgoyne, 430. 
 Freeland v. Hastings, 426, 432. 
 
 i). McCullough, 85. 
 
 Freeman v. Moyes, 114, 164. 
 French v. Teschemaker, 267, 535. 
 Frewin v. Lewis, 397. 
 Frohock v. Pattee, 333. 
 Frolichstein . Mayor. 14, 512. 
 Frost v. Brisbin, 563.' 
 
 0. Fay, 255. 
 
 Fry 0. Booth. 317. 
 Fuller . Edings, 456. 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Fullerton . McArthur, 140. 
 
 . Spring, 96. 
 
 Fulton Bank v. Beach, 185, 186. 
 
 Furlillio <c. Crowther, 344. 
 
 Furman v. New York, 194, 202, 391. 
 
 . n. Nichol, 588. 
 
 Furmau' Street, Matter of, 433. 
 
 Gabbert . Jeffersonville R. R. 527. 
 
 Gabil v. Houston. 512. 
 
 Gage 0. Currier, 515. 
 
 Galbraith . Galbraith, 367. 
 
 Gale . Mead, 116, 321. 
 
 Galena v. Amy, 375. 
 
 Galena &c. R. B. e. Appleby, 608, 620. 
 
 Galloway . Jenkins, 372, 431. 
 
 v. London, 230, 292. 
 
 Games v. Stites, 369, 579. 
 Gardner . Collector, 26, 55. 
 
 v. Collins, 368, 374. 
 
 v. Newbury, 442. 
 
 Garland, Ex parte, 478, 557. 
 Garrett v. Beaumont, 168. 
 
 v. Cordell, 609. 
 
 v. St. Louis, 467. 
 
 Gas Consumers' Co. r. Clarke, 102. 
 
 Gaskin v. Meek, 529. 
 
 Gastpn v. Babcock, 489, 491. 
 
 Gates v. Salmon, 201. 
 
 Gatlin v. Walton, 581. 
 
 Gaul v. Brown, 109. 
 
 Gault's Appeal, 616. 
 
 Gazelle v. Lake, 108. 
 
 Gedney . Inhab. of Tewksbury, 344. 
 
 Gee v. ' Wilden, 402. 
 
 Geebrick r. State, 136, 137, 535. 
 
 Gelpke v. Dubuque, 430, 618. 
 
 Genkniger t>. State, 109. 
 
 Gentite v. State, 535. 
 
 Georgia v. Stanton, 159. 
 
 Gerrard n. Dickenson, 222. 
 
 Gerry v. Stoneham, 161. 
 
 Gibbons v. Mobile &c. R. R. 429. 
 
 . Ogden, 342, 413, 553. 
 
 Gibson . -Belcher, 354. 
 
 v. Jenney, 274. 
 
 . State, 279. 
 
 Giddings v. Cox, 365. 
 
 Giesey v. Cincinnati &c. R. R. 445, 447. 
 
 Gifford V. Livingston, 533. 
 
 v. New Jersey R. R. 530, 620. 
 
 Gilbert v. Col. Turnp. Co. 374. 
 Gildart . Gladstone, 293. 
 
 Giles v. Ferrers, 222. 
 
 Gilkeson v. Frederick Justices, 504, 508. 
 
 Gill v. Parker, 436. 
 
 Gillan v. Hutchinsoh, 459. 
 
 Gillespie n. Palmer, 533. 
 
 v. State, 527. 
 
 Gillett v. Campbell, 382. 
 
 v. Hartford, 297. 
 
 . Moody, 310, 380, 381, 382. 
 
 Gillett v. Shnrke, 98. 
 Gilliland . Phillips, 109. 
 Gil Ira ore v. Shorter's Ex'or, 113. 
 Gilman v. Lockwood, 606. 
 
 v. Sheboygan, 228, 505, 509, 583, 
 
 587.* 
 Gilmer r. Lime Point, 296, 445, 447, 448 r 
 
 449, 453. 
 
 Girard 0. Philadelphia, 582. 
 Girdner e. Stephens. 644. 
 Glaholm . Barker, 108. 
 Glasgow v. Rouse, 510. 
 Glassington v. Rawlins, 356. 
 Gloucester Ins. Co. v. Younger, 551. 
 Glover v. North Staff. R. R. 462. 
 
 . Powell, 457, 585. 
 
 Goddard, Matter of, 510. 
 Godden . Hales, 177. 
 Goelet . Cowdry, 276. 
 
 Goenan v. Schroeder, 588. 610, 620. 
 Goggans . Turnipseed, 611. 
 Going D. Emerey, 14. 
 Goldman . Clark, 418. 
 Gooch v. Stephenson, 345. 
 Goodel v. Jackson, 365, 390. 
 Goodin v. Cincinnati &c. R. R. 466. 
 Goodrich 0. Russell, 210. 
 
 v. Winchester &c. Co. 426, 427 r 
 
 Gordon e. Appeal Tax Court, 598, 632. 
 
 . Comes, 431. 524. 
 
 v. Jngraham, 346. 
 
 . South Fork &c. Co. 617. 
 
 v. State, 47. 
 
 v. Ward, 13. 
 Gordon's Ex'ors . Mayor, 599. 
 Gore . Brazier, 223, 2*65. 
 Gorman v. Hammond, 100. 
 
 v. Pacific R. R. 607. 
 
 Goshen v. Richmond, 347. 
 
 e. Stonington, 131, 350, 641, 660. 
 
 Goshen &c. Co. v. Hurtin, 343. 
 Goshorn e. Purcell, 144. 
 
 Gosselink v. Campbell, 435. 
 Goszler . Georgetown, 600. 
 Gotcheus v. Matheson, 559. 
 Gould 0. Glass, 452. 
 'o. Hudson Riv. R. R. 455. 
 
 T. James, 390. 
 
 v. Johnson, 27. 
 
 , v. Langdon, 210. 
 
 v. Sub District, 360. 
 
 r. Venice, 429. 
 
 Gowen v. Penobscot R. R. 617. 
 Grace, Kx parte, 490. 
 
 v>. Clinch, 259. 
 
 v. Donovan, 47. 
 
 Graham, Ex parte, 109. 
 
 f. State, 617. 
 
 v. Van Wyck, 272. 
 
 Graniteville &c. Co. v. Roper, 588. 
 Grannahan v. Hannibal &c. R. R. 608, 617. 
 Grant t. Courier, 135. 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 Grant v. Kemp, 164. 
 
 Gray v. Brooklyn, 582. * 
 
 v. First Division &c. 458. 
 
 v. Kimball, 436, 476, 500. 
 
 . Larrimore. 269. 
 
 . Russell, 117. 
 
 Great Central &c. Co. v. Clarke, 99. 
 Great Falls &c. Co. v. Fernald, 447. 
 Great Western &c. Co. v. Saas, 617. 
 Green . Biddle, 552, 577, 595, 623, 632. 
 
 v. Briggs, 492, 576, 579. 
 
 v. Commonwealth, 208. 
 
 . Ilolway, 508. 
 
 v. James, 550, 576. 
 
 . Kemp, 259. 
 
 v. Lessee of Neal, 368. 
 
 v. Neal, 369. 
 
 v. New' York, 228. 
 
 v. Shumway, 558. 
 
 v. U. S. 337. 
 
 v. Van Buskirk, 562. 
 
 . Weller, 22o, 533. 
 
 v. Wood. 207. 
 
 Greencastle . State, 228, 532. 
 Greenfield v. Dorris, 616. 
 Greenough v. Greenough, 350. 
 Greer v. State, 110. 
 Griffin . Mixon, 477. 
 
 v. Rauney, 508. 
 
 v. Wilcox, 437. 
 
 Griffin's Ex'or . Cunningham, 139. 
 Griffith t>. Wells, 32, 71. 
 Grignon's Lessee v. Astor, 301. 
 Grim . Weissenburg Dist. 432. 
 Grimball . Rose, 407. 
 Grinder v. Nelson, 351. 
 Grindley v. Barker, 331. 
 Groesbeck . Seeley, 478. 
 Grogan v. San Francisco, 582, 583. 
 
 . State, 573. 
 
 Gromes v. Bryne, 612. 
 
 Gross e. Fowler, 356, 372. 
 
 Grosset v. Ogilvie, 115, 336. 
 
 Grosvenor . Chasley, 610, 617. 
 
 Groton r. Hurlbut, 359. 
 
 Grover v. Coon, 115. 
 
 Grubbs . State, 522. 
 
 Guenther . People, 575. 
 
 Guild v. Rogers, 610, 614. 
 
 Guile v. Brown, 490. 
 
 Guilford . Chenango Co. 426, 506. 
 
 . Cornell, 527. 
 
 Guillotte v. New Orleans, 455, 588. 
 Gunn v. Barry, 47, 585, 606, 612. 
 
 ~v. Hendry, 615, 619. 
 
 Gunter v. Dale Co. 521. 
 
 v. Leckey, 279. 
 
 Guy . Heruiance, 139. 
 Gwin v. Barton, 578. 
 
 . Breedlove, 578. 
 
 Gwinner v. Lehigh &c. R. R. 101. 
 Gye v. Felton, 259. 
 
 Harlden . Collector, 204. 
 Hadfield v. Mayor, 139, 618. 
 Haentze . Howe, 204. 
 Haggard v. Hawkins, 522. 
 H aight <c. Grist, 507. 
 Haines v. Levin, 491. 
 Halbert v. McCulloch, 373. 
 Hale 0. Huston, 619. 
 
 v. Kenosha, 506. 
 
 v. N. J. Steam Nav. Co. 364. 
 
 Hale &c. Co. v. Storey Co. 508. 
 Haley v. Clark, 540. 
 Hall v. Bergen, 362. 
 
 v. Bunte, 525. 
 
 v. Dyson, 70. 
 
 v. Franklin, 264. 
 
 Hallett v. Noouan, 71. 
 Halsted . Mayor, 398. 
 Ham TO. Sawyer, 218. 
 
 v. Steamboat Hamburg, 269. 
 
 Hamilton t. Keith, 608. 
 
 v. Fond du Lac, 143. 
 
 . Steamboat Hamilton, 225. 
 
 v. Williams, 379. 
 
 Hamilton Avenue, Matter of, 460. 
 Hamilton &c. Ins. Co. . Parker, 476. 
 Hamlet . Taylor, 67. 
 
 Hammett . Philadelphia, 430. 
 Hammond v. Anderson, 215. 
 
 v. Haines, 136. 
 
 Hampshire v. Franklin, 653. 
 Hampson v. Weare, 476. 
 Hampton . Commonwealth, 112. 
 
 v. Erenzeller, 357. 
 
 . McConnell, 63, 562. 
 
 Hancock . Ritchie, 614. 
 Hancock Street, Matter of, 433. 
 Hand r. Ballou, 306. 
 
 Haney v. Marshall, 562. 
 
 Hanlon v. Supervisors, 509. 
 
 Hannibal v. Hannibal &c. R. R. 443, 445. 
 
 Hannibal &c. R. R. v. Muder, 445, 447. 
 
 v. Shacklett, 297. 
 Hannum v. Bank of Tenn. 161. 
 Hansen v. Vernon, 430. 
 Hapgood T. Doherty, 490, 491. 
 Happy r. Mosher, 477. 
 Harbeck v. New York, 110. 
 Hard . Nearing, 435. 
 Hardeman v. Downer, 612. 
 Hardin . Owings, 327. 
 Harding v. Butts, 478. 
 
 v. Goodlett, 447, 454. 
 
 Hardy man v. Whitaker, 336. 
 Hargreaves v. Smith, 325. 
 Harley v. Kamsey, 269. 
 Harman . Brotherson, 82. 
 Harmon r. Wallace. 615. 
 Harpending v. Dutch Ch. 84. 
 
 v. Haight, 54. 
 
 Harper v. Commissioners, 490, 539. 
 i). Richardson, 465. 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 Harrell 0. Harrell, 209. 
 Harrington v. Rochester, 353. 
 
 v. Smith, 360. 
 
 0. Wands, 532. 
 
 Harris v. Roof's Ex'ors, 54. 
 
 v. Runnells, 72, 339. 
 
 t>. Thompson, 444. 
 
 0. Wood, 303, 496. 
 
 Harrison 0. Chiles, 496. 
 
 v, Stipp, 631. 
 
 Hart v. Adams, 396. 
 v. Gaveu, 427, 505. 
 
 v. Reynolds, 210. 
 
 v. State, 163, 560. 
 
 Hartford Bridge Co. v. Union Ferry Co. 
 
 291. 
 Hartford &c. R. R. 0. Crosswell, 362. 
 
 v. Kennedy, 343, 345. 
 Hartung . People, 109, 559, 560, 574. 
 Hartwell v. Armstrong, 444, 447. 
 Hartzell 0. Commonwealth, 493. 
 Harvey v. Lackawanna R. R. 456. 
 
 v. Thomas, 159. 
 
 Harward 0. St. C. &c. Co. 429. 
 Hasbrouck v. Milwaukee, 143. 
 
 v. Shipman, 611. . 
 
 Haskell v. Burlington, 1G3. 
 Hastings 0. Mead, 116. 
 
 Hatch 0. Cincinnati &c. R. R. 459, 466, 
 472. 
 
 . Verm. Cent. R. R. 131, 462. 
 
 Hathaway v. Moran, 109. 
 Hatzfield v. Gulden. 53. 
 Havemeyer v. Iowa Co. 618. 
 Haven v. Foster, 365. 
 Haverhill Bridge Co. v. County Comni'rs, 
 445. 
 
 0. Essex Co. 139. 
 
 Hawkins 0. Barney's Lessee, 632. 
 Hawthorne 0. Calif, 617. 
 Hay 0. Cohoes Co. 447. 
 Haybume's Case, 406. 
 Havdon 0. Supervisors, 224. 
 Hayes 0. O. O. & R. V. R. R. 467. 
 Haynes v. Thomas, 457. 
 Hays 0. Risher, 445. 
 Hayward 0. Mayor, 444. 
 Hazen 0. Essex *Co. 447. 
 Head 0. Univ. of Mo. 585. 
 Hearn 0. Camp, 645. 
 
 0. Exvin, 269. 
 
 Hector 0. State, 574. 
 Hedger v. Rennaker, 163. 
 Hegeman 0. Blake, 490. 
 Helmore 0. Shuter, 163. 
 Henderson 0. Bise, 360. 
 
 0. Brown, 82. 
 
 Hendrickson 0. Hendrickson, 68. 
 Henley v. Mayor, 331. 
 
 Hennicker 0. Contoocook Valley R. R. 
 
 344. 
 Henry v. Dubuque &c. R. R. 465, 466. 
 
 Henry v. Henry, 526, 534, 535. 
 
 0. Pittsburg &c. Bridge Co. 460. 
 
 0. Salina Bank. 339. 
 
 0. Tilson, 214, 200, 285. 
 
 Henry Stecknoth, Matter of, 644. 
 Hepburn 0. Curts, 172. 
 
 0. Griswold, 161. 
 
 Herbert 0. Easton, 615. 
 Heridia 0. Ayres, 26. 
 Herrick 0. Randolph, 501, 511. 
 Hess 0. Johnson, 645. 
 
 0. Pegg, 368. 
 
 Hessler 0. Drainage Coram'rs, 429. 
 Hewitt r. State, 494, 547. 
 Heyneman 0. Blake, 457, 472. 
 Heyward v. Judd, 610, 616. 
 0. Mayor, 472. 
 
 Matter of, 569.' 
 
 Hibbard 0. People, 436, 477. 
 Hickox 0. Tallman, 644, 
 Hicks 0. Whitmore, 276. 
 High 0. Shoemaker, 477, 505. 
 Hilbish 0. Catherman, 432. 
 Hildreth 0. Lowell, 446. 
 Hill, Exparte, 52, 373. 
 
 0. Boyland, 317. 
 
 0. Commissioners, 530. 
 
 0. Forsyth Co. 429. 
 
 0. Higdon, 426, 428, 504. 
 
 0. Kessler, 612. 
 
 r. Kricke, 613. 
 
 0. People, 494. 
 
 v. Smith, 56. 
 
 0. Sunderland, 145. 
 
 Hills v. Hunt, 402. 
 Hilour's Case, 651. 
 Hindle 0. O'Brien, 290. 
 Hindman 0. Piper, 140. 
 Hine 0. Pomeroy, 47. 
 Hines 0. Aydelotte, 530. 
 
 0. Leavenworth, 428. 
 
 0. Lockport, 317. 
 
 Hingham 0. Norfolk, 88, 139. 
 Hingle 0. State, 526, 535. 
 Hinsdale 0. Larned, 344. 
 Hinsen 0. Lott, 563. 
 Hinson 0. Sothe, 508. 
 Hinton 0. Hinton, 644. 
 Hiriart 0. Ballou, 578. 
 Hirsh's Case, 510. 
 Hitchcock 0. Way, 114. 
 Hoa 0. Le Franc, 163. 
 Hoag 0. Peck, 296. 
 Hobart 0. Detroit, 372. 
 
 0. Supervisors, 135. 
 
 Hodges 0. Buffalo, 398. 
 Hodgson 0. Fullarton, 338. 
 
 0. Millward, 437. 
 
 Hoffman 0. State, 280, 574, 
 Hogan 0. Devlin, 317. 
 Hoguet 0. Wallace, 310, 312. 
 Hoit 0. Burleigh, 489. 
 
TABLE OF CASES CITED. 
 
 XXV11 
 
 Hoke v. Henderson, 480. 
 Holbrook 0. Finney, 653. 
 v. Holbrook, 43, 515. 
 
 v. Nicbol, 110. 
 
 Holcoinb v. Tracy, 613. 
 
 H olden v. James' Adm'rs, 146, 657. 
 Holland 0. Osgood, 323. 
 
 0. State, 371. 
 
 Hollenback v. Fleming, 300. 
 Hollewell t. Bridgewater, 47. 
 Hollo-way 0.. Sherman, 610, 611. 
 Holman v. Johnson, 239. 
 
 v. King, 364. 
 
 Holmes v. Holmes, 603. 
 
 Holyoke v. Haskins, 635, 653, 659. 
 
 Holyoke Co. v. Lyman, 621. 
 
 Homan v. Liswell, 357. 
 
 Home of the Friendless v. Rouse, 586. 
 
 Homer r. Fish, 277. 
 
 Homestead Cases, 612. 
 
 Hook v. Gray, 69. 
 
 Hooker v. New Haven &c. Co. 457, 469. 
 
 0. Young, 321. 
 
 Hooper 0. Scheimer, 367. 
 Hoopes v. Meyer, 109. 
 Hope &c. Ins. Co. 0. Flynn, 143. 
 Hopkins v. Jones, 163. 
 
 v. Ladd, 494. 
 
 0. Mason, 142, 279. 
 
 0. Stapers, 222. 
 
 Horn 0. Atlantic &c. R. R. 608. 
 Homer v. State, 279. 
 Horton v. Auchmody, 82. 
 Hospital v. Philadelphia Co. 599. 
 House 0. State, 102. 
 
 Howard v. Earl of Shrewsbury, 229. 
 
 v. First Church, 427. 
 
 v. Williams, 299. 
 
 Howell v. Bristol, 429. 
 
 v. Fry, 492. 
 
 v. Howell, 613. 
 
 Howey v. Miller, 269. 
 
 Howser v. Commonwealth, 493. 
 
 Hoyt V. Commissioners, 508^ 
 
 v. Dillon, 306. 
 
 Huber v. People, 524, 529. 
 Hudson i). Temple, 339. 
 Hudspeth v. Davis, 60. 
 Hughes i). Chester &c. R. R. 45. 
 
 0. Farrar, 229, 365. 
 
 v. Hughes, 495. 
 
 0. Lumey, 353. 
 
 . State, 574. 
 
 Humbolt Co. v. Churchill Co. Commr's, 
 
 522, 618. 
 
 Hume 0. Gossett, 98. 
 Humphrey 0. Chamberlain, 74. 
 
 . Pegues, 586. 
 
 0. Whitney, 599. 
 
 Hunsaker r. Borden, 584. 
 
 0. Wright, 504. 
 
 Hunt 0. Holden, 358. 
 
 Hunt 0. Lucas. 493. 
 
 0. Vanbelstyer, 533. 
 
 Hunter 0. Cobb, 508. 
 
 0. Hatch, 644. 
 Huntzinger 0. Brock, 610, 611. 
 Hurley 0. Powell, 478. 
 Huston 0. College, 619. 
 Hyatt 0. McMahon, 622. 
 Hyde 0. Cogan, 310. 
 
 0. White, 356. 
 
 Hymes 0. Aydelotte, 404, 535. 
 
 Iglebart v. Wolfin, 616. 
 
 Igoe 0. StateJ 522. 
 
 Illinois Cent. R. R. 0. McLean Co. 504. 
 
 Illinois &c. College 0. Cooper, 608. 
 
 Ilsley 0. Meriam, 622. 
 
 Imlay 0. Union Branch R. R. 458. 
 
 Indiana Cent. R. R. 0. Potts, 520. 
 
 Indianapolis &c. R. R. 0. Kercheval, 588, 
 
 608. 
 
 Industrial School &c. 0. Whitehead, 102. 
 Ingalls 0. Cole, 210. 
 Inge 0. Murphy, 364. 
 Ingersoll 0. State, 338. 
 Inglis 0.' Usherwood, 364. 
 Ingraham 0. Hart, 363. 
 
 0. Speed, 255. 
 
 Ingrain 0. State, 436. 
 Inhabitants &c. 0. Baker, 84. 
 
 0. Conn. River R. R. 314. 
 
 0. County Comm'rs, 510. 
 
 0. Lunenburgh, 497. 
 Inkster 0. Carver, 530. 
 Iowa &c. Co. 0. Webster Co. 267. 
 Ireland 0. Palestine &c. Co. 617. 
 Iron City Bank 0. Pittsburg, 586, 622. 
 Iron Man. Co. v. Haight, 356. 
 Isoin 0. Miss. &c. R. R. 464. 
 Iver 0. Ragan, 277. 
 Ives 0. Finch, 359. 
 
 Jack v. Martin, 570. 
 Jackoway 0. Denton, 616. 
 Jackson 0. Butler, 612. 
 
 0. Catlin, 27, 556, 650. 
 
 0. Chew, 368. 
 
 0. Collins, 256, 260. 
 
 0. Cory, 650. 
 
 0. Edwards, 602. 
 
 0. Esty, 87, 304. 
 
 0. Frost, 649. 
 
 0. Lamphire, 555, 632, 634, 637. 
 
 0. Lervey, 390. 
 
 t\ Lunn, 651. 
 
 0. Lyon, 652. 
 
 0. M'arsh, 390. 
 
 0. Morse, 305. 
 
 0. Shawl. 535. 
 
 0. State, 575. 
 
 0. Van Valkenburgh, 357. 
 
 0. Varick, 185, 186. 
 
XXV111 
 
 TABLE OF CASES CITED. 
 
 Jackson v. Warren, 270. 
 
 . Wood, 497, 555. 
 
 v . Wright. 652. 
 
 . Young, 323. 
 
 Jackson Co. . La Crosse Co. 583. 
 Jacobs v. Graham, 357. 
 
 V. Small wood, 611. 
 
 Jacobus v. Knapp, 644. 
 James t. Buzzard, 108. 
 
 v. Commonwealth, 555, 580. 
 
 e. Patten. 179. 
 
 T . Reynolds, 480. 
 
 r. Stall, 616. 
 
 Jane v. Commonwealth, 547. 
 
 Janesville v. Markhoe, 103. 
 
 Jaques v. Withey, 112. 
 
 Jefferson Branch B'k v. Skelly, 586. 
 
 Jeffries r. State, 574. 
 
 Jenkins v. Andover, 431. 
 
 f. Betharn, 353. 
 
 . Hooker, 71. 
 
 r. Union Turnp. Co. 343. 
 
 Jenkinson v. Thomas. 281. 
 Jenks 0. Langdon,. 355. 
 Jerome v. Ross, 442. 
 
 Jersey City v. Hudson, 292. 
 Jersey City &c. R. R. v, Jersey City &c. 
 R. R. 458, 592. 
 
 Jersey Co. 0. Davison, 204, 255, 263. 
 Jocelyn v. Barrett, 354. 
 John v. Cincinnati &c. R. R. 430, 431. 
 John and Cherry Streets, Matter of, 451. 
 Johnes v. Johnes, 309. 
 Johnson v. Alameda Co. 465. 
 
 v. Babcock, 509. 
 
 v. Bond, 613. 
 
 ?. Burrell, 167. 
 
 v. Bush, 195. 
 
 v. Byrd, 100. 
 
 v. Campbell, 432. 
 
 v. Chambers, 13. 
 
 v. Commonwealth, 599. 
 
 r. Higgins, 530, 611. 
 
 v. Hudson, 71, 339. 
 
 T. Johnson, 645. 
 
 r. Joliet &c. R. R. 228, 464. 
 
 v. Meeker, 108, 109. 
 
 v. Philadelphia, 291, 608. 
 
 v. Setnple, 614. 
 
 v. Sutton, 338. 
 
 Jones' 'Appeal, 617. 
 Jones v. Boston. 428. 
 
 v. Columbus. 526. 
 
 v. Commissioners. 532. 
 
 v. Dexter, 230. 
 
 f. Estate of Keep, 507. 
 
 v. Galena &c. R. R. 608. 
 
 r. Harrison, 220, 377. 
 
 r. Hutchinson, 55, 56. 
 
 v. McMahon, 611. 
 
 . Perry, 148, 480. 
 
 t>. Robbins, 437, 491. 
 
 Jones v. Root, 492. 
 
 r. Smart. 263. 
 
 r. Smith. 29. 
 
 v. State, 47. 
 
 T. Taintor, 372. 
 
 r. Tatham, 28. 
 
 v. Theall, 56. 
 
 Jordan r. Dobson, 645. 
 
 v. Woodward. 447. 
 
 Joslyn v. Pacific Mail Co. 622. 
 Josselyn . Stone, 337. 
 Journeay e. Gibson, 144. 
 
 Joy T. Jackson &c. Co. 141. 
 
 a. State, 575. 
 
 Joyce v. Mayor, 523. 
 Judd r. Fulton, 357. 
 Judson T. Reardon, 437. 
 Justices &c. r. Murray, 555. 
 
 T. P. & W. &c. Turnp. Co. 
 
 395, 434. 
 
 Kanavan's Case, 9. 
 Kane, In re, 568. 
 
 v. Baltimore, 472. 
 
 Kay v. Gordon, 111. 
 -T. Penn. R. R. 644. 
 Kearnd . McCarville, 615. 
 Keater t. Ulster &c. PI. R. Co. 88. 
 Keene v. Bristol, 469. 
 
 Keith v. Quinney, 204. 
 
 v. Ware, 145. 
 
 Keller v. State, 109. 436. 530. 
 Kelley v. Kilso, 347. 
 Kelloprg v. Oshkosh, 103. 
 
 r. State Treas. 52, 375. 
 
 Kelly v. Drury, C06. 
 
 v. Harrison, 582, 602, 651. 
 
 v. State, 534. 
 
 Kendall v. Dodge, 145. 
 
 T. Inhabitants &c. 515. 
 
 v. Kingston, 658. 
 
 Kennedy . Milwaukee &c. R. R. 414. 
 
 v. Palmer, 67. 
 
 . Strong, 78. 
 
 In re, 612. 
 
 Kennett's Petition, 456. 
 
 Kenny t. Harwell, 510. 
 
 Kent v, Somervell, 43. 
 
 Kenyon e. Stewart, 347, 610, 613. 
 
 Kerr, In re, 443. 
 
 Kerrison r. Cole, 341. 
 
 Kesler r. Smith, 96. 
 
 Key T. Goodwin, 109. 
 
 Keyport St. Co. c. Farmers' Trans. Co. 
 
 204. 
 
 Kibbev r. Jones, 612. 
 Kimball v. Connor, 478, 487, 489. 
 Kimberley v. Ely, 555. 
 Kimbray v. Draper, 163. 
 Kiuaston v. Clarke, 43. 
 Kincaid's A.ppeal, 436. 
 King r. Adderley, 356. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 King r. Allen, 337. 
 
 - v. Athos, 43. 
 
 v. Barbara, 207. 
 
 v. Birmingham, 73. 
 
 T. Bishop of London, 29. 
 
 v. Brisac, 65. 
 
 v. Brooklyn, 96. 
 
 v. Burrell, 208. 
 
 v. Cart wright, 39. 
 
 v. Corsham, 215. 
 
 v. Course, 141. 
 
 v. Cumberland, 337. 
 
 v. Eyre, 377. 
 
 0. Forrest, 303. 
 
 v. Great Bentley, 218. 
 
 v. Harris, 345. 
 
 r. Hastings, 377. 
 
 v. Haverstall- Red ware, 303. 
 
 v. Hodnett, 204, 282. 
 
 v. Hogg, 217. 
 
 - v. Justices, 106. 
 
 v. Lacey, 359. 
 
 v. Marks, 39,43. 
 
 v. Northfield, 654. 
 
 v. North Nibley, 215. 
 
 v. Peckham, 358. 
 
 0. Poor Law Comnvrs, 207. 
 
 v. Portland, 427. 
 
 v. Rainsgate,. 207. 
 
 v. St. Gregory, 320. 
 
 v. Stoke Denierel, 207. 
 
 v. W. & W. R. R. 615. 
 
 v. Worminghall, 358. 
 
 v. Younger, 215. 
 
 Kingley r. Cousins, 615. 
 
 Kingston &c. Dock Co. v. La Marche, 
 
 293. 
 Kinney v. Beverley, 480. 
 
 v. Sherman, 617. 
 
 Kirby 0. Shaw, 158, 425. 
 Kirk v. Nowill, 25. 
 
 v. State, 493. 
 
 Kirtland v. Molton, 615. 
 Kneeland v. Milwaukee, 504. 505. 
 Knight v. Campbell, 490. 
 
 v. Crockford, 276. 
 
 Knoop v. Piqua Bank, 586. 
 Knowlton v. Supervisors, 505. 
 Knox v. Cleveland, 109. 
 
 0. Hundhausen, 615. 
 
 Knox Co. v. Aspenwall, 430. 
 Koch v. Bridges, 316. 
 
 v. Williamsport &c. Co. 456. 
 
 Kohlheimer 0. State, 574. 
 Koppicus T. Commissioners, 486. 
 Koran v. Ottawa, 100. 
 
 Korn v. Brown, 613. 
 
 Kramer v. Cleveland &c. R. R. 464, 467. 
 
 Kuhns v. Krammis, 525. 
 
 Kunkle v. Franklin, 432. 
 
 Lackland v. North Mo. R. R. 457. 
 
 Lacon v. Hooper, 358. 
 
 Lsefron v. Dufrocq, 424, 530. 
 
 Lafayette v. Jenners, 426. 
 
 Lafayette PI. R. v. New Albany &c. R. R, 
 
 456. 
 
 Lafayette &c. R. R. v. Geiger, 431. 
 La Forge v. Magee, 643. 
 Lagare v. State, 547. 
 La Grange Co. v. Butler, 210. 
 Lain v. Shepardson, 615. 
 Lair v. Killmer, 279. 
 Lake v. Virginia &c. R. R. 291. 
 Lake Erie &c. R. R. v. Heath, 404, 486, 
 
 490. 
 
 Lakeman 0. Moore, 47. 
 Lamkin v. Sterling, 584. 
 Lamond v. Eiffe, 208. 
 Lancaster v. Barr, 645. 
 Lancaster Sav. Inst. r. Peigart, 631. 
 Landt v. Hilts, 82. 
 Lane, Ex parte, 659. 
 
 v. Gary, 374. 
 
 v. Dorman, 146, 410. 
 
 Laner v. State, 526. 
 Lang v. People, 437. 
 
 r. Phillips, 357. 
 
 v. Scott, 30, 344. 
 
 Laugdon v. Applegate, 532. 
 
 v. Litchfield, 516, 599. 
 
 v. Potter, 265. 
 
 Lange, Ex parte, 575. 
 Langford v. Ramsay Co. 464. 
 Langworthy v. Dubuque, 426. 
 Lansing . Caswell, 116. 
 
 0. Smith, 77, 533. 
 
 Lanzette, Succession of, 524. 
 Laranque v. Stanley, 276. 
 Latham v. Spedding, 377. 
 Lathrop v. Mills, 414, 645. 
 Latless v. Holmes, 65. 
 Law ?'. Madison &c. Co. 426, 428. 
 Lawrence v. Miller, 168, 582, 602. 
 
 In re, 581. 
 
 Layton 0. New Orleans, 582. 
 Leach v. Smith, 615. 
 Leake v. Blasdel, 31. 
 Learned v. Corley, 226. 
 Lease v. Vance, 269. 
 Leathers v. Shipbuilders' B'k, 614. 
 Leathley v. Webster, 402. 
 Leavenworth Co. v. Miller, 227, 535. 
 Le Coul v. Police Jury, 446. 
 Lee 0. Clark, 334. 
 0. Forman, 224. 
 
 0. Rogers, 27. 
 
 0. State, 573. 
 
 0. Tillotson, 88. 
 
 Leeds &c. Co. 0. Hustler, 293. 
 
 Leeds 0. Manchester &c. Canal Co. 292. 
 
 0. Summersgill, 43. 
 
 Leese 0. Clark, 204. 
 Leggett v. Hunter, 140. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Lehman v. McBride, 324, 532. 
 Leidenbender v. Charles, 71. 
 Leigh . Kent, 97. 
 Lemons . State, 547. 
 Le Neve v. Le Neve, 276. 
 Lenz v. Charlton, 437. 
 Leoni v. Taylor, 203. 
 Le Roy v. Chabolla, 210. 
 Lessee of Good v. Zercher, 349. 
 Lessee of Gordon v. Kerr, 385. 
 Lester v. Garland, 356. 
 Levering v. Washington, 617. 
 Leversee v. Reynolds, 200. 
 Levi v. Milne, 579. 
 Levy v. Mentz, 368. 
 Lewenthal v. Mayor, 524. 
 Lewin v. Stewart, 90. 
 Lewis v. Commonwealth, 102. 
 
 v. Labauve, 316. 
 
 v. Lewis, 611. 
 
 v. Stout, 365. 
 
 u. Webb, 146. 
 
 Lewis Co. v. Hayes, 445. 
 Lexington v. Long, 446. 
 
 v. McQuillan's Heirs, 426, 428, 
 
 433. 
 
 License Tax Cases, 508. 
 Life Association &c. v. B'd of Assessors, 
 
 317, 505. 
 
 Lindenmuller v. People, 14, 512. 
 Lindsay v. Charleston Comm'rs, 406. 
 Lin Sing v. Washburn, 436. 
 Linton v. Sharpsburg &c. Co. 371. 
 Lisbon v. Clarke, 96. 
 Litchfield v. McComber, 429. 
 
 v. Vernon, 426. 
 
 Little r. Gibson, 614, 645. 
 
 Little Miami R. R. i\ Collett, 466. 
 
 Liverpool Ins. Co. v. Massachusetts, 504, 
 
 5132. 
 
 Livingston's Case, 575. 
 Livingston v. New York, 433, 471, 490, 
 
 555. 
 
 v. Van Ingen, 30, 342. 
 
 Locke v. Dane, 170, 654. 
 
 v. New Orleans, 506. 
 
 Lockett 0. Usry, 614. 
 
 Lockhart c. Yeiser, 613. 
 
 Lockwood v. Crawford, 364. 
 
 Logan c. State, 68. 
 
 Lohman v. People, 92. 
 
 London &c. R. R. v. Limehouse B'd of 
 
 Works, 98. 
 
 Long v. Fuller, 447, 466. 
 Longworth's Ex'ors v. Common Council, 
 
 535. 
 
 Lonsdale v. Brown, 60. 
 Looker v. Halcomb, 267. 
 Looney . Hughes, 316. 
 Lopez v. Andrew, 95. 
 Lord r. Chadbourne, 561. 
 Lord Bernard v. Saul, 27. 
 
 Loring v. Hailing, 358. 
 Loughbridge v. Harris, 444, 447. 
 Louisiana &c. PL R. v. Pickett, 464. 
 Louisville &c. Co. v. Ballard, 521, 622. 
 Louisville &c. R. R. r. Commonwealth, 
 
 372. 
 r. Davidson Co. 
 
 135, 429. 
 
 Love v. Hinckley. 216. 
 Lovejoy v. Robinson, 200. 
 
 v. Whipple, 69. 
 
 Lovingston v. Wider, 507. 
 
 Low v. Galena &c. R. R. 445, 447. 
 
 r. Marysville, 372. 
 
 v. Rice, 87. 
 
 Lowe v. Waller, 290. 
 Lowell v. Hadley, 510. 
 Lowenberg v. People, 574. 
 Lucas v. Sawyer, 581, 643. 
 Lucy 0. Levingtou, 27. 
 Luke r. Brooklyn, 432. 
 
 v. State, 98. 
 
 Lumbard v. Stearns, 446, 452. 
 Lumsden . Cross, 426, 428. 
 Lunesden v. Milwaukee, 464. 
 Luter v. Hunter, 611. 
 Lyman v. Boston &c. R. R. 608. 
 
 v. Mower, 145. 
 
 Lyn v. Wyn, 104. 
 Lynch v. Clarke, 13, 29. 
 
 v. Steamer "Economy," 414. 
 
 Lynde 0. Noble, 275. 
 
 Lyner v. State, 67. 
 
 Lyon v. Jerome, 331, 442. 
 
 McAfee v. Southern R. R. 102, 224. 
 McArdle, Ex parte, 109. 
 McArthur v. Franklin, 67. 
 McAuley v. Western &c. R. R. 465. 
 McAunich v. Miss. R. R. 530, 534. 
 McCabe i\ Emerson, 169. 
 McCartee r. Orphan Asylum, 212. 
 McCarthy v. Brooks, 584. 
 McCauley v. Brooks, 618. 
 
 v. State, 495. 
 
 McClung v. Ross, 303. 
 McClure v. Owens, 430. 
 
 v. Talknan, 373. 
 
 McClusky v. Cromwell, 208. 
 McCollom, Ex parte, 409. 
 McComb v. Gilkey, 140. 
 McCool v. Smith, 98, 224. 
 McCormackr. Terre Haute &c. R. R, 341. 
 McCormick v. Rusch, 611. 
 
 McCowan v. Davidson, 163. 
 McCracken v. Hayward, 604, 629, 632, 
 634. 
 
 v. San Francisco, 144. 
 
 McCray v. Junction R. R. 619. 
 McCulloch v. State, 54, 55, 408, 412. ^s~ 
 McCutcheon v. Stewart Co. 73. 
 McDonald v. Redwing, 455. 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 McDonald r. Schell, 497. 
 
 v. Stewart, 615. 
 
 McDonough v. Campbell. 98. 
 
 McDougull v. Patterson, 220, 377. 
 
 McElvain v. Mudd, 619. 
 
 McEwen v. Montgomery Ins. Co. 374. 
 
 McFarland . Butler, 612. 
 
 McGear v. Woodruff, 491. 
 
 McGee v. Mathis, 427, 586. 
 
 Mclutyre v. Ingraham, 225, 360, 372, 619. 
 
 Mclver . Ragan, 263, 277. 
 
 McKean v. Delancy's Lessee, 368. 
 
 McKeen v. Delaware &c. Co. 457. 
 
 McKenney v'. Cornpton, 585, 613. 
 
 McKenzie v. State,. 574. 
 
 McKibbin v. Lester, 110. 
 
 McKnight v. Crinnion, 229. 
 
 McKorkle v. State, 574. 
 
 McKune v. Weller, 316, 317. 
 
 McLanahan r. Universal Ins. Co. 579. 
 
 McLaughlin i\ Hoover, 209. 
 
 McMahon v. Cincinnati &c. R. R. 212. 
 
 McMauning v. Farrar, 162. 
 
 McMaster v. Commonwealth, 433, 471. 
 
 McMillen v. McNeill, 613. 
 
 McMillin . Boyles, 143. 
 
 McNair v. Raglancl, 116. 
 
 McNamara v. Minn. R. R. 163, 200, 229. 
 
 McNealy v. Gregory, 616. 
 
 McPherson v. Cunfiff, 300. 
 
 i\ Leonard, 52, 539. 
 
 McRoberts v. Washburn, 31, 539. 
 
 McSpedon v. Stout, 542. 
 
 McVeigh v. Chicago. 505, 506, 507. 
 
 Mace v. Cushman, 224. 
 
 Mack v. Jones, 501. 
 
 Maclay v. Love, 414, 644. 
 
 Macy v. Raymond, 221. 
 
 Maddox v. Graham, 100, 430. 
 
 Madison &c. R. R. v. Whiteneck, 530, 535. 
 
 Madison &c. PI. R. v. Reynolds, 354. 
 
 Madison Co. Bank v. Gould, 315. 
 
 Magee v. Young, 581. 
 
 Maggs v. Hunt, 111. 
 
 Magruder r. State, 98. 
 
 Maguire v. Maguire, 612. 
 
 Mahala v. State, 496, 574. 
 
 Mahon v. N. Y. Cent. R. R. 458. 
 
 Maine B'k v. Butts, 373. 
 
 Maize t?. State, 136, 138, 414. 
 
 Major v. State, 575. 
 
 Malchus v. Dist. of Highlands, 427. 
 
 Malcolm v. Rogers, 378. 
 
 Mallory v. Hiles, 67. 
 
 Maloney v. Fortune, 616. 
 
 Maloy v. Marietta, 428. 
 
 Maltby v. Reading R. R. 509, 609. 
 
 Maltus v. Shields, 426. 
 
 Manlove v. White, 108. 
 
 Manly v. State, 413. 
 
 Mann v. Eckford, 171. 
 
 Manners v. Blair, 117. 
 
 Mansfield &c. R. R. r. Clark, 446. 
 
 Manuel v. Manuel, 209. 
 
 Maple Lake v. Wright, 102. 
 
 Marbury r. Madison, 182, 406. 
 
 Marchant v. Langworthy, 321. 
 
 Marcy v. Indianapolis, 456. 
 
 Margate Pier Co. v. Hannam, 256, 257. 
 
 Mark v. State, 55. 
 
 Markham v. Brown, 452. 
 
 Marriott v. Shaw, 336. 
 
 Mars, the, 78. 
 
 Marsh r. Putnam, 606, 622, 623. 
 
 Marshall v. Guion, 403. 
 
 v. Vultee, 312. 
 
 Martin v. Broach, 530. 
 v. Ford, 281. 
 
 v. Hewitt, 526, 562, 585. 
 
 v. Hunter's Lessee, 221, 367, 551 T 
 
 552. 
 
 v. Mott, 556. 
 
 v. O'Brien, 540. 
 
 t>. Payne, 94, 95. 
 
 r. Snowden, 477, 478, 558. 
 
 0. Somerville &c. Co. 633. 
 
 v. State, 161, 337, 372, 560. 
 
 r. Waddell, 369, 389, 390. 
 
 Martindale v. Martindale, 365. 
 Martinsville v. Freize, 530. 
 Mason v. Feelwood, 27. 
 
 v. Haile, 113, 625, 633. 
 
 v. Lancaster, 436. 
 
 0. Messinger, 476. 
 
 r. Waite. 549, 657. 
 
 Massie v. Watts^ 390. 
 
 Master of St. Cross v. Lord de W aid en, 
 
 217. 
 
 Master of Vintner's Co. . Passey, 397. 
 Mather v. Chapman, 641. 
 Matheson . Hearin, 228. 
 Mathews v. Zane, 67. 
 Matthews v. Sands, 227, 229. 
 
 0. Shores, 227. 
 
 Maus v. Commonwealth, 355. 
 
 v. Logansport &c. R. R. 111. 
 
 May v. Holdridge, 143. 
 
 r. Milwaukee &c. R. R. 493. 
 
 Mayer, Matter of, 524, 529. 
 Mayers v. Byrne, 143. 
 Maynes v. Moor, 610. 
 Mayo v. Wilson, 474. 
 Mayor v. Bailey, 446. 
 
 v. Brittain, 600. 
 
 r. Cunliff, 331. 
 
 v. Dechert, 414. 
 
 v. Furze, 331, 377. 
 
 r. Greenmont Cemetery, 261. 
 
 v. Harwood, 55. 
 
 v. Horn, 142. 
 
 v. Homer, 95. 
 
 f. Long, 466. 
 
 r. Lord, 314. -396. 
 
 v. Norwich &c. R. R. 620. 
 
XXX11 
 
 TABLE OF CASES CITED. 
 
 Mayor p. Ohio & Penn. R. R. 294. 
 
 v . Root, 261. 
 
 p . Second Av. R. R. 608. 
 
 . State, 143, 522. 
 
 p. Tows, 583. 
 
 P. Winter, 225, 372. 
 
 Mayor of New York, In re, 261. 
 Maysville Turnp. Co. P. How, 291. 
 Maxey v. Bell, 512. 
 
 v. Loyal, 612, 613. 
 
 Maxwell v. Collins, 200. 
 Meacham . Fitchburg R. R. 472. 
 Mead v. Bagnall, 56, 99. 
 
 T , Walker, 494. 
 
 Mechanics' Bank Appeal, 49, 610, 644. 
 
 Mechanics & Traders' B'k P. De Bolt, 586. 
 
 Mede v. Hand, 610, 612. 
 
 Medfordr. Learned, 348. 
 
 Medical Coll. v. Muldon, 532. 
 
 Melody P. Reab, 282. 
 
 Memphis Freight Co. r. Memphis, 447, 
 
 448, 449. 
 
 Menges v. Dentler, 142. 
 Mercer Co. v. Hackett, 430. 
 Merchant p. North, 331. 
 Merchants' B'k r. Cook, 221. 
 Merrick v. Amherst, 431. 
 Merritt p. Farris, 505. 
 Merry field i\ Jones, 578. 
 Merville r. Townsend, 370. 
 Meserole v. Mayor, 538. 
 Meshmaier?'. State, 110, 136, 414. 
 Mestrader P. Gillespie, 33. 
 Metropolitan B'd of Excise v. Barrie, 436, 
 
 584. 
 
 Metzger, Matter of, 556. 
 Mewherter v. Price, 526. 
 Meyer v. Muscatiue, 430. 
 Meyers v. Johnson Co. 430. 
 Micou P. Tallassee Bridge Co. 607. 
 Middlesex Turnp. Co. v. Lock, 362. 
 Miffin v. Railroad Co. 460. 
 Milan &c. PL R. v. Husted, 586. 
 Miles' Will, In re, 161. 
 Miles P. State, 101. 
 Milford v. Orono, 316. 
 
 p. Worcester, 73. 
 
 Milhau v. Sharp, 398, 538. 
 Millburn v. Cedar Rapids, 459. 
 Miller v. Craig, 429, 447, 467. 
 
 p. Frost, 447. 
 
 r. Gibson, 139. 
 
 P. Graham, 144. 
 
 r. Jones, 227. 
 
 v. Miller, 653. 
 
 p. Moore, 617. 
 
 p. State, 539, 548, 559, 573, 588, 
 
 621. 
 
 Miller's Case, 111. 
 Mills v. Charleton, 506, 530. 
 
 p. Collett, 82. 
 
 v. Duryee, 63, 562. 
 
 Mills P. St. Clair, 25, 293, 296, 600. 
 
 v, Sargent, 414. 
 
 v. State, 102. 
 
 p. Wilkins, 39. 
 
 Milwaukee &c. R. R. v. Supervisors, 504. 
 Milwaukee v. Milwaukee, 583. 
 Minor v. Mechanics' B'k, 377. 
 Minot P. Philadelphia &c. R. R. 228. 
 Mississippi Soc. v. Musgrove, 585, 619. 
 Mitchell P. Brown, 100. 
 
 p. Burlington, 618. 
 
 v. Duncan, 100, 210, 375. 
 
 p. Harmony, 577, 579. 
 
 0. Smith, 71. 
 
 v. Williams, 436. 
 
 Mitford v. Elliott, 47. 
 
 Mobile &c. R. R. P. Malone, 226. 
 
 p. State, 99, 413, 620. 
 Mobile School Comm'rs P. Putnam, 52. 
 Mochlan Township Road, 183. 
 Moers v. Reading, 395, 412, 434. 
 Mohney v. Cook, 341. 
 Molett P. State, 437. 
 Moncrief c. Ely, 344. 
 Money p. Leach, 571. 
 Mouongahela Nav. Co. p. Coons, 455, 
 
 460. 
 
 Monroe P. Douglass, 13. 
 Montague v. Smith, 278. 
 Montgomery v. Kasson, 585, 586. 
 
 p. State, 579. 
 
 Moody P. Stephenson, 354. 
 Mooers P. Bunker, 365. 
 Moon P. Durden, 164. 
 Moore P. Amer. Trans. Co. 372. 
 
 'p. Fowler, 629. 
 
 p. Houston, 358. 
 
 v. Mansert, 110. 
 
 p. Mayor, 602, 603. 
 
 v. Moore, 508. 
 
 v. New York, 442. 
 
 r. People, 570. 
 
 p. State, 608. 
 
 Moreau v. Detchmendy, 582. 
 Morehouse p. Crilley, 90, 335. 
 Morey v. Brown, 455. 
 Morford v. Barnes, 491, 497. 
 
 p. linger, 56, 426, 522. 
 
 Morgan v. Curtenius, 367. 
 
 P. Lesler, 660. 
 
 v. Momnouth PL R. 136, 509. 
 
 v. Reed, 141, 613. 
 
 v. Smith, 111, 227, 532. 
 
 v. State, 573, 574. 
 
 Morris p. Morris Co. 429. 
 
 r. People, 80, 398, 409. 
 
 Morris &c. R. R. r. Newark, 458. 
 Morrissey P. People, 574. 
 Morrison P. Underwood, 87. 
 Morse P. Gould, 610, 634. 
 
 0. Stocker, 429, 457, 459. 
 
 Morton P. People, 547. 
 
TABLE OF CASES CITED. 
 
 XXX111 
 
 Morton 0. Valentine, 610. 
 
 Moseley 0. State, 573. 
 
 Moses v. Pittsburg &c. R. R. 459. 
 
 Moss v. Comm'rs, 264. 
 
 Mott . Penn. R. R. 586. 
 
 v. U. 8. Trust Co. 73. 
 
 Mount v. Commonwealth, 574. 
 
 v. State, 496. 
 
 Mount Pleasant v. Clutch, 546. 
 
 Mount Washington R. R. In re, 447. 456, 
 
 464, 467. 
 
 Mountfort v. Hall, 497. 
 Mouras 0. The A. C. Brewer, 109. 
 Mourilyan v. Labalmondiere, 372. 
 Mouys 0. Leake, 341. 
 Mullen v. People, 100. 
 Mulligan 0. Hintrager, 478. 
 Muudy v. Monroe, 616. 
 Municipality No. 1 v. Wheeler, 214, 346, 
 
 348. 
 
 Municipality No. 2 0. White, 434. 
 Munn v. Pittsburg, 494. 
 Murchison v. McNeil, 506. 
 Murphy v. Commonwealth, 496. 
 
 V. Menard, 41, 527. 
 
 v. People, 491, 497, 555. 
 
 v. State, 547. 
 
 Murphy & Glover, Matter of, 557. 
 Murray v. Askew, 497. 
 
 v. Baker, 260. 
 
 v. Gibson, 168. 
 
 0. Menefee, 456. 
 
 v. Reeves, 70. 
 
 r. Sharp, 457. 
 
 Murray's Lessee v. Hoboken &c. Co. 577. 
 Muscogee R. R. v. Neal, 102. 
 Musselman v. Logansport, 143. 
 Myers v. Copeland, 109. 
 
 0. Dodd, 437. 
 
 v. Gemtnell, 10. 
 
 Myrick v. Battle, 589. 
 
 Napa Valley R. R. v. Napa Co. 430. 
 Nashville v. Towns, 506^ 644. 
 Naugatuck &c. R. R. v. Waterbury &c. 
 
 Co. 494. 
 Nay lor v. Field, 
 Naz. Lit. & Benev. Inst. v. Commonwealth, 
 
 211, 353. 
 
 Nazro v. Mer. Ins. Co. 354. 
 Neass . Mercer, 614. 
 Ned, The, 559. 
 Ned v. State, 495. 
 Neeley v. McFadden, 615. 
 Neenan v. Smith, 228, 429. . 
 Neifing v. Pontiac, 522. 
 Nellis -o. Clark, 69. 
 Nelson v. Allen, 215, 596. 
 
 0. People, 413, 554. 
 
 0. Rountree, 142, 615. 
 
 Nerot v. Wallace, 70. 
 Nesbit 0. Trumbo, 448. 
 
 c 
 
 Nesmith 0. Sheldon, 368. 
 
 Neville r. State, 225. 
 
 New Albany &c. R. R. 0. McNamara, 617. 
 
 v. O'Dailey, 457. 
 
 Newark City Bank 0. Assessors, 507. 
 New Bedford &c. Turn p. Co. 0. Adams, 
 
 343. 
 
 Newbury Turnp. Co. 0. Miller, 378. 
 Newby v. Platte Co. 466, 467. 
 Newcastle &c. R. R. 0. Peru &c. R. R. 443. 
 Newcomb v. Butterfield, 334. 
 
 . Smith, 447. 
 
 Newell 0. People, 70, 208, 409. 
 
 v. Smith, 466. 
 
 v. Wheeler, 269. 
 
 New Haven v. Whitney, 31. 
 Newkirk 0. Chapron, 614. 
 Newland 0. Marsh, 478. 
 Newman v. Justices, 506. 
 Newman, Ex parte, 54, 512, 520. 
 New Orleans 0. Cannon, 481. 
 
 0. Cordeviolle, 346. 
 
 0. Graihle, 395, 454, 540. 
 
 0. Holmes, 68, 616. ' 
 
 0. Turpin, 503, 504, 587. 
 
 r. U. S. 390, 440. 
 
 New Orleans, Matter of, 427. 
 
 New Orleans Nav. Co. v. N. O. 620. 
 New Orleans Slaughter House &c. Co. 0. 
 
 Crescent City &c. Co. 564. 
 Newson 0. Cocke, 411. 
 New York Cent. R. R. 0. Kip, 296, 445, 
 
 447, 472. 
 
 New York & Erie R. R. 0. Young, 457. 
 New York Fire Dep. 0. Butler, 371. 
 Nichols 0. Bridgeport. 426, 433, 466, 467. 
 
 0. Halliday, 227. 
 
 0. Squire, 105, 334, 366. 
 
 Nicholson 0. Leavitt, 73. ' 
 
 0. N. Y. & N. H. R. R. 466. 
 
 Nightingale, Ex parte, 477. 
 Nixon 0. Hyserott, 330. 
 Noble 0. Durell, 217. 
 
 0. Hook, 614. 
 
 Noel 0. Erving, 581. 
 
 0. Ewing, 162. 
 
 Noland v. Costello, 532. 
 Norman v. Heist, 349. 
 Norris v. Boston, 415. 
 v. Clymer, 412. 
 
 v. Crocker, 111. 
 
 0. Doniphan, 559. 
 
 0. Harris, 12. 
 
 0. State, 547. 
 
 v. Thompson, 644. 
 
 Norristown&c. R. R. r. Burkett, 464, 491. 
 North Bridgewater B'k 0. Copeland, 161. 
 North Hempstead v. Hempstead, 390. 
 North Mo. R. R. v. Gott, 445. 
 
 0. Lackland, 445. 
 
 0. Maguire, 609. 
 North Penn. &c. Co. 0. Snowden, 489. 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 J 
 
 North Perm. R. R. r. Davis, 442. 
 Northern R. R. . Connelly, 427. 
 
 r. Miller. 75. 
 
 Northern Cent. R. R. . Jackson, 509. 
 Northern Ind. R. R. v. Milliken, 533. 
 Norton 0. McLeary, 490. 
 
 v. Petti bone, 641. 
 
 Norval 0. Rice, 493. 
 
 Norwich Gas L. Co. 0. Norwich C. Gas 
 
 Co. 540. 
 
 Notley v. Buck, 206. 
 Nugent v. State, 574. 
 Nunnally 0. White, 228. 
 
 Oakland v. Carpenter, 54. 
 Oakley v. Aspen wall, 87, 412. 
 Oatman v. Bond, 414, 616. 
 O'Bannon 0. Louisville &c. R. R. 613. 
 O'Brien . State, 269, 573. 
 O'Connor 0. Pittsburg. 461. 
 O'Donnell v. Bailey, 586. 
 
 v. Kelsey, 391, 392. 
 
 v. Sweeney, 69. 
 
 Officer v. Young, 146. 
 
 Ogden v. Saunders, 551, 552, 554, 556, 
 
 613. 
 
 O'Hanlon v. Myers, 56. 
 
 Ohio v. Stunt, 296. 
 
 Ohio &c. R, R, 0. McClelland, 588, 607. 
 
 Ohio Life Ins. & T. Co. v. De Bolt, 595, 
 
 598. 
 
 O'Kane v. Treat, 505. 
 
 Olcott v. Robinson, 305. 
 
 v. Supervisors, 610. 
 
 Old Colony R. R. v. Plymouth, 459. 
 O'Leary 0. County of Cook, 521. 
 Oliver*. Washington Mills, 317, 510, 563. 
 Oliver Lee & Co.'s B'k, In re, 622. 
 Olmstead v. Camp, 447. 
 
 v. Elder, 302, 657. 
 
 Omit v. Commonwealth, 69, 98. 
 O'Neil v. Glover, 492. 
 
 Opinion of Justices (X. H.) 56, 493. 
 (Me.) 432, 602. 
 
 O'Reilly r. Kankakee Drain Co. 454. 
 Oriental Bank 0. Freeze, 169, 655. 
 Ormsby Co. v. State, 225. 
 Orton v. Noonan, 142. 
 Osborn v. Hart, 448. 
 
 v. Humphrey, 511, 599. 
 
 v. Jaines, 613. 
 
 v. State, 493. 
 
 v. United States B'k, 538. 
 
 Osgood v. Breed, 259. 
 
 Oster v. Rabeneau, 270. 
 Ottawa v. People, 520. 
 
 v. Spencer, 427. 
 
 Our House v. State, 436. 
 Overfield v. Sutton, 229. 
 Oviatt v. Pond, 455. 
 Owen r. Slater, 357. 
 Owings v. Speed, 581. 
 
 Pacific R. R. T. Chrystal, 466, 467. 
 Packard v. Richardson, 214. 
 Packer v. Commonwealth, 136, 137. 
 
 v. Sun bury &c. R. R. 292, 353. 
 
 Pacquitte v. Pick ness, 645. 
 
 Pacldon v. Bartlett, 114. 
 Page v. Allen, 418. 
 
 v. Mathews, 613. 
 
 v. Plaice, 259. 
 
 Pagett v. Curtiss, 13. 
 
 v. Foley, 104. 
 
 Paine v. Lake Erie &c. R. R. 56. 
 
 0. Spratley, 292, 426. 
 
 Palairet's Appeal, 448, 609. 
 Palmer. Conly, 79, 115. 
 
 v. Lawrence, 73. 
 
 v. Stumph, 426. 
 
 v. York Bank, 334. 
 
 Palmer, Matter of, 645. 
 Palmyra v. Merton, 427. 
 Paris Township v. Cherry, 136. 
 Parish v. Eager, 613. 
 
 Parish of Boss-ier *. Steele, 526. 
 Parker v. Commonwealth, 137. 
 
 v. Foote, 9. 
 
 0. Metropolitan R. R. 620. 
 
 v. Overman, 804. 
 
 . Redfield, 511. 
 
 v. Shannon House, 614. 
 
 Parkinson 0. State, 201, 225, 525, 540. 
 Parmelee v. Lawrence, 644. 
 
 0. Thompson, 44, 146, 365, 373. 
 
 Parmiter v. Coupland, 579. 
 
 Parry . Croydon &c. Co. 101. 
 Parsons v. Bedford, 552, 577, 578. 
 
 v. Carey, 615. 
 
 0. Chamberlain, 358. 
 
 0. Payne, 161. 
 
 0. Russell, 477. 
 
 Parton v. Hervey, 73. 
 Partridge v. Naylor, 79. 
 Paschal v. Perez, 610. 
 Paterson v. Society &c. 657. 
 Patin v. Prejean, 626. 
 Pattee T. Greeley, 69. 
 Patterson v. Barlow, 418. 
 
 0. Jenks, 390. 
 
 v. Philbrook, 120, 654. 
 
 v. Winn, 7, 390. 
 
 Pattison 0. Banks, 45. 
 
 0. Tuba, 430. 
 
 Paul 0. Carver, 461. 
 
 0. Virginia, 504, 562. 
 
 Paull 0. Lewis, 217. 
 Paup 0. Drew, 596. 
 Pajne 0. Tread well, 143. 
 Peabody 0. Hayt, 334. 
 Pearce 0. B'k of Alabama, 99. 
 
 0. B'k of Mobile, 49. 
 
 0. Hitchcock, 93. 
 
 Pearson 0. Isles, 75. 
 
 0. Lovejoy, 312. 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Pease 0. Morrice, 259. 
 
 v. Peck, 370. 
 
 v. Whitney, 354. 
 
 Peck 0. Weddell, 137. 
 Pegram 0. Carson, 372. 
 Peirce 0. Boston, 502. 
 Pel ham 0. Messinger, 296. 
 Pell v. Ultnan, 657. 
 Pellicat i). Angel, 339. 
 Pembroke 0. Epsom, 31, 643. 
 Pennington v. Tpwnsend, 69. 
 Pennock v. Dialogue, 363. 
 Pennsylvania College Cases, 621. 
 Pennsylvania R. R. v. Canal Comm'rs, 
 294. 
 
 v. Casey, 632. 
 
 v. Lutheran Cong. 
 464. 
 
 v. Riblet, 437. 
 Penrice v. Wallis, 465, 467. 
 Penrose v. Erie Canal Co. 610, 616, 619. 
 People v. Adams, 65. 
 
 i). Admire, 56. 
 
 v. Alameda, 140. 
 
 v. Albany, 397. 
 
 0. Alleghany Co. 82. 
 
 0. Allen, 92, 321, 521, 539. 
 
 v. Auditor, 586. 
 
 0. Auditor General, 504. 
 
 0. Barr, 98. 
 
 v. Barrett, 496. 
 
 - 0. Barstow, 283. 
 
 0. Barton, 507. 
 
 - v. Batchellor, 430, 584. 
 
 v. Bennett, 524. 
 
 - v. Berberrich, 50, 126, 481, 497. 
 
 v. Board of Education, 267. 
 
 v. Bond, 583. 
 
 v. Bowen, 56, 535, 540. 
 
 0. Bradley, 507. 
 
 - 0. Brady, 566. 
 
 - v. Brooklyn, 158, 261, 425, 426, 
 
 428, 433. 
 
 - 0. Brooks, 81, 335. 
 
 - 0. Burns, 201. 
 
 - . Carnal, 168. 
 
 - v. .Carpenter, 613. 
 
 - 0. Carroll, 491, 492, 494. 
 
 v. Chautauqua Co. 529. 
 
 0. Chenango Co. 324. 
 
 v. Chicago, 506, 507. 
 
 - v. Church of the Atonement, 371. 
 
 - v. Clute, 355. 
 
 - 0. Coleman, 503, 562. 
 
 - 0. Collins, 137. 
 
 - 0. Commissioners,507,520,523,584. 
 0. Commissioners of Taxes, 587. 
 
 0. Compton, 402. 
 
 v. Comstock, 573. 
 
 v. Cook, 322, 573, 574. 
 
 0. Coon, 620. 
 
 0. Cooper, 331. 
 
 People 0. Dana, 204, 230, 280. 
 
 0. Daniel, 476, 492. 
 
 0. Davis, 108. 
 
 0. Denton, 496. 
 
 0. Devlin, 55, 56. 
 
 0. Dibble, 477. 
 
 0. Doe, 323. 
 
 0. Dorr, 508. 
 
 0. Draper, 582. 
 
 0. Duffy, 497. 
 
 v. Durick. 102. 
 
 0. Eddy, 229. 
 
 0. Edmunds, 139. 
 
 0. F. & B. PI. R. Co. 584. 
 
 0. Flagg, 446, 583. 
 
 0. Flemming, 278. 
 
 0. Gallagher, 436. 
 
 r. Gates, 508. 
 
 0. Gerke, 102, 505. 
 
 0. Gilbert, 84. 
 
 0. Gilmore, 575. 
 
 r. Glum, 548. 
 
 0. Goodwin, 491, 573. 
 
 0. Green, 413. 
 
 0. Greer, 111. 
 
 v. Grippen, 102. 
 
 v. Hadden, 272. 
 
 0. Hatch, 58, 356. 
 
 v. Haws, 494, 506. 
 
 - 0. Hayden, 465, 468, 469. 
 
 0. Hennesey, 379. 
 
 v. Henshaw, 429. 
 
 0. Herkimer C. P. 171. 
 
 0. Highway Comm'rs, 418. 
 
 0. Hill, 413, 426, 582. 
 
 v. Hills, 520, 525, 527, 529, 621. 
 
 0. Hoffman, 297, 507. 
 
 v. Holley, 321, 323. 
 
 0. Hulse, 333, 378. 
 
 0. Hussey, 508. 
 
 0. Imlay, 563. 
 
 0. Ingham Co. 31, 143, 418. 
 
 v. Jackson, 209. 
 
 0. Jackson, &c. Co. 437, 607, 608. 
 
 0. Johnson, 67. 
 
 0. Jones, 548. 
 
 0. Kelly, 96. 
 
 0. Kerr, 459. 
 
 v. Kimball, 463. 
 
 0. King, 226, 355, 494. 
 
 0. Krammer, 575. 
 
 0. Lake Co. 316. 
 
 0. Lambier, 295. 
 
 0. Lane, 490. 
 
 0. Law, ,143, 465, 509. 
 
 0. Lawrence, 520, 523. 
 
 0. Lemmon, 62, 568. 
 
 . Livingston, 116, 643, 651. 
 
 0. McCallura, 520, 532. 
 
 0. McCann, 529. 
 
 0. McCreery, 142, 316, 414, 503, 
 
 505. 
 
XXX VI 
 
 TABLE OF CASES CITED. 
 
 People 0. McGowan, 573. 
 
 v. McNealy, 574. 
 
 0. Mahaney, 102, 522, 532, 554. 
 
 0. Mariposa Co. 142. 
 
 0. Mauran, 390. 391. 
 
 0. Mayor, 443, 533. 
 
 v. Muigham, 74. 
 
 0. Mellen, 520, 527. 
 
 0. Michigan So. R. R. 465. 
 
 . Mitchell, 74, 617. 
 
 ' . Moores, 81. 
 
 0. Moringe, 509. 
 
 v. Morris, 533, 600. 
 
 0. Murray, 88. 
 
 0. Nearing, 447, 467. 
 
 0. New York, 102, 358, 608. 
 
 . O'Brien, 523, 528, 529. 
 
 v. Olcott, 496. 
 
 v. Olwell, 574. 
 
 0. Onondaga, 355. 
 
 0. Payne, 92. 
 
 0. Peck, 321. 
 
 0. Pinckney, 582. 
 
 0. Platt, 128, 594. 
 
 0. Powers, 582. 
 
 0. Price, 579. 
 
 0. Purdy, 55. 
 
 0. Queens Co. 82. 
 
 0. Rathbun, 65. 
 
 v. Rochester, 316, 525. 
 
 0. Rossiter, 327. 
 
 0. Ruggles, 14. 
 
 v. Runkel, 310, 321. 
 
 0. Rynders, 92. 
 
 v. Salem, 430. 
 
 0. Salomon, 135, 507. 
 
 0. San Francisco, 317. 
 
 0. San Francisco &c. R. R. 102, 
 
 267. 
 
 0. Saundere, 575. 
 
 0. Schermerhorn, 322, 390, 391. 
 
 v. Schoonmaker, 204, 332. 
 
 0. Seymour, 143. 
 
 0. Shepard. 54. 
 
 v. Sheperd, 592. 
 
 0. Smith, 445. 
 
 0. Solomon, 506. 
 
 0. Starne, 55. 
 
 0. State Auditors, 643. 
 
 0. Stearne, 539. 
 
 0. Stephens. 529. 
 
 0. Stone, 573. 
 
 0. Stout. 137. 
 
 0. Supervisors, 129, 139, 162, 348, 
 
 509. 
 
 0. Syttle, 100. 
 
 0. Taylor, 374. 
 
 0. Tiphaine, 110, 414. 
 
 0. Turner, 437. 
 - 0. Tyler, 573. 
 
 0. Utica Ins. Co. 197, 256, 315. 
 
 0. Vanderbilt, 583. 
 
 People 0. Washington, 566. 
 
 0. Webb, 573. 
 
 0. Whyler, 427. 
 
 0. Williams. 296, 467. 
 
 v. Woods, 583. 
 
 0. Worthington, 373. 
 
 Peoples' Bank 0. Paterson Sav. B'k, 230. 
 Peoria 0. Kidder, 429. 
 Perdue 0. Ellis, 436. 
 Perkins 0. Milford, 432. 
 
 v. Perkins, 209, 268. 
 
 0. Thornburgh, 31. 
 
 Perrin v. Oliver, 621. 
 Perry 0. Glass, 229. 
 
 Peru &c. R. R. v. Bradshaw. 102. 
 Pervear v. Commonwealth, 508. 
 Peterrnan v. Ruling, 540. 
 Peters 0. Iron Mt. R. R. 608. 
 
 0. St. Louis &c. R. R. 617. 
 
 Peterson 0. Ternley, 465. 
 
 Pharis 0. Dice, 615. 
 
 Philadelphia v. Commonwealth, 88. 
 
 v. Field. 426, 582. 
 
 0. Fox, 582. 
 
 Philadelphia Association i\ Wood, 425 r 
 
 562. 
 Philadelphia & Trenton R. R. . Stimp- 
 
 son, 390. 
 Philadelphia &c. R. R. 0. Catawissa R. 
 
 R. 213, 225, 227, 371. 
 Philadelphia &c. R. R. 0. Maryland, 599. 
 
 Matter of, 458. 
 Philbrick 0. Philbrick, 614. 
 Philbrook 0. Handley, 333. 
 Phillips v. Albany, 430, 521, 530. 
 
 0. Covington Bridge Co. 521. 
 0. Mayor, 529. 
 t>. New York, 522, 530. 
 Phillips' Case, 375. 
 
 Phosmx Ins. Co. v. Commonwealth, 562. 
 Phyfe v. Einer, 88. 
 Piatt v. People, 430. 
 Pick 0. Rubicon &c. Co. 589. 
 Pickup 0. Wharton, 164. 
 Pierce 0. Delarnater, 107. 
 
 v. Kimball, 26. 
 
 0. State, 579. 
 
 Pierpont 0. Crouch, 101, 520. 
 
 v. Graham, 357. 
 
 Pike v. Jenkins, 283. 
 0. Megoun, 227. 
 
 Pilkington v. Green, 88. 
 
 Pillow v. Brown, 619. 
 
 Pingree 0. Snell, 365. 
 
 Pinkham v. Dorothy, 296. 
 
 Finns 0. Nicholson, 520. 
 
 Piper's Appeal, 426. 
 
 Piscataqua Bridge 0. N. H. Bridge, 443 r 
 
 595, 639. 
 Pitt v. Shew, 357. 
 Pittsburg 0. First Nat. B'k, 507. 
 0. Scott, 469. 
 
TABLE OF CASES CITED. 
 
 XXXV11 
 
 Pittsburg &c. R. R. v. Methven, 280. 
 Plank Road 0. Thomas, 452. 
 Planters' B'k v. Sharp, 631, 632. 
 Platenius v. State, 584. 
 Plato v. People, 491. 
 Pleasant v. Kost, 505. 
 Plcasants v. Rohrer, G13. 
 Plimpton v. Somerset, 487, 490, 494. 
 Plum v. Morris Canal Co. 457. 
 Plumb v. Sawyer, 169. 
 Plummer v. Plummer, 227. 
 Police Comm'rs'B. Louisville, 582. 
 Police Jury v. Cochran, 504. 
 
 v. Colomb, 530. 
 
 0. McDonough's Succession, 
 
 434. 540. 
 
 Folk's Lessee v. Wendell, 368, 390. 
 Pollard v. Dwight, 390. 
 
 0. Hagan, 440. 
 
 Pomeroy v. Chicago &c. R. R. 458. 
 Pond 0. Maddox, 355. 
 
 v. Negus, 321. 
 Ponder v. Graham, 602. 
 Pope v. Macon, 478. 
 Porter v. Aldrich, 371. 
 
 v. Mariner, 644. 
 
 0. Thompson, 526. 
 
 Portis v. Parker, 581. 
 Portland v. Stock, 532. 
 Portland Bank v. Apthorp, 508. 
 
 v. Maine B'k, 357. 
 Portland &c. R. R. v. Grand Trunk R. R. 
 
 617. 
 
 Portsmouth Float. B'dge Co. v. Nance, 293. 
 Portsmouth Livery Co. 0. Watson, 25. 
 Potter 0. Bank of Ithaca, 73. 
 
 0. Sturdivant* 655. 
 
 Potts v. N. J. Arms Co. 589. 
 Poughkeepsie &c. R. R., In re, 466. 
 Powell 0. Sammons, 607. 
 
 0. Tuttle, 302, 303. 
 
 Powers 0. Barney, 100, 288. 
 
 0. Bears, 464. 
 
 0. Bergen, 127, 128, 130, 149, 150. 
 
 0. Shepard, 210. 
 
 0. Wood Co. 426. 
 
 Powers, In re, 80, 497. 
 
 Pratt 0. Atlantic &c. R. R. 98. 
 
 0. Brown, 447. 
 
 0. Donovan, 437. 
 Prentiss 0. Danaher, 227. 
 Presbrey 0. Williams. 357. 
 Presbyterian Church v. N. Y. 600, 601. 
 Presbyterian Soc. 0. Auburn &c. R.R. 458. 
 Prescott 0. Illinois &c. Canal, 55, 56. 
 
 0. State, 491. 
 
 President 0. Chapman, 374. 
 
 0. State, 427. 
 
 Preston 0. Blackburn, 162. 
 
 0. Drew, 169. 
 
 Pretty 0. Solly, 360, 373. 
 Pretty man v. Supervisors, 431. 
 
 Price c. Hopkin, 613. 
 
 v. State, 574. 
 
 0. Thompson, 459. 
 
 0. Whitman, 356. 
 Priestley . Fould, 293. 
 Priestnian v. U. S. 265, 332. 
 Prigg 0. Commonwealth, 570. 
 Pritz, Exparte, 535. 
 
 Prize Cases, 559. 
 
 Proprietors &c. 0. Laboree, 169, 643. 
 
 Prosser . Secor, 82. 
 
 Prot. Epis. School, Matter of, 161, 584. 
 
 Protho . Orr, 530. 
 
 Protzman 0. Indianapolis &c. R. R. 457. 
 
 Providence B'k 0. Billings, 292, 501, 599, 
 
 681. 
 
 Provident Inst. 0. Boston, 510. 
 Puckle v. Moor, 27. 
 Pullan 0. Kinsinger, 477. 
 Pulliam 0. Sewall, 612. 
 Pullman 0. Mayor, 529. 
 Pumpelly 0. Green Bay Co. 455, 457. 
 Purczell 0. Smith, 418. 
 Purdy 0. People, 55, 80, 381, 398, 533. 
 Purgey v. Washburn, 53. 
 Putnam 0. Longley, 265. 
 0. Ross, 270. 
 
 Quackenbush 0. Danks, 634. 
 Queen v. Champneys, 99. 
 
 0. Doubleday, 360. 
 
 0. Durham, 318. 
 
 0. Eastern Counties B'k, 462. 
 
 0. Edmundson, 360. 
 
 0. Lancashire, 264. 
 
 0. Leeds, 278. 
 
 v. Matthews, 336. 
 Quigley v. Gorham, 225, 373. 
 Quimby 0. Carter, 333. 
 Quinebaug B'k 0. Leavens, 359. 
 Quinlan 0. Rogers, 414. 
 
 Radcliff's Ex'ors 0. Mayor, 459. 
 Rader 0. Road District, 614. * 
 Rafe 0. State, 493. 
 Railway Co. 0. Davis, 131. 
 
 0. Gregory, 530. 
 
 0. McClure, 606. 
 
 Raleigh &c. R. R. 0. Reed, 586. 
 Ralston 0. Lothain, 347. 
 Ramsay 0. Foy, 224. 
 
 0. Gould, 280. 
 
 Randolph 0. Good, 558. 
 Rathbun 0. Acker, 305. 
 Ratzky 0. People, 560. 
 Raudebaugh 0. Shelley, 100. 
 Rawley 0. Hooker, 616. 
 Rawson 0. Rawson, 98. 
 Raynham 0. Canton, 364. 
 Rea . McEachron, 300. 
 Ream 0. Siskeyon Co. 530. 
 Reams 0. State, 526. 
 
XXXV111 
 
 TABLE OF CASES CITED. 
 
 Reaper's Bank 0. Willard. 539. 
 
 Reciprocity B'k, Matter of, 617, 622. 
 
 Red River Bridge v. Clarkesville, 442. 
 
 Redd v. St. Frances, 562. 
 
 Reddall v. Bryan. 446. 448, 453, 457. 
 
 Redraund v. Smith, 340. 
 
 Reed v. Davis, 260, 334. 
 
 v, Fullum, 655. 
 
 v. Ingham, 293. 
 
 v. Northfield, 334. 
 
 v. Omnibus R. R. 414. 
 
 v. Rice, 555. 
 
 0. State, 526. 
 
 0. Wright, 480. 
 
 Reese v. State, 573. 
 Reeves v. Wood Co. 447. 
 Regina v. Baines, 51. 
 
 v. Birmingham, 257. 
 
 v. Charlesworth, 574. 
 
 v. Commissioners, 222. 
 
 v. Fordham, 259, 324. 
 
 v. Justices of Cambridgeshire. 46. 
 
 v. Justices of Gloucestershire, 46. 
 
 v. Justices of Leicestershire, 259. 
 
 v. Justices of Shropshire, 46. 
 
 v. Merionetshire, 212. 
 
 0. Pembridge, 258. 
 
 V. Preston, 258. 
 
 v. St. Edmunds, 104. 
 
 0. Stock, 212. 
 
 Reid v. Tyler, 478. 
 
 Reiser 0. William Tell Ass. 139, 144. 
 
 Reitenbaugh . Chester Valley R. R. 460. 
 
 Remington v. State, 279. 
 
 Remley v. De Wall, 540. 
 
 Rensselaer Glass Factory 0. Reid, 290. 
 
 Rensselaer &c. R. R. 0. Davis, 446. 
 
 Renwick 0. Morris, 75. 
 
 Reson r. Farr, 612. 
 
 Rex 0. Archb. of Armagh, 48. 
 
 0. Bailey, 65. 
 
 0. Barlow, 376. 
 
 0. Birmingham, 319. 
 
 0. Bleasdale, 336. 
 
 0. Buggs, 25, 26. 
 
 0. Cator, 105. 
 
 0. Clark, 79. 
 
 0. Cox, 215. 
 
 0. Davis, 78, 105. 
 
 0. Gage, 284. 
 
 0. Glastonby, 307. 
 
 0. Handy, 281 . 
 
 0. Hipswell, 259, 320. 
 
 0. Hymon, 281. 
 
 0. Jarvis, 50. 
 
 0. Johnson, 65. 
 
 0. Justices of Leicester, 319. 
 
 0. Justices of London, 111. 
 
 0. Justices of Middlesex, 49, 66. 
 
 0. Loxdale, 210, 212, 216, 278. 
 
 0. Lumsdaine, 104. 
 
 0. Morgan, 92. 
 
 Rex 0. Pawlyn, 26. 
 
 0. Pugh, 104. 
 
 0. Robinson, 345. 
 
 0. Rogers, 107. 
 
 0. Sutton, 44. 
 
 0. Tooley, 104. 
 
 0. Upper Papworth, 258. 
 
 0. Utterby, 94. 
 
 e. Williams, 39. 
 
 Rexford r. Knight, 211. 465, 468, 472. 
 Reynolds 0. Schultz, 455. 
 
 0. Swain, 12. 
 
 Rhines v. Clark, 494. 
 Rhodes 0. Smethurst, 264. 
 Rice 0. Foster, 136, 137. 
 0. Parkman, 147, 656. 
 
 0. Railroad Co. 109, 223, 291. 
 
 0. Ruddiman, 67. 
 
 0. Wright, 109. 
 
 Rich ?. Coffin, 96. 
 
 0. Flanders, 501. 614, 615, 645. 
 
 0. Keyser, 212, 229. 
 
 Richards 0. Patterson, 102. 
 
 0. Role, 143. 
 
 Richardson v. Cook, 161. 
 
 0. Emswiler, 296. 
 
 0. Morgan, 427. 
 
 0. Muryson, 348. 
 
 0. State, 47. 
 
 0. Vt. Cent. R. R. 456. 
 
 Richmond 0. R. & D. R. R. 583. 
 Richmond &c. Co. 0. Rogers, 456. 
 Richmond &c. R. R. 0. Louisa R. R, 
 
 442, 595, 639. 
 Right 0. Martin, 109. 
 Ripley 0. Gifford, 366. 
 
 0. Sampson, 343. 
 
 Rison 0. Farr, 558. 
 
 Ritter 0. Ritter, 658. 
 
 River Dun Nav. Co. 0. No. Midland R~ 
 
 R. 397. 
 
 Roach 0. Cozine, 275. 
 Robbins 0. Milwaukee, &c. R. R. 467. 
 
 0. Omnibus R. R. 222, 225. 
 
 0. State, 548. 
 
 Roberts 0. Fahs, 98. 
 
 0. Goff, 290. 
 
 v. Ogle, 435, 436. 
 
 0. Wetberall, 78. 
 
 Robey 0. West, 112. 
 Robins 0. State, 98. 
 Robinson 0. Allsop, 276. 
 
 0. Bank of Darien, 522. 
 
 0. Bid well, 135, 414, 430.. 
 
 0. Gardiner, 622. 
 
 0. Howe, 616. 
 
 0. Lane, 530. 
 
 0. Magee, 614. 
 
 0. Richardson, 500. 
 
 0. Skipworth, 525. 
 
 0. State, 527. 
 
 0. Varnell, 201, 224. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Robinson v. "White, 585. 
 Roby v. Boswell, 588. 
 Rochester v. Barnes, 102. 
 
 v. Briggs, 525, 527, 528, 529. 
 
 Rochester Water Co. v. Wood, 464. 
 Rockwell v. Hubbell, 626. 
 
 v. Nearing, 435. 
 
 Rodman 0. Munson, 70, 133. 
 Rogan v. Watertown, 430. 
 Rogers, Case of, 26. 
 
 v. Bradshaw, 128, 210. 
 
 . Goo'dwin, 213. 
 
 v. Jones, 390, 391. 
 
 v. Kennebec &c. R. R. 461. 
 
 0. Leftwich, 644. 
 
 v. Pacific R. R. 47. 
 
 v. Rogers. 562. 
 
 v. State, 532, 533. 
 
 v. Vass, 47. 
 
 Rolston v. Oursler, 88. 
 Roos v. Swenson, 136. 
 Roosevelt . Godard, 267, 436. 
 
 v. Maxwell, 228, 288. 
 
 Root v. McGrew, 612. 
 
 Ropes v. Clinch., 556. 
 Rose v. Estudillo, 618. 
 Ross' Case, 498. 
 Routsong v. Wolf, 144. 
 Rowan v. Runnells, 370. 
 
 v. State, 478. 
 
 Rowning v. Goodchild, 77. 
 Royston v. Royston, 588. 
 Rozier0. Fagan, 140. 
 Rubottom v. McClure, 469. 
 Ruckman 0. Cowell, 315. 
 Rue 0. Alter, 272. 
 
 Rulo v. State, 574. 
 
 Russell v. Mayor, 314, 396, 533. 
 
 v. Rumsey, 349. 
 
 v. Wheeler, 312. 
 
 Ruthbun 0. Acker, 378. 
 Rutland v. Copes, 615. 
 Ryan 0. Johnson, 534. 
 Ryegate v. Wardsboro, 226, 255. 
 Ryerson v. Utley, 527, 528. 
 
 Rykers Ridge Turnp. Co. v. Scott, 428. 
 Ryinan 0. Clark, 357. 
 
 Sackett v. Sackett, 8. 
 
 Sackett's Harbor B'k 0. Lewis Co. 73. 
 
 Sacramento 0. Bird, 100. 
 
 v. Crocker, 504. 
 
 Sadler v. Langham, 412, 444, 447, 450. 
 Sailly r. Smith, 571. 
 St. Gregory, Inhabitants of, 263. 
 St. Joseph v. Anthony. 427. 
 
 . Han. & St. Jo. R. R. 587. 
 
 v. O'Donoghue, 427. 
 
 St. Joseph &c. R. R. v. Buchannan Co. 
 
 Ct. 430. 
 St. Louis 0. Boatman's Ins. Co. 228. 
 
 0. Clemens, 429. 
 
 St. Louis v. Goebel, 279. 
 
 v. Ind. Ins. Co. 98. 
 
 t;. Laughlin, 360. 
 
 0. Man. Sav. B'k, 587. 
 
 . Teifel, 528. 
 
 St. Louis &c. R. R. 0. Richardson, 466, 
 
 467. 
 
 St. Martins v. New Orleans, 98, 209. 
 St. Pancras 0. Batterbury, 342. 
 St. Paul &c. R. R. v. Parcher, 586. 
 St. Peters, Dean &c. of, 0. Mideborough. 
 
 307. 
 Salem Turnp. Co. 0. Essex Co. 139. 
 
 . Hayes, 76. 
 
 Salford v. Manchester, 162. 
 Salkeld 0. Johnston, 43, 360. 
 Salt Co. 0. East Saginaw, 586. 
 Sammon 0. Holloway, 508. 
 Sampeyreac 0. U. S. 390. 
 Samuels 0. Dubuque, 510. 
 San Antonio 0. Gould, 521. 
 
 0. Jones, 135, 430. 
 
 0. Lane, 520. 
 
 Sanborn 0. Rice, 506. 
 
 Sandeman 0. Breach, 361. 
 
 Sanders 0. Hillsborough Ins. Co. 617. 
 
 Sandford 0. Nichols, 500. 
 
 Sands 0. Kimbark, 488. 
 
 San Francisco v. Hazen, 20. 
 
 Santo 0. State, 136, 165, 414, 436. 
 
 Sarah 0. Borders, 555. 
 
 Sater 0. Burlington &c. R. R. 466. 
 
 Satterlee 0. Mathewson, 165, 350, 471, 
 
 555, 561, 605. 
 Saul 0. His Creditors, 58. 
 Saunders 0. Carroll, 615. 
 
 0. Wilson, 645. 
 
 Savacool 0. Boughton, 330. 
 Savage 0. Walsh, 319, 323, 378. 
 Savings Bank 0. Allen, 139, 144. 
 Savings Friend Soc. 0. Phila., 582. 
 Savoye 0. Marsh, 622. 
 
 Sawyer 0. Allen, 508. 
 Sayre 0. Wheeler, 13. 
 Scales 0. Pickering, 292. 
 Scammon 0. Chicago, 505. 
 Schenley 0. Allegheny, 433. 
 
 0. Commonwealth, 143. 
 
 Schneider 0. McFarland, 300. 
 Schoenberger 0. School Directors, 140. 
 Schooner Harriett, 260. 
 
 Schooner Paulina's Cargo 0. U. S. 206. 
 Schooner Rachel v. U. S. 111. 
 Schrifer 0. Wood, 225. 
 Schroeppell i Corning, 92. 
 Schurmeir 0. St. Paul &c. R. R. 458. 
 Schuster 0. Metropolitan B'k, 138. 
 Scobey 0. Gibson, 616. 
 Scofield 0. Collins, 197. 
 Scott 0. Smart's Ex'ors, 348. 
 
 0. State, 226. 
 
 0. Walkins, 303, 478. 
 
xl 
 
 TABLE OF CASES CITED 
 
 Scoville 0. Canfield, 64. 
 Scribner v. Fisher, GOO, 623. 
 Scrivener, Ex parte, 290. 
 Scruggs v. Blair, 367. 
 
 0. Mayor, 416. 
 
 Seale . Mitchell, 227. 
 Seamans 0. Carter, 161. 
 Sears v. Cottrell, 476, 509. 
 
 v. Warren Co. 508. 
 
 Second Eccl. Soc. i\ First Eccl. Soc. 516% 
 
 Seidenbender v. Charles, 43, 339. 
 
 Seiple T. Elizabeth, 376. 
 
 Selleck 0. Sugar Hollow T. Co. 359. 
 
 Sellers . Dugan, 69. 
 
 Selma & Gulf R. R., Ex parte, 431. 
 
 Selman v. Wolf, 292. 
 
 Sessions r. Crunkilton, 446, 454, 467. 
 
 Sewall v. Jones, 298. 
 
 Seymour 0. Judd, 87, 277, 278. 
 
 Shackford v. Newington, 432. 
 
 Shafer v. Murnma, 436. 
 
 Sharp v. Contra Costa Co. 584. 
 
 v. Johnson, 304. 
 
 v. New York, 312, 523. 
 
 0. .Speir, 304, 306. 
 
 Shaw v. Orr, 316. 
 
 v. Tobias, 91. 
 
 Sheffield v. Ratclifife, 174, 198. 
 Shell5y 0. Guy, 260, 368. 
 
 Shelby County Ct. 0. Cumberland &c. R. 
 
 R. 430. 
 
 Sheldon ?-. Miller, 416. 
 Shephardson 0. Milwaukee &c. R. R. 110. 
 Shepherd 0. People, 560, 574. 
 Sheppard 0. Steele. 488. 
 Sherborn 0. Wells, 373. 
 Sheriff 0. Lowndes, 585. 
 Sherman 0. Barnard. 70. 
 
 v. Smith. 5S5, 622. 
 
 0. Story, 55. 
 
 Sherwood 0. Flemming, 142. 
 
 f 0. Reade, 303. 
 
 Shinn 0.' Commonwealth, 102. 
 
 'Shipper 0. Penn. R. R. 563. 
 
 Shonk 0. Brown, 140. . 
 
 Shoover 0. State, 14. 
 
 Shrader, Ex parte, 436. 
 
 Shrewsbury 0. Boylston, 355. 
 
 Shrewsbury &c. R. R. 0. London & N. W. 
 
 R. R. 54. 
 
 Shute 0. Chicago &c. R. R. 465. 
 Shuttle-worth 0. Cocker, 259. 
 Sibley 0. Smith. 306. 
 Sickles . Sharp, 283. 
 Sika 0. Chicago &c. R. R. 229. 
 Sill 0. Corning, 582. 
 Simar v. Canaday, 582. 
 Simonds 0. Powers, 200. 
 
 0. Simonds, 139. 
 
 Simpson v. Unwin, 258. 
 
 Simpson Co. Court 0. Arnold, 622. 
 
 Sims v. Hampton, 357. 
 
 . Sims, Case of, 570. 
 
 Sing Sing 0. Washburne, 563. 
 
 Sinking Fund Cornin'rs 0. Northern B'k, 
 108. 
 
 Sinton 0. Asbury, 506. 
 
 Skinner c. Hartford Bridge Co. 469. 
 
 Skinner's Ex'ors 0. Hutton. 430. 
 
 Slack 0. Marysville &c. R. R. 395. 
 | Slaughter 0. Commonwealth, 504, 562. 
 
 r. Culpepper, 615. 
 
 | Slaughter House Case, 565. 
 j Slauson 0. Racine, 414. 
 | Sleight 0. Russell, 441. 
 
 Slick 0. Marysville &c. R. R. 484. 
 
 Small 0. Edrick, 357. 
 i Smith 0. Appleton, 583. 
 
 0. Argall, 315. 
 
 v. Auditor Gen. 161. 
 
 v. Bartram, 368. 
 
 0. Brown, 80. 
 
 0. Bryan, 617. 
 
 0. Burley. 599. 
 
 0. Cleveland, 143. 615. 
 
 0. Doggett, 535. 
 
 v. Drew, 74, 75, 77, 
 
 v. Earl of Jersey, 216. 
 
 0. Eastern R. R*. 608. 
 
 0. Godfrey, 340. 
 
 - 0. Heimer, 53, 391, 468, 469. 
 
 0. Henry Co. 430. 
 
 0. Hoyt, 56, 108. 
 
 v. Janesville, 135. 
 
 0. Judge, 139, 535. 
 
 0. Lockwood, 76, 77. 
 
 0. McCarthy, 135, 136. 
 
 0. Mayor, 523, 618. 
 
 0. Moffat, 275. 
 
 0. Moody, 562. 
 
 0. Morrison, 613, 635, 658. 
 
 0. Packard, 610, 613, 616. 
 
 0. People, 98. 
 
 0. Randall, 200. 
 
 0. San Antonio, 492. 
 
 0. Saxton, 259. 
 
 0. Short, 507. 
 
 0. Smith, 229, 366, 478. 
 
 0. Sparrow, 69. 
 
 0. Spooner, 298. 
 
 v. State, 227, 325, 359. 
 
 t. Stevens, 31. 
 
 0. Taylor, 465. 
 
 0. Van Gilder. 161. 
 
 v. Wilcox, 70. 
 
 Ex parte, 568. 
 
 Snell 0. Bridgewater &c. Co. 221. 
 Snider 0. Heidelberger, 612. 
 Snyder 0. Palmer, 613. 
 
 0. Penn. R. R. 458. 
 
 0. Warren, 357. 
 
 Society 0. New Haven, 386. 
 
 Society for Prop, of the Gosp. 0. Wheeler, 
 
 160. 
 
TABLE OF CASES CITED. 
 
 xli 
 
 Soens v. Racine, 426. 
 Sohn 0. Watcrson, 013. 
 Solomon 0. Commissioners, 227. 
 
 r. Lowry, 615, 619. 
 
 Somerville &c. R. R. v. Doughty, 466. 
 
 Sorocco v. Gearry, 455. 
 
 South 0. Madison, 618. 
 
 Southard 0. Central R. R. 643. 
 
 Southport v. Ogden, 400. 
 
 Southwark B'k v. Commonwealth, 203, 
 
 354. 
 
 Southwark v. Palmyra &c. R. R, 534. 
 Southwestern R. R. v. Paulk, 608. 
 Southwick v. Southwick, 561. 
 Spague 0. Birdsall, 335. 
 Spangler's Appeal, 456. 
 Sparks v. Claffer, 617. 
 Spear v. Crawford, 343. 
 Specht v. Commonwealth, 14, 69, 335. 
 Speer v. School District, 432. 
 Spiers v. Parker, 50. 
 Spricker v. Wakeley, 613. 
 Sprigg v. Jones, 310. 
 Spring . Russell, 441. 
 Spring &c. Works v. San Francisco, 110, 
 
 229. 
 Springfield 0. Conn. River R. R. 443. 
 
 V. Harapden Coinm'rs, 659. 
 Springfield Bank 0. Merrick, 71. 
 Squares . Campbell, 435, 476. 
 Stack v. McGowan, 419. 
 Stafford v. Ingersoll, 75. 
 
 v. Lick, 614. 
 
 Stamford v. Barry, 145. 
 Stamper v. Miller, 376. 
 Standeford v. Wingate, 68, 585. 
 Stanhope 0. Bp. of Lincoln, 337. 
 Stanleys Colt, 140. 
 
 v. Whartou, 333. 
 
 Stanton 0. Schell, 82. 
 
 v. Uni. of Oxford, 48. 
 
 Stanwood v. Green, 500. 
 Stariu 0. Genoa, 135, 429. 
 Stark v. McGowan, 441. 
 Starkweather v. Hawes, 612, 616. 
 Starr v. Pease, 602. 
 
 State v. Adams, 557, 608. 
 
 v. Alexander, 98. 
 
 v. Allen, 303. 
 
 V. Ambs, 14. 
 
 v. Andrews, 96, 110, 575. 
 
 v. Arline, 559. 
 
 . Auditor, 110, 161, 585, 643. 
 
 V. Baker, 316. 
 
 v. Bait. & Ohio R. R. 600. 
 
 v. Bank of So. Car. 609. 
 
 v. Banks, the, 67. 
 
 v. Barbee, 103. 
 
 v. Barbour, 574. 
 
 v. Barker, 585. 
 
 v. Battle, 574. 
 
 v. Beebe, 436, 540. 
 
 State v. Behimer, 574, 575. 
 
 v. Beneke, 137, 491. 
 
 v. BeYry, 100. 
 
 v. Bishop, 98, 354. 
 
 v. Bond, 560. 
 
 0. Bowers, 521. 526. 
 
 v. Bradford, 163. 
 
 V. Branin, 599. 
 
 v. Brennan's Liquors, 436, 455, 47i 
 
 491, 500, 540. 
 
 v. Buchanuan, 69. 
 
 v. Bulton, 225. 
 
 v. Buzine, 568. 
 
 v. Callendine, 573. 
 
 v. Carew, 611. 
 
 0. Carney, 317. 
 
 v. Chamberlain, 547. 
 
 v. Chandler, 14. 
 
 v. Chase, 296. 
 
 v. Cincinnati, 539; 
 
 0. City Council, 426, 428. 
 
 0. Clark, 255, 395. 
 
 0. Clayton, 493. 
 
 0. Collector, 432. 
 
 0. Commercial Bank, &c. 294. 
 
 v. Commonwealth, 106, 527. 
 
 0. Conkling, 108, 365. 
 
 v. Cornwall, 436. 
 
 0. Corson, 547. 
 
 0. County Coinm'rs, 535. 
 
 0. County Court, 535. 
 
 v. Cowan, 575. 
 
 0. Cox, 495. 
 
 0. Cram, 592. 
 
 0. Crane, 573. 
 
 0. Cress, 109. 
 
 0. Crittenden Co. 586. 
 
 0. Crow, 102. 
 
 v. Cummings, 557. 
 
 0. Cunningham, 494. 
 
 0. Curry, 292. 
 
 0. Daley, 109. 
 
 0. Daw'son, 158, 419. 
 
 0. Delafield, 330. 
 
 0. Delaware, &c. R. R. 587. 
 
 v. Demarest, 432. 
 
 0. Denton, 493. 
 
 0. Donehey, 55. 
 
 0. Doty, 490. 
 
 v. Douglass, 56, 585. 
 
 0. Dousman, 317, 414. 
 
 0. Eastabrook, 505. 
 
 0. Elden, 575. 
 
 0. Ellis, 55, 65. 
 
 0. EMns, 140, 521. 
 
 0. Elwood, 136. 
 
 0. Everett, 491, 493. 
 
 0. Fiala, 536. 
 
 0. Field, 137. 
 
 0. Franklin Falls Co. 437. 
 
 0. Fry, 601. 
 
 v. Fuller, 229. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 State v. Garesche, 557, 584. 
 
 v. Gatzweiler, 619. 
 
 v. Gleason, 494. 
 
 v. Glenn, 457, 465. 
 
 . Goetze, 860. 
 
 v. Grady, 101. 
 
 T. Graves, 446. 
 
 v. Green, 573. 
 
 0. Gut, 530. 
 
 V. Gutierrez, 491. 
 
 v. Haben, 506. 
 
 . Hackett, 535. 
 
 v. Hallovvay, 139. 
 
 v. Harman, 548. 
 
 v. Harris, 316. 
 
 v. Harrison, 530. 
 
 v. Hays, 54. 
 
 v. Heighland, 557. 
 
 v. Henderson, 109. 
 
 v. Henry, 525. 
 
 v. Hitchcock, 535. 
 
 v. Hodgkins, 573. 
 
 v. Holmes, 584. 
 
 . Holt Co. Ct. 375. 
 
 v. Homer, 316. 
 
 0. Horsey, 100. 
 
 0. Hurley, 494. 
 
 v. Ingersoll, 96. 
 
 v. Inues, 575. 
 
 v. Jackson, 432, 507. 
 
 v. Jersey City, 608. 
 
 v. Johnson, 317, 561. 
 
 v. Jones, 613. 
 
 0. Judge, &c. 55, 225, 537. 
 
 v. Judges, 534. 
 
 v. Kasson, 574. 
 
 v. Keeran, 559. 
 
 v. Keith, 559. 
 
 v. Keogh, 575. 
 
 V. King, 96, 361. 
 
 0. Kinne, 337. 
 
 v. Kirby, 137. 
 
 v. Kitty, 98. 
 
 v. Knight, 64. 
 
 v. Kruttschnitt, 505. 
 
 v. Kuttleman, 575. 
 
 v. La Crosse, 110. 
 
 v. Lafayette Co. Ct. 530. 
 
 v. Laverack, 458. 
 
 v. Lean, 316, 529. 
 
 t>. Leory, 582. 
 
 v. Lerned, 547. 
 
 0. Lindley, 575. 
 
 v. Linn Co. Ct. 428, 430. 
 
 v. Lovell, 279, 540. 
 
 v. McCann, 566. 
 
 v. McCulloch, 533. 
 
 v. McCullough, 81. 
 
 v. McDonald, 98. 
 
 v. McDonough's Ex'ors, 395. 
 
 v. McGarry, 220, 360. 
 
 0. McGinley, 323. 
 
 State v. McGinty, 611. 
 
 0. Macon Co. Ct. 98, 215, 367. 
 
 r. Main, 279. 
 
 v. Maine, 492. 
 
 0. Manhattan &c. Co, 346, 508. 
 
 v. Manning, 561. 
 
 V. Mansfield, 494. 
 
 1\ Martin, 575. 
 
 r. Massachusetts, 60. 
 
 v. Mathews, 525, 608. 
 
 0. Mayor, 50. 
 
 v. Merchants' Ins. Co. 504. 
 
 v. Merriman, 317. 
 
 v. Meyers, 371. 
 
 v. Millain, 547. 
 
 . Miller, 228, 436, 493, 585. 
 
 . Moore, 345. 
 
 v. Morrow, 96, 585. 
 
 v. Nash, 548. 
 
 v. Neal, 558. 
 
 r. Nelson, 573. 
 
 v. Nemaha Co. 429. 
 
 0. Newark, 346, 426, 428, 522, 588. 
 
 v. New Orleans, 506. 
 
 0. Noble, 491. 
 
 v. Norwood, 346. 
 
 0. Noyes, 395, 443, 588, 608. 
 
 v. Nutt, 575. 
 
 v. O'Connor, 109. 
 
 v. O'Neil, 135. 
 
 ! 0. Orange, 355. 
 
 ! v. Oskins, 57, 103, 227. 
 
 I v. Parker, 137. 
 
 v. Paul, 559. 
 
 v. Pemberton, 360. 
 
 0. Perry Co. 414. 
 
 v. Petway, 587. 
 
 v. Pierce, 100. 
 
 0. Platt. 55. 
 
 0. Pollard, 103. 
 
 0. Powers, 280. 
 
 0. Prince, 573. 
 
 0. Railroad Co. 582. 
 
 0. Rankin, 575. 
 
 v. Reed, 573, 575. 
 
 0. Reidel, 548. 
 
 D. Reynolds, 136. 
 
 0. Richmond Town'p, 432. 
 
 0. Robinson, 493. 
 
 0. Rodman, 574. 
 
 i?. Rollins, 8. 
 
 0. Roosa, 102. 
 
 0. Ross, 575. 
 
 c. Ryan, 560. 
 
 0. St. Louis Co. Ct. 506, 583, 643 
 
 0. Schlem, 568. 
 
 e. Schofield, 530. 
 
 v. Scott, 135. 
 
 v. Seymour, 465. 
 
 0. Shaffer, 47. 
 
 0. Sharswood, 490. 
 
 0. Shaw, 210. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 State v. Sickler, 143. 
 
 v. Smith, 102. 
 
 v. Sneed, 559. 
 
 v. Southern &c. Pac. R, R. 608. 
 
 7?. Springfield Town'p, 212, 411, 
 
 541. 
 
 v. Squires, 142, 530, 536. 
 
 v. Stanley, 575. 
 
 v. Starling, 493, 547. 
 
 v. Staten, 558. 
 
 v. Stebbins, 574. 
 
 v. Stephenson, 40. 
 
 v. Stoll, 102, 588. 
 
 v. Sullivan, 561. 
 
 v. Sweetser, 375. 
 
 v. Swisher, 136, 137. 
 
 v. Tait, 418. 
 
 v. Tappan, 432. 
 
 v. Taylor, 31, 51, 418. 
 
 v. Thompson, 215. 
 
 D. Tillotson, 574. 
 
 . Turner, 560. 
 
 v. Tweedy, 575. 
 
 v. Union, 522. 
 
 v. Van Horton, 575. 
 
 v. Walker. 573. 
 
 . Wapello, 430. 
 
 v. Wardens, 530. 
 
 v. Warner, 575. 
 
 v. Warren, 643. 
 
 . Washoe Co. Comm'rs, 226. 
 
 . Weigle, 225. 
 
 t>. Weir, 136, 137. 
 
 v. Wheeler, 413. 
 
 v. Wheeling Bridge Co. 13. 
 
 v. Whetstone, 279. 
 
 v. Wightman, 575. 
 
 v, Wilburn, 494. 
 
 v. Wilcox, 135, 137. 
 
 v. Wilkesville, 432. 
 
 0. Williams, 226. 
 
 v. Wilson, 100, 511, 597, 632. 
 
 v. Wolcott, 497. 
 
 v. Woodson, 269, 299. 
 
 State Bank . Knoop. 582, 598, 638. 
 
 State Freight Tax, 508, 563. 
 
 State Tax on Foreign Bondholders, 509. 
 
 State Tax on Railway Gross Receipts, 508. 
 
 State Treasurer v. Collector, 508. 
 
 Stayton v. Hulings, 316. 
 
 Steamboat Farmer v. McCrear, 163. 
 
 Steam Nav. Co. 0. Weed, 73. 
 
 Steamship Co. v. Joliffe, 109. 
 
 Stearns v. Gittings. 478. 
 
 Stechert v. East Saginaw, 317. 
 
 Stedger v. Rodgers, 495. 
 
 Steers v. Lashley, 69. 
 
 Steif v. Hart, 75. 
 
 Steins v. Franklin Co. 375. 
 
 Stephens t>. Reynolds, 541. 
 
 v. St. Louis &c. B'k, 613. 
 
 v. Watson, 345. 
 
 Stephenson v. Osborn, 612. 
 Sternman v. State, 108, 365. 
 Stevens v. Andrews, 611. 
 
 . Jeacocke, 77. 
 
 -c. Wilson, 315. 
 
 Stevens' Trusts. In re, 371. 
 Stevenson v. Cofferin, 346. 
 Stewart v. Board &c. 411. 
 
 v. Crosby, 418. 
 
 v. Griffith, 140. 
 
 v. Mayor, 469, 491, 497. 
 
 . Polk Co. 430. 
 
 v. Stringer, 269. 
 
 Stiel v. Mayor &c. 296. 
 Stilwell p. Kellogg, 486, 488. 
 Stine D. Bennett, 613. 
 Stinson u. Smith, 427. 
 Stockdale v. Hansard, 18, 127. 
 Stock ett v. Bird, 204. 
 Stocking . Hunt, 634. 
 Stockton &c. R. R. v. Barrett, 293. 
 
 v. Stockton, 430. 
 Stoddard . Chambers, 390. 
 
 v. Harrington, 607. 
 
 Stoever v. Palmer, 112. 
 Stokes v. Macken, 12, 13. 
 
 v. New York, 395. 
 
 - v. People, 493. 
 
 v. Rodman, 346. 
 
 t). Scott, 430. 
 
 Stone v. Bassett, 616. 
 Stonington &c. B'k v. Davis, 103. 
 Story v. Furnian. 610, 614. 
 Stourbridge Canal Co. v. Wheeley, ,293. 
 Stradling v. Morgan, 39. 
 
 Stratton, Ex parte, 558. 
 
 Street R. R. r. Curnminsville, 457. 
 
 Streubel v. Milwaukee &c. R. R. 108, 109 r 
 
 643. 
 
 Strieker v. Kelly, 304, 306, 322. 
 Stringer v. Young's Lessee, 390. 
 Strode v. Commonwealth, 507. 
 
 v. The Stafford Justices, 45. 
 
 Strong 0. Clem, 581. 
 
 Stroud v. Philadelphia, 427. 
 Stuart v. Kin^ella, 530. 
 
 v. Laird, 213, 412, 522. 
 
 Stuber's Road, 585. 
 Sturgeon v. Kitchens, 530. 
 
 Sturges v. Crowninshield, 113, 553, 580> 
 
 613, 623, 634. 
 Sturgis v. Ewing, 644. 
 
 v. Spofford, 96. 
 
 Sturtevant v. Norris. 162. 
 Suffolk B'k v. Worcester B'k, 334. 
 Sullivan v. La Crosse &c. Co. 267. 
 Sully t>. Kuehl, 163. 
 
 Summons v. State, 548. 
 
 Sun Mut. Ins. Co. v. Mayor, 41, 524, 529. 
 
 v. New York, 411. 
 Supervisors v. Briggs, 171. 
 
 . Heenan, 55, 317, 523. 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 Supervisors v. Keady, 68. 
 
 0. People, 381, 521, 533, 539. 
 
 v. U. S. 375. 
 
 Surtees 0. Ellison, 111, 114. 
 Susquehanna Canal Co. v. Wright, 455, 
 
 462. 
 
 Button r. Askew, 581. 
 Button's Heirs 0. Louisville, 433. 
 Suydam 0. Broadnax, 563. 
 
 V. Keys, 82. 
 
 ' 0. Morris Canal Co. 73. 
 
 Swan v. Buck, 52, 68, 100, 584, 618. 
 
 v. Williams, 454. 
 
 Swsrtwout v. Mich. Air-line R. R. 520, 
 
 526, 532. 
 
 Swearingen 0. U. S. 84. 
 Sweet v. Hulburt, 430. 
 Swet v. Troy, 456. 
 Swickhard 0. Bailey, 613. 
 Swift v. Fletcher, 610, 616. 
 
 v. Newport, 57. 
 
 v. Tyson, 368, 370, 550. 
 
 Syracuse City B'k 0. Davis, 134, 172. 
 
 Tabor v. Cooke, 489. 
 Tadlock . Eccles, 530. 
 Talbot v. Hudson, 444, 447. 
 Tallarnon v. Cardenas, 110. 
 Tallman v. Janesville, 506. 
 
 v. White, 305. 
 
 Talmage v. Pell, 382. 
 Tappen, Matter of, 524. 
 Tarpley 0. Harner, 610. 
 Tate,.Ezparte, 645. 
 
 v. Stooltzfoot, 172. 
 
 Tatem 0. Wright, 568. 
 
 Taunton &c. Co. v. Whiting, 343. 
 
 Tax Cases, 599. 
 
 Taxpayers of Kingston, Matter of, 533. 
 
 Taylors. Allen, 140. 
 
 0. Boardman, 94. 
 
 v. Delancy, 197, 365. 
 
 v. Keeler, 644. 
 
 v. Marcy, 465. 
 
 0. Miles, 142. 
 
 v. Mitchell, 161. 
 
 v. Newbern, 430. 
 
 0. Palmer, 226, 429. 
 
 0. Place, 139. 
 
 v. Porter, 128, 150, 451, 480. 
 
 0. State, 67. 
 
 0. Stearns, 611. 
 
 v. Taintor, 568. 
 
 0. Taylor, 31, 54, 204, 255, 317. 
 
 0. Thompson, 432. 
 
 - 0. U. S. 289. 
 
 Teague 0. State, 51. 
 
 Ten Eycke v. Keokuk, 430. 
 
 Terret v. Taylor, 6, 159, 592, 632, 651. 
 
 Terrill v. Raukin, 645. 
 
 Terringtou 0. Hargraves, 113. 
 
 Thames Man. Co. 0. Lathrop, 305. 
 
 Tharp 0. Fleming, 140. 
 Thatchers. Jones, 333. 
 
 v. Morris, 72. 
 
 v. Powell, 304. 
 
 Thayer v. Lewis, 335. 
 Theriat 0. Hart, 197, 365. 
 Thicknesse v. Lancaster Canal Co. 469. 
 Thien v. Voigtlander, 447. 
 Thigpen 0. Miss. C. R. R. 494. 
 Thistle . Frostburg Coal Co. 269. 
 Thomas v. Ackerrnau, 29. 
 
 v. Ashland, 492. 
 
 v. Dakin, 55, 380, 533. 
 
 v. Kramer, 137. 
 
 0. Taylor, 317. 
 
 Thomasson c. State, 228. 
 Thompson 0. Alger, 363. 
 
 0. Commissioners, 538. 
 
 Gibson, 259. 
 
 Grand Gulf R. R. 468, 469. 
 
 Hooper, 583. 
 
 0. Lee Co. 430, 618. 
 
 r. Morgan, 142. 
 
 v. Pacific R. R. 507. 
 
 v. Pittston, 426. 
 
 v. Schermerhorn, 399. 
 
 0. State, 317, 503, 512, 526. 
 
 i-. Whitman, 562. 
 
 Thorington 0. Smith, 615, 619. 
 Thome v. San Francisco, 616. 
 Thornton 0. Hooper, 618. 
 
 v. McGrath, 143, 617. 
 
 Thorpe 0. Adams, 98. 
 
 v. Rutland &c. R. R. 586, 588,' 
 
 608. 
 
 0. Schooling, 96. 
 
 Thurber v. Townsend, 581. 
 Thurston v. Percival, 13. 
 
 . Prentiss, 344. 
 
 0. Whiting. 514. 
 
 Tide Water Co. . Coster, 429, 447. 
 Tierney 0.. Dodge, 100. 
 Tilford 0. Ramsey, 139, 227. 
 Tillman 0. Lansing, 166. 
 Tillotson 0. Millard, 616. 
 Tims v. State, 496, 542. 
 Tinicum Fishery Co. 0. Carter, 456. 
 Tinsman 0. Belvidere &c. R. R. 457. 
 Tivey 0. People, 108. 
 Tod^ v. Austin, 447, 448. 
 Toledo Bank . Bond, 586. 
 Toledo &c. R, R. 0. Nordyke, 536. 
 Tolland 0. Williugton, 371. 
 Tombs 0. Rochester &c. R. R. 87. 
 Tomlinson 0. Branch, 587. 
 Tompkins 0. Ashby, 307. 
 Tonawanda R. R. v. Munger, 451, 457. 
 Tonnele 0. Hall, 140. 
 Torreyson 0. Examiners, 200. 
 Toulmin 0. Anderson, 338. 
 Towle 0. Eastern R. R. 347. 
 v. Larrabee, 69. 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 Towle v. Smith, 102. 
 
 Towler 0. Chatterton, 164. 
 
 Town v. Lamphere, 280. 
 
 Town of Guilford v. Chenango Co. 353, 
 
 425. 
 Town of Guilford v. Cornell, 41, 158, 398, 
 
 425. 
 
 Town of Pawlet v. Clarke, 6, 632. 
 Townsend, Matter of, 444, 448, 463. 
 
 v. State, 579. 
 
 Township 0. Hackman, 447. 
 
 Tracy e. Taltaage, 380, 382. 
 
 Trainer v. State, 354. 
 
 Trask v. Green, 139. 
 
 Treat v. Chapman, 392. 
 
 Trice v. Han. & St. Jo. R. R. 607. 
 
 Trim by v. Vignier, 364. 
 
 Trombly v. Humphrey, 448, 453. 
 
 Trotter v. Mills, 26. 
 
 Troutman, Matter of, 569. 
 
 Trow v. Miss. &c. R. R. 467. 
 
 Troy &c. R. R. v. Northern T. Co. 456. 
 
 v. Potter, 472. 
 
 v. Tibbetts, 76. 
 Trumpler v. Bemerly, 279. 
 Trustees &c. v. Davis, 343. 
 
 0. Keeting. 403. 
 
 v. McCaughy, 172. 
 
 v. Quackenbush, 343. 
 
 Tuohy v. Chase, 316. 
 
 Tuolumne &c. Co. v. Sedgwick, 616. 
 
 Turley v. Logan, 55. 
 
 Turner v. Brookfield, 515. 
 
 0. Sheffield &c. R. R. 462. 
 
 0. State, 101, 574. 
 
 Turney v. Wilton, 204, 229. 
 Turpin v. State, 547. 
 
 v. Tipton Co. 585. 
 
 Tuscaloosa Bridge Co. v. Olmstead, 530, 
 
 532. 
 
 Tuttle v. Strout, 520. 
 Twitchell v. Commonwealth, 437. 
 Tyler v. Beacher, 444, 447, 449. 
 
 v. Tyler, 367. 
 
 v. Yates, 69. 
 
 Tynan v. Walker, 277, 360. 
 Tyra 0. Commonwealth, 495. 
 Tyson v. State, 509. 
 
 Uncas Nat. B'k v. Rith, 31. 
 Underbill v. Ellicombe, 77. 
 Underwood v. Green, 436. 
 
 v. Lilly, 172, 656. 
 
 v. McDuffie, 526. 
 
 Union Bank v. Hill, 507. 
 
 v. Tennessee, 194. 
 
 Union Bank of Tenn. 0. Jolly's Admr's, 
 
 563. 
 
 Union Ins. Co. r. Hoge, 229. 
 Union Pac. R. R. o. Davis Co. 427. 
 
 v. Lincoln Co. 507. 
 United States v. Arredondo, 386. 
 
 United States v. Athens Armory, 280 r 
 
 283. 
 
 v. Babbitt, 50, 229. 
 0. Bainbridge, 81. 
 v. Battiste, 579. 
 r. Beatty, 279. 
 v. Breed, 289, 333. 
 
 v. Canter, 566. 
 
 v. Coffin, 375. 
 v. Collier, 210. 
 v. Conway, 629. 
 v. Daniel, 573. 
 v. De Witt, 437. 
 v. Distillery, 559. 
 v. Fisher, 40, 262. 
 v. Gilbert, 573. 
 
 v. Great Falls &c. Co. 566, 
 
 v. Grundy, 78. 
 
 . Grush, 374. 
 
 v. Hall, 356. 
 
 0. Halstead, 138. 
 
 v. Haskell, 573. 
 
 v. Hewes, 337. 
 v. Hoar, 83, 337. 
 
 v. Hodson, 288. 
 
 v. 100 bbls. of spirits, 98, 
 280, 283. 
 
 0. Klein, 139. 
 
 v. Knight, 550. 
 
 0. Morris, 282, 579. 
 
 v. Padelford. 559. 
 
 v. Palmer, 40. 
 
 v. Passmore, 111. 
 
 v. Perchman, 386. 
 
 v. Perez, 573. 
 
 0. Porte, 26. 
 
 0. Riley, 574. 
 
 0. Robinson, 374. 
 
 0. Ross, 374. 
 
 T. Ruggles, 375. 
 
 0. Samperyac, 139, 660. 
 
 v. Schooner Peggy, 386. 
 
 v. Souders, 565. 
 
 0. Starr, 561. 
 
 v. Stern, 201, 204, 226, 280, 
 355. 
 
 0. Stowell, 570. 
 
 i>. Susan B. Anthony, 565. 
 
 v. 1,960 bags 'of coffee, 78. 
 
 0. Tobacco Co. 556. 
 
 0. Tynen, 100. 
 
 0. Wiltberger, 287. 
 
 v. Winn, 285. 
 
 0. Wonson, 552. 
 United Spates Bank 0. Halstead, 217, 552. 
 
 0. Jones, 221. 
 
 v. Ragsdale, 226. 310. 
 
 0. Rossvally, 225. 
 
 United States Exp. Co. 0. Elleyson, 510. 
 United States Tel. Co. . West. U. Tel. 
 
 Co. 372. 
 University R. R. r. Hoklen, 431. 
 
xlvi 
 
 TA*LE OF CASES CITED. 
 
 Updigraff0. Commonwealth, 14. 
 
 TJpham 0. Supervisors, 136. 
 
 Upsher, Ex parte, 521. 
 
 Usher 0. Pride, 644. 
 
 Utica 0. Churchill, 507. 
 
 Utica &c. R. R., Matter of, 437. 
 
 TJtica Ins. Co. 0. Scott, 185, 186. 
 
 Vail v. Owen, 82. 
 
 Van Allen v. Assessors, 507. 
 
 Van Baumbach v. Bade, 610, 612, 616. 
 
 Vanderbilt v. Adams, 438. 
 
 Vander Donckt v. Thellusson, 369. 
 
 Van Deusen 0. Hayward, 74. 
 
 Van Dine's Case, 402. 
 
 Van Hook 0. Witlock, 86. 
 
 Van Home's Lessee v. Dorrance, 406, 469, 
 
 471. 
 
 Van Ness v. Pacard, 6, 9. 
 Van Rensselaer v. Ball, 610, 617. 
 
 v. Hays, 610, 614, 617. 
 
 v. Reed, 614. 
 
 0. Snyder, 610, 614. 
 Van Slyke v. State, 506. 
 Van Swartow v. Commonwealth, 497. 
 Varick v. Briggs, 636. 
 
 v. Smith, 128, 451, 457. 
 
 Varick 's Ex'ors v. Briggs, 636. 
 Vaughan 0. Scade, 493. 
 Veazie v. China, 316. 
 
 0. Mayo, 608. 
 
 Ventress 0. Smith, 301. 
 Vernon v. Henson, 612. 
 Victory v. Fitzpatrick, 341. 
 Vidal v. Gerard's Ex'ors, 14. 
 Vincent, Ex parte, 373. 
 Virginia &c. R. R. v. Elliott, 466. 
 
 0. Lyon Co. Comm'rs, 
 
 203. 
 
 Voglesong 0. State, 14, 512. 
 Von Hoffman v. Quincy, 583, 584, 618. 
 Von Phul v. Hammer, 539. 
 Voorhees 0. Bank of U. S. 49, 301. 
 Vose 0. Cockroft, 88. 
 
 Wabash &c. Canal v. Beers, 585. 
 Wade 0. Richmond, 456, 619. 
 Wager v. Troy &c. R, R. 458. 
 Wainhouse 0. Cowie, 338. 
 Wakefield 0. Phelps, 365. 
 Wakelee v. Mohr, 414. 
 Walcott 0. People, 418. 
 Waldo 0. Bell, 100. 
 
 0. Wallace, 575. 
 
 Wales 0. Stetson, 590. 
 
 0. Webb, 359. 
 
 Walker 0. Chicago, 312. 
 
 0. Cincinnati, 431. 
 
 v. Dunham, 527. 
 
 0. Whitehead, 609, 610. 
 
 Wall 0. State, 103, 109. 
 Wallace 0. Holmes, 31. 
 
 Wallace 0. Karl enowef ski, 452. 
 
 0. Shelton, 427. 
 
 Waller 0. Harris, 202, 220. 
 Walpole 0. Elliott, 144. 
 
 Walston 0. Commonwealth, 548, 560. 
 Walter 0. Bacon, 170, 626, 654. 
 
 0. People. 493. 
 
 0. Ross, 60. 
 
 Walther 0. Warner, 464. 
 Walwin 0. Smith, 281. 
 Walworth v. Whitewater, 103. 
 Wantlan 0. White, 142. 
 Ward 0. Barnard, 145. 
 
 0. Maryland, 562, 563. 
 
 0. New England &c. Co. 140. 
 
 Warden &c. 0. Tamworth, 222. 
 Ware 0. Hylton, 385. 
 
 0. Robinson, 476. 
 
 Wax-field 0. Fox. 277, 360. 
 
 0. Ravessis, 644. 
 
 Warne r. Varley, 281. 
 Warnell 0. Reed, 339. 
 
 Warner 0. Beers, 55, 380, 381, 533. 
 
 - 0. Fowler, 269, 272. 
 
 0. People, 533. 
 
 Warren 0. Commonwealth, 493. 
 
 v. Doolittle, 79. 
 
 0. Henley, 427. 
 
 . Lyons City, 459, 619. 
 
 -i 0. Paul, 507. 
 
 0. People, 492. 
 
 0. Windle, 108. 
 
 Wartman 0. Philadelphia, 67. 
 Washburn 0. Franklin, 108, 109. 
 Washington 0. Murray, 530. 
 
 0. Page, 520. 
 
 Washington Avenue, In re, 427. 
 Washington Bridge Co. 0. State, 594. 
 Washington Co. 0. Berwick, 432. 
 Washington University 0. Rouse, 586. 
 Waterville 0. Co. Comm'rs, 139. 
 Watervliet &c. Co. 0. McKean, 281, 355. 
 Watkins 0. Holman, 134, 147, 151. 
 
 0. Walker Co. 442. 
 
 0. Wassell, 31. 
 
 Watrous 0. Blair, 280. 
 
 Watson 0. Mercer, 350, 561, 605, 635. 
 
 0. N. Y. Cent. R. R. 644. 
 
 0. P. & C. R. R. 465. 
 
 0. Railroad Co. 613. 
 
 Watson Freeman, Matter of, 550. 
 Watts 0. Griffin, 496. 
 
 0. Van Ness, 70. 
 
 Wayman 0. Southard, 49, 138, 550. 
 Weatherhead 0. Bledsoe, 84. 
 Weaver v. Devendorf, 84. 
 
 0. Lapsley, 530. 
 
 Webb 0. Baird, 47, 296, 512. 
 
 0. Bidwell, 26. 
 
 0. Moore, 617. 
 
 Webster 0. Alton & N. D. 482. 
 
 0. Cooper, 169, 368, 550, 576. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 Webster 0. Peck, 372. 
 
 Weeks v. Milwaukee, 426, 427, 430, 505. 
 
 v. Walcott, 100. 
 
 Weiss v. Mauch Chunk &c. R. R. 102. 
 Weister v. Hade, 432. 
 Welborn v. Akin, 609. 
 Welch v. St. Genevieve, 618. 
 
 0. Wadsworth, 110, 617. 
 
 Wells v. Casswell, 497. 
 
 v. Iggulden, 334. 
 
 v. Porter, 360. 
 
 v. Somerset &c. R. R. 442. 
 
 v. Weston, 426, 647. 
 
 Wells Co. Matter of, 464. 
 Wellsford 0. Todd, 104. 
 Wendell v. Durbin, 316. 
 Wesson v. Johnson, 581. 
 
 West v. B. P. Drainage Co. 436. 
 
 v. Sansou, 609. 
 
 Western &c. R. R. 0. Owings, 465. 
 Western &c. Soc. v. Philadelphia, 583. 
 Westervelt v. Gregg, 476, 481, 602. 
 West Branch Bridge Co. v. Dodge, 346. 
 West River Bridge Co. v. Dix, 442, 631, 
 
 638. 
 
 Wetherell v. Jones, 341. 
 Wetrnore v. Law, 54, 143. 
 
 v. Story. 403. 
 
 Whallon v. Bancroft, 496. 
 Wheaton v. Peters, 13, 117. 
 Wheeler v. Chicago, 376. 
 
 v. McCormick, 361. 
 
 0. Roberts, 116. 
 
 v. State, 493, 530. 
 
 . Wall, 506i 
 
 Wheelock v. Young, 442. 
 Whidden 0. Seelye, 13. 
 White v. Cannon, 554. 
 0. Carpenter, 310. 
 
 v. Flynn, 143. 
 
 v. Hart, 619. 
 
 0. Tvey, 360. 
 
 0. Syracuse &c. R. R. 362. 
 
 0. White, 142, 441, 602. 
 
 White Mts. R. R. 0. White Mts. R. R. 143. 
 White River &c. Co. v. Vt. Cent, R. R. 
 
 443. 
 
 Whitehurst v. Cohen, 486. 
 Whiting 0. Mt. Pleasant, 522. 
 0. Sheboygan R. R. 430. 
 
 v. Whiting, 606. 
 
 Whitney v. Madison, 507. 
 
 0. Ragsdale, 506. 
 
 Whitson v. Franklin, 608. 
 Whittington 0. Polk, 406. 
 Wickham 0. Page, 228. 
 Wilbur 0. Crane, 259, 275. 
 
 0. Gilmore, 659. 
 Wilcox 0. Fitch, 85. 
 
 0. Rodman, 585. 
 0. Wood, 357. 
 
 Wilds 0. Van Voorhis, 142. 
 
 Wilkins v. Despard, 78. 
 
 v. Miller, 530. 
 
 Wilkinson 0. Chatham, 432. 
 
 0. Leland, 132, 625, 633, 656. 
 Willard 0. People, 62. 
 
 0. Whetherbee, 303. 
 
 Willets 0. RJdgeway, 317. 
 Willford 0. State, 573. 
 William 0. Pritchard, 104. 
 Williams 0. Biddleman, 536. 
 
 0. Cammack, 135, 427, 428. 
 
 0. Co. Comm'rs, 112. 
 
 0. Detroit, 434. 
 
 0. Golding, 100, 360. 
 
 0. Haines, 614. 
 
 v. Ins. Co. of N. A. 83. 
 
 0. Johnson, 161. 
 
 0. Nat. Bridge PI. R. Co. 458. 
 
 0. N. Y. Cent. R, R. 458. 
 
 v. Payson, 528. 
 
 0. People. 375, 529. 
 
 0. Peyton's Lessee, 303, 306. 
 
 0. Potter, 106. 
 
 , School Dist. 321, 447. 
 
 0. Smith, 161. 
 
 0. Tappan, 335. 
 
 0. Williams, 14, 40, 104. 
 
 Williamson 0. Berry, 369. 
 
 0. Williamson, 644. 
 
 Willis . Long Island R. R. 296. 
 Wilmington v. Somerset, 371. 
 Wilmington &c. R. R. . Reid. 586. 
 
 0. Stauffer, 466. 
 
 Wilmot 0. Rose, 43. 
 
 Wilson 0. Baptist Ed. Soc. 171. 
 
 0. Commonwealth, 574. 
 
 0. Knubley, 43. 
 
 0. Mathews, 606. 
 
 0. Shorrick, 100. 
 
 0. State, 494, 575. 
 
 0. Wall, 556. 
 
 0. Ward, 387. 
 
 Wilton 0. Wentworth, 283. 
 Winchester 0. Corinna, 432. 
 Wininger 0. State, 575. 
 Winoua &c. R. R. 0. Waldron, 466, 467, 
 
 521, 608. 
 Winslow 0. Anderson, 81. 
 
 0. Gifford, 461. 
 
 Winsor 0. Regina, 573. 
 Withers 0. Buckley, 419. 
 Withnell 0. Gartham, 331. 
 Wives 0. Farr, 169. 
 Woark 0. Winnick, 169. 
 Wolcott 0. People, 509. 
 
 Wolfe 0. Covington &c. R. R. 458. 
 
 0. State, 547. 
 
 Wood 17. Brooklyn, 403. 
 
 0. Child, 611. 
 
 0. Kennedy, 110. 
 
 0. Oakley, 167. 
 
 0. Terry, 317. 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 Wood v. "Wellington, 99. 
 
 v. Wood, 611. 
 
 Woodbridge v. Allen, 622. 
 
 v. Detroit, 427. 
 
 Woodfin v. Hooper, 626. 
 Woodpin V. Sluder, 615. 
 Woodrow v. O'Connor, 13. 
 Woodruff v. Fisher, 446. 
 0. Neal, 457, 472. 
 
 v. Parham, 508. 
 
 e. Silley, 615. 
 
 i). Trapnall, 596. 
 
 Woodward v. Cotton, 96. 
 Woolsey v. Dodge, 369, 598. 
 Worcester . Western &c. R. R. 507. 
 Worcester Turnp. Co. v. Willard, 343. 
 Work 0. State, 487, 492, 493, 495. 
 Workman v. Campbell, 226. 
 Worrington . Furbor, 307. 
 Worseley v. De Mattos, 276. 
 
 Worth v. Fayetteville, 508. 
 Wray v. Pittsburg, 427. 
 Wright v. Carter, 458. 
 
 Wright . Cradlebangh, 142, 478. 
 v. Hawkins, 142. 
 
 v. State, 574. 
 
 Wyandotte City v. Wood, 539. 
 Wylie's Case, 457. 
 Wyndham v. Cbetwynd, 215. 
 Wyneharner v. People, 481, 487, 489, 492, 
 
 493, 497. 
 
 Yale, Ex parte, 557. 
 
 Yates i\ Milwaukee, 436, 455. 
 
 Yeatman v. Crandall, 427. 
 
 Young v. Bank of Alexandria, 25, 95, 623. 
 
 . Dake, 195, 365. 
 
 v. Hughes, 161. 
 
 . State Bank, 139, 146. 
 
 v. The Territory, 584. 
 
 Younger v. State, 574. 
 
 Zabriskie v. Railroad Co. 430. 
 Zachary v. Chambers, 360. 
 Zack v. Penn. R. R. 295. 
 Zanesville . Muskinguna Co. 504. 
 
STATUTORY AND CONSTITUTIONAL LAW. 
 
 CHAPTER I. 
 
 The Sources of Municipal or Civil Law usually twofold: Usage or Common Law 
 and Statute Law. In America a third superadded : Constitutional 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 Con- 
 stitutional and Statute, in other words, of "Written Law. 
 
 MAN, in whatever situation he 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, aaid their relations grow frequent and complicated, 
 there is superadded the law of nations. These codes are 
 variously enforced, but each has its own peculiar sanction. 
 They are curiously interwoven together, and in their combina- 
 tion tend to produce that progress and improvement of the 
 race which we believe Christianity teaches, and to which we 
 hope civilization leads. 
 
 * Blackstone, in his introductory lecture, denotes the particular customs of one single 
 
 has referred to the inappropriateness of the municipal or free town, yet it may, with suffi- 
 
 phrase municipal law. " I call it the municipal cient propriety, be applied to any one State 
 
 law," he says, " in compliance with common or nation which is governed by the same 
 
 speech, for though strictly that expression laws or customs." 
 1 
 
2 MUNICIPAL LAW. 
 
 Thus, the law of nature, 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 pressure of which the individual is forced to 
 acknowledge 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 knowledge, and is that to 
 which 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 commentator, 
 as " a rule of civil conduct prescribed by the supreme power 
 in a State, commanding what is right and prohibiting what is 
 wrong." Our American Kent describes it " as a rule of civil 
 conduct prescribed by the supreme power of a State." * 
 
 Both of these definitions are perhaps obnoxious to criticism. 
 Either of them sufficiently answers our present purpose. 
 
 Before entering on the precise subject of this treatise, it is 
 necessary to have an accurate 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 
 
 * Kent, Com. i, 446. Legis virtus hcec est, forbear to do." Dialogue between a Lawyer 
 
 imperare, vetare, permittere, punire. Dig. i, and a Philosopher. Montesquieu says (Exprit 
 
 iii, 7. There has been much scholastic dis- des Lois, Lib. i, ch. i), " Les lois, dans la 
 
 cussion as to the proper definition of the term signification la plus etendue, sont les rapports 
 
 Law; and when we come to the subject of necessaries qui derivent de la nature des choses ; 
 
 the boundaries of legislative and judicial et dans ce sens tous les etres ont leurs lois." Of 
 
 power, we shall find that in practice it is not which Toullier says (Droit Civil Francais, 
 
 very easy to give the phrase an accurate or vol. i, p. 3), " On a observe, avec raison, que 
 
 fitting interpretation. Cicero, XI Philip. 12, cette definition etail plus obscure que la chose 
 
 and after him Bracton, Coke, and Blackstone d, dcfinir." See Grotius de Jure Belli et 
 
 (as in the text), define it to be a holy sanction, Pads, liv. i, ch. i, as to the distinction between 
 
 commanding whatever is honest, and forbid- Jus et Lex ; and see also Fortescue de Laudi- 
 
 ding the contrary. Sanctiojusta,jubenshonesta, bus Legum Anglice, Amos's edition, p. 8, in 
 
 et prohibens contraria. Black. Com., Lib. i, notes. 
 
 ch. i. Blackstone's citation is incorrect, the As to the origin of the term, Cicero says 
 
 precise words are, Eat enim lex nihil aliud nisi that lex is derived from legendo, or choosing : 
 
 recta et a numine deorum tracta ratio, im- " Ego nostro (nomine) a legendo nos delectus 
 
 perans honesta, prohibens contraria. vim in lege ponimus et proprium legis est." 
 
 Bentham, in his Fragment on Government, De Leg. i, 6. " Quoniam in lege inest vis 
 
 attacks Blackstone's doctrines on the subject delectus, jubet enim quce honesta sunt, prohibet 
 
 of the nature of law in general, with great contraria" says Vinnius, C'omm. Just. Inst., 
 
 severity. Hobbes defines a law to be " the Lib. i, Tit. ii, 4. Turnebus says (Cicero, 
 
 command of him or them that have sovereign Olivet edition, vol. iii, p. 160, note) that it is 
 
 power, given to those that be his or their called Lex, quod legenda cognoscenda pnpulo 
 
 subjects, fully and plainly declaring what any proponerelur. 
 one of them may do and what they must 
 
CUSTOM. 3 
 
 countries of which we have the means of tracing the juris- 
 prudence, 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 societies before 
 the working of any central authority is firmly established or 
 extensively recognized, must necessarily 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 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. " Con- 
 suetudinis ususque longcevi" says the Code, "non vilis auc- 
 toritas est* And again : f Inveterate 'consuetudo pro lege non 
 immerito custoditur, et hoc est jus, quod dicitur moribus con- 
 stitutum. Nam cum ipsce leges nulla alia ex causa nos teneant, 
 quam quod judicio populi receptce sunt ; merito et ea quce 'sine 
 ullo scripto populus pro bavit, tenebunt omnes. Nam quid interest 
 suffragio populus voluntatem suam declaret, an rebus ipsis et 
 factis ? Quare rectissime etiam illud receptum est, ut leges non 
 solum suffragio legislators sed etiam tacito consensu omnium 
 per desuetudinem abrogentur. J 
 
 " Custom," says Voet, " is in many respects like statutory 
 enactment. It is an unwritten law gradually introduced by the 
 usages of those who adopt it, and thus acquiring the force of en- 
 actment." Legi in multis similis est consuetudo; jus non scriptum, 
 moribus utentium paullatim introductum, legis Jiabens vigor em. \ 
 
 Forti states well and simply, the manner in which custom 
 establishes its empire. " In the infancy of human society, as 
 writing is little used, and affairs are not yet complicated, differ- 
 ences are adjusted rather 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 future. Thus 
 is introduced a kind of law that is called custom." ^f 
 
 * Code, Lib. viii, Tit. 53, Quse sit long. H Voet, Comm. Lib. i, Tit. iii, 27, De 
 
 consuet. Legibus. 
 
 f Dig. i, iii, 32. 1" " Nell infanzia delle humane societa, 
 
 | " Consuetudo regni est communis lex." perche non vi e uso di lettere ne gran compli- 
 
 Anon. Cro. Eliz. 10. cazione d'affari le discordie tra gli uomini 
 
4 THE COMMON LAW. 
 
 So France, before the revolution of 1789, was to no small 
 extent governed by the unwritten customs (usages) of her 
 different provinces.* 
 
 To this source is also chiefly to be traced the great body 
 of the original English law, " that ancient collection of un- 
 written maxims and customs called the COMMON LAW," f which 
 still exercises such extensive sway in both England and America, 
 and on which we daily see engrafted regulations owing their 
 origin to the same principle. J Sine scriptojus venit, quod usus 
 approbavit, nam diutwni mores consensu utentium comprolati 
 legem imitantwr.\ 
 
 As, however, societies advance, and become consolidated 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 organization and 
 administration, of order and discipline, its first serious internal 
 struggle, was for a body of written law to replace the vague 
 and undefined customs and usages by which they had till then 
 
 associati ad uno stesso vivere civile si com- qu'elles s'appliquent a un plus grand nombre 
 
 pongono piutosto secondo la ragion naturale de questions." 
 
 che per autorita di leggi autenticate della These provincial customs, or common law, 
 
 scrittura. Poi 1'esempio dei maggiori divien formed the subject of separate treatises 
 
 legge pel nepoti, e le regole che furon formate written by the most eminent of the French 
 
 pel passato danno norma al presente ed al fu- legists. Thus, the customary law of Nor- 
 
 turo. In questa guisa s'introduce una specie mandy was discussed by Basnage ; of Orleans, 
 
 di gius che dicesi, di consuetudine." Forti, by Pothier; of Paris, by Dumoulin. Camus, 
 
 Instituzioni Civile, Lib. i, Cap. ii, 11, p. 19. Etude du JDroit Francais, 4th Letter, pp. 81, 
 
 Franceso Forti, of Pescia, a nephew of 110. 
 
 Sismondi, the historian, born in 1806, died in f Blackstone, Introd. Sect. 1. 
 1838. He is, in the domain of the law, one " Consuetude," says Coke, "is one of the 
 
 of the most eminent instances of the inextin- main triangles of the laws of England, those 
 
 gnishable genius of his unhappy country. laws being divided into common law, statute 
 
 * Toullier, Tit. Prel. Sect, xi, 188. law, and custom." Coke, In$t. 110, b. " par- 
 
 " L'tude du Droit Francais," says Camus, ticular customs. I say, particular customs, 
 
 " comprend la connoissance des coutumes, for if it be the general custom of the realm, 
 
 des ordonnances, etde la jurisprudence etablie it is part of the common law." Coke, Inst. 
 
 par les arrets. * * Chaque province a sa 115, b. 
 
 coutume particuliere quelquefois diamStrale- \ Among the most marked instances of 
 
 ment opposee a celle d'une province voisine. the constant tendency of custom to become 
 
 * * Les coutumes sont plus generales que les law, may noticed the American marine in- 
 
 ordonnances dans ce sens que leurs disposi- surance doctrine of one-third new for old, 
 
 tions embrassent plus de questions de notre entirely the creature of a usage which has 
 
 droit. * * C'est 1' etude des coutumes qui doit gradually grownup with the last half csntury. 
 etre la premiere, par la raison qui j'ai touch ee \ Inst. Lib. i, Tit. 2, 9. 
 
THE COMMON LAAV. 5 
 
 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 Rome.* 
 
 So, we see in France, the old multifarious customs which, 
 before the revolution, ruled the various provinces of the king- 
 dom, giving way to the Code, the greatest and most permanent 
 work of the central authority of the empire, f 
 
 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 provisions and its 
 history is indispensable to the jurist. First in point of time, 
 it is often first in point of importance, 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 consideration 
 of our present subject, will be recognized when it is recollected 
 that the great body of unwritten 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 
 
 * " The most striking point," says Arnold citizens, in all its relations, social, civil, polit- 
 
 (ffist. of Home, ch. vi, p. 70), " in the ical, moral, and religious."^-4r/ioWs History 
 
 character of the Romans, and that which has of Rome, ch. xiii, p. 146. 
 so permanently influenced the condition of f But even this great body of statute or 
 
 mankind, was their love of institutions and of written law bears traces of the controlling 
 
 order, their reverence for law, their habit force of ancient usage. " Whatever is am- 
 
 of considering the individual as living only biguous," says the Code (Art. 1159, speaking 
 
 for that society of which he was a member, of the interpretation of contracts), " is to be 
 
 This character, the opposite to that of the interpreted by the usage of the district where 
 
 barbarian and the savage, belongs apparently the contract was made." " Ce qui est ambigu 
 
 to that race to which the Greeks and Romans s'interprete par ce qui est a usage dans le 
 
 both belong, by whatever name, Pelasgian, pays oft le contrat est passe." And again 
 
 Tyrrhenian, or Sikelian, we choose to dis- (Art. 1648), " L'action resultant des vices 
 
 tinguish it." redhibitoires doit etre intente par 1'acquereur 
 
 The Decemviri legibus scribendis, were dans un bref . delai suivant la nature des 
 
 appointed to frame as well a constitution as a vices redhibitoires et 1' usage du lieu ou la 
 
 code of laws. Like the Greek vop6 krai, " they vente a ete faite." See also, Art. 1736 and 
 
 were to provide for the whole life of their 1748. 
 
6 THE COMMON LAW. 
 
 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 
 necessaryJTor them to establish or recognize 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 principles of the common 
 law of the mother country, with such modifications as the legisla- 
 tive enactments of Parliament 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 fundamental element, the starting point, of 
 the jurisprudence 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 decided and affirmed in the thirteen 
 old States, as they are called, which in 1776 threw off the 
 English sovereignty. The declaration of rights made by the 
 first Continental Congress, in 1774, declares that "the respective 
 colonies are entitled to the common law of England, and to the 
 benefit of such of the English statutes as existed at the time of 
 their colonization, and which they have, by experience, found 
 to be applicable to their social, local, and other circumstances." * 
 
 This is the uniform language of our judicial decisions, 
 whether of the federal or State tribunals. It has been declared 
 by the Supreme Court of 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 birth- 
 right, f 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 
 
 * Declar. in Shepard's Cons. Text Book, i Van Ness v. Pacard, 2 Peters, pp. 137 
 
 App. p. 262. and 144. 
 
 f Terrett v. Taylor, 9 Cranch, 43 ; Town 
 of Pawlet T. Clark, 9 Cranch, 292 and 333. 
 
THE COMMON LAW. 7 
 
 to our situation, and in amendment of the law, constitute a 
 part of our common law,* and the construction of such 
 statutes which prevailed at the revolution, is the rule for the 
 courts of the United States. English judicial decisions, there- 
 fore, pronounced 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, pro- 
 nounced subsequently to our revolution, though treated with 
 great respect, are not to be admitted as authority.f 
 
 So, the Court of Chancery of the State of New York has 
 said : " It is a natural presumption, and therefore adopted as a 
 rule of law, that on the settlement of a new territory, by a 
 colony from another country, and where the colonists continue 
 subject to the government of the mother country, they carry 
 with them the general laws of that country, so far as those 
 laws are applicable to the colonists in their new situation, 
 which thus become the unwritten law of the colony, until 
 altered by common consent or legislative enactment ; " J and it 
 was said to be evident that there was a common law existing 
 in the State of New York, restraining 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. || 
 
 In Maryland, it has been decided under the Constitution of 
 that State, 1 !" 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 institu- 
 
 * Cathcart v. Robinson, 5 Peters, 264- Peter's Churcli, 3 Barb. Ch. R. 119; s. c. 3 
 
 280; Fowler v. Stoneum, 11 Texas, 478; Coma. 238. 
 
 Bogardus v. Trinity Church, 4 Paige, 178; | Canal Commissioners v. The People, 5 
 
 Commonwealth v. Knowlton, 2 Mass. 534. "Wend. R. 445; Canal Appraisers v. The 
 
 f Patterson v. Winn, 5 Peters, 233 ; People, 17 Wend. 584. 
 Cathcart v. Robinson, 5 Peters, 264. "[[ Decl. of Rights, Sec. 3. 
 
 $ De Ruyter v. The Trustees of St. 
 
8 THE COMMON LAW. 
 
 tions ; 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 Hamp- 
 shire, that the body of the English common law and the 
 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 revolu- 
 tion, except when other provision was made by express statute 
 or by local usage; and they decided that an indictment at 
 common law could be sustained for an assult 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 declared f 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 to 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 the old laws, or make 
 new ones. Whenever they legislated upon any subject, 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 regard to waste committed by tenants, was 
 the law in force in England at the time of the emigration. 
 Unless 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, etc., of real property, and the remedies 
 for injury to it, until they saw fit to supersede it by a law of 
 their own making." This principle also, has been held in that 
 State, to apply to the English statutes amending or altering 
 the common law, and in force at the time of the emigration. 
 But the statutes passed subsequently are only understood to 
 be in force so far as they may have been practically received 
 
 * State T. Rollins, 8 N. H. R. p. 650. f Sackett v. Sackett, 8 Pick. 309, 315. 
 
THE COMMON LAW. 9 
 
 Into their system.* The common law of Massachusetts is also 
 said to embrace some ancient usages, originating probably from 
 laws passed by the colony of the Massachusetts Bay, annulled 
 by the repeal of the first charter, but by the former practice of 
 the colonial courts accommodated to the habits 'and manners of 
 the people.-)- 
 
 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 sepulture, 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 applicable to their condition. 
 So the English law of fixtures, permitting the tenant to remove 
 trade fixtures, but forbidding him to disturb those made for 
 agricultural 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 exer- 
 tion that should aid this result." Such is the intimation of the 
 Supreme Court of the U. S. ; | and in the State of New York, 
 the 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 inheritance," and without 
 reference to their particular character, has been specifically 
 declared.^" 
 
 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 ; ** 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 receiving its light 
 and air through an open space on the adjacent lot, that the 
 proprietor had a right to build on the lot in question, so as 
 
 * Commonwealth v. Knowlton, 2 Mass. R. Kanavan's Case, 1 Greenl. 226. 
 
 630, 534. See also, Commonwealth v. Leach, f Van Ness v. Pacard, 2 Peters, 137, 144. 
 
 1 Mass. 59. j[ Dubois v. Kelly, 10 Barb. 496. 
 
 f Commonwealth v. Knowlton, 2 Mass. ** Parker v. Foote, 19 Wend. 309. 
 R. 530, 534. 
 
10 THE COMMON LAW. 
 
 even to darken or stop the windows of Ms 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 
 silent 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 hereafter 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 
 sovereignties just springing into life. So we shall find that at the 
 revolution of 1776, by the Constitutions of most if not all the 
 States, the great body of the common law, and such of the 
 English 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 in- 
 dependence to give the law of a foreign country any 
 permanent control 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 independence, 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 col- 
 ony 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 Constitution also adopted such resolves or resolutions of 
 the Congresses and of the colony of New York, and of the 
 
 * Myers v. Gemmel, 10 Barb. 637. 
 
THE COMMON LAW. 11 
 
 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 parts of the English common and statute 
 law, and of the colonial enactments, as established any particu- 
 lar denomination of Christians, or as created allegiance to the 
 king of Great Britain, or as were repugnant to the new Consti- 
 tution. The amended Constitution of the same State, of 1821 
 (Art. vii, 13), adopted such parts of the common 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, 1775, 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, 1777, not since expired, repealed, or altered, and not 
 repugnant 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 (1776) 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 
 practiced by the courts of law and equity, and also to all acts 
 of Assembly in force on the 1st of June, 1774, except such as 
 may have since expired or have been altered by acts of 
 Convention, or the Declaration of Eights, subject to the re- 
 vision of the Legislature. 
 
 The Constitution of Massachusetts (1780) contained this 
 simpler provision (Chapter vi, Art. vi.) " All the laws which 
 have heretofore been adopted, used, and approved in the prov- 
 ince, colony, or State, of Massachusetts Bay, and usually prac- 
 ticed on in the courts of law, shall still remain and be in full 
 force until altered or repealed by the Legislature, only excepting 
 those parts repugnant to the rights and liberties contained in 
 this Constitution." And the Supreme Court of this State, as 
 
12 THE COMMON LAW. 
 
 we have seen, has said that the first settlers of the colony 
 regarded the law of England as their law, and governed them- 
 selves by it.* 
 
 The Constitution of New Hampshire (1792) adopted sub- 
 stantially the same provision as the one last cited from that of 
 Massachusetts. 
 
 The Constitution of New Jersey (1776) declared, 21, that 
 the laws contained in the edition lately published by Mr. 
 Allison, such only 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 heretofore practiced in the colony, shall still remain in 
 force till altered by the Legislature, such parts only excepted 
 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 gener- 
 ally the law of those States the constitutions of which contain 
 no such affirmative provision, (a) 
 
 * Commonwealth v. Alger, 7 Gushing, 53, cussion on the " Body of Liberties " adopted 
 66. See this case for a very interesting dis- in 1641, by the colony of Massachusetts. 
 
 (a) It is often laid down as a general proposition, that the common law is pre- 
 sumed to be in force in another State. If this presumption rests upon what may be 
 judicially taken notice of in the history of the country, it should, in the language of 
 Judge Field, be confined to " those States which were originally colonies of England, 
 or were carved out of such colonies," and to " territory acquired since the revolu- 
 tion, where such territory was not, at the time of its acquisition, occupied by an 
 organized and civilized community." Norris v. Harris, 15 Cal. 226. See Stokes v. 
 Macken, 62 Barb. 145, where it is laid down that if the foreign State was once 
 under the same government as the State of the forum, the court will take judicial 
 notice of what the law then was, and will presume it unchanged. Thus the civil 
 law, in a modified form,' prevails in Louisiana. Reynolds v. Swain, 13 Louis. R. 193. 
 In California the common law prevails, Comp. Laws, ch. 41 ; and in Florida, 
 Thomp. Dig. p. 21 ; and in Texas, Act of Jan. 26, 1840. 
 
 As to foreign countries where the common law is known not to prevail, the only 
 presumption which could have any basis of probability would be that the general 
 principles there obtain, which naturally belong to all systems alike. In respect of 
 some branches of the law, in which there is everywhere a general similarity, e. g., 
 commercial law, identity might, perhaps, be presumed. Story on Confl. of Laws, 
 637 a. 
 
 When the presumption that the common law is in force is entertained, is it the 
 
THE COMMON LAW. 13 
 
 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 com- 
 posed of twenty -four sovereign and independent States, each of 
 which may have its local usages and common law ; but there is 
 no principle which pervades the Union, and has the authority 
 of law, that is not embodied in the Constitution or laws of the 
 Union. The common law could be made a part of the federal 
 system only by legislative adoption. It is settled that the 
 federal courts have no jurisdiction of common-law offences, and 
 that there is no common law of the Union.* When, therefore, 
 a common-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 frequently is not so considered, in an- 
 other. The judicial decisions, the usages and customs of the 
 respective States, must determine how far the common law has 
 been introduced and sanctioned in each.f 
 
 * State of Pennsylvania v. The "Wheeling prefer to express the doctrine) prevails in the 
 
 Bridge Co. 13 Howard, 519. United States as a system of national juris- 
 
 f Wheaton v. Peters, 8 Peters R. 591 and prudence. To what extent it is applicable, I 
 
 659. But see the very able opinion of the need not hazard an opinion, either in general 
 
 late Vice-Chancellor Sandford, in Lynch v. terms or in particular instances, beyond the 
 
 Clarke, 1 Sandf. 583, where he says, p. 654, case in hand; but it seems to be a necessary 
 
 " In my judgment there is no room for doubt, consequence, from the laws and jurisprudence 
 
 but that to a limited extent the common law of the colonies, and of the United States un- 
 
 (or the principles of the common law, as some der the articles of confederation, that in a 
 
 common law as brought from England, unaffected by local statutes and modifica- 
 tions, or, is it the common law as altered Joy the State of the forum ? In favor of the 
 first of these alternatives, see Gordon v. Ward, 16 Mich. 360 ; Johnson v. Chambers, 
 12 Ind. 102 ; and see, also, Thurston v. Percival, 1 Pick. 415. 
 
 But, in many courts the presumption is not based upon any probability as to 
 what the foreign law actually is, but upon the necessity of applying some certain and 
 known rule, which rule, it is said, must be that of the forum until a different one is 
 shown. Thus, in Pagett v. Curtiss, 15 La. Ann. 451, the law of South Carolina, a 
 common-law State was presumed to be that of the forum, Louisiana, where the civil 
 law is the basis of the established jurisprudence; and in New York, in Monroe v. 
 Douglas, 5 N. Y. 447, it was held that a Scotch settlement of real estate, in the ab- 
 sence of proof of the Scotch law, must be construed according to the lex fori. And 
 even the statute law of the forum is applied. In fact, if the doctrine rests upon the 
 basis last mentioned, and not upon any considerations of probability as to what the 
 foreign law actually is, the statutory law of the forum must be applied as readily, 
 and for the same reason, as the common or unwritten law. See, also, Bean v. Briggs, 
 4 Iowa, 464 ; Sayre v. Wheeler, 32 Iowa, 559 ; Allen v. Watson, 2 Hill (S. C.), 319; 
 Woodrow v. O'Connor, 28 Vt. 776 ; Whidden v. Seelye, 40 Me. 247 ; Stokes v. 
 Macken, 63 Barb. 145. 
 
14 CONSTITUTIONAL LAW. 
 
 It is often said that Christianity is part and parcel of the 
 common law ; but this is true only in a modified sense. Blas- 
 phemy is an indictable offence at common law ; but no person 
 is liable to be punished by the civil power who refuses to em- 
 brace the doctrines or follow the precepts of Christianity ; our 
 Constitutions extend the same protection to every form of relig- 
 ion, and give no preference to any. Still though Christianity 
 is not the religion of the State, considered as a political corpo- 
 ration, it is nevertheless closely interwoven into the texture of 
 our society, and is intimately connected with all our social 
 habits, and customs, and modes of life.* (a) 
 
 The great body of the common law of England, and of the 
 statutes of that country as they existed in 1776, 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 
 
 matter which by the Union has become a Ayres v. The Methodist Episcopal Church, 
 
 national subject, to be controlled by a princi- 3 Sandf. 351 ; Andrews v. N. Y. Bible and 
 
 pie coextensive with the United States, in the Prayer Book Society, 4 Sandf. 156; Viclal v. 
 
 absence of constitutional or congressional Gerard's Executors, 2 Howard, 127; Going v. 
 
 provision on the subject, it must be regulated Emery, 16 Pick. 107 ; Executors of Burr v. 
 
 by the principles of the common law, if they Smith, 7 Verm. 241; and other cases, as to 
 
 are pertinent and applicable." the doctrine of charitable and pious uses in 
 
 * Williams v. Williams, 4 Seld. 525, 553 ; this country. 
 
 (a) Sunday Laws. Christianity is not a part of the common law. Bloom v. 
 Richards, 2 Ohio N. S. 387 (contract made on Sunday). Christianity is a part of the 
 common law. Shover v. State, 5 Eng. 259 (a grocery open on Sunday). See also 
 Charleston v. Benjamin, 2 Strobh. 508 ; Commonwealth v. Wolf, 3 S. & R. 48 ; Fro- 
 lichstein v. Mayor, 40 Ala. 725 (cases of Jews working on Sunday) ; Specht v. Com- 
 monwealth, 8 Penn. St. 312 (case of a Seventh-day Baptist working on Sunday) ; 
 Voglesong v. State, 9 Ind. 112 ; State v. Ambs, 20 Mo. 214 (cases of selling liquor on 
 Sunday) ; Lindenmuller v. People, 33 Barb. 548 (case of a theatrical exhibition on 
 Sunday). 
 
 Blasphemy. See Commonwealth v. Kneeland, 20 Pick. 206, per Morton, J., pp 
 233-6 ; State v. Chandler, 2 Harr. 553 ; Updegraff v. Commonwealth, 11 S. & R. 394 
 (cases on a statute) ; People v. Ruggles, 8 Johns. 225 (case at common law). 
 
 Bible and Religious Teaching in Public Schools. See Donahoe v. Richards, 38 Me. 
 379 ; Minor v. Board of Education, &c., Supr. Ct. of Cincinnati, in which an ordi- 
 nance of the board removing the Bible from the public schools was held void on 
 general grounds, and as opposed to the State Constitution. The decision of the 
 Superior Court in this case has, however, lately been reversed by the Supreme Court 
 of Ohio, but not yet reported. 
 
CONSTITUTIONAL LAW. 15 
 
 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 interest for the citizen and the lawyer. 
 
 To these two sources of municipal law, viz., common arid 
 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 cer- 
 tain rules and principles 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 constitutional 
 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 struggles for the 
 attainment and preservation of freedom, shows their marked 
 and sedulous care in obtaining and preserving formal acknowl- 
 edgments and records of their rights and liberties, muniments 
 of title, as they might in technical language be termed. 
 
 So early as the 1st of Richard III, Parliament " declared 
 that the court of Parliament is of such authority, and the people 
 of this land of such a nature and disposition, as experience 
 teacheth that manifestation and declaration of any truth or 
 right made by the three estates of this realm assembled in Par- 
 liament, and by authority of the same, maketh, before all other 
 things, most faith and certain quieting of men's minds, and 
 removeth the occasion of doubts."* 
 
 So, the barons of England were not satisfied with humbling 
 the power of John. They exacted and obtained the execution 
 of the great Charter. The reformers in the time of Charles I 
 demanded his assent to the Petition of Right ; and the throne 
 of England now rests on the Bill of Rights, the fruit of the 
 revolution of 1688, a bill prepared by the Convention Parlia- 
 ment, in its own emphatic language, " as their ancestors in such 
 cases had usually done."f 
 
 * Cotton's Abr. of Records, 713, 714, f Bill of Rights, 1 W. and M. Sess. 2, c. 2. 
 quoted in Maddock's Life of Somers, i, p. 294. 
 
16 CONSTITUTIONAL LAW. 
 
 These, however, are all but parliamentary enactments, 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 farther, and seeking to guard against 
 the abuses of popular, as their English progenitors did against 
 those of monarchical power, both in the formation of the 
 government of the separate States, and in laying the foundation 
 of the great confederacy of the Union, they carefully asserted 
 and denned 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 inquiry into 
 the formation of written Constitutions. Interesting as that in- 
 vestigation would be, and pregnant with interest to the student 
 of history and the lover of liberty, it is foreign to my present 
 subject. So far, indeed, as our Constitutions relate merely to 
 political 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 will be interesting and instructive to 
 study their operation, to compare their analogies, and to observe 
 their interpretation. For the present, it is sufficient to remark, 
 as we shall learn 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 re- 
 markable 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 govern- 
 ment, 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 Constitu- 
 tions of the several States. The Constitution of the United 
 States, designed to operate on State sovereignties, as well as on 
 the people directly, partakes of the character of a league as well 
 as of a Constitution, as the latter term is more strictly used. 
 
 Of these threegreat components, then, CONSTITUTIONAL LAW, 
 STATUTE LAW, and CUSTOMARY or COMMON LAW, the jurispru- 
 
JUDICIAL INTERPRETATION. 17 
 
 dence of our municipal system is chiefly composed. Of the two 
 first of these this volume is intended to treat. They are entirely 
 written law, governed, like all branches of our science, by rules 
 peculiar to themselves, and subject to the necessity, incident to 
 the imperfection of language, of constant interpretation and 
 construction. The object of this treatise is to explain the tech- 
 nical terminology 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 indispensable 
 to examine them together. They are both written ; in cases of 
 doubt they are botli submitted to the same judicial arbiter. 
 It is plain that differences . will arise in the construction of 
 written laws. The history of private discussions and of public 
 controversies, of contracts and of treaties, 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 jt 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 ; 
 wrung from the Patrician burghers by the courage and constancy 
 of the Plebeians, it was intended to define and declare the 
 whole body of rights, public and private, that constituted the 
 existence of a Roman citizen, and for nearly a thousand years 
 it was the basis of their system ; but during that time, it was 
 vastly expanded and altered by the practice of interpretation. 
 The Roman jurisconsults construed or interpreted the written 
 code with a very liberal spirit ; and the responsa prudentium, as 
 we know, formed one of the leading elements of the law as 
 2 
 
18 JUDICIAL INTERPRETATION. 
 
 Justinian compiled it.* When, however the imperial Con- 
 stitutions 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 condere soli imperatori conces- 
 sum est,> et leges interpretari solo dignum imperio esse oportet. f 
 
 The modern civilians adopted the same maxim. Ejus est 
 interpretari legem cujus est condere. Such was the system under 
 the government of the French empire. J 
 
 The terrible absolutism of this doctrine found, however, 
 opposition, or at least encountered doubt, even among the 
 continental jurists ; and Voet, in his commentaries on the 
 Pandects, discusses at length the question whether the right of 
 interpretation belongs to the 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 Legislature was not dis- 
 tinctly 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 interpretation of statute law belongs to 
 the judiciary 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 con- 
 sideration of constitutional and statute law, and of the control 
 exercised by the judiciary 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 impossi- 
 bility of recurring to the Legislature or to popular sovereignties 
 for the removal of difficulties, and the general analogies of our 
 
 * The jmisprudentes, " though they pro- | Comm. Lib. i, Tit. iii, de legibus. 
 fessed only to interpret the twelve tables, not ^ " Originally the Houses of Lords and 
 to make laws, their notion of interpretation Commons sat together. The courts of law 
 was so wide that it included everything were clearly subordinate to the Parliament, 
 which could be brought within the spirit of A writ of error lay from them to the Par- 
 any thing which the twelve tables enacted." liament, and they were accustomed even to 
 * " The responsci prudentium thus came to consult Parliament before they decided points 
 be enumerated among the direct sources of of difficulty and importance." Sir J. Camp- 
 law." Sanderef Institutes, Introd. pp. 19 and bell, aryuendo, in Stockdale v. Hansard, 9 Ad. 
 20. and Ell. 1 ; see post, ch. v. 
 
 f Cod. Lib. i, Tit. xiv, de legibus, 12. ** Kent, Part iii, Lee. xx, vol. i. p. 449, et 
 
 j See Toullier, Tit. Prel. des lois en seq. 
 general, section x 
 
THE GENERAL SUBJECT. 19 
 
 system, require the power of the 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 is not intended to have any share whatever 
 in the enactment of laws. 
 
 Having thus endeavored to give a general idea of the various 
 sources of our jurisprudence, and of the principal objects of this 
 treatise, we proceed now to a more particular examination of 
 our immediate subject, desiring, however, that the results at 
 which we have thus far arrived may be borne in mind : That 
 the common law is the great basis of both English and American 
 municipal law ; that the interpretation or construction of the 
 written law belongs to the judiciary ; that the rules governing 
 the application of statutes may, as a general proposition, be 
 considered the same in both countries, but that, on the contrary, 
 the head of constitutional law is wholly peculiar to American 
 jurisprudence. 
 
 As the authority of Congress is subordinate to that of 
 the Constitution of the United States, and that of each LesHs- 
 
 ' O 
 
 lature 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 provisions of 
 written law will usually be with every legal mind, Does the 
 alleged right interfere with any constitutional provision, State 
 or federal ? And it might, therefore, appear proper 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 
 limitations upon legislative power, it will be found better at 
 the outset to examine those rules and discuss, those doctrines 
 
20 THE GENERAL SUBJECT. 
 
 common to tlie legal science of "both countries. 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 would lead me far beyond my present purpose. 
 That purpose is to consider the rules which govern the applica- 
 tion of written law, to exhibit the leading principles of inter- 
 pretation, and, in regard to Constitutions, to observe their anal- 
 ogies and study their general operation. The construction of 
 special provisions, whether of statutes or Constitutions, will be 
 carried no farther than shall appear to be necessary for a com- 
 plete 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 understand 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. 
 
 GENERAL CLASSIFICATION AND DIVISION OF STATUTES. 
 
 Division of Statutes. In England divided into Ancient and Modern. Division in 
 the United States. Public and Private Acts. Declaratory and Innovating 
 Statutes. Affirmative and Negative Statutes. Remedial Statutes. Penal 
 Statutes. Repealing Statutes. 
 
 THOSE who desire to know the origin and history of the 
 formation of statutes, from the earliest periods, in the country 
 from which our legislation derives its source will do well par- 
 ticularly to consult Mr. Dwarris' very valuable work on 
 statutes.* The inquiry involves some of the most interesting- 
 questions connected with the early annals of England, the 
 power of the Norman 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 Assisce or Oonstitutiones (rex 
 precepit vel constituit} ; and among the earliest monuments of 
 English legislation there are statutes which bear the traces of 
 a great council assisting the king, besides ordinances, grants, 
 charters and patents emanating 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 the 
 judges and entered on the statute roll. This was found subject 
 to great irregularity and abuse, and finally, in the time of 
 Henry VI, bills were in the first place, as now, drawn up and 
 
 * Treatise on Statutes, by Fortunatus This latter part has been republished in 
 
 Dwarris, Kt. and W. H. Armyot, second the ninth volume of the first series of that 
 
 edition, 1848. The first volume is devoted valuable compilation, the Law Library, and is 
 
 to the origin and history of statutes, and the familiarly known to our legal scholars. The 
 
 course of proceedings in Parliament. The whole work has, I believe, never been repub- 
 
 second volume treats of the construction of lished in this country. Barrington's Obser- 
 
 statutes, their division, parts, authority and vations on the Statutes is also full of curious 
 
 incidents. learning on the same subject. 
 
22 LANGUAGE OF OLD STATUTES. 
 
 presented to the two Houses.* But as this investigation to us 
 would be interesting mainly, if not solely, in a 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 En- 
 gland, and proceed at once to the enumeration of 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 modern. The earliest 
 statutes in the printed collections are those of the ninth year 
 of Henry III, A.D. 1225. The statutes from Magna Charta 
 down to the end of Edward II, 1326 (including, also, some 
 which, because it is doubtful to which of the three reigns of 
 Henry III, Edward I, or Edward II, to assign them, are termed 
 incerti temporis), compose what have been called the vetera 
 statuta, or ancient statutes; those from the beginning of the 
 reign of Edward III (1327) being contradistinguished by the 
 appellation nova statuta. The former also, from some acci- 
 dental circumstance of collection or publication, are sometimes 
 spoken of as prima aut secunda pars veterum statutorum.^ Of 
 the 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. J 
 
 * Dwarris on Statutes, vol. ii, ch. i. be enacted in Law French, till the reign of 
 
 f Dwarris pn Statutes, p. 460. Richard III, when they first appear in En- 
 
 $ The history of the English language is glish ; and so tenacious was the hold that the 
 
 very curiously illustrated by the history of language of France had acquired, that it re- 
 
 the law. As late as the middle of the 14th mained the language of the reports till the 
 
 century, all the oral proceedings in open time of the Commonwealth. Nor did the 
 
 court were in the French tongue, when by Latin disappear from the records till the 4 
 
 the 36th Edward III, c. xv (1362), the En- Geo. II, c. 26 (1731), when, the oral discus- 
 
 glish was introduced into the tribunals. That sions and reports being in English, the final 
 
 statute recites that the laws of England are triumph of the language was achieved, and 
 
 disregarded because the proceedings in court Latin was prohibited as the language of the 
 
 are in French, " a tongue much unknown in records also. It appears by this, that for 
 
 the said realm," so that clients do not under- nearly 300 years, viz., from the 36th Edward 
 
 stand what is said for or against them ; that III (1362), to the time of the Commonwealth, 
 
 in other countries the laws are better ob- English was the language of oral discussion, 
 
 served, because justice is done in the vernac- French of the reports, and Latin of the rec- 
 
 ular ; and it then goes on to declare that ords ; French also being mainly the language 
 
 thenceforth all pleas shall be pleaded, showed, of the statutes from 1275, or thereabouts, till 
 
 defended, answered, debated, and judged in the accession of Richard III (1483). The 
 
 the English tongue. The Latin was, how- first laws in the English statute book are in 
 
 ever, by the same statute, preserved as the Latin. The earliest statute in the French 
 
 language of the written pleadings and of the language is the Statutum de Scaccario, 51 
 
 record. Hen. Ill (A. D. 1266); and it is remarkable 
 
 The statutes, however, still continued to not only that French continued to be used as 
 
AMERICAN DIVISION OF STATUTES. 
 
 23 
 
 In the early periods of English 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 recognize spring from the authority 
 to which the statutes 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 : 
 
 The Laws of the States, passed by the States respectively ; 
 and 
 
 The Acts of the Territories, passed by the governments of 
 the new territories before they are admitted into the Union as 
 States. 
 
 We shall also have occasion to speak of the municipal 
 ordinances of our cities, some of which are quite equal in 
 importance to the acts of legislation of many of the States.f 
 
 the parliamentary language after it had been 
 abolished in the courts of justice, viz., from 
 the 36 Edward III (1362) to the 1st of Rich- 
 ard III (1483), but still more that it should 
 ever have been the language of the laws. 
 Barrington says there is no other instance of 
 any country in Europe permitting their laws 
 to be enacted in a modern European language. 
 See his remarks on the subject, under the 
 head of the Statutum de Scaccario, 51 Henry 
 III, A. D. 1266, p. 57. 
 
 Fortesque, writing in the reign of Henry 
 VI, states that in the Universities of England, 
 the sciences are only taught in Latin, but 
 that the law is taught in the three languages, 
 English, French, and Latin. Legex tcrrce 
 illius in triplici lingua addiscuntur, videlicet, 
 Anylia, Gallica, et Latina. Fortesque de 
 La-udibus Leg. Angl. c. 48. 
 
 Chaucer's slur at the Anglo-French in com- 
 mon use in his time is well known : 
 " And Frenche she spake full fetously, 
 After the scole of Stratforde at Bowe, 
 For Freuche of Paris was to her unknowe." 
 Prologue to the Prioress' 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 nervous speech which now bids fair to 
 assert a successful claim to universal domin- 
 ion. See Tyrwhitt's Essay on Language of 
 Chaucer. 
 
 * Dwarris on Statutes, vol. 2, p. 462. 
 
 f Coke, Inst. 116, thus enumerates the 
 " divers laws within the realm 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 reasonable. 
 
 (7) The law of arms, war, and chivalry. 
 
 (8) Ecclesiastical or canon law. 
 
 (9) Civil law as in the courts of the con- 
 stable and marshal. 
 
 (10) Forest law. 
 
 (11) The lav, of marque. 
 
 (12) The law merchant. 
 
 (13) The laws and customs of the isles of 
 Jersey, <fec. 
 
 (14) The law and privilege of the stan- 
 naries. 
 
 (15) The laws of the east, west, and middle 
 marches now abrogated. 
 
24 PUBLIC STATUTES. 
 
 When we come to consider statutes not as to their origin, 
 but with reference to their subject-matter, we find the leading 
 division to be into 
 
 Public or General, and 
 
 Private or Special. 
 
 Public or General Statutes are in England, those which 
 relate to the kingdom 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 constitutional restraints. Private or Special 
 Statutes relate to certain individuals or particular classes of 
 men.* 
 
 Laws which concern the sovereign or heir apparent, all 
 officers in general, the whole spirituality, all lords of manors, 
 such also as relate to trade in general, are in England public 
 acts. A statute concerning all persons generally, though with 
 relation to a special or particular thing, as appeals, assizes, or 
 woods in a forest, is also a public act. 
 
 On the contrary, such statutes as concern only a particular 
 
 * Mr. Dwarris, p. 463, gives the English public. 2. Private acts printed by the king's 
 
 parliamentary division of statutes as follows: printer. And 3. Private acts not printed. 
 
 "Tne first and principal division is into "Every local and personal act contains 
 
 general and special, public and private. For a clause declaring that ' it shall be a public 
 
 the convenience of citation to a practicing act, and shall be judicially taken notice of as 
 
 lawyer, the printed book is again divided such,' and receives the royal assent as a public 
 
 into public general acts ; local and personal act." 
 
 acts, declared public and to be judicially Those who are desirous to consider the 
 
 noticed ; private acts printed by the king's subject of English statutes, and the ancient 
 
 printer, and of which printed copies may be laws more particularly, will do well to consult 
 
 given in evidence; and private acts not the collections of English statutes. There 
 
 printed. are several, and they are full of very curious 
 
 " In Parliament are adopted other dis- and interesting matter. 
 
 tinctions resting upon different grounds; The oldest abridgment of the English 
 
 there, all bills whatever from which private statutes, comes no lower than the 31st year 
 
 persons, corporations, <fcc., derive benefit, are of Henry VI (1452), and is understood to 
 
 subject to the payment of fees, and such bills have been printed in 1481. It is known as 
 
 are in this respect denominated private bills ; The Old Abridgment, and is in French, 
 
 while among the public acts are included There are one or two other, later abridg- 
 
 some merely personal, as acts of attainder ments, also in French. The first English 
 
 and patent acts. Of private acts, some, as abridgment of the statutes, is that of John 
 
 has been already shown, are local, as inclos- Rastell. This was first printed in the 19 
 
 nre acts, and some personal, viz., such as Henry VIII (1527). 
 
 relate to naturalization, names, estates, di- Petyt's great Abridgment of the Statutes 
 vorces, <fcc. ; of the latter, some are fiscal, as belongs to the year 1542, and Pulton pub- 
 bills for compounding debts due to the crown, lished an Abstract of them in 1577. 
 <fec. In the Lords, the term ' private ' is Mr. John Cay published his valuable 
 is applied technically to estate bills only, all Abridgment of the Public Statutes, 2 vols. 
 other bills being distinguished as local and folio, in 1739 ; and in 1743-1765, Mr. Owen 
 personal. Ruffhead published his Statutes at Large, in 
 
 " After they have received the royal 9 vols. 4to. This last edition is perhaps the 
 
 assent, private bills are divided into three most convenient and satisfactory for the 
 
 classes. 1. Local and personal acts, declared purposes of reference. 
 
PUBLIC STATUTES. 25 
 
 species, thing, or person, as, bishops only ; acts for the tolera- 
 tion 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 
 w T ithiu it all enactments of a general character, or which in any 
 way affect the community at large. The subject has been con- 
 sidered, as we shall hereafter see, with reference to the provisions 
 of the federal Constitution ; and it has been held that the 
 establishment of towns and counties and their boundaries, court 
 houses, jails, bridges, and ferries, are all matters of public 
 policy, and acts relating to them are of course public acts.f 
 So, in this country, it has been intimated that acts in relation 
 to banks are to be held public, J 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. | Acts, too, which although 
 affecting only a particular locality apply to all persons, are 
 public acts. So, an act passed for the survey of timber in the 
 
 * Dwarris on Statutes, 464 ; Gilb. Evi- nature (as, if it concern a particular mystery 
 
 dence, 39, 40 ; Phil, on Evidence, 238 ; Com. or trade), yet if a forfeiture be thereby given 
 
 Dig. Tit. Parliament, R. 6 ; 4 Rep. 76, b. ; to the king, it is a public statute (R. v. Buggs, 
 
 Kirk v. Xowill, 1 T. R. 118; 4 Rep. 79; 4 Skin. 429). And a private act, if recognized 
 
 Co. 76, a. b. 79. by a public act, must afterwards be noticed 
 
 Mr. Dwarris, vol. ii, p. 464, gives at length by the courts as a general law. 2 Term 
 
 the distinction in England between public Rep. 569. 
 
 and private acts, as I have stated it in the " A general or public act, then, regards 
 
 text, and then proceeds : the whole community ; special or private acts 
 
 "Thus the statute 21 Henry VIII, c. 13, relate only to particular persons or private 
 
 which makes the acceptance of a second concerns." 
 
 living by a clergyman an avoidance of the f East Hartford v. Hartford Bridge Co. 
 
 first, is a general law, because it concerns all 10 Howard, 511; Mills v. St. Glair Co. 8 
 
 spiritual persons (4 Rep. 79). Howard, 569; Bass v. Fontleroy, 11 Texas, 
 
 " In a general act there may be a private 698 ; Commonwealth v. Inhabitants of Spring- 
 clause (1 Salk. 168), as in the statute 3 Jac. field, 7 Mass. 9. 
 
 I, c. 5 (10 Rep. 57, b.), the clause which \ Bank of Utica v. Smedes, 3 Cowen, 
 
 gives the benefices of recusants in particular 662 ; 2 R. S. 374, 3. In Missouri also, 
 
 counties to the University. So a statute Douglas v. Bank of Missouri, 1. Missouri R. 
 
 which concerns the public revenue is a public 20 ; Young v. Bank of Alexandria, 4 Cranch, 
 
 statute ; but some clauses therein may, if 384. 
 
 they relate to private persons only, be private ; || Portsmouth Livery Co. v. "Watson, 10 
 
 for a statute may be public in one part and Mass. 91. But an act creating a private 
 
 private in another. 12 Mod. 249; 12 Mod. banking corporation, was held not to be of a 
 
 613; Hob. 227; Sid. 24. " general character," in Ferguson v. Miners' 
 
 " Yet, although a statute be of a private <fcc. Bank, 3 Sneed (Tenn.) 609. 
 
26 PRIVATE STATUTES. 
 
 county of Penobscot, in the State of Maine, * and an act 
 relating to the preservation 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 con- 
 tain any provisions giving penalties to the State, or declares or 
 punishes any public offence, it will be held a public statute. J 
 Generally, if the act affects in any way public interests, it will 
 be held public. So, an act for the creation of a work-house in 
 the county of Middlesex, and for the discharge of certain poor 
 prisoners, were held public acts.| If a private act be recog- 
 nized 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, ex officio, to take notice 
 of public acts without being fully set forth. The tribunals are 
 bound to give them full 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 deter- 
 mined by the judges themselves, who, if there be any difficulty, 
 are to make use of ancient copies, transcripts, books, pleadings, 
 or any other memorial, to inform themselves.** 
 
 Of private acts, on the contrary, the judges are not bound 
 to take notice unless they be previously shown and pleaded. 
 They may, consequently, be put in issue and tried by the 
 record. Such parts of private acts as are essential to an action 
 or defence, must be specially recited in plead ing.ff The result 
 of these rules is, that the courts always decide whether an act 
 be public or private. 
 
 * Pierce v. Kimball, 9 Greenleaf, 54. v. Porter, 1 Cranch C. C. 369 ; Webb v. Bid- 
 
 f Burnham v. Webster, 5 Mass. R. 268 ; well, 15 Minn. 479. 
 
 Commonwealth v. McCurdy, 5 Mass. 324. ** Dwarris, 467 ; Kent Com. v. ii, p. 460 ; 
 
 | Rex v. Bugg, Skin. 4'29 ; Case of Rog- Trotter v. Mills, 6 Wend. 512 ; Gardner v. 
 
 ers, 2 Greenleaf, 303 ; Heridia v. Ayres, 12 The Collector, 6 Wall. 499. 
 
 Pick. 334. ff Dwarris, p. 465. It is probable, how- 
 
 | Rex v. Pawlyn, Sid. 209, Bacon Ab. ever, that these rules are materially modified 
 Stat. F. ; Jones v. Axen, 1 Lord Raymond, in this country, in those States which have 
 119. [Aliter of an act of general pardon, as adopted the recent innovations on the corn- 
 applying only to offenders, 1 Ld. Raym. 709, mon-law system of pleading. The Code of 
 while the statute as to poor prisoners affected Procedure of New York provides ( 163) 
 all their creditors who might be the whole " that in pleading a private statute, or a right 
 community. EDITOR.] derived therefrom, it shall be sufficient to 
 
 Tf Rogers' Case, 2 Greenl. 303 ; Buller's refer to such statute by its title, and the day 
 
 N. P. 224, Bacon Ab. Stat. F. note ; U. . of its passage, and the court shall thereupon 
 
 take judicial notice thereof." 
 
PRIVATE STATUTES. -< 
 
 Such are tlie general principles. It is not meant, however, 
 that courts of justice are always bound to 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 ben- 
 efit of, it.* So as to the statute against usury, although under 
 the general issue in assumpsit, this defence might be set up, it 
 could not in debt on bond, unless specially pleaded.f In En- 
 gland, 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 in 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 apprise 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 regard 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 their rights. 
 This is a rule of ancient date, and has been steadily adhered to. || 
 
 In England it is held that words of a statute applying to 
 private rights do not affect those of the crown, (a) This principle 
 
 * Dwarris on Statutes, 467 ; Puckle v. $ Dwarris on Stat. 469, for rule and ex- 
 Moor, 1 Vent. 191; Lee v. Rogers, 1 Lev. ceptions. 
 
 110; Gould v. Johnson, 2 Lord Raym. 838. fl Lucy v. Levington, 1 Vent. 175; Kent 
 
 This was at first doubted. Com. i, p. 459 ; Dwarris, vol. ii, p. 471 ; Bar- 
 
 f Dwarris on Statutes, 467; Hob. 72; 5 rington's Case, 8 Rep. 138 ; Jackson v. Catlin, 
 
 Rep. 92; Mason v. Fulwood, 1 Lutw. 168 ; 2 J. R. 248; s. c. 8 J. R. 406. 
 Lord Bernard v. Saul, 1 Strange, 499 ; Bull 
 N. P. 152, S. C. 
 
 (.) But a statute enacted for a public purpose, e. g., the suppression of fraud, 
 will bind the Government, though not specially named. 5 Rep. 14 b. ; 6 Inst. 681. 
 
28 DECLARATORY STATUTES. 
 
 is well established, and is there considered 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 commonwealth were not ceded by the 
 act, no title was acquired as against the State.* But in this 
 country generally, I should doubt whether this construction 
 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 Govern- 
 ment, if not specially named, merely because it is the Govern- 
 ment. 
 
 The next great division line to which our attention should 
 be directed, is that between those statutes which simply de- 
 clare 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 Declaratory / 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 found 
 a great body of law established under cover and color of cus- 
 tom. Such rules are now growing up every day around us. 
 When the attention of the law-making 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 statute book, it 
 often becomes a question whether the new law is declaratory 
 of the old, or whether it is intended to introduce any new 
 principle. In this latter 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 Ed- 
 ward III, 2, De vatis ultra mare, recites, "Because that some 
 people be in doubt if the children born in parts beyond the 
 sea, out of the ligeance of England, should be able to demand 
 any inheritance within the same ligeance or not," and then 
 goes on to enact that the children of subjects born abroad 
 
 * Jones v. Tatham, 20 Penn. R. 399. 
 
AFFIRMATIVE STATUTES. 29 
 
 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 declaratory statute, and that the rule was 
 the same at common law.* 
 
 Declaratory acts, says Mr. Dwarris,f are made when the old 
 custom of the kingdom is almost fallen into disuse, or become 
 disputable, in which case the Parliament thinks proper in per- 
 petuum rei testimonium, and for avoiding all doubts and diffi- 
 culties, to declare what the common law is and ever hath been. 
 Declaratory acts are also passed to explain doubts in previous 
 statutory provisions, and they are then what the old writers on 
 the Roman law called acts of authentic interpretation. 
 
 A very nice question arose in regard to declaratory 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 evi- 
 dence could be shown 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 declaratory 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 nega- 
 tive terms, whether declaratory of the common law or intro- 
 ductive of a new law, -it seems that no prescription or custom 
 can be set up against \i.% 
 
 This leads us to the consideration of the division of statutes 
 into affirmative and negative, terms which readily explain 
 themselves. 
 
 Affirmative Statutes are statutes passed in the affirmative ; 
 and it has been held with that reverence for the ancient com- 
 mon 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 
 
 * Dyer's Reports, 224 a. ; Bacon v. Bacon, \ Dwarris on Statutes, p. 475, 477 ; Lord 
 
 Cro. Car. 601 ; Doe dem. Thomas v. Acklam, Lovelace's Case, W. Jon. 270; Jones v. 
 
 2 B. and Cres. 779; Lynch v. Clarke, 1 Sandf. Smith, 2 Bulst. 36; King v. Bishop of Lon- 
 
 Ch. R. 583, 660; 2 Kent Com. 50, 51. don, Shower, 420. 
 
 f Vol. ii. p. 473. 
 
30 AFFIRMATIVE STATUTES. 
 
 common-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 
 assize, it is good, for two days are sufficient at common law, 
 and when the statute is affirmative it does not toll the common 
 law.* 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 pre- 
 viously existed at common law, and is not prohibited by ex- 
 press words, it is not taken away, but the party has his elec- 
 tion.!}; Thus, it has been held in this country, that where a 
 statute authorizing the erection of a mill-dam, provided a sum- 
 mary mode of appraising and paying the damages resulting 
 from such erection, that the common-law redress by action 
 nevertheless still remained. | If, on the other hand, the statute 
 does not merely affix a new penalty but introduce new rights, 
 then there can be no doubt that the statutory remedy must be 
 strictly followed.^" If a new power be given by an affirmative 
 statute, to a certain 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 ex- 
 pressio unius est exclusio alterius. Thus, if an action founded 
 upon a statute be directed to be brought before the justices of 
 Glamorgan in Sessions, it cannot be brought before any other 
 person or in any other place.** So by the Scotch law, " stat- 
 utory provisions cannot be supplied by ' equipollents.' "ff But 
 the designation of a certain person to whom a new power is 
 given, does not exclude another person who was by a precedent 
 statute authorized to do it, from doing the same thing.JJ 
 
 * Dwarris, p. 474 ; 2 Inst. 200 ; Bro. Parl. If Lang v. Scott, 1 Black, Ind. 405 ; Almy 
 
 pl. 70. v. Harris, 5 J. R. 175. 
 
 f Dwarris, p. 475. ** 11 Rep. 59, Foster's Case, 64. 
 
 i Dwarris, p. 474. f f Alison's Practice. 
 
 1 Crittenden v. Wilson. 5 Cow. 165. See {\ 11 Rep. 39, Foster's Case, Ib. 64 ; Dwar- 
 
 also, Livingston v. Van Ingen, 9 J. R. 507 ; ris, p. 478. 
 Barden T. Crocker, 10 Pick. 383. 
 
NEGATIVE STATUTES. 31 
 
 Negative Statutes (a) are so called because they are penned 
 in negative terms, as the statute of Marlbridsre, which is 
 
 o / o / 
 
 JVon ideo puniatur dominus per redemptionem /" and Magna 
 Charta, " Nullus capiatur aut imprisonetur" In regard to 
 these, the rule is that if a subsequent statute contrary to a for- 
 mer, have negative words, 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.* " The dif- 
 ferent operation of affirmative and negative statutes," says Mr. 
 
 * Bro. Parl. pi. 72. 
 
 (*) Affirmative implying a Negative. If a thing is limited to be done in a partic- 
 ular form or manner, it excludes every other mode, and affirmative expressions 
 introducing a new rule imply a negative. District Township, &c. v. Dubuque, 7 
 Clarke (la.) 262 ; New Haven v. Whitney, 36 Conn. 373. A provision that asso- 
 ciates shall become a corporation when a certain certificate is filed, excludes corpo- 
 rate powers at any preceding time. Childs v. Smith, 55 Barb. 45. A grant of lands 
 to Indians, prescribing how they may sell, prohibits any other mode of sale. Smith 
 v. Stevens, 10 Wall. 321. But a power in a charter authorizing directors to mort- 
 gage the corporate franchises to secure bonds, does not negative other methods of 
 securing them Uncas Nat. B'k v. Rith, 23 Wise. 339 ; nor does an affirmative stat- 
 ute giving the court power to authorize guardian to sell, etc., show that he had not 
 the right to sell without such license. Wallace v. Holmes, 9 Blatch. C. C. 65. 
 
 Expressio unius. Where a statute assumes to specify the effects of a certain pro- 
 vision, it is to be taken that no others were intended. Perkins v. Thornburgh, 10 
 Cal. 189; as e. g. where a statute has undertaken to enumerate the cases in which in- 
 terest may be recovered. Watkins v. Wassell, 20 Ark. 410. In Pembroke v. Epsom, 
 44 N. H. 113, from a proviso saving pending suits, it seems to have been inferred 
 that existing causes of action were also saved. Where a grant contained several re- 
 strictions, and a subsequent amendatory statute gave the franchise in general terms, 
 and repealed all inconsistent acts, with a saving clause as to one of the restrictions, 
 it was held that all the other restrictions were repealed. McRoberts v. Washburn, 
 10 Minn. 23. Where, in the body of a Constitution, it is provided that certain speci- 
 fied officers shall hold until successors are chosen and qualified, but there is no gen- 
 eral provision to that effect, a similar general provision as to holding over, found in 
 the schedule to the Constitution, was applied only to officers in office at the adoption 
 of the Constitution. State v. Taylor, 15 Ohio N. S. 137. But if there is some special 
 reason for mentioning one, and none for mentioning the other, the absence of any 
 mention of the latter will not operate as an exclusion. Brown v. Buzan, 24 Ind. 194. 
 A provision in a statute that a failure to give a prescribed notice shall not invalidate 
 an election, does not imply that all the other prescribed formalities must be com- 
 plied with in order that the election shall not be void. Taylor v. Taylor, 10 Minn. 
 107. 
 
 The enumeration of certain acts which shall be taken as an appearance in a 
 cause was held not to exclude other methods of appearing. State v. McCullough, 3 
 Nev. 202. And see Leake v. Blasdel, 6 Nev. 40 ; Commonwealth v. Cancannon, 3 
 Brewst. 344 ; People v. Ingham County, 20 Mich. 95, 103. 
 
32 REPEALING STATUTES. 
 
 Dwarris,* is thus illustrated : " If a statute were to provide 
 that it should be lawful 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 re- 
 strain 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 stat- 
 ute, and if the substance 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 penalty of 12d for every Sunday, given by statute 1 
 Elizabeth, c. ii.f The next head is that of 
 
 Remedial Statutes. Remedial 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 sometimes effected by imposing restric- 
 tions, in which case the statute is a restraining or disabling 
 statute ; sometimes by granting powers, in which case it is . an 
 enabling or enlarging statute. J 
 
 Penal Statutes. Penal statutes are acts by which a forfeit- 
 ure 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. || We shall have occasion 
 hereafter to notice the incidents of penal statutes, but we may 
 here mention the general principle that a penalty implies a 
 prohibition, though there are no prohibitory words in the 
 statute.^ 
 
 Repealing Statutes are revocations of former statutory enact- 
 ments ; ** and the effects of the repeal of laws, we shall have 
 
 * Page 475. -viz., Stat. 32 Henry VIII, c. xxxviii, was an 
 
 j Dwarris, 474, 11 Rep. 63. enabling statute. The Stat. 13 Elizabeth, c. 
 
 | Dwarris, p. 478. x, which afterwards limited that power, is on 
 
 In illustration of this decision and dis- the contrary a disabling statute.'' Dwarris, 
 
 tinction, Mr. Dwarris says : " A statute which p. 479. 
 
 gave bishops and other sole ecclesiastical cor- || 1 Wils. 126. 
 
 porations (except parsons and vicars) a power \ Griffith v. Wells, 3 Denio, 226. 
 
 of leasing which they did not possess before, ** Mr. Dwarris says, p. 478: " Repeal acts 
 
CONFLICT OF LAWS. 33 
 
 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' con- 
 tinental jurists, with a brief sketch of their general nature and 
 distinctive qualities. But it is necessary to premise, that by 
 statutes the civilians do not mean merely the positive legisla- 
 tion which in England and America is known by the same 
 name, viz. Acts of Parliament and of other legislative 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 Roman Imperial law, which they sometimes style, by way 
 of eminence, " The Common Law," since it constitutes the gen- 
 eral basis of the jurisprudence of all continental Europe, modi- 
 fied and restrained by local customs and usages, and positive 
 legislation. Paul Voet says, " Sequitwr jus particulare, seu non 
 commune, quod uno vocabulo usitatissimo, STATUTUM dicitur, 
 quasi statum publicum tuens" Merlin says, " Oe term statut, 
 s 1 applique en general d toutes sortes des lois et des reglements ; 
 cliaque disposition d?une loi est un statut, qui per met, 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, fixing and determining its 
 state and condition, as with reference to birth, legitimacy, free- 
 dom, majority, &c., without mentioning things or property, 
 except incidentally. These personal statutes are of general 
 force and obligation everywhere. 
 
 Real statutes are those which have for their direct object or 
 motive, things or property, whether movable or immovable, 
 and independently of the personal state of the proprietor or 
 
 are revocations of former statutory laws au- pealing the general bankrupt law of the 
 
 thorizing and permitting the parties to whom United States. 
 
 the repeal extends, to forbear from acts which * Mr. Dwarris, in his very valuable work, 
 
 they were before commanded to do. Hence makes one class of statutes to consist of those 
 
 they are often named permissive laws, or, which are void. It seems hardly proper to 
 
 more briefly, permissions." This, however, make a class of statutes which are in the eye 
 
 seems a very narrow definition of a repeal of the law no statutes at all ; and we shall 
 
 act. It would be difficult, for instance, to consider this subject under another head, 
 
 find any permission contained in the act re- when speaking of the restrictions upon Legis- 
 lative Power. 
 3 
 
34 EARLY COLONIAL LEGISLATION. 
 
 possessor ; as laws which concern the disposition which one 
 may make of what belongs to him, while living or by his will. 
 
 Mixed statutes affect both persons and property, and con- 
 stitute a third class, which it has been found necessary to 
 admit, there being so many statutes which are neither purely 
 personal nor purely real, or in regard to which it is doubtful 
 whether the personal or real characteristics prevail. The rules 
 for distinguishing the several kinds, and the application of 
 these rules to the particular case, are much discussed and con- 
 troverted by the civilians, who have treated the subject with 
 their accustomed learning, acumen, and metaphysical subtlety. 
 In Us definiendis mirum est quam sudant doctores. 
 
 But this subject has been so fully discussed in that which 
 is perhaps the greatest monument of the intellect and the 
 labors of the late Mr. Justice Story, that I will here only refer 
 to the "CONFLICT OF LAWS." 
 
 It would encumber the text too much to go at length into any antiquarian dis- 
 cussion 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 commendable liberality and respect for 
 its early history, recently (1853-1855) published, in six handsome 4to. volumes, the 
 legislative records of the colony from 1628 to 1686. " Records of the Governor & 
 Company of the Massachusetts Bay, in New England, printed by order of the Legis- 
 lature, edited by Nathaniel B. Shurtleff." They are extremely valuable, and throw 
 freat light not only on the character but the formation of the laws of the infant 
 tate. 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 " with their temporal administration, 
 and the eminently equal and republican nature of the whole proceedings, are of 
 great interest with reference to the formation of some of the earliest institutions of 
 our empire. 
 
 The charter of Charles I to Sir Henry Rosewell 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 provision 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 
 their successors-, that it shall and will be lawful to and for the Governor, or Deputie 
 Governor & such 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, ordeine & establishe all manner of 
 wholesome and reasonable orders, Lawes Statutes & ordinnces, direccons & instruc- 
 cons not contrarie to the lawes 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 superior and inferior which they shall finde needefull for that government and 
 
EARLY COLONIAL LEGISLATION. 35 
 
 plantacon & the distinguishing & setting forth of the severall duties powers and 
 lymytte of every such office & place and the formes of such oathes -warrantable by 
 the lawes & statutes of this our realme of England as shalbe respectivelie ministred 
 unto them for the execucon of the said severall offices 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 for 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 dispose- 
 ing of all other matters & thinges whereby our said people inhabitante there maie be 
 soe religiously peaceablie & civilly governed as their good life and orderlie conver- 
 sacon maie 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." 
 
 At a meeting of the company, held at London on the 30th of April, 1629, the 
 Governor and company were directed " to make ordeyne and establish all manner of 
 wholsome & resonable orders, laws, statutes, ordinances, directions & instrucktyons 
 not contrary to the lawes of the Realme of England ffor the present gouernment 
 of our plantacon and the inhabitants residinge within ye lymitts of our Plantacon ; 
 a copy of all which orders is from tyme to tyme to bee sent the Comp. in London." 
 Colony Records, i, p. 38. 
 
 This charter created a mere commercial company, but in 1630 the seat of govern- 
 ment of the association was transferred to the Colony. Within 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 be intrusted. And thus, in the historian's expressive 
 language, "the trading corporation was become a representative Democracy." 
 Bancroft, i, p. 365. 
 
 I find, however, under date of 19th October, 1630, 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 ffreemen should have the Power of chuseing 
 Assistants when there are to be chosen & the Assistants from amongst themselves to 
 chase 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 
 unto by the gen' all vote of the People and erreccon of hands." Colony Records, 
 i, p. 79. 
 
 A collection of the orders or laws very soon became a subject of consideration. 
 On the 4th March, 1634, Winthrop and Bellingham appointed a committee to pre- 
 pare a revision of " all orders already made," and report to the next general court. 
 (7. JKA, p. 137. 
 
 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 needefull for the well ordering of the plantacon & to psent the same to the 
 Court." G. . i, p. 147. 
 
 On the 25th May, 1636, it was ordered (i, p. 174, 175) as follows : 
 
 "The Gounr., Deputy Gounr., Tho. Dudley, John Haynes, Rich. Bellingham 
 Esqr. Mr. Cotton, Mr. Peters, & Mr. Shepheard, are intreated to make a draught of 
 Lawes agreeable to the word of God wch may be the ffundamentall of this common- 
 wealth and to present the same to the next Genall Court. And it is ordered, that 
 in the meane tyme the magistrates and their associates shall pceede in the courts to 
 heare and determine all causes according to the lawes iiowe established & where there 
 is noe law then as neare the law of God as they can, and frr all business out of Court 
 for wch there is ooe certaine rule yet sett downe those of the standing counpell 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 " 
 
 On the 12th March, 1637 (C. 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 
 
36 EARLY COLONIAL LEGISLATION. 
 
 written Lawes have put the court into many doubts and much trouble in many per- 
 ticuler cases this Court hath therefore ordered that the freemen of every towne (or 
 some part thereof chosen by the rest) within this iurisdicti'on shall assemble together 
 in their severall townes & collect the heads of such necessary and fundamentall lawes 
 as may bee sutable 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 with the rest of the standing counsell and Richrd Bellingham 
 Esq, MrBulkley, Mr Philips, Mr Peters, and Mr Sheopard elders of severall churches, 
 Mr Nathaniel!* Ward, Mr Willi: Mr Spencer & Mr Will: 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 meete that so the whole 
 worke being pfected to the best of their skill it may bee psented to the Generall 
 Court for confirmation 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 Commonwealth 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. 
 
 On the 7th October, 1641, "The Gov. & Mr. Hauthorno were desired to Speake 
 to Mr. Ward for a Coppey of the liberties & of the Capital! lawes to bee transcribed 
 and 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. ii, p. 14) that on the 14th June, 1642, " Goodman Stowe is granted 100 
 acres of Land where he can find it convenient without 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 con- 
 sidered & committed 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 systematically taken 
 up, and committees of six members each are raised from the respective counties of 
 Suffolk, Middlesex, and Essex, " to consider & draw up a body of Lawes to present 
 them to the consideration of the next General 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 Country in establishing a Body of 
 Lawes." G. R. v. ii, p. 128. 
 
 On the 22d May, 1646, is made the following entry : 
 
 " This Corte thankfully accepts of ye labors returned by ye sevrall committees of 
 ye sevrall sheires & being very unwiling such pcious labors should fall to ye ground 
 without yt good successe as is genrally hoped for, have thought it meete to clesire 
 Richrd Bellingham Esqr, Mr Symonds, Leit't Duncan, Leift Johnson, & Mr Ward do 
 cause each comittees returne about a body of lawes to be transcribed, so as each 
 comittee may have ye sight of ye 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 & examining ye whole labors of all ye comittees, 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 Cort intends, by ye favor and blessing of God, pceed to ye establish- 
 ing of so many of them as shalbe thought most fit for a body of Lawes amongst us." 
 C.R. vol. ii, p. 157. 
 
 On the 4th November, 1646, this entry is made : 
 
 "The Corte, being deeply sensible of ye earnest expectation of the country in 
 genrall for this Corts 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 and 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 deputies to puse, examine, compare, 
 transcribe, correct, & compose in good order all ye liberties, Lawes, & orders extant 
 with us, & furthr to puse & pfect all such othrs as are drawne up & to psent such of 
 
EARLY COLONIAL LEGISLATION. 37 
 
 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 
 fior compiling ye whole, so as we may have ready recourse to any of them upon all 
 occasions, whereby we may manifest or uttr disaffection to arbitrary govermt, & so 
 all relations be safely & sweetly directed & pfected in all their iust rights and privi- 
 ledges, desireing thereby to make way for printing or Lawes for more publike & 
 pfitable use of us and or successors. Or honored Govrnr, Mr Bellingham, Mr Hibbens, 
 Mr Hill, & Mr Duncan, as a comittee for ye business above mentioned, or any three 
 of them meeiing, ye othr haveing notice thereof, shallbe sufficient to carry on ye 
 worke." 0. ft. vol. ii, p. 168. 
 
 On the 26th May, 1647, the court, finding that the committee for perfecting the 
 laws have "through streights of time & other things intervening," not completed 
 their work, commit the task to another committee. G. ft. vol. ii, p. 196. 
 
 On the llth November, 1647, it appears that the work was done, and arrange- 
 ments were made about printing. G. ft. vol. ii, p. 209. 
 
 And it is further " agreed by ye Corte to ye end We may have ye better light for 
 making & pceeding about laws yt yr. shal be these books following pcured for yr 
 use of ye Courte from time to time : Two of Sir Edward Cooke upon Littleton ; two 
 of ye Bookes of Entryes ; two of Sir Edwd Cooke upon Magna Charta ; two of ye 
 Newe Tearmes of ye Lawe ; two Dalton's Justice of Peace ; two of Sir Edwd Cook's 
 Reports." Vol. ii, p. 212. 
 
 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. ft. vol. ii, pp. 217, 218. 
 
 On the 10th May, 1648 (. ft. vol. ii, p. 246), they are " at presse." And on the 
 27th October, 1648, the price of the printed copy is fixed. 0. ft. vol. ii, p. 262. 
 
 I have thus traced the growth of the first body of printed laws in Massachusetts ; 
 and on the 17th October, 1649, the Court, "finding by experience the great benefit 
 that doth redound to the Court by putting of the law in print," direct the printing 
 of all laws passed since the first publication. G. ft. vol. ii, p. 286. 
 
CHAPTER III. 
 
 THE PARTS OF STATUTES. 
 
 Blackstone's Enumeration of the Parts of a Statute : Practical Division. Title. 
 Commencement. Preamble. Purview. Clauses. Provisoes. Exceptions. 
 Schedules. 
 
 BLACKSTONE says * that every law may be said to consist of 
 four several parts : 
 
 The Declaratory, or that which defines the rights to be 
 observed, and the wrongs to be eschewed ; 
 
 The Directory, 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 Commencement. 
 
 The Preamble. 
 
 The Purview, or Body of the Act. 
 
 Special Clauses. 
 
 Provisoes. 
 
 Exceptions. 
 
 Schedules. 
 
 The Title. The custom of prefixing titles to statutes was 
 not regularly introduced prior to the eleventh year of the 
 reign of Henry VII, though particular instances may have 
 
 * Introduction, 2. 
 
THE TITLE. 39 
 
 occurred before that time. The title was formerly called the 
 Kubric, from being written in red characters.* (a) 
 
 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. In accordance with this, the 
 title has been said to afford no clue to the legislative intent. [I 
 
 O II 
 
 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 
 
 O II 7 7 O' 
 
 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 
 
 Dwarris, p. 500; Chance T. Adams, || 1 Ambler, 22. 
 
 Hard, 334. \ Stradling v. Morgan, Plowden, 203 ; 
 
 f Rex v. Williams, 1 W. Bl. 85 ; Poulter's King v. Cartwright, 4 T. R. 490 ; King v. 
 
 Case, 3 Rep. 33 ; Mills v. Wilkins, 6 Mod. 62. George Marks, 3 East, 160. 
 
 \ Dwarris, p. 501. 
 
 (a) Title. No part of the act but may be referred to in case of doubt, to ascertain 
 the meaning. Cohen v. Barrett, 5 Cal. 195 ; Commonwealth v. Slifer, 53 Penn. St. 
 71. In the absence of the peculiar provision found in some State Constitutions, the 
 title cannot restrain or control any positive provisions of a statute. Flynn v. Abbott, 
 16 Cal. 358 ; and this is especially true of acts of Congress. Hadden v. The Collector, 
 5 Wall. 107. 
 
 But when the Constitution requires the subject to be stated in the title, the title 
 is of more importance, and may control the statute or some portion of it. Nazro v. 
 Merchants, &c. Co. 14 Wise. 295 ; Dodd v. State, 18 Ind. 56 ; but see exparte New- 
 man, 9. Cal. 502, 523. In California the constitutional provision in question is held 
 to be directory merely. See the whole subject discussed at large, post, in note on 
 the provision as to " Titles and Subjects." 
 
 As to a subtitle or heading, all that follows under it will be limited by it, e. g., 
 when the heading was " width and level of new streets," the provisions under it were 
 limited to new streets, although broad enough to include old ones. Shiel v. Mayor 
 of Sunderland, 6 H. and N. 796. But as to how far headings and subtitles in a 
 codification are to be considered, see Battle v. Shivers, 3y Geo. 405 ; People v. Moly- 
 neux, 40 N. Y. 113. A marginal note is no part of a statute, nor guide to its con- 
 struction. Clay don v. Green, 3 Law Kep. C. P. 511. The title is presumed to 
 express the intent of the law, unless plainly contradicted by the body of the act. 
 Conn. &c. Ins. Co. v. Albert, 39 Mo. 181 ; and the title is especially to be considered 
 where referred to in the body of the act. Torreyson v. Examiner, 7 Nev. 19. 
 
40 THE TITLE. 
 
 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 am- 
 biguities.* 
 
 In this country it has been said, on the same principle, 
 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, f 
 
 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. 
 
 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 | to have been " to prevent the uniting of various 
 objects, having no necessary or natural connection with each 
 other, in one bill, for the purpose of combining various pecun- 
 iary 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 mischief 
 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 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 restric- 
 
 * Dwarris, p. 502. \ See reference to Title for aid in case of 
 
 t U. S. v. Fisher, 2 Cranch R. 386 ; U. S. ambiguity, Williams v. Williams, 4 Seld. 
 
 v. Palmer, 3 Wheat. 610 ; State v. Stephen- 525, 535. 
 
 son, 2 Bailey, 334; Burgett v. Burgett, 1 Ham. | Conner v. The Mayor, 1 Seld. 285, 293. 
 
 219; Commonwealth v. Slifer, 53 Penn. St. 71. 
 
THE COMMENCEMENT. 41 
 
 tion above referred to ; that it embraced but one subject, 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 reasons which influenced the Legislature, can- 
 not and need not be stated in the title, according to the letter 
 and spirit of the Constitution." J The purpose of the provision 
 was, that neither the members of the Legislature nor the public 
 should be misled by the title, not that the latter should embody 
 all the distinct provisions 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 em- 
 brace but one object, and that shall be expressed in the title." | 
 And in that State also, it is held that the provision is to be 
 liberally construed. So, where an act which was entitled, u 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. ^[ 
 
 The Commencement. This clause, with which where there 
 is no preamble each bill commences, varies according to the 
 
 * Conner v. The Mayor, 1 Seld. 285. cent date. Mr. Barrington says (Obs. on 
 
 f Town of Guildford v. Cornell, 18 Barb. Statutes, p. 449), " It becomes, indeed, im- 
 
 640. possible, when statutes relate to matters of a 
 
 \ Sun Mutual Insurance Co. v. The Mayor, very miscellaneous nature, that the title can 
 
 4 Seld. 241. be coextensive with the views of the Legis- 
 
 I Cons, of Texas, 1845, Art. vii, 24. lature. It is, therefore, to be wished that 
 
 ^T Murphy v. Menard, 11 Texas, 673. See such acts of Parliament were distinct laws, 
 
 post. and not thrown together in that very strange 
 
 The evil which these constitutional pro- confusion which hath now obtained the name 
 
 visions are intended to correct, is not of re- of a Hodge Podge Act." 
 
42 THE PREAMBLE. 
 
 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 some- 
 times 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 
 groundwork 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 bills continentes 
 for mam actus Parliament^ came to be at once brought into the 
 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 Parlia- 
 ment assembled, and by the authority of the same, that," <fec. 
 
 The enacting clause of the laws of the American Union, 
 runs thus : " Be it enacted by the Senate and House of Repre- 
 sentatives of the United States of America, in Congress as- 
 sembled." 
 
 The enacting clause in the States differs with their differ- 
 ent 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 prefix 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 frequently, if not generally, omitted. 
 
 With the civilians, the preamble is a matter of much con- 
 sequence. They say, Cessante legis procemio, cessat et ipsa lex. 
 In our law it holds a far lower rank. A preamble is not only 
 
 * Dwarris, p. 503. 
 
THE PREAMBLE. 43 
 
 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 im- 
 portance. It is in this sense that, as Lord Coke and Lord 
 Bacon say, the preamble is a key to open the understanding 
 of a statute. 
 
 "The influence of the preamble," says Mr. Justice 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 preamble is properly referred to when doubts or ambigui- 
 ties arise upon the words of the enacting part. The preamble 
 can never enlarge ; it cannot confer any powers per se. Its true 
 office 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 preamble 
 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 recent case, " admitted of any 
 reasonable doubt, we would look to the title and preamble, and 
 endeavor to construe the enactments consistently with them." ** 
 So, if a clear and definite remedy is given by the act, the pre- 
 amble cannot be used to introduce one more extensive.ff 
 
 * See, to same effect, Crespigny v. Witte- Clarke, 2 Atk. 205 ; Holbrook v. Holbrook, 1 
 
 noom, 4 T. R. 790 ; Edwards v. Pope, 3 Scam. Pick. 251 ; Copeman v. Gallant, 1 P. Wm. R. 
 
 465. 320; King v. Athos, 8 Mod. 144; Kent v. 
 
 } Edwards v. Pope, 3 Scam. 465. Somervell, 7 'rill and J. 265 ; Lees v. Sum- 
 
 Salkeld v. Johnson, 1 Hare, 196 ; Eman- ersgill, 17 Ves. 510. 
 
 uel v. Constable, 3 Russel, 436 ; Foster v. ** Wilmot v. Rose, 3 Ellis and Blackburn, 
 
 Banbury, 3 Sim. 40; Crespigny v. Witte- Q. B. 563; Free v. Burgoyne, 5 B. and C. 
 
 noom, 4 T. R. 790. 400. 
 
 | Seidenbender v. Charles, 4 S. and R. 166 ; ff "Wilson v. Knubley, 7 East, 128 ; Bac. 
 
 Kent v. Somervell, 7 Gill and J. 266. Abr. Stat. 1 ; Adams v. Wood, 2 Cranch, 336. 
 If King v. Marks, 3 East, 165 ; Kinaston v. 
 
44 THE PREAMBLE. 
 
 A question has arisen as to the effect of the preamble as 
 matter of evidence ; or, in other words, whether the allega- 
 tion by the Legislature in the preamble of a statute, of the ex- 
 istence 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 out- 
 rages had been committed in certain parts of the country, that 
 the preamble of an act of Parliament reciting the existence of 
 outrages of that description, was admissible for the purpose of 
 proving the averment.* 
 
 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 preamble 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 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 indi- 
 vidual controversies may be prejudged, and drawn from the sanc- 
 tions of the judiciary into the vortex of legislative usurpation. 
 The appropriate functions of the Legislature are to make laws 
 to operate on future incidents, and not a decision or forestalling 
 of rights accrued or vested under previous laws. Such a pre- 
 amble is evidence that the facts were so represented to the Leg- 
 islature, and not that they are really true." f This reasoning 
 applies with as much force to public as to private statutes ; and 
 the Supreme Court of New York has well said that the Legis- 
 lature has no jurisdiction to determine facts touching the rights 
 of individuals. J 
 
 A preamble is sometimes prefixed to a particular clause, the 
 
 * Rex v. Sutton, 4 Maule and Sel. 532. \ Parmlee v. Thompson, 7 Hill, 77. 
 
 f Elmendorf v. Carmichael, 4 Litt. R. 47. 
 
CLAUSES. 45 
 
 tenor of which it is meant to explain, or which it is intended to 
 elucidate.* (a) 
 
 TJie Purview, or Body of the Act. The true meaning 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 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 beyond the preamble. 
 " There are a variety of cases," says Lord Mansfield, " where it 
 has been determined that strong words in the enacting part of 
 a statute may extend beyond the preamble."f 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 of 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. Absoluta sen- 
 tentia expositore non indiget. "This is the case," says Lord 
 Coke, " where the words are plain without any scruple, and 
 absolute without any saving." J We shall discuss other branches 
 of this part of our subject when we come to examine the rules 
 of interpretation. 
 
 Clauses. Of these, in bills, there are various kinds. Bills 
 frequently contain an interpretation clause ; and this clause, 
 says Mr. Dwarris, should precede the mere body of the act, 
 
 * Mr. Barrington, in his Observations on a pretense which was not the real occasion of 
 
 the Ancient Statutes, a rambling, but shrewd, the law, when perhaps the proposer had very 
 
 sensible, and learned work, manifests con- different views in contemplation." Obs. on 
 
 siderable hostility to preambles. He says- Stat., t>. 394. 
 
 " The most common recital for the introduc- f Dwarris, p. 507 ; Strode v. The Stafford 
 
 tion of any new regulation is to set forth that Justices, 1 Brock, 162 ; 3 Atk. 204 ; Pattison 
 
 'doubts have arisen at common law' which v. Banks, Cowper, 540; Doe dcm. Bywater 
 
 frequently never existed." And again, with v. Brandling, 7 B. and C. 643. 
 great truth, "the preamble often dwells upon \ 2 Inst. 533 ; Dwarris, p. 519. 
 
 (a) General words in the preamble will not enlarge the scope of the enacting 
 clause. Covington v. McMckle, 18 B. Mon. 262. Eecitals in the preamble are not evi- 
 dence against individuals whose rights are affected. Duncombe v. Prindle, 12 Iowa 1. 
 Where the statute is not explicit in itself, it may be explained and cut down by its 
 preamble. Hughes v. Chester, &c. R. R. 1 Drewry & 8m. 524. Preamble referred 
 to in aid of the construction in Atty. Gen. v. Earl of Powis, 1 Kay, 186. 
 
46 INTERPRETATION CLAUSE. 
 
 since, as he says, agreeably to right reason and common sense, 
 definitions should precede the matter to which they have refer- 
 ence. 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 be best 
 understood from an example thus : " The words and expres- 
 sions hereinafter mentioned, which in their ordinary significa- 
 tion have a more confined or a different meaning, shall in this 
 act (except where the nature of the provision or context of the 
 act shall exclude such construction) be interpreted as follows : 
 that is to say, the word ' land ' shall extend to manors, ad vow- 
 sons, 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. &c* 
 
 In England the judicial inclination seems to be that inter- 
 pretation clauses are by no means to be strictly construed. f In 
 a recent case, Lord Denman said, " A difficulty is raised from 
 the interpretation clause, which enumerates all such persons as 
 shall be meant and included in the term overseers. And it is 
 argued that the Legislature could not intend the majority of 
 this indefinite and fluctuating body to concur in giving a notice. 
 The argument goes rather to show the inconvenience of re- 
 quiring the majority to act, than to determine whether a church- 
 warden is an overseer, the real question in these cases. But we 
 apprehend that an interpretation clause is not to receive so 
 rigid a construction ; that it is not to be taken as substituting 
 one set of words for another, nor as strictly defining what the 
 meaning of a word must be under all circumstances. We 
 rather think that it merely declares what persons may be com- 
 prehended within that term, where the circumstances require 
 that they should. We cannot, however, refrain from express- 
 ing a serious doubt whether interpretation clauses of so exten- 
 sive a range will not rather embarrass the courts in their decision 
 than afford that assistance which .they contemplate; for the 
 principles on which they are themselves to be interpreted may 
 
 * Dwarris, p. 508, 509. v. Justices of Shropshire, and Reg. v. Justices 
 
 f Reg. v. Justices of Cambridgeshire, Reg. of Gloucestershire, 7 A. and E. 480. 
 
SAYING CLAUSE. 47 
 
 become matter of controversy, and the application of them to 
 particular cases may give rise to endless doubts." 
 
 The purview of an act may be qualified or restrained by a 
 saving clause in the statute.* (a) A. saving in the statute is 
 only an exemption of a special thing out of the general things 
 mentioned in the law;f but a saving clause in a statute, where 
 it is directly repugnant to the purview or body of the act, 
 and cannot stand without rendering the act inconsistent and 
 destructive of itself, is to be rejected. J This is inconsistent, as 
 we shall presently see, with the rule in regard to provisoes ; 
 and the inconsistency has been clearly pointed out by Mr. 
 
 * 1 Jon. 339 ; 10 Mod. 155 ; Dwarris, p.513. \ Plowden, 565; Dwarris, 659 ; Mitford v. 
 
 f Hollewellv. Corporation of Bridge water, Elliott, 8 Taunt. 18. 
 2 And. 192. 
 
 (a) Saving Clauses. A proviso protecting acts done under the statute repealed is 
 to be liberally construed. Foster v. Pritchard, 40 E. L. & Eq. R. 446. A saving 
 clause of rights existing at the " passage " of a statute refers to the time of its going 
 into effect. Rogers v. Vass, 6 Clnrke (la.) 405. A clause keeping in force all acts 
 " regulating the fees," &c., of officers will not, it seems, apply to one taking away fees 
 entirely. Webb v. Baird, 6 Ind. 13. A saving clause of all " proceedings," held to 
 mean judicial proceedings, and not to cover an election. Gordon v. State, 4 Kans. 
 489. A saving of rights accruing, accrued, or established will not prevent the retro- 
 spective operation of the statute namely, one of limitations if a reasonable time 
 was left in which to commence actions, and the bar is not already established. 
 Brisbin v. Farmer, 16 Minn. 215. Where a criminal statute was repealed by a new 
 criminal law, with a saving clause for the punishment of past offences committed 
 under it, and afterwards a criminal code was adopted repealing all other criminal 
 laws, with a saving of the right to punish offences against any act thereby repealed, 
 it was held that this did not preserve the right to punish for offences against the first 
 of these three statutes, which had been repealed by the second, and was not, there- 
 fore, repealed by the Code. Jones v. State, 1 Clarke (la.) 395. A saving clause in a 
 State Constitution that all " suits, rights, actions, prosecutions, recognizances, con- 
 tracts, judgments and claims, both as respects individuals and bodies corporate, shall 
 continue as if no change had taken place," will not prevent a change of remedy 
 applicable to any of the matters enumerated. Cusic v. Douglas, 3 Kans. 123. Conse- 
 quently an execution on a judgment recovered before the adoption of the Constitution 
 cannot be levied on a homestead exempted by the Constitution. Ibid. But see, in 
 this connection, the recent case of Gunn v. Barry, 15 Wall. 610. Where there is 
 nothing inconsistent therewith, a repealing act must be held to have been passed 
 with reference to a prior general law, providing that repeal shall not affect acts done 
 or rights accruing, &c., before the repeal ; and such a saving clause will be considered 
 as incorporated in the act. Lakeman v. Moore, 32 N. H. 410 ; State v. Shaffer, 21 
 Iowa, 486 ; Rogers v. Pacific R. R. 35 Mo. 153 ; Richardson v. State, 3 Cold. (Tenn.) 
 122 ; Grace v. Donovan, 12 Minn. 580. A general statute, saving existing actions in 
 cases of repeal, applies to a repeal by implication. Hine v. Pomeroy, 39 Vt. 211. For a 
 case giving construction to a saving clause, see Commonwealth v. Edwards, 4 Gray, 1. 
 
48 REPEALING CLAUSE. 
 
 Chancellor Kent, who well says,* " A proviso repugnant to the 
 purview of the statute renders it equally nugatory and void as 
 a repugnant saving clause ; and it is difficult to see why the 
 act should be destroyed by the one and not by the other, or 
 why the proviso and the saving clause, when inconsistent with 
 the body of the act, should not both of them be equally rejected." 
 But apart from a direct repugnancy, the general words in one 
 clause of a statute may be restrained by the particular words 
 in a subsequent clause of the same statute, f When a general 
 intention is expressed, and the act also expresses a particular 
 intention incompatible with the general intention, the particular 
 intention is to be considered in the nature of an exception.^ 
 But a particular thing given by the preceding part of statute 
 shall not be taken aw T ay or altered by any subsequent general 
 words. I 
 
 Repealing Clause. The next clause in order, in those cases 
 in which, it is used, should be the repealing clause, showing 
 what prior acts are totally repealed, except so far as they repeal 
 any other act or acts, or part or parts thereof, and what acts 
 are partially repealed; and what statutes are recognized as 
 being in full force, and as having immediate connection with 
 the enactments of such former act. The object of this clause is 
 to point out that either it is the only statute of force upon the 
 subject, by the repeal of all others, or to show what other 
 statutes are to be considered in connection with it, so that the 
 student may be better prepared to enter on the consideration 
 of the details in the last statute.^" In this country, the repeal- 
 ing clause is too often omitted, owing to the multiplicity of our 
 legislation, and the haste consequent thereupon. It would un- 
 doubtedly lead to greater care and precision, if it were practi- 
 cable, to make it necessary in every statute to refer at length to 
 the prior enactments on the subjects, and to designate such 
 provisions as it was intended to repeal.** 
 
 * Kent Com. i, 463. ** In New Tort, this was much attended 
 
 f R. T. Archbishop of Armagh, 8 Mod. 8. to by the revisers of the general legislation 
 
 \ Churchill v. Crease, 6 Bing. 180 ; Ter- of the State, and the codifiers of the system 
 
 rington v. Hargraves, 76. 492. of pleading. In the Constitution of some of 
 
 || Stanton v. University of Oxford, 1 Jon. the new States, there is inserted a provision 
 
 26. in regard to the revision and amendment of 
 
 T Dwarris, p. 511. laws with reference to the title, the analogy 
 
PROVISOES. 49 
 
 The remaining clauses in most general use are, besides those 
 already mentioned, an appeal clause ; a clause showing to what 
 places the operation of the act shall extend ; a clause showing 
 from what date the operation of the act is to commence, and 
 how long it shall continue in force ; and lastly, in England, the 
 concluding clause of a public general act, the clause providing 
 that the act may be altered and repealed in the same session of 
 Parliament. 
 
 We come next to Provisoes. " A proviso in deeds or 
 laws," says the Supreme Court of the United States, " is a 
 limitation or exception to a grant made or authority conferred, 
 the effect of which is to declare that the one shall not operate 
 or the other be exercised unless in the case provided." * A 
 curious rule of a very arbitrary nature, to which I have already 
 alluded, prevails with regard to provisoes. It is that when the 
 proviso of an act of Parliament is directly repugnant to the 
 main body of it, the proviso shall stand and be held a repeal of 
 the purview, as it speaks the last intention of the makers, f (a) 
 
 of which might perhaps be followed in regard 449, per Baldwin, J. " The proviso is gen- 
 
 to the repeal of statutes. So the Constitutions erally intended to restrain the enacting clause, 
 
 of California [Art iv, 25] and Indiana [Art. and to except something which would other- 
 
 iv, 21] both declare that " no act shall be wise have been within it, or in some measure 
 
 revised or amended by mere reference to its to modify the enacting clause." Wayman v. 
 
 title, but the act revised or section amended Southard, 10 Wheaton, 1, 30. 
 
 shall be re-enacted and published at full \ Attorney - General v. Chelsea Water 
 
 length;" and the same provision has been Works Co., Fitzgibbon, 195; 2 Dwarris on 
 
 adopted in Texas. [Art. vii, 25.] Statutes, 515 ; Rex v. Justices of Middlesex, 
 
 * Voorhees v. Bank of U. S. 10 Peters, 2 B. and Adol. 818; supra, p. 47. 
 
 (a) The rule that a proviso repugnant to the purview of the statute containing 
 it is void, does not apply to a proviso in the charter of a private corporation. 
 Dugan v. Bridge Co. 27 Penn. St. 303. A proviso is to be considered as limiting 
 the enacting clause, and its effect is to be restrained to that. Thus where a bank 
 charter expiring in 1859 gave the right to discount at seven per cent., and in 1852 
 an act was passed extending the charter, with the proviso that only six per cent, 
 should be taken, it was held that this proviso did not go into effect till the expira- 
 tion of the old charter. Pearce v. Bank of Mobile, 33 Ala. 693. And where an 
 amendment of a turnpike charter authorized the extension of the road into the city, 
 with a proviso that there should be no gate erected within the city limits, the pro- 
 viso was limited in its effect to the amendment. Detroit v. Detroit, &c. Co. 12 
 Mich. 333. A proviso in the first section that the act shall not apply to estates in 
 process of settlement, applies also to section two of the act repealing the existing 
 law. Mechanics', &c. Bank Appeal, 31 Conn. 63. A proviso at the end of one sec- 
 tion was held to extend to the whole act. The first section gave the registers, &c. 
 of the land office the right to charge certain fees for certain services. The next 
 section gave the right to registers, in or out of office, to be compensated by the 
 4 
 
50 EXCEPTIONS 
 
 Exceptions. There is a well-known distinction between an 
 exception in the purview of the act and a proviso. If there be 
 an exception in the enacting clause of a statute, it must be 
 negatived in pleading, but a separate proviso need not ; and, 
 that although it is found in the same section of the act, if it be 
 not referred to and engrafted on the enacting clause. The rule 
 is, said Mr. Justice Ashurst,* " that any man who will bring 
 an action for a penalty on an act of Parliament, must show 
 himself entitled under the enacting clause ; but if there be a 
 subsequent exemption, that is a matter of defence, and the 
 other party must show it to exempt himself from the penalty." 
 Mr. Justice Buller said, " I do not know any case for a penalty 
 on a statute, where there is an exception in the enacting clause, 
 that the plaintiff must not show that the party whom he sues 
 is not within it," So in a criminal case, Lord Mansfield said, 
 " What comes by way of proviso in a statute must be insisted 
 on for the purposes of defence by the party accused ; but where 
 exceptions are in the enacting part of the law, it must in the 
 indictment charge that the indictment is not within any of 
 them."t This rule as to prosecutions upon penal statutes, 
 that it is necessary to show, by negative averments, that the 
 defendant is not within any of the exceptions of the enacting 
 part of the statute, has been frequently recognized in this 
 country. So, if a statute provides that no person shall retail 
 spirituous liquors except for sacramental, mechanical, chemical, 
 medical, or culinary purposes, an indictment on the statute 
 must negative that the liquor was sold for these purposes.^ (a) 
 
 * Spiers v. Parker, 1 Term, 141. Kent Com i, 462 ; and People v. Berberrich 
 
 \ Dwarris p. 516; Rex v. Jarvis, Burr, and Toynbee, 11 Howard I r. R, p. S99. 
 
 148 Spiers v. Parker, 1 T. R. 141 ; The King * Chit. Crim Law, vol. i p. 284 ; Brutton 
 
 v Jukes 8 T. R. 542 ; Foster, 430 ; The King T. The State, 4 Indiana, 602 ; People v Ber- 
 
 v Stone, and Rex V. Jarvis, 1 East, 644; berrich and Toynbee, 11 Howard Pr. R. pp. 
 
 289, 3oo. 
 
 United States for similar past services at same rate. At end of this section came 
 the proviso that no register or receiver should receive for his services during every 
 year a greater compensation than the maximum now allowed by law. Held, that 
 this proviso applied to the whole act, to future services as well as past. United 
 States v. Babbit, 1 Black (U. S.), 55; and see Mayor of Cumberland v. Magruder, 
 
 34 Md. 381. 
 
 As to Provisoes and Exceptions, see State v. Stapp, 29 Iowa, 561. 
 
 (a) Where, in a repeal of a liquor law, prosecutions for sale of quantities less 
 
SCHEDULES. 51 
 
 Schedules. When, for the purpose of a more than usually 
 comprehensive enactment, it is deemed necessary to include the 
 intended meaning of numerous words in the arbitrary import 
 of one, or that there should be numerous words bearing the 
 same constructive import, that end should be attained by means 
 of a schedule annexed to the act. But the act of Parliament 
 and the schedule are sometimes found to differ ; and what will 
 be the result - of such discrepancy ? If there be any contradic- 
 tion between the two, and they cannot be reconciled, then, 
 said Lord Denman, " upon ordinary principles, the form which 
 is made to suit rather the generality of cases than all cases, 
 must give way." " Words in schedules must be received as 
 examples, not as overruling provisions," said Tindal, C. J.* (a) 
 
 * Reg. v. Baines, 12 A. & E. 227; Dwarris, p. 511. 
 
 than a gallon were saved, held, that where the indictment charged a sale without 
 specifying quantity, it might be maintained on proof of sale of quantity less than a 
 gallon. Teague v. State, 39 Miss. 516. 
 
 (a) A clause found among the temporary clauses in the schedule to a Constitu- 
 tion will be regarded as temporary : it will be presumed that such was the intention. 
 State v. Taylor, 15 Ohio, N. S. 137. 
 
CHAPTER IV. 
 
 THE ATTRIBUTES AND INCIDENTS OF STATUTES. 
 
 Applications for the Passnge 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 Statutes 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. 
 
 WE have now to consider the more important attributes 
 and incidents of statutes from the time of the first steps taken, 
 for their enactment to that of their repeal. This w r ill embrace, 
 among other subjects, applications to the Legislature for the 
 passage of laws ; the effect of contracts to obtain or oppose 
 their enactment ; their authority and jurisdiction ; remedies 
 and waiver ; the rules of pleading and of proof with regard to 
 them ; and finally, the results of their repeal. 
 
 As a general rule, no public notice is necessary previous to 
 the introduction or passage of an act. Bills are framed either 
 upon petitions, or upon the mere motion of members of the 
 legislative body ; and parties interested have only such notice 
 of their introduction as the wisdom of the legislator sees fit to 
 require.* To this general practice there is an exception in 
 North Carolina, the Constitution of which State provides 
 " that the General Assembly shall not pass any private law 
 unless it shall be made to appear that thirty days' notice of 
 application to pass such law shall have been given, under such 
 directions and in such manner as shall be provided by law ; "f 
 
 * The Constitution of New York declares, State Treasurer, 44 Vt. 356; ex parte Hill, 
 
 Art. iii, 14, "that no law shall be enacted 40 Ala. 121; Mobile School Commissioners 
 
 except by bill." The Constitution of Wis- v. Putnam, 44 Ala. 506 ; Matter of State 
 
 consin contains a similar provision. Art. iv, Capitol, 1 Wash. Terr. 135 ; per contra, see 
 
 17. [A joint resolution where the Con- Swann v. Buck, 40 Miss. 268. Such provision 
 
 stitution requires an "act" is void, the is directory. McPherson v. Leonard, 29 Md. 
 
 form " Be it enacted," <fcc., as prescribed by 377. EDITOR.] 
 
 the Constitution being mandatory. Boyers f Amendments to Constitution, Art. i, 
 
 v. Crane, 1 W. Va. 176; see Kellogg v. 6. 
 
NOTICE OF APPLICATION. 53 
 
 and also in the State of New York, where the Revised Statutes 
 declare* that, in regard to applications for acts of incorpora- 
 tion, alteration of county, city, or village boundaries, local 
 taxes, escheats, and certain other public objects, notice of the 
 intention to apply to the Legislature shall be given, by news- 
 paper advertisement. But it has been held, in regard to a 
 statute of this class, that it was not necessary to furnish any 
 proof of the publication of the notice having been in fact 
 made ; and it was said, " that the notice was a direction to the 
 public, calculated merely to guard the Legislature from 
 surprise and fraud, and to prevent hasty and improvident 
 legislation ; that the rule was made by the Legislature for its 
 own convenience, and might be entirely disregarded ; and that 
 a law would be valid although no notice whatever of the 
 application was published." f 
 
 This decision, though perhaps sound, is evidently calculated 
 to defeat the intent of the statutory provision ; but in general 
 the effort of our law is, as far as possible to guard against 
 undue private interference with the functions of government. 
 So in this country, contracts made with a view to secure the 
 passage of legislative enactments, or the performance of execu- 
 tive acts, have been held to be void, as against public policy. 
 Thus a contract founded on an agreement to obtain signatures 
 for a pardon,^ to procure the passage of an act by the 
 Legislature by using personal influence, | to pay a sum for 
 withdrawing opposition to the passage of a law touching the 
 interests of a corporation,^ have all been held void. In like 
 manner, in New York, it has been decided that no action will 
 lie for services as a lobby agent, in attending to a claim against 
 the State pending before the Legislature ; Mr. Justice Hand, in 
 the language of a high toned morality, alike creditable to 
 himself and to the court of which he is a member, saying, 
 " It is to be intended that the Legislature always have truth 
 and justice before their eyes. It would certainly imply a most 
 unjustifiable dereliction of duty, to hold that the employment 
 of individuals to visit and importune the members is necessary 
 
 * 1 R. S. 155, Part i, ch. vii, Title 3, | Clippinger v. Hepbaugh, 5 Watts and 
 
 1, 2, et seq. Serg. 315. 
 
 j- Smith v. Helmer, 7 Barbour, 416. *fr Purgey v. Washburnf 1 Ack. 264. 
 
 Hatzfield v. Gulden, 7 Watts, 152. 
 
54 
 
 CONSTITUTIONAL MAJORITIES. 
 
 to obtain justice."* In England, however, it seems that an 
 agreement to withdraw opposition to a railway bill for a pecun- 
 iary or other consideration, is not illegal in itself; and such an 
 agreement \vill be upheld unless it contains something against 
 other acts of Parliament, or injurious to the public or the 
 shareholders, f (a) 
 
 An interesting question in regard to the passage of laws 
 has presented itself in this country, growing out of the con- 
 stitutional provisions in some of the States, requiring the 
 concurrence and assent of certain prescribed legislative majori- 
 ties, as two- thirds of the members present, or a majority of all 
 the members elected. J In these cases, it was for some time 
 doubted how it was to be ascertained whether the requisite 
 
 * Harris v. Roof's Executors, 10 Barb. 
 489. But does not the learned judge, too 
 probably, " paint men as they should be, nol 
 as they are?" 
 
 f Shrewsbury and Birmingham R. Co. 
 v. London and North Western Co. 2 Mac- 
 naghten and G. 324. 
 
 \ Thus the former Constitution of New 
 York (of 1821) declared, Art. i, 12, that 
 Where a bill, having once passed the two 
 branches, is returned by the governor for 
 reconsideration, it must be passed by two- 
 thirds of the members present of each branch. 
 The same provision exists in the Constitution 
 of 1846, Art. iv, 9. So again, Art. vii, 
 9, declared that " the assent of two-thirds 
 of the members elected to each branch of 
 the Legislature, shall be requisite to every 
 bill appropriating the public moneys or 
 property for local or private purposes, or 
 creating, continuing, altering, or renewing 
 any body politic or corporate." 
 
 In the same State, the Constitution of 
 1846 provides, by Art. i, 9, that " the 
 assent of two-thirds of the members elected 
 to each branch of the Legislature, shall be 
 requisite to every bill appropriating the public 
 moneys or property for local or private pur- 
 poses." And again, by Art. iii, 15, that 
 " no bill shall be passed unless by the assent 
 of a majority of all the members elected to 
 b ,ch branch of the Legislature." And again, 
 ey Art. vii, 14, that " on the final passage, 
 
 in either house of the Legislature, of every 
 act which imposes, continues, or revives a tax, 
 or creates a debt or charge, or makes, con- 
 tinues, or revives any appropriation of public 
 or trust money, or property, or releases, dis- 
 charges or commutes auy claim or demand of 
 the State, the question shall be taken by 
 ayes and noes, which shall be duly entered on 
 the journals, and three-fifths of all the members 
 elected to either house shall in all such cases 
 be necessary to constitute a quorum therein." 
 And again, by Art. xi, 6, that " in case the 
 mode of election and appointment of militia 
 officers hereby directed, shall not be found 
 conducive to the improvement of the militia, 
 the Legislature may abolish the same, and pro- 
 vide by law for their appointment and removal, 
 if two-thirds of the members present in each 
 house shall concur therein." 
 
 So in Michigan, "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." Cons. Art. i, 
 45. 
 
 So in Indiana, Cons. Art. iv, 25. " A 
 majority of the members elected to each 
 house shall be necessary to pass any bill or 
 joint resolution." 
 
 So in Illinois, Art. iii, 21. "No bill 
 shall become a law without the concurrence 
 of a majority of all the members elect in 
 each house." 
 
 (a) Motives of legislators are not to be inquired into. Ex parte Newman, 9 Cal. 
 502; People v. Shepard, 86 N. T. 285; Harpending v. Haight, 39 Cal. 189; State 
 v. Hays, 49 Mo. 604 ; Bradshaw v. Omaha, 1 Neb. 16. Even where the State is 
 plaintiff, as in a quo warranto. McCnlloch v. State, 11 Ind. 424. Whether a statute 
 not showing fraud on , its face, can be impeached for fraud, and if so, whether 
 otherwise than in a direct proceeding, qucere. Wetmore v. Law, 84 Barb. 515 ; Oakland 
 v. Carpantier, 21 Cal. 642. That debates of constitutional conventions are not to be 
 looked to for intent, see Taylor v. Taylor, 10 Minn. 107. 
 
CONSTITUTIONAL MAJORITIES. 55 
 
 number of votes had been obtained ; * whether the printed 
 statute book, or the certificate of the Secretary of State, should 
 be received as conclusive evidence, or not. But that doubt is 
 now resolved, and it is settled that the judges may, 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.f (a) 
 
 * Thomas v. Dakin, 22 Wend. 9 ; Warner f Purdy v. The People, 4 Hill, 384 ; De 
 
 v. Beers, 23 Id. 103; The People v. Purdy, Bow v. The People. 1 Denio, 9 ; Commercial 
 2 Hill, 31. Bank of Buffalo v. Sparrow, 2 Denio, 97. 
 
 (//) Journals. Journals are conclusive evidence. McCulloch v. State, 11 Ind. 
 424. Journals, records of the Secretary of State, &c. may be resorted to, to fix the 
 date of approval, when the date on the statute is simply " Dec. 4." Gardner v. Col- 
 lector, 6 Wall. 499. Journals will be looked to. Fordyce v. Godman, 20 Ohio, 
 K S. 1; Turley v. Logan, 17 111. 151; Prescott v. Illinois, &c. Canal, 19111. 324; 
 Burr v. Ross, 19 Ark. 250; State v. Platt, 2 Rich. N. S. 150 ; and a provision in the 
 enrolled bill different from that in the bill as presented to the governor has no force. 
 State v. Platt, ubi supra. The original bills, as well as journals, may be looked into, 
 and where a compliance with the provisions of the Constitution can be " spelled 
 out" from loosely kept records, it will be done. Supervisors v. Heenan, 2 Minn. 330. 
 
 That the court will not go behind the statute as enrolled, if properly authenti- 
 ticated, see Sherman v. Story, 30 Cal. 253 ; Swann v. Buck, 40 Miss. 268; Evans v. 
 Browne, 30 Ind. 514 ; and will not go behind the engrossed bill to the journals to 
 see what the terms of the law are. Fouke v. Fleming, 13 Md. 392 ; Mayor, &c. v. 
 Harwood, 32 Md. 471. See People v. Devlin, 33 N. Y. 269 ; People v. Starne, 35 
 111. 121. 
 
 Whether the insertion by inadvertence of distinct matter in making a copy of an 
 engrossed bill for enrollment will invalidate the whole, such new matter not affect- 
 ing the original bill, see Jones v. Hutchinson, 43 Ala. 721. 
 
 Publication. Error in publication will not vitiate the statute : thus, where the 
 Constitution required the laws to be "promulgated" in English and French, and 
 there was an error in the French translation published. State v. Ellis, 12 La. Ann. 
 390; see also State v. Judge, 14 La. Ann. 491. When the Legislature enacted that 
 a statute should be published in certain newspapers, and take effect from such pub- 
 lication, and such publication is properly made, and corresponds to the original act, 
 it will be in force, though, as published in the session laws, the act is different. 
 State v. Donehey, 8 Clarke (la.) 396. The Constitution provided that " no law of 
 the General Assembly of a public nature should take effect until the same was pub- 
 lished and circulated in the several counties of the State by authority ; " and that 
 "if the General Assembly should deem any law of immediate importance, they may 
 provide that the same shall take effect by publication in newspapers in the State." 
 It seems not to be necessary for the Legislature to declare that they deemed the law 
 to be of immediate importance. Ibid. But under a similar but more explicit con- 
 stitutional provision in Indiana, that the emergency should be declared in the act or 
 preamble, it was held, that, in the absence of such express declaration, the statute 
 would not take effect at once, notwithstanding the statute itself contained a provision 
 that it should go into effect at oace. Mark v. State, 15 Ind. 98. It is not essential 
 
5G AUTHORITY AND JURISDICTION. 
 
 We have thus far considered statutes in their incipient 
 stages ; we are now to consider the attributes and incidents of 
 
 O ' 
 
 laws regularly and constitutionally passed; and, first, let us 
 examine their 
 
 Authority and Jurisdiction* It is well settled, that while 
 
 * Mr. Dwarris (vol. ii, p. 516) thus enu- of the punishment prescribed, e.g., the stocks, 
 
 merates the incidents of statutes. Hisenume- see O'Hanlon v. Myers, 10 Rich. Law, 128; 
 
 ration includes some maxims which are equally Hill v. Smith, 1 Morris (la.) 70; and see 
 
 applicable to the common law, and those I Commonwealth v. Borden, 61 Penn. St. 272. 
 
 have omitted: EDITOR.] 
 
 I. An act of Parliament binds all persons, V. When statutes are made, there are 
 but such as are specially saved by it. And. some things which are exempted and forc- 
 148, pi. 82. prized out of the provisions thereof by the 
 
 II. A statute which gives corporal pun- law of reason, though not expressly mention- 
 ishment does not bind an infant. Contra of ed ; thus, things for necessity's sake, or to 
 other statutes, if they do not except infants, prevent a failure of justice, are excepted out 
 Doc. and Stud. lib. 2, fol. 113. of statutes. Plowd. Com. 13 b. ; 2 7ns/. 118. 
 
 HI. Every statute made against an injury [If a statute prohibits an act except on 
 
 gives a remedy by action, expressly or im- the performance of an impossible condition, 
 
 pliedly. 2 Inst. 55. the prohibition is absolute. State v. Doug- 
 
 IV. An act of Parliament cannot alter by las, 5 Sneed, 608. A statute must receive a 
 
 reason of time ; but the common law may, sensible construction, although this should 
 
 since eessanfe ratione, cessat lex. Sir. 190. limit the universality of its terms ; and where 
 
 [Obsolete Statutes. That statutes may be- the Legislature has used language broad 
 
 come inoperative by non-use and from disuse enough to impose impossible conditions upon 
 
 that the approval of the governor should appear in the printed laws, if it is shown 
 by the record. Dishon v. Smith, 10 Iowa, 212. Verbal inaccuracies in the publica- 
 tion not affecting the substantial meaning do not vitiate the statute. Smith v. Hoyt, 
 14 Wise. 252. The date of approval, and not that of publication, must determine 
 priority in questions as to construction and intent. Mead v. Bagnall, 15 Wise. 156. 
 
 Approval by Governor. Interesting questions have arisen as to bills becoming 
 laws without executive approval, and as to the stage of legislation at which a bill is 
 beyond recall by either house. See opinion of Justices, 45 N. H. 607 ; People v. 
 Devlin, 33 N. Y. 269 ; People v. Hatch, 33 111. 9 ; Jones v. Hutchinson, 43 Ala. 721 ; 
 Commonwealth v. Jackson, 5 Bush (Ky.) 680 ; Evans v. Brown, 30 Ind. 514 ; Paine 
 v. Lake Erie, &c. R. R. 31 Ind. 283 ; Brodnax v. Groom, 64 N. C. 244. That the 
 governor may sign after adjournment, see People v. Bowen, 30 Barb. 24. When a 
 message of approval was taken to the house by the governor's private secretary 
 through mistake, he supposing that the bill was approved by the governor, the bill 
 having in fact been signed by him inadvertently, and left on his table, which, by 
 established routine, authorized the private secretary to communicate the message he 
 did, but a message was at once sent by the governor to the house explaining the 
 mistake, and shortly after the bill itself was returned to the house with the govern- 
 or's objections, and with his signature erased, the bill not having been out of his 
 hands, Held, that the bill had not become a law. There was, the court says, a 
 locus pcenitentw while it remained in his hands, even if he had not signed it inad- 
 vertently, and if the first message had not been unauthorized. People v. Hatch, 19 
 111. 283. 
 
 When a bill is amended in one house and returned to the other, and no vote is 
 there had upon it as amended, it is not a law. Prescott v. Illinois, &c. Canal, 19 
 HI. 324. As to the power of one branch of the Legislature sitting without the other, 
 see Adams v. Hilyer, 2 Kans. 17. As to acts passed at special sessions, see Jones v. 
 Theall, 3 Nev. 233 ; Morford v. linger, 8 Clarke (la.) 82. 
 
AUTHORITY AND JURISDICTION. 57 
 
 every nation possesses an exclusive jurisdiction within its own 
 boundaries, neither Constitutions nor statutes have any intrin- 
 sic force, ex proprio vigore, beyond the territory of the sover- 
 eignty which enacts them, and the respect which is paid to 
 them elsewhere depends on comity alone.* A modification of 
 this principle 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 its 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 oppor- 
 tunity 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 lan<mao;e , of 
 
 O 777 O O 
 
 the great civilians. " Constat, igitur" says Rodenburg,^ "extra 
 territorium leg em dicer e licere nemini, idque si fecerit quis, im- 
 pune ei non pareri, quippe ibi cessat statutorum fundamentum, 
 robur, et jurisdiction " Nullum statutum" says P. Voet, || " sive 
 in rem, sive in personam, si de rations juris civilis sermo insti- 
 tuatur sese, extendit ultra statuentis territorium" And so says 
 
 the exercise of known rights, it will be con- cedere videlur et id per quod devenitur ad illuil 
 sidered that such a result could not have (2 Jn-it. 366; 12 Hep. 130, 131); and Qu<indo 
 been intended. Thus when a demand upon aliquod prohibetur, prohibetur et omne per 
 an administrator was made a prerequisite to quod devenitur ad illud. 
 a suit against his sureties, it was held that IX. If an offence be made felony by a 
 when the administrator was dead, no demand statute, such statute does, by necessary con- 
 was necessary, and the suit could be main- sequence, subject the offender to the like 
 tained. People v. Admire, 39 111. 251. ED- attainder and forfeiture, and does require the 
 ITOR.] like construction as to those who shall be ac- 
 
 VI. Whenever an act gives anything gen- counted accessories before or after the fact, 
 erally, and without any special intention de- and to all other intents and purposes, as a 
 clared or rationally to be inferred, it gives it felony at the common law does. Dwarris, p. 
 always subject to the general control and $17. 
 
 order of the common law. Show. 455. * Story, Confl. Laws, p. 7, 7 ; p. 19, 
 
 VII. Whenever a statute gives or pro- 18; p. 20, 20; Commonwealth of Kentucky 
 vides anything, the common law provides all v. Bassford, 6 Hill, p. 527 ; Blanchard v. Rus- 
 necessary remedies and requisites. The Pro- sell, 13 Mass. 1; Bank of Augusta v. Earle, 
 tector v. Ashfield, Hard. 62; 1 Inst. 235; 2 13 Peters, p. 5i9; Op. of Taney, C. J. p. 584. 
 Inst. 225; Eac. Ab. Tit. Statute. f Story,' Conflict Laws, p. 21, 21 ; p. 23, 
 
 VIII. In statutes, incidents are always 22. 
 
 supplied by intendments ; in other words, \ De Stat. ch. 3, 1, p. 7 ; Story, Confl. 
 
 wherever a power is given by a statute, of Laws, 21. 
 
 everything necessary to the making of it | De Stat. 4, ch. 2, n. 7, p. 124; Id. 130, 
 
 effectual is given by implication, for the 138, ed. 1661. 
 
 maxim is, Quando lex aliquid concedit, con- 
 
58 AUTHORITY AND JURISDICTION. 
 
 Boullenois: "Of strict right, no laws made by a sovereign 
 have any force or authority except within the limits of his 
 dominion." * " A sovereign," says Toullier, " can issue his 
 commands to his own subjects only; his power does not extend 
 to foreigners." f (a) 
 
 Within each jurisdiction, however, the law binds all alike.* 
 Lex uno ore omnes alloquitur. This maxim, says Lord Coke, is 
 the pride of the English law. J It is, indeed, proper to bear in 
 mind that this principle, that within the limits of its jurisdic- 
 tion, the law controls alike, without distinction, the property 
 and condition 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 Rome, 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 Savigny, " in the same town, the Lombard lived under the 
 Lombard law, the Roman under the Roman law. The charac- 
 teristics of personal laws are equally visible in the individuals 
 of the different Germanic tribes ; and the Franks, the Bur- 
 gundians, the Goths, lived on the same soil, each under his 
 own law. This is the explanation of the following passage, in 
 a letter from Agolardus 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 
 
 * " De droit etroit, toules les lois que fait Remain d'apres la loi Remain. L'esprit des 
 
 Bn souverain n'ont force et autorite que dans lois personelles repnait egalement parmi les 
 
 1'etendue de sa domination." 1 Boullenois, individus des divers tribus Germaniques ; et 
 
 Prin. Gen. 6, p. 4. les Francs, les Bourguignons, les Goths, viv- 
 
 f " Le souverain ne peut commander qu'ji aient sur le meme sol chacun d'apres son 
 
 ses sujets ; sa puissance ne s'etend point sur droit. Aussi s'explique le passage suiva,nt 
 
 les etrangers." Toullier, vol. i, p. 92 ; Tit. d'une lettre d'Agobardus & Louis le Debon- 
 
 prel. sect. 8, 112. naire : 'On voit souvent converser ensemble 
 
 {2 Inst. 184. cinq personnes dont aucun n'obeit aux memes 
 
 " Dans le meme pays, dans la meme ville, lois.' " Savigny, Hit. Droit Roinain au Moyen 
 
 le Lombard vivait d'apres la loi Lombarde, le Age, ch. 3, 30. 
 
 (a) But a State may pass laws authorizing certain acts to be done outside its 
 limits, and may prescribe what effect they shall have within its limits. Chandler v 
 Main, 16 Wise. 398. One Legislature cannot bind another, except by an act which 
 is in effect a contract. State v. Oskins, 28 Ind. 369 ; Swift v. Newport, 7 Bush (Ky.) 
 37 ; see " Implied Repeal." 
 
COMITY OF NATIONS. 59 
 
 giving way before a more enlightened civilization ; but in this 
 country tlie 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 considera- 
 tions. " Whatever extra-territorial force," says Mr. Justice 
 Story, "laws are to have, is the result not of any original 
 power to extend them abroad, but of that respect which, from 
 motives of public policy, other nations are disposed to yield to 
 them, giving them effect, as the phrase is, sub mutuce vicissi- 
 tudinis obtentu, with a wise and liberal regard to common con- 
 venience and mutual benefits and necessities." * " Whatever 
 force and obligation, says the same learned writer, f " the laws 
 of one country have in another, depend solely upon the laws 
 or municipal regulations of the latter, that is to say, upon its 
 own proper jurisprudence and polity, and upon its own express 
 or tacit consent." The principles of comity which regulate the 
 action of the municipal law, in the recognition and application 
 of foreign law, have been so elaborately examined by Mr. Jus- 
 tice Story, that I shall dismiss this branch of my subject with 
 the following extract from his great work : 
 
 " No nation," he says,J " can be justly required to yield up its own funda- 
 mental 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 conscientious regard to justice and duty. It is 
 difficult to conceive," he says again, || "upon what ground a claim can be rested 
 to give to any municipal laws an extra-territorial effect, when those laws are 
 prejudicial to the rights of other nations or to those of the subjects." And 
 again,^[ "The true foundation on which the administration of international law 
 must rest is, that the rules which are to govern are those which arise from 
 mutual interest and utility, from a sense of the inconvenience which would 
 result from a contrary doctrine, and from a sort of moral necessity to do 
 justice, in order that justice may be done in return." And again,** " There is, 
 
 * Conflict of Laws. p. 7, 7; Saul v. His | Page 32, 32. 
 
 Creditors, 17 Martin, 569. j[ Page 34, 35. 
 
 t Confl. 23, p. 23. ** Page 36, 38. 
 \ Confl. of Laws, p. 25, 25. 
 
CO COMITY BETWEEN THE STATES. 
 
 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 inad- 
 missible when it is contrary to its known policy, or prejudicial to its interests. 
 In the silence of any positive rule affirming or denying, or restraining the 
 operations 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 nation, 
 which is administered and ascertained in the same way, and guided by the same 
 reasoning by which all other principles of the municipal law are ascertained 
 and guided." 
 
 The general principles to which I have been referring 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 instru- 
 ment, 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 
 Court of the United States has said, "For all purposes em- 
 braced 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 necessarily foreign to and independent of each other, 
 their Constitutions and forms of government being, although 
 republican, altogether different, as are their laws and institu- 
 tions," * and their acts have, consequently, no extra-territorial 
 authority, f But, at the same time, the States of the Union 
 recognize in regard to each other, to a certain extent, the exist- 
 ence of the same principles of international 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 incorporated by the State 
 of Georgia, on a bill of exchange negotiated to the agent of the 
 
 * Buckner v. Finley, 2 Peters, 686 ; see, State of Rhode Island v. Massachusetts, 12 
 to same point, Lonsdale v. Brown, 4 Wash. Peters, p. 657. 
 
 C. R. 86, and 2 Peters, approving, p. 688; f Blanchard v. Russell, 13 Mass. 1 ; Bank 
 
 Walter v. Ross, 2 Wash. R. 283; Bank of of Augusta v. Earle, 13 Peters. 519; Opinion 
 U. S. v. Daniel et al. 12 Peters, p. 32; and of Taney, p. 584 ; Commonwealth of Kentucky 
 
 v. Bassford, 6 Hill, p. 527. 
 
COMITY BETWEEN THE STATES. 61 
 
 plaintiffs within the State of Alabama, it was 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 exist- 
 ence 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 general government are not at liberty to pre- 
 sume, in the absence of all legislation 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 acknowledges 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 inter- 
 ests 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 but to de- 
 clare 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 inter- 
 national comity between these States? They are sovereign States; and the 
 history of the past, and the events which are daily occurring, furnish the strong- 
 est evidence that they have adopted toward each other the laws of comity in 
 their fullest extent." 
 
 It was certainly very difficult successfully to contend for the 
 principle insisted on in this case by the defendants, for it 
 amounted substantially to the proposition that a corporation of 
 one State can do no commercial business, can make no contract, 
 can, indeed, do 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, presents 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 institu- 
 tion is absolutely forbidden by its municipal legislation, can be 
 
 * Bank of Augusta v. Earle, 13 Peters, 519. Mr, Justice McKinley dissented. 
 
62 COMITY BETWEEN THE STATES. 
 
 protected in his property by the fact that the slaves are merely 
 in transitu, and brought in with the Honafide intention of tak- 
 ing them to some State where their proprietor may lawfully 
 hold them. This proposition has been affirmed in Illinois ; * it 
 has been denied in New York,f and has been left in doubt by 
 the Supreme Court of Massachusetts. It is not seriously as- 
 serted that the owner's right can be maintained under the Con- 
 stitution of the United States, nor that in this sense the abso- 
 lute prohibition of domestic slavery by the State laws is uncon- 
 stitutional ; but it is very earnestly insisted that property 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 difficulty, and if the 
 rule of comity is to be considered as settled 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 whose citizens are com- 
 paratively rare, and almost, if not quite, exclusively commercial, 
 and the rules of whose intercourse rest entirely on the great un- 
 written 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. 
 Thev are mutually dependent on each other in various ways, 
 and all recognize in certain cases a common sovereign ; their in- 
 tercourse is in the highest degree frequent and intimate ; their 
 relations quite as much political as commercial ; and they have 
 undertaken, by the terms of a carefully prepared instrument, to 
 declare with precision their relative rights and duties. In this 
 case, to substitute for the clear and definite language of the 
 Constitution anything 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 political questions, 
 
 * Willard v. The People, 4 Scammon, 461. \ Commonwealth v. Aves, 18 Pickering, 
 
 f People V. Lemon, 5 Sandford, 681. 193. 
 
PROOF OF STATE LAWS. 63 
 
 and to give them, in framing their decisions, 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 proceedings of their tri- 
 bunals, which, though it gives them no extra-territorial eifect, 
 has still some bearing on our present subject. The Constitu- 
 tion of the United States, by Article IV, Section 1 of that in- 
 strument, declares that, " Full faith and credit shall be given in 
 each State to the public acts, records, and judicial proceedings 
 of every other State ; and the Congress may, by general laws, 
 prescribe the manner in which such acts, records, and proceed- 
 ings shall be proved, and the effect thereof." In pursuance of 
 this power, the Congress of the United States, by act of May 
 26, 1790, ch. 38, provided the mode by which records and judi- 
 cial proceedings should be authenticated. Under these consti- 
 tutional and statutory provisions, various decisions have been 
 made, the general result of which is, that a judgment is conclu- 
 sive 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 authenticated 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 re- 
 quired ; but the courts of other States, and the Supreme Court 
 of the United States, influenced by the peculiar and 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 the reader to Mr. Greenleaf 's very valuable 
 work, where the authorities will be found collected. | 
 
 The student of American law, in his consideration of the 
 subject which we are now discussing, will not forget that the 
 
 * Mills v. Duryee, 7 Cranch, 481 ; Hamp- \ Bank of Augusta v. Earle, IS Peters, 
 
 ton v. McConnel, 3 Wheat. 234 ; 1 Kent. 525 ; Ogden, arguendo. 
 Comm p. 250, and cases there cited. !j Greenleaf on Evidence, 489. 
 
 f Act of 26th May, 1799, ch. 38 
 
64 LAWS OF THE STATES. 
 
 laws of the States, as has been already intimated, are subject in 
 many important cases to 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, 
 shall be the supreme law of the land ; and the judges in every 
 State shall be bound thereby, anything in the Constitution or 
 laws of any State to the contrary notwithstanding." This pro- 
 vision necessarily makes the States subordinate to the govern- 
 ment 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 en- 
 forced, as we shall hereafter see, by the Supreme Court of the 
 United States. 
 
 While 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 juris- 
 diction of the States over criminal acts planned or contrived in 
 a State of which the offending party is a citizen, but consum- 
 mated 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 offence of counterfeiting its cur- 
 rent bills, committed out of the State, indictable and punishable 
 in its courts, f But, on the other hand, it is equalty well set- 
 tled, that in the case put, where the offence is contrived in one 
 State and executed in another, the party is liable to the criminal 
 jurisdiction of the State where the offence is consummated, 
 though he have never himself been within the limits of the 
 latter State. So, where an indictment was found in Massachu- 
 setts against a resident in New York for uttering forged notes 
 in the first-mentioned State, through an innocent agent, the de- 
 fendant remaining all the while in New York, the defendant 
 was held guilty in Massachusetts. J So again, where one was 
 indicted in New York for obtaining money by fraudulent pre- 
 
 * Scoville v. Canfield, 14 J. R. 338. J Commonwealth v. Harvey, 8 Am. Jur. 
 
 f State v. Knight, Taylor's N. C. Rep. 65. 69. 
 
TIME WHEN STATUTES TAKE EFFECT. 65 
 
 tenses from a firm in that State, by exhibiting 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 
 offence 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.* It will be observed that these are cases which 
 apply to mala per se, to offences against persons or property 
 which are such in all civilized countries ; and it may well be 
 doubted whether the rule would hold good as to mere mala 
 prohibit^ 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 branch 
 of our subject arises, as to the time when statutes are to take 
 effect. The old English rule was, that if the act was not 
 directed to operate from any particular time, it took effect from 
 the first day of the session 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 extraordinary applica- 
 tion of the doctrine of relation was actually adhered to and 
 acted upon in England as late as the latter part of the last cen- 
 tury.f 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 
 
 * People v. Adams, 8 Denio, 190 ; s. o. before Lord C. J. Holt, Lord C. J. Treby, and 
 
 on appeal,! Corns. 173. See, t'> the same Mr. Justice Rokeby. He prayed to be allowed 
 
 point, State v. Ellis, 3 Conn. 185 ; Barkham- counsel, but was refused, because the statute, 
 
 stead v. Parsons, 3 Conn. 1 ; Commonwealth 7 William III, c. 3, allowing counsel to per- 
 
 v. Gillespie, 7 Serg. <fc Rawle, 469 ; People v. sons indicted for treason, did not go into effect 
 
 Rathbun, 21 Wend. 509. In England, the till the next day after that on which he w;\s 
 
 rule that the offence is considered to be com- tried. It waain vain that the prisoner quoted 
 
 mitted where it is consummated, holds good a part of the preamble, which said that such 
 
 as between the different counties, and as be- an allowance was just and reasonable. The 
 
 tween Ireland and England. King v. Brisac, reply of Lord C. J. Holt was, that he must 
 
 4 East, 164; Rex v. Johnson, 6 East, 583; administer the Hw as he found it, and could not 
 
 s. c. 7 Id. 65. anticipate the operation of an act of Parlia- 
 
 f 33 Henry VI, 18 Bro. 33; 1 Lev, 91 ; ment by even a single day. Sir William 
 
 Attorney-General v. Panter, 6 Bro. P. C. 486 ; Parkyns was convicted and executed. See 
 
 Latless v. Holmes, 4 T. R. 486 ; Dwarris on the case reported in the thirteentli volume of 
 
 Stat. p. 544; R. v. Bailey, R. # R. C. C. 1 ; the State Trials, Howell's ed, and cited in Mr. 
 
 1 Ru.ss. C. & M. 109. The severity of the old Lieber's Hermeneutics, p. 118; see also. 
 
 English rule is well illustrated by the trial of Kent's Com. voJ. i, p. 456. 
 Sir William Parkyns for high treason, in 1695, 
 5 
 
GO TIME WHEN STATUTES TAKE EFFECT. 
 
 in the same session and to come into operation on the same day, 
 are repugnant to each other, it is held that the act which last 
 received the royal assent must prevail.* 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 provisions are contrary to common sense, and 
 may often produce 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 ob- 
 viously arbitrary and unreliable. The evils likely to result 
 from the first of these rules are now often obviated by a section 
 declaring 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 ex- 
 
 / O 
 
 pressly 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.f 
 
 The Code Napoleon first established the true principle as 
 to when laws should take effect. It declared laws to be bind- 
 ing from the moment that their promulgation 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 seat of government and the place. J 
 
 In this country, the mischievous results of the original En- 
 glish rule are usually obviated either by constitutional or stat- 
 utory provisions. So in Michigan, a constitutional provision 
 declares | that " no public act shall take effect or be in force 
 until the expiration of ninety days from the end of the session 
 at which the same is passed, unless the legislature shall other- 
 wise direct by a two-thirds vote of the members elected to each 
 house." In Mississippi, the Constitution provides, " that no law 
 
 * Rex v. Justices of Middlesex, 2 B. <fc A. Code Civil, Art. i ; Kent's Com. i, p. 458. 
 
 818 : 2 Bing. N. C. 682; Dwarris, p. 544. f Cons. Art. iv, 20. 
 
 f Burn v. Carvalho, 4 Nev. <fe Man. 889. 
 
TIME WHEN STATUTES TAKE EFFECT. 67 
 
 of a general nature, unless otherwise provided for, shall be en- 
 forced until sixty days after the passage thereof." * And in 
 New York it is declared, by a general statute,f that " every law, 
 unless a different time shall be prescribed therein, shall com- 
 mence 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 legisla- 
 tion, the rule is supposed to be identical with that now in 
 force in England : that every law takes effect on the day of its 
 passage. This 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 ; ignorantia legis neminem excusat. (a) 
 
 * Cons. Art. vii, 6. Ann, 1 Gallison, 62; 1 Kent's Com. 455; but 
 
 1 R. S. 157, part i, ch. vii, tit. v, 13. see 1 Paine, 23. 
 Matthews v. Zane, 7 Wheaton, 164; The 
 
 () Unless a different time is specified, an act takes effect from its approval. 
 Taylor v. State, 31 Ala. 383. The " time of passage " is when the act has gone 
 through all the constitutional forms, including the approval of the governor; and a 
 law cannot impair the obligation of a contract made before its final passage. Wart- 
 man v. Phil. 33 Penn. St. 202. When a statute goes into effect from its approval, it 
 is in force the whole day of its approval. Maliory v. Hiles, 4 Mete. (Ky.) 53. But 
 when an act taking away jurisdiction from justices of the peace, except in actions 
 already pending, is by its terms to take effect from its passage, it will not affect an 
 action brought on the same day of its passage, unless shown to have been com- 
 menced at a later hour. Kennedy v. Palmer, 6 Gray, 316. "Prior to the passage," 
 means prior to the going into effect of a law. Charless v. Lamberson, 1 Clarke (la.) 
 435. That where an act takes effect from its passage, it is in force from the first day 
 of the session, see Hamlet v. Taylor, 5 Jones, Law, 36. Where a Constitution de- 
 clared that no bill should have the " force of law " until read three times, and signed 
 by the President and Speaker, and sealed with the great seal, it was held that 
 statutes took effect on the completion of these ceremonies, and not from the first day 
 of the session. State v. The Banks, 12 Rich. L>w, 609. A statute passed Feb. 4, 
 1859, and not going into effect until ninety days after the close of the session, 
 namely, in May, 1859, and which provides for an election to be held in " April next," 
 must be understood to mean April, 1863. A law speaks from the time of its going 
 into effect. Rice v. Ruddiman, 10 Mich. 125. But an act by its terms taking effect 
 on the 15th of a May next," passed in April, but not approved until May 3d, was 
 held to mean the May then current. Fosdick v. Perrysburg, 14 Ohio N. S. 472. 
 Where a statute by its terms was not to go into effect until a certain day, and yet 
 provided for an election at an earlier day, such provision for the election was held 
 to be a nullity. People v. Johnson, 6 Cal. 673. If a revision is not to go into effect 
 at once, the clause of repeal in it does not take effect until the revision does. Mc- 
 Arthur v. Franklin, 16 Ohio, N. S. 193. And a repealing clause, though in tha 
 present tense, does not operate until the act itself does. Lyner v. State, 8 Ind. 490. 
 The Constitution of Indiana provides : " No act shall take effect until the same shall 
 nave been published and circulated, etc., except in case of emergency, which einer- 
 
C8 TIME WHEN STATUTES TAKE EFFECT. 
 
 This maxim has, however, no more than the laws themselves, 
 any extra-territorial application; for the doctrine 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- 
 hibita and mala per se, to which I have already referred, and 
 also with the general limitation that it is to apply rather to 
 civil than to criminal law.* 
 
 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 amend- 
 ment supplied by the last ; therefore, goods exported before a 
 second law passed, but only skipped before the first, of which 
 the second was an amendment, was enacted, were held liable 
 
 * Curtis \. Leavitt, 17 Barb. 312, 317 ; and Merchants' Bank v. Spalding, Court of Ap- 
 peals ; cited in the same. 
 
 gency shall be declared in the preamble or in the body of the law." A clause in a 
 statute that it should go into effect on a day certain, was held not to amount to the 
 requisite declaration of emergency by implication. Hendrickson v. Hendrickson, 7 Ind. 
 13. Where the Constitution provided that acts should not go into effect until sixty 
 days after the end of the session, without the express direction of the Legislature, it 
 was held not a sufficiently express direction that the act required an election to be 
 held before that time, and the provision for the election was held to be void. Super- 
 visors v. Keady, 84 HI. 293. But where, by the Constitution, the going into effect of 
 statutes was postponed " unless otherwise provided," it was held that the fact that 
 statutes of the same session, in pari materia, alluded to a statute as in force, was suffi- 
 cient to give it immediate effect. Swann v. Buck, 40 Miss. 268. And where, by a gen- 
 eral statute, it was declared that no act should take effect until sixty days after its 
 passage, unless so expressed, it was held that the intent to have the law take effect 
 earlier might be implied. Standeford v. Wingate, 2 Duv. (Ky.) 440. Though there 
 be a general statute fixing the time at which acts are to go into effect, the Legis- 
 lature has full power over the subject, and may provide that any particular act shall 
 go into effect at once. New Orleans v. Holmes, 13 La. Ann. 502. " Forty days from 
 its passage," means forty days from the signature by the governor, or passage over 
 his veto, or expiration of time for its return, if neither signed nor vetoed. Logan 
 v. State, 3 Heisk. (Tenn.) 442. 
 
CONTRACTS IN VIOLATION OF STATUFES. 69 
 
 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 conquered 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 con- 
 quered, 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 government of those to whom their country is 
 ceded, and was not applicable to the condition 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 con- 
 tracts growing out of or based upon the infringement of a 
 statute to be void, the courts refusing to aid either party in 
 enforcing them. This is the general course of the decisions in 
 England, and in this country. $ So, where 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 therefor, f So, where con- 
 tracts are made on Sunday, in violation of the laws forbidding 
 labor and business on that day.^f Nor is it necessary that the 
 
 * Att.-General v. Pougett, 2 Price, 381 ; 2 Ohio, 489; Omit v. Commonwealth, 21 Penn. 
 
 Dwarris, 547. 426 ; and other cases on the Sunday acts. 
 
 j- State v. Buchanan, 5 Harris and J.R. 3 IT. In Ohio, where the Constitution declares 
 
 \ Steers v. Lashley, 6 T. R. 61 ; Aubert v. the indefeasible right of all men to worship 
 
 Maze, 2 B. & P. 371 ; Cannan v. Bryce, 3 B. God according to the dictates of their con- 
 
 & Aid. 179; Brown v. Duncan, 10 B. & Ores, science; that no human authority can inter- 
 
 93; Armstrong v. Toler, 11 Wheat. 258; Ex fere with the rights of conscience; that no 
 
 parte Dyster, in re Moline, 1 Meriv. 155 ; man shall be compelled to attend or support 
 
 Bloom v. Richards, 22 Ohio, 388. any mode of worship without his consent ; 
 
 I Boutwell v. Foster, 24 Vermt. 485 ; Ban- that no preference shall be given by law to 
 croft v. Dumas, 21 Verm. 456 ; Barton v. Port any religious society ; and prohibits all re- 
 Jackson and U. F. Plank Road Co. 17 Barb, ligious tests, it has been expressly decided, 
 397 ; Nellis v. Clark, 4 Hill, 424 ; Hook v. that neither Christianity, nor any other sys- 
 Gray, 6 Barb. 398 ; s. o. 4 Corast. 449 ; Pen- tern of religion, is a part of the law of the 
 nington v. Townsend, 7 Wend. 276 ; Tylee v. State, and that the statute prohibiting labor 
 Tates, 3 Barb. S. C. R. 222. on the Sabbatu is a mere municipal or police 
 
 T Fennell v. Ridler, 5 B. & C. 406 ; Smith regulation ; Bloom v. Richards, 22 Ohio, 887. 
 
 v. Sparrow, 4 Bing. 84 ; Towle v. Larrabee, In Pennsylvania and South Carolina, also, the 
 
 26 Maine, 464 ; Lovejoy v. Whipple, 18 Verm. Sunday laws seem to have been sustained on 
 
 379; Pattee v. Greely, 13 Met. 284; O'Don- the same ground; Specht v. The Common- 
 
 nellv. Sweeney, 5 Ala. 467; Adams v.Hamell, wealth, 8 Barr, 312; The City Council of 
 
 2 Doug. Mich. 11. 73 ; Bloom v. Richards, 22 Charleston v. Benjamin, 2 Strob. Law R. 508. 
 
 Ohio, 388; overruling, Sellers v. Dugan, 18 The language of the Sunday laws varies in the 
 
70 CONTRACTS IX VIOLATION OF STATUTES. 
 
 contract should violate the express words of a law, for agree- 
 ments contrary to the policy of statutes are equally void ; so, 
 an agreement to pay a creditor a sum of money if he will 
 withdraw his opposition to an insolvent's discharge, is void, as 
 contrary to the policy of the insolvent act.* Nor does it make 
 any difference whether the law is a general one, or merely of 
 local or municipal application. So, where the amended charter 
 of the city of New York provided " that no member of either 
 board of the common council should, during the period for 
 which he was elected, be directly or indirectly interested in 
 any contract, the expenses or consideration whereof are to be 
 paid under any ordinance of the common council," it was held 
 that a note growing out of a purchase for supplying the city 
 alms-house with coal, under a contract in which a member of 
 the city government was interested, given for the share of 
 profits accruing to such member, was void, and could not be 
 enforced either by the party himself or his assignee, f So an 
 agreement to construct a roof, in the city of New York, of a 
 kind prohibited by a statute entitled " an act to amend an act 
 for the more eifectual prevention of fires " in that city, is void, 
 and the contract price cannot be recovered. 
 
 So, on the same principle, in New York, where an act for 
 the enlargement of the canals of that State (July 10, 1851) 
 was declared unconstitutional and void ; contracts under the 
 act were also held to be void. | It has also been decided that 
 the transfer of such a contract did not constitute a good con- 
 sideration for a promise to pay money ; and the circumstance 
 that the purchasers stipulated to take the risk as to the valid- 
 ity of the act of the Legislature, while the question was pend- 
 ing in the courts, and of the contract, does not vary the law of 
 the case. 1 ]" The pension acts of the United States, generally, 
 
 different States. In New York, the statute, vertisement in a newspaper published on Stin- 
 
 in addition to the prohibition of certain sports day is equally void; Smith v. Wilcox, 19 Bar- 
 
 and the sale of goods (with certain exceptions), bour. 581. 
 
 declares that " there be no servile laboring or * Nerot v. Wallace, 3 T. R. 17 ; Murray v. 
 working on that day, excepting works of neces- Reeves, 8 B. & C. 421 ; Hall v. Dyson, 17 Ad. 
 sity and charity." [R. S. part i, chap, xx, tit. 8, & Ell. N. S. 785. 
 art. 8, vol. i, p. 676.] Under this statute it has f Bell v. Quin, 2 Sandf. 146. 
 been he'd that an attorney's clerk could not j Beruan v. Tugnot, 5 Sandf. 154. 
 recover for work in the office of his employer, || Newell v. The People, 3 Selden, 9 ; Rod- 
 done on Sunday; Watts v. Van Ness, 1 Hill, man v. Munson, 13 Barb. 63. 
 76 ; and that an agreement to insert an ad- ^f Sherman v. Barnard, 19 Barb. 291. 
 
CONTRACTS IN VIOLATION OF STATUTES. 71 
 
 provide that the pay allowed by them shall not be in any way 
 transferable, but shall accrue wholly to the personal benefit of 
 the soldier entitled to the same. This is the provision of the 
 act of June, 1832, and any agreement for such transfer, in any 
 way whatever, would be void. But it has been held, that an 
 agreement with a pensioner entitled to an addition to his pen- 
 sion, under the act above referred to, to prosecute the claim for 
 the augmentation, and in consideration to receive one-third of 
 the addition obtained, would be valid.* 
 
 We have also to notice the rule, that if a statute inflict a 
 penalty for doing an act, the penalty implies a prohibition, and 
 the thing is unlawful, though there be no prohibitory words in 
 the statute. So, where a statute inflicts a penalty on a simo- 
 niacal or usurious contract ; this, ipso facto, makes the contract 
 void, f This has been said to be subject to the general excep. 
 tion, that where a license is necessary to carry on a particular 
 trade for the sole purpose of raising revenue, and the statute 
 only inflicts a penalty by way of securing payment of the 
 license money, a sale without a license would be valid.J But 
 if the statute looks beyond the question of revenue, and has 
 in view the protection of the public health or morals, or the 
 prevention of fraud, then, though there be nothing but a 
 penalty, a contract which infringes the statute cannot be sup- 
 ported. 1 So, where an excise law does not, in terms, prohibit 
 the sale of strong liquors without a license, nor declare the act 
 illegal, but only inflicts a penalty upon the offender, a contract 
 for the sale of such liquors is void.^[ 
 
 It follows, from these general considerations, that when a 
 party seeks to enforce in the courts of one State a contract 
 which, by its laws, is forbidden and void, he must aver and 
 prove that it was made in a State where, by law, it was author- 
 ized and valid. So, where in a suit brought in New York to 
 recover prize money drawn by tickets owned by the plaintiff 
 
 * Jenkins v. Hooker, 19 Barb. 435. Smith, 1 Bin. 110; Springfield Bank v. Mer- 
 
 f Bartlett v. Viner, Skin. 322; Carthew, rick, 14 Mass. 322; Leidenbender v. Charles, 
 
 351. 4 Serg. <fe Rawle, 159 ; Hallet v. Noonar, 14 
 
 J Johnson v. Hudson, 11 East, 180 ; Brown J. R. 273 ; Griffith v. Wells, and cases there 
 
 v. Duncan, 10 Barn. & Cres. 93. cited, 3 Denio, 226. 
 
 | De Begnis v. Armistead, 10 Bing. 107; T Griffith v. Wells, 3 Denio, 226. 
 
 Cope v. Rowland, 2 M. & W. 149 ; Mitchell v. 
 
72 CONTRACTS IN VIOLATION OF STATUTES. 
 
 in a lottery drawn in Maryland, and alleged to be authorized 
 by that State, the complaint did not show where the tickets 
 were sold or purchased, it -was held, on demurrer, that the 
 plaintiff showed no cause of action in New York, where lot- 
 teries are absolutely forbidden by law. Gardiner, J., said, 
 " The plaintiff is bound to show, on the face of his complaint, 
 that his title was acquired in a jurisdiction where gambling is 
 authorized by law." * 
 
 A grave question has arisen upon this branch of our sub- 
 ject, and distinctions have been sought to be drawn between 
 contracts violating acts relating to mere police regulations or 
 the revenue, and those contrived to defeat the operation of 
 laws intended to declare general principles. In England ; how- 
 ever, these distinctions appear no longer to exist ; and, in a 
 recent case, Baron Parke said, " Notwithstanding some dicta 
 apparently to the contrary, if the contract be rendered illegal, 
 it can make no difference in point of law whether the statute 
 which makes it so has in view the protection of the revenue, 
 or any other object." f This would result in a simple and 
 uniform rule, making void all contracts growing out of acts 
 forbidden by law, and barring all actions upon them ; but the 
 Supreme Court of the United States has said " that whatever 
 may be the structure of the statute in regard to the prohibition 
 and penalty, or penalty alone, it is not to be taken for granted 
 that the Legislature meant that contracts in contravention of it 
 are void, in the sense that they are not to be enforced in a 
 court of justice; that the statute must be examined as a whole, 
 to find out whether or not the makers meant that a contract in 
 contravention of it was to be void, so as not to be enforced in 
 a court of justice ; " and applying this rule of construction to 
 the case of a note given for slaves exported into Mississippi, in 
 violation of the statute of that State regarding the importation 
 of slaves, they held that an action would lie. I cannot but 
 think that this decision introduces a distinction altogether too 
 nice and refined to be susceptible of practical application. 
 
 * Thatcher v. Morris, 1 Kern. 437. But moral, and the morality of which certainly 
 
 why should not the objection go further ? does not depend on its locality. 
 "Why should our courts sit to enforce a con- f Cope v. Rowland, 2 Mees. & W. 157. 
 
 tract which the State utterly prohibits as 5m- \ Harris v. Runnels, 12 Howard, 79. 
 
CONTRACTS IN VIOLATION OF STATUTES. 73 
 
 It does not, however, follow that when an act is forbidden 
 by statute, everything done in contravention of the act is to 
 be considered void. This would lead to results of too serious 
 a character. So, in regard to marriage, where a statute im- 
 poses a penalty on an officer for solemnizing the union, but 
 does not in words declare the marriage void, as in Massachu- 
 setts, in regard to persons above the age of consent, but below 
 certain other periods of life ; the marriage is valid, and the 
 penalty only attaches to the officer who performs the act ex- 
 pressly prohibited.* 
 
 It must be further borne in mind, that the invalidity of 
 contracts made in violation of statutes, is subject to the 
 equitable exception that, although a corporation, in making a 
 contract, acts in disagreement with its charter, where it is a 
 simple question of capacity or authority to contract, arising 
 either on a question of regularity of organization or of power 
 conferred by the charter, a party who has had the benefit of 
 the agreement cannot be permitted, in an action founded on it, 
 to question its validity. It would be in the highest degree 
 inequitable and unjust, to permit the defendant to repudiate 
 a contract the fruits of which he retains.-)- And the principle 
 of this exception has been extended to other cases. So, a 
 person who has borrowed money of a savings institution upon 
 his promissory note, secured by a pledge of bank stock, is not 
 entitled to an injunction to prevent the prosecution of the 
 note, upon the ground that the savings bank was prohibited 
 by its charter from making loans of that description. J 
 
 The deference paid to the statute law is expressed in the 
 rule, that where an instrument contravenes a rule of common 
 law, the invalidity is confined to the particular clause; but 
 where an instrument contains a clause or provision in contra- 
 vention of a statute, it renders the whole instrument in valid. | 
 
 7 11 
 
 A bond, executed in pursuance of a compulsory statute, must 
 
 * King v. Birmingham, 8 B. <fe C. 29; Potter v. Bank of Ithaca, 5 Hill, 490; Suy- 
 
 Milford v. Worcester, 7 Mass. 48 ; Parton v. dam v. Morris Canal and Banking Co. 5 Hill, 
 
 Hervey, 1 Gray, 119. 491; Sackett'a Harbor Bank v. Lewis Co. 
 
 f Palmer v. Lawrence, 3 Sand. S. C. 162 ; Bank, 11 Barb. 213. 
 
 Steam Navigation Co. T. Weed, IT Barb. 378 ; J Mott v. U. S. Trust Co 19 Barb. 568. 
 
 Chester Glass Co. v. Dewey, 16 Mass. 94; J Nicholson v. Leavitt, 4 Sandf. 252. 
 
 M'Cutcheon v. Steamboat Co. 13 Penn. R. 13 ; 
 
74 REMEDIES FOR THE VIOLATION OF STATUTES. 
 
 be precisely in accordance with it ; and if it contains provisions 
 not warranted by the statute, it is void.* 
 
 Statutes are not to be evaded, any more than they are to be 
 disobeyed. So, where a law fixes peremptorily the period of 
 taking an appeal from a judgment, the court cannot, by setting 
 aside the judgment and directing it to be entered anew of a 
 later date, effect the object of extending the time to appeal, f 
 
 Of Remedies for the Violation of Statutes. The general 
 rule of the English law is, that where a man has a temporal loss 
 or damage by the wrong of another, he may have an action on 
 the case to be repaired in damages. J This principle is carried 
 out and applied to statutes by an old English enactment, which 
 gives a remedy, by action on the case, to all who are aggrieved 
 by the neglect of any duty created by law.) And the general 
 rule, that in every case where a statute enacts or prohibits a 
 thing for the benefit of a person, he shall have a remedy upon 
 the same statute for the thing enacted for his advantage, or for 
 the recompense of a wrong done to him contrary to the law in 
 question, is declared by the text-writers of our jurisprudence.*! 
 If a new right is created by statute, and no remedy prescribed 
 for the party aggrieved by the violation of such right, the court, 
 upon the principle of a liberal or comprehensive interpretation 
 of the statute, will presume that it was the intention of the Leg- 
 islature to give the party aggrieved a remedy by a common-law 
 action for the violation of his statutory right ; and he will be 
 permitted to recover in an appropriate action founded upon the 
 statute.** As a general rule, it may be assumed that wherever 
 a power is given by statute, everything necessary to make it 
 effectual, or requisite to attain the end, is implied ; ff and that 
 where the law requires a thing to be done, it authorizes the 
 
 * People v. Mitchell, 4 Sandf. 466; Peo- \ 1 Stat. 13 Edw. I, c. 60, A. D. 1285. So 
 
 pie v. Meighan, 1 Hill, 298; in tins case, the says Lord Campbell, C. J. in Couch v. Steel, 
 
 bond was void by express provision of the 3 Ellis <fe Blackburn, Q. B. 402 and stq. ; but 
 
 statute ; and generally, I suppose, if a bond I should think the provision only applied to 
 
 given uuder a statute contains provisions the acts of that particular parliament, 
 
 which the statute does not contemplate, the " Omnia prcedicta statuta." See 2d Ins*. 486. 
 instrument is void only for the excess. Arm- ^[ Com. Dig. Action upon Statute, F. ; 
 
 strong v. The United States, 1 Peters, C. C. Dudley v. Mayhew, 3 Comstock, 9. 
 U. S. p. 46; Van Deusen v. Hayward, IV ** 2 Coke's Inst. 74, 118; Bacon's Abr. 16 ; 
 
 Wend. 67. Clark T. Brown, 18 Wend. 213, 220 ; Smith v. 
 
 f Bank of Monroe v. Widner, 11 Paige, Drew, 5 Mass. 514. 
 529; Humphrey v. Chamberlain, 1 Kern. 274. ff 1 Kent Com. 464. 
 
 J Com. Dig. Action upon the Case, A. 
 
REMEDIES FOR THE VIOLATION OF STATUTES. 75 
 
 performance of whatever may be necessary for executing its 
 commands.* So, where a statute authorized a sheriff to sell the 
 right and interest of a pledger on execution against him, but 
 did not confer any authority on him to seize or take into his 
 possession the property in the hands of the pledgee, it was held 
 that he had it ex necessitate, as another statutory provision de- 
 clared that no personal property should be exposed for sale by a 
 sheriff unless the same were produced at the time.f Quamlo lex 
 aliquid concedit, conceded videtur et id per quod devenitur ad illud. 
 Questions often arise as to the election of remedies for the 
 violation of statutes. Where a right originally exists at com- 
 mon law, and a statute is passed giving a new remedy without 
 any negative, express or implied, upon the old common law, 
 the party has his election either to sue at common law, or to 
 proceed upon the statute. The statutory remedy is merely 
 cumulative. So against a witness who neglects to attend in 
 obedience to a subpoana, the injured party may have either an 
 action on the case for damages, or an action on the statute for 
 the penalty. I This old English rule has been repeatedly recog- 
 nized and declared in this country. ^[ So, the statutory remedy 
 by distress, against beasts doing damage, does not take away 
 the common-law action of trespass.** So, giving a superadded 
 penalty for the eviction or continuance of a nuisance does not 
 prevent the common-law right of the public to have it indicted 
 and removed, nor does it prevent its being abated in the usual 
 way by individuals.ft So, a clause in a railroad act, author- 
 izing the directors to exact a forfeiture of the stock and previous 
 payment, as a penalty for non-payment of instalments, does not, 
 before any forfeiture has been declared, impair the remedy of 
 the directors to enforce payment by action at common law on 
 the implied promise. The statute remedy of forfeiture is 
 affirmative, and contains no words excluding the common-law 
 relief: in such case it is well settled that both remedies 
 
 * Foliatnb's Case, 5 Coke, 115. ** Golden v. Eldred, 15 J. R. 220 ; see 
 
 f Stief v. Hart, 1 Corns. 20; decided, also, Clark v. Brown, 18 Wend. 213, 220; 
 
 however, by a divided court. * Stafford v. Ingersoll, 3 Hill, 39. 
 
 \ Comyn's Digest, Action on Statute, C. f f Renwick v. Morris, 3 Hill, 621, and 
 
 j Pearson v. Isles, 2 Douglas, 556. s. c. in error, 7 Hill, 575. 
 
 \ Almy v. Harris, 5 J. R. 175 ; Smith v. tt Northern Railroad Co. v. Miller, 10 
 
 Drew, 5 Mass, 514. Barb. 260 ; Clark v. Brown, 18 Wend. 220; 
 
76 REMEDIES FOR THE VIOLATION OF STATUTES. 
 
 But, on the other hand, where by a statute a new offence 
 is created, and a penalty is given for it, or a new right is given 
 and specific relief given for the violation of such right, the 
 punishment or remedy is confined to that given by the statute.* 
 " Where a new right," says the Supreme Court of New York, 
 " or the means of acquiring it, is conferred, and an adequate 
 remedy for its invasion is given by the same statute, parties 
 injured are confined to the statutory redress." f Sometimes, 
 however, doubts will arise as to whetfter the statute does or 
 does not intend to take away the common-law remedy ; and 
 the answer will depend on the subject-matter. So, where the 
 charter of a turnpike corporation provided that any person 
 guilty of certain injuries to the road, as breaking down gates 
 or digging up earth, should forfeit and pay a fine of fifty dol- 
 lars, it was held that this provision was not intended to take 
 away any common-law remedies for such injury or obstruction, 
 upon the ground that the penalty fixed by the charter was, in 
 many cases that might occur, wholly inadequate to indemnify 
 the company. J Where a statute does not vest a right in a 
 person, but merely 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 where a right of property is vested 
 in consequence of the statute, it may be vindicated by the 
 common-law remedy of action, unless the statute expressly con- 
 fines the remedy to the penalty. So in Massachusetts, where a 
 party was sued for obstructing the passage of fish up a river, it 
 was objected that the franchise of the plaintiff in the fishing 
 was created by a statute, and that as the same statute imposed 
 a penalty for the infringement, the plaintiff's remedy was con- 
 fined to the penalty; but the objection was considered bad, 
 and it was held that the plaintiff was at liberty to sue at com- 
 
 Colden v. Eldred, 15 J. R. 220; Troy and the subscriber is not personally liable, and 
 
 Boston Railroad Co. v. Tibbitts, 18 Barbour, the remedy is limited to the forfeiture. Fort 
 
 297. As to the remedies for non-payment of Miller and Fort Edward Plank Road Co. v. 
 
 stock, it would seem that if the act of incor- Payne, 17 Barb. 567, and cases there cited. 
 
 poration, or any public statute, declares that * City of Boston v. Shaw, 1 Met. 130 ; 
 
 the subscriber to the stock shall pay the calls Crosby v. Bennett, 7 Met. 17. 
 
 made thereon, or if he actually agree to do f Smith v. Lockvvood, 13 Barb. 209 ; 
 
 so, he is liable, and the remedy of forfeiture Dudley v. Mayhew, 3 Corns. 9. 
 
 for non-payment is merely cumulative. But \ Salem Turnpike & C. B. Co. v. Hayes, 
 
 where there is a right of forfeiture given, and 6 Cushing, 458. 
 
 no duty imposed to pay, and no promise, then 
 
REMEDIES FOR THE VIOLATION OF STATUTES. 77 
 
 mon law for the injury done to his franchise.* Nor is the com- 
 mon-law right to maintain an action in respect of a special 
 damage resulting from the breach of a public duty, whether 
 such duty exists at common law or is created by statute, taken 
 away by reason of a penalty recoverable by a common informer 
 being annexed as a punishment for the non-performance of the 
 public duty. So, where a statute f makes it a duty of a ship- 
 owner to keep on board his vessel a proper supply of medicines, 
 and imposes a penalty recoverable by a common informer as 
 the specific punishment for the breach of that duty as to the 
 public, sailors sustaining a private injury from the breach of 
 the statutable duty, are entitled to maintain an action to 
 recover damages. ; 
 
 But if the performance of a new duty created by act of Par- 
 liament, is enforced by a penalty recoverable by the party ag- 
 grieved by the non-performance, then there is no other remedy 
 than that given by the act, either for the public or private 
 wrong. So too, if there is no private damage ; then if a statute 
 points out a particular mode of procedure, it must be pursued. 
 So it has been decided in regard to the recovery of a highway 
 rate and a land tax.[ It is to be observed in general, that the 
 infraction of a public prohibitory statute, even if passed chiefly 
 for the protection of a particular class, does not confer any in- 
 dividual right unless the party alleging himself to be aggrieved, 
 has sustained a special damage peculiar to himself. *f As to 
 criminal legislation, it may be remarked, that where a statute 
 prohibits an act to be done under a certain penalty, though no 
 mention is made of indictment, the party- offending may be in- 
 dicted and fined to the amount of the penalty; but where it is 
 merely provided that if any person do a certain act he shall for- 
 feit a sum to be recovered by action of debt, no indictment can 
 be supported.** If a statute enjoin an act to be done, without 
 pointing out any mode of punishment, an indictment will lie 
 
 * Smith v. Drew, 5 Mass. 514; Almy v. Bridges, 1 B. and Ad. 847; see also, Stevens 
 
 Harris, 5 J. R. 175. v. Jeacocke, 11 Q. B. 731. 
 
 f 7 and 8 Viet. c. 112. a. 18. Tf Butler v. Kent, 19 J. R. 223 ; Lansing 
 
 \ Couch v. Steel, 3 Ellis and Blackburn, v. Smith, 8 Cowen, 146; Smith v. Lockwood, 
 
 Q. B. 402 ; Rowning v. Goodchild, 2 W. Bl. 13 Barb. 209. 
 
 906. ** Chitty's Criminal Law, i, p. 162; Cro. 
 
 || Underbill v. Ellicombe, M'Clel. and Y. Eliz. 635, 2 Inst. 131. 
 450 ; Doe dem. the Bishop of Rochester v. 
 
78 STATUTORY FORFEITURES. 
 
 for disobeying .the injunction of the Legislature.* The Revised 
 Statutes of New York,f declare in conformity with these rules 
 of the common law, that where the performance of an act is 
 prohibited by any statute, and no penalty for the violation of 
 such statute is imposed either in the same section containing 
 such prohibition, or in any other section or statute, the doing 
 such act shall be deemed a misdemeanor. 
 
 Statutory Forfeitures. Property is often forfeited by illegal 
 acts. This sometimes results from the rules of the common law, 
 and sometimes from the provisions of statutes. But there is a 
 marked difference in the two cases. A forfeiture at common 
 law does not operate to change the property until some legal 
 step has been taken by the Government for the assertion of its 
 rights ; but where a forfeiture is given by statute, the rules of 
 the common law are dispensed with, and the thing forfeited 
 may either vest immediately or upon the performance of some 
 future act, according to the will of the Legislature; and if no 
 future time or future act is pointed out, then where, by the 
 words of a statute, a forfeiture is attached to the commission of 
 an offence, its immediate operation is to divest wholly the title 
 of the owner, so as to deprive him of the right of maintaining 
 any action or defence to which, as owner, he would otherwise 
 be entitled. So, where the English navigation act had been 
 violated, it was held that the property was forfeited though 
 there had been no previous condemnation.! So, where an act 
 of the Congress of the United States, declaring that whenever 
 certain articles " should be imported into the United States after 
 the 20th day of May next, all such articles shall be forfeited to 
 the U. S. ; " it was held that an absolute and instantaneous for- 
 feiture was created by the mere act of importation, that no 
 seizure \vas necessary to vest the title in the Government, and 
 that even a lona fide purchaser acquired no title.^f So, again, 
 where a statute in New York, in relation to lotteries, provided 
 that " all property offered for sale, distribution, or disposition 
 
 * Rexv. Davis, Say. 163. ^ U. States v. 1,960 bags of coffee, 8 
 
 f 1'nrtiv. chap, i, title 7, vol. ii, p. 696. Cranch, 398, overruling Mr. Justice Story's 
 
 \ Bennett v. Am. Art. Union, 5 Sandford, decision in the Mars, 1 Gallison, 192 ; Fon- 
 
 614. 6H6; U. S v. Grundy, 3 Cranch, 337. taine v. Phoenix Ins. Co. 11 J. R. 293; Ken- 
 
 || Wilkins v. Despard, 5 T. R. 112 ; Rob- nedy v. Strong, 14 J. R. 128. 
 
 ertsv. Wetherall, Salk. 223 ; s. c., 12 Mod. 92. 
 
SEVERAL PENALTIES. 79 
 
 against the provisions of law, shall be forfeited to the people of 
 the State," it was held that the mere offer for sale worked an 
 immediate change and transfer of the title.* 
 
 Several Penalties. Where a penalty is imposed upon the 
 commission of an act, and the act is committed by several 
 persons, the question sometimes arises whether only one penalty 
 can be recovered against all, or whether the whole amount of 
 the statutory forfeiture can be demanded against each of the 
 offenders. And the rule is, that where the offence is in its 
 nature single, and cannot be severed, there the penalty shall be 
 single ; because, though several persons join in committing it, 
 it still constitutes but one offence. So, if a distress is wrongfully 
 impounded, though several may co-operate, it is but one act of 
 impounding. So, under the English game laws, killing a hare 
 is but one offence, whether one or twenty kill it. So again, if 
 partridges are netted by night, though two, three, or more may 
 draw the net, still it is but one offence ; and in these cases there 
 can be but one penalty against all the parties found guilty.f 
 So too, in this country, with regard to the removal of property 
 liable to rent from off demised premises, before the remedy of 
 distress for rent was abolished, it has been held to be but one 
 act, and to subject all parties concerned to but one penalty .J 
 
 But on the other hand, where the statute relates to an 
 offence in its nature several, as, for instance, to the resistance of 
 process, the acts of each are to be severally regarded, and the 
 penalty to be imposed on each. One may resist, another mo- 
 lest, another run away with goods ; one may break the offend- 
 er's arm, another put out his eye ; all these are distinct acts, 
 and the offence of each is complete in its nature. Therefore, 
 each person is liable to a penalty for his own separate offence. | 
 
 Good faith no excuse for violation of /Statutes. We have al- 
 ready had occasion to notice the rule, that ignorance of the law 
 cannot be set up in defence. All are bound to know the law ; 
 and this holds good as well in regard to common as to statute 
 
 * Bennett v. Am. Art Union, 5 Sandf. Palmer v. Conly, 4 Denio, 375 ; Conley v. 
 
 614. Palmer, 2 Corns. 182. 
 
 f Partridge v. Naylor, Cro. Eliz. 480; || Rex v. Clark, Cowp. 610; Palmer v. 
 
 8. c. F. Moore, 453. Conly, 4 Denio,. 375 ; Cunley v. Palmer, 2 
 
 $ Warren v. Doolittle, 5 Cowen, 678; Corns. 182. 
 
80 GOOD FAITH NO EXCUSE. 
 
 law, as well in regard to criminal as to civil cases. In regard 
 even to penal laws, it is strictly true that ignorance is no excuse 
 for the violation of a statute.* So in regard to frequent at- 
 tempts which have been made to exonerate individuals charged 
 with disobedience to penal laws, on the ground of good faith or 
 error of judgment ; it has been held that no excuse of this kind 
 will avail against the peremptory words of a statute imposing 
 a penalty. If the prohibited act has been done, the penalty 
 must be paid. So in England, in debt, for a penalty under the 
 game laws, for shooting without license, it was urged that the 
 defendant acted in good faith, and relied on a license which 
 proved insufficient ; but it was held that acting bona fide was 
 no excuse, f So, where an act directed town supervisors to 
 raise certain sums of money for the erection of public buildings, 
 and declared that if they neglected or refused, each supervisor 
 should forfeit the sum of $250, it was argued that the super- 
 visors had a discretion, and that it must be shown that they 
 abused this discretion or exercised it corruptly ; but the act was 
 declared to be imperative, and the supervisors to be liable. 
 So where supervisors were by law directed to audit and allow 
 the accounts of certain judicial officers, and in case of neglect or 
 refusal were subjected to a penalty of $250 ; a mayor of a city, 
 acting as supervisor, refused to audit an account of this class ; 
 and, in his defence, it was urged that he was not liable unless 
 his intention in not auditing the account was corrupt ; and that, 
 in fact, he honestly believed the officers, whose account had 
 been offered for audit, had been unconstitutionally appointed ; 
 but it was held to be no excuse. " The offence," said Mr. Sena- 
 tor Lott, in delivering the judgment of the Court of Errors, 
 " consists in the refusal to perform the duty required by law, 
 and not in the intent or motive by which the supervisors are 
 actuated." | So, a justice of the peace was held liable for a 
 misdemeanor, as for a wilful neglect of duty, in refusing to take 
 
 * Smith v. Brown, 1 Wend. 231 ; Caswell officers in question had been appointed, had 
 
 v. Allen, 7 J. R. 63. been settled by the court of last resort (Pur- 
 
 f Calcraft v. Gibbs, 5 T. R.-19. dy v. The People, 4 Hill, 384), and that this 
 
 Caswell v. Allen, *7 J. R. 63. was a conclusive defence; but Mr. Senator 
 
 | Morris v. The People. 3 Denio, pp. 381 Lott held that neither the supervisors nor the 
 
 and 402. It was contended that the unconsti- court in that suit, to which the officers were 
 
 tutionality of the act under which the judicial not parties, could determine the point. 
 
RELIEF AGAINST PUBLIC OFFICERS. 81 
 
 an affidavit in a cause before him, though he acted in good faith 
 in his refusal. The court said, " The justice knew what was 
 asked of him, and he knew what he refused. There was 
 nothing like surprise, inadvertence, or even apprehension on his 
 part. He refused to administer the oath, and he intended to 
 refuse. This is a wilful violation of duty." * 
 
 Statutes with Hegard to Infants. Where a statute obliges 
 an infant to indemnify the city, town, or county against the ex- 
 penses of supporting his illegitimate child, and makes it neces- 
 sary for him to enter into a bond with sureties for the purpose, 
 as the only means by which he can obtain a discharge from 
 arrest, that provision, without further words, gives the infant a 
 legal capacity to make a binding obligation, and his infancy is 
 no defence to an action on the bond.f " Whenever," says Mr. 
 Justice Story, " any disability created by the common law is- 
 removed by the enactment of a statute, the competency of the 
 infant to do all acts within the purview of such statute, is as 
 complete as that of a person of full age. And whenever a stat- 
 ute has authorized a contract for the public service, which, from 
 its nature and objects, is manifestly intended to be performed 
 by infants, such a contract must in point of law be deemed to 
 be for their benefit and for the public benefit, so that when 
 bona fide made it is neither void nor voidable, but is strictly 
 obligatory upon them." J 
 
 Relief against Acts of Public Officers created by Statute. 
 Questions often arise as to the remedy against persons exercising 
 a statutory authority for erroneous exercise of power, as, for in- 
 stance, in regard to the assessment and collection of taxes ; and the 
 general principle seems to be that where the officer acquires juris- 
 diction, then an error of judgment does not render him liable to 
 suit ; but if he undertakes to act in cases over which he has no 
 jurisdiction, he commits a trespass, and an action lies. So, where a 
 statute authorized the trustees of a school district to vote and 
 levy a tax " upon the resident inhabitants of the district," and 
 a warrant was issued to collect the tax of parties who were act- 
 ually non-residents, it was held that no jurisdiction had been 
 
 * People v. Brooks, 1 Denio, 457. \ United States v. Bainbridge, 1 Mason, 
 
 f The People v. Moores, 4 Denio, 518; 71. 
 see, alao, Winslow v. Anderson, 4 Mass. 376. 
 6 
 
82 BELIEF AGAINST PUBLIC OFFICERS. 
 
 acquired, and that an action would lie against the parties acting 
 under the tax- warrant.* So again, on the other hand, where 
 an action was brought against a tax collector for levying a tax 
 on a theater which had been erroneously assessed as a dwelling- 
 house, it was held that the assessors were clothed with power 
 to assess the property according to the class to which, in their 
 judgment, it belonged ; that they had jurisdiction of the subject, 
 and that though they might have erred, still no action would 
 lie against parties acting under their authority, f This distinc- 
 tion is in analogy to the rule founded on public policy, which 
 has been long and well settled, that a judicial officer is pro- 
 tected whenever he has jurisdiction and a case is presented call- 
 ing for his decision, no matter how great the error of judgment 
 which he commits, no matter how gross the malice with which 
 he is charged. J 
 
 Indeed, even in cases where public officers exceed their 
 authority, there is manifested a disposition by the courts not 
 to interfere, and where their discretionary authority is appealed 
 to, they often refuse. So where writs of certiorari have been 
 applied for to bring up the proceedings of town and county 
 officers in regard to the assessment or imposition of taxes, the 
 courts have declined to grant them. The writ of certiorari, at 
 common law, lies to officers exercising judicial powers, and to 
 bring up proceedings of that character; but the allowance of 
 the writ is discretionary, and on grounds of public policy and 
 convenience, in cases of this kind it is generally denied. 1 So 
 too, in this country, an indisposition is manifested in regard to 
 officers clothed with statutory powers for the prosecution of 
 great public works, to interfere with them by the preventive 
 power of injunction, unless a very strong case for interference 
 is made out. Thus, where a canal company were authorized to 
 
 * Suydam v. Keys, 13 J. R. 444. lin, 8 Cowen, 178; Horton v. Auchmoody, 7 
 
 f Henderson v. Brown, 1 Caines, 92. See, Wend. 200; Easton v. Calendar, 11 Wend. 
 
 also, Prosser v. Secor, 5 Barb. 607 ; and Vail 90 ; Harman v. Brotherson, 1 Denio, 537 ; 
 
 v. Owen, 19 Barb. 22, which leave the ques- Weaver v. Devendorf, 3 Denio, 117, and cases 
 
 tion as to the power of assessors in New York, cited ; Stanton v. Schell, 3 Sandf. 8. C. R. 
 
 in doubt. See, also, as to power of assessors, 323; Landt v. Hilts, 19 Barb. 283. 
 
 Weaver v. Devendorf, 3 Denio, 117. | The People v. Supervisors of Alleghany, 
 
 J Mills v. Collett, 6 Bing. 85; Brittain v. 15 Wend. 198; The People v. Supervisors of 
 
 Kinnaird, 1 Brod. <fe Bing. 432; Dicas v. Queens, 1 Hill, 195; Weaver v. Devendorf, 
 
 Lord Brougham, 6 C. <fc P. 249; Doswell v. 3 Denio, 117. 
 
 Iinpey, 1 B. <fe C. 163 ; Cunningham v. Buck- 
 
LIMITATION OF ACTIONS. 83 
 
 make and maintain a canal of " suitable " width, and they 
 undertook to enlarge it, and a mill-owner applied for an injunc- 
 tion against the making of a dam, it was refused.* 
 
 No Relief in Equity against a Statute. While speaking of 
 the remedies for the violation of a statute, we may briefly refer 
 to the relief which has been sought in equity from the opera- 
 tion of the positive terms of a statute. The limits of this work 
 will not permit me to define the boundaries nor describe the 
 attributes of the two great branches of equity and common 
 law. But it is familiar learning, that from a very early period 
 in English jurisprudence, the courts of equity, proceeding 
 according to the course of the civil law, undertook to enlarge 
 the remedies and modify the rigor of the common-law tribunals. 
 Seeking to act on this idea, attempts have been repeatedly 
 made to obtain the protection which courts of chancery give in 
 cases of attempted fraud, and to induce those tribunals to 
 relieve against express statutory provisions, upon an allegation 
 that they were inequitably or immorally set up. But these 
 efforts have been generally discountenanced ; and the rule is, 
 that equity will give no relief against a statute. " There can 
 be no relief in equity," said Lord Eldon, " if the act has posi- 
 tively said so. On the other hand, if that is not expressly 
 declared, nor the relief clearly excluded by the policy of the 
 act, the equitable jurisdiction upon fraud exists." f 
 
 Limitation of Actions on Statutes. We have thus far 
 spoken of the various remedies for the infringement or violation 
 of statutory rights and duties. We have now to consider a 
 restriction upon these remedies, consisting in the limitation of 
 the time within which actions of this class must be brought. 
 At common law and it is among those of its attributes which 
 considerably deduct from the extravagant demands upon our 
 respect and admiration that its devotees have made at com- 
 mon law, it would appear that lapse of time in no case formed 
 any bar to the prosecution of a right. A rule so fatal as this 
 to the peace and repose of society could not long withstand the 
 progress of civilization. But it seems that the first statutory 
 
 * Bruce v. President of Del. and Hudson f Mestader v.. Gillespie, 11 Ves. 621, 627. 
 Canal Co. 19 Barb. 371, 
 
84 LIMITATION OF ACTIONS. 
 
 limitations of actions date no farther back than the period of 
 Henry VIII.* In the reign of that monarch, a statute of this 
 description was passed, but it was only of limited application ; 
 and it was not until the reign of James I f that a general act 
 of this nature was introduced into the legislation of England. 
 The details of this statute have been since materially modified ; 
 but it asserted the principle of limitation in its broadest terms, 
 and has formed the basis of the analogous legislation of this 
 country. The rule, as now universally adopted, applies as well 
 to actions founded on statutes as to all other suits. The period 
 of limitation, however, depends on the laws of each jurisdiction, 
 and into these questions of local enactment I do not propose to 
 enter. I -shall only briefly refer to some questions of more 
 immediate interest connected with this part of my subject. 
 
 The old English maxim is, nullum tempus occurrit regi j and 
 the rule founded upon it is, that the king is not bound by any 
 statute of limitations, unless there be an express provision to 
 that effect. This rule also applies to the Government of the 
 United States,J which is in nowise affected by the statutes of 
 limitation of the various States | (though in consulting the 
 State laws on the subject, the federal tribunals accept the con- 
 struction which the State courts have put on them) ^[ ; and also 
 to the States themselves, except where the doctrine has been 
 abrogated by statute.** 
 
 This rule has been defended on the assertion of the policy of 
 preserving the public rights, resources and property from 
 injury and loss by the negligence of public officers. But the 
 doctrine rather appears traceable to the old feudal deference for 
 power and prerogative ; and if statutes of limitations are to be 
 considered as statutes of repose, and as such favorably regarded, 
 there seems little reason why the Government should be ex- 
 cepted from their operation, or why a power so abundantly 
 able to protect itselfj should be armed with the formidable 
 weapon of a perpetual claim. 
 
 * Dwarris, vol. ii, p. 805 and 815; 32 ^[ Harpendingv. Dutch Church, 16 Peters, 
 
 Hen. VIII, c. 2; 4 Bl. Com. 431. 455. 
 
 f Dwarris, vol. ii, p. 831 ; 21 Jac. I, c. 16. ** Inhabitants of Stonghton v. Baker, 4 
 
 \ United States v. Hoar, 2 Mason, 311. Mass. 522; Weatherhead v. Bledsce, 2 Over- 
 
 f Swearingen v. United States, 11 Gill & ton (Tenn.) R. 352; People v. Gilbert, 18 J. 
 
 J. 873. R. 227. 
 
LIMITATION OF ACTIONS. 85 
 
 The justness of these observations is confirmed by the prac- 
 tice of some of the States, which, with a wise and liberal policy, 
 have consented to put the Government, in this respect, on an 
 equality with the citizen. So, the statutes of New York have 
 limited the rights of the people of that State, as well in regard 
 to penalties and forfeitures as with regard to claims for real 
 estate; and in regard to actions other than for the recovery of 
 real property, have declared generally that the limitations pre- 
 scribed by the statute " shall apply to actions brought in the 
 name of the people of the State, or for their benefit, in the same 
 manner as to actions by private parties." * 
 
 The statutes of the State of New York were revised in 
 1830. At that time, the period of limitation barring suits for 
 land by the State, was forty years ; but the re visors reduced it 
 to twenty years. This, however, has been held to have no retro- 
 active effect where the statute began to run under the former law, 
 although twenty years have elapsed since 1830; as the Revised 
 Statutes declared that its provisions in this respect should not 
 apply to any actions commenced, nor to any cases where the 
 right of action shall have accrued or the right of entry shall 
 exist, before the time it took effect, f 
 
 By the New York Code of Procedure, 92, it is provided 
 that an action upon a statute for a penalty or forfeiture, where 
 the action is given to the party aggrieved, or to such party and 
 the people of this State, must be brought within three years, 
 except where the statute imposing it prescribes a different limi- 
 tation. J Under the analogous provision in the Revised Statutes || 
 of the same State, it was held that a suit against a stockholder 
 of a corporation, to charge him individually with a debt con- 
 tracted by it pursuant to a provision in the act of incorporation, 
 
 * Code of Procedure, part ii, title 2, 75, Revisers' note ; Wilcox qui tarn v. Fitch, 20 
 
 96, 98. Johnson R. 472 ; Freeland v. M'Cullough, 1 
 
 f 2 R. S. 300, 45 ; Champlain & St. Demo, 414. 
 
 Lawrence Railroad Co. v. Valentine, 19 Barb. | " All actions upon any statute made or 
 
 484, and cases there cited. to be made fW any forfeiture or cause, the 
 
 \ This provision as to "such party and benefit and suit whereof is limited to the 
 
 the people," relates to qui tarn actions brought party aggrieved, or to such party and the 
 
 by an informer, and was first introduced into people of this State, shall be commenced 
 
 the statutes of New York at the time of the within three years after the offence commit - 
 
 revision of 1830. Before that, it was held ted or the cause of action accrued, and not 
 
 that there was no statute of limitation to ac- after." 2 R. S. 298, 31, Part iii, c. iv. 
 
 tions of this class. 2 R. S. Part iii, c. iv, Title 2, Art. 3. 
 Title 2, Article 3, 31, voL ii, p. 298, and 
 
86 WAIVER OF STATUTES. 
 
 is not within the section ; and it was intimated, if not decided, 
 that this short statute of limitation is intended only to embrace 
 penalties and forfeitures properly so called, and other causes of 
 action penal in their nature, and where both the cause of action 
 and the remedy are given by statute, but does not extend to 
 cases where the action is partly given by common law and 
 partly by statute.* 
 
 We may here take notice of the fact that statutes of limita- 
 tions belong to a class of legislative enactments, embracing the 
 laws passed for the prevention of usury, and some others, on 
 which the judiciary have generally looked with disfavor. 
 Where they are regularly insisted upon, of course full effect is 
 given to their provisions ; but when it becomes necessary, as in 
 case of laches, to apply to the court for leave to set them up, 
 permission has often been refused, on the ground that they are 
 statutes of which it is inequitable, if not immoral, to seek the 
 protection. We shall have to consider this subject again , 
 when we come to speak of the boundaries of legislative and 
 judicial power ; but I may here express the opinion, that, how- 
 ever desirous an honest and intelligent judiciary must ever be 
 to repress all attempts at fraud, and to use their powers vigor- 
 ously for that purpose, still, they should ever remember, that 
 they hold in our system a position subordinate to the Legisla- 
 ture; that their duty is to give full effect to the legislative 
 will ; and that any effort by them to throw discredit on statu- 
 tory provisions as unjust or inexpedient, is but to arrogate to 
 themselves a censorship over the law-making power, which our 
 Constitutions have nowhere intrusted to them. All laws 
 emanate from the same supreme power ; and while they remain 
 on the statute book, all laws are entitled to equal respect and 
 obedience. 
 
 Waiver of Statutory Provisions. It often becomes an in- 
 teresting question how far a statute can be overreached by 
 private compact or stipulation ; how far its requisitions may be 
 waived by private consent, express or implied. The general 
 rule is, that no contract or agreement can modify a law : jus 
 
 * Corning v. M'Cullough, 1 Corns. 47. overruling Van Hook v. Whitlcck, 2 Edw. 304 ; 
 This case must, I suppose, be considered as s. c. 7 Paige, 373 ; s. c. again, 26 Wend. 43. 
 
WAIVER OF STATUTES. 87 
 
 publicum privatorum pactis mutari non potest* Privatorum 
 conventio yuri publico non derogat.\ So it is well settled that 
 not even the most formal and solemn consent can give jurisdic- 
 tion to a court not authorized to take it. And whenever the 
 objection is raised, although it may be a breach of faith and 
 good morals to insist upon it, still it will be fatal. J 
 
 To this rule, however, there is a large class of exceptions 
 expressed by the maxim, Modus et conventio vincunt legem. 
 These are cases where the party is held at liberty to waive 
 statutory provisions, which, if insisted on, would enure to his 
 benefit ; and generally it is true that where no principle of 
 public policy is violated, parties are at liberty to forego the 
 protection of the law. The maxim here applies as to private 
 acts consensus tollit errorem. So, in Massachusetts, as to the 
 statutory requisition in actions against absent defendants, of a 
 continuance of suit from term to term, till notice is given as 
 the court may order ; but to have this effect, however, jurisdic- 
 tion must first have been obtained. | So, in general terms, it 
 has been said in New York, " A party may always waive a 
 right in his favor, created by statute, the same as any other." ^f 
 And the principle was applied in regard to a statute requiring 
 railway corporations to fence in their tract ; it being held that 
 an adjacent landowner might waive his right resulting from 
 the statute, as it was passed for his benefit and protection. So, 
 on the same principle, if statutory requisitions in regard to 
 process are disregarded, which would render all subsequent 
 proceedings fatally defective ; still, if the party waive the ob- 
 jection, by appearing and contesting the suit on the merits, a 
 valid judgment may be rendered.** But the waiver can only 
 be made by the party in interest. So, a mere occupant of 
 lands sold for taxes cannot waive the provisions of law in- 
 tended for the benefit of the owner.ff The right of waiver 
 is subject, as I have said, to the general control of public 
 
 * L. 38, ff. de Pact. ; see also, 1. 20, ff. de || Morrisor v. Underwood, 6 Gushing, 52. 
 
 Religiosis. \ Tombs v. Rochester and Syracuse R. Co. 
 
 f L. 45, 1, ff. de Reg. Jur. ; Domat. Liv. 18 Barb. 583 ; see also Buel v. Trustees of 
 
 Prel. tit. i, 2. Lockport. 3 Corns. 197. 
 
 \ Coffin v. Tracy, 3 Caines' Rep. 1 29 ; ** Seymour v. Judd, 2 Corns. 464. 
 
 Davis v. Packard, 7 Peters, 276 ; Dudley v. \\ Jackson v. Esty, 7 Wend. 148 
 Mayhew, 3 Coins. 9 ; Oakley v. Aspinwall, 3 
 Corns. 548 ; Low v. Rice, 8 J. R, 409. 
 
88 PLEADING. 
 
 policy ; whenever the object of the statute is to promote great 
 public interests, liberty, or morals, it cannot be defeated by 
 any private stipulation. So, where the directors of a corpora- 
 tion were prohibited from being concerned, directly or in- 
 directly, in any contract on the road of the corporation, it was 
 held that a contract made in violation of this provision was 
 void; and it was intimated that neither the directors nor 
 stockholders could waive the prohibition.* 
 
 The general rule holds good, as well in regard to Constitu- 
 tions as to statutes. A party may waive a constitutional as 
 well as a statutory provision made for his benefit, (a) So it 
 has been repeatedly decided that a party may waive the right 
 to a trial by jury, although that mode of proceeding be guar- 
 anteed to him by the Constitution.f So, if a private road be 
 laid out in an unconstitutional manner, if the owner consent, 
 the proceeding will be held valid. J It is on this same doc- 
 trine of waiver that it has been frequently held, that the acts 
 of a public officer exceeding his legal authority, may be 
 adopted by the party for whose benefit the illegal act is done. 
 So, where a sheriff had arrested a defendant on a ca. sa., and 
 discharged the debtor on receiving his promissory note ; though 
 the act of the sheriff was illegal, and the note void in his hands, 
 it was held that the plaintiff might affirm the sheriff's act, and 
 claim the note. J 
 
 Pleading in Actions founded on /Statutes. The heads of 
 
 * Barton v. Port Jackson and Union Falla 7 Howard Pr. R. 41 ; Embury v. Conner, 3 
 
 Plank-road Co. 11 Barb. 397. Corns. 611, 518. 
 
 f Lee v. Tillotson, 24 "Wend. 337 ; The || Armstrong v. Garrow, 6 Cowen, 465 ; 
 
 People v. Murray, 5 Hill, 468. Pilkington v. Green, 2 B. & P. 151 ; Farmers' 
 
 \ Baker v. Braman, 6 Hill, 47 ; see also Loan and Trust Co. v. Walworth, 1 Corns. 
 
 Keater v. Ulster and Delaware Plank-road Co. 433. 
 
 (a) A party may waive his right to object to the constitutionality of a statute, 
 e. g. where he takes advantage of a statutory remedy, in preference to the common- 
 law remedy, he cannot complain of the incidents of that remedy. Kolston v. 
 Oursler, 12 Ohio (N. 8.), 105 ; and see Vose v. Cockroft, 44 N. Y. 415 ; Phyfe v. 
 Einer, 45 N. Y. 102. And waiver is to be presumed on part of those who do not 
 object. Hingham &c. Co. v. Norfolk, 6 Allen, 353. A corporation cannot object to 
 constitutionality of statute, as to ex parte proceedings against such corporation 
 passed before its incorporation. Philadelphia v. Commonwealth, 52 Penn. St. 451. 
 Parties who procure enactment of, ratify, acquiesce in, or receive benefits under, a 
 local statute, waive objection to its constitutionality. Ferguson v. Landram, 5 Bush. 
 (Ky.) 230. 
 
PLEADING. 89 
 
 pleading and evidence, in regard to statutes, are so fully dis- 
 cussed in various familiar treatises, that I shall here only refer 
 to them, and give a brief outline of the general rules relating 
 to this part of my subject.* 
 
 At common law, under the technical system of forms of 
 action, the remedy in civil suits brought upon statutes was 
 by assumpsit, debt, or case.f Although a statute is, at com- 
 mon law, in some points of view considered and treated as a 
 specialty, yet assumpsit would lie for money accruing to the 
 plaintiff under its provisions, if he were not, by the statute 
 itself, restricted to any particular remedy. J Debt was also, at 
 common law, frequently the proper remedy on statutes, in 
 actions brought either at the suit of the party grieved or a 
 common informer. And if a statute prohibits the doing an 
 act under a penalty or a forfeiture to be paid to a party 
 grieved, and do not prescribe any particular mode of recovery, 
 it might be recovered in this form of action. Where a penal 
 statute expressly gives the whole or a part of a penalty to a 
 common informer, and enabled him generally to sue for the 
 same, debt might be sustained ; and he need not declare qui 
 tarn, unless where a penalty is given for a contempt ; but if 
 there be no express provision enabling an informer to sue, 
 debt could not be supported in his name for the recovery of 
 the penalty.| ^- n ac *ion on the case is frequently given by 
 the express provision of a statute, to a party grieved. When- 
 ever a statute prohibits an injury to an individual, or enacts 
 that he shall recover a penalty or damages for such injury, 
 though the statute be silent as to the form of the remedy, this 
 action (in some instances also the action of debt) may be 
 supported. Thus, an action on the case may be supported by 
 implication, and if a statute gives a remedy in the affirmative 
 without a negative, express or implied, for a matter which was 
 actionable at common law, the party may sue at common law 
 as well as upon the statute. ^f But, in some instances, the 
 statute, in conferring a new right creating a liability, prescribes 
 
 * Archbold's Criminal Pleadings ; Chitty's i Chitty, i, 120, <fec. and cases cited. 
 
 Pleadings; Chitty on Criminal Law; Green- || Chitty, i, p. 127. 
 
 leaf on Evidence. T[ Chitty on Pleadings, i, p. 163. 
 
 f Chitty on Pleading, i, 120, 127, 163. 
 
00 PLEADING. 
 
 
 
 a particular remedy ; and in that case the remedy pointed out, 
 and no other, can be pursued. We have stated above that a 
 common informer cannot sue unless an action be expressly 
 given him.* 
 
 These technical and nice distinctions are, however, now 
 rapidly ceasing to be of interest, except as matter of legal his- 
 tory. The great changes recently effected in this country and 
 in England, have laid the ax to the root of the old fabric of 
 the common law as far as its procedure is concerned ;f and 
 wherever the modern and simple mode of pleading has been 
 adopted, actions on statutes are to be brought, no doubt, as in 
 other instances, by a concise statement of the facts on which 
 the alleged claim is sought to be maintained. 
 
 How far, in actions at law upon statutes brought under the 
 new system to enforce civil rights and remedies, it will be nec- 
 essary that the declaration or complaint refer to the statute, 
 does not yet appear to be fully settled. Probably, as we have 
 already seen,J a public statute need not be set out, or even re- 
 ferred to, in the declaration ; but must be set up, if relied on, 
 by way of defence. | As we have seen, it is not necessary, at 
 
 * Chitty, i, p. 164. a private statute, or a right derived there- 
 
 f Two acts 15 and 16 Viet. c. 76, and from, it shall be sufficient to refer to such 
 
 17 and 18 Viet. c. 125 commonly known as statute by its title, and the day of its passage, 
 
 the Common Law Procedure Acts of 1852 and the court shall thereupon take judicial 
 
 and 1854 and the new rules of Hilary Term, notice thereof." As to complaints on penal 
 
 1853, have wrought such extensive changes lawa, see Morehouse v. Crilley, 8 How. Pr. B. 
 
 in the English procedure, that I hesitate to p. 431. 
 
 speak with confidence of any subject to which The New York Code of Procedure is, as I 
 they relate. I have examined them with understand from my learned friend, D. D. 
 some care, but I can find nothing directly on Field, Esq., one of the Commissioners who 
 the subject of pleading in actions on statutes, prepared it, substantially adopted in the fol- 
 except rule 21, authorizing reference in cer- lowing States of the Union: Ohio, Indiana, 
 tain pleas to statutes by date, chapter, and Kentucky, Missouri, California, Minnesota, 
 section. lix, xci, and schedule B, of the and Oregon ; and in Iowa, Texas, and Missis- 
 act of 1852, give the new forms, or rather sippi, systems very similar have been intro- 
 precedents for declaration. They entirely duced. Massachusetts, by her act of 23d 
 abolish all the old forms of action; but I find May, 1851, c. 233, reduced personal actions 
 no precedent for declaring on a statute. to three assumpsit, covenant, and debt and 
 The New York Code of Procedure has no all actions of tort to one class, excepting re- 
 particular provision as to how actions are to plevin, which was retained. See Sedgwick 
 be brought on public statutes. It simply de- on Damages, 2d ed. p. 43 in note, for an ab- 
 clares that, in all cases, " the complaint shall stract of the act. It is very plain that what 
 contain the title of the cause, specifying the is left of the old common-law system of 
 name of the court, the name of the county pleading, cannot long survive. Its forms 
 where trial to be had, and the names of the still subsist, however, in some of the federal 
 parties ; then is to follow a plain and concise tribunals, which would, perhaps, be wise to 
 statement of the facts constituting the cause of imitate so many precedents of demolition. 
 action, without unnecessary repetition, and a . Ante, p. 26. 
 
 demand of the relief sought against the de- | Lewin v. Stewart et al. 10 Howard Pr. 
 
 fendant." Code, tit. vi, 142. As to private R. 509. 
 statutes, it declares, 163, " That in pleading 
 
PLEADING. 91 
 
 common law, in pleading, to state any matter which the court 
 is bound to know ; and so it is unnecessary to state matter of 
 common or public statute law.* So, in an action on a statutory 
 security, as a replevin bond, it is not necessary to aver in terms 
 that the bond was taken in pursuance of the statute, f But in 
 New York, in criminal prosecutions for offences created by 
 statute, it has been declared, under the old system, that a refer- 
 ence to the statute is necessary, in order to inform the defend- 
 ant distinctly of the nature of the offence ; and so in penal 
 actions founded on a statute.^ 
 
 Great, indeed, as are the changes which have been wrought, 
 both in England and the United States, by legislation on this 
 subject, it is still important to bear in mind the old rules, as 
 they will no doubt more or less affect, and in some cases may 
 control, the application of the new system. An indictment for 
 an offence against a statute must, by the ancient rules of plead- 
 ing, with precision and certainty charge the defendant to have 
 committed or omitted the acts, under the circumstances and 
 with the intent mentioned in the statute ; and if any one of 
 these ingredients be omitted, the defendant may demur and 
 move in arrest of judgment, or bring a writ of error. The de- 
 fect will not be aided by verdict, nor be cured by the formal 
 conclusion that the defendant's acts are contra formam statuti.\ 
 So in New York, it has been said, that " An indictment on a 
 statute must state all such facts and circumstances as constitute 
 the statute offence, so as to bring the party indicted precisely 
 within the provisions of the statute. If the statute is confined 
 to certain classes of persons, or to acts done at some particular 
 time or place, the indictment must show that the party indicted, 
 and the time and place where the alleged criminal acts were 
 perpetrated, were such as to bring the supposed offence directly 
 
 * Stephens on Pleading, 351-2-3 ; Chitty of the legislator, to recite the statutes on 
 on Bills, 578, Am. ed. of 1836. which it is founded; for the judges are bound, 
 f Shaw v. Tobias, 3 Corns. 188. ex officio, to take notice of all public acts of 
 \ Shaw v. Tobias, 3 Corns. 188. In crim- Parliament, and where there are more than 
 inal cases, Mr. Chitty gives, as the common- one, by which the proceedings can be main- 
 law rule, that the parts of a private act on tained, they will refer to that which is most 
 which an indictment is framed must be set for the public advantage. Chitty's Criminal 
 out specially ; but that there is no necessity, Law, vol. I, p. 276. 
 
 in any indictment or information on a public || Archbold's Criminal Pleading ; Indict- 
 
 statute, whether the offence be evil in its own ment, p. 51, and cases cited, 
 nature, or only becomes so by the prohibition 
 
92 PLEADING. 
 
 within the statute. Thus, an indictment under the statute 
 against embezzlement by clerics and servants, is bad if it allege 
 that the defendant received the money or property as an agent* 
 So, in the same State, where the statute against lotteries pro- 
 hibits any person, unauthorized by special laws, from opening, 
 <fec., any lottery, <fec., for the purpose of exposing, setting to 
 sale, or disposing of any real or personal property, the indict- 
 ment must state that the lottery is set on foot for the purpose 
 of disposing of property ; and if not, it is bad on demurrer, f 
 But where the fact appears from the advertisement set out at 
 large in the indictment, it was held to be sufficient. J 
 
 Mere surplusage in an indictment will not vitiate, and 
 therefore where an indictment alleges facts which constitute a 
 misdemeanor, it will be good for that offense, although it state 
 other facts which go to constitute a felony, but all the facts 
 alleged fall short of the charge of felony, in consequence of 
 some other fact essential to that charge, e. g., the intent of the 
 party accused, not being averred. | 
 
 By the Kevised Statutes of New York, if property was re- 
 ceived contrary to the provisions of any statute, and an action 
 was brought against the offending party, it was declared suffi- 
 cient, without setting forth the special matter, to declare that 
 the property was received or converted, &c., contrary to the 
 provisions of the statute in question, describing it in some brief 
 and general way, as " the statute against betting and gaming ; " 
 and under this act it was held essential that the reference 
 should be made in the declaration ; and in an action of this 
 description a new trial was ordered, on the ground that an 
 objection founded on the omission, was taken and over- 
 ruled.*^ Sometimes an act is continued by a subsequent 
 statute, and then proceedings may be laid to have been 
 taken by the first act ; as " when an act is continued," says 
 Chief Justice Kaymond, "everybody is estopped to say it is 
 not in force." ** 
 
 People v. Allen, 6 Demo, 77 ; 1 Chit. J Charles v. The People, 1 Corns. 180; 
 Crim. Law, 281, et seq. ; Archb. Crim. PI. 50 ; see The People v. Rynders, 12 Wend. 425. 
 3 Chit. Crim. Law, 962 ; Archb. Crim. PI. | Lohman v. The People, 1 Corns. 379. 
 
 275 ; 3 Maule & Sel. 539. J J R. 8. 352, 1, 2, and 3 ; Schroeppell 
 
 f People v. Payne, 3 Denio, 88. v. Corning, 2 Corns. 132. 
 
 ** Rex v. Morgan, 2 Str. 1066. 
 
PROOF OF STATUTES. 93 
 
 We have already seen * that if there be any exception con- 
 tained in the same clause of the act which creates the offence 
 i. e., by way of proviso the indictment must show nega- 
 tively that the defendant, or the subject of the indictment, 
 does not come within the exception. But if the exception or 
 proviso be in a subsequent clause or statute, it is in that case 
 matter of defence, and need not be negatived in pleading, f 
 Where, however, a statute makes a deed or agreement or other 
 act void, unless made upon a specified consideration, or under 
 specified circumstances, the plaintiff must show that the 
 circumstances exist under which alone it can have validity. 
 So in New York, where a statute declares all wagers void, but 
 also declares that this shall not apply to insurances made in 
 good faith for the indemnity of a party insured ; it was held, 
 that it being the intention of the statute to prevent wager 
 policies, a declaration on a policy must contain an averment of 
 interest. The rule at common law is, that in suits on bonds 
 or deeds, all the obligees or covenantees, if alive, must join as 
 plaintiff in bringing the action. But this rule may be altered 
 by statute ; and where an act declared that a bond given for 
 the benefit of attaching creditors might be prosecuted "by 
 them jointly, or by any one of them separately," it was held 
 that a suit might be brought by a single creditor on the bond, 
 in his own name." | 
 
 Proof of Statutes. We have already had occasion to call 
 attention to some of the rules in regard to the proof of stat- 
 utes. T Public statutes require, indeed, no proof;** the courts 
 
 * Ante, p. 50. authority of a public act of the Legislature, 
 f Archbold's Criminal Law, i, p. 53 ; Chit- and the supposed greater notoriety of a mat- 
 ty, Criminal Law, i, p. 284. This last work ter of universal concern, the extreme incon- 
 contains, under the head of Indictments on venience of a contrary rule, and the difficulty 
 Statutes, vol. I, p. 275, a very full discussion and uncertainty of which it would be pro- 
 of this branch of the subject. ductive. 
 
 \ Williams v. Insurance Co. of North "From the extensive destruction of ancient 
 
 America, per Woodruff, J., 9 Howard P. R. documents, particularly in the Barons' wars, 
 
 365. some early acts are entirely lost, while others 
 
 I Pearce v. Hitchcock, 2 Corns. 388 ; over- are only partially and doubtfully preserved, 
 ruling Arnold v. Tallmadge, 19 Wend. 52*7. " A few of "he most important of the early 
 ^f Ante, p. 26 et seq., and p. 55. statutes (those of Merton and Marlbridge, for 
 ** Mr. Dwarris thus states the reason of instance) are not on record, but have been 
 the distinction between public and private found in books and memorials. It is import- 
 acts, as to the proof of them : " The prob- ant that the existence of these acts should not 
 able grounds of the declared difference in the be put on the issue of nul tiel record. 
 judicial notice of statutes, public and private, "Being made within the time of legal 
 may be, besides the solemnity and intrinsic memory, they have authority only, it is im- 
 
94 PROOF OF STATUTES. 
 
 are bound to take notice of them, and are assumed to select 
 the best and most accurate mode of inforrnino- themselves of 
 
 O 
 
 their precise tenor. So, the courts are bound to take notice of 
 the statutes establishing banks and regulating the rates of 
 exchange.* 
 
 Private statutes, on the other hand, must be proved, either 
 by an examined copy or by an exemplification under the great 
 seal. But if a clause is inserted in a private statute that it 
 shall be taken notice of as if it were a public act, the necessity 
 of proving it is dispensed with.f So, a private act may contain 
 clauses of a public nature ; and then the act, so far as those 
 clauses are concerned, is to be regarded as a public act.J Thus, 
 a clause relating to a public highway, occurring in a private in- 
 closure act, has been held provable in the same way as a public 
 act. I In England, the regular proof of private acts of Parlia- 
 ment is by an examined copy, compared with the original in 
 the parliament office at Westminster. ^[ 
 
 These distinctions** only apply to the laws of the State or 
 country to which the courts belong in which the question is 
 raised. As to foreign laws, they have always to be proved as 
 facts. And in this country, where the States are held to be, for 
 all purposes not coming within the scope of the federal Consti- 
 tution, wholly independent of each other, the statutes of the 
 sister States are to be proved as facts ; and no judicial notice 
 can be taken of them, whether they be public or private.f f Nor 
 can they be proved by parol evidence, any more than any other 
 written document, the original or a proved copy of which can 
 be obtained. JJ It is the general practice, however, in this coun- 
 try, to have the laws of each State printed by authority; and 
 
 portant to bear in mind, as statutes; and are 416 ; and "Woodward v. Cotton, 1 C. M. & R. 
 
 not (like statutes passed before that time) a 44, 47. 
 
 part of the common law. Dwarris, vol. ii, pp. 464 and 472. 
 
 " According, however, to the received doc- | Rex v. Utter by, 2 Phil. Ev. p. 127; 
 
 trine, though not found upon the statute roll, Dwarris, vol. ii, p. 472. 
 they are held not to lose their force as stat- ^[ Dwarris, voL ii, p. 466. 
 utes, if any authentic memorials of their be- ** In Biddes v. James, 6 Binney, 321, C. 
 
 ing such are to be found in books, seconded J. Tilghman says, these distinctions as to the 
 
 with a generally received tradition attesting proof of public and private laws, are no 
 
 and approving the same." Dwarris, vol. II, longer satisfactory in the present state of the 
 
 p. 466 ; Hale's Hist. Com. Law, p. 16. world. 
 
 * Bronson v. Wiman, 10 Barb. 406. f f Taylor v. Boardman, 25 Vermont, 581. 
 
 f Beaumont v. Mountain, 10 Bing. 404; \\ Martin v. Payne, 11 Texas, 292. 
 
 see, on this point, Brett v. Beale, 1 M. & M. 
 
REPEAL OF STATUTES. 95 
 
 official publications of this kind will, it seems, be received in 
 the sister States, and treated with the same respect as exempli- 
 fications under seal.* In England also, now, by the statute 41 
 Geo. Ill, c. 90, s. 9, made for the better and more effectual 
 proof of the statute law, it has been enacted that the copies of 
 the statutes of Great Britain and Ireland prior to the union, 
 printed by the printer duly authorized, shall be received as con- 
 clusive of the several statutes in the courts of either kingdom.f 
 
 We may notice, in this connection, an interesting applica- 
 tion of the doctrine of presumptions to the proof of statutes. 
 It has been repeatedly held in England, in cases of long and un- 
 interrupted possession, defective, however, in not showing a 
 regular origin of title, that it might be left to the jury to pre- 
 sume the existence of a statute or royal grant in which the 
 occupancy might be supposed to have taken its commence- 
 ment. J And so in an early case, it was said, " For that the 
 possession had gone otherwise ever since, the court presumed 
 that there had been such an act of Parliament, though not now 
 to be found. So, the court here was ready to recommend it to 
 the jury as a strong presumption." | So again, in a modern 
 case; "There is a great difference," said Lord Mansfield, with 
 his usual felicity of style and clearness of reasoning, " between 
 length of time which operates as a bar to a claim, and that 
 which is used only by way of evidence. * * Length of time 
 used merely by way of evidence, may be left to the jury, to be 
 credited or not, and not to draw their inference one way or the 
 other according to circumstances." ^f 
 
 Repeal. If the repeal of a statute is effected by express and 
 positive words, the only question is the effect of the repeal. 
 But statutes are often held to be constructively repealed, and 
 on this subject many nice and important cases have arisen, (a) 
 
 * Biddes v. James, 6 Binney, 321, where f Dwarris, vol. ii, p. 472. 
 
 C. J. Tilghman says, "I am for admitting the i Best on Presumptions, p. 145. 
 
 printed copies authorized by the Legislature | Viscountess Stafford & Lewellin, Skinn. 
 
 of this or any other State, whether the laws be p. 78. 
 
 public or private." Martin v. Payne, 1 1 Texas, ^[ The Mayor of Hull v. Homer, Cowper, 
 
 292 ; Young v. Bank of Alexandria, 4 Cranch, 102 ; Eldridge v. Knott, Cowper, 215 ; Lopez 
 
 384; Greenleaf on Evidence, 479, et seq. v. Andrew, 3 Man. <fe Ryl. 329. 
 
 (a) fiepeal in Cases of Re-enactment or Amendment. The simple re-enactment of an 
 existing law does not necessarily repeal it. Cordell v. State, 22 Ind. 1. Nor does 
 
96 REPEAL OF STATUTES. 
 
 It is sometimes laid down as a rule, that a statute cannot be 
 repealed by the mere absence of all practice or proceedings 
 under it, or as it is called non user. Est conveniens naturali 
 equitati unumquodque dissolvi eo ligamine quo ligatum est. 
 Nothing short of a statute can repeal a statute.* But we shall 
 hereafter see that custom is of great force in the construction of 
 
 * Dwarris, vol. ii, p. 529 ; White v. Boot, 2 T. R. 274. 
 
 the enactment of a law almost in the same words, there being no conflict. Kesler v. 
 Smith, 66 N. C. 154. See note to " Revision." But a repealing clause takes effect, 
 although uno flatu the old statute is re-enacted verbatim. State v. King, 12 La. Ann. 
 593 (a criminal statute) ; but per contra see Fullerton v. Spring, 3 Wise. 667 (a stat- 
 ute of limitations), and see Rich v. Coffin, 45 Me. 507. 
 
 Where a town was authorized to make a particular by-law, and afterwards the 
 statute was repealed, but simultaneously re-enacted in a revision of the laws, it was 
 held that the Legislature did not intend to repeal the by-law, but that it remained in 
 force. Lisbon v. Clarke, 18 N. H. 234. In another case a repeal absolute in its 
 terms was limited by construction, the court holding that the general purpose of the 
 later statute was to give a new charter, and not to repeal provisions as to criminal 
 courts. Smith v. People, 47 N. T. 330. 
 
 The intent, however awkwardly expressed, governs. Thorpe v. Schooling, 7 
 Nev. 15. Inconsistency between two acts will not repeal the earlier one, if the intent 
 not to do so is expressed in the later statute. People v. Kelly, 7 Robt. 592. 
 
 An amendment of a section so that it " shall hereafter read as follows," repeals 
 such section State v. Andrews, 20 Tex. 230, at least as to all that does not appear 
 in the section as amended. State v. Ingersoll, 17 Wise. 631. A repeal of " section 
 46 " in a certain act, is a repeal of such section as amended by subsequent statutes, 
 although they are not referred to in the repealing act. Blake v. Brackett, 47 Me. 28 ; 
 but it was held otherwise when the section had been amended by an addition, and 
 was repealed without mention of the addition and was re-enacted in the same statute 
 with a slight change, also without mentioning the addition ; the court declared the 
 intention to be that the addition should remain in force. Cramer v. State, 18 Wise. 
 257. 
 
 A specific repeal of one section implies that the whole statute is not repealed. 
 State v. Morrow, 26 Mo. 131; Crosby v. Patch, 18 Cal. 438. A general amendment 
 of a charter was held not to repeal an act relating to the improvement of a particular 
 street. King v. Brooklyn, 42 Barb. 627. The incorporation into the charter of a 
 corporation of certain provisions of a general law imposing liabilities cannot be 
 taken as a repeal of such general law quoad the corporation, or as an exemption from 
 other liabilities imposed by such general law, the charter being expressly made sub- 
 ject to existing general laws. Pratt v. Atlantic, &c. R. R. 42 Me. 579. The giving 
 authority in general terms to commissioners to lay out such streets as they deem 
 necessary within the limits of a certain borough, will not authorize them to run a 
 street through a graveyard, there being a general law forbidding the laying out of a 
 street through any burial ground. Egypt Street, 2 Grant's Gas. (Penn.) 455. An 
 act of Congress upon a subject within its jurisdiction, but upon which there has 
 been State legislation, does not repeal the State statutes, but renders them inopera- 
 tive. Sturgis v. Spofford, 45 N. T. 446. 
 
REPEAL OF STATUTES. , 97 
 
 statutes ; and on the same principle, it seems difficult to deny 
 that long and uniform disuse might amount in some cases to a 
 practical repeal. So, where there had been a constant practice 
 not to file an affidavit under an old statute, the court held the 
 act unnecessary.* The philosophical legislators who in framing 
 the Code Napoleon, raised to their memories an imperishable 
 monument, say, in their preliminary report, " It might be dan- 
 gerous formally to authorize repeal by desuetude or non user. 
 But it is impossible to overlook or underrate the influence and 
 utility of that spontaneous concert of action, that invisible 
 power, by which, without shock or commotion, a people does 
 justice upon bad laws, protects society against hasty or incon- 
 siderate legislation, and in fact guards the legislator against 
 himself."f In Scotland, indeed, it is said that a statute loses 
 its force by desuetude, if it has not been put in force for sixty 
 years. By others, this term has been extended to a century, 
 and a distinction is made between statutes half obsolete and 
 those in vividi observantia.^ 
 
 In the English houses of Parliament, a rule prevails that no 
 bill can be introduced in repeal of or in opposition to any law 
 passed at the same session. And in order to obviate this, it is 
 there the practice to insert in every bill, a clause providing that 
 the act may be amended or repealed at the same session. | No 
 general rule or practice of this kind prevails in this country. 
 But the Constitution of the State of Texas contains this clause : 
 " After a bill or resolution has been rejected by either branch 
 of the Legislature, no bill or resolution containing the same sub- 
 stance, shall be passed into a law during the same session."^]" 
 
 In regard to the mode in which laws may be repealed by 
 subsequent legislation, it is laid down as a rule, that a general 
 statute without negative words, will not repeal the particular 
 provisions of a former one, unless the two acts are irreconcila- 
 
 * Leigh v. Kent, 3 T. R. 362. delibere, de cette puissance invisible, par 
 
 -|- " Les lois conservent leur effet, tant laquelle sans sec insse et sans commotion, les 
 
 Su'eiles ne sont point abrogees par d'autres peuples se font justice des mauvaises lois, et 
 
 iis, ou qu'elles ne 3ont point tombees en de- qui semblent proteger la societe eontre lea 
 
 suetude. Si nous n'avons pas formellement surprises faites au legislateur, et le legislateur 
 
 autorise le mode d'abrogation par la desuetude centre lui meme I " Discoiirs Preliminaire. 
 ou le non usage, c'est qu'il cut peut etre ete 1 Dwarris, p. 529. 
 dangereux de le faire. Mais peut on se dis- | Dwarris, vol. i, p. 269. 
 eimular 1'mfluence et 1'utilits de ce concert *j[ Cons, of Texas, Art. Hi, 22. 
 
 7 
 
98 REPEAL BY IMPLICATION. 
 
 bly inconsistent ; * as, for instance, the statute 5 Elizabeth, c. 
 4, that none shall use a trade without being apprentice, did not 
 take away the previous statute 4 & 5 Philip and Mary, c. 5, 
 declaring that no weaver shall use, <fec. The reason and phi- 
 losophy of the rule is, that when the mind of the legislator has 
 been turned to the details of a subject, and he has acted upon 
 it, a subsequent statute in general terms, or treating the subject 
 in a general manner, and not expressly contradicting the orig- 
 inal act, shall not be considered as intended to affect the more 
 particular or positive previous provisions, unless it is absolutely 
 necessary to give the latter act such a construction, in order 
 that its words shall have any meaning at all. (a) So where an 
 
 * Dwarris on Statutes, 532; 6 Rep. 196; Brown v. County Com., 21 Perm. 37; Ornit v. 
 
 Commonwealth, 21 Penn. 426. 
 
 (a) Repeal by Implication. Such Repeal not Favored, Ordinarily express language 
 is used where a repeal is intended, and a repeal by implication is not favored. Casey 
 v. Harned, 5 Clarke (la.), 1 ; St. Louis v. Ind. Ins. Co. 47 Mo. 146 ; Gillette v. Sharke, 
 7 Nev. 245 ; U. S. v. One Hundred Bbls. of Spirit, 2 Abb. U. S. R. 305 (revenue laws) ; 
 and where the acts are upon different subjects, the rule as to implied repeal applies 
 more forcibly. Rawson v. Rawson, 52 111. 63. When acts can be harmonized by a 
 fair and liberal construction it must be done. Connor v. Southern Express Co. 37 
 Geo. 397; People v. Barr, 44 111. 198; and the same rule applies to sections of the 
 same statute. Wilcox v. State, 3 Heisk. (Tenn.) 110. If possible to reconcile the 
 acts, it will be done. McCool v. Smith, 1 Black, 459; Henderson's Tobacco, 11 Wall. 
 652; The Distilled Spirits, 11 Wall. 356. The implication of repeal must be a neces- 
 sary one. Naylor v. Field, 5 Dutch. 287. If two statutes on the same subject can 
 stand together without destroying the evident intent and meaning of the later one, 
 there will be no repeal. Roberts v. Fahs, 36 111. 268; as where there was an appro- 
 priation of a fund to the redemption of certain bonds, and afterwards an appropria- 
 tion out of the fund for a different purpose, it was held that the latter act referred 
 only to the surplus. State v. Bishop, 41 Mo. 16. 
 
 Generalia Specialibus non derogant. A general affirmative statute does not repeal 
 a prior particular statute, or prior particular provisions of a statute, unless negative 
 words are used, or unless there is such irreconcilable inconsistency as indicates an 
 iptent of the Legislature to repeal. Robbins v. State, 8 Ohio, N. S. 131 (an act pun- 
 ishing killing by administering poisonous drugs to procure abortion, not repealed by 
 statute punishing killing while engaged in any unlawful act). McDonough County 
 v. Campbell, 42 HI. 490 ; Hume v. Gossett, 43 111. 297 ; Luke v. State, 5 Florida, 185. 
 (act in relation to crimes of slaves not repealed by an act in relation to crimes gen- 
 erally). Gate v. State, 3 Sneed. (Tenn.) 120 ; Magruder v. State, 40 Ala. 347 ; State 
 v. Alexander, 14 Rich. Law, 247 ; State v. McDonald, 38 Mo. 529 ; State v. Bishop, 
 41 Mo. 16 ; State v. Macon Co. Court, 41 Mo. 453 ; Ellis v. Batts, 26 Tex. 703 ; State 
 v. Kitty, 12 La. Ann. 805; St. Martins v. New Orleans, 14 La. Ann. 113. See also, 
 as illustrating the same rule that a mere general law does not repeal a special one, 
 London, &c. R. R. v. Limehouse Board of Works, 3 Kay & J. 123 ; Thorpe v. Adams, 
 
REPEAL BY IMPLICATION. 99 
 
 act of Parliament had authorized individuals to inclose and 
 embank portions of the soil under the river Thames, and had 
 
 Law R. 6 C. P. 125 ; Queen v. Champneys, Tb. 884 ; and although there is a saving 
 clause of special acts in other statutes in pari mater ia, and none in the statute in 
 question, this absence of the saving clause does not indicate an intention that these 
 prior special acts should be repealed. Fitzgerald v. Champneys, 2 Johns. & H. 31. 
 
 The following are some instances in which this doctrine has been invoked and 
 applied, or in which it has been held not to apply. A special law giving remedies 
 is not repealed by a general one, Pearce v. Bank of Alabama, 33 Ala. 693 ; nor par- 
 ticular statutes for the relief of individuals, without express words, Beridon v. Bar- 
 bin, 13 La. Ann. 458; nor will a special exemption of particular property from mu- 
 nicipal taxation be atfected by a subsequent general statute giving cities power to 
 tax " all property " within their limits, there being no express repeal, Blain v. Bailey, 
 25 Ind. 165 ; nor was a prior special statute, authorizing a certain town to subscribe 
 in aid of a railroad, and to raise sufficient money by taxation to pay the interest on 
 the bonds issued thereunder, repealed by a general law which limited municipal 
 taxation to pay interest on a public debt to the annual rate of six mills on the dollar 
 of assessed property. Fosdick v. Perrysburg, 14 Ohio, N. S. 472 ; and see Clark v. 
 Davenport, 14 Iowa, 494. A special charter or statute prevails over the general law, 
 Burke v. Jeffries, 20 Iowa, 145 ; Crane v. Reeder, 22 Mich. 322 ; and special pro- 
 visions of a statute over the general ones, Felt v. Felt, 19 Wise. 193; and where two 
 statutes approved on the same day have repugnant provisions, those which are spe- 
 cial must prevail over those which are general. Mead v. Bagnall, 15 Wise. 156. The 
 rule has been laid down in this form ; the repeal of a special statute enacted for a 
 special purpose must either be express, or the manifestation of the legislative intent 
 to repeal must be so clear as to be equivalent to an express direction. Cole v. Super- 
 visors, 11 Iowa, 552. 
 
 When, however, the inconsistency between a private and a general act is such as 
 to show an intent to repeal the former, the private act must yield. Great Central, 
 &c. Co. v. Clarke, 13 C. B. (N. 8.) 838. It is said that general laws control local 
 laws, even though the latter are subsequent, unless a special contrary intent is shown. 
 Commonwealth v. Pointer, 5 Bush. (Ky.) 301. This decision must clearly be re- 
 stricted to "local" laws, technically so called, as contradistinguished from mere 
 special acts or special provisions in acts whose objects are general, and even with 
 such limitation, it seems to be opposed to the ratio decidendi of the other cases cited. 
 A general statute against lotteries is not repealed absolutely, and it seems not quoad 
 the special statute, by an act granting the right to maintain a lottery to particular 
 persons, the Constitution fordidding special legislation; if either statute is to give 
 way, it must be the special one creating the exception. Exparte Smith, 40 Cal. 419. 
 
 A general statute will not be construed as adding other conditions to those 
 already required by a special statute relating to the same subject-matter, unless such 
 intent appears clearly ; in this case the intent was held to appear. Mobile, &c. R. R. 
 v. State, 20 Ala. 573. In another case, where a municipal charter contained a pro- 
 viso that the city credit should not be pledged for over $10,000 without a vote, etc., 
 a subsequent act giving the city power to build a bridge and pledge its credit there- 
 for, without specifying whether a vote should be had or not, was held to be subject 
 to this proviso. Cumberland v. Magruder, 34 Md. 381. But in another case, the 
 Legislature, having by prior statutes given to some towns authority to subscribe in 
 aid of railroads, without power to sell the stock thus subscribed for, and to other 
 
100 REPEAL BY IMPLICATION. 
 
 declared that suet land should be "free from all taxes and 
 assessments whatsoever." The land tax act, subsequently 
 
 towns a like authority with power to sell the stock under certain restrictions, and 
 afterwards having passed a statute authorizing all towns that had subscribed in aid 
 of any railroad to sell their stock, without prescribing any restrictions, it was held 
 that this latter act repealed by implication the limited power of sale given to some 
 towns, and substituted the full power. Comm'rs of Knox Co. v. McComb, 19 Ohio, 
 N. 8. 320, 341. 
 
 When the Last Statute or Section Prevails. Between two inconsistent and irrecon- 
 cilable acts or sections, the last in time or position prevails. Johnson v. Byrd, 1 
 Hemps. 434; Powers v. Barney, 5 Blatch. C. C. 202; Maddox v. Graham, 2 Mete. 
 (Ky.) 56 ; Edgar v. Greer, 8 Clarke (la.) 394 ; although the former is a general law 
 and the latter is a special charter. Tierney v. Dodge, 9 Minn. 166 ; and see Wood v. 
 Wellington, 30 N. Y. 218. Even where the act last approved was passed first, and 
 the act first approved was amendatory of the other, the one last approved was held 
 to control ; thus a code approved February llth provided that it should go into 
 effect June 1st, and an act in express terms amendatory of the code, providing that 
 the latter should go into effect from and after the date of the passage of the amenda- 
 tory act, was approved February 10th, it was held that the code still went into effect 
 June 1st. Elliott v. Lochnane, 1 Kans. 126. If two grants of power by the Legisla- 
 ture are repugnant, the second must control. Korah v. Ottawa, 32 HI. 121. 
 
 Cumulative Remedies. An act which gives cumulative and not inconsistent 
 remedies, and especially one which embraces cases not covered by the former 
 legislation, does not repeal prior statutes upon the same subject-matter. Waldo v. Bell, 
 13 La. Ann. 329 ; Mitchell v. Duncan, 7 Flor. 13 ; Raudebaugh v. Shelley, 6 Ohio, 
 N. S. 307; State v. Berry, 12 Iowa, 58; Wilson v. Shorrick, 21 Iowa, 332. Thus, a 
 penalty given by a building act, was held to be such a cumulative remedy, and not 
 to take away the common-law remedy. Williams v. Golding, Law R. 1 C. P. 69. 
 
 Instances in which there is an Implied Repeal. Where the second act in pari materia 
 embraces all the provisions of the first, and also new provisions, and imposes differ- 
 ent penalties, it repeals the former by implication. United States v. Tynen, 11 Wall. 
 88. If an affirmative statute introduces a new rule, and is plainly intended as a 
 substitute for a former statute, it repeals such former act by implication; but it 
 seems that if instead of a change in a former statute, the question was of a change 
 in the common law, negative words would be necessary, Johnston's Estate, 33 Penn. 
 St. 511 ; that is, a repeal of a statutory rule or provision is more easily implied, than 
 a repeal of a common-law rule. Where a statute revises a whole subject, and is 
 inconsistent with the common law as to that subject, it repeals the common law 
 quoad hoc by implication, but a statute prohibiting slaughter-houses in a city without 
 license does not come within this rule, and does not repeal the common law as to 
 nuisances resulting from such houses. State v. Wilson, 43 N. H. 415. If two statutes 
 relate to the same subject-matter, though not in terms repugnant or inconsistent, if 
 the latter one is plainly intended to prescribe the only rule that shall govern, it will 
 repeal the earlier. Sacramento v. Bird, 15 Cal. 294 ; Swann v. Buck, 40 Miss. 268 ; 
 Weeks v. Walcott, 15 Gray, 54; People v. Syttle, 1 Idaho T. 161. See note to 
 " Revision." 
 
 If statutes provide a different punishment for the same offence, the later will 
 repeal the earlier. Gorman v. Hammond, 28 Geo. 85 ; Mullen v. People, 31 111. 444 ; 
 State v. Horsey, 14 Ind. 185 ; State v. Pierce, II. 302 ; Mitchell v. Brown, 1 E. & E. 
 
REPEAL BY IMPLICATION. 101 
 
 passed, by general words embraced all the land in the king- 
 dom ; and the question came before the King's Bench, whether 
 
 267. The same is true where statutes fix a different salary for the same office, Pier- 
 pont v. Crouch, 10 Cal. 315 ; and also where the earlier statute gave a penalty to a 
 common informer, and the later one gave a penalty of the same amount to the 
 party injured, and indicated an intent to cover the whole subject. Parry v. Croydon, 
 &c. Co. 11 C. B. (K S.) 579. A statute fixing the punishment of fine, and a 
 minimum term of imprisonment is not repealed by an act, which provides that 
 where the accused shows it to be his offence, the court may in its discretion impose 
 the fine without the imprisonment, or vice versa. Dolan v. Thomas, 12 Allen, 421. 
 Where the punishment for larcenies of over $2,000 is changed, that only repeals pro 
 tanto the existing law as to larceny. State v. Grady, 34 Conn. 118. The change of 
 penalty consisting in making two degrees of murder, and in mitigating the punish- 
 ment of the second degree, it was held there was no repeal. Commonwealth v. 
 Gardner, 11 Gray, 438. A statute for punishing an offender in the house of 
 correction, in the county where the offence is committed, is not repealed, it seems, by 
 a statute authorizing his imprisonment in the discretion of the court in the house of 
 correction in any county. Carter v. Burt, 12 Allen, 424. Where the penalty is 
 increased, e. </., where it being imprisonment not exceeding one year, a new statute 
 prescribes imprisonment not less than three months nor more than one year, there is 
 a repeal of the former, Flaherty v. Thomas. 12 Allen, 428 ; but it is held in Alabama, 
 that an increase of penalty works no repeal by implication, but leaves the old 
 offences under the old punishment, Turner v. State, 40 Ala. 21 ; Miles v. State, 40 
 Ala. 39 ; and this construction plainly serves to prevent the new statute from being 
 an ex post facto law as to crimes already committed. 
 
 If the old law is revised and re-enacted with slight variations, there is a repeal, 
 e. g., where the old law required a dog license in the town of the owner's residence 
 under a penalty, and the new law required a license in the town where the dog was 
 kept, but prescribed no penalty. Commonwealth v. Kelliher, 12 Allen, 480. Statutes 
 which grant a right upon different conditions from those prescribed in former 
 statutes are inconsistent therewith, e. <?., where a statute limited the right of appeal 
 to thirty days from the confirmation of the report, and a later statute gave the 
 appeal within thirty days from the filing of the report, there was a repeal. Gwinner 
 v. Lehlgh, &c. R. R. 55 Penn. St. 126. By a certain statute persons living within a 
 mile of a toll-gate were to pay but half toll ; a second statute provided that the 
 first should not apply to persons engaged in transporting goods for others ; a third 
 statute, not mentioning the second, enacted that the first should read so that half 
 toll only should be taken from persons living within one mile of the gate, " except 
 persons residing in a city or incorporated village ; " it was held that the second act 
 remained in force, and that persons engaged in transporting goods for others remained 
 liable for full toll, although not living in a city or incorporated village. 
 Canastota, &c. PI. R. Co. v. Parkhill, 50 Barb. 601. Where a statute gave a right of 
 appeal generally, and a later one gave a right of appeal in cases involving more than 
 $5, the former wae held to be repealed. Curtis v. Gill, 34 Conn. 49. Qucere, is there 
 the " irreconcilable inconsistency " between these two statutes which the well settled 
 rule requires ? The case is a good illustration of the truth, that the uncertainties of 
 judicial construction arise, not from any uncertainty about the rules which should 
 be applied, but from the varying application of them made in a given case. *or to 
 given language in a statute. 
 
102 HEPEAL BY IMPLICATION. 
 
 the land mentioned in the former act had been legally taxed ; 
 and it was held that the tax was illegal. Lord Kenyon said. 
 
 When the same power is given by different statutes to different public bodies, 
 and the power cannot consistently with the object of the legislation be exercised by 
 both, the later statute will prevail. Daw v. Metropolitan Board, 12 C. B. (N. S.) 
 161. A grant of authority to county commissioners to create a debt, and to provide 
 for the payment of the interest thereon, is an enlargement of a power given to lav 
 taxes in order to meet such debt, and is an implied repeal of any prior conflicting 
 statutory restrictions upon the taxing power ; e. g., it authorizes an assessment of 
 more than one per cent, on the valuation, where that per cent, had been fixed as the 
 limit by previous legislation. Commonwealth v. Commissioners of Allegheny, 40 
 Penn. St. 348. A statute authorizing a suit in the name of the assignor by a 
 purchaser of a title, where there was adverse possession, repeals a prohibition of the 
 purchase and transfer of such titles, as it seems. Towle v. Smith, 2 Robt. 489. 
 Where after the repeal of a statute creating the office of city marshal, a law was 
 passed changing the number of jurors which the "marshal" was required to 
 summon in certain cases, it was held that this reference to the office as still existing 
 did not operate to continue it (but the marshal was in fact still in office, for the 
 abolition of the office had not yet taken effect, so that the language of the last statute 
 had something to act upon). People v. Mahaney, 13 Mich. 481. 
 
 The following are cases in which it was held there was no repeal by implication : 
 McAfee v. Southern R. R. 36 Miss. 669 ; Casey v. Harned, 5 Clarke (la.) 1 ; Baker v. 
 Milwaukee, 14 Iowa, 214 ; Mills v. State, 23 Tex. 295 (in which it was said the 
 effect of a repeal would have been to defeat the settled policy of the State) ; State 
 v. Crow, 20 Ark. 209 ; Muscogee R. R. v. Neal, 26 Geo. 120 ; Industrial School, &c. 
 v. Whitehead,2 Beasley, 290; Shinnv. Commonwealth, 3 Grant's Cas. 205; Richards 
 v. Patterson, 30 Miss. 583 ; House v. State, 41 Miss. 737 ; Maple Lake v. Wright Co. 
 12 Minn. 403 ; People v. Gerke, 37 Cal. 228 ; People v. San Francisco R. R. 28 Cal. 
 254 ; Citizens' Bank v. Wright, 6 Ohio, N. S. 318; Buckingham v. Steubenville, &c. 
 R. R. 10 Ohio, N. S. 25; State v. Roosa, 11 Ohio, N. S. 16; Gallup v. Lorain Co. 20 
 Ohio, N. S. 324 ; State ex rel. Olds v. Franklin Co. 20 Ohio, N. S. 421 ; Atty. Gen. 
 v. Brown, 1 Wise. 513 ; Lewis v. Commonwealth, 3 Bush (Ky.) 539 ; Desban v. 
 Pickett, 16 La. Ann. 350. 
 
 The following are cases in which it was held there was a repeal by implication : 
 Peru &c. R. R. v. Bradshaw, 6 Ind. 146 ; Board of Comm'rs v. Potts, 10 Ind. 286 ; 
 State v. Smith, 7 Clarke (la.) 244; Rochester v. Barnes, 26 Barb. 657; People v. 
 New York, 32 Barb. 102; State v. Stoll, 2 Rich. K S. 538; Weiss v. Mauch Chunk, 
 &c. R. R. 58 Penn. St. 295 ; People v. Grippen, 20 Cal. 677 : G. C. Gas Consumers' Co. v. 
 Clarke, 11 C. B. (N. S.) 814 ("where there is an invincible contrariety or re- 
 pugnancy "). 
 
 Extent of the Repeal. The repeal extends only as far as the inconsistency extends 
 Elrod v. Gilliland, 27 Geo. 467 ; and this is so, even though there is an express 
 repeal of " all inconsistent " acts. People v. Durick, 20 Cal. 94. A statute changing 
 the forms of procedure, and expressly repealing " all inconsistent laws " must be 
 construed as leaving the old law in force, as to pending cases, unless its terms are 
 clearly retrospective, Wochlan Township Road, 30 Penn. St. 156 ; Hickory Tree Road, 
 43 Penn. St. 139; and a change in the remedy will not repeal the jurisdiction. 
 Hid'. 
 
 Under a Constitution which forbids local legislation, where general laws can be 
 
REPEAL BY IMPLICATION. 103 
 
 "It cannot be contended that a subsequent act of Parliament 
 will not control the provisions of a prior statute, if it were 
 intended to have that operation ; but there are several cases in 
 the books to show, that where the intention of the Legislature 
 was apparent that the subsequent act should not have such an 
 operation, then, even though the words of such statute, taken 
 strictly and grammatically, would repeal the former act, the 
 courts of law judging for the benefit of the subject, have held 
 
 made applicable, and which provide* that laws not inconsistent with the Con- 
 stitution shall remain in force until repealed, local laws will continue and be operative 
 until general laws are enacted. State v. Barbee, 3 Ind. 258. But see on this subject, 
 the note upon the constitutional provisions in question ; while some courts have 
 treated it as directory, others have regarded it as imperative. And see Allbye v. 
 State, 10 Ohio, N. S. 588, and Cahoon v. Commonwealth, 20 Gratt. 733, for cases in 
 which constitutional provisions were held not to operate as a repeal of inconsistent 
 laws until legislation was had under them. 
 
 The revised ordinances of a town which in terms repeal all ordinances " re- 
 pugnant to the provisions of the aforesaid ordinances," do not repeal an ordinance 
 not included in the revision, but not repugnant thereto. State v. Pollard, 6 R. I. 
 290. A clause in a body of revised statutes, repealing all acts and parts of acts, the 
 subjects of which are revised, etc., or which are repugnant, will be construed to 
 refer to general acts, and not to municipal charters whose provisions may be in- 
 consistent therewith, unless there is an intention manifested to make the general 
 rules of the revision apply to such charters. Walworth Co. v. Whitewater, 17 Wise. 
 193; Janesville v. Markoe, 18 Wise. 350; Stonington, &c. Bank v. Davis, 1 McCar- 
 ter (N. J.) 286. A proviso of a repealed act falls with the act itself. Church v. 
 Stadler, 16 Ind. 463. 
 
 Whether a Legislature can prescribe a Mode of Repeal. A general rule adopted by 
 the Legislature prescribing the forms and modes of future legislation, is repealed pro 
 tanto by an act not complying with such rule. Wall v. State, 23 Ind. 150 ; S'ate v. 
 Oskins, 28 Ind. 364 ; and see also, Brightman v. Kirner, 22 Wise. 54. Where a 
 general turnpike act exempted instruments of husbandry (which, by another statute, 
 included threshing machines) from toll, and declared that its provisions should ex- 
 tend to every turnpike act thereafter to be passed, except as to such " provisions, 
 matters and things as shall be expressly referred to, and varied, allowed, or repealed," 
 and a subsequent local turnpike act imposed a toll on wagons, and the interpreta- 
 tion clause thereof declared that wagons should include threshing machines, it was 
 held that the provisions of the general act were repealed so far as the exemption of 
 such machines on the new turnpike was concerned. Ablert v. Pritchard, 1 Harrison 
 & Rutherford, 274. 
 
 One Legislature cannot bind another to any mode of repeal. Kellogg v. Oshkosh, 
 14 Wise. 623 ; and where a charter enacted that none of its provisions should be 
 considered as " repealed by any general law contravening them, unless such purpose 
 should be expressly set forth in such law," an inconsistent act, without such express 
 statement of the intent, was held a repeal by implication. Ibid, 
 
104 REPEAL BY IMPLICATION. 
 
 that they ought not to receive such a construction." * It has 
 been said that, even if there be negative words in the latter 
 statute, it shall not be considered as a repeal of the former, pro- 
 vided they can both reasonably stand together. So it was held 
 that the statute 1 & 2 Philip and Mary, c. 10, declaring that all 
 trials for treason should 1 be according to the course of the com- 
 mon law, and not otherwise, did not work a repeal of the stat- 
 ute, 35 Henry VIII, c. 2, which authorized trial for treason 
 beyond the sea. f 
 
 But, on the other hand, it is equally well settled that a sub- 
 sequent statute, which is clearly repugnant to a prior one, nec- 
 essarily repeals the former, although it do not do so in terms ; 
 and even if the subsequent statute be not repugnant, in all its 
 provisions, to a prior one, yet if the later statute was clearly 
 intended to prescribe the only rule that should govern in the 
 case provided for, it repeals the original act. Leges posteriores, 
 priores contrarias abrogant.% "If two inconsistent acts be 
 passed at different times, the last," said the Master of the Rolls, 
 " is to be obeyed ; and if obedience cannot be observed without 
 derogating from the first, it is the first which must give way. 
 Every act of Parliament must be considered with reference to 
 the state of the law subsisting when it came into operation, and 
 when it is to be applied ; it cannot otherwise be rationally con- 
 strued. Every act is made, either for the purpose of making a 
 change in the law, or for the purpose of better declaring the 
 law ; and its operation is not to be impeded by the mere fact 
 that it is inconsistent with some previous enactment." | 
 
 It has been repeatedly declared that every statute is, by 
 implication, a repeal of all prior statutes, so far as it is contrary 
 and repugnant thereto, and that without any repealing clause ; 
 and on this principle, when an act prohibited an unlicensed 
 person from selling rum under a penalty of twenty dollars for 
 
 * William v. Pritchard, 4 D. & E. 2 ; Dwar- J The Dean of Ely v. Bliss, 5 Beavan, 
 
 ris, p. 614; Williams v. Williams, 4 Seld. 526; 3*74; Reg. v. Inhabitants of St. Edmunds, 
 
 Lyn v. Wyn, Bridgman's Judgments, 122; Salisbury, 2 Q. B. 72; Brown v. M'Millan, 7 
 
 Darc/s Case, Cro. Eliz. 612; Paget v. Foley, Mees. <fe Wels. 196; Crisp v. Bunbury, 8 Bing. 
 
 2 Bing. N. C. 679; R. v. Pugh, 1 Dougl. 188. 394 ; 11 Rep. 632; Rex v. Lumsdaine, 10 Ad. 
 
 f Forster's Case, 11 Rep. 63. & Ellis, 160; Rex v. Tooley, 3 T. R. 69; 
 
 j Davies v. Fairbairn, 3 How. IT. S. R. Welsford v. Todd, 8 East, 580. 
 636 ; Dexter and Limerick Plank Road Co. v. 
 Allen, 16 Barb. S. C. R. 15. 
 
REPEAL BY IMPLICATION". 105 
 
 each offence, and a subsequent statute prohibited the same act 
 on pain of forfeiting not more than twenty dollars nor less than 
 ten dollars for each offence, the old statute being absolute and 
 imperative, and the other allowing a latitude of discretion, it 
 was declared that they were essentially and substantially incon- 
 sistent, and the former statute was held to be repealed.* So, 
 in general, where a statute imposes a new penalty for an 
 offence, it repeals, by implication, so much of a former statute 
 as established a different penalty. So Lord Mansfield held, 
 that the statute 5 George I, c. 27, inflicting a fine not exceeding 
 100 and three months' imprisonment, for seducing artificers, 
 was repealed by a subsequent act, 23 George II, c. 13, inflicting 
 a penalty of 500 and twelve months' imprisonment for the 
 same offence.f So, on the same principle, a statute is impliedly 
 repealed by a subsequent one, revising the whole subject-mat- 
 ter of the first. J And in the case of a statute revising the 
 common law, the implication is equally strong. So where an 
 act is an offence at common law, and the whole subject is 
 revised by the Legislature, the common law is repealed. | So 
 in Pennsylvania, it has been said that when two statutes are 
 so flatly repugnant that both cannot be executed, and we are 
 obliged to choose between them, the later is always deemed a 
 repeal of the earlier. This rule applies with equal force to a 
 case of absolute and irreconcilable conflict between different 
 sections or parts of the same statute. The last words stand, 
 and others which cannot stand with them go to the ground. ^[ 
 
 But though it is thus clearly settled that statutes may be 
 repealed by implication, and without any express words, still 
 the leaning of the courts is against the doctrine, if it be possible 
 to reconcile the two acts of Legislature together. " It must be 
 known," says Lord Coke, " that forasmuch as acts of Parliament 
 
 * Commonwealth v. Kimball, 21 Pick. ^[ Brown v. County Com. 21 Penn. 37. 
 
 373 ; see Rex v. Cator, 4 Bur. 2026, where But in this case it was also said, that when- 
 
 Lord Mansfield made a similar intimation. ever two acts can be made to stand together, 
 
 f Rex v. Cator, 4 Burr. 2026 ; Rex v. it is the duty of the court to give them full 
 
 Davis, Leach's Cases, 271 ; Nichols v. Squire, effect. And so the act of 10th April, 1834, 
 
 6 Pick. 168. creating the county board of Philadelphia 
 
 \ Bartlett v. King, 12 Mass. E. 637 ; county, was held not to be repealed by the 
 
 Kichols v. Squire, 5 Pick. 168. ' act of 15th April, 1834, relating to counties 
 
 J Commonwealth v. Cooley, 10 Pick. 37 ; and townships. 
 Commonwealth v. Marshall, 11 Pick. 350. 
 
106 REPEAL BY IMPLICATION. 
 
 are established with such gravity, wisdom, and universal con- 
 sent of the whole realm, for the advancement of the common- 
 wealth, they ought not, by any constrained construction out of 
 the general and ambiguous words of a subsequent act, to be 
 abrogated; sed Jiujusmodi statuta tanta solemnitate et prudentia 
 edita (as Fortescue speaks, cap. 18, fol 21) ought to be main- 
 tained and supported with a benign and favorable construc- 
 tion." * So in this country, on the same principle, it has been 
 said that laws are presumed to be passed with deliberation, 
 and with full knowledge of- all existing ones on the same sub- 
 ject ; and it is, therefore, but reasonable to conclude that the 
 Legislature, in passing a statute, did not intend to interfere 
 with or abrogate any prior law relating to the same matter, 
 unless the repugnancy between the two is irreconcilable ; and 
 hence, a repeal by implication is not favored ; on the contrary, 
 courts are bound to uphold the prior law, if the two acts may 
 well subsist together, f So, in Pennsylvania, it has been decided 
 that repeals by implication are not favored ; and it has been 
 declared that one act of Assembly is held to repeal another by 
 implication only in cases of very strong repugnancy or irrecon- 
 cilable inconsistency. J So again in a recent case in New York, 
 it is said that the repeal of a statute by implication is not 
 favored. Unless the latter statute is manifestly inconsistent 
 with and repugnant to the former, both remain in force. 
 Courts are bound to uphold the prior law, if the two may 
 subsist together. [ So, too, in Massachusetts, to annul the prior 
 statute, the latter act must be clearly repugnant to the former, 
 and the implication by repeal will not be favored. Where an 
 act was passed in 1836, prohibiting the sale of " spiritous " 
 liquors, and in 1850 an act was passed professing to amend the 
 prior statute, by inserting the word " intoxicating " in the place 
 of the word "spiritous" it was argued that the act of 1850 
 repealed that of 1836 ; but on the ground that the word 
 "intoxicating" includes a larger class of cases than "spiritous" 
 
 * Dr. Foster's Case, 11 Rep. 63 ; Dyer, J Street v. Commonwealth, 6 W. & S. 
 
 347; King v. The Justices, <fcc. 15 East, 377; 209; Commonwealth v. Easton Bank, 10 
 
 Dwarris, vol. ii, 633. Barr, 442 ; Brown v. County Commis. 21 
 
 j- Bowen v. Lease, 5 Hill, 221 ; Canal Co. Penn. 37. 
 
 v. Railroad Co. 4 Gill & John. 1. [ Williams v. Potter, 2 Barb. S. C. R. 316. 
 
REPEAL BY IMPLICATION. 107 
 
 that all spiritous liquors are intoxicating, but all intoxicating 
 liquors are not spiritous, it was held that they might well 
 stand together.* 
 
 On the very opposite of these general principles, it has been 
 said in England, with that deference for the rights of the crown 
 which we have already had occasion to notice, that clauses 
 which limit in any way the right of the sovereign must be con- 
 sidered as repealed by subsequent statutes, unless expressly 
 re-en acted, f But I believe the principle has never been recog- 
 nized in this country ; nor do I understand why the Govern- 
 ment should be exempted from the operation of general rules 
 of law, or the fair interpretation of language. 
 
 In this country it has been held, that a statute may be 
 repealed by the abrogation of a State Constitution. So the 
 statute of the State of New York, passed under the Constitution 
 of 1821, which prohibited the judges of appellate courts from 
 taking part in the decisions of causes determined by them 
 when sitting as the judges of any other court, was held to be 
 virtually repealed by the Constitution of 1846, which abrogated 
 the Constitution of 1821. J 
 
 Some special rules may be here noticed. We have already 
 had occasion to observe the doctrine, that if the latter part of 
 a statute be repugnant to a former part of it, the latter part 
 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.| Questions may arise as to whether a repealing act is 
 to operate as a total, partial, or temporary repeal ; and it is 
 said that the word repealed is not to be taken in an absolute, 
 if it appear on the whole act to be used in a limited sense. ^f 
 If a statute, originally perpetual, be continued by an affirm- 
 ative statute for a limited time, this does not amount to a 
 repeal of it at the end of that time.** But when a statute 
 absolutely repeals a prior law, and substitutes other provisions, 
 to continue only for a limited time, the prior law does not 
 
 * Commonwealth v. Herrick, 6 Gushing, pany of Chelsea Water Works, Fitzgibbons, 
 
 465. 195 ; Dwarris, vol. ii, 515 and 534; ante, pp. 
 
 f Attorney-General v. Newman, 1 Price, 47 and 50. 
 
 438. Tf Rex v. Rogers, 10 East, 569 ; Camden v. 
 
 Pierce v. Delamater, 1 Corns. IT. Anderson, 6 T. R. 723. 
 
 | Attorney-General v. Governor and Com- ** Raym. 397. 
 
108 EFFECTS OF REPEAL. 
 
 revive at the expiration of the time fixed by the repealing 
 law.* 
 
 We have next to consider the effects of the repeal which, 
 when it is clear and absolute, are of a very sweeping charac- 
 ter, (a) " The effect of a repealing statute," says a very 
 
 * Warren v. Windle, 3 East, 205. 
 
 (a) Effect of Repeal and Amendment. 
 
 Revival of the Old Law. The general rule, independent of any statutory change 
 in it, is that the repeal of a repealing statute revives the original statute. Brinkley 
 v. Swicegood, 65 N. C. 626 ; James v. Buzzard, 1 Hemps. 259. And this is so, 
 although the repeal is by implication. People v. Davis, 61 Barb. 456. 
 
 Although there is an established statutory rule of the State, that the repeal of 
 a repealing act shall not revive the original act first repealed, yet where a statute 
 creating an exception from a prior general law is repealed, that general law, without 
 the exception, becomes again wholly operative. Smith v. Hoyt, 14 Wise. 252. 
 Where there is such a statutory rule as to the effect of repeals, as stated in the last 
 preceding sentence, it applies to repeals by implication, as well as to express repeals. 
 Stirman v. State, 21 Tex. 734. There being a general statute that the repeal of a 
 repealing act should not revive the act first repealed without express words, the 
 Legislature on one day passed a repealing act, and the next day passed an act 
 supplementary to it, and excepting certain counties from its operation, and it was 
 held that this second or supplementary act must be considered as a part of the first 
 or repealing act, and as continuing the old law in force in those counties. Manlove 
 v. White, 8 Cal. 376. 
 
 A mere declaration in a statute that a certain other statute, which repealed 
 specified sections in a former act, " shall not repeal " such sections, does not operate 
 to revive them, and is in fact a nullity. State v. Conkling, 19 Cal. 501. 
 
 When the remedy upon a contract has been suspended by a statute, the repeal of 
 that statute restores the remedy, except as to rights which have become vested under 
 the statute while in force. Johnson v. Meeker, 1 Wise. 436. When a statute is 
 impliedly modified by a later statute, upon the repeal of the later statute the implied 
 modification ceases. Glaholm v. Barker, Law R. 1 Ch. 223. 
 
 Effect of Repeal upon Individual Rights. Civil rights dependent upon a statute, 
 unless vested, fall with it ; e. g., where a statute had directed certain taxes to be 
 applied, after collection, to a particular purpose, and had appointed commissioners 
 to disburse the money, and the law was afterward repealed, no contracts having been 
 made, nor rights vested under it. Tivey v. People, 8 Mich. 128. 
 
 Rights of action or defence given by a statute on grounds of public policy e. g., 
 stock jobbing act are destroyed by a repeal of the statute, even though an action 
 is pending. Washburn v. Franklin, 35 Barb. 599. And mechanics' liens not fully 
 perfected, fall with a repeal of the law. Bailey v. Mason, 4 Minn. 546 ; Dunwell v. 
 Bidwell, 8 Minn. 34. But where fully perfected, the liens remain. Streubel v. Mil- 
 waukee, &c. R. R. 12 Wise. 67 ; Gazelle v. Lake, 1 Oregon, 119. 
 
 But a repeal cannot take away vested rights ; e. g., where the State had by statute 
 postponed its lien on a railroad, to enable the corporation to negotiate its bonds, it 
 cannot by a repeal affect the priority of such bonds. Sinking Fund Comm'rs v. 
 Northern Bank, 1 Mete. (Ky.) 174. The repeal of a granting act cannot take away 
 
EFFECTS OF REPEAL. 109 
 
 eminent judge,* "I take to be to obliterate the statute re- 
 pealed as completely from the records of Parliament as if it 
 
 * Tindal, C. J., in Key v. Goodwin, 4 Moore and Payne, 841. 
 
 titles vested thereunder. Rice v. Railroad Co. 1 Black, 358. Nor could the repeal 
 of a law allowing substitutes affect rights already vested. Ex parte Graham, 13 
 Rich. Law, 277. And where the right to a payment of money has become vested 
 in transactions under a statute, its repeal will not take away such right. Streubcl 
 v. Milwaukee, &c. R, R. 12 Wise 67. For example, the right to half pilotage vested 
 by a tender of service. Steamship Co. v. Joliffe, 2 Wall. 450. Nor is the time of 
 redemption from a tax sale shortened by a repeal subsequent to the sale. Adams v. 
 Beale, 19 Iowa, 61 ; Myers v. Copeland, 20 Iowa, 22. And, it seems, the right to 
 obtain possession by a summary process in force at the date of a lease, is not taken 
 away by a repeal after the breach. Hoopes v. Meyer, 1 Nev. 433. Nor can the 
 repeal of a general law for the formation of corporations affect corporations already 
 organized under it, in the absence of a power reserved in the original act. Donworth 
 v. Coolbaugh, 5 Clarke (la.) 300. Nor can the authority conferred upon a street con- 
 tractor, to collect assessments from the abuttors, be taken away by repeal after the con- 
 tract is entered into. Creighton v. Pragg, 21 Cal. 115. Nor, it seems, can the right 
 to costs, although the amount is to be determined by the discretion of the court, be 
 taken away by a repeal after verdict. Cook v. New York, &c. Dock Co. 1 Hilt. (N. Y. 
 C. P.) 556. And it seems that a statute prescribing a new method of commencing 
 actions, and repealing the old law, will not abate actions in which process has been 
 served in the old method. Beebe v. O'Brien, 10 Wise. 481. 
 
 When a deposition has been begun, and a statute is passed to the effect that 
 witnesses must testify ore tenus, the deposition, although afterwards completed, cannot 
 be used. Craneford v. Halsted, 20 Gratt. 211. 
 
 Repeal of a statute of limitations does not revive rights already barred. Right 
 v. Martin, 11 Ind. 123; Knox v. Cleveland, 13 Wise. 245 ; Baldro v. Tolmil, 1 Ore- 
 gon, 176. Nor does a repeal give a right of action on a contract made in contra- 
 vention of the statute while in force. Hathaway v. Moran, 44 Me. 67 ; Gilliland 
 v. Phillips, 1 Rich. N. S. 152. But where the act repealed was a measure of public 
 policy merely, leaving the moral and equitable consideration between the parties 
 good, it seems a repeal of the prohibitory act will take away all impediment to 
 enforcing contracts made while it was in force, e. g., where the prohibition was of 
 circulating bank notes under the denomination of $5. Central Bank v. Empire 
 Stone, &c. Co. 26 Barb. 23. Or the stock jobbing act. Washburn v. Franklin, 35 
 Barb. 599. 
 
 Pending judicial proceedings based upon a statute, fall to the ground with its 
 repeal. Rice v. Wright, 46 Miss. 679 ; State v. Daley, 29 Conn. 272 ; ' Genkniger v. 
 State, 32 Penn. St. 99; State v. Cross, 4 Jones, Law, 421 ; Johnson v. Meeker, 1 
 Wise. 436 (a liquor law). Even if the repeal be after conviction and an appeal 
 therefrom. Keller v. State, 12 Md. 322 ; Wall v. State, 18 Tex. 682 ; Hartung v. 
 People, 22 N. Y. 95; see also Ex parte McArdle, 7 Wall. 506; State v. O'Connor, 13 
 La. Ann. 486. And the same is true of actions for penalties. Mouras v. The A. C. 
 Brewer, 17 La. Ann. 82; Gaul v. Brown, 53 Me. 496. Courts will take judicial 
 notice of the repeal. State v. Henderson, 13 La. Ann. 489. 
 
 That a repeal of a license law will not affect the validity of licenses under it for 
 their unexpired term, but will prevent prosecution for a violation of their pro- 
 
110 EFFECTS OF REPEAL. 
 
 had never passed, and that it must be considered as a law that 
 never existed, except for the purpose of those actions or suits 
 
 visions. See State v. Andrews, 28 Mo. 14, 19. The repeal of a usury law relieves 
 from the forfeitures provided for by it. Wood v. Kennedy, 19 Ind. 68. And such 
 repeal affects pending suits. Welch v. Wadsworth, 30 Conn. 149. 
 
 Where one statute refers to another for rules of procedure, and the statute thus 
 referred to is repealed, it remains in force so far as to govern the proceedings under 
 the statute making the reference. Spring, &c. Works v. San Francisco, 22 Cal. 434. 
 The repeal of a statute carries with it a supplemental statute so dependent upon the 
 former, that it cannot be enforced without such original act. Ellison v. Jackson, 12 
 Cal. 542. Although the general statutes enact that in case of a legal conviction, 
 where no punishment is provided by statute, the court shall award such sentence as 
 is conformable to the common practice and usage, according to the nature of the 
 offence ; it seems this cannot apply to a case where a section declaring the punish- 
 ment has been repealed. Commonwealth v. McDonough, 13 Allen, 581. 
 
 Unconstitutional Repealing Statutes. If an express repealing clause is contained 
 in a statute which is unconstitutional, it seems the repealing clause will not take 
 effect. People v. Tiphaine, 3 Parker Cr. 241 ; but, per contra, Meshmaier v. State, 11 
 Ind. 482. But if the repealing clause is only of acts and parts of acts inconsistent 
 with the provisions of the statute, which is itself unconstitutional and void, it has 
 no effect. Shepardson v. Milwaukee, &c. R. R. 6 Wise. 605; State v. La Crosse, 11 
 Wise. 51 ; Campan v. Detroit, 14 Mich. 276; Childs v. Shower, 18 Iowa, 261. And 
 the same was held of a similar repealing clause contained in a statute void in part, 
 but the void portion being the only one that was inconsistent with any prior acts. 
 Devoy v. New York, 35 Barb. 264; Harbeck v. New York, 10 Bosw. 366. 
 
 Amendatory Statutes. Where an amendatory act sets forth the entire sections 
 amended, they are to be construed as introduced into the place of the repealed 
 sections, and in view of the provisions of the original act after such introduction. 
 McKibben v. Lester, 9 Ohio, N. S. 627. Thus, the words in the amendatory act 
 " under the limitations herein provided," must be held to apply to the limitations 
 of the original act after the amended sections are in place. Ibid. ; and see also 
 Conrad v. Nail, 24 Mich. 275. And where, after the amendment of section 6, 
 "' section 6 " is repealed, it is the amended section which has taken the place of the 
 original one. Greer v. State, 22 Tex. 588. Qucere, whether such repeal would 
 restore the original section ? See Tallamon v. Cardenas, 14 La. Ann. 514. The 
 amendment of a statute by a subsequent one operates, as to all acts done subse- 
 quently thereto, as though the amendment had been a part of the original statute. 
 Holbrook v. Nichol, 36 111. 161. Where a new proviso was substituted for an old 
 one in nearly the same terms, it was held that the new proviso and the original 
 statute must be read as one act, i. e., as though the proviso had originally been in 
 the amended form. Queen v. St. Giles, 3 E. & E. 224. But where an act passed in 
 1865-6 appropriated 25 per cent, of the revenue for school purposes, with the 
 proviso that it should not be applied until the year 1867, a repeal of the proviso 
 was held not to make the act applicable to the revenue of 1866. State v. Auditor, 
 41 Mo. 25. 
 
 An amendment of a section which provides that it " shall hereafter read as 
 follows," repeals entirely the original section. State v. Andrews, 20 Tex. 230 ; but 
 see Moore v. Mausert, 5 Lans. 173 ; also, Ely v. Holton, 15 N. Y. 595. 
 
 Where an act increasing the salaries of certain officers who were in.the receipt 
 
EFFECTS OF REPEAL. Ill 
 
 which were commenced, prosecuted, and concluded while it 
 was an existing law."* Upon this principle, the repeal of a 
 statute puts an end to all prosecutions under the statute re- 
 pealed, and to all proceedings growing out of it pending at the 
 time of the repeal. There can be no legal conviction, unless the 
 act is contrary to law at the time it is committed ; nor can 
 there be a judgment, unless the law is in force at the time of 
 the indictment and of the judgment. Hence, a repealing law is 
 sometimes made to operate prospectively, and a saving clause is 
 inserted to prevent the operation of the repeal, and continuing 
 the repealed law in force as to all pending proceedings and 
 prosecutions.f So in the Supreme Court of the United States, 
 it has been held that the repeal of a statute giving a penalty, 
 puts an end to all actions pending for penalties under the act, 
 at the time of the passage of the repealing statute. J So in the 
 Circuit Court of the United States, where a man was indicted 
 for perjury under the bankrupt law, which had been repealed 
 before indictment, Washington, J., said, " Every offence for 
 which a man is indicted must be laid against some law, and it 
 must be shown to come within it, and the law must be subsist- 
 ing. If the Legislature has ceased to consider the act in the 
 light of an offence, the purposes of punishment are no longer to 
 be answered."| So the repeal of a law imposing a penalty, 
 though after conviction, arrests the judgment. 3 ^ And the same 
 
 * See also, in England, as to effect of re- shall, 11 Pick. 350 ; see also, Butler v. Palmer, 
 
 peal of bankrupt laws. Surtees v. Ellison, 9 1 Hill, 324. 
 
 B. & C. 750; Maggs v. Hunt, 4 Bing. 212; \ Yeaton v. United States, 5 Cranch, 281 ; 
 
 and Kay v. Gordon, 6 Bing. 576. Schooner Rachel v. United States, 6 Cranch, 
 
 f Miller's Case, 1 W. HI. 451 ; Rex v. Jus- 329; Norris v. Crocker, 13 How. 429; United 
 
 tices of London, 3 Burr. 1456 ; Commonwealth States v. Passmore, 4 Dall. 372. 
 v. Cooley, 10 Pick. 37; Commonwealth v. Mar- || Anon. 1 Wash. C. C. R. 84. 
 
 \ Common wealth v. Duane, 1 Binn. 601,608. 
 
 of fees was such as to repeal by implication prior statutes on the subject, but it 
 provided in substance that such statutes should remain in force as to the receipt of 
 the fees, but that they should be paid into the State Treasury, instead, of being 
 retained by the officers, this was held to be an attempt to amend an act, without 
 setting it out as required by the Constitution, and so void. Dodd v. State, 18 
 Ind. 56. 
 
 No Legislature can lay down for a subsequent one a binding rule as to how 
 statutes shall be amended. Morgan v. Smith, 4 Minn. 104. In construing an 
 amendatory act, the old law, the mischief arising under it, and the remedy which 
 the new law may be supposed to provide, should be considered. Maus v. Logans- 
 port, &c. R. R. 27 111. 77; People v. Greer, 43 111. 213. 
 
112 EFFECTS OF REPEAL. 
 
 rule applies to all proceedings, whether civil or criminal, going 
 on by virtue of a statute at the time of its repeal. So if a stat- 
 ute confers jurisdiction in civil cases, and though suits may be 
 instituted and be pending at the time of the repeal, the juris- 
 diction is gone, and with it the whole proceeding falls to the 
 ground.* So the repeal of an act authorizing a course of pro- 
 ceeding by a public officer, invalidates the proceedings, if un- 
 finished, at whatever stage they had arrived, f Thus, in Penn- 
 sylvania, where an act was passed authorizing the opening of a 
 street in Pittsburgh, and providing for the assessment of dam- 
 ages ; it was held, that the repeal of the act before the street 
 was opened, rendered void all proceedings taken, and that the 
 parties in whose favor damages had been assessed could not 
 recover the compensation reported in their favor. J So in New 
 York, in May, 1837, a law was passed authorizing mortgage 
 debtors to redeem their property sold under foreclosure decrees, 
 within one year from the date of the sale. In April, 1838, an 
 act was passed repealing the act of 1837, to take effect in No- 
 vember, 1838. In a case where the sale took place in Decem- 
 ber, 1837, before the repealing law had passed, it was held that 
 no redemption could take place after the time fixed for the act 
 to go into effect ; that the right of redemption was a mere in- 
 choate right, and necessarily destroyed by the abrogation of the 
 statute which conferred it.| 
 
 In connection with this subject we may observe, that an act 
 declared illegal by statute is not made good by a subsequent 
 repeal of the statute, if it was originally illegal. 4 ^ And so, the 
 repeal of a prohibitory act does not give validity to acts which 
 were invalid under the operation of the prohibitory act re- 
 pealed. Thus in New York, the Revised Statutes declared that 
 no person, unauthorized by law, who should practice physic or 
 surgery for any fee or reward, should be capable of bringing 
 suit for such fees. In 1844 this was repealed. An action was 
 brought by an unlicensed practitioner, in 1845, to recover com- 
 
 * Stoever v. Immell, 1 "Watts, 258 ; But- \ Hampton v. Commonwealth, 7 Harris 
 ler v. Palmer, 1 Hill, 324. (Penn.), 329. 
 
 f Williams v. County Commissioners, 35 | Butler v. Palmer, 1 Hill, 324. 
 
 Maine, p. 345. 1" Jaques v. Withy, 1 H. Bl. 65; Roby v. 
 
 West, 4 New Hampshire R. 285. 
 
EFFECTS OF REPEAL. 113 
 
 pensation for services rendered in 1840, prior to the repealing 
 act. It was held that the repeal of the previous prohibitory 
 laws had no effect on cases which arose before the passage of 
 that act.* 
 
 It will be noticed, that the operation of the general rule is 
 to give repealing statutes a very retroactive effect. In regard 
 to criminal matters, this is perhaps unobjectionable ; but in re- 
 gard to civil rights, the case is often very different. Trouble 
 and expense may have been incurred ; suits may have been in- 
 stituted; but the effect of a retrospective construction of re- 
 pealing statutes is entirely to derange the plans and defeat the 
 arrangements of parties who have proceeded on the faith of the 
 antecedent legislation. Efforts have been made to resist these 
 
 o 
 
 results, and certain exceptions have been made to this retroact- 
 ive application. The first is that where a right in the nature 
 of a contract has vested under the original statute, then the re- 
 peal does not disturb it.f And, in this country, this principle 
 is carried out and firmly established by the clause in the Con- 
 stitution of the United States, that no State can pass any law 
 impairing the obligation of contracts ; to which we shall have 
 occasion more particularly to refer, when we come to consider 
 the subject of the restrictions imposed upon State Legislatures 
 by the federal charter. An unfortunate distinction has been 
 drawn by the highest of the federal tribunals, between the ob- 
 ligation of a contract and its remedy. It has been repeatedly 
 regretted ; but the State courts have adopted it, and it is now 
 too late, perhaps, to hope for its abandonment. J What relates 
 to the remedy is understood to be at the mercy of legislation, 
 but the obligation of contracts is covered by the a?gis of the 
 
 * Bailey v. Mogg, 4 Denio, 60. ter can be impaired without producing the 
 
 f Fletcher v. Peck, 6 ('ranch, 87 ; Gill- same consequence to the former." Cowcn, J. ( 
 
 more v. Shooter's Ex'or, 2 Mod. 310; Couch in Butler v. Palmer, 1 Hill, 324. Mr. Chan- 
 
 ?. t. v. Jeffries, 4 Burr. 2460-2 ; Churchill v. cellor Kent has said, " Oh. J. Marshall, in 
 'rense, 2 Moore <fe Payne, 415 ; 5 Bing. 177, iSturges v. Crowninshield, 4 Wheaton, 200, 
 S. O. ; Terrington v. Har^reaves, 3 Moore & 207, spoke on this subject in a general and 
 Payne, 137, 143; 5 Bing. 489 ; S. C., Butler latitudinaryma.-.ner, which was rather hazard- 
 v. Palmer, 1 Hill, 324. ous. It seems to me, that to lessen or take 
 " Were the notion res nova, we might away from the extent and efficiency of the 
 feel great difficulty in distinguishing between remedy to enforce the contract legally exist- 
 the obligation of a contract, and a remedy ing when the contract was made, impairs its 
 given by the law to enforce it. It is difficult, value and obligation." Com. i, p. 455, note, 
 under the notion that obligation and remedy See, too, the opinion of Mr. Justice Washing- 
 are essential to each other, to see how the lat- ton, in Mason v. Haile, 12 Wheaton, 370. 
 
 8 
 
114 EFFECTS OF REPEAL. 
 
 federal charter. We shall, as I have above said, have occasion 
 to consider this more fully, when we coine to speak of the Con- 
 stitution of the United States. 
 
 There is another class of cases which virtually form a 
 second exception to the general rule, declaring, as we have 
 seen, the operation of repealing statutes. It has been held in 
 many instances that enactments of the Legislature, creating new 
 exceptions or defences, or modifying previous remedies, shall be 
 so construed as not to affect rights of action which have at- 
 tached and become vested under the original law, and existing 
 at the time of the repealing statute.* " We are of opinion," 
 said Lord Denman, C. J., in a case of this kind, " that the law, 
 as it existed when the action was commenced, must decide the 
 rights of the parties to the suit, unless the Legislature express 
 a clear intention to vary the relation of litigant parties to each 
 other." f So in regard to the limitation of actions, the same 
 learned judge said, in regard to a law changing the period, that 
 the prior law must control. " A different construction, even if 
 the words permitted it, would cause the greatest hardship ; for 
 a person who, as the law stood before the passing of this act, 
 was in ample time to bring his ejectment, and recover property 
 that undoubtedly was his, would, by the operation of the stat- 
 ute, be suddenly deprived of the means of asserting his right, 
 there being no clause for the postponement of the operation of 
 the statute for such a period as would enable persons who 
 would be otherwise affected by it to assert their rights." % So 
 in New York, where distress for rent originally existed, as in 
 England, it was made by statute | a penal offence to remove 
 goods from the demised premises for the purpose of avoiding 
 the payment of rent ; a forfeiture being given to the landlord 
 of double the value of the goods removed. In May, 1846, an act 
 was passed abolishing, generally, the remedy of distress, though 
 not in terms repealing the above statute. A suit brought for 
 a violation of the statute, alleged to have been committed in 
 
 * Bedford v. Shilling, 4 Serg. & Rawle, Dwarris, vol. ii, p. 542 ; Sed vide contra, 
 
 401; Duffield v. Smith, 3 Id. 690-9; But- Freeman v. Moyes, 1 A. <fe E. 338; Paddonv. 
 
 ler v. Palmer, 1 Hill, 324. Bartlett, 3 A. & E. 884; Surtees v. Ellison, 9 
 
 t Hitchcock v. Way, 6 Ad. & Ell. 943 ; B. & C. 750. 
 Paddon v. Bartlett, 3 Ad. <fe Ell. 884. J 2 R. S. 503, 17, part in, ch. viii, title 9, 
 
 \ Doe dem. Evans v. Richards, Q. B. R. ; art. 1. 
 
EFFECTS OF REPEAL. 115 
 
 1844, came on to be tried in June, 1846; and it was suggested 
 that the abolition of the remedy of distress necessarily carried 
 with it the provision as to the removal of goods, and on the 
 general doctrine which we have above stated, that the penalty 
 was gone. But it was said that there were no express words 
 of repeal, that the moment that the offence was committed the 
 penalty became a debt or duty vested in the plaintiff,* and 
 that the action would still lie.f So it is intimated in a recent 
 case in New York, that the Legislature cannot take away a 
 right of appeal which has already attached.^ 
 
 It has been attempted to reconcile this class of cases with the 
 others, which we have heretofore in this connection considered, 
 on the ground that they contain no express words of repeal ; [ 
 but it being settled that repeals may be as clearly made by 
 implication as by positive words, that position becomes unten- 
 able. They are, in fact, far more defensible on the general doc- 
 trine that no statute should ever be permitted to have a retro- 
 active effect, a rule which we shall have occasion to consider in 
 the next chapter. Indeed, no attention can be paid to our 
 statutory law without observing the mischiefs resulting from 
 ill-considered legislation, violent and sweeping innovation, or 
 the hasty repeal of previous enactments. The inconveniences 
 consequent upon retroactive statutes are often of the most 
 serious character, and cannot be too fpeatf^Mly igaEn^d out, nor 
 too often insisted on.1T tf^ OF -\\\v 
 
 I! . i 
 
 * The Company of Cutlers in Yorkshire v. of rartiaffleik, vea*n^n*SJr Bd^rd Cok 
 
 Ruslin, Skinner, 363; Grosset v. Ogilvic, 5 expresses it) with provisoes and additions ; 
 
 Brown, P. C. 527; College of Physicians v. and i^qny jfciflie$,<w armitKf^npp'enned or cor- 
 
 Hanison, 9 Barn. & Cres. 524. rected bv men of none or very little judgment 
 
 f Palmer v. Conly, 4 Denio, 374; a. c. on in law;" amTTie goes oh to quote further 
 
 appeal, 2 Corns. 182. from Coke, as to the evils resulting from the 
 
 {Grover v. Coon, 1 Coma. 536. ignorance and incompetency of the law- 
 Butler v. Palmer, 1 Hill, 324. . makers. Blackxtone,Cm., Introductory Lec- 
 *[[ We may, however, take some consola- ture. Both Coke and Blatkstone, however, 
 tion in the consideration that these are no were devotees to the common law. But the 
 modern evils, nor confined to our country, complaint has been repeated, in England, 
 Those who deplore the haste with which our down to our time. " The same cause," says a 
 statutes are drawn, the inaccuracies which writer tn the Law Review for August, 1850, 
 they often present, and the injustice they too " which has produced bad books upon En- 
 frequently work, may take comfort in the glish law (the discontinuance of regular aca- 
 words of Blackstone: " To say the truth, al- demical institutions in our terms of court) 
 most all the niceties, intricacies, and delays, has produced bad statutes." " The real evil," 
 which have sometimes disgraced the English said the Lord Chief Justice, in debate in the 
 as well as other courts of justice, owe their House of Lords, July 9, 1850, "under the 
 original not to the common law itself, but to present system, was, that nine-tenths of the 
 innovations that have been made in it by acts time of the judges was taken up in endeavor- 
 
116 REPEAL OF A REPEALING STATUTE. 
 
 The question next presents itself as to the effect of the re- 
 peal of a repealing statute. The rule of the common law is, 
 that the unqualified repeal of a repealing statute, substituting 
 no other provisions in place of those repealed, revives the orig- 
 inal statute; and this is generally received in this country.* 
 The principle has been applied in New York to the resolutions 
 of school districts to lay taxes.f In Massachusetts, also, it has 
 been held, that the repeal of a repealing statute revives the 
 original act ; and that the doctrine is the same where the repeal 
 is effected by implication only. J But in Ohio, || and Illinois,^" 
 statutes have been passed abolishing the rule of the common 
 law.** If a repealing statute and part of the original statute 
 be repealed by a subsequent act, the residue of the original 
 ^statute is revived.ff 
 
 We have thus far considered the attributes and incidents of 
 -statutes, so far as they do not depend on any ambiguity of their 
 own language. We are now better prepared to consider those 
 cases where it is necessary to call in the aid of judicial construc- 
 tion or interpretation. But before quitting this branch of our 
 subject, I permit myself a short digression in order to take no- 
 tice of the relation of statutes to the law of copyright. It was 
 originally considered, in England, that the crown had a prerog- 
 ative copyright in the Bible and Common Prayer Book, the 
 Statutes of the realm, the Almanacs, and the Latin grammar; 
 and the sovereign granted, by letters patent, the exclusive right 
 of printing these works. In regard to the statutes, the doctrine 
 has been vindicated on the ground of the necessity of some 
 responsibility for correct printing, and because the laws can 
 only be obtained from the rolls of Parliament, which are within 
 
 5ng to reduce to intelligibility the ill-digested Livingston, 6 "Wend. 626; Bradstreet v. 
 
 legislation of the it Lordships' House." " Clarke. 4 Wend. 211 ; and Lansing v. Caswell, 
 
 In New York, the Revisors of 1830 pre- 4 Paige, 519. 
 
 pared a very careful general repealing act; * Case of the Bishops, 12 Co. 7; 2 Inst. 
 
 3 R. 8. 130. act of December 10, 1828; in &86; Doe v. Naylor, 2 Blackford, 32; M'Nair 
 
 which it is enacted by v. Ragland, 1 Dev. & Bat. Eq. Cases, 525 ; 
 
 5. " That the repeal of any statutory Wheeler v. Roberts, 7 Co\ven, 536 ; Finch v. 
 
 provision by this act, shall not affect any act M' Do wall, 7 Cowen, 537; Commonwealth v. 
 
 done, or ri^ht accrued or established, or any Churchill, 2 Met. 118. 
 
 proceeding, suit, or prosecution, had or com- f Gale v. Mead, 4 Hill, 109. 
 
 menced in any civil case previous to the time i Hastings v. Aiken, 1 Gray, 165. 
 
 when such repeal shall take effect; but every | 14th February, 1809. 
 
 .such act, right, and proceeding shall remain aa *f 19th January, 1826. 
 
 valid and effectual as, if the provision so re- ** 1 Kent Com. 466. 
 
 pealed had remained in force." See, also, the f f Doe dem. Broughton T. Gully, 9 B. A 
 
 .-^subsequent sections of the act, and People v. C. 344, 854. 
 
COPYRIGHT IN STATUTES. 117 
 
 the authority of the crown. Originally, the copies of the stat- 
 utes of the kingdom were transmitted to the sheriff, who caused 
 them to be publicly read in the county courts. When the in- 
 troduction of printing produced an increased demand for the 
 laws, and at the same time facilitated the supply, the laws were 
 published by the patentee of the crown; and this exclusive 
 right was not only repeatedly recognized in the earlier cases, 
 but carried so far as to embrace the Reports, Year Books, and 
 Eolle's Abridgment. These latter pretensions have been 
 abandoned, but the exclusive title of the crown to the publica- 
 tion of the statutes has been sustained ; and the sole right to 
 print the laws in England, is now held to be vested in the sov- 
 ereign and his patentee, who shares it, however, in consequence 
 of certain ancient grants, with the universities of Oxford and 
 Cambridge.* But it seems to be settled, that the statutes may 
 be printed by others than those claiming under a patent, pro- 
 vided the publication is accompanied by bona fide notes, f 
 
 Of the English doctrine of prerogative copyright, there is, it 
 is believed, no trace in this country. The laws, whether of the 
 Union or of the States, may be published by any one ; though, 
 generally, the editor of a newspaper is appointed by the Gov- 
 ernment as State printer, who publishes the first regular copy 
 of the federal or State statutes. In regard to the decisions of 
 the Supreme Court of the United States, it has been determined 
 that, under the act of Congress by which an official reporter is ap- 
 pointed, there can be no copyright in the written opinions of the 
 court ; but that the reporter may have a copyright in his own 
 marginal notes, and his arrangement of the arguments of counsel. \ 
 Several of the State Constitutions contain provisions on this 
 subject. In California the Constitution declares, that, " the Leg- 
 islature shall provide for the speedy publication of all statute 
 laws, and of such judicial decisions as it may deem expedient ; 
 and all laws and judicial decisions shall be free for publication 
 by any person." | The Constitution of Iowa provides,^ that 
 " no law of the General Assembly, of a public nature, shall take 
 
 * Ba-kett v. The University of Cambridge, \ Wheaton v. Peters, 8 Peters, 591, 668; 
 
 1 "W. Black. 105, 121; Baskett v. Cunning- Gray v. Russell, 1 Story, 11. 
 bam et a/. 1 Black. 370; Manners v. Blair, 3 || Constitution, Art. vi. 12. 
 
 Bligh. S'Jl, 402 ; Curtis on Copyright, 1 1 6, 128. $ Art. iv, 27. 
 
 ") Maugham on Copyright, p. 106; 2 Evan's 
 Statutes, 19, note 11. _. 
 
118 PUBLICATION OF JUDICIAL DECISIONS. 
 
 effect until the same shall be published and circulated in the 
 several counties of the State, by authority. If the General 
 Assembly shall deem any law of immediate importance, they 
 may provide that the same shall take effect by publication in 
 newspapers in the State." The Constitution of Wisconsin de- 
 clares,* that "the Legislature shall provide, by law, for the 
 speedy publication of all statute laws, and of such judicial 
 decisions, made within the State, as may be deemed expedient. 
 And no general law shall be in force until published." The 
 Constitution of Michigan declares,f that " the Legislature shall 
 not establish a State paper. Every newspaper in the State, 
 which shall publish all the general laws of a session within 
 forty days of their passage, shall be entitled to receive a sum 
 not exceeding fifteen dollars therefor. The Legislature shall 
 provide for the speedy publication of all laws of a public na- 
 ture, and of such judicial decisions as it may deem expedient. 
 All laws and judicial decisions shall be free for publication for 
 any person." In New York, the Constitution provides, J that 
 "the Legislature shall provide for the speedy publication of all 
 statute laws, and of such judicial decisions as it may deem 
 expedient. And all laws and judicial decisions shall be free 
 for publication by any person." 
 
 The greater the publicity that is given to the statute law, 
 of course, the better ; but, notwithstanding these constitutional 
 enactments of so many of the States, it appears to me not diffi- 
 cult to prove that our governments should retain some control 
 over the publication of the judicial decisions of their courts. 
 The publication of decisions in individual cases may, indeed, 
 with propriety, be left free ; but the publication of collections 
 of reports is a matter too immediately connected with legisla- 
 tion to be left without any supervision whatever. As it is now, 
 we are, in some of the States, flooded with reports of cases, a 
 great many of which are entirely trivial, or only tend to increase 
 the uncertainty and perplexity of the law, and greatly to aug- 
 ment the labor of all those concerned in the administration of 
 justice. Our reports are our law, and the publication of reports 
 is, in fact, the enactment of laws. 
 
 * Art. \il, 21. f Art. iv, 35 and 36. J Art. Ti, 22. 
 
CHAPTER V. 
 
 OF THE BOUNDARIES OF LEGISLATIVE AND JUDICIAL POWER. 
 
 Division of Legislative and Judicial Functions in England. Bills of Attainder. 
 Division in this Country. Disputed Power of Judiciary, Independently of In- 
 terpretation and Constitutional Limitation. What is a Law? Power of the 
 State Legislatures Examined. Retrospective Laws. Result of the Examination. 
 Judicial Power of Construing Doubtful Provisions of Written Law. History 
 of its Exercisa in England. In France. Present Condition of the Law on the 
 Subject. Power of the Judiciary to Enforce Constitutional Restrictions. 
 
 HAVING endeavored, in the preceding pages, to give a gen- 
 eral idea of the sources of our jurisprudence, of the classifica- 
 tion of laws, and of their various parts and incidents, we now 
 approach the subject of the construction of statutes in doubtful 
 cases. But some preliminary considerations still present them- 
 selves. Before entering on the details of interpretation, it is 
 indispensable to have as correct an idea as is practicable of the 
 division of power in the political systems which derive their 
 origin from the great English sources ; in other words, to un- 
 derstand, if possible, the precise boundaries of the legislative, 
 and judicial functions.* The questions which we are now 
 about to consider have no place in absolutely despotic govern- 
 ments ; where all power is centered in a single hand, there now, 
 as under the absolute forms of the later Roman government, 
 the will of the sovereign makes, applies, modifies, and interprets 
 the law : quod principi placet, legis habet vigorem. The Em- 
 peror Justinian, in a rescript to his prefect, Demosthenes, uses 
 this language : " We declare the imperial construction of laws, 
 whether made on petition or in suits, or in any way whatever, 
 to be absolute and final. For if the sovereign alone can make 
 laws, he alone should interpret them ; why else, when questions 
 
 * Part of Mr. Pwarris* eleventh chapter, seems to me that a correct notion of the divis- 
 
 pp. 694 to 712, is de-voted to a very intelligent ion of power should precede the consideration 
 
 treatment of this subject. " The boundaries of of the exercise of the power. This part of 
 
 legislation and of judicial interpretation xouffht Mr. Dwarris' eleventh chapter is reprinted by 
 
 to be ascertained." He puts it, however, after Mr. Smith, and forms his tenth chapter on 
 
 the discussion of the rules of construction. It Legislation and Judicial Interpretation. 
 
120 DIVISION OF POWER 1ST ENGLAND. 
 
 have arisen in litigated controversies, have they been brought 
 to us ? and why, too, have judicial doubts reached our ears, if 
 interpretation does not proceed from us alone ? Who, indeed, 
 is competent to solve the enigmas of the law, except he to whom 
 alone the power of legislation is conceded ? These absurd cav- 
 ilings are, therefore, to cease, and the emperor to be regarded 
 the only interpreter, as he is the only maker of laws." * 
 Under a system of government which breathes this spirit, all 
 rules of interpretation, indeed, disappear. The questions upon 
 the consideration of which we are now entering, can only pre- 
 sent themselves under those forms of government the effort of 
 
 O 
 
 which is to establish liberty by regulating the exercise of 
 power, f The first step in this regulation consists in the divis- 
 ion of authority; and just in proportion to the restraints im- 
 posed upon absolute and arbitrary acts of government by the 
 careful distribution of authority, just in that proportion does 
 the science of jurisprudence acquire form and certainty; just in 
 that proportion do the law and its ministers rise in influence 
 and importance. 
 
 It is familiar to the student of history that, from an early 
 period, the functions of the English government have been, 
 like those of our own, distributed between the legislative, the 
 judicial, and the executive branches of the system ; out of this 
 division arise the questions that we now proceed to consider. 
 
 * Dejtnimus, autem, omnem impcralorum ) Terrce populi omnes ad aquilonem posill, 
 
 If gum interpret atioiieiii, xivf. in preclbus, sive in libertaleni quamdam spirant. Bodin de Rei- 
 
 judiciis, sive alia quocumqne modo factam, ra.- pub. Lib. i, cap. viii, p. 117; ed. 1591. 
 
 tarn el indubitatam Imberi. Si cniin in prce- ^ We are to recollect, says Mr. Grote, that 
 
 genti leges condere noli imperatori concessum the division of powers into legislative, execu- 
 
 est, et ligcs interprctari solo dignum imperio tive, and judicial, and especially of the two 
 
 ease oportet; cur autem fx sw/gexlionibns pro- latter, is quite of modern origin. The nrchon 
 
 ceru'H, si dubitatio in. litibus oriatiir, et sese iton of Athens was a judge as well as an adminis- 
 
 esse idoneos vel sufficientes ad decislonem litis trator. The Roman kings and the consuls, 
 
 iUi,existiment,adnosdecurratur. et qunre outncs before the appointment of the prretors, sat as 
 
 ambiguitates jndicium, quas ex legibus oriri magistrates, as well as ruled as executive offi- 
 
 evenit, aures acciphint nostrce, si non a tiobis cers ; and, in modern Europe, the same con- 
 
 interpre'atio mera procedit ? Vel quis lec/um fusion of powers is to be found. History of 
 
 venigmnta nolvere, ct omnibus aperire idontus Greece, vol. v, ch. xlvi, pp. 477 and 478. 
 
 esse videbitur, nixi is cui soli legislatorem esse It would be curious accurately to investi- 
 
 concesxnm r.xt? Exfilusis, itaque, his ridiculosis gate the results of the division. The com- 
 
 tmbigvitatibttt, tarn conditor quam inlerpres munity has doubtless gained ; but has not the 
 
 legum solus imperator juste cxixtimabitur. individual lost ? Were not the Roman or 
 
 Cod. de Legibus, Lib. i, Tit. xiv, 12. Such Grecian public men, who alternately conducted 
 
 was the language that the master of the an- every branch of affairs, more accomplished 
 
 cient world could, with impunity, make use and complete personages than our moderns, 
 
 of. Christendom now happily offers no par- subdivided as we are, into generals, admirals, 
 
 allel, unless, indeed, it be Russia. ministers, diplomatists, and orators ? 
 
DIVISION OF POWER IN ENGLAND. 121 
 
 The separation of the functions of government, in the mother 
 country, has, however, been the result of a long struggle, waged 
 for centuries, with various fortunes, between its different - com- 
 ponent parts. So little was the importance of the distribution 
 at first understood, that, originally, the English Legislature 
 habitually exercised judicial powers. Cases of first impression, 
 matters presenting serious doubt or difficulty, were adjourned 
 by the courts into Parliament, there to be resolved and decided* 
 So says Bracton : Si aliqua nova et inconsueta emerserint, et quce 
 nunquam prius evenerint, et obscurum et difficile sit eorum judi- 
 cium, tune ponantur judicia in respective usque ad magnam 
 curiam, ut ibi per consilium curies terminentur.^ But this ju- 
 risdiction has long since disappeared, and the only remains of 
 the exercise of judicial power by Parliament consist in its ca- 
 pacity to pass bills of attainder, and of pains and penalties. 
 These, says Mr. Dwarris,^ "are instances of the transcendent 
 power of the Legislature to punish offences otherwise than 
 according to pre-ordained law, by a discretionary severity in 
 lieu of an invariable standard. They furnish an instance of the 
 Legislature quitting its proper province and superseding the 
 judicial functions, and that, in order to punish the transgression 
 of laws which they have neglected to propound. In punishing 
 criminals by bill, the king, lords, and commons are accusers and 
 judges, charging, convicting, and condemning uno flatu. * * * 
 
 * Bracton, Lib. i, ch. 2 ; Coke, 2 Inst. 408; primary intent was the administration of tlie 
 
 Dwarris, 695; and ante, p. 18. law. The mode, by which the change of 
 
 f The second chapter of Petyts' Jus Par- functions of the select bodies was effected, can 
 Uamentarium, a curious work, to which I shall be traced with sufficient distinctness. They 
 hereafter again refer, is entitled, "Several were the judges, as well as the witiiissas, both 
 authorities to prove that, by the ancient laws of law and fact; for the law itself, unwritten 
 and customs of England, when any case of and unrecorded, living in custom and usage, 
 difficulty did happen to arise in Westminster and not gathered from volumes or parchments, 
 Kill, the judges adjourned such cases propter was a .fact to be ascertained like any other, 
 d/fficnltatem, usque ad proximum Paiiia- from the testimony of the judges or repre- 
 ?ncntum." Indeed, we learn from one of the sentatives of the community. Language, 
 most sagacious, as well as one of the most pro- therefore, which is very inaccurate, if consid- 
 found among the students of the early institu- ered with reference to the jurisprudence of 
 tions of the mother country, that the primary modern England, maybe applie I with pro- 
 functions of the representative bodies of the priety to the Noeemda or the Echevirn; and 
 middle ages were to administer or execute hence the acquisition of their legislative pow- 
 their law. Their legislative powers were in- ers. Called in first for the purpose of deliver- 
 troduced in a secondary stage. Sir Francis ing the law, they easily accepted the duty of 
 Palgrave says, "It, must be recollected, how- suggesting any amendments which it required; 
 ever, that the sphere of action anciently be- a task for which they were well fitted, both 
 longing to popular representation, was not by station and by knowledge." Palgrave's 
 that to which we are now accustomed. Leg- Enplixk Commonwealth, vol. i, ch. 3, p. 127. 
 islation was an. accidental incident ; their \ Page 254. 
 
122 JUDICIAL POWER. 
 
 This is the only familiar instance of the Legislature quitting its 
 proper province and superseding the judicial functions." * 
 
 In this country, this vicious exception has been cut up by 
 the root ; our State Legislatures are prohibited, by the Consti- 
 tution of the United States, from using the terrible weapon of 
 attainder; and all our Constitutions, State and federal, declare 
 the distinction to be observed between the three great powers 
 of government, without, however, as we shall see hereafter, 
 making any very precise or careful definition of the nature or 
 extent of these powers. 
 
 It is, then, as a general rule, equally true of England and 
 of the United States, that while the law-making power is ex- 
 clusively confided to one branch of the Government, that depart- 
 ment neither construes nor enforces its own acts. The enact- 
 ment of laws belongs to the Legislature, their construction and 
 application to the judiciary, the enforcement to the executive. 
 The first point, then, that solicits our attention is to ascertain if 
 practicable, with precision, the boundaries that separate the 
 legislative from the judicial functions. 
 
 In our system there are two certain and unquestioned 
 checks on legislative power, the application of both of which 
 is placed in the hands of the judiciary. The first limitation of 
 legislative power arises from the power of construction vested 
 in the courts, and is applied to written law of every kind of 
 which the language is ambiguous or contradictory. The second 
 limitation, and one peculiar to this country, consists of the 
 constitutional restrictions imposed on the Legislature by the 
 people, and the enforcement of which, as we shall hereafter 
 see, is confided to the judiciary. 
 
 The subject, therefore, naturally resolves itself into two 
 heads : 
 
 First. The judicial power over acts of the Legislature, 
 independently of any constitutional restraints on legislative 
 action. 
 
 Second. The judicial power as used to apply and enforce 
 constitutional restrictions. 
 
 First. The judicial power over acts of the Legislature, inde- 
 
 * Dwarris, Part i, p. 264, and Part ii, p. 712. 
 
JUDICIAL POWER. 123 
 
 pendently of any constitutional restraints on legislative action. 
 In examining this subject, it is necessary, first, to consider 
 whether the power of the judiciary, in any case, goes beyond 
 that of construction or interpretation, and the enforcement of 
 constitutional restraints ; whether, in any instance of heedless, 
 improper, unjust, or immoral legislation, where no doubt exists 
 either as to the meaning of the enactment, or the intention of 
 the Legislature, where no question either of constitutional law 
 or interpretation arises, whether the courts can, then, on any 
 other ground, interpose to arrest or nullify the action of the 
 Legislature. 
 
 This discussion necessarily involves the question of the 
 absolute or supreme authority of the Legislature, in cases 
 where it is not fettered by constitutional impediments ; and is 
 one of much interest. It has been frequently examined in 
 various points of view, and by writers of great authority ; 
 some contending for the absolute supremacy of the Legislature, 
 others for the superior authority of the courts as competent to 
 declare and enforce the doctrines of natural justice. Much 
 analogous decision has also been had as to the true source of 
 government, the nature of its origin, and the mode in which 
 its functions should be exercised the rights of man in a state 
 of nature, and the power of society to abridge those rights. 
 For those who are curious in abstract speculations of this kind, 
 the works of Locke, Hooker, Domat, Grotius, Burlamaqui, 
 Puffenclorf,* Woodeson, Hall, Paley, and other writers of this 
 class, may be consulted with interest. 
 
 Mr. Locke thus defines the limits of the legislative power : 
 " These are the bounds which the trust that is put in them by 
 the society and the law of God and nature, have set to the 
 legislative power of any commonwealth, in all forms of govern- 
 ment: 
 
 "First. They are to govern by promulgated, established 
 laws, not to be varied in established crses, but to have one 
 rule for rich and poor, for the favored at court and the country- 
 men at plough. 
 
 * Copious citations from these authors will be found in the 7th chapter of Mr. 
 
 Smith's work on Statutes. 
 
124 JUDICIAL POWER. 
 
 " Second. These laws, also, ought to be designed ultimately 
 for the good of the people. 
 
 " Third. They must not raise taxes on the property of the 
 people without the consent of the people, given by themselves 
 or their deputies. 
 
 "Fourth. The Legislature neither must nor can transfer the 
 power of making laws to anybody else, or place it anywhere 
 but where the people have." * 
 
 But discussions of this kind throw little light on the 
 question now before us. The great writers of the two last 
 centuries, of the class to which Mr. Locke belongs, were bold 
 and adventurous pioneers in paths in which we now securely 
 and familiarly tread. The truths that they elaborately argued, 
 are our axioms; and the profound disquisitions which have 
 rendered their names immortal, tend but little to solve the 
 novel and complex questions which our age has called into 
 being. The precise question for our consideration is whether, 
 under those governments which, like the English and American, 
 profess to divide the powers of the great machine of govern- 
 ment, to give the legislative functions to one and judicial to 
 another, whether under these systems the judiciary can arrest 
 the operations of the legislative branch, on the sole ground that 
 they are repugnant to natural justice or morality. The subject 
 of the retroactive effect of statutes will be separately discussed. 
 And, first, let us see how the doctrine stands in the mother 
 country. 
 
 It has been there contended, that there are certain funda- 
 mental principles of right and justice which even parliamentary 
 power cannot with impunity infringe or disregard ; and that if 
 the Legislature contemns them and passes acts in violation of 
 them, it is the duty of the judiciary to declare such acts null 
 and void. This principle was laid down in England, and at an 
 early period, by persons of high authority. Day sued Savadge, 
 in trespass ; the defendant justified, as collector of the city of 
 London, and alleged that the goods were subject to be dis- 
 trained for wharfage, and that he had thus taken them. The 
 
 O / 
 
 * Locke on Civil Government, ed. of 1769, vol. ii, p. 273, Book ii, cap. xi; Of the 
 
 Extent of the Legislative Power. 
 
PARLIAMENTARY SUPREMACY. 125 
 
 plaintiff replied, that lie was a freeman of the city of London ; 
 and that, as such freeman, he was by custom of the city, 
 exempt from the payment of taxes; the defendant rejoined, 
 denying the custom, and averring that whenever a custom of 
 the city of London came in issue, it was a custom to refer it to 
 the mayor, <fec., to certify as to the alleged custom ; and prayed 
 a writ to issue to obtain such certificate. The plaintiff insisted 
 that the case should be heard by a jury, on the ground that 
 the custom alleged for the trial by certificate, was against law 
 and common reason; and on demurrer, judgment was given 
 for the plaintiff, on this among other grounds; that it was 
 against right and justice and against natural equity, to allow 
 the mayor, <fea, their certificate, when they are to try and judge 
 their own cause ; and this language was used : " By that that 
 hath been said, it appears that though, in pleading, it were 
 confessed that the custom of certificate of the customs of 
 London is confirmed by Parliament, yet it made no change in 
 this case, both because it is none of the customs intended, and 
 because even an act of Parliament made against naturall 
 equitie as, to make a man judge in his own case is void in 
 itself; for jura naturae sunt immutabilia, and they are leges 
 legum" * So again, where a physician was arrested for a fine 
 imposed by the College of Doctors, Lord Coke said, "The 
 censors cannot be judges, ministers, and parties; judges to give 
 sentence or judgment, ministers to make summons, and parties 
 to have the moiety of the forfeiture ; quia aliquis non debet 
 esse judex in propria causa / imo, iniquum est aliquem SUOB 
 rei essejudicem. And it appears, by our books, that in many 
 cases the common law will control acts of Parliament, and 
 sometimes adjudge them to be utterly void ; for when an act 
 of Parliament is against common right and reason, or repug- 
 nant or impossible to be performed, the common law controls 
 it and adjudges such act to be void." And Lord Holt, to the 
 dismay, says Mr. Dwarris, " of all mere lawyers, manfully 
 expressed his opinion, that the observation of Lord Coke was 
 not extravagant, but was a very reasonable and true saying." f 
 
 * Day v. Savage, Hobart, 85; Dr. Bon- f City of London T. Wood, 12 Mod. 669 ; 
 ham's Case, Rep. part viii, p. 118. Dwarris, p. 480. Lord Ellesmerc, in his ob- 
 
126 PARLIAMENTARY SUPREMACY. 
 
 These early cases are replete with the spirit of liberty ; but 
 they do not seem to be sustained, in England, by the language 
 of modern authority. The English Parliaments have been the 
 chief, bulwarks of English liberty,* and the leading aim of lib- 
 eral minds there has been to magnify their power and authority. 
 Coke, himself, says,f "That the power and jurisdiction of Par- 
 liament is so transcendent and absolute, that it cannot be con- 
 sidered, either for causes or persons, within any bounds ; " and, 
 says Blackstone, " It hath sovereign and uncontrollable author- 
 ity in making, confining, enlarging, restraining, abrogating, re- 
 pealing, revising, and expounding of laws, covering matters of 
 all possible denominations, ecclesiastical or temporal, civil, 
 military, maritime, or criminal ; this being the place where that 
 absolute despotic power, which must in all governments reside 
 somewhere, is intended by the Constitution of these kingdoms." 
 * * " So Ions: as the English Constitution lasts, we may ven- 
 ture to affirm that the power of Parliament is absolute and 
 without control." J "There is no court," he says again, | "that 
 has power to defeat the intent of the Legislature, when couched in 
 such evident and express words as to leave no doubt whether it 
 was the intent of the Legislature or no." "Absolute power," 
 says Mr. Dwarris,^" " must be placed somewhere, and to it im- 
 plicit obedience must be paid. It can nowhere be so safely 
 placed as in the hands of those^who frame the laws, though the 
 laws they establish may sometimes be pernicious, opposed to 
 morality, and, as we can collecHt, to the divine will as meas- 
 ured by the laws of God, which must be the ultimate test ; 
 however laws may be unjust, but they will still be obligatory." 
 
 serrations on Coke's Reports, denounces the They are limitations upon the power of the 
 
 opinion with great severity. Dwarris, p. 481. crown, and not upon that of the Parliament. 
 
 As to parliamentary omnipotence, Lord Holt * * It is an historical truth, that the strug- 
 
 has quaintly said, "that it may do several gle there has constantly been, to put the real 
 
 things that look pretty odd ; " it can make or pretended prerogatives of the crown under 
 
 Malta in Europe, and can make a woman a restraint; sometimes by the barons, as in the 
 
 mayor or a justice of the peace; but it cannot time of the great charter ; sometimes by the 
 
 change the laws of nature so as to make a judges, as in the time of Lord Coke ; and 
 
 woman a man, or a man a woman. 2 Jon. 12; sometimes by the Parliament, and especially 
 
 fctephen Elec. L. p. 110 ; Dwarris, p. 523. the House of" Commons, as in the times of the 
 
 * Mr. Justice Brown has put this well, in great rebellion, and the act for the settlement 
 
 the recent case of The People v. Berber-rich of the succession, in 1688." 
 A Toynbee, 11 Howard Pr. R. 318. "The f 4 Inst. 36. 
 
 provisions of the great charter, and the acts 1 Bl. Com. Book i, ch. 2. 
 
 of laler times for the protection of life, liberty, ( Introd. 310. 
 
 and property, are statutory regulations which ^f Page 483. 
 
 Parliament may repeal or modify at pleasure. 
 
LEGISLATIVE POWER. 127 
 
 He suggests only two limitations : first, that all laws which 
 attempt to bind future Parliaments are, ipso facto, void ; * and 
 secondly, that if any provision of a statute conflicts with the 
 law of God and nature, the law itself will be respected, but the 
 vicious part will be deemed excepted out of the statute. He 
 says, " The English lawyers adopt a more cautious and a very 
 characteristic mode of proceeding. They do not inculcate 
 implicit obedience to a law which leads to absurd consequences, 
 or to an infraction of the natural or divine law; neither do 
 they proclaim the law itself (which may be immoral, but can- 
 not be illegal) of no validity, and null and void. They only 
 hold it inapplicable, and declare that the particular case is ex- 
 cepted out of the statute." f For this position Mr. Dwarris cites 
 no more recent authority than a dictum of Lord Coke ; nor can 
 I reconcile it with his previous reasoning. The distinction is, 
 I believe, one of a metaphysical and not of a practical charac- 
 ter ; and I apprehend that no modern case can be found where 
 the English judiciary have attempted to question the supremacy 
 of Parliament. Mr. Dwarris, himself, closes by saying, | "The 
 general and received doctrine certainly is, that an act of Parlia- 
 ment, of which the terms are explicit and the meaning plain, 
 cannot be questioned, or its authority controlled in any court 
 of justice." In the recent discussiou which took place in the 
 English courts, on the subject of the privilege of the House of 
 Commons, the house printer having been sued for an alleged 
 libel, and pleading in defence the orders and privileges of the 
 house, though the Court of King's Bench denied the validity 
 of the plea, the absolute power of Parliament was admitted. 
 "Parliament" said Lord Penman, " is said to be supreme ; I 
 most fully acknowledge its supremacy." *f It is on this princi- 
 ple too, that it is understood that private acts of Parliament are 
 upheld as a common mode of assurance.** 
 
 In this country, however, a disposition has been manifested, 
 and by high authority, to adhere to the doctrine of the earlier 
 
 * Dwarris, p. 479; Jenk. Cent. 27. 253 ; also, see Mr. Justice Coleridge's opinion 
 
 f Part ii, pages 484 and 623. in the same case, 11 Ad. & Ell. 253. 
 
 t 2 Inst. 25 ; 2 Inst. 84 ; Dwarris, 624. ** 2 Bl. Com. 344 ; 2 Kent Com. 448 ; 
 
 I Page 484. Powers v. Bergen, 2 Seld. 358. 
 
 \ Stockdale T. Hansard, 11 Ad. & Ell. 
 
128 LEGISLATIVE POWER. 
 
 English cases which we have cited, to deny the existence of any 
 despotic or arbitrary authority in the Legislature, and to assert 
 an inherent power in the judiciary, independently of constitu- 
 tional provisions, to annul a legislative enactment considered 
 by them to be contrary to the fundamental principles of natural 
 justice or morality. It will be useful to refer to some of the 
 cases. The clause in the Constitution of the United States, 
 Art. 5, of Amendments, that private property shall not be 
 taken for public use without just compensation, relates only to 
 the power of the federal Government, and operates as a restraint 
 on that Government alone. And no similar provision was in- 
 troduced into the Constitution of the State of New York till 
 the adoption of the Constitution of 1821 ; but in a case decided 
 by the Supreme Court of that State, before the adoption of that 
 Constitution, where the canal commissioners had been author- 
 ized to take land, but no provision had been made for compen- 
 sation, the court said that the constitutional provision was 
 merely declaratory of a great and fundamental principle of 
 government, and that any law violating that principle would 
 be deemed a nullity, as against natural right and justice. This 
 case was reversed in the Court of Errors on various grounds, 
 but in doing so, they said, " This equitable and constitutional 
 right to compensation, undoubtedly imposes it as an absolute 
 duty on the Legislature to make provision for compensation, 
 whenever they authorize an interference with private right." * 
 In the same State, Mr. Chancellor Walworth has said : f 
 
 * Rogers v. Bradshaw, 20 J. R. 735. Lan- erty for private use, and argues that this does 
 guage a good deal to the same effect was not fall within the phrase " legislative pow- 
 used in the People v. Platt, 17 J. R. 195; er." He then proceeds to say, "But the 
 but that case turned more properly on the ap- question does not necessarily turn on the SRC- 
 plicalion of the prohibitory clause in the Con- tion granting legislative power;" and the 
 stitution of the United States, restraining the main burthen of his argument is to show that 
 States from passing any law impairing the the net in question violated those provisions 
 obligation of contracts. The opinion of Mr. of the law which guarantee to the citizen, in 
 Justice Bronson in a familiar case in the State all questions affecting his rights, the protec- 
 of New York, relating to private roads, Taylor tion of the " law of the land," and " due pro- 
 v. Porter, 4 Hill, 140, is sometimes referred to cess of law." The case has often been relied 
 ns sanctioning the idea, of there being other on as claiming for the judiciary a general con- 
 restraints to be found in our Constitutions trol over the morality or justice of acts of 
 besides those which their letter contains ; but legislation. It does no such thing. It is only 
 it is no authority for any such inference, a clear, accurate, and sound exposition of ex- 
 That accurate lawyer, as will be seen when press constitutional provisions. The case is 
 we come to analyze the case more closely, cited with approbation in Powers v. Bergen, 
 puts his decision entirely on the express 2 Seld. p. 358. 
 
 terms of the Constitution ; he first shows that { Varick v. Smith, 5 Paige, 137. 
 
 the act authorizes the taking of private prop- 
 
LEGISLATIVE POWER. 129 
 
 " The principle upon which forced sales of private property were compelled 
 by the civil law for the public good, were certainly as extended as any Govern- 
 ment can ever claim consistently with the private rights of its citizens. And it 
 is not pretended that under the arbitrary government of the Roman emperors, 
 it was lawful or justifiable for the sovereign to take the property of one citizen 
 and give it to another, where the public interest was not concerned in such 
 transfer. Perhaps in England, where the Parliament is said to be omnipotent, 
 so far as the exercise of mere human power is concerned, there may be no 
 remedy for such an abuse of power where it is by a concurrent act of three 
 estates of the realm. But in a State which is governed by a written Constitu- 
 tion like ours, if the Legislature should so far forget its duty and the natural 
 rights of an individual, as to take his private property and transfer it to an- 
 other, where there was no foundation for a pretence that the public was to be 
 benefited thereby, I should not hesitate to declare such an abuse of the right of 
 eminent domain was an infringement of the spirit of the Constitution, and, 
 therefore, not within the general powers delegated by the people to the Legis- 
 lature." 
 
 In a recent case in New York, Mr. Justice Barculo reviewed 
 the whole subject, and came to the conclusion, independent of 
 any constitutional restriction, that the power of the Legislature 
 was not supreme, and that upon principle, as well as upon 
 authority, a legislative act, whether it be a positive enactment 
 or a repealing statute, which takes away the vested rights of 
 property of an individual for any purpose (except where prop- 
 erty is taken for public use and upon a just compensation), is 
 to be adjudged invalid, as being above the power and beyond 
 the scope of legislative authority.* And the same learned 
 judge, in a subsequent case, declared that in such cases the 
 rights of parties " rested not merely upon the Constitution, but 
 upon the great principles of eternal justice, which lie at the 
 foundation of all free Governments." f 
 
 In another case in New York, where land was devised to 
 trustees for the use of the testator's daughter for life, with re- 
 mainder in fee to her issue living at her decease, and for want 
 of such issue to all the grandchildren of the testator then living, 
 and during the life of the daughter a statute was passed author- 
 izing the trustees to sell the lands to pay certain charges, and 
 to invest the surplus, <fec., it was held no necessity being re- 
 cited in the statute, nor appearing by proof aliunde that the 
 
 * People v. Supervisors of Westchester, 4 f Benson v. Mayor of New York, 10 Bark 
 Barb. 64, 74. 223. 
 
 9 
 
130 LEGISLATIVE POWER. 
 
 act was void as being an unauthorized interference with private 
 property. And Mr. Justice Jewett, delivering the judgment of 
 the Court of Appeals, said,* " Here the sovereign and absolute 
 power resides in the people, and the Legislature can only exer- 
 cise such powers as have been delegated to it. The right of 
 eminent domain or inherent sovereign power, gives the Legisla- 
 ture the control of private property for public uses, and only 
 for such uses ; it follows that if the Legislature should pass an 
 act to take private property for a purpose not of public nature, 
 as, if it should provide through certain forms to be observed, 
 to take the property of one and give it (or sell it, which is the 
 same thing in principle) to another, or if it should vacate a 
 grant of property under the pretext of some public use, such 
 cases would be gross abuses of the discretion of the Legislature, 
 and fraudulent attacks on private rights, and the law would 
 clearly be unconstitutional and void."f 
 
 So, says Mr. Justice Strong, in the same State, " I am un- 
 willing to admit that there is any despotic power in any of our 
 political institutions. It is, I conceive, beyond the power of 
 the Legislature to tax one man, or the inhabitants of one 
 locality, exclusively for the benefit of another." J 
 
 In the State of Connecticut, the same doctrine has been de- 
 clared. Hosmer, J., dissented from the opinion of those who 
 assert the omnipotence of the Legislature in all cases where the 
 Constitution has not imposed an explicit restraint. He held, if 
 there should exist a case of direct infraction of vested rights 
 too palpable to be questioned, and too unjust to admit of vin- 
 dication, he could not avoid considering it a violation of the 
 social compact, and within the control of the judiciary. He 
 asked the question, " If a law were made without any cause, to 
 
 Powers et al. v. Bergen, 2 Seld. 358. unconstitutional, independently of constitu- 
 f The reasoning of this decision is not tional provisions. And the idea that the facts 
 very clear. It may be said, however, that it on which the Legislature decides and deter- 
 indirectly but evidently arrogates to the mines to act, must be set out in the act or 
 court a power of control over the acts of the otherwise appear, evidently substitutes the 
 Legislature, independently of constitutional judicial sense of discretion and correct deal- 
 restraint. The reservation of powers to the ing in the place of the law-making power and 
 people is a very doubtful doctrine, for there constitutional enactment, 
 are no powers specifically delegated to the \ People v. Edmonds, 15 Barb. 529. That 
 Legislature by the Constitution of the State courts have nothing to do with the impolicy 
 of New York. The case substantially asserts of statutes, see Leonard v. Wiseman, 31 Md. 
 that an abuse of discretion or a fraudulent 201. 
 attack on private rights, may render an act 
 
LEGISLATIVE POWER. 131 
 
 deprive a person of his property, or to subject him to imprison- 
 ment, who would not question its legality, or who would carry 
 it into effect?"* 
 
 So in Vermont, it has been said " that the exemption of a 
 particular person from a general liability by law attaching to 
 all other persons similarly situated, would be void, probably as 
 an act of special legislation, upon general principles of reason 
 and justice, like a particular act allowing one citizen perpetual 
 exemption from punishment for all offences, or from all liability 
 for torts." f And in the same State it has been said that, " alto- 
 gether aside from any express provision of the Constitution, a 
 statute taking property without necessity of a public character, 
 or without compensation in some form, would doubtless be re- 
 garded as entirely without the just limits of legislative power." J 
 And so it has been decided in North Carolina, | 
 
 " I cannot subscribe to the omnipotence of a State Legisla- 
 ture," says Chase, J., in the Supreme Court of the United 
 States,^" " or that it is absolute and without control, although 
 its authority should not be expressly restrained by the Consti- 
 tution 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 legislative 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 Legislature (for I cannot call 
 it a law) contrary to the great first principles of the social com- 
 pact, cannot be considered a rightful exercise of legislative 
 authority." , 
 
 In the Supreme Court, Mr. 'Justice Story has held this lan- 
 guage : " The fundamental maxims of a free government seem 
 to require that the rights of personal liberty and private prop- 
 erty should be held sacred. At least, no court of justice in 
 this country, would be warranted in assuming that the power 
 to violate and disregard them ; a power so repugnant to the coin- 
 
 * Goshen v. Stonington, 4 Conn. 209. \ Hutch v. Vermont Central R. R. Co. 25 
 
 f Hatch v. Vermont Central R. R. Co. 25 Vermont, 49. 
 
 Vermont pp. 49, 61. || Railroad Co. v. Davis, 2 Dev. & Bat. 45]. 
 
 1 Calder v. Bull, 3 Dall. 386. 
 
132 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 to be presumed to part with rights so vital to 
 their security without very strong and direct expressions of 
 such an intention." * 
 
 It will be observed that all these cases more or less directly 
 affirm the doctrine that there are certain restrictions on legisla- 
 tive 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 conclusion in regard to 
 the serious point which they present, it is necessary first to con- 
 sider 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 matter of posi- 
 tive and written law. The division of power was a leading 
 idea in the American mind at the time of the Revolution, and 
 all our State Constitutions bear its impress. Without, I be- 
 lieve, a single exception, they .divide the attributes of govern- 
 ment into three great branches, the executive, the legislative, 
 
 O ' C ' 
 
 and the judicial. But, though the State Constitutions generally 
 attempt to declare, with more or less accuracy, the powers of 
 the executive branch of the government, they appear to make 
 little effort to describe with precision the character and func- 
 tions of either the legislative or judicial department ; arid they 
 confine themselves, in almost every instance,f to the mere dec- 
 laration that the law-making and judicial powers shall be kept 
 separate and distinct; without endeavoring to define what is 
 the true nature, object, or scope of law, or what the correct 
 
 * Wilkinson v. Lcland, 2 Peters, 627. islative power, but I think with no very 
 
 f In New Hampshire, Constitution, Part marked success. 
 II, an effort has been made to define the leg- 
 
DIVISION OF POWER. 133 
 
 > 
 
 characteristics of a judicial proceeding. In a recent case in 
 New York,* it has been said, " Written Constitutions not only 
 declare of what the government shall consist, into what depart- 
 ments it shall be separated, * * * but they also prescribe 
 the exact confines within which these functions shall be exe- 
 cuted, to what subjects they may or may not extencj^ and the 
 degree of power, absolute or limited, which each separate de- 
 partment may exert." But this claims for our Constitutions 
 much more exactness than they possess. We find their lan- 
 guage of a very vague and general character, going, in fact, 
 little beyond the mere creation of the three great departments 
 by name. So the Constitution of the United -States declares, 
 Art. Ill, 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. Ill, " The executive power 
 shall be vested in a Governor." The Constitution of Maine 
 provides, f " The powers of this government shall be divided 
 into three distinct departments, the legislative, executive, and 
 judicial. No person or persons belonging to one of these de 
 partments shall exercise any of the powers properly belonging 
 to either of the others, except in the cases herein expressly 
 directed and permitted." So in Massachusetts, " In the gov- 
 ernment of this commonwealth, the legislative department shall 
 never exercise the executive and judicial powers, or either of 
 them ; the executive shall never exercise the legislative and ju- 
 dicial powers, or either of them ; the judicial shall never exercise 
 the legislative and executive 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 de- 
 partments shall assume or discharge the duties of any other." 
 So in Virginia,^ " The legislative, executive, and judicial powers 
 should be separate and distinct." In Alabama, the Constitution 
 declares,** " The power of the government of the State shall be 
 
 * Rodman v. Munson, 13 Barb. 63. [ Declaration of Rights, Art. 6. 
 
 f Art. III. 1 Bill of Rights, Art. 6. 
 
 \ Constitution, Part I, 30. ** Art, II. 
 
134 WHAT IS A LAW? 
 
 divided into three distinct departments, and each of them confided 
 to a separate body of magistracy, to wit : those which are legisla- 
 tive to one, those which are executive to another, and those which 
 are judicial to another. No person or collection of persons be- 
 ing one of those departments, shall exercise any power properly 
 belonging to either of the others, except in the instances here- 
 inafter expressly directed or permitted." * 
 
 A very little reflection is sufficient 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 already shown the difficulties attendant on this very gen- 
 eral language. 
 
 What is the legislative power \ What is a law ? Is it a 
 rule of universal application ; is it a rule of prospective appli- 
 cation ? Can it be made in opposition to the principles of natu- 
 ral 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 answered, how are we to 
 say with accuracy in what the legislative functions consist, or 
 where they stop ? The French Code, by a formal and express 
 provision, prohibits all retrospective legislation, and the princi- 
 ple is generally admitted to be sound ; but no such universal 
 restriction would answer with us, as our legislatures are con- 
 stantly passing laws of a retrospective 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 questioned ; and 
 the denial of the power would, in a new country, where forms 
 are often overlooked, lead to very serious consequences, f To 
 this we shall again have occasion to refer, when we come to 
 speak of retrospective statutes. So again, as to legislative acts 
 affecting private property. By constitutional provisions gener- 
 
 * Of this Constitution, the Supreme Court tion of the more general Constitutions of the 
 
 of the United States has said " that, though other States." Watkins v. Holman, 16 Pe- 
 
 somewhat peculiar, it is not substantially dif- ters, pp. 25 and 60. 
 
 ferent from that of Virginia. The particular f Syracuse City Bank v. Davis, 16 Barb, 
 
 inhibition of its Constitution only contains, in S. C. E. 188 ; 1 Kent's Com. p. 455. 
 terms, that which arises from the construe- 
 
LEGISLATIVE POWER. 135 
 
 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 
 law ? Does it come within the scope of the legislative, or of 
 the judicial functions ? 
 
 Nor are these merely speculative or abstract questions. We 
 shall find them presenting themselves in a large class of cases 
 which I am about to examine. The difficulty, generally, ap- 
 pears to have arisen from a want of clear perception as to the 
 true nature of a law ; or, in other words, a want of accurate 
 notions as to the boundary line which, under our system, di- 
 vides 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 to the term law, and to de- 
 fine the boundaries which separate the legislative from the judi- 
 cial power. 
 
 And first, of cases where the Legislature has sought to divest 
 itself of its real powers, (a) Efforts have been made, in sev- 
 eral cases, by the State Legislatures to relieve themselves of the 
 
 (a) Submission of Laws to Popular Vote. Statutes creating municipal incorpora- 
 tions, or imposing liabilities upon municipalities, or authorizing municipalities to in- 
 cur debts and obligations, or to make improvements, may be referred to the popular 
 vote of the districts immediately affected; in other words the people of such districts 
 may decide whether they will accept the incorporation or will assume the burdens. 
 This doctrine may be considered the settled law of the whole country, and the same 
 principle has frequently been applied in the case of other and similar local measures. 
 Bank of Rome v. Rome, 18 N. Y. 38 ; Starin v. Genoa, 23 N. Y. 439 ; Clarke v. Roch- 
 ester, 28 N. Y. 605 ; Bank of Chenango v. Brown, 26 N. Y. 467 ; Corning v. Greene, 
 23 Barb. 33; Grant v. Courter, 24 Barb. 232; Robinson v. Bidwell, 22 Cal. 379; Ho- 
 bart v. Supervisors, 17 Cal. 23; Williams v. Cammack, 27 Miss. 209; Alcorn v. Ha- 
 mer, 38 Miss. 652 ; Call v. Chadbourne, 46 Me. 206 ; State v. Wilcox, 45 Mo. 458 ; 
 State v. Scott, 17 Mo. 521 ; Smith v. McCarthy, 56 Penn. St. 359 ; Commonwealth v. 
 Painter, 10 Penn. St. 214 ; San Antonio v. Jones, 28 Tex. 19 ; Louisville, &c. R. R. v. 
 Davidson Co. 1 Sneed. 637 ; State v. O'Neil, 24 Wise. 149 ; Cotton v. Lion County, 
 6 Plor. 610. 
 
 A law establishing free schools in a particular district, and made to depend as to 
 its going into effect on the vote of such district, was upheld in Bull v. Read, 13 
 Gratt. 78. The same doctrine has been held of any local law. Hobart v. Supervis- 
 ors, 17 Cal. 23 ; People ex rel. Wilson v. Salomon, 51 111. 38. And even of a law 
 affecting the whole State. Smith v. Janesville, 26 Wise. 291. An act amending a 
 city charter, and going into effect as a whole independently of assent, but requiring 
 
136 LEGISLATIVE POWER. 
 
 responsibility of their functions, by submitting statutes to the 
 will of the people, in their primary capacity. But these pro- 
 assent as to certain sections before they were to be acted upon, is valid. Clarke v. 
 Rochester, 28 N. Y. 605 ; 24 Barb. 446. 
 
 A fortiori, a grant of power to do certain acts upon obtaining the consent of 
 specified persons, is valid. Morgan v. Monruouth PI. R. Co. 2 Dutch. 99. 
 
 The following are instances in which statutes providing for a submission to the 
 popular vote of the localities affected, have been sustained : Providing for the change 
 and location of a county seat, Commonwealth v. Painter, 10 Penn. St. 214; for the 
 uniting specified towns or districts, Commonwealth v. Judges, 8 Penn. St. 391 ; Call 
 v. Chadbourne, 46 Me. 206 ; for the division of a county or town, State v. Reynolds, 
 5 Gilm. 1; for a tax to be laid upon a district for the purpose of constructing 
 levees, Alcorn v. Hamer, 88 Miss. 652. 
 
 A license law depending for its going into effect in any county upon the popular 
 vote of such county, is invalid. State v. Swisher, 17 Tex. 441 ; Geebrick v. State, 5 
 Clarke (la.) 491 ; Packer v. Commonwealth, 6 Penn. St. 507 ; Rice v. Foster, 4 Harr. 
 (Del.) 479; State v. Weir, 33 Iowa, 134; and the same where the vote was to be by 
 towns. Mishmeier v. State, 11 Ind. 484; Maize v. State, 4 Ind. 342; but see Ham- 
 mond v. Haines, 25 Md. 541, where a statute allowing a particular municipality to de- 
 termine by popular vote whether such licenses should be granted therein, was sustained. 
 
 Where the Constitution provided that places for holding courts should be "pro- 
 vided by law," and the Legislature enacted that they should be held at the county 
 seat, and then gave the counties the power to choose their county seats, this was 
 held to be a compliance with the Constitution. Upham v. Supervisors, 8 Cal. 378. 
 
 A statute submitting to the people of several municipalities the question whether 
 they should be consolidated, is valid. Smith v. M'Carthy, 56 Peun. St. 359. 
 
 In the following cases the reference to the people was held not to be a reference 
 of the question whether the proposed act should be a law. Santo v. State, 2 Clarke 
 (la.), 165 ; Beneke v. State, 9 Iowa, 203. And it seems that it is the provision for a 
 reference to the people, and not the whole statute that is to be considered void. Ibid. 
 
 Where the Constitution provided that no county of a certain size should be 
 di vided without a popular vote, and an act for the division of such a county provided 
 in one section that the " act " should be submitted to popular vote, and, in another 
 section, that the act should take effect forthwith, it was held that the question of 
 division and not the act, was intended to be submitted, and that therefore the statute 
 was valid. State v. El wood, 11 Wise. 17. 
 
 Where the Constitution provided that no law, except in certain specified cases, 
 should be passed to take effect upon the approval of any other authority than the 
 General Assembly, it was held that an act giving township trustees power to pur- 
 chase land for a cemetery, etc., provided that the electors should so vote, was consti- 
 tutional. Paris Township v. Cherry, 8 Ohio, N. S. 564. 
 
 The Constitution of Minnesota provides that all laws changing county lines be- 
 fore taking effect shall be submitted to the electors of the county. A general statute 
 that upon petition of a certain proportion of the electors of any county for a change, 
 the question should be submitted to a vote of the people, without providing for any 
 decision of the question by the Legislature in the first instance, was held void, the 
 court holding that there must be a complete law, and then a vote as to its going into 
 effect. Roos v. Swenson, 6 Minn. 428. 
 
 A clause in a general act for the incorporation of towns, that towns already in- 
 
LEGISLATIVE POWER. 137 
 
 ceedings have been held, and very rightly, to be entirely un- 
 constitutional 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 introduction of practices of 
 this kind would remove all checks on hasty and improvident 
 legislation, and greatly diminish 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 proceed- 
 ing 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 
 
 * Thome v. Cramer, 15 Barb. 112; Barto f Parker v. Commonwealth, 6 Barr. 507. 
 
 v. Himrod, 4 Seld. 483. 
 
 corporatcd may by popular vote adopt such of its provisions as they please, was up- 
 held in Bank of Chenango v. Brown, 26 N. Y. 467 ; and the same was held of an act 
 authorizing the electors of a county to determine by vote whether the running at 
 large of sheep and swine should be restrained. Dalby v. Wolf, 14 Iowa, 228. 
 
 In general, statutes fully enacted by the Legislature may be conditional in their 
 operation, to take effect upon some future event. State v. Parker, 26 Vt. 357 ; Bull 
 v. Read, 13 Gratt. 78 ; State v. Kirkby, 29 Md. 85 ; Peck v. Weddell, 17 Ohio, N. S. 
 271. And it has been held that if a general law is passed to take effect at one or the 
 other of two specified times, the question may be referred to a popular vote of the 
 whole State, at which of these times it shall go into effect. State^v. Parker, 26 Vt. 
 357 ; and see People v. Collins, 3 Mich. 343, in which the court was equally divided. 
 
 Subject to the foregoing exceptions and limitations, the question whether a gen- 
 eral law shall go into effect or not cannot be referred to a popular vote of the whole 
 State. People v. Stout, 23 Barb. 349 ; State v. Wilcox, 45 Mo. 458 ; State v. Field, 
 17 Mo. 529; State v. Swisher, 17 Tex. 441 ; State v. Beneke, 9 Iowa, 203; Bank of 
 Chenango v. Brown, 26 N. Y. 467. Nor the question whether such a law shall be 
 repealed. Geebrick v. State, 5 Iowa, 491 ; Packer v. Commonwealth, 6 Penn. St. 
 507; Rice v. Foster, 4 Harr. (Del.) 479 ; State v. Weir, 33 Iowa, 134. 
 
138 LEGISLATIVE POWER. 
 
 principle is now framed into a constitutional provision which. 
 vests the legislative authority in a Senate and House of Repre- 
 sentatives, and declares that " no law shall be passed, the tak- 
 ing 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 relates to its 
 submission to the 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 delegated 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, (a) This practice has 
 
 * Maize v. The State, 4 Indiana, 342. See the law may commit something to the dis- 
 
 an able and independent opinion by Stuart, J. cretion of the other departments; and the 
 
 But I doubt whether, logically, the whole act precise boundary of this power is a subject 
 
 should not fail. j\'on cmistat that the Legisla- of delicate and difficult inquiry, into which a 
 
 ture would have passed the law without the court will not enter unnecessarily." See, also, 
 
 clause in question. The New York and Penn- United States Bank v. Halstead, 10 Wheaton, 
 
 sylvania decisions appear to me, in this re- 51, where the delegation of power, as far as 
 
 spect, to rest on a sounder basis. the process of the courts was concerned, was 
 
 f Wayman v. Southard, 10 Wheaton, pp. expressly held valid. [The Legislature may 
 
 1, 46. Still, it was intimated, in this case, that give to a board of health power to make by- 
 
 the federal Legislature could delegate to the laws. Coe v. Schultz, 47 Barb. 64 ; ex parte 
 
 courts power to make rules for their process ; Shrader, 33 Cal. 279; but see Schuster v. 
 
 and it was said, "The difference between the Metropolitan Board, 49 Barb. 450. The 
 
 departments undoubtedly is, that the Legisla- power may be given to municipal corporations 
 
 ture makes, the executive executes, and the ju- to make sanitary regulations. Bliss v. Krauss, 
 
 diciary construes the law; but the maker of 16 Ohio, K S. 55.] 
 
 (a) The subject-matter of the text and of this note properly belongs to the dis- 
 cussion of the constitutional provisions respecting " due process of law " and " the 
 law of the land." The exact question proposed in the text and in this note is, What 
 is a law, within the meaning of these provisions, so as to be within the province of a 
 Legislature, in contradistinction from a judicial act, which is within the jurisdiction 
 of courts alone ? In general, it is the function of courts to deal with facts already 
 transpired, and to proceed upon the law as it then stands, and of the Legislature to 
 
LEGISLATIVE POWER. 139 
 
 encountered similar opposition, and has been unfailingly and 
 severely discountenanced. The Legislature is to confine itself 
 
 declare the rule for future cases. Law of the land means due process of law, not an 
 arbitrary act of the Legislature. Craig v. Kline, 65 Penn. St. 399. 
 
 Any legislation which, by changing the fundamental relations and vested rights 
 of the parties, attempts to reverse the ruling of the court on a past case, or to control 
 its decision in a pending case, is a usurpation of the judicial function, and is void. 
 Thus, an act purporting to validate an assignment in insolvency, already declared 
 void by the highest court of the State, is a judicial act, and invalid. Denny v. Mat- 
 toon, 2 Allen, 361. For the same reason, it seems, the Legislature cannot provide for 
 deduction from terms of imprisonment, according to a scale for good behavior. State 
 v. Halloway, 42 Penn. St. 446. A statute of Congress providing that the acceptance 
 of a pardon from the President shall be proof of the commission of the criminal acts 
 pardoned, and that such pardon shall not be considered by the courts in support of 
 certain claims against the United States (the Supreme Court having previously de- 
 cided that pardoned persons might maintain such claims), is unconstitutional and 
 void, since it seeks to reverse the decisions of the courts, and to prescribe a rule to 
 them in particular cases. United States v. Klein, 13 Wai. 128. A statute intended 
 to deprive a plaintiff of the benefit of a judgment obtained by him, is invalid. Had- 
 field v. Mayor, &c. 6 Bobt. 501. Nor has the Legislature power to open judgments. 
 Davis v. Menasha, 21 Wise. 491 ; Atkinson v. Dunlap, 50 Me. Ill; Taylor v. Place, 
 4 R. I. 324; Young v. State Bank, 4 Ind. 301 ; Baggs' Appeal, 43 Penn. St. 512; 
 Miller v. Gibson, 63 N. C. 635 ; Griffin's Ex'or v. Cunningham, 20 Gratt. 31 ; see, 
 also, U. S. v. Samperyac, 1 Hemp. C. C. 118 ; Burch v. Newbury, 10 N. Y. 374, per 
 Jewett, J. Nor to restore discontinued appeals. Carleton v. Goodwin's Ex'or, 41 
 Ala. 153. Nor to prohibit the issuing of an injunction in a particular case. Guy v. 
 Hermance, 5 Cal. 73. The Legislature cannot, by declaratory statute, give a con- 
 struction to the Constitution, which shall be binding on the courts. Calhoun v. 
 McLendon, 42 Geo. 405. Nor declare the meaning of an existing statute, so as to 
 affect pending suits and vested rights. People v. Supervisors, 16 N. Y. 424 ; Reiser 
 v. William Tell Ass. 39 Penn. St. 137 ; Trask v. Green, 9 Mich. 358, 366 ; but see 
 Savings Bank v. Allen, 28 Conn. 97 ; Tilford v. Ramsey, 43 Mo. 410. 
 
 The Legislature may, it seems, authorize a court to re-open a particular case, if 
 such court is satisfied, on the facts shown, that the ends of justice will be promoted 
 thereby. Calvert v. Williams, 10 Md. 478. But a statute allowing the court to grant 
 a divorce between particular individuals is a judicial decree, and not a law, and is 
 void. Simonds v. Simonds, 103 Mass. 572. The change of venue, however, in a 
 particular case, by the Legislature, is not a judicial act. Smith v. Judge, 17 Cal. 
 547. 
 
 Notwithstanding the generality of the rule above illustrated, and notwithstand- 
 ing the general theory upon which the government is framed, it is impossible to sep- 
 arate the judicial and the legislative functions absolutely. The Legislature must, in 
 matters of public concern, frequently exercise quasi -judicial powers must enact 
 measures which are essentially judicial. The following are a few illustrations of this 
 principle : In Massachusetts, the Legislature may, by commissioners, apportion the 
 expense of maintaining a highway upon the counties through which it runs. Hing- 
 ham, &c. Co. v. Norfolk, 6 Allen, 353; see, also, Salem Turn. Co. v. Essex Co. 100 
 Mass. 282; Commonwealth v. Newburyport, 103 Mass. 129 ; Haverhill Bridge Co. v. 
 Essex Co. 103 Mass. 120 ; Dow v. Wakefield, 108 Mass. 267 ; Waterville v. County 
 
140 LEGISLATIVE POWER. 
 
 to making laws, and cannot make decrees or determine private 
 controversies. It has been said, that which distinguishes a ju- 
 
 Comm'rs, 59 Me. 80. And the Legislature may apportion payments to be made for a 
 bridge, contracted for by a county, between such county and a new county carved 
 out of it. People v. Alameda, 26 Cal. 641. And may apportion debts where a town 
 is formed out of two old ones. State v. Elvins, 3 Vroom. 362. 
 
 The Legislature is not the final judge as to the forfeiture of a charter for rnisuser, 
 non-user, or abuse. Commonwealth v. Pittsburg, &c. R. R. 58 Penn. St. 26. 
 
 Private Statutes in Relation to Persons not Sui Juris, Charities, and the Like. 
 Not only in matters of public concern, but in strictly private matters, the Legislature 
 may, under some special circumstances, and within well-defined limits, exercise ju- 
 dicial functions and enact measures which are strictly judicial. The cases cited are 
 illustrations and examples of this power and practice. The reader is referred to them 
 for a discussion of the principle upon which the Legislature proceeds, and the limit- 
 ations upon its power. Statutes have been sustained in many instances which ao- 
 thorize sales by executors, guardians, and the like, where the parties in interest are 
 not sui juris. Kneass' Appeal, 31 Penn. St. 87; Matter of Bull, 45 Barb. 334; Leg- 
 gett v. Hunter, 19 N. Y. 445 ; McComb v. Gilkey, 29 Miss. 146 ; Ward v. New En- 
 gland, &c. Co. 1 Cliff. C. C. 565 ; Davis' Lessee v. Helbig, 27 Md. 452; Stewart v. 
 Griffith, 33 Mo. 13 ; DeMill v. Lockwood, 3 Blatch. C. C. 56. But Legislature can- 
 not authorize or validate a sale of laud devised with a restriction upon alienation. 
 Stewart v. Griffith, 33 Mo. 13, 24. The Legislature may also authorize sale of land 
 held in trust for life tenants, with remainder to heirs, upon security being given for 
 investment of the proceeds in other lands upon the same trusts. Clarke v. Hayes, 9 
 Gray, 426. Where a married woman, to whom land had been devised for life, with- 
 out power of alienation, remainder to her heirs, conveyed in fee, and the Legislature 
 passed an act confirming her deed, such act was held void. Shonk v. Brown, 61 
 Penn. St. 320. 
 
 The Legislature possesses the same general power in cases of charities e. g., it 
 may vest the title of trustees of charities in a corporation. Matter of New York, &c. 
 School, 31 N. Y. 574. A statute appointing a trustee to fill a vacancy under a deed 
 of trust, the appropriate court having been suspended, was held valid. Hindman v. 
 Piper, 50 Mo. 292. It was held iri~ Delaware that where land had been devised in 
 trust for a charity, to be rented and not sold, the Legislature could not authorize it 
 to be converted into personal property, although such conversion would be for the 
 benefit of the trust. Tharp v. Fleming, 1 Houst. 580. Otherwise in Connecticut. 
 Stanley v. Colt, 5 Wai. 119. The Legislature cannot, by private act. authorize the 
 sheriff to sell, in a particular case, after the time allowed by law. Taylor v. Allen, 
 67 N. C. 346. 
 
 The Legislature cannot, in general, order sale of a person's interest who is sui 
 juris. Kneass' Appeal, ubi sup. ; Schoenberger v. School Directors, 32 Penn. St. 34. 
 But in Pennsylvania sale may be so ordered where it is necessary for purposes of 
 partition, even though the parties are sui juris. Fullerton v. McArthur, 1 Grant's 
 Cases, 232. Qu., if all the parties are sui juris. It has been held that the Legislature 
 may, by special act, authorize the sale of lands of a decedent to pay his debts. 
 Florentine v. Barten, 2 Wai. 210. The contrary has also been held, and such power 
 denied, unless it were the carrying out of a judicial proceeding ascertaining the debts, 
 &c. Rozier v. Fagan, 46 111. 404. And a statute authorizing an administrator to 
 sell the real estate of his intestate for purposes other than the payment of his debts 
 
LEGISLATIVE POWER. 141 
 
 dicial from a legislative act is, that the one is a determination 
 of what the existing law is in relation to some particular thing 
 
 and charges of administration, or the support of the family, is void in California. 
 Brenham v. Story, 39 Cal. 179. By the general law of California, an administrator 
 has a large control of the real estate as assets. 
 
 The Constitution of Michigan provides that the Legislature shall not authorize, " by 
 private or special law, the sale or conveyance of any real estate belonging to any per- 
 son." An act authorizing a particular Plank Road Co. to mortgage its road, was held 
 not to fall within this restriction, but to be a mere amendment of its charter, and to 
 be valid. Joy v. Jackson, &c. Co. 11 Mich. 155. 
 
 The Tennessee Constitution says : " The Legislature shall have no power to sus- 
 pend any general law for the benefit of any particular individual, nor to pass any law 
 for the benefit of individuals, inconsistent with the general laws of the land." A 
 statute was passed, limiting to a period of six months from the passage thereof, actions 
 for slaves which had been sold under judicial sale, under the provisions of a certain 
 special act, and where heirs, legatees, or distributees were not parties to the proceed- 
 ings, held, unconstitutional and void. Morgan v. Reed, 2 Head, 276. 
 
 Curative Statutes. Broad powers haye sometimes been attributed to Legislatures 
 acting by means of curative statutes, especially in matters of public concern, so that 
 even decisions and judgments of the courts, legal and valid when rendered, have 
 sometimes been annulled or avoided. It is not pretended, however, that the Legis- 
 lature can, in general, set aside or make of no effect a judgment establishing private 
 rights. When such effect has been produced, it is simply as an incident to the power 
 of the Legislature to cure irregularities in legislative or administrative proceedings. 
 To illustrate : A statute legalizing certain appropriations, infected with irregularity, 
 was held to make the proceedings valid ab initio, and therefore to destroy the effect 
 of an intervening judgment declaring them invalid. King v. Course, 25 Ind. 202. 
 And where a contract, entered into under an ordinance, had been pronounced void 
 by the court, because the ordinance itself had not been recorded, as required by the 
 statute, a subsequent statute removed the difficulty and overcame the adverse decision. 
 Commonweath v. Marshall, 69 Penn. St. 328. In these and similar cases the defect 
 or irregularity did not go to the essence or foundation of the proceeding: it was in 
 respect to something of mere form, which the Legislature might have dispensed with 
 originally ; although it rendered the proceeding invalid in strict law, yet, as a matter 
 of abstract right and justice, the proceeding ought to stand. Thus, in the last case, 
 the ordinance was properly passed, the contract under it properly made, and the 
 subsequent neglect to record the ordinance did not affect the just and equitable rela- 
 tions of the parties, however much it may have affected their strict legal relations. 
 The Legislature, therefore, by curing the defect, carried out the real intentions and 
 sustained the just rights of those interested; and the intervening judgment did not 
 change those intentions, relations, and abstract rights ; but being a mere incident, it 
 was removed with the formal defect upon which it was based. 
 
 In another large class of cases, it is held that the Legislature cannot disturb judg- 
 ments cannot make valid what the courts have pronounced void. In these cases it 
 will be found that the element of invalidity was essential, that ifc affected the entire 
 relations of the parties, and that the judgment did not, in fact, add anything to the 
 existing defect which was itself beyond the curative power of the Legislature. The 
 following cases are illustrations : The Legislature cannot validate an assignment in 
 insolvency which, has been declared void by the court. Denny v. Mattoon, 2 Allen, 
 
142 LEGISLATIVE POWER. 
 
 already done or happened, while the other is a predetermina- 
 tion of what the law shall be for the regulation and govern- 
 
 361. Nor authorize the collection of an assessment already pronounced void by the 
 court. Mayor, &c. v. Horn, 26 Md. 194. Nor validate a sheriff's deed under which 
 the court has held that no title passed. Menges v. Dentler, 33 Penn. St. 495. Nor, 
 it seems, validate defective pleadings without an amendment. People v. Maripoosa 
 Co. 31 Cal. 196. . Nor declare a man and woman husband and wife, where the man 
 had a wife living from whom he had been divorced for his desertion, and without 
 leave to marry again. White v. White, 105 Mass. 325. 
 
 Where a suit has been commenced to set aside a deed, or proceeding, or transac- 
 tion, it is at least doubtful whether curative legislation is not an interference with 
 the judicial function, and void. Thus, where a married woman, not of age, had 
 released her dower, and afterwards commenced proceedings to avoid her release, it 
 was held that a curative statute could not validate it. Adams v. Palmer, 51 Me. 480. 
 But, on the other hand, it was held that the Legislature may cure irregularities in the 
 organization of a school district, attempted under a general law, although it could 
 not, by special act, incorporate the district ; and although the organization would 
 have been wholly invalid without this subsequent confirmation, and although a suit 
 was pending involving the validity of the organization. State v. Squires, 26 Iowa, 
 340. 
 
 Curative statutes may have the effect of taking away property without due 
 process of law, even though not objectionable on the ground of their interference 
 with judicial decisions. Such effect would, of course, render them unconstitutional- 
 Where the validating of an act, proceeding, or transaction by a curative statute 
 would divest an intervening vested title or right, and especially where the act, pro- 
 ceeding, or transaction was originally not merely defective or voidable, but void, the 
 curative statute will not, it seems, avail, even though enacted before any legal steps 
 in disaffirmance had been taken. Thus, it has been held that the Legislature cannot 
 validate defective acknowledgments of a deed, so as to affect the vested rights of a 
 purchaser at sale on execution against the grantor. Brinton v. Seevers, 12 Iowa, 389 ; 
 and see Thompson v. Morgan, 6 Minn. 292. Nor can the Legislature confirm a pat- 
 ent or survey when absolutely void, so as to override an intervening title. Sherwood 
 v. Fleming, 25 Tex. Su. 408; Wright v. Hawkins, 28 Tex. 452. But it was held in 
 Wildes v. Van Voorhis, 15 Gray, 139, that the Legislature may provide that a hus- 
 band's past deed of land, which was exempted to the extent of $800 as a homestead, 
 shall be valid (though the wife did not join) to convey the excess over $800, subject 
 to dower, as against a purchaser of the husband's interest. 
 
 It has been held that tax proceedings, or other proceedings taking away a right 
 or imposing a burden, cannot be validated, where the defects in them are so essential 
 as to make them void ; for example, a tax where there was no valuation. People v. 
 McCreery, 34 Cal. 432. Or where a tax deed is void, as'between the parties, for un- 
 certainty of description. Orton v. Noonan, 23 Wise. 102. Or where such a deed 
 covers land not subject to taxation. Taylor v. Miles, 5 Kans. 498, 511. Or where 
 the deed was void for want of authority to levy the tax. Hopkins v. Mason, 61 
 Barb. 469. Or where a judgment for taxes upon constructive notice is void for 
 irregularities. Nelson v. Rountree, 23 Wise. 367. 
 
 A tax deed cannot, it seems, be made conclusive evidence of essential facts e. g. y 
 assessment and notice. Abbott v. Lindenbower, 42 Mo. 162; and see, also, Corbin v. 
 Hill, 21 Iowa, 70 ; Wright v. Cradlebaugh, 3 Nev. 341 ; Wantlan v. White, 19 Ind. 
 
LEGISLATIVE POWER. 143 
 
 ment of all future cases falling under its provisions.* This, like 
 other definitions on this subject, maybe defective; but the gen- 
 
 * Bates v. Kimball, 2 Chipp. 77. 
 
 470 ; White v. Flynn, 23 Ind. 46 ; Hope, &c. Ins. Co. v. Flynn, 38 Mo. 483. But it is 
 otherwise where irregularities only are cured. Thus, a statute providing that no 
 irregularity in the levy or assessment shall be set up in defence to an action for taxes, 
 and that certain documents shall be prima facie evidence of delinquency, is valid. 
 People v. Seymour, 16 Cal. 332. And also a statute providing that after the record- 
 ing of a tax deed it shall not be invalidated by any irregularities, provided the land 
 was subject to the tax, and it was not paid. Smith v. Cleveland, 17 Wise. 556 ; see, 
 also, Allen v. Armstrong, 16 Iowa, 508, where notice seems to be held a non-essential. 
 An act curing irregularities in previous tax levies is constitutional. Musselman v. 
 Logansport, 29 Ind. 533; Bellows v. Weeks, 41 Vt. 590. But an act curing "any 
 omission, defect, or irregularity" was held not to cover an assessment to the husband, 
 jointly with his own, of lots owned by the wife. Hamilton v. Fond du Lac, 25 
 Wise. 490. 
 
 The Legislature may cure irregularities in the subscription of a municipal corpo- 
 ration, town, or county in aid of a railroad. McMillin v. Boyles, 6 Clarke (la.) 304. 
 But if the proceeding was void for want of authority, it seems the Legislature cannot 
 validate it, so as to bind the municipality, without its consent. Hasbrouck v. Mil- 
 waukee, 13 Wise. 37; Comm'rs of Shawnee Co. v. Carter, 2 Kans. 115. 
 
 The Legislature may validate an ordinance for grading streets, which had become 
 void, because not duly recorded, and make valid the lien on lot owners. Schenley 
 v. Commonwealth, 36 Penn. St. 29 ; Commonwealth v. Mai-shall, 69 Penn. St. 328 ; 
 see, also, Mayor v. State, 3 Vroom, 453; Dean v. Charlton, 23 Wise. 590; May v. 
 Holdridge, f 23 Wise. 93 The resolution of a common council assenting to the loca- 
 tion of a railroad, may be validated. People v. Law, 34 Barb. 494 ; Wetmore v. 
 Law, /&. 515. And the Legislature may legalize the establishment of county roads. 
 Bennett v. Fisher, 26 Iowa, 497. But where proceedings for taking land are void, 
 for want of jurisdiction, they cannot be cured. Richards v. Role, 68 Penn. St. 248. 
 That the Legislature may cure irregularities in a sale of public land, under a statute, 
 see State v. Sickler, 9 Ind. 67; Mayers v. Byrne, 19 Ark. 308. Or in a municipal 
 grant of land. Payne v. Treadwell, 16 Cal. 220. Or may cure other municipal ir- 
 regularities. Allen v. Archer, 49 Me. 346 ; People v. Ingham Co. 20 Mich. 95. 
 
 The Legislature may confirm a sale of infant's estate made under order of Probate 
 Court, without the appraisement required by law. Davis v. State Bank, 7 Ind. 316; 
 and see, alsof Thornton v. McGrath, 1 Duv. (Ky.) 349 ; Boyce v. Sinclair, 3 Bush 
 (Ky.) 261. 
 
 The foregoing are illustrations of the power of the Legislature to cure irregulari- 
 ties and defects which do not go to the essence of a proceeding. It is a general 
 principle, that when an act, proceeding, or transaction is void, and not merely void- 
 able on account of some formal defect, it cannot be cured by legislative action ; 
 whatever discrepancy in the decided cases exists and there is much discrepancy 
 seems to result from a disagreement as to what constitutes an essential defect, rather 
 than from any disagreement as to the principle itself. 
 
 Thus, it is held in one case that a fraudulent sale cannot be confirmed by statute. 
 White Mts. R. R. v. White Mts. R. R. 50 N. H. 50. And in another, that the deed 
 of a married woman, void on account of defective acknowledgment, cannot be valid- 
 
144 LEGISLATIVE POWER. 
 
 eral 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 objec- 
 tionable laws, but they will be found, generally, to range under 
 three heads : * First, Where the Legislature, by a special act, 
 has sought to dispense with a general law in favor of an indi- 
 vidual ; Second, Where the act is one of legislation for a partic- 
 ular case ; Third, where the act is, in its nature, judicial i. 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 
 interposed to arrest the operations of the State Legislatures ; 
 and the Legislatures, with equal intelligence and virtue, have, 
 in a great majority of cases, recognized the wisdom and pro- 
 
 * Davison v. Johonnot, 7 Met. 389. 
 
 ated. Alabama, &c. Ins. Co. v. Boykin, 38 Ala. 510 ; but see Journeay v. Gibson, 56 
 Perm. St. 57. And the decided weight of authority is that such and similar deeds 
 may be validated, because the Legislature is thereby carrying out the intention of 
 the parties, and is doing an act just and right. In Deutzel v. Waldie, 30 Cal. 138, a 
 statute validating a past power of attorney of a married woman, and conveyances 
 thereunder, was sustained. In Missouri, a statute legalizing the deed of an insane 
 person was held void, under a provision of the State Constitution, forbidding "retro- 
 spective " legislation. Routsong v. Wolf, 35 Mo. 174. An act validating usurious 
 contracts, previously void in part, was upheld in Savings Bank v. Allen, 28 Conn. 97 ; 
 but see Reiser v. William Tell, &c. Assn. 39 Penn. St. 137. A term of court, held 
 without authority of law, may, it seems, be legalized. Walpole v. Elliott, 18 Ind. 
 258. 
 
 The Constitution of Ohio contains the following provision : " The General Assem- 
 bly shall have no power to pass retroactive laws, or laws impairing the obligation of 
 contracts ; provided, however, that the General Assembly may, by general laws, au- 
 thorize courts to carry into effect the manifest intention of parties and officers, by 
 curing omissions, defects, and errors in instruments and proceedings arising out of 
 their want of conformity with the laws of this State, and upon such terms as shall 
 be just and equitable." It was held under this provision that a statute authorizing 
 the correction of errors or mistakes in the deed, &c. of any husband or wife, hereto- 
 fore or hereafter executed, intended to convey or incumber the land of the wife, was 
 valid. Goshorn v. Purcell, 11 Ohio, K S. 641. Also, an act was held valid which 
 prohibited injunctions on account of errors and irregularities in certain proceedings 
 pending, and gave a special remedy. Miller v. Graham, 17 Ohio, N. S. 1. 
 
 It was held in California that a ratification of an invalid ordinance does not oper- 
 ate, by relation, to make such ordinance go"od from its enactment, but only from the 
 enactment of the curative statute ; and thus, consequently, an invalid ordinance, 
 having required ten days notice of a sale, and the confirmatory statute being passed 
 only one hour before the sale took place, the sale was void. McCracken v. San 
 Francisco, 16 Cal. 591. 
 
LEGISLATIVE POWER. 145 
 
 
 
 priety 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 suit of a party, from his 
 imprisonment, and freeing his 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 the commissioner 
 on claims of an insolvent estate, after the time allowed by law 
 for taking appeals in such cases, is void, " as being in the nature 
 of a sentence 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 limited by the general law for its renewal. J So in 
 Massachusetts, where the Declaration of Rights 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 Leg- 
 islature 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 pre- 
 scribed by the general laws of the commonwealth, is not im- 
 perative; 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 let- 
 ters of administration, has been held void. The act, it was 
 said, takes away from some their vested rights and gives them 
 to others, changes the nature of obligations, and dispenses with 
 
 * Ward v. Barnard, 1 Aik. 121; Keith v. general act of the same kind \a void. Hill 
 
 Ware, 2 Verm. 175, decides the same point ; v. Town of Sunderland, 3 Verm. 507. 
 
 see, also, Lyman v. Mower, 2 Verm. 517 ; and Bradford v. Brooks, 2 Aik. 284. 
 
 Kendall v. Dodge, 3 Verm. 361. j Picquet, App't, 5 Pick. 65. See also 
 
 f Staniford v. Barry, 1 Aik. 315. So a Davison v. Johonnot, 7 Met. 389. 
 
 10 
 
140 LEGISLATIVE POWER. 
 
 
 
 the liabilities which all others in similar situations would lie 
 under.* So in Vermont, an act granting an appeal beyond the 
 time allowed by law, is a decree rather than a law, and void.f 
 
 So an act of divorce giving alimony to the wife, has been 
 declared to be an exercise of judicial powers, and void.J Legis- 
 lative divorces, like acts of attainder, are of English origin ; and 
 both equally result from a disregard of the true limits of legis- 
 lation. 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.|| So 
 an act of a State Legislature authorizing a party to sell so much 
 of the lands of a deceased person as would be sufficient to raise 
 a given sum, and directing the proceeds to be applied to the 
 extinguishment of certain claims against the estate of the de- 
 
 o o 
 
 ceased, is a judicial act, and as such unconstitutional and void.^[ 
 In a case where a statute of limitations had run against 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 been commenced within the 
 time prescribed by law ; but the court gave judgment notwith- 
 standing the law, on the ground that the power of dispensing 
 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.ft So in Indiana, it was held 
 that the allowance of a new trial was a judicial act, and that 
 an act of the Legislature granting one, was unconstitutional and 
 void.JJ And the Supreme Court of New York has well said, 
 " The Legislature has no right to determine facts touching the 
 rights of individuals.! | 
 
 * Officer v. Young, 5 Yerg. 320. a new trial after the term of appealing had 
 
 | Bates v. Kimball, 2 Chip. 77. elapsed, it was held to he constitutional on 
 
 \ Crane v. Meginnis, 1 Gill <fe J. 463. the ground that the usage of that State sup- 
 
 | Edwards v. Pope, 3 Scam. 465. ported it, and that the usage was to be taken 
 
 T Lane T. Dorman, 3 Scam. 238. as evidence of its judicial law. Calder et 
 
 ** Holden v. James Admor, 11 Mass. 396. uxor v. Bull, 3 Call. 386; 1 Peters Cond. R. 
 
 ff Lewis v. Webb, 3 Greenleaf, 326 ; Dur- 172. 
 
 ham v. Lewiston, 4 Greenleaf. 140. See also \\ Young T. The State Bank, 4 Indiana, 
 
 Davis v. Menasha, 21 Wise. 491. But where 301. 
 
 nnactof the Legislature of Connecticut gran ted 1 1| Parmelee v. Thompson, 7 Hill, 77. 
 
LEGISLATIVE POWER. 147 
 
 We Lave next to consider a class of cases where legislative 
 bodies attempt to deal with private rights of property by 
 authorizing sales, by changing or divesting titles. It is con- 
 ceded that the Legislature, in cases of necessity arising from the 
 infancy, insanity, or other incompetency of those in whose be- 
 half 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 principle there 
 are, in almost all the States of the Union,, general statutes 
 authorizing guardians or administrators, 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 ad- 
 ministratrix to sell real estate for the payment of debts, it being 
 proved that the estate was insolvent, has been held by the 
 Supreme Court of the United States to be within the com- 
 petency 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 regu- 
 
 lates 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 re- 
 solve of the Legislature authorizing 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 re- 
 solve 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, 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 
 
 * Watkins v. Holman, 16 Peters, 25 f Davison v. Johonnot, 7 Met. 388. 
 and 61. j Rice v. Parkman, 16 Mass. 326. 
 
148 LEGISLATIVE POWER. 
 
 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 
 property 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 legislative interference in these special 
 cases, are founded on the true principle. There is no difficulty 
 in making general laws for the administration of property in 
 all cases ; and to these general laws, and to their application 
 by judicial tribunals, individual cases should be left. A legis- 
 lative body is, from its character, organization, and habits of 
 business, entirely incompetent to pass discreetly upon questions 
 involving private rights; and unless stringent rules prevent 
 their interposition, it is impossible to say how much fraud, in- 
 justice, and oppression may be perpetrated under the guise of 
 law. 
 
 There is still another class of cases, of this or an analogous 
 kind, where when by reason of unforeseen contingencies, 
 estates created by will or deed have become insufficient bene- 
 ficially to manage the property to which they relate, and it is 
 evident that no injury or injustice can be done the Legisla- 
 ture is considered competent 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 competent for 
 the Legislature to enlarge the power to lease, on the ground 
 that the estate being but for life, the property cannot be ad- 
 
 * Opinion, 4 New Hamp. 572. f Jones v. Perry, 10 Terg. 59. 
 
LEGISLATIVE POWER. 149 
 
 vantageously 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 com- 
 plete 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 private 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 daughter for life, with remainder in fee to certain 
 parties 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 commissions, &c., <fec., and to 
 invest the surplus upon the trusts declared in the will the 
 general power of the Legislature was not denied ; but 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 
 remaindermen should be thus disposed of.f Indeed, except in 
 very special cases, the power of the Legislature to interfere 
 with private rights of property has been generally resisted, 
 and it has been declared that the right to make laws does not 
 embrace the authority to affect or interfere with private 
 property, except where the right of eminent domain is exercised 
 as provided for in the State Constitutions. So in a case in- 
 volving the validity of the statutory provisions of the State of 
 New York, authorizing a private road to be laid out over the 
 lands of a person without his consent ; Mr. Justice Bronson, 
 after admitting the right to take private property for public 
 use, making just compensation therefor, held as follows : 
 
 * Estep v. Hutchman, 14 Serg. & R. 435. See another act of this kind in New York, cn- 
 f Powers v. Bergen, 2 Seld. 358. I have titled An act relative to land devised by Jas. 
 already commented on this case, ante, p. 130. Morris, deceased. Laws of 1853, c. 14. 
 
150 LEGISLATIVE POWER. 
 
 " There is no provision in the Constitution that just compensation shall be 
 made to the owner when his property is taken for private purposes ; 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 without as with a consideration. This view of the 
 question is sufficient 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 whx> 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 government, 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 compensation ? 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 legis- 
 lative 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 quali- 
 fication in the whole instrument, I should feel great difficulty 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 ' legislative power of this State ' does not reach to such an un- 
 warrantable 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." * 
 
 We thus find that practice and experience are gradually 
 supplying the definitions which the State Constitutions omit. 
 
 * Taylor v. Porter, 4 Hill, 140. See the tion of the phrase " legislatiye power." He 
 
 case cited with approbation in Powers v. rather makes his judgment depend on the 
 
 Bergen, 2 Sel. 358. But as we have already true application of the clauses "law of the 
 
 seen, ante, p. 128, Mr. Justice Bronson does land," and " due process of law." 
 not rest his decision merely on this construe- 
 
WHAT IS A LAW? 151 
 
 It is, in truth, extremely difficult to define with any precision, 
 the exact nature of a law. Omnis definitio in jure civili 
 periculosa est / parum 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 retro- 
 spective. They are in one sense general and uniform ; but in 
 others they are strictly local and partial. They usually affect 
 public interests ; but they often relate only to private objects. 
 So that any attempt to define, by precise terms, the boundaries 
 of the legislative 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 pre- 
 cision the limitation of powers under our form of government. 
 The executive, in acting upon claims for services rendered, 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 payment of a claim, exercises a power in its nature 
 judicial." f 
 
 We may, however, perhaps, deduce as correct conclusions 
 from the decided cases which we have thus far examined : 
 
 First. That a law must receive its final sanction and enact- 
 ment from the Legislature, and that the trust of the popular 
 representatives can neither be returned to the people, nor dele- 
 gated to any other power. 
 
 Second. That a statute which dispenses in favor of some 
 particular individual, with the general rules governing similar 
 cases, does not come within the rightful attributes of legislative 
 power, and is not to be regarded as a law. 
 
 Third. That a statute which seeks to affect or influence the 
 determination of any private contested i*ight, is for the same 
 reasons equally vicious and void. 
 
 Fourth. That a statute which, without some controlling 
 public necessity and for public objects, seeks to affect or inter- 
 
 * L. 202, ff. de Reg. Jur. f Watkins v. Holman, 16 Peters, 25. 
 
152 BILLS OF RIGHTS. 
 
 fere with vested rights of private property, 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 not claim the accuracy of defini- 
 tions, they will serve, perhaps, as an approximation to correct 
 ideas upon the subject. The correctness of the last rule turns, 
 indeed, on the meaning attached to the words " vested riglit" 
 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 large class of cases where, 
 by statutes changing remedies, repealing laws, and retroactive 
 enactments, positive 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 retroactive, and in 
 that case the right of the plaintiff against the bail, unless he is 
 absolutely fixed, is completely defeated. Cases of this and an 
 analogous kind frequently present great suffering and great loss, 
 resulting from reckless legislation ; still the right of the Legis- 
 lature to interfere has been repeatedly affirmed, and is generally 
 recognized. Until some clearer notion shall be had 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 unsatisfactory uncertainty. All that we can do is, as I 
 have said, to approach correct results. 
 
 In considering the subject of the supremacy of the Legisla- 
 ture in this country, and the power of the judiciary, we have 
 thus far discussed the question as turning on the organization 
 of the three great branches of government ; but other consider- 
 ations present themselves, growing out of the different terms of 
 the State Constitutions in other particulars ; for though gener- 
 ally alike, they differ in their details. Some confine themselves 
 to the mere organization of the Government and the distribu- 
 tion of powers, imposing such limitations as is seen fit, on. the 
 Legislature ; but generally they contain, in the shape of a dec- 
 laration of rights or bill of rights, the enumeration of certain 
 great political truths essential to the existence of free govern- 
 
JUDICIAL POWER. 153 
 
 ment. 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 de- 
 fending life and liberty, acquiring property, and protecting 
 property, and pursuing and obtaining safety and happiness. 
 All power 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 indefeasible right to in- 
 stitute government, and to alter, reform, or totally change the 
 same when their safety and happiness require it." And so in 
 Illinois, the same principles are announced in the Declaration 
 of Rights, and it is added that " a frequent recurrence to the 
 fundamental principles of civil government is absolutely ncees- 
 sary to preserve the blessings of liberty ,"f So in the Pennsyl- 
 vania 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 
 delegated, we declare that every thing in this article is excepted 
 out of the general powers of government, and shall forever 
 remain inviolate." J 
 
 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 independent ; " but we keep Africans 
 in slavery, Indians in subjection, minors in absolute tutelage 
 till twenty one, and married women in a state of quasi-depend- 
 ence all their lives. As .to the enjoyrntnt of life* and liberty, 
 property, and the pursuit of happiness, all these rights are 
 
 * Cons. Decl. of Rights, 1 and 2. \ Sharpless v. The Mayor of Philad., 21 
 
 f See in Illinois, the 13th Article 0f the Penn. 147. 
 Constitution ; Black well on Tax Titles, p. 15. 
 
154 -JUDICIAL POWER. 
 
 daily interfered with by the Legislature, 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, contained 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 polit- 
 ical 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 justice, exercise any power over legis- 
 lative acts, independently of the express restrictions in our Con- 
 stitutions, 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 prin- 
 ciples 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 inadmissible, 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 empire in its latter stages, the proposition is a mere 
 truism. The bare enumeration of the division of powers under 
 our system, sufficiently answers the complaint. But if it is 
 meant to assert that there should be no absolute power in each 
 department of the Government, 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 con- 
 fusion. It cannot be denied that, practically, despotic power 
 must somewhere exist in every system that assumes to order 
 and regularity. Appeals must teiyninate, controversies must 
 cease, discussions must end, and the business of life proceed. To 
 
JUDICIAL POWER. 155 
 
 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 decision is conclusive ; and 
 whether the system be that of a monarchy, an oligarchy, a democ- 
 racy, 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 judiciary the very absolutism 
 which is denied to the Legislature ? If the statute is conclusive, 
 then the Legislature is absolute ; granted. But if the judg- 
 ment 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 anything 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 enormity. But in every case there are dis- 
 puted questions of fact as well as of principle ; and the real 
 point 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 State Constitutions which declare 
 them the law-making 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 arc 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 
 
156 JUDICIAL POWER. 
 
 to the domain of the courts ; and I cannot but think it unfor- 
 tunate 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 contented with its acknowledged 
 prerogatives, and not attempt to arrogate an authority so vague 
 and so dangerous as the power to define and declare the doc- 
 trines of natural law and of abstract right. 
 
 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 be 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 Consti- 
 tutions, 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 performed, 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 construction, there is no doubt 
 in the English law, of the binding efficacy of the statute.''^ 
 
 In a case where it was contended that an act of the Legis- 
 lature 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 provision 
 which comes within our j udicial cognizance. The remedy for un- 
 wise or oppressive legislation, within constitutional bounds, is 
 by an appeal to the justice and patriotism of the representatives 
 
 * Butler v. Palmer, 1 Hill, 324. \ See also, 1 Com. p. 488. 
 
 f 1 Com. p. 408. 
 
JUDICIAL POWER. 157 
 
 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 
 Mr. Senator Verplanck, in the Court of Errors of New York. 
 He says, 
 
 *' It is difficult, upon any general principles, to limit the 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 princi- 
 ples of right, are void. The principle is unquestionably sound as the gov- 
 erning rule of a Legislature, in relation to its own acts, or even those of a pre- 
 ceding 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 susceptible of any other more conformable to justice ; but if the words 
 be 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 constitu- 
 tional 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 enactment. 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 authorities for judicial di- 
 rection, 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 frgm a broad, loose, and vague interpretation of a constitu- 
 tional 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 uncon- 
 stitutional enactment." f 
 
 In Pennsylvania, on the same -principle, it has been held 
 that the courts have no control over the legislative power of 
 
 * Bennett v. Boggs, 1 Bald. 74 and 75. f Cochran v. Van Surley, 20 Wend. 381. 
 
158 JUDICIAL POWER. 
 
 taxation, however unequally or oppressively it may be exer- 
 cised ;* and Gibson, C. J., in delivering the judgment of the 
 court, said, 
 
 " In every American State, the people, in the aggregate, constitute the sov- 
 ereign, 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 un- 
 able 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, without 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 be- 
 cause it was known to be impracticable." * * "If equality were practicable, 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 over- 
 stepping the limits of its sphere ; by arrogating to itself a power beyond its 
 province ; by producing intestine discord ; and by setting an example which 
 other organs of the government 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 to correct legislative or executive abuses. Every branch of the 
 government, the judiciary included, does injustice for which there is no remedy, 
 because everything human is imperfect. The sum of the matter is, that the 
 taxing power must be left to that part of the government which is to exer- 
 cise it."f 
 
 In South Carolina a similar doctrine has been held, in re- 
 gard to taking private property, though with some division of 
 opinion. J And when we come to consider the subject of con- 
 stitutional 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. | So in a late 
 case in Pennsylvania, 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 ob- 
 ject 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 
 
 * Kirby v. Shaw, 7 Harris, Penn. R. 258. || People v. Mayor of Brooklyn, 4 Coras, 
 
 f Kirby v. Shaw, 7 Harris (Perm.) R. 258. 423 ; Town of Guilford v. Cornell, 18 Barb. 
 \ State v. Dawson, 3 Hill R. 100. 615. 
 
JUDICIAL POWER. 159 
 
 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 Legis- 
 lature 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 land- 
 marks 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 given to the Legislature are 
 liable to be abused. But this is inseparable from the nature of human institu- 
 tions. The wisdom of man has never conceived of a government with power 
 sufficient to answer its legitimate ends, and at the same time incapable of mis- 
 chief. No political system can be made so perfect that its rulers will always 
 hold it to the true course. In the very best, a great deal must be trusted to 
 the discretion 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 accountability of the 
 members 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 cannot safely pronounce the 
 question settled on authority ; but I think, as a matter of 
 reason, that we may safely hold, First, 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 " law" but each 
 case must depend on its peculiar features. 
 
 Second, That it is the right and duty of the judiciary to re- 
 press 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 conflicts with their notions of natural right, ab- 
 stract justice, or sound morality, (a) 
 
 * Sharpless v. The Mayor, <fec., 21 Penn. Cranch, 87 ; Bloodgood v. Mohawk and Hud- 
 147, 162. See this subject also discussed in son R. R. Co., 18 Wend. 9 ; Terrett v. Taylor, 
 Braddee v. Brownfield, 2 Watts & Sera:. 271; 9 Cranch, 43; Bowman v. Middleton, 1 Bay, 
 Harvey v. Thomas, 10 Watts, 63; Calder v. 252; Bonaparte v. Camden and Amboy Rail- 
 Bull, 3 Dallas, 386 ; Fletcher v. Peck, 6 road Company, 1 Baldw. C. C. R. 205. 
 
 (a) The Supreme Court disclaims the right to pass upon political questions. 
 Georgia v. Stanton, 6 Wall. 50. 
 
160 RETROSPECTIVE STATUTES. 
 
 In the strict order of the argument that we are pursuing, I 
 should now turn to the judicial power of construction; but, 
 closely connected with the subject which we have just consid- 
 ered, is one which I can in no other place so fitly discuss, that 
 of retroactive or retrospective statutes, the power to pass which 
 has been frequently denied on the ground that they conflict 
 with true notions of justice and right. I shall here examine 
 the question, and then finally arrive at the subject of inter- 
 pretation. 
 
 Retrospective or Retroactive Statutes. A statute which takes 
 away or impairs any vested right acquired under existing laws, 
 or creates a new obligation, or imposes a new duty, or attaches a 
 new disability in respect to transactions or considerations al- 
 ready 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 there- 
 by cease. It would be an act of absolute injustice to abolish 
 with a law all the effects which it had produced."f The Civil 
 Law says, " Leges et constitutions futuris cerium est dare for- 
 mam negotiis, non ad facta pr ester ita revocari, nisi nominatim 
 et de prceterito tempore et adhuc pendentibus negotiis cautum 
 sit"% From the civil law, Bracton adopted the same maxim. 
 " Nova constitutio futuris formam debet imponere, non prceter- 
 itis" Lord Bacon says, in his quaint and poetical style, but in 
 a more guarded manner : " Leges giiaz retrospiciunt raro, magna 
 cum cautione, adhibendce / neque enim placet Janus in legibus. 
 Cavendum tamen est ne convellantur res judicatce. Leges decla- 
 ratorias ne ordinato, nisi in casibus iibi leges cum justitia re- 
 trospicere possint"\ And one of the standard writers of our 
 law says, it is in general true that no statute is to have a retro- 
 spect beyond the time of its commencement.^ 
 
 From text-writers, the maxim has been incorporated into 
 codes of law. The French code contains a positive provision 
 
 * Society for Prop, of Gospel v. Wheeler, | De Aug. Sclent. Lib. viii, c. 3 ; Apbor. 
 
 2 Gallison, 105. 47, 51. 
 
 f Droit de la Nat. L. i, c. 6, 6. T[ Bacon, Abr. Statute, 
 
 t Cod. L. i, Tit. xiv, 7. 
 
RETROSPECTIVE STATUTES. 161 
 
 that laws are made only for future cases, and can have no re- 
 trospective effect. " The law directs for the future cases only ; 
 it has no retrospective effect." ' So, the Constitution of New 
 Hampshire f declares, " Retrospective laws are highly injurious, 
 oppressive, and unjust. No such laws should, therefore, be made, 
 either for the decision of civil cases or the punishment of offences." 
 The principle has, indeed, been generally adhered to with 
 great steadiness, both in England and in this country, (a) So 
 in a case under the statute of frauds, which, as originally passed 
 
 * La loi ne dispose que pour 1'avenir, elle \ Part i, 23. 
 n'a point d'effet retroactif. Code Civil, 2. 
 
 (a) General Pule. The general rule is that statutes shall be construed as prospect- 
 ive. The following are some illustrations of such construction applied to particular 
 statutes : Prescribing new penalties on defaulting taxpayers, Bartruff v. Reney, 15 
 Iowa, 257 ; taking away defense of usury in favor of lonafide indorsers, North Bridge- 
 water Bank v. Copeland, 7 Allen, 139 ; requiring new promise to be in writing to 
 take case out of the statute of limitations, Richardson v. Cook, 37 Vt. 599 ; for- 
 bidding banks paying interest on deposits, Hannum v. Bank of Tenn. 1 Cold. 
 (Tenn.), 398 ; a statute as to execution, &c., of wills, Taylor v. Mitchell, 57 Penn. 
 St. 209 ; abolition of slavery by the State Constitution was held not to take away a 
 pending action of trover for conversion of a slave, Williams, Adm. v. Johnson's 
 Adrn. 30 Md. 500. For further instances where statutes were held to be prospective, 
 see lie Miles' Will, 27 Beav. 579 ; State v. Auditor, 41 Mo. 25 ; Finney v. Ackernian, 
 21 Wise. 268 ; Abington v. Duxbury, 105 Mass. 287 ; Amsbry v. Hinds, 48 N. Y. 57 ; 
 per contra, statutes were construed as retroactive in Cook v. McChristian, 4 Cal. 23 ; 
 Smith v. Van Gilder, 26 Ark. 527. 
 
 Statutes are not to be construed as retrospective unless by the language thereof 
 they are clearly intended so to be. Young v. Hughes, 4 H. & N. 76 ; Williams v. 
 Smith, 4 H. & N. 558 ; Martin v. State, 22 Tex. 214 ; Aurora, &c. I. Co. y. Holt- 
 house, 7 In d. 59; Bond v. Munro, 28 Geo. 597; Gerry v. Stoneham, 1 Allen, 319; 
 Parsons v. Payne, 26 Ark. 124. 
 
 It is not enough that general terms are employed broad enough to cover past trans- 
 actions ; thus a law permitting a removal of the family residence from a homestead, 
 without rendering it subject to execution, &c., was held not to apply to past judg- 
 ment liens. Seamans v. Carter, 15 Wise. 548. And? it has been said that statutes, 
 however general in their terms, are not to be considered retrospective unless expressly 
 so declared. Berley v. Rampacher, 5 Duer, 181 ; but this is undoubtedly a too 
 strong statement of the rule, for statutes have been held retrospective which did not 
 contain any express declaration that they were so, e. g., the legal tender act of the U. S. 
 Hepburn v. Griswold, 8 Wall. 603. 
 
 But undoubtedly statutes are to be construed as prospective only, if possible. 
 Smith v. Auditor-General, 20 Mich. 398. 
 
 Vested Rights. When the effect of a retroactive construction would be to de- 
 stroy a vested right, e. g., to cut off an accepted bid for certain work, which ac- 
 ceptance was legally binding by the existing laws, the construction must be pro- 
 spective. Matter of Prot. Epis. School, 58 Barb. 161. 
 
 Statutes of Limitation may act retrospectively, if they do not destroy or unreason- 
 11 
 
162 RETROSPECTIVE STATUTES. 
 
 (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 
 
 ably impair rights of action. Thus, such a statute applicable to " all actions of debt 
 which shall be sued or brought at any time after this act shall go into effect," was 
 held to apply retroactively to causes of action already accrued, provided such con- 
 struction would leave a reasonable time after the passage of the law for the bringing 
 of an action. Fiske v. Briggs, 6 R. I. 557 ; and an amendment limiting the time 
 within which judgment liens could be enforced to five years, was held to operate 
 retrospectively, when ample time was left for the enforcement of the existing liens, 
 Burwell v. Tulles, 12 Minn. 572. 
 
 Dower. A statute changing the rale as to dower, was held not to be retro- 
 spective as to marriages already made, but when death ef the husband occurs after 
 its passage, Noel v. Ewing, 9 Ind. 37 ; but otherwise, as said by way of a dictum, 
 when the land was sold by the husband before the statute. Davis v. O'Ferrall, 4 
 Greene (la.), 168. Where by the law in force at the time of a foreclosure sale, the 
 dower of the mortgagor's wife was not barred thereby, and a subsequent statute was 
 passed before the husband's death limiting the wife's dower to lands which the hus- 
 band bad not sold during his lifetime, that is, limiting the dower to lands of which 
 the husband died seized, it was held that such statute cut off" the wife's dower in. 
 question. Sturtevant v. Norris, 30 Iowa, 65. This and similar decisions are cer- 
 tainly not in accordance with the common-law doctrine of dower which prevails in 
 many States, which treats the wife's dower in lands owned by the husband as an 
 estate. Undoubtedly the wife's capacity to be endowed of lands to ~be acquired by 
 her husband may be taken away by a retroacting statute, because a mere capacity is 
 not property nor a right in any true sense of the word ; but after the dower has once 
 attached to any land of the husband, when the common-law doctrine prevails, it can- 
 not be taken away by statute, although it is inchoate, without violating the familiar 
 constitutional safeguards of property and personal rights. Inchoate dower is so 
 truly an estate at the common law, that nothing but the wife's act can bar it ; and 
 the decisions cited, and some other similar ones must have proceeded upon a theory 
 of dower entirely different from that which prevailed at the common law. 
 
 Settlements of Paupers. A statute shortening the period of residence of a pauper 
 necessary to confer irremovability was held retroactive in Salferd v. Manchester, 3 B. 
 & S. 599 ; also a provision enlarging the limits of residence which would confer the 
 same privilege, Preston v. Blackburn, 3 B. & S. 793 ; but see Abington v. Duxbury, 
 105 Mass. 287. 
 
 Amendatory Statutes. A statute amending a prior one, by declaring that it 
 shall be amended so as to read in a given manner, has no retroactive effect. Ely v. 
 Holton, 15 N. Y. 595 ; Bay v. Gage, 36 Barb. 447. 
 
 Explanatory Statutes. An act explaining the meaning of a former act, does not 
 retroact so as to affect the rights of parties in proceedings instituted before the pas- 
 sage of the later statute. McManning v. Farrar, 46 Mo. 376. 
 
 Statutes going into Effect at a Future Day. Such a statute is prospective. For 
 example, a statute prescribing that in all cases of partition where a valuation " shall 
 have been made," certain results shall follow, and not going into effect until a future 
 day, will be held not to apply to a valuation made before its going into effect. 
 Dewart v. Purdy, 29 Penn. St. 113. 
 
 Remedial Statutes. The rule against retroactive operation has been applied even 
 to remedial statutes; e. gr., a statute authorizing supervisors to legalize irregularities 
 in taxes was held to apply only to future taxes. People v. Supervisors, &c., 6S 
 
RETROSPECTIVE STATUTES. 163 
 
 was made to extend its operation to a promise made in 1676 ; 
 but it was held that the statute was not to receive 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 valid in law ; and judgment was given for the 
 plaintiff.* So again, in an action for a penalty in not paying a 
 stamp duty. After verdict, the defendant moved to stay judg- 
 ment, 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 be- 
 fore a certain time ; and the question being whether the act re- 
 lated to actions commenced before its passage, the King's Bench 
 denied the motion, Lord Mansfield saying, " It can never be the 
 
 * Helmore v. Shuter, 2 Show. 17. 
 
 Barb. 83 ; and see Hart v. State, 40 Ala. 32 ; State v. Bradford, 36 Geo. 422. But a 
 statute giving municipalities the right to sell land for taxes, has been held to apply 
 to past delinquencies, on the ground that it was remedial, Haskell v. Burlington, 30 
 Iowa, 232 ; and a statute providing that certain irregularities shall not affect the 
 validity of tax sales, applies to a sale for prior delinquencies. Sully v. Kuehl, 30 
 Iowa, 274. Where reliance is had on a retroactive curative statute to bar a right, the 
 terms of the statute must be very clearly applicable. Chalker v. Ives, 55 Penn. St. 81. 
 
 Procedure. Some cases have held that procedure in cases pending at the passage 
 of a new practice act, or the adoption of a new code, must be governed by the old 
 law. Chancy v. State, 31 Ala. 342 ; The Steamboat Farmer v. McCraer, 31 Ala. 659 ; 
 Mochlan Township Road, 30 Penn. St. 156. But the weight of authority is un- 
 doubtedly the other way. A statute regulating procedure acts retrospectively, so 
 far as to control the proceedings in pending cases, Kimbray v. Draper, Law R. 3 
 Q. B. 160; whatever relates to the conduct of the trial is retrospective, Hoa v. Le- 
 franc, 18 La. Ann. 393 ; a statute as to new trials applies to pending cases, Donner 
 v. Palmer, 23 Cal. 40, and see Bensby v. Ellis, 39 Cal. 309. It was held that a statute 
 giving the right of appeal would not apply to pending proceedings, unless the in- 
 tent was clear, Boston, &c. R. R. v. Cilley, 44 N. H. 578, but see McNamara v. Min- 
 nesota R. R. 12 Minn. 388. It was also held that an act shortening the time of no- 
 tice in mortgage foreclosure cases did not affect' pending actions, it not being ex- 
 pressly made retrospective. Hopkins v. Jones, 22 Ind. 310. 
 
 To ~be strictly Construed. A retrospective statute is to be strictly construed. Thus 
 where a statute of limitations provides that it should not apply to actions com - 
 menced or causes of action accrued, and a subsequent statute made it applicable to 
 causes of action accrued at its passage, it was held that it did not extend to actions 
 commenced at its passage. Hedger v. Rennaker, 3 Mete. (Ky.) 255. Though a 
 statute is plainly retroactive by its terms, the court will not enforce a penalty for 
 non-compliance with its requirements at a time when it was not in existence. Mc- 
 Cowan v. Davidson, 43 Geo. 480. 
 
164 RETROSPECTIVE STATUTES. 
 
 true construction of this act, to take away these vested rights 
 and punish the innocent pursuer with costs." ' " All laws," 
 says Blackstone, "should be made to commence infuturo, and 
 be notified before their commencement." f 
 
 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 principle," 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 stat- 
 utes, unless in cases where there is something on the face of the 
 enactment putting it beyond doubt that the Legislature meant 
 it to operate retrospectively." J This principle may have been 
 lost sight of in some cases, | but has, on the whole, been stead- 
 ily adhered to. So, where a statute (8 and 9 Vic. c. 109, 8 
 Aug. 1845) enacted that all contracts and agreements by way 
 of gaming or wagering, shall be null and void, and that no suit 
 shall be 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 be- 
 fore the statute passed.^f 
 
 But it also appears to be clearly settled in England, that 
 the rule to give statutes a prospective operation, is one of con- 
 struction merely ; that it will yield to the intention of the Legis- 
 lature, if clear beyond doubt ; and that the only question is, 
 whether the retroactive intention is sufficiently expressed ;** 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 statutes a re- 
 troactive effect, has been manifested ; and such is the general 
 tenor of our decisions. There are, indeed, here, two classes of 
 retroactive laws absolutely forbidden by the federal Constitu- 
 
 * Couch q. tain v. Jeffries, 4 Burr, 2460. f Moon v. Durden, 2 Exch. 22 ; and also, 
 
 f Com. i, p. 46. Edmonds v. Lawley, 6 M. <fe W. 285 ; and 
 
 $ Moon v. Burden, 2 Exchequer R. 22. Ashburnham, 2 Atk. 36. 
 I Towler v. Chatterton, 6 Bing. 258 ; ** Moon v. Durden, 2 Exch. 22, per 
 
 Freeman v. Moyes, 1 Ad. <fe Ell. 338 ; Pickup Parke, B. 
 
 v. Wharton, 2 C. & M. 401 ; Grant v. Kemp, 
 
 Id. 636. 
 
RETROSPECTIVE STATUTES. 165 
 
 tion. That great charter of our rights and liberties declares 
 (Art. i, sec. 10) that no State shall pass any ex post facto law, 
 or law impairing the obligation of contracts. We shall have 
 occasion hereafter to consider this clause more particularly ; but 
 we may here notice that the term ex post facto applies only to 
 criminal laws.* Many of the State Constitutions also contain 
 clauses prohibiting ex post facto laws ; but this phrase has, I 
 believe, been uniformly held to apply only to criminal legisla- 
 tion. And we have already noticed that the obligation of con- 
 tracts does not include the remedy. With these modifications, 
 however, the power of the federal tribunals has been steadily 
 exercised, and State laws of a criminal nature having a retro- 
 active 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 Con- 
 stitution merely because it is retrospective in its terms. A con- 
 flict arose in the State of Pennsylvania, 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 Pennsyl- 
 vania held that the relations between landlord and tenant 
 could not exist between persons holding under such a title. 
 Immediately after this decision, the Legislature of Pennsylvania 
 passed an act by which it was enacted that the relation of land- 
 lord 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 say- 
 ing that the act did not impair the obligation of the contract. 
 " It is said to be retrospective. 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 for- 
 bidden by any part of the Constitution."f 
 
 We have already J considered the retrospective effect of re- 
 
 * Calder and Wife v. Bull and Wife, 3 Ball. f Satterlee v. Matthewson, 2 Peters, 380. 
 
 386 ; Dash v. Van Kleeck, 7 Johnson, p. 477. \ Ante, p. 114. 
 
1G6 RETROSPECTIVE STATUTES. 
 
 pealing 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, al- 
 though 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 al- 
 ready noticed in regard to the term law. The inherent diffi- 
 culty of the subject can only be mastered by a frequent refer- 
 ence 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 federal Constitution ; and excepting also where, as in New 
 Hampshire, the States themselves have adopted a positive pro- 
 hibition it is in this country considered competent 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 retroactive construction unless the intention 
 is so clear and positive as by no possibility to admit of any 
 other construction. But, on the other hand, it is equally true 
 that they are greatly discountenanced, and that the desire and 
 effort of the courts is always to give a statute a prospective 
 operation only. The subject was considered at an early day in 
 the State of New York. The Supreme Court of that State, in 
 a case arising on the construction of an act giving prisoners 
 charged in execution certain jail 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 Legislature passed 
 an act (5th April, 1810, 33 Sess. c. 187) declaring that a re- 
 turn or recaption before suit brought should be a good defence. 
 
 * Tillruan v. Lansing, 4 J. R. 45. 
 
RETROSPECTIVE STATUTES. 167 
 
 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 stat- 
 ute, on the ground that it should be held to operate retrospect- 
 ively: and it was also strenuously insisted that the act was an 
 explanatory act, and that 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 had a vested right of recovery ; that the act 
 was not expressly retrospective ; that the statute would, if re- 
 trospectively 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 most 
 clear and unequivocal expressions are adopted !" Kent, J., 
 said, " I think it can be shown that the act cannot be adjudged 
 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 in- 
 tended, unless that intention was made manifest by express 
 words ; because it would be a violation of fundamental prin- 
 ciples, 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 liablities 
 should not be so construed as to act upon those already exist- 
 ing. 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, "Notwithstanding the peculiar phraseology of the section 
 
 * Dash v. Van Kleeck, 7 J. R. 477. Spen- vised Statutes which declares that all actions 
 
 cer and Yates were in favor of the retrospec- upon judgments rendered in any court not 
 
 tive effect. Kent, Thompson, and Van Ness being a court of record, shall be commenced 
 
 united in the judgment. See this case cited within six years next after the cause of action 
 
 in Wood v. Oakley, 11 Paige, 400. occurred, does not apply to justices' judg- 
 
 f Johnson v. Burrell, 2 Hill, 238. In this ments rendered before 1830. 
 -case it was held that the provision of the Re- 
 
1G8 RETROSPECTIVE STATUTES. 
 
 relied on by the plaintiffs' counsel, we think it ought not to be 
 so considered as to, give it a retroactive effect."* 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 de- 
 fendant, has been held not to authorize such writ to review a 
 judgment rendered prior to the passing of the statute, f and J 
 Mr. Justice Shankland, in another recent case, well calls the 
 maxim which I have above cited from Bracton, " the primary 
 rule for 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 operation where 
 this is not required by express command, or by necessary and 
 unavoidable implication. Without such command or impli- 
 cation, they speak and operate upon the future only; espe- 
 cially 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 construed 
 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 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 retrospective act, to make that right which was 
 clearly wrong. But granting that intention to be clearly ex- 
 
 * Bailey v. The Mayor, <fcc., 7 Hill, 146 ; f The People v. Carnal, 2 Selden, 463. 
 
 and it was held that the third section of the i Lawrence v. Miller, 2 Corns. 245, 251. 
 
 act passed May 7tb, 1844, authorizing interest | Boyd v. Barrenger, 23 Miss. R. 270; 
 
 to be taxed upon verdicts, <fec. (Sess. Laws of Garrett v. Beaumont, 24 Miss. R. 377 ; Mur- 
 
 1844, p. 508), does not apply to verdicts ren- ray v. Gibson, 15 Howard, U. S. R. 421. 
 dered before the act was passed, but is to be 
 construed prospectively. 
 
RETROSPECTIVE STATUTES. 169 
 
 pressed, I have no hesitation in saying that the act is unconsti- 
 tutional 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 legislative authority." * 
 
 In Maine, by the Constitution of which State the right is 
 secured to every citizen, of possessing, acquiring, and enjoying 
 property, it has been decided that a statute of limitation fixing 
 the time within which actions are to be brought for the recov- 
 ery of lands, can have no retroactive effect on titles existing 
 when it was passed ; and the same principle was applied to a 
 disseizin 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.^ 
 
 In 1850, the Legislature of Connecticut passed an act declar- 
 ing 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. " The pre- 
 sumption is," said the court, " that all statutes are to operate 
 prospectively, 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 them unless required in the 
 most explicit terms." || 
 
 We have already noticed the clause in the Constitution of 
 New Hampshire, prohibiting retrospective legislation; and it 
 seems to have been faithfully carried out. So an act of the 
 Legislature repealing a statute of limitations, 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 
 penalty incurred under the statute in a civil cause, is within the 
 meaning of the clause in the bill of rights which prohibits the 
 
 * McCabe v. Emerson, 6 Har. Penn. R. Drew, 5 Law Reporter, N. S. 189; Webster 
 
 111. v. Cooper, 14 Howard, U. S. R. 488. 
 
 f Proprietors of Kennebec Purchase v. 1 Wires & Peck v. Fair, 25 Vermont, p. 41. 
 
 Laboree et ah., 2 Greenleaf Rep. 275; Orien- j Plumb v. Sawyer, 21 Conn. 351. 
 
 tal Bank v. Freese, 18 Maine Rep. 109 ; Aus- *j[ Woart v. Winnick, 3 New Hampshire, 
 
 tin v. Stevens, 24 Maine R. 520 ; Preston v. 473. 
 
170 RETROSPECTIVE STATUTES. 
 
 passing of retrospective laws for the decision of civil causes ; 
 and the right of such individual can not be taken away by a 
 repeal of the statute under which the penalty was incurred.* 
 
 "We have thus far considered cases where laws have been 
 denied a retroactive effect. We have now to examine the con- 
 verse class of decisions. There is, indeed, a large number of 
 cases in which appeals are made for legislative relief or assist- 
 ance, in which it would be very injurious to assert the doctrine 
 that the Legislature is incompetent to pass laws having a retro- 
 active effect. Such are laws declaring valid acts of official per- 
 sons irregularly elected; amending charters of incorporated 
 companies ; correcting assessment rolls irregularly made ; ex- 
 tending the time for collection of taxes or for reports required 
 by law T ; altering and amending judicial 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 in- 
 terests of the community are paramount. These cases are not 
 treated as touching vested rights, and the power of the Legisla- 
 ture is admitted. We proceed now to examine cases of this 
 kind where statutes have been construed retrospectively. 
 
 It has been said in Massachusetts, that the Legislature may 
 constitutionally enact laws to alter the limits of prison yards ; 
 to render valid and legal the doings of public officers ; to 
 confirm the acts of towns and other corporations, invalid for 
 some informality, although by such enactments individuals 
 may be deprived of rights previously vested.f So in the 
 Supreme Court of the United States, it has been said, that 
 " every law that takes away or impairs rights vested agreeably 
 to existing 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 law r s 
 may justly, and for the benefit of the community, and also of 
 individuals, relate to a time antecedent their commencement." J 
 
 * Dow v. Norris, 4 N. H. 16. the court decided that they were not ex post 
 
 f Davison v. Johonnot et al., 7 Met. 389, facto laws, nor laws impairing the obligation 
 
 citing Walter v. Bacon, 8 Mass. 468 ; Patter- of contracts. 
 
 son v. Philbrook, 9 Mass. 151, and Locke v. \ Per Chase, J., Calder v. Bull, 3 Dall. 
 
 Dane, 9 Mass. 360. These last are all cases 386, 391. 
 
 on statutes changing the prison limits; and 
 
RETROSPECTIVE STATUTES. 171 
 
 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 costs of such 
 suits are to be taxed according to the statute in force at its 
 termination. "It is competent," said Mr. Justice Jewett, 
 41 for the Legislature, at any time during the progress of a suit, 
 to create an allowance for services not before provided for, 
 and to increase or diminish, or wholly abolish, such allowances 
 as existed at the time the suit was commenced ; " and on the 
 ground that the right to costs is created by and depends 
 wholly on statute, and that it does not become fixed till the 
 termination of the suit, the statute in force at the end of the 
 litigation was held to be conclusive.* So in the same State, 
 the act of 22d October, 1779, transferring the seignory and 
 escheat from the crown of Great Britain to the people, of the 
 State; and the statute of tenures (1787) abolishing military 
 tenures, and converting all manorial and other tenures into 
 free and common socage, took effect retrospectively, and oper- 
 ated on all lands and tenures held under colonial grants, from 
 from July, 1776. f So when a statute of the same State, 
 altering the common law, declared that a failure or want of 
 consideration might be set up by way of defence to a sealed 
 instrument, it was held that as far as the statute went only to 
 the remedy, it might be applied to sealed instruments executed 
 before the law passed ; but that as regarded the obligation of 
 the contract, it should not be permitted to have a retroactive 
 effect. J So in the same State, it has been held that retro- 
 spective statutes are valid, which give remedies where none 
 existed before, for defects that would have been fatal had the 
 Legislature not interfered, and given a perfect remedy by cur- 
 ing intervening irregularities. Thus in an action by a bank, 
 incorporated under the general banking law of New York, it 
 appeared that the certificate of incorporation was defectively 
 proved and acknowledged; that the defect was not remedied 
 until several years afterwards (1852), by an act declaring that 
 
 * Supervisors of Onondaga v. Briggs, 3 \ Mann v. Eckford's Ex'ors, 15 Wend. 
 
 Penio, 173; see also, People v. Herkimer, C. 519; Wilson v. Baptist Education Society of 
 
 P. 4 Wend. 210. New York, 10 Barb. S. C. R. 308. 
 
 f De Peyster v. Michael, 2 Seld. 467, 503. 
 
172 RETROSPECTIVE STATUTES. 
 
 the bank should be deemed to be a valid corporation, and to 
 have been duly organized, notwithstanding the original error 
 in the certificate ; and that the note in suit was made before 
 the passage of the act. It was held, however, that these facts 
 constituted no defence to the suit ; that the defendant had no 
 vested right to be absolved from paying the money which he 
 owed; 'that a remedy was only wanting, and that the statute 
 of 1852 belonged to that class of retrospective acts which the 
 Legislature had a perfect right to pass.* 
 
 So in Pennsylvania, f a judgment entered on the first 
 instead of the third day of January, and void for that reason, 
 was held to be cured by an act of February, 1822. So again, % 
 it was there decided that an omission in the certificate of 
 acknowledgment of a married woman to a deed conveying her 
 estate in lands, was remedied by an act passed for that purpose 
 after the death of the wife, and after the lands had descended, 
 and after the court had decided that the acknowledgment was 
 inoperative to pass the lands. In the face of all these facts, 
 the Supreme Court of Pennsylvania held, that the act in ques- 
 tion, being remedial in its nature, cured the defective ac- 
 knowledgment, so that the lands passed, and the grantees took 
 the title under it; although without the act no title would 
 have passed by the deed to the grantee. | The Supreme 
 Court of that State laid down the doctrine, that it is competent 
 for the Legislature to pass acts retrospective in their character r 
 notwithstanding their operation may be to affect pending suits, 
 and to give to a party rights he did not before possess ; or to 
 modify an existing remedy ; or to remove an existing impedi- 
 ment in the way of a recovery by legal proceedings, provided 
 they do not violate any constitutional prohibitions. In Ohio, 
 retrospective laws which violated no principle of natural 
 justice, were not forbidden by the Constitution of that State of 
 1802.1 
 
 The result of this branch of our inquiry is, then, that the 
 Legislature is competent to give a statute a retroactive or 
 
 * Syracuse City Bank v. Davis, 16 Barb. Tate v. Stooltzfoos, 16 Serg. & Rawle, 35. 
 
 S. C. E, 188. I Hepburn v. Curts, Y Watts, 300. 
 
 f Underwood v. Lilly, 10 Serg. & Rawle, [ Trustees of C. F. R. E. A. v. M'Caughy 
 
 97, 101. e t al., 22 Ohio, 152; 2 Ohio State Rep. 152. 
 
RETROSPECTIVE STATUTES. 173 
 
 retrospective effect, unless, first, the act violate the provision of 
 the federal Constitution in regard to ex post facto laws and the 
 obligation of contracts or, second, unless it so interfere with 
 vested rights of property as not to come within the proper 
 limits of the law-making power or, third, unless it comes 
 within the purview of some express prohibition contained in a 
 State Constitution ; that, independently of these exceptions, 
 retrospective statutes are within the scope of the legislative 
 authority ; and that the courts are bound to enforce them ; 
 but that such laws, as a general rule, are objectionable in 
 principle and unjust in practice ; and that the judiciary will give 
 all laws a prospective operation only, unless their language is so 
 clear as not be susceptible of any other construction. In clos- 
 ing this branch of our subject, we cannot fail to remark that, 
 in practice, the true principle of legislation is frequently lost 
 sight of in regard to the enactment of statutes having a retro- 
 active effect. Laws are constantly passed, either in the shape 
 of repealing or innovating acts, which disturb plans or destroy 
 rights entered into upon the faith of, or created by, previous 
 legislation. Nothing short of some great, paramount emer- 
 gency of public policy, can justify laws of this kind ; and it 
 will be well for all engaged in the business of government, to 
 understand and remember that the steady and uniform rule 
 should be to make statutes operate prospectively only. No ex- 
 ception should be tolerated, but on the ground of a controlling 
 public necessity. 
 
 Having thus attempted to define the nature of the law- 
 making power, to declare the true characteristics of a law, to 
 show when it must be a rule of universal application, and how 
 far prospective only, we now proceed to consider the nature 
 of the judicial power, and to examine those checks upon the 
 legislative authority, which, as has been said, are placed in the 
 hands of the judiciary. Of these, the first is the right of con- 
 struction assumed in regard to all statutes of which the lan- 
 guage is ambiguous. 
 
 The right and duty of the judiciary to expound and to in- 
 terpret doubtful provisions of legislative enactments, is now one 
 of the axioms of our law. But we are not to suppose that this 
 
174 JUDICIAL CONSTRUCTION. 
 
 has always been familiar doctrine. On the contrary, like all 
 the other guaranties of liberty, it is the result of long ages of 
 struggle and conflict, of disorder and confusion. The maxim of 
 the Koman law, Ejus est interpretari legem cujus est condere, 
 gave to the imperial despot the same control over the construc- 
 tion that he had over the enactment of laws ; and the arbitrary 
 manner in which that power was exercised, is well known. 
 " The rescripts of the emperor, his grants and decrees, his edicts 
 and pragmatic sanctions, were subscribed in purple ink, and 
 transmitted to the provinces as general or special laws, which 
 the magistrates were bound to execute, and the people to 
 obey."' Of these, the rescripts were replies to consultations 
 of the judges, and operated in fact like decrees on appeal in 
 litigated cases. 
 
 When the lights of English jurisprudence first dawned, we 
 have seen that the imperial power of construing and applying 
 its own laws, was claimed by Parliament ; and that litigated 
 cases upon which the judges doubted, were referred to it for 
 decision, f But the exercise of judicial functions by a popular 
 representative body in modern times, is practically out of the 
 question, nor could it long be submitted to by men so intelli- 
 gent, and so attached to the rights and privileges of their order, 
 as the judges of England have in all ages shown themselves. 
 Parliament abandoned its control over litigated cases, and the 
 power of construction fell to the judiciary. We have no means 
 of tracing the manner in which the transfer of authority was 
 effected ; but at a very early day we find it asserted in even 
 more than its present plenitude. " If you ask me, then," says 
 old Hobart, " by what rule the judges guided themselves in 
 this diverse exposition of the self-same word and sentence, I 
 answer, it was by that liberty and authority that judges have 
 over laws, especially over statute laws, according to reason and 
 best convenience to mold them to the truest and best use." % 
 And Bacon, in his Abridgement, adopting this language, sajs, 
 " The power of construing a statute, is in the judges, who have 
 authority over all laws, and more especially over statutes, to 
 
 * Gibbon, cb. xliv. \ Sheffeild v. Ratcliffe, Hobart, 346. 
 
 f See ante, page 18. 
 
JUDICIAL CONSTRUCTION. 175 
 
 mold them according to reason and convenience to the best and 
 truest use." 
 
 Nor did the judiciary use their new powers sparingly. Tak- 
 ing advantage of the paucity and ambiguity of the statutes, of 
 the inattention of the Legislature to the business of jurispru- 
 dence and juridical science, and making as their excuse, the ex- 
 istence of daily and admitted abuses, they soon came to exer- 
 cise powers little short of those of the Parliament itself. " In a 
 great variety of cases," says Mr. Dwarris, * " the invasion, by 
 the judges, of the province of the Legislature has been quite un- 
 justifiable. When rules of law have been found to work in- 
 justice, they have been evaded instead of being repealed. Ob- 
 solete or unsuitable laws, instead of being removed from the 
 statute book, have been made to bend to modern usages and 
 feelings. Instead of the Legislature framing new provisions as 
 occasion has required, it has been left to able judges to invade 
 its province and to arrogate to themselves the lofty privilege of 
 correcting abuses and introducing improvements. * * Upon 
 a careful investigation of the course actually pursued, it will be 
 found that in general, inconvenient laws were set aside, and re- 
 quired changes were effected, by the use of technical fictions 
 and contrivances to evade -inconsistent rules ; and if there has 
 been a lamentable want of politic institutions, there has been 
 thought to have been also at times, some defect of judicial prin- 
 ciples." And he adds, " It certainly is a remarkable fact that 
 the jurisdiction or method of proceeding in all our superior 
 courts, will be discovered on inquiry to be founded on usurpa- 
 tion, and sustained by fiction." This is a very severe judgment 
 upon the order and philosophy of the English system, and there 
 can be no doubt that there is great foundation for it.f 
 
 It would be easy to cite from the reports, instances of inter- 
 pretation which amount to nothing short of legislation, where, 
 in cases "entirely free from doubt, the judges have made rules as 
 the emergency seemed to them to require. Nor was their 
 power exercised without strenuous resistance. The judiciary a 
 century and a half -ago, under the English system, was a very 
 
 * Dwarris on Stat. p. 708, 792. erty Commissioners, for an energetic condem- 
 
 f See First Report of English Real Prop- nation of legal fictions. 
 
176 
 
 JUDICIAL CONSTRUCTION. 
 
 different institution from that which we have since learned to 
 regard it. Now with the magistracy, we inseparably connect 
 the ideas of integrity, learning, and philosophy. The great 
 names of Eldon, Mansfield, Marshall, Kent, and Story, arise at 
 once before us when we speak of tribunals of justice. But far 
 different was it at the era of the English Revolution. In the 
 minds of the thinking men of that period, the judges were the 
 arbitrary and servile tools of the crown. With them the judi- 
 ciary was represented by the corruption of Bacon, the servility 
 of Herbert, and the cruelty of Jeffries; the atrocities of the 
 bloody assizes, the lawless despotism of the ship-money judg- 
 ment, and the scandalous illegality of the dispensing power. 
 It is not to be wondered at that the judicial doctrine of con- 
 struction was distrusted by the opponents of the abuses of 
 monarchical authority.* 
 
 * Clarendon, no lukewarm friend of the 
 crown says, speaking of the ship-money case, 
 " And here the damage and mischief cannot 
 be expressed that the crown and State sus- 
 tained by the deserved reproach and infamy 
 that attended the judges by being made use 
 of in this and like acts of power ; there being 
 no possibility to preserve the dignity, rever- 
 ence, and estimation of the laws themselves 
 but by the integrity and innocency of the 
 judges ;" and he proceeds to charge the vio- 
 lence of the ensuing Parliament " to the irrev- 
 erence and scorn the judges were justly in." 
 Hist, of Rebellion, Oxford ed. 1704, vol. i, p. 55. 
 
 " Away, then," says a staunch whig writer, 
 about the year 1700, " with that apparently 
 sophistical argument which in late times 
 made so great a noise and bustle in the world, 
 namely, that the King, the Lords' House, and 
 the Commons' House concurring, had not an 
 unlimited power to make laws, it being in the 
 breast of the judges of the realm to determine 
 which acts of Parliament were binding and 
 which void, and to expound the meaning of 
 every act of Parliament. And that, by refer- 
 ring this unto the judges of the realm, the 
 people were better secured from an arbitrary 
 power than by attributing it to the Parlia- 
 ment. A notion which hath been artifically 
 spread abroad, and industriously improved ; a 
 notion which is equally pernicious and inju- 
 rious to all kings and parliaments, whose in- 
 herent right it ever was, by joint consent to 
 alter, amend, explain, and interpret their own 
 statutes as they saw cause, and according to 
 public convenience. But how could any thing 
 of all that be done, if the judges had ever 
 been invested with such a power inseparably 
 united and annexed to their persons, quatenus 
 
 judges, to invalidate, disannul, and declare 
 but one act of Parliament to be void ; since, 
 by the same authority, they might have de- 
 clared another to be so too, and by like logic, 
 all, wathout ever adjourning any case ad 
 proximum Parliamentum propter diffindtatem. 
 And thus we see uno absurdo dato, infinita se- 
 quuntur." "Jus Parliament 'arium, or the An- 
 cient Power, Jurisdiction, Rights, and Liber- 
 ties of the Most High Court of Parliament, 
 Revised and Asserted by William Petyt." 
 This work was published after the author's 
 death, in 1739. Petyt was a barrister of the 
 Inner Temple, and Keeper of the Records in 
 the Tower. He appears to have died shortly 
 after the accession of William III. The whole 
 of Chapter V of this work, from which the 
 above is taken, is an elaborate argument 
 against judicial construction. The heading 
 runs thus, " Where former statutes have 
 seemed dark and dubious, and by the subtle 
 and nice wits of learned lawyers, were made 
 liable to several different constructions, the 
 Parliament, as being the highest court and 
 seat of justice, and who best knew their own 
 sense and meaning, wisely provided additional 
 explanatory acts to direct and guide the 
 judges of Westminster Hall, how they ought 
 to expound such statutes, and did not leave 
 them to follow their own arbitrary discretions 
 of interpreting those laws contrary to the 
 true design and intent of the makers thereof." 
 His seventh chapter, entitled, " Of the Orig- 
 inal of Non Obstantes, and how they came 
 into the Courts of Justice," is an elaborate ex- 
 amination and vehement denial of the dispens- 
 ing power. 
 
 The subject of Non Obstantes, as they 
 were at the time of the Engrlish Revolution 
 
JUDICIAL CONSTRUCTION. 
 
 177 
 
 So far as the character of the judiciary was concerned, the 
 evils attributed to the doctrine of judicial constructions were 
 
 familiarly called, or that of the right then 
 claimed for the king;, by virtue of his royal 
 prerogative, to dispense with the provisions 
 of a statute in favor of some particular per- 
 son, is so interesting that I compress into 
 this note a brief abstract of the case of 
 Godden v. Hales, from Howell's State Trials, 
 ed. of 1811, vol.. xi, p. 1165. The stat. 25 
 Charles II, "for preventing dangers which 
 may happen from Popish Recusants, and 
 quieting the minds of his Majesty's good 
 subjects," passed during the religious ex- 
 citement which prevailed in that monarch's 
 reign, declared that every person appointed 
 to office, civil or military, under the king, 
 should within three months after acceptance, 
 receive the sacrament according to the visages 
 of the Church of England, and publicly take 
 the oaths of supremacy and allegiance, under 
 a penalty of 500, for executing the duties of 
 the office after the three months expired 
 without the oaths and sacrament being taken. 
 In the year 1686 (2d Jas. II), Godden, or 
 Godwin, an informer, sued Sir Edward Hales 
 in the King's Bench, in an action of debt of 
 500, alleging that the defendant, in 1673, 
 was admitted to the office of colonel of a 
 foot regiment, and held it for three months 
 without taking the sacrament or oaths in 
 question, and that he had been indicted for 
 and convicted of the offence. The defendant 
 pleaded that within the three months in the 
 declaration mentioned, the king, by letters 
 patent, did dispense with, pardon, remit, and 
 discharge the defendant from taking the said 
 oaths, <fec., and from all crimes, &c., any 
 clause in the said act, or in any other act 
 notwithstanding, and non obstante that the 
 defendant was or should be a recusant con- 
 vict ; demurrer and joinder. On this case 
 the twelve judges were consulted : eleven 
 declared in favor of the demurrer ; and 
 judgment was given, quod querens, nilcnpiat 
 per billam. The eleven judges have been 
 ever since severely condemned, and the 
 twelfth has not fared much better (see Macau- 
 lay's Hist, of England, vol. ii.cbap. vi). The 
 dispensing power has been a sort of standing 
 symbol or equivalent for every thing arbitrary 
 and tyrannical ; and by the Bill of Rights, 
 1 W. & M. ses. ii, c. ii, 12, it was declared 
 that from the then session of Parliament, no 
 dispensation with any statute should be valid, 
 unless such statute declared it, &c., and 
 except in such cases as should be specially 
 provided for. 
 
 But, perhaps an accurate examination of 
 the subject will lead to a somewhat more 
 charitable judgment, as far at least as the 
 judges are concerned. Mr. Macaulay's ac- 
 count is not very full. As reported in the 
 State Trials, the arguments of the case by 
 12 
 
 the counsel, and the judgment of the court, 
 are feeble enough ; but the treatises published 
 on both sides of the question at the time, by 
 Sir Robert Atkins, and the Chief Justice, 
 Sir Edward Herbert, enable us to form a 
 pretty accurate opinion of the subject. These 
 pamphlets are republished in Howell's State 
 Trials, at the end of the case. 
 
 That the king had a certain dispensing 
 power in regard to the penal legislation of 
 Parliament, was generally admitted. This 
 prerogative is defined and defended by Coke, 
 in the case of the Monopolies : Dispensatio 
 mali prohibiti est de jure Domino Regi com- 
 missa, propter impossibilitatem providendi de 
 omnibus particularibus, et dispensatio est mali 
 prohibiti provida relaxatio, utililate seu necessi- 
 tate. It was considered as a sort of anticipa- 
 tory and more extensive pardoning power. 
 Hobart, Plowden, Vaughan, had all treated 
 the existence of the prerogative to some ex- 
 tent as unquestionable, and it had been re- 
 peatedly recognized by the courts. On the 
 other side, the right of dispensation in gen- 
 eral 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 the 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 pro- 
 hibita, and not of mala per se ; 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 dis- 
 pensing 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 II imposed a I'eligious test, 
 it would now be almost universally regarded, 
 even in England, as unwise and unjust; and 
 that thus a great principle of liberty was es- 
 tablished by maintaining and defending, in 
 its full violence, a fanatical and arbitrary stat- 
 ute. 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 proba- 
 bly have disputed the dispensing 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 obstante ; but, in the next century the 
 power of the sovereign had dwindled, the di- 
 mensions of the nation had expanded, and 
 
178 
 
 JUDICIAL CONSTRUCTION. 
 
 corrected by the act which made the tenure of their office de- 
 pendent on their good conduct alone, and emancipated them from 
 all subordination to the crown. The influence of this altera- 
 tion was almost immediately perceptible; the same magistrates 
 who, holding their offices de bene placito would have been syco- 
 phants and time servers, became so soon as they occupied their 
 seats quamdiu se bene gesserint, bold and honest public servants.* 
 
 that flexible thing called the English Consti- 
 tution 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 prin- 
 ciple of toleration, the judgment affirming the 
 prerogative does not seem so great an enor- 
 mity as it is now generally regarded. 
 
 * By the 12 and 13 Wiiliam 111(1700), c. 3, 
 3, it was provided that after the said limita- 
 tion (i. e., of the crown to the House of Han- 
 over) " shall take effect as aforesaid, judges' 
 commissions be made quamdiu se bene gesserint, 
 and their salaries ascertained and established, 
 but upon the address of both Houses of Par- 
 liament it may be lawful to remove them." 
 And by Geo. Ill, c. 23, the judges were con- 
 tinued in office during good behavior, not- 
 withstanding 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 privil- 
 ege and of a sanguinary penal code ; and it is 
 little more than half a century since Parr 
 called them "the furred homicides" of West- 
 minster Hall. It is not, I think, much more 
 than a generation since this hostility has en- 
 tirely disappeared, and since the reputation of 
 the English judiciary for moderation and hu- 
 manity has been as generally admitted as it 
 has always 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 construction to such lengths that it 
 became necessary to arrest it by positive law. 
 The power of the judiciary to construe the 
 statute law, and the authority of judicial de- 
 decisions or acts generally, has been the sub- 
 ject of great controversy in France ; Dupin 
 says, no point more so. Jurisprudence des 
 Arreta, p. 19. Under the old monarchy, the 
 judges united certain legislative with their 
 judicial functions ; they pronounced their de- 
 cisions 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'enregistrement, and 
 arr6ts de reglement. The former applied to 
 royal edicts, declarations, letters patent, <fcc., 
 
 and furnished a practical check on the des- 
 potic power of the sovereign, more or less 
 efficacious, as the case might be. Tel edit 
 enregistre a Paris ne 1'aura point ete ou a. 
 Toulouse ou & Rouen, et n'y fera point loi par 
 consequent; ou bien il n'aura ete enregistre 
 qu'ayec des modifications qui restreignent ses 
 dispositions. Camus, Etudes d'un Avocat 
 4.me Leltre, p. 82. The latter, arrets de regle- 
 ment, decided questions of customary law 
 (droit coutumier), police, professional disci- 
 pline, 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 liti- 
 gated cases, the judges gradually fell into the 
 mischievous practice of giving their judg- 
 ments without stating any reasons whatever. 
 Ju. des Arrets, p. 62. This, of itself, would 
 naturally tend greatly to diminish, if not en- 
 tirely 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, 
 " On ne devrait jamais citer que des arrets de 
 reglement; en alleguer d'autres simplement 
 comme des exemples et des prejuges, c'est un 
 abus que les gens senses devraient bannir, 
 parcequ'un exemple ne saurait etre concluant 
 qu'autant que les circonstances sont entire- 
 meat semblables; ou, en supposant la possi- 
 bilite de cette similitude parfaite, il reste & 
 1'etablir, ce qui est ordinairement une chose 
 impossible. Mais ce mauvais usage d'invoquer 
 les arrets subsistera long temps." Camus' 
 Etudes d'un Avocat, p. 101. 
 
 The disfavor with which the proceedings 
 of the judges were regarded, was greatly in- 
 creased by their abuse of the power of mak- 
 ing arrets de reglement. Exercising what 
 was truly a legislative function, when a law 
 of the kind we have above enumerated came 
 before them, and they found either a doubt, 
 or a casus omissus, or what they considered 
 an error in the law, they removed the diffi- 
 culty or supplied the omission by an arret de 
 reglement, 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 simply to obey the law, and a 
 general prohibition was made of judicial in- 
 tsrpretation. This prohibition, made origin- 
 
JUDICIAL CONSTRUCTION. 
 
 179 
 
 The character of the bench being changed, the mischievous 
 abuses of the judicial power gradually tended to correct them- 
 selves. As the statutes became more plain and explicit, as the 
 Legislature ceased to be the mere arena of political contro- 
 versy, and devoted itself to framing general rules for the con- 
 duct of affairs, 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 Legislature has de- 
 clared it, not to alter the law by means of construction in order 
 to remedy an evil or inconveniences resulting from a fair inter- 
 pretation of the law." f " It is scarcely necessary, we trust," 
 
 ally so far back as 1667, Avas renewed by the 
 Constituent Assembly in 1790. Portalis' Dis- 
 cours Preliminaire, Code Civil, Art. 4. The 
 judges, to take their revenge for this interfer- 
 ence, adopted a new line of practice ; and 
 whenever the law appeared doubtful or ob- 
 scure, they refused to decide the cause, and 
 referred the whole matter to the Legislature. 
 Ib. This, however, was speedily condemned 
 as an abuse, by the Court of Cassation ; acd 
 the Code Civil contains a provision which at 
 first sight looks very odd to the English ju- 
 rist, 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 obscurity, or the de- 
 fectiveness of the law; while 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 provis- 
 ions are very curious. Le juge qui refusera 
 de juger sous pretexte du silence, de 1'obscu- 
 rite, ou de 1'insuffisance de la loi, pourra etre 
 poursuivi comme coupable de deni de justice. 
 4. II est defendu aux juges de prononcer 
 par voie de disposition generale et reglemen- 
 taire sur les causes qui leur sont soumises. 5. 
 The abuse first above referred to was cor- 
 rected by a law passed by the Constitutional 
 Assembly in 1790, requiring the'judges in 
 deciding causes, in all cases to state the ques- 
 tions of fact and law involved, and the rea- 
 sons 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 judi- 
 
 cial power in France is, or has been till a 
 comparatively recent period, in great uncer- 
 tainty. Portalis, in his admirable Discours 
 Preliminaire to the Code Napoleon (1802) de- 
 votes several pages to prove the propriety of 
 judicial construction of legislative acts as op- 
 posed to a reference of each litigated case 
 turning on a doubtful point of statute law to 
 the Legislature; and in 1822, M. Dupin pub- 
 lished his Jurisprudence des Arrets, for the 
 purpose of defining the precise amount of au- 
 thority rightfully due to judicial decisions. 
 In the course of it, the learned author repeats 
 the arguments of Portalis as to the propriety 
 and necessity of judicial construction (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 
 curious and interesting, but to the English or 
 American jurist appears a very rudimentary 
 treatise. The eleventh chapter of the treatise 
 of Mr. Dwarris is devoted to the subject of 
 the boundaries of legislation and of judicial 
 interpretation ; in it he makes . copious ex- 
 tracts from the Discours Preliminaire of Por- 
 talis, and among other things, remarks, " that 
 even among our enlightened neighbors, and 
 at a very recent period, the boundaries of 
 legislation a*>d of judicial interpretation were 
 so vaguely defined and so imperfectly under- 
 stood, that the judges were constantly either 
 mistaking the principles or erring in $heir 
 application of them. Dwarris, pp. 697, 783. 
 
 * Ellis v. Paige et al, 1 Pick. 43. 
 
 f Per Paige, J., in the Court of Appeals 
 James v. Patten, 2 Selden, p. 9. 
 
180 CONSTITUTIONAL LIMITATIONS. 
 
 says Mr. Chief Justice Redfield, in the Supreme Court of Ver- 
 mont, "at this late day, to say, that the judicial tribunals 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 legitimately question the policy, or refuse to sanction 
 the provisions, of any law not inconsistent with the fundament- 
 al law of the State. And they would never attempt to do 
 this even, except upon obvious or satisfactory grounds." * 
 
 Thus have the lines of dernarkation, as they now exist, 
 been established between these two great branches of Govern- 
 ment. The Legislature gradually ceases to interfere with 
 private rights, and tends more to confine itself to the establish- 
 ment of uniform, general and prospective rules. The judges 
 resign and disclaim the power of correcting the errors or sup- 
 plying the deficiencies of the Legislature, and confine them- 
 selves strictly to the duty of construction and interpretation in 
 doubtful cases. This power is now fully conceded to them 
 both here and in England. The rules controlling the exercise 
 of this power, we shall shortly examine ; but before doing so, 
 we have to consider our second head, i. e., the limits of the ju- 
 dicial power as used to apply and enforce constitutional pro- 
 visions. 
 
 This branch of judicial authority deserves particular atten- 
 tion. It is entirely the growth of American jurisprudence ; 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 gov- 
 ernment, to be found in, or deduced from Magna Cartel of 
 King John, the statute called Confirmatio Gliartarum, and 
 various other corroborating statutes passed between the reign 
 of Edward I. and Henry IV ; the petition of right in the time 
 
 * In re Powers, 25 Vermont, p. 265. " If cherished as a vital principle of freedom, 
 the provision that the legislative and judicial And without having recourse to the authority 
 powers shall be preserved separate and dis- of elementary writers, or to the popular con- 
 tinct, be not found in our own Constitution in ventions of Europe, we have a most coin- 
 terms, it exists there in substance, in the or- manding authority in the sense of the Ameri- 
 ganization and distribution of the powers of can people, that the right to interpret law 
 the departments, and in the declaration that does, and ought to belong exclusively to the 
 the " supreme legislative power " shall be courts of justice." Dash v. Van Kleeck, per 
 vested in the Senate and Assembly. No max- Kent, J., 7 J. R. pp.477, 508-9. 
 im has been more universally received and 
 
CONSTITUTIONAL LIMITATIONS. 181 
 
 of Charles I, tlie 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 secu- 
 rity, liberty, and private property, which, taken together, form 
 what is called the English Constitution.* 
 
 But these rights all rest either on legal concession or legis- 
 lative enactment ; and, in England, it has never been alleged 
 that there exist any precise written 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 opposed to the arbitrary powers of the sove- 
 reign 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 neces- 
 sity in England, as with us, of express written constitutional 
 restrictions. 
 
 The necessity of checks upon power was perfectly under- 
 stood by the sagacious men who formed the Government of this 
 
 * See Blackstone's first chapter, on the fair implication, from Magna Carta, and its 
 
 rights of individuals. above-mentioned supplement. 
 
 Mr. Creasy, in his valuable work on the "Their vigorous development was aided 
 
 English Constitution, says : " The great and attested in many subsequent statutes, es- 
 
 primeval and enduring principles of our Con- pecially in the Petition of Right and the Bill 
 
 stitution are as follows : of Rights ; in each of which the English na- 
 
 " The government of the country by an tion, at a solemn crisis, solemnly declared its 
 
 hereditary sovereign, ruling with limited rights, and solemnly acknowledged its obli- 
 
 powers, and bound to summon and consult a gations two enactments which deserve to 
 
 Parliament of the whole realm, comprising be cited, not as ordinary laws, but as consti- 
 
 hereditary peers and elective representatives tutional compacts, and to be classed as such 
 
 of the commons. with the Great Charter, of which they are 
 
 " That without the sanction of Parliament the confirmers and exponents, 
 no tax of any kind can be imposed, and no " Lord Chatham called these three ' The 
 
 law can be made, repealed, or altered. Bible of the English Constitution,' to which 
 
 " That no man be arbitrarily fined or appeal is to be made on every grave political 
 
 imprisoned, that no man's property or liber- question. The great statesman's advice is 
 
 ties be impaired, and that no man be in any still sound. It deserves to be considered by 
 
 way punished, except after a lawful trial. subjects as well as by princes, by popular 
 
 " Trial by jury. leaders without the walls of Parliament, as 
 
 " That justice shall not be sold or delayed, well as by ministers within them." Rise and 
 
 " These great constitutional principles can Progress of the English Constitution, by E. S. 
 
 all be proved, either by express terms or by Creasy (1856, p. 3). 
 
182 CONSTITUTIONAL LIMITATIONS. 
 
 country ; and foreseeing that in the absence of a church estab- 
 lishment, hereditary classes and standing armies popular ma- 
 jorities and the popular bodies representing those majorities, 
 would, in this country, unless checked, obtain an absolute and 
 despotic control over the whole business of government, they 
 from the outset imposed upon our legislative 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 cer- 
 tain restrictions for the very purpose of limiting legislative 
 power. No State shall pass any law impairing the obligation 
 of contracts. Private property shall not be taken for public use 
 without just compensation. These are specimens of the peremp- 
 tory language by which the people have sought to keep their 
 agents in constant control. 
 
 o 
 
 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 
 construction of a doubtful constitutional provision is, and 
 whether any legislative act brought before them does or does 
 not violate it ; and their decision that a given law is " uncon- 
 stitutional," at once destroys its vitality, and puts an end to all 
 proceedings under it. The importance 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 judiciary 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 character of the legal 
 mind and education of the country. It has compelled our law- 
 
 * The doctrine may be considered as hav- vol. i, p. 448, for a review of the cases on- the 
 ing been finally settled in Marbury v. Madi- subject, 
 son, 1 Cranch, 137. See also, Kent, Com. 
 
LEGISLATIVE AND JUDICIAL POWER. 183 
 
 yers 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 chapters, to consider 
 the rules that have been laid down in regard to the construc- 
 tion of statutes ; and shall afterwards examine the manner in 
 which the judicial duty of protecting the Constitution is exer- 
 cised. Throughout the investigation on which we are thus 
 about to enter, it will be necessary to keep in view the line of 
 demarkation 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 judi- 
 ciary 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 practice is an 
 evil strictly to be guarded against. If the Legislature should 
 be kept strictly within the bounds of its constitutional provis- 
 ions, 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 discussion, 
 how in the earlier ages of English history the judges have 
 abused their power. This has been owing partly, no doubt, 
 to political causes which have prevented the Legislature from 
 giving that attention to the details of the law which the gen- 
 eral interests of jurisprudence demanded ; partly to the nar- 
 rowness and severity of many of the maxims of the com- 
 mon law ; partly to the brevity with which the early stat- 
 utes 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 
 by war, revolutions, and religious controversies ; partly to 
 the dependence of the judiciary on the sovereign ; but much 
 has been due to the want of keeping before the judicial 
 
184 JUDICIAL POWER. 
 
 mind the true boundary between legislation and interpreta- 
 tion.* 
 
 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 demands of commerce have made 
 peace the normal state of the world, and religious toleration is 
 recognized as the true interest of every natioo, 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 coun- 
 tries ; and it is time that the true line of deniarkation 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 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 con- 
 duct. 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 gratify the most eager love of power, to 
 demand the exercise of the noblest intellect and the application 
 of the most vigorous industry. Let the magistrate be con- 
 tented with this large authority; and let him not, by endeavor- 
 ing to extend it, endanger the power that he now securely pos- 
 sesses. The judicial department should be the most vigilant 
 by its example to resist "that spirit of encroachment which 
 
 * Dwarris, p. 708. secundum legem judices ? Plus sibi sapere visi, 
 
 f St. Augustine says (De Vera Religione, insultant legibus et *ibi conscientias architectan- 
 
 p. 31), Non licet judicibus de leyibus judicare, tur contra publicas leges. Aut igltur sedere 
 
 ted secundum ipsas. desinant, ant sccundum leges judicent. Argen- 
 
 Argentre, an eminent French legist, in his traeus in Antiq. Consuet. Bret. 323, glos. 1, 
 
 work on the customary law of Britanny, says, n. 5 ; Nov. Consuet. art. 627, cited in Dupin's 
 
 " Stulta videtur sapientia quce lege vult sapien- Jurisprudence des Arrets, p. 125. 
 tior videri. Cur de lege judicas, qui sedes ut 
 
JUDICIAL POWER. 185 
 
 tends to consolidate the powers of all the departments in one, 
 and thus create, whatever the form of government, a real des- 
 potism."* 
 
 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 the 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 manifested their disapprobation of these 
 laws by the mode in which they have exercised their dis- 
 cretionary powers in regard to them. So, they have refused to 
 let these statutes be set up by way of defence when it was 
 necessary 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 insolvent debtors to 
 make assignments with preference. So in a late case, speaking 
 of the recent change in our legislation as to the rights of 
 married women, J 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 con- 
 sidered doubtful if it is competent for the judiciary to make 
 any such distinctions. 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 afc 
 liberty to discriminate between one class of statutes and 
 another, and to censure a defendant for acting according to 
 that standard of morality which the law-making power has 
 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. Justice Harris 
 has recently said, " Courts in the exercise of their discretion 
 
 * Washington's Farewell Address. American Home Missionary Society v. 
 
 f Fulton Bank v. Beach, 1 Paige, 429 ; Wadhams, 10 Barb. 568. 
 TJtica Insurance Co. v. Scott, 6 Cowen, 606 ; 
 Jackson v. Varick, 2 Wend. 294. 
 
186 JUDICIAL POWER. 
 
 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.* 
 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 upon the usurious 
 contract. In doing so they have but followed every other 
 civilized State. With the policy of such laws, courts have 
 nothing to do. When a plaintiff wilfully 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 provided the 
 defendant, hard or unconscionable. But such has been the 
 practice, and perhaps that practice has now become so 
 inveterate that it cannot be disregarded." f 
 
 So again, in the Court of Appeals, when an application 
 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 w r rong, 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 is a 
 defence allowed and provided by law. The defendant 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 indiscriminately, whether the party invoking their 
 exercise was seeking to visit 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 Legislature is plainly 
 expressed, we have no judgment to pass upon the policy of 
 their provisions." 
 
 * Fulton Bank v. Beach, 1 Paige, 429 ; f Bates v. Voorhies, 7 How. Pr. Rep. 
 
 Utica Insurance Co. v. Scott, 6 Cow. 606; 234. 
 Jackson v. Varick, 2 Wend. 294. \ Catlin v. Gunter, 1 Kern. 368. 
 
AUSTIN ON JURISPRUDENCE. 187 
 
 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 object (Pref. pp. 
 5 and 8), in accordance with his title, is to distinguish positive law, the 
 appropriate matter of jurisprudence, from various other objects to 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 character ; and the writer classes 
 laws as follows : 
 
 1st. Divine Laios, 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 Laivs, constituting what is commonly known as Jurisprudence : 
 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 subjection to the 
 author. 
 
 3d. Laivs 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 Figurative. 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 caso 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 enforcing it (p. 6). 
 
 Wherever 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). 
 
188 AUSTIN ON JURISPRUDENCE. 
 
 Command and duty are correlative terms (p. 7). 
 
 Command and duty, or obligation and sanction, are inseparably connected 
 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 obli- 
 gation 1 If so, in what sense of the word ? 
 
 In one place in Mr. Austin's work (p. 6), command implies power and pur- 
 pose 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 
 lenders to borrowers ; by patrons to parasites ; rules of clubs. These all pro- 
 ceed from determinate sources, but they are set by persons, as private persons, 
 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 a not 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 
 nations. Here there is no determinate author and no strict sanction ; and their 
 chief analogy to a law is that the party violating will suffer some evil conse- 
 quence, and hence uniformity is produced. 
 
 Sect. 6th, p. 196. In order to complete the explanation of the marks dis- 
 tinguishing positive laws, the author in this chapter defines various terms such 
 as sovereignty, subjection, independent political society, unconstitutional ; and 
 in this he incidentally discusses the division of powers into legislative and ex- 
 ecutive, 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 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 
 
AUSTIN ON JURISPRUDENCE. 189 
 
 an extraordinary Legislature. The body of citizens appointing the ordinary 
 Legislature forms an extraordinary and ulterior Legislature, by which the Con- 
 stitution 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 affirm. I merely affirm that the institution is pos- 
 sible, and that in one political society the institution actually obtains." Not a 
 very audacious affirmation, considering that this "institution" is the funda- 
 mental legal idea in thirty-two " political 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 reasoning 
 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 republisbed 
 in this country. 
 
CHAPTER VI 
 
 GENERAL RULES FOR THE CONSTRUCTION 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's Rules. Mackeldey's. Lieber's. Rules of our Law. 
 Intention of the Legislature to Govern. Mode of arriving at the Legislative 
 Intention. Lord Coke's Rules. Blackstone's Rules. Statutes in pari materia. 
 Contemporaneous Exposition. Legislative Exposition. Judicial Construction. 
 Usage. Language used in Statutes. Technical Terms. Liberal and Strict Con- 
 struction. 
 
 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 num- 
 bers to the mind. The imperfection of language is a serious 
 evil when it occurs in those legislative commands on which the 
 repose, discipline, and well being of society depend. In regard 
 to laws, as in other cases, difficulties will arise, in the first place 
 from the disputed meaning of individual words, or, as is usually 
 said, of the language employed ; and in the second place, as- 
 suming the sense of each separate word 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 which 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 posi- 
 tive rules for the construction of statutes ; and in order to 
 facilitate this, a nomenclature has been sought to classify differ- 
 ent modes or species of interpretation. So, Vattel uses the 
 
RULES OF INTERPRETATION. 191 
 
 terms extensive and restrictive interpretation ; Rutherforth, 
 liberal, natural, and mixed ; and Mackeldey, authentica, usualis, 
 and doctrinalis. Professor Lieber has endeavored to carry this 
 refinement to still greater length. He distinguishes between 
 interpretation* and construction, and divides the former into 
 close, extensive, extravagant, limited or free, predestinated and 
 authentic ; and the latter into close, comprehensive, transcend- 
 ent, and extravagant. 
 
 Under these classifications it has been attempted to frame 
 formal rules for the various modes of interpretation, as It is 
 not allowable to interpret what lias no need of interpretation. . 
 When we see what is the sense that agrees with the intention of 
 the instrument, it is not allowable to wrest the words to a confoary 
 'meaning. No text imposing obligations is understood 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 difficulty. 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 construc- 
 tion, it may be inclosed with fosses and ramparts. So the law 
 condemns to death him who strikes his father. Shall we 
 punish him who strikes and shakes his father to recover him 
 from a fit ? So, where it was enacted that whosoever drew 
 blood in the public highway should be severely punished, a 
 
 * The following is Prof. Lieber's deriva- this day, in some parts of Germany, speaking 
 
 tion of the word Interpret : " To interpret, as loud and monotonously. Prcedicare, and the 
 
 is well known, is derived from the Latin in- Greek <ppa$ctv, belong to the same family of 
 
 terpres, interpretari, a compound of inter and words. It is very possible that pretari and 
 
 pretari. The latter belongs, as nearly all truly prating are of the same root with broad 
 
 Latin words, according to its root, to that Ian- German, breit speak broadly, plainly. The 
 
 guage which was spoken by the original inhab- present German word for interpreting is 
 
 itants or settlers of Europe, and of which the auslegen, laying out, laying open, unfolding." 
 
 Gothic, ancient High German, Swedish, Ice- Lieber's Legal and Political Hermeneutifs 
 
 landic, Latin, <fcc., are but descended, and (1839), p. 20, in note. The etymologists, 
 
 which was likewise either the first foundation however, do not agree. Richardson's Dic- 
 
 of the Greek, or so strongly influenced it, that tionary (1 839) says, " Interpret, interpretari, 
 
 the root of innumerable words is easily traced of uncertain etymology," and gives, with a 
 
 through all these languages.'' * * " Pre- query, " Pretari, from luparmv." I have an- 
 
 tari is of the same root with many words in nexed to th's chapter copious extracts from 
 
 Teutonic languages: Praia, in Swedish, is the works ol Vattel, Domat, and Professor 
 
 speaking. We have prating and prattling. Lieber, which will serve to illustrate their 
 
 The German reden (pronounced raden), speak- mode of reasoning on the subject, and to 
 
 ing, is the same ; for d and t easily change, compensate for any error that I may make in 
 
 while a consonant before another (a p in this underrating the value of the careful classifi- 
 
 case) is frequently dropped ; or it may be cations and nicely drawn rules of the writers 
 
 that reden is the original. Pralen signifies to of this class. 
 
192 KULES OF INTERPRETATION. 
 
 barber opened a vein of a person taken in the street with 
 apoplexy. Was he guilty or not ? 
 
 These and similar discussions have amused the fancy and 
 exhausted the arguments of text writers. I cannot, however, 
 consider them of much value for the 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, meta- 
 physical 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 process. How is it to be expected 
 that we can, with success, lay down rules which are generally 
 to govern the operations of the mind ? The attempt is ingen- 
 ious, metaphysically 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 independent of 
 rules, and, indeed, almost unconscious 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 nomenclature, 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 power 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 principles which control 
 the interpretation of statutes may, for all practical purposes, be 
 
OBJECTS OF INTERPRETATION. 193 
 
 not unaptly arranged under the same heads, and reduced 
 analytically to the 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 
 question 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, i. e., the judge 
 or the jury, which is to decide. The question is always one of 
 fact. The only difference 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 question of 
 law, but the point to be decided is really one of fact ; it is, 
 generally, what was the intention of the testator ? 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 ques- 
 tion 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 construc- 
 tion of statutes. 
 
 First. The object to be attained. This is, as a general rule, 
 the intention of the Legislature. 
 
 Second. The means to be 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 determine 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 construc- 
 tion, where, as we shall see hereafter, the judicial function is 
 blended with and lost in the legislative attributes. Where a 
 statute appears to be of a doubtful meaning, the courts have 
 
 13 
 
194 THE INTENT OF THE LEGISLATURE. 
 
 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 intent of the Legisla- 
 \ twre who passed the act. What did the Legislature in fact 
 Intend ? The doubt does not refer to the 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 
 Lave 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 Legislature, and if 
 they are to disregard the motives and knowledge 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 noticed in the next chapter, where there is no guide to the 
 legislative meaning, and where, consequently, the judicial func- 
 tion is really merged in the legislative. 
 
 We may, therefore, affirm, as a general truth, that independ- 
 ently of constitutional questions, and independently of those 
 doctrines of liberal and strict 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 construction of doubtful provisions of statute law, is to 
 ascertain the intention of the Legislature which framed the 
 statute. This rule, though often asserted, has been in practice 
 frequently lost sight of; but there is abundant 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 according 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 interpretation. 
 The Legislature has spoken ; their intention is free from doubt, 
 
 "* Dukedom of Sussex, 8 London Jur. 795 ; Furman v. City of New York, 5 Sandf. 16. 
 
THE INTENTION TO GOVERN. 195 
 
 and 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, or the 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 legisla- 
 tive, and not judicial action."* So, too, it is said, by the 
 Supreme Court U. S. : " Where a law is plain and unambig- 
 uous, 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 con- 
 struction." f 
 
 Thus it is only when the language is ambiguous that 
 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 subscription books to be again 
 opened. It was held, that the fair construction of the amenda- 
 tory 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." J 
 
 " 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 sometimes to be collected from the cause 
 
 * Bosely v. Mattingly, 14 B. Monroe, . \ Johnson v. Bush, 3 Barb. Ch. R. 207 & 
 Kentucky, 89. 238; see also Young v. Dake, 1 Selden, 463. 
 
 f Fisher v. Blight, 2 Cranch, 358, 399; 
 Case T. Wildridge, 4 Indiana, 51. 
 
196. THE INTENTION TO GOVERN. 
 
 or necessity of making it, at other times from other circum- 
 stances. Whenever the intention can be discovered it ought to 
 i be followed, with reason and discretion, in its construction, 
 although such construction may seem contrary to its letter." 
 In this case the following point was decided in regard to wills : 
 The signature of the testator was always required ; but both 
 in England and here, it had 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 Revised 
 Statutes of New York provided, that wills should be subscribed 
 by the testator at the end of the will. 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 instrument, it was held, on the ground that the intent of 
 the statute was satisfied, that the will was valid.* 
 
 In New York a quo 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 in- 
 corporation, as to be evidently contrary to the intention of the 
 Legislature; and on this ground, judgment of ouster was 
 rendered. Thompson, 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 dispute. That 
 intention is to be collected from the act itself, and other acts in part 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 th cause or necessity of 
 making the statute, and sometimes from other circumstances ; and whenever 
 such intention can be discovered, it ought to be followed, with reason and 
 discretion, in the construction of the statute, although such construction seem 
 contrary to the letter of the statute. Where any words are obscure or doubt- 
 ; ful, the intention of the Legislature is to be resorted to, in order to find the 
 meaning of the* words. A thing which is within the intention of the makers 
 of aTstatute, 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 
 * Tonnele v. Hall, 4 Comstock, 140. 
 
THE MEANS TO BE EMPLOYED. 197 
 
 it be within the intention of the makers ; and such construction ought to be 
 .put upon it as does not suffer it to be eluded." * 
 
 So in the same State, where, by a statute concerning judg- 
 ments and executions, it was declared not 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 execution 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 object, it was said, was to 
 prevent abuse, that the sheriff or his deputies should not be 
 allowed to make purchases 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. % 
 
 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 regard to the modified re-enactment 
 of British statutes, and the revision of our own, in the differ- 
 ent States. | 
 
 The notion that the intention of the Legislature is to govern 
 Jias, indeed, as we shall see, often been carried, in one sense, 
 much too far, and the judiciary have sometimes 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. 
 
 * People T. Utica Ins. Co. 15 J. R. 358, regard to the act relative to absconding, con- 
 
 880. cealed, and uon-resident debtors (Matter of 
 
 f Jackson ex dtm. Scofield v. Collins, 3 Brown, 21 Wend. 316); and so in regard to 
 
 Cowen, p. 89. the statute regulating the landlord's claim 
 
 \ Crocker v. Crane, 21 Wendell, 211. for rent due, under executions (In the matter 
 
 | So in New York, in regard to the of Theriat v. Hart, 2 Hill, 380). See also as 
 
 statute of administrators (Taylor v. Delancy, to point that intention is to govern, Cannon 
 
 2 C. C. E. 143), the habeas corpus act v. Vaughan, 12 Texas 599 
 (Case of Yates, 4 J. K. 318, 359). So in 
 
198 LORD COKE'S RULES. 
 
 Considering it, then, to be clear that the object to be at- 
 tained in all cases of doubtful construction is the intention of 
 the Legislature, we next have to consider the means to be em- 
 ployed to arrive at that result ; and we cannot, perhaps, better 
 introduce the subject than 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, 
 u 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 consid- 
 ered: 
 
 " 1. What was the common law before the making of the 
 act? 
 
 " 2. What was the mischief and defect for which the com- 
 mon law did not provide ? 
 
 " 3. What remedy the Parlament hath resolved and ap- 
 pointed to cure the disease of the commonwealth. 
 
 " 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 inventions and evasions for 
 continuance of the mischief and pro privato commodo, and to 
 add force and life to the cure and remedy, according to the true 
 intent of the makers of the suet, pro bono publioo." * 
 
 * Heydon's Case, 3 Rep. 7. was made, by signs the most natural and 
 
 I may here notice the fact that there is in probable. And these signs are either the 
 
 England a class of exceptions to the usual words, the context, the subject-matter, the 
 
 rules of construction, growing out of what are effects and consequences, or the spirit and 
 
 called, as we have seen, the Ancient Statutes, reason of the law. Let us take a short view 
 
 " Prudent antiquity," says Coke, " included of them all. 
 
 much matter in few words." 2 Inst. 306, 401. " 1. Words are generally to be under- 
 
 The early English statutes, written in French stood in their usual and most known signifi- 
 
 or Latin, are expressed with a brevity which cation ; not so much regarding the propriety 
 
 renders them now almost unintelligible, and in of grammar, as their general and popular use. 
 
 applying them in modern times the courts Again, terms of art, or technical terms, must 
 
 have thought themselves free to take great be taken according to the acceptation of the 
 
 liberties with the contents. It is, therefore, learned in each art, trade, and science. (Vol. 
 
 with some excuse that of these statutes, as we I, p. 59. ) 
 
 have seen, it has been said (Sheffield v. Red- " 2. If words happen to be still dubious, 
 
 cliff, Hob. 346) " that judges have power over we may establish their meaning from the con- 
 
 them to mold them to the truest and best use, text, with which it may be of singular use to 
 
 according to reason and best convenience." compare a word, or a sentence, whenever 
 
 Blackslone's rules of interpretation are as they are ambiguous, equivocal, or intricate, 
 
 follows : Thus the proem or preamble is often called in 
 
 "The fairest and most rational method to to help the construction of an act of Parlia- 
 
 interpret the will of the legislator is by ex- ment. Of the same nature and use is the 
 
 ploring his intentions at the time the law comparison of a law with other laws that are 
 
THE MEANS TO BE EMPLOYED. 
 
 These resolutions indicate an approach to the true princi- 
 ples on the subject; but, as we shall presently see, the ideas 
 are loosely expressed. In the first place, it seems to be as- 
 sumed that all statutes are intended to remedy some mischief 
 for which the common 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, tov 
 be employed in attaining the end in view. The nature of the; 
 means to be made use of is, however, a matter of great import- 
 ance and nicety. To this we now turn. The means to be; em- 
 ployed in arriving at the legislative intent arrange themselves 
 under two heads, first, those within the statute under consid- 
 eration ; and, secondly, those outside the statute. 
 
 Of the Means to be found within the /Statute itself. In the 
 first place, it is an ancient and well-settled rule, that where any 
 cause of doubt arises, although apparently the doubt attaches 
 only to a particular clause, the whole statute is to be taken 
 together, and to be 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 Par- 
 liament themselves, by construction, and comparing all the 
 parts of them together. Optima statuti interpretatio est (omni- 
 f>us particulis ejusdem inspectis) ipsum statutum ; injustum est 
 nisi tota lege inspecta, una aliqua ejus particula proposita judi^ 
 care vel respondere" (a) 
 
 made by the same legislator, that have some of a law, when the words are dubious, is by j 
 
 affinity with the subject, or that expressly re- considering the reason and spirit of it, or the> f 
 
 late to the same point. cause which moved the legislator to enact it v I 
 
 "3. As to the subject-matter, words are (Vol. I, p. 61.) 
 
 always to be understood as having a regard " There are three points to be considered , 
 
 thereto ; for that is always supposed to be in in the construction of all remedial statutes^ 
 
 the eye of the legislator, and all his expres- the old law, the mischief, and the remedy . 
 
 sions directed to that end. that is, how the common law stood at tha 
 
 " 4. As to the effects and consequences, making of the act, what the mischief was for* , 
 
 the rule is, where words bear either none, or which the common law did not provide,, and 
 
 a very absurd signification, if literally under- what remedy the Parliament hath provided 
 
 stood, we must a little deviate from the re- to cure this mischief. And it is the business 
 
 ceived sense of them. (Vol. I, p. 60.) of the judges so to construe the act, as to sup- 
 
 " 5. But, lastly, the most universal and press the mischief and advance the remedy.* 1 
 
 effectual way of discovering the true meaning (Vol. I, p. 87.) 
 
 (a) The intent is to be gathered from the whole statute or Constitution. District 
 Township, &c. v. Dubuque, 7 Clarke (la.), 262. As illustrations of this rule : Where 
 the language of the section prescribing certain notice of a sheriff's sale is strong; 
 
ENTIRE ACT TO BE EXAMINED. 
 
 The rule has been repeatedly affirmed. So in Pennsylvania 
 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 contradiction or inconsistency.* So in Mas- 
 sachusetts 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 
 
 * Commonwealth v. Duane, 1 Binn. 601. f Commonwealth v. Alger, 7 Cush. 53, 89. 
 
 enough by itself to make the sale void without it, but the next section imposes a 
 penalty only on the officer neglecting to give it (Smith v. Randall, 6 Gal. 47); and 
 where an act provided in one section for setting apart a homestead to widow and 
 children free from all debts of the deceased, but other sections showed an intent to 
 subject the homestead to debts contracted prior to the statute (Simonds v. Powers, 
 28 Vt. 354) ; and where a statute changed the time of holding courts, without an 
 express saving clause of writs already served and returnable at the old term, such 
 writs were nevertheless held valid. Barnes v. Bell, 10 Rich. Law, 376. 
 
 But where a Constitution speaks in plain language in reference to a particular 
 matter, the courts cannot put a different meaning on the words employed because 
 the literal interpretation may happen to be inconsistent with other parts of the in- 
 strument relating to other subjects. Thus, where the Constitution expressly gave 
 the power to the governor to fill vacancies, the court refused to hold that the power 
 was to be exercised with concurrence of the Senate, as implied by other sections on 
 other subjects. Cantwell v. Owens, 14 Md. 215. When the general purpose of a 
 statute is to deal with after-created boroughs, general language in some portions of 
 it broad enough to include existing ones will be restrained so aa to agree with this 
 general intent. Commonwealth v. Council of Montrose, 52 Penn. St. 391. 
 
 Within the limits of the language used, the operation of a statute may be en- 
 larged or restrained to carry out the intent. Thus, where a statute provided that a 
 person should not be sued before any justice except in the township where he re- 
 sided, as the intent of the whole act was to prevent justices at the county seat from 
 monopolizing the business of the county, it was held not to apply to the case of a 
 resident of another county or State coming into a town and there served with 
 process. Maxwell v. Collins, 8 Ind. 38. 
 
 (a) Effect, if possible, must be given to every clause. Brooks v. Mobile School 
 Comm'rs, 31 Ala. 227; San Francisco v. Hazen, 5 Cal. 169; Leversee v. Reynolds, 13 
 Iowa, 310; Cochran v. Taylor, 13 Ohio, N. S. 382; McNamara v. Minn. R. R., 12 
 Minn. 388; Torreyson v. Examiners, 7 Nev. 19; Aldridge v. Mardoff, 32 Tex. 204; 
 Dibblee & Co.'s Case, 3 Ben. (U. S. D. C.) 283; Davis' Case, Ib .482. Where different 
 statutes in pari materia are passed on the same day, they should be so construed as 
 to give effect to each, if possible ; and where one act going into effect at its passage 
 prescribed the mode of making certain affidavits, and another going into effect at 
 the close of the session dispensed with such affidavits entirely, it' was held that effect 
 should be given to each. Fouke v. Fleming, 13 Md. 392. 
 
 Where to take words in their technical sense would make the statute inopera- 
 
MEANS WITHIN THE STATUTE. , 201 
 
 rule that, in the 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 pro- 
 visions 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.* 
 
 We have already had occasion to notice the rule which 
 allows reference to the preamble, and even the title, of the act.f 
 " If," says Lord C. J. Tindal, " any doubt arise from the lan- 
 guage employed by the Legislature, it has always been held as 
 a safe means of collecting the intention, to call in aid the 
 ground and cause of making the statute, and to have recourse 
 to the preamble, which, according to Chief Justice Dyer, is a 
 key to open the minds? of the makers of the act, and the mis- 
 chiefs which they intended to redress." % 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 contain- 
 
 * Attorney-General ex rel. McKay v. De- f Ante, pp. 38-40, 42, et seq. 
 troit & Erin Plank Road Co., 2 Michigan, 138. j Dukedom of Sussex, 8 Lond. Jur. 795. 
 
 tive, they will be taken according to their popular sense ; thus, of a limitation of 
 " actions of debt," the common-law action of debt not being known in the practice 
 of the State (Robinson v. Varnell, 16 Tex. 382) ; and the terms "set-off" and "coun- 
 ter-claim " both being used in a statute, it must be presumed that both were neces- 
 sary, and that different things were intended by them. Lovejoy v. Robinson, 8 Ind. 
 399. 
 
 The same general rule is to be applied to a sentence, and some meaning, if possi- 
 ble, must be given to every word in it (People v. Burns, 5 Mich. 114) ; and where a 
 given construction would make a word redundant, that is some reason for its rejec- 
 tion. Dearborn v. Brookline, 97 Mass. 466. The same rule applies as to every word 
 of the enacting clause (Parkinson v. State, 14 Md. 184) ; and none are to be treated 
 as surplusage or as repetition. Gates v. Sallinon, 35 Cal. 576. 
 
 The whole statute must be made to harmonize, if possible, all the parts with each 
 other and with the general scope. Ellison v. Mobile, &c. R. R., 36 Miss. 572. Where 
 an act directs specific things to be done, and then contains a general prohibitory 
 clause broad enough to cover such things, they will be treated as excepted from the 
 prohibition. De Winton v. Mayor of Brecon, 26 Beav. 533. But where certain 
 words make a statute meaningless, which is intelligible by omitting them, they may 
 be treated as surplusage, even in a criminal statute. U. S. v. Stern, 5 Blatch. C. C. 
 512. 
 
202 MEANS OUTSIDE OF THE STATUTE. 
 
 ing 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 prin- 
 ciple has been frequently acted on. The following case pre- 
 sents 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 present to the sheriff a 
 copy of the docket of the judgment under which he claims. 
 This formality was omitted ; and it was insisted that the stat- 
 ute was merely directory, and ought to be dispensed with. 
 But it was decided otherwise; and in so doing reliance was 
 placed on the previous legislation, and this language was held : 
 " The act of 1826 did not prescribe the evidence to be produced 
 by a creditor claiming the right to redeem. The consequence 
 was, that this matter was left, in a great degree, to the discre- 
 tion of the sheriff and his deputies. Different officers were at 
 liberty to adopt different rules of proceeding; 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 salutary provision can 
 hardly be doubted ; but if it were otherwise, the remedy be- 
 longs to another branch of the Government." f And the bill 
 filed to redeem was dismissed. 
 
 But when it is said that the judges are to take into consid- 
 eration the previous state of the law, and the mischiefs which 
 the enactment was intended to prevent, a doubt at once sug- 
 
 * Furman v. The City of New York, 5 f Waller v. Harris, 20 Wend. 555. 
 Sand. 16. 
 
LEGISLATIVE INTENT, HOW ASCERTAINED. 203 
 
 gests itself as to the mode to "be pursued and the evidence to 
 be required. The judges may be supposed to have, and may 
 perhaps be reasonably charged with, a knowledge of the exist- 
 ing 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 any 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 this is left very much in the dark by 
 Lord Coke and his successors. We are not to suppose that the 
 courts will receive evidence of extrinsic facts as to the intention 
 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 Pennsyl- 
 vania, in regard to the construction 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 proclama- 
 tion and message of the governor, the journals of the House of 
 Representatives, 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 
 statute ; because this must be ascertained from the language 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 eminent 
 judges have, in the construction of statutes, been wont to per- 
 mit their minds to be influenced, and in fact to take a sort of 
 judicial cognizance of many extrinsic facts, in regard to which 
 evidence certainly would not have been permitted, and which, 
 indeed, could not perhaps be proved, (a) 
 
 * Bank of Pennsylvania v. Commonwealth, ruled in this last case, that the journals are 
 
 7 Penn. State R. 144. the highest evidence of the fact of the enact- 
 
 f The Southwark Bank v. The Common- ment of a law, or of any other fact connected 
 
 wealth, 26 Penn. State R. 446. But it is also with its passage. 
 
 (a) The intent is the object of construction, but it is first to be sought in the 
 words of the statute, Virginia, &c. R. R. v. Lyon Co. Comm'rs, 6 Nev. 68 ; it is 
 to be sought, but not at the expense of the clear meaning of the words, Leoni T. 
 Taylor, 20 Mich. 148. Statutes are to be construed with reference to the object to 
 be accomplished by them ; thus where the object of an act was the disposal of the 
 water-lot property of a city, and in the description of such property, the side of a 
 street, which in fact extended along only a part of the water lot, was referred to as 
 
204 LEGISLATIVE INTENT, HOW ASCERTAINED. 
 
 The English statute, 26 Geo. II, c. 23, declared all marriages 
 of children under age void, unless the consent of the parents or 
 guardians was first obtained. The question was brought before 
 the King's Bench, whether the act was to be interpreted to in- 
 clude illegitimate children ; and Lord Mansfield, in holding 
 that it did so, put his decision on the ground of the mischiefs 
 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 
 
 a boundary of the lot, such reference was held not to extend the street itself in 
 length. People v. Dana, 22 Cal. 11. As another example of this general doctrine, 
 an act requiring the consent of " residents " to the bonding of a town, was held not 
 to include a canal corporation whose canal extended through the town. People v, 
 Schoonmaker, 68 Barb. 44. It may well be doubted, however, whether the principle 
 was properly applied in this case. As the general theory of the statute was to get 
 the consent of a majority, in number and in respect to property, of " resident" tax- 
 payers, so that those who would pay the debt should be heard in its creation, and 
 as the canal corporation was by far the largest taxpayer of the town, and as corpora- 
 tions are constantly treated as " residents," for the purposes of taxation, it would 
 seem that the principle invoked by the court should have led it to exactly the 
 opposite construction. 
 
 A statute is to be construed with reference to the circumstances at the time and 
 the necessity of enacting it ; thus an act as to service of process in civil actions, was 
 held not to require any filing of the complaint as a first step, because of the delay 
 and expense of travel that would thus be caused to suitors. Keith v. Quinney, 1 
 Oregon, 364. Supposed policy of the Government as to the particular subject is, 
 however, entitled to but little weight. Hadden v. Collector, 5 Wall. 107. Intent is 
 to prevail even over legislative construction, when such construction obviously re- 
 sults from misapprehension. Turney v. Wilton, 36 HI. 385 ; and words may be 
 treated as surplusage when necessary to carry out the intent. U. S. v. Stern, 5 
 . Blatch. C. C. 512. Where a particular construction, and even the most obvious one, 
 would lead to an unreasonable result e. g., would give to the losing party in replevin 
 the right to the possession of the chattels a different construction will be given, if 
 possible, without doing too much violence to the letter. Haentze v. Howe, 28 Wise. 293. 
 
 That where the intent is doubtful, equity will construe as is most convenient and 
 equitable, see Jersey Co. v. Davison, 5 Dutch. 415. If a statute expresses first a gen- 
 eral intent, and afterwards an inconsistent particular intent, the latter will be taken 
 as an exception from the former, and both will stand. Stockett v. Bird, 18 Md. 484, 
 where this rule was applied to an act which vested the personal property of a wife 
 dying intestate absolutely in the husband, and which in a subsequent portion made 
 a different disposition of choses in action not reduced to possession. 
 
 The intent or opinion of individual legislators, as shown in the discussions upon 
 the bill, are entitled to little weight, if any. Leese v. Clark, 12 Cal. 387, 425 ; Tay- 
 lor v. Taylor, 10 Minn. 107. But the general state of opinion, public, judicial, and 
 legislative, at the time of the enactment, may be considered. Keyport St. Co. v. 
 Farmers' Trans. Co. 3 C. E. Green, 13 ; Delaplane v. Crenshaw, 15 Gratt. 457. 
 
LEGISLATIVE INTENT, HOW ASCERTAINED. 205 
 
 apart in the Fleet and other prisons for the purpose of celebrat- 
 ing 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 committed the 
 offenders to prison ; but that mode of punishment 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 juris- 
 prudence 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 practically the judiciary belonged, 
 when the legislative and the judicial bodies sat in the same 
 place, and, indeed, in the same building, in such a state of 
 things, it may well be that the judiciary might suppose them- 
 selves 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 themselves as a co-ordinate 
 body with the Legislature. 
 
 But in modern societies, where the division of political 
 attributes is so much more nice and rigorous, where the busi- 
 ness of legislation has become multifarious and enormous, and 
 especially in this country where the judiciary is so completely 
 separated from the Legislature, it must be untrue in fact that 
 they can have any personal knowledge sufficient really to in- 
 struct them as 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 construc- 
 tion, to be discussed in the next chapter, the tendency of all 
 our modern decisions is to the effect, that the intention of the 
 Legislature is to be 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 L 
 truly stated to be the duty of the court to effect the intention ! 
 of the Legislature ; but this intention is to ])& searched for in ' 
 
 * The King v. Inhabitants of Hodnett, 1 T. R. 96. 
 
206 LEGISLATIVE INTENT, HOW ASCERTAINED. 
 
 the words which the Legislature has employed to convey it." 
 And, after saying that the 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 con- 
 jecture 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 trans- 
 cend its own duties and powers, and would create a rule 
 instead of applying one already made. It is the province of 
 the Legislature 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 province of the court to 
 apply the rule to the case thus explicitly described, not to 
 some other case which judges may conjecture to be equally 
 dangerous." * 
 
 In a case on the English bankrupt act, Lord Tenterden 
 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." f 
 
 In another case where an effort was made to inclu'de a writ 
 of pone or distringas under the term execution, which is con- 
 fined to executions on judgments, the application was denied; 
 and Lord Tenterden said, " Speaking 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." J 
 
 Where an English statute provided, that no indenture of 
 apprenticeship should be " valid and effectual " unless " ap- 
 proved of by two justices of the peace, under their hands and 
 seals]" 1 an indenture executed by the justices under their hands 
 
 * Schooner Paulina' s Cargo v. The United \ Brandling v. Barrington, 6 Barn. & 
 States, 7 Cranch, 52, 60. Crea. 467, 475. 
 
 f Notley v. Buck, 8 Barn. & Cres. 160, 164. 
 
LEGISLATIVE INTENT, HOW ASCERTAINED. 207 
 
 only was held void ; and the King's Bench, per Bay ley, 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." * 
 
 In a case upon the English poor laws, which provided that, 
 in order to gain a settlement, the rent of a tenement " should 
 be paid 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." f 
 
 " We are bound," said Lord Denman, " to give to the words 
 of the Legislature all possible meaning which is consistent 
 with the clear language used. But, if we find language used 
 which is incapable of a meaning, we cannot supply one. It is 
 extremely probable that the alteration suggested would express 
 what the Legislature 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 provision." 
 
 " The court," said Coleridge, J., " should decline to mould 
 the language of an act for the sake of an alleged convenience, 
 or an alleged equity, upon doubtful 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 jeoncur in it ; for 
 the longer I sit here the more I feel the importance of seeking 
 only the meaning of a statute according to a fair interpretation 
 of its words, and resting upon that." ^f Says Patteson, J., 
 " I see the necessity of not importing into statutes words which 
 are not be found there. Such a mode of interpretation only 
 
 * The King v. Inhabs. of Stoke Damerel, i Green v. Wood, 7 Q. B. 178, 185. 
 7 Barn. <fe Cres. 568, 568, 569. | The King v. Poor Law Commissioners, 
 
 f King v. Inhabs. of Ramsgate, 6 Barn. 6 A. & E. 1, 7. 
 <fc Cres. 712, 715. See also King v. Inhabs. ^ 6 A. & E. p. 7. 
 of Barham, 8 Barn. & Cres. 99. 
 
208 LEGISLATIVE INTENT, HOW ASCERTAINED. 
 
 gives occasion to endless difficulty." * " We are required,"" 
 savs Lord Denman, "to add some arbitrary words to the 
 
 / w 
 
 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." f Tindal, C. J., says, " It is the duty of all 
 courts to confine themselves to the words of the Legislature 
 nothing adding thereto, nothing diminishing." $ 
 
 The Court of Appeals in New York says, " Whether we 
 are considering an agreement between parties, a statute, or a 
 Constitution, with a view to its interpretation, the thing we are 
 to seek is, the thought which it expresses. To ascertain this, the 
 first resort in all cases is to the natural signification of the 
 
 O 
 
 words employed, 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, w r hich 
 involves no absurdity, and no contradiction between 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 construction. That which the words declare, is 
 the meaning of the instrument ; and neither courts nor Legis- 
 latures have the right to add to or take away from that 
 meaning." I 
 
 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 sup- 
 pose to have been the intention of the law-maker. In the stat- 
 ute before us, the language admits of but one construction. 
 No doubt can arise as to its meaning. It must, therefore, be 
 its own interpreter." ^f 
 
 /"The result of this investigation then is, that for the purpose 
 of ascertaining the intention of the Legislature, 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 
 
 * King v. Burrell, 12 A. & E. 468. the subject also discussed in McCluskey v. 
 
 f Lamond v. Eiffe, 3 Q. B. 910. Cromwell, 1 Kernan, 593. 
 
 Everett v. Wells, 2 Scott N. C. 531. 1 Bidwell et al. v. Whitaker et al. 1 Mich. 
 
 Newell v. The People 3 Seld. 97. See 469, 479. 
 
STATUTES IN PARI MATERIA. 209 
 
 way taken into view. We now proceed with the inquiry, wliat 
 are the means outside of the statute which we may legitimately 
 employ to arrive at the desired result, viz., the legislative 
 intent. 
 
 Statutes in pari materia, to be taken together. It is well 
 settled, that in construing a doubtful statute, and for the pur- 
 pose of arriving at the legislative intent, all acts on the same 
 subject-matter are to be taken together and exarnin eel, in order 
 to arrive at the true result, (cf) " All acts in pari material 
 
 (a) In pari materia. It will be presumed, where the sense is doubtful, that the- 
 Legislature did not intend to change the general principles of law ; thus a statute 
 allowing wills probated in another State to be recorded in Ohio, was held not to in- 
 clude a will probated in another State which ought to have been originally probated 
 in Ohio, where the testator was domiciled. Manuel v. Manuel, 13 Ohio, N. S. 458, 
 Acts in pari materia are to be taken as one law where they do not conflict; e. g.^ 
 statutes of limitation passed successively. If the earlier is not inconsistent, it is not 
 repealed, and the time runs under that as well as under the later statute. McLaugh- 
 lin v. Hoover, 1 Oregon, 31. A statute changing county lines was construed in con- 
 nection with a prior act as to collection of taxes, both forming parts of one system. 
 Eskridge v. McGruder, 45 Miss. 294. 
 
 Even repealed statutes are to be considered. Doe v. Avaline, 8 Ind. 6 ; Coffin v. 
 Kich, 45 Me. 507 ; and a repealed proviso in construing the portion not repealed. 
 Bank for Savings v. Collector, 3 Wall. 495. An amendatory act, and the act 
 amended, are to be construed as one statute, and no portion of either is to be held 
 inoperative, if it can be sustained without wresting words from their appropriate 
 meaning. Harrell v. Harrell, 8 Flor. 46. In the same manner, constitutional pro- 
 visions and statutes in pari materia are to be construed together, e. g., those as to 
 duty of comptroller with regard to taxes. Billingsley v. State, 14 Md. 369. Stat- 
 utes passed the same day on the same subject are to be construed as sections of one 
 statute. St. Martin v. New Orleans, 14 La. Ann. 113; People v. Jackson, 30 Cal. 
 427. Statutes passed at the same session on the same subject are to be construed as 
 one act ; hence a criminal code repealing all other laws as to crimes, does not repeal 
 a license law, with penalties, etc., passed at the same session, the code containing no 
 provisions touching the subject of license. Cain v. State, 20 Tex. 355. The various 
 statutes of N. Y. giving new powers to married women, though passed in different 
 years, are to be construed as one act. Perkins v. Perkins, 62 Barb. 531. Where dif- 
 ferent degrees of murder were created, and it was provided that " the degree of 
 murder shall be found by the jury," it was held by the aid of other sections in pari 
 materia, that this requirement did not apply in a case where the accused plead 
 guilty. Green v. Commonwealth, 12 Allen, 155. A statute conferring jurisdiction 
 of a certain offence upon a police court, provided that the fine imposed should not 
 exceed $100, and the imprisonment should not exceed one year ; it was held, by re- 
 ferring to other statutes in pari materia, that this provision was a limit upon the 
 punishment of either fine or imprisonment, but did not authorize the infliction of 
 both for the same offence. Commonwealth v. Griffin, 105 Mass. 185. A subsequent 
 statute may be consulted as to the meaning of a prior one, even in respect to its 
 14 
 
210 STATUTES IN PARI MATERIA. 
 
 said Lord Mansfield,* " 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 referring to each other, they 
 shall be taken and construed together as one system, and as 
 explanatory of each other." And in vario'us cases before him, 
 Lord Mansfield applied this doctrine to the laws concerning 
 church leases, bankrupts, and the poor.f 
 
 This sound rule 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 mat- 
 ter under a subsequent statute." J And so it was held, that a 
 provision for compensation embraced in an original act of 1817, 
 extended to cases arising under an act passed in 1820, confer- 
 ring additional powers on canal commissioners. 
 
 The subject has been considered and explained in Connecti- 
 cut ; and it was there said, " Statutes are in pari materia, 
 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 similis. It is used in opposition to it, as in the 
 expression, magis pares sunt quam similes ; intimating not like- 
 
 * The Earl of Ailesbury v. Pattison, Doug. f Rex v. Loxdale, 1 Burr. 445 ; Duck v. 
 
 30. Addington, 4 Term R. 447. 
 
 . \ Rogers v. Bradsliaw, 20 J. R. 735, 744. 
 
 application to transactions occurring between the dates of the two. Hart v. Rey- 
 nolds, 1 Heisk. (Tenn.) 208 ; McAfee v. Southern R. R. 36 Miss. 669. 
 
 The rule in pari materia does not, however, go to the extent of controlling the 
 language of a statute by the supposed policy of previous enactments. Goodrich v. 
 Russell, 42 N. Y. 177 ; nor can other statutes in pari materia be resorted to -where 
 the language of the one under consideration is plain and explicit. Ingalls v. Cole, 
 47 Me 530. Separate charters were granted to two companies to erect booms and 
 to raft logs caught by such booms ; afterwards the companies were consolidated ; 
 held that the charters must be construed separately, and that the powers conferred 
 on each were not interchanged. Gould v. Langdon, 43 Penn. St. 365. 
 
 For further illustrations of the rule, see Powers v. Shepard, 48 N. Y. 540 (boun- 
 ties) ; Billingslea v. Baldwin, 23 Md. 85 (sales of infants' estates) ; Keeling's Road, 
 69 Penn. St. 358 ; Converse v. U. S. 21 How. 463; United States v. Collier, 3 Blatch. 
 C. C. 325 (appropriation and revenue acts); Mitchell v. Duncan, 7 Flor. 13 (stay of 
 execution); La Grange County v. Cutler, 6 Ind. 354; State v. Shaw, 28 Iowa, 67; 
 Le Roy v. Chabolla, 2 Abb. U. S, R. 448. 
 
STATUTES IN PARI MATERIA. 211 
 
 ness merely, but identity. It is a phrase applicable to public 
 .statutes or general laws, made at different times and in refer- 
 ence to the same subject. Thus, the English laws concerning 
 paupers, and their bankrupt acts, are construed together, as if 
 they were one statute, and as forming a united system ; other- 
 wise the system might, and probably would, be inharmonious 
 and inconsistent. Such laws are in pari materia. But private 
 acts of the Legislature, conferring distinct rights on different 
 individuals, which never can be considered as being one stat- 
 ute, or the parts of a general system, are not to be interpreted 
 by a mutual reference to each other. As well might a contract 
 between two persons be construed by the terms of another 
 contract between different persons." And so, the charters of 
 various different banks were held not to be \npari materia* 
 
 So, in New York it has been recently decided, where an act 
 passed in 18 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 1819.f 
 
 So in Kentucky it has been said, that where two statutes of 
 the same date relate to the same thing, but one is more com- 
 prehensive than the other, there will be an effort to give to one 
 some operation not embraced 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 oifive acres, held severally or individually, 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 exompt, but if not owned 
 by the seminary, only five acres should be exempt. J 
 
 * Hosmer, J. United Soc. v. Eagle Bank, 14 B. Monroe, 266 ; Acts in pari materia to 
 
 7 Conn. 457, 469, 470. be taken together, Cannon v. Vau-han. 12 
 
 f Reiford v. Knight, 15 Barb. 627. Texas, 399,402, 
 \ Naz. Lit. & Ben. Inst, v. Commonwealth, 
 
212 CONTEMPORANEOUS EXPOSITION. 
 
 So it has been said that all the acts of Congress relating to 
 the reservation, grant, and sale of the sixteenth section in the 
 several Congressional townships in the different States of the 
 Union, for the use of schools, being in relation to the same sub- 
 ject-matter, are to be taken in pari materiel 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 In- 
 diana, 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 
 
 77 O 
 
 these enactments in pari materia, to consider them as one stat- 
 ute, and give them such an exposition as will sustain what ap- 
 pears to have been the main intent of the law makers, f 
 
 The rule that statutes in pari materia are to be consulted 
 for the construction of each other, holds good, though some of 
 the statutes may have expired, or even been repealed, and 
 whether they are referred to or not. " All acts which relate to 
 the same subject," said Lord Mansfield, J " notwithstanding 
 some of them may be expired, or are not referred to, must be 
 taken to be one system, and construed consistently."! "The 
 objection arising from the repeal of the former statutes," says 
 Lord Denman, " is not insisted on,^f and does not seem tenable." 
 " This act of Parliament," says Parke, J.,** " repeals that of 32 
 Georg III, and 41 George III, the provisions of which are only 
 so far material as they may aid in the construction of the enact- 
 ments of the existing statute." (a) 
 
 S Contemporaneous Exposition. In seeking aid to construe 
 an obscure or doubtful statute, considerable weight is attached 
 
 * The State of Indiana v. Springfield \ Rex v. Loxdale et al. 1 Burr. 447. 
 
 Township, 6 Indiana, 83. || See, also, Reg. v. Merionethshire, 6 Q. B. 
 
 f Board of Corns, v. Cutler, 6 Indiana, R. 343. 
 
 354. See, also, M'Cartee v. Orphan Asylum If Reg. v. Stock, 8 Ad. & Ell. 405,410. 
 
 Society, 9 Cowen, 437; Dodge v. Gridley, 10 ** Bussey v. Story, 4 B. & A. 98, 108. 
 Ohio, 173; M'Mahon v. Cincinnati <fe Chicago 
 Short Line Railroad Co. 5 Ind. 413. 
 
 (a) Where a statute differs in its language from a prior statute on the same sub- 
 ject, it is an intimation that a different construction is intended. Rich v. Keyser, 
 54 Penn. St. 86 ; but not where the change is one of phraseology merely. Burwell 
 T. Tullis, 12 Minn. 572. 
 
CONTEMPORANEOUS EXPOSITION. 213 
 
 to the opinions in regard to it entertained by persons learned in 
 the law, at the time of its passage. " Great regard," says Lord 
 Coke, " ought, in construing a statute, to be paid to the con- 
 struction which the sao-es of the law, who lived about the time 
 
 O f 
 
 or soon after it was made, put upon it, because they were best 
 able to judge of the hitention of the makers at the time when 
 the law was made." And this, in the terse and admirable lan- 
 guage of the civil law, is expressed by the maxim, Contempo- 
 ranea expositio est fortissimo, in lege* As we shall see here- 
 after, this same principle has been applied in this country to a 
 certain extent in the construction of Constitutions. 
 
 So, in regard to the judges of the Supreme Court of the 
 United States sitting as circuit judges without distinct commis- 
 sions for the purpose, it was held by the Supreme Court, .that 
 a practice and acquiescence under the system for a period of 
 several years, commencing with the organization of the judicial 
 system, afforded an irresistible answer to all objections, and 
 had, indeed, fixed the construction. It was said to be a con- 
 temporary interpretation of the highest nature, f 
 
 So, as to the laws of the Colony of Massachusetts in regard 
 to common lands, the Supreme Court of that State has said, 
 
 Of these statutes a practical construction early and generally obtained, that 
 in the power to dispose of lands was included a power to sell and convey the 
 common lands. Large and valuable estates are held in various parts of the 
 commonwealth, the titles to which depend on this construction. Were the 
 court now to decide that this construction is not to be supported, very great mis- 
 chief would follow. And although if it were now res integra, it might be very 
 difficult to maintain such a construction, yet at this day the argumentum ab in- 
 convenienti applies with great weight. We cannot shake a principle which in 
 practice has so long and so extensively prevailed. If the practice originated in 
 error, yet the error is now so common that it must have the force of law. The 
 legal ground on which this provision is now supported is, that long and con- 
 tinued usage furnishes a contemporaneous construction which must prevail 
 over the mere technical import of words. J 
 
 So in regard to the construction of the statute of frauds, the 
 same court has said, 
 
 A contemporaneous is generally the best construction of a statute. It gives 
 the sense of a community, of the terms made use of by a Legislature. If there 
 
 * Dwarris, p. 562 ; Philadelphia, <fcc. R. f Stuart v. Laird, 1 Cranch, 299. 
 
 R. v. Catawissa R. R. 53 Penn. St. 20, 61. ' \ Rogers v. Goodwin, 2 Mass. 477, 478. 
 
214 JUDICIAL CONSTRUCTION. 
 
 is ambiguity in the language, the understanding and application of it when the 
 statute first comes into operation, sanctioned by long acquiescence on the part 
 of the Legislature and judicial tribunals, is the strongest evidence that it has 
 been rightly explained in practice. A construction under such circumstances 
 becomes established law ; and after it has been acted upon for a century, noth- 
 ing but legislative power can constitutionally effect a change. * 
 
 Legislative Exposition. The exposition of statutes by sub- 
 sequent legislative bodies, has weight though not a control- 
 ing authority, in regard to the construction of statutes.f And 
 in Vermont, it has been said that the history of the legislation 
 in the State, in reference to the subject-matter of a statute, 
 may be referred to, as tending to aid in the construction to be 
 given to it.J A declaratory act, or an act declaring the true 
 intent of a previous act, does not control the judiciary in decid- 
 ing on the true construction of the first act, except in cases 
 arising subsequent to the declaratory act, or except in cases 
 where a retrospective act can properly be passed. In a case of 
 this kind it has been said, " The preamble of the act declares 
 its object to be the removal of doubts upon a point of law. So 
 far as the future was concerned, this was strictly within the 
 constitutional attributes of the Legislature, it being the pre- 
 rogative and peculiar duty of that branch of the Government 
 to make the law; and consequently, its dictates, when duly 
 promulgated, fix the law from the moment of such promulga- 
 tion, so far as they do not interfere with vested rights, or im- 
 pair the obligation of contracts previously made. But the 
 power of expounding the law, which includes the great and re- 
 sponsible duty of deciding whether the legislative assemblies, 
 State and municipal, have transcended in their past action the 
 limits of their powers, as defined by the Constitution and the 
 laws, this belongs to the judiciary alone." || < 
 
 Judicial Construction. Stare decisis is the motto of courts 
 
 of justice, sometimes, it is true, departed from, for it is claimed 
 
 i for our law as one of its merits, that it silently changes with 
 
 * Packard v. Richardson, 17 Mass. 121, iana Annual Rep. p. 747. It is the dissenting 
 
 143. opinion of Buchanan, J., but, I suppose, with 
 
 f Coutant v. The People, 11 Wend. 511 ; the modification in the text expresses the true 
 
 Rex v. Loxdale, 1 Burr. 447. idea. The law in this case was retrospective, 
 
 t Henry v. Tilson, 17 Verm. 479. and sustained as such by the court. 
 
 } Municipality No. 1 v. Wheeler, 10 Louis- 
 
USAGE. 215 
 
 the changes in the habits and affairs of men ;* but, as a general 
 rule, and particularly in regard to the construction of statutes, 
 courts adhere strictly to the decisions of their predecessors. 
 " Thirty-four years have nearly passed," said Lord Kenyon, in 
 construing a penal statute for the observance of the Lord's Day, 
 " since the decision of the case of Rex v. Cox, which informed 
 the public that all bakers have a right to do what is imputed 
 to this defendant as an offence. This circumstance alone ousrht 
 
 O 
 
 to have some weight in the determination of this case ;" and 
 the word being doubtful, the original decision was adhered to.f 
 Says Lord Mansfield "When solemn determinations, acqui- 
 esced under, have settled precise cases and a rule of property, 
 they ought, for the sake of certainty, to be observed, as if they 
 had originally formed a part of the text of the statute ;"J and 
 this doctrine has been repeatedly recognized. | " Whatever 
 might be our impressions were the matter res integra" says the 
 Supreme Court of Louisiana, " we deem it important in the 
 construction of statutes, to adhere to what has been already 
 adjudged. The judicial interpretation becomes, as it were, a 
 part of the statute, and should not be changed but for the most 
 cogent reasons.''^]" 
 
 Usage. Of a similar value in regard to the construction of 
 statutes is usage, or the construction which custom or practice 
 has put on them. " Optima legum interpret consuetudo** The 
 wisdom of this principle is asserted in the civil law : Imperator 
 Severus rescripsit, in ambiguitatibus quce ex legibus proficis- 
 cuntur,consuetudinem, aut rerum perpetuo similiter judicatarum 
 auctoritatem, vim legis oUinere debere.^\ " It is the common 
 opinion," says Lord Coke, " and communis opinio is of good 
 
 * " Quicqitid agunt homines, is the business \ Wyndham v. Chetwynd, 1 Burrow, 419. 
 
 of courts," said Lord Mansfield, in Barwell | Nelson v. Allen and Harris, 1 Yerg. 376 ; 
 
 v. Brooks, 3 Doug. 371. 373; "and as the King v. Inhabitants of Corsham, 2 East, 302; 
 
 il usages of society alter, the law must adapt Hammond v. Anderson, 4 Bos. and P. 69; 
 
 ; | itself to the various situations of mankind." King v. Inhabitants of North Nibley, 5 Term 
 
 See also the language of the same great judge, R. 2 1 . 
 
 to the same effect, in Corbett v. Poelnitz, 1 ^[ State v. Thompson, 10 La. Ann. R. 122, 
 
 Term R. 5, 9. Lord Kenyon, however, was 123. [Wl.ere a statute is introduced from 
 
 of the opposite way of thinking; Ellah v. another State, its established construction 
 
 Leigh, 5 Term R. 682 ; Clayton v. Adams, 6 there is introduced with it. State v. Macon 
 
 Term R. 605 ; and see Ram on Legal Juclg- Co. Court, 41 Mo. 453. EDITOR.] 
 
 ment, p. 32, Philadelphia Law Library, vol. 9. ** 2 Rep. 81. 
 
 f Rex v. Cox, 2 Burr. 787 ; King v. John ff L. 38 ff. de Legibus. 
 Younger, 5 Term. R. 449, 450. 
 
216 USAGE. 
 
 authoritie in law. A communi observant ia non est receden- 
 dum? * 
 
 These maxims undoubtedly owe their origin to the period 
 when the common law, that creature of custom, was formed, 
 when, in the absence of printing, public opinion being feeble 
 and insufficient, and government divided and distracted, the 
 strong practical minds of the times saw that the best, perhaps 
 the only mode of creating order and system was, to give all 
 possible force and effect to usage, to legalize and establish 
 general habits and practices, and thus to turn custom into 
 law. (a) 
 
 In a case of the House of Lords, on the statute 27 Henry 
 VIII, Lord Hardwicke said, " The opinion of conveyancers in 
 nil times, and their constant course, is of great weight. They 
 .are to advise ; and, if their opinion is not to prevail, must 
 every case come to law ? No ; the received opinion ought to 
 govern." And Lord Mansfield said, " Consider also the usages 
 and transactions of mankind upon the statute. The object of 
 all laws with regard to real property is quiet and repose. As 
 to practice there has almost been only one opinion. The 
 greatest conveyancers, the whole profession of the law, Sir 
 Orlando Bridgeman, Lord Nottingham, there was not a doubt 
 at the bar in Harvey v. Ashley Mr. Fazakerley always took 
 it for granted." f 
 
 * Coke on Litt. 186, a, note ; see Har- The understanding of the bar generally, 
 
 grave's note 69, where it is said that this is and especially the usual practice of the con- 
 
 the origin of the maxim, Commwiis error veyancers, have always had great weight in 
 
 Jacitjus. England, and cases some even on the con- 
 
 f Earl of Buckinghamshire v. Prury, 2 struction of statutes have frequently been 
 
 Eden Ch. R. 61, 64 and 74. See as to usage decided on the mere weight of their authority, 
 
 in the matter of the appointment of overseers See Smith v. The Earl of Jersey, 2 Brod. & 
 
 of the poor, Rex v. Loxdale, 1 Burrows, 445 ; B. 598, where Lords Eldon and Redesdale 
 
 where Lord Mansfield directed inquiry to be bear strong testimony on this point ; and see, 
 
 made into the usage of certain parishes in also, on this subject general!}', The Science 
 
 this respect. of Legal Judgment ; a treatise designed to 
 
 (a) Where a statute is applicable only to a particular place, doubtful words may 
 be construed with reference to the usage of that place, as general statutes may be 
 construed with reference to general usage. Love v. Hinckley, 1 Abb. Adm. R 436. 
 But where a statute is sufficient in itself, and is silent as to any existing custom, it 
 overrides such custom, and evidence that the Legislature knew of such custom with 
 a view to show they intended to sanction it, is inadmissible. Delaplane v. Crenshaw, 
 15 Gratt, 457. Usage cannot be called in except in case of doubtful construction. 
 Bailey v. Rolfe, 16 K H. 247. 
 
USAGE. 217 
 
 So in the Supreme Court of the United States, the practical 
 construction given to an act of Congress, was held to be of 
 great weight in assisting the court to arrive at its true con- 
 struction.* 
 
 In New York, where at tax sales the comptroller was 
 directed to execute conveyances in the name of the people of 
 the State, and, disregarding the statutes, deeds were given 
 by the comptroller in his name of office; it was held that these 
 deeds were good to pass a legal title, on the ground of a long 
 and uniform custom to give deeds of this kind in this way.f 
 The Chancellor said, " Lord Coke's expression, that common 
 opinion is good authority in law, does not apply to a mere 
 speculative opinion in the community, as to what the law on a 
 particular subject is; but when such opinion has been fre- 
 quently acted upon, and for a great length of time, by those 
 whose duty it is to administer the law, and important in- 
 dividual rights have been acquired, or are dependent upon such 
 practical construction of the law, this expression of the learned 
 Commentator upon Littleton is entitled to great weight." 
 
 But though usage may be employed to construe statutes, 
 it cannot be permitted to defeat the general intent of an act. 
 So said Lord Mansfield : " The use of this practice will avail 
 nothing if meant as an evasion of the statute; for usage 
 certainly will not protect usury." J So again, a particular 
 usage cannot be admitted to interpret a general act, as one 
 relating to the English poor rates. | So, too, in England, the 
 acts of Parliament fixing one standard of weights and measures 
 have been steadily upheld against all local customs and usages.^]" 
 So, in this country, a contract for the sale of lands by the acre, 
 means the statute acre; and parol evidence of a general under- 
 standing to the contrary is inadmissible.** In Pennsylvania, 
 
 show the materials whereof, and the process f Bank of Utica v. Mersereau, 3 Barb. C. 
 
 by which the Courts of Westminster Hall 530, 577. 
 
 construct their judgments, by James Ram, \ Floyer v. Edwards, Cowper, 112. 
 
 of the Inner Temple; an able and instructive | The Kirqf v. John Hogg, 1 T. R. 721. 
 
 work. It was re-published in 1835, in the [[ Noble v. Durell, 3 T. R. 271; Master, 
 
 9th vol. of the Philadelphia Law Library. Ac. of St. Cross v. Lord Howard De Walden, 
 
 [A new edition, annotated by John Town- 6 T. R. 338. 
 
 shend, Esq., was published in 1872.] ** Paull v. Lewis, 4 Watts, 402. 
 
 * U. S. Bank v. Halstead, 10 Wheat, pp. 
 61, 63. 
 
218 STRICT AND EQUITABLE CONSTRUCTION. 
 
 where a statute directs that twenty hundred pounds shall make 
 one ton, a contract was made to delivery forty tons of pig 
 metal ; and an effort was made to show that the usual custom 
 of dealers in the article was to buy and sell by a gross ton of 
 two thousand two hundred and sixty-eight pounds ; but the 
 court held that the statute entered into the contract, and 
 formed an essential part of it : " It is a statute which ought to 
 be enforced ; and the local customs up the Alleghany river are 
 certainly insufficient to repeal it." So in Maine, it has been 
 decided that no prescriptive right can be claimed against an 
 existing statute, f 
 
 We have thus enumerated the modes by which the true 
 interpretation of doubtful legislative provisions is to be arrived 
 at. In the first place, if the act be strictly a remedial one, 
 a clear idea is to be had of the law as it existed before the 
 statute, and of the mischief which it was meant to prevent, 
 for the purpose of ascertaining the remedy which the Legis- 
 lature intended to give. In order to arrive at this result, the 
 whole statute is to be taken together, and all its parts are to be 
 consulted; acts on the same subject-matter are to be examined; 
 contemporaneous and subsequent legislative exposition may 
 throw some light upon the point ; judicial construction may be 
 appealed to ; and finally, established custom will perhaps 
 determine the question. If the law relates to entirely new 
 matter, as for instance a railroad act, the .mind must be steadily 
 turned in the same direction, and its efforts employed to as- 
 certain the true intent of the Legislature. But in no other 
 case than those above specified, can mere extrinsic facts either 
 
 \ , be proved or in any way taken into view : the intention of 
 the Legislature is to be learned from the language they have 
 
 I used. J 
 
 If, after all these legitimate aids are called in, the intention 
 of the legislator, as happens in many cases of hopeless ambi- 
 guity or of irreconcilable contradiction, is still involved in 
 
 * Evans v. Myers, 25 Penn. R. 114, 116. construed in their ordinary import, than to 
 
 f Ham v. Sawyer, 38 Maine, 37. enter into any inquiry as to the supposed 
 
 \ " We think it much the safer course," intention of the persons who framed it." The 
 
 said Lord Tenterden, in a case on the Poor King v. The Inhabitants of Great Bently, 10 
 
 Laws, " to adhere to the words of the statute Barn. & Cres. 520, 526, 527. 
 
LANGUAGE OF STATUTES. 219 
 
 doubt, it necessarily results that the task of arriving at the 
 meanin^ of the act, i. &, the meaning of the legislator, is an idle 
 effort ; the duty of the judge then becomes different, and he 
 must resolve the doubt by the exercise of his authority, upon 
 what are called the principles of strict or liberal construction, 
 and which Ave have to consider in the next chapter. The office 
 of the judge then necessarily changes its character, and he as- 
 sumes to a certain extent the duties of a legislator. He ceases 
 to occupy himself with an endeavor to ascertain the legislative 
 intention, and proceeds to decide the question before him, aris- 
 ing under the statute, as in his judgment it should, as a matter 
 of right and reason, be determined. Though the term con- 
 struction may be still applied to this exercise of his authority, 
 it is evident that the mental operation is a very different one 
 from the endeavor to ascertain the intention of the, law maker. 
 The judge practically says, this statute is on its face doubtful. 
 I cannot tell what the Legislature intended ; but in my judg- 
 ment they ought to have intended this the statute ought to 
 read thus and so I decide. This is really legislation a sub- 
 ordinate exercise of the power, but still legislation. Of the 
 mode of exercising this power, of the extent to which it can 
 rightly be carried, and of its frequent abuse, we shall speak 
 more fully in the next chapter. 
 
 In the mean time, however, we have to examine the rules 
 which govern the interpretation of particular words, or as it i& 
 called, 
 
 The Language of a Statute. The rules which we have been 
 thus far considering, relate to ambiguity and contradiction in 
 regard to the general scope and purport of a statute ; but serious 
 questions may arise in regard to single words, and with refer- 
 ence to the precise meaning of the language used. The rule in 
 regard to this is expressed in the maxim, a verbis legis non est 
 recedendum the meaning of which is, that statutes are to be 
 read according to the natural and obvious import of their lan- 
 guage.* In an early case, the judges said, " They ought not to 
 make any construction against the express letter of the statute, 
 for nothing can so express the meaning of the makers of an act 
 
 * Forrest v. Forrest, 10 Barb. S. C. R. p. 46. 
 
220 LANGUAGE OF STATUTES. 
 
 as their own direct words ; for index animi sermo" * The 
 rule is well expressed by Parke, B., in the English Exchequer. 
 " The rule which the courts have constantly acted on of late 
 years, in construing acts of Parliament, or other instruments, is 
 to take the words in their ordinary grammatical sense, unless 
 such a construction would be obviously repugnant to the inten- 
 tion of the framers of the instrument, or would lead to some 
 other inconvenience or absurdity." f " The current of authority 
 at the present day," says the Supreme Court of New York, " is 
 in favor of reading statutes according to the natural and most 
 obvious import of the language, without resorting to subtle 
 and forced constructions for the purpose of either limiting or 
 extending their operation. Courts cannot correct what they 
 may deem either excesses or omissions in legislation, nor relieve 
 against the occasionally harsh operation of statutory provisions, 
 without the danger of doing vastly more mischief than good." 
 The fundamental reason of the rules, in regard to the lan- 
 guage of statutes, which we have thus stated, is to be found in 
 the consideration, that unless the courts, as a general thing, 
 construe language in the same sense in which it was used by 
 the Legislature, that is, according to its ordinary and natural 
 import, it would be in vain to attempt to preserve any harmony 
 between these two great co-ordinate branches of government ; 
 and the contrary doctrine would open the door to intolerable 
 looseness of construction. If the courts could give to phrases 
 new, unusual, forced, or strained interpretations ; if they could 
 insert a word here or strike out a word there, all idea of con- 
 forming to the legislative intent would be lost, and cases turn- 
 ing on the construction of doubtful statutes would soon come 
 to be decided either on judicial notions of policy or on the 
 peculiar equities of the particular matter in hand, (a) >* 
 
 * Edrich's Case, 5 Co. p. 118. J "Waller v. Harris, per Bronson, J., 20 
 
 f Jones v. Harrison, 6 Exch. 328, 333 ; Wend. 555, 556, 557. " Words are to be 
 s. c. 2 Lowndes, M. & P. 257 see also, Mac- taken in the natural and obvious sense, and 
 dougall v. Paterson, 11 C. B. 755. not in a sense unnecessarily restricted or en- 
 
 fa) The familiar rule noscitur a sociis, is as applicable to the construction of stat- 
 utes as to that of contracts. See State v. McGarry, 21 Wise. 496, where power to 
 remove for incompetency, improper conduct, " or other cause satisfactory to the 
 board," was held to mean other " kindred" cause. 
 
TECHNICAL WORDS. 221 
 
 Technical Words. When technical words occur in a stat- 
 ute, they are to be taken in a technical sense, unless it appears 
 that they were intended to be applied differently from their 
 ordinary or legal acceptation.* 
 
 So, when legislating upon subjects relating to courts and 
 legal process, we are to consider the Legislature as speaking 
 technically, unless from the statute itself it appears that they 
 made use of the terms in a more popular sense. Thus, where a 
 statute directed that the coroner should serve process where 
 the sheriff was " a party" it was held that he must be techni- 
 cally a party, and that being interested in the suit was not 
 sufficient, f So, where a Massachusetts statute in regard to 
 flowing lands declared that a judgment should be "fined" it 
 was held that this phrase was to be taken in its technical 
 sense. % Where a Massachusetts act declared that no license to 
 an administrator to sell the real estate of his intestate for the 
 payment of debts, should be in force for a longer time than one 
 year, it was said " that though the popular sense may be the 
 true one where the act of the Legislature does not relate to a 
 technical subject, yet it being the object to limit the time of 
 sales and prevent estates from being kept open longer than is 
 necessary, the legal sense seems the proper one ;" " and it was 
 held that, there being in a legal sense no sale till the deed was 
 delivered, the deed must be delivered within the year." | 
 
 In regard to the word " robbery," used in an act of the 
 United States, Mr. Justice Washington has said, " If a statute 
 of the United States uses a technical term which is known, and 
 its meaning fully ascertained by the common or civil law, from 
 one or the other of which it is obviously borrowed, no doubt 
 can exist that it is necessary to refer to the source whence it is 
 taken for its precise meaning." ^[ Where the word " supersede" 
 was used in a militia act, the Supreme Court of Massachusetts 
 said, " The only way to ascertain the sense of the Legislature 
 in using the word, is to learn the military sense in which the 
 
 larged," per Story, J., Martin v. Hunter's \ Snell v. Bridgewater Cotton Gin Manu- 
 
 Leesee, 1 Wheat. 326 ; Clark v. City of Utica, facturing Co. 24 Pick. 296. See this case also 
 
 18 Barb. 451. as to repeals by implication. 
 
 * 1 Kent Com. 462 ; Clark v. City of Utica, || Macy v. Raymond, 9 Pick. 286. 
 
 18 Barb. 451. j The United States v. Jones, 3 Wash. C. 
 
 f Merchants' Bank v. Cook, 4 Pick. 405. C. R, 209. 
 
222 TECHNICAL WORDS. 
 
 word is commonly used ; for in the enactment of laws, when 
 terms of art or peculiar phrases are made use of, it must be 
 supposed that the Legislature have in view the subject-matter 
 about which such terms or phrases are commonly employed." 
 
 It has been said that courts of justice are presumed to un- 
 derstand the meaning of technical terms in a statute, and that 
 experts need not be called to interpret them.f But in practice 
 I should suppose this assumption would be found to be very 
 erroneous, and that it would be frequently necessary for courts 
 to inform themselves by testimony as to the meaning of terms 
 of art or science. J 
 
 A question has been raised whether the same .words in any 
 one statute can receive different meanings, according to a doc- 
 trine applied to wills ; | (a) but the Chief Justice of the King's 
 Bench has said, " We disclaim altogether the assumption of 
 any right to assign different meanings to the same words in an 
 act of Parliament, on the ground of a supposed general inten- 
 tion in the act. We think it necessary to give a fair and reas- 
 onable construction to the language used by the Legislature ; 
 but we are not to assume the unwarrantable liberty of varying 
 the construction, for the purpose of making the act consistent 
 with any views of our own."!" On this subject Vattel says, 
 " It does not follow, either logically or grammatically, that be- 
 cause a word occurs in a sentence with a definite sense, that 
 therefore the same sense is to be adopted in every sentence in 
 which it occurs." ** 
 
 We have thus considered the object to be attained in the 
 
 * Ex parte Hall, 1 Pick. 261, 262. eadem. Again in Hopkins v. Stapers, Cro. 
 + Fashion v. Wards, 6 M'Lean, 52. Eliz. 229, that ad and in are of the same 
 $ We have but little idea now of the nicety effect; and in The Warden of All Souls v. 
 of the early English law, in regard to words; Tanworth, Cro. Eliz. 232, it is decided that 
 and the difficulty was then increased by the Elemos^nam ought to be Elmnosynam, with a 
 use of a foreign and a dead language. So in double e : " The common course is so, there- 
 assize of nuisance, " The plaintiff counts that fore it is good." 
 
 exaltavit domurn, the jury finds that ertx.it, || Forth v. Chapman, 1 P. Wm. 667; 
 
 and exception taken to it; but the court was Crooke v. De Vandes, 9 Vesey, 197; Elton v. 
 
 informed by the grammarians that the words Eason, 19 Vesey, 77. 
 
 were of one sense." Giles v. Ferrers, Cro. ^f Reg. v. Comrs. of Poor Laws Holborn 
 
 Eliz. 59. So see Gerrard v. Dickinson, Cro. Union, 6 A. & El. 68, 69. 
 Eliz. 196, for the distinction between talisand ** Vattel, Book 2, ch. 17, p. 285. 
 
 (a) A word used in an amendatory statute is presumed to be used in the same 
 sense as in the statute amended. Bobbins v. Omnibus R. R. Co. 32 Gal. 473. 
 
INTERPRETATION OF WILLS. 223 
 
 process of judicial interpretation, and of the means to be em- 
 ployed. We shall in our next chapter consider a large class of 
 cases, already referred to, where, either from the impossibility 
 of resolving the doubts presented by a statute on the principle 
 of discovering its intent, or from the hardship or peculiarity of 
 the particular matter presented, the judges have been led rather 
 to assume the duties and powers of legislators. "We shall in- 
 quire how far this exercise of power is legitimate or proper ; 
 and under this head we shall examine the subjects of liberal or 
 equitable, and of strict construction. 
 
 It is proper here to remark that in considering the subject 
 of this chapter, the mind of the student will frequently be called 
 to the analogies between the construction of statutes and the 
 interpretation of wills. Those analogies are numerous and 
 striking ; * but on the other hand, there are many and equally 
 striking discrepancies. Among these latter, the rules govern- 
 ing the evidence to be admitted to explain amb ; guities in wills, 
 the arbitrary principles that have been adopted for their con- 
 struction, and the vague discretion exercised by the courts 
 under the name of the doctrine of cy presfi are very prominent. 
 I have thought it inexpedient to enlarge this work to the ex- 
 tent which would have been necessary in order fully to exhibit 
 the relations between the two great classes of subjects, (a) 
 
 * I believe that many of the greatest judi- seems to assume the power of construing stat- 
 
 cial minds have been misled, if I may say so utes beneficially, or in other words, on grounds 
 
 pace tantorum virorum, by these analogies, of equity or policy, a subject which we shall 
 
 In Gore v. Brazier, 3 Mass. 523 & 541, Par- consider in our next chapter, 
 
 sons, C. J., says, " Certainly the statute ought \ For the doctrine of Cy Pres, see Story, 
 
 to have a construction as beneficial to credit- Eq. Jur. 1 1 69, et seq. [See also, Wigram & 
 
 ors, as a devise to executors of an authority O'Hara on Wills, part 2, ch. II.] 
 to sell lands for the payment of debts." This 
 
 (a) In the following note we have arranged under appropriate heads, according 
 to the leading thought of each rule, a number of recent decisions bearing upon the 
 general rules of interpretation and construction. This method will be more con- 
 venient for the reader or the practitioner, than to have broken up the material into 
 a number of short notes, and to have distributed it over a larger space. The order 
 of arrangement, and the leading subjects of the divisions, will be indicated by the 
 displayed headings. 
 
 Fundamental and General Principles, The rules of construction and interpreta- 
 tion of acts of Congress, and of statutes of State Legislatures, except where, in regard 
 to the latter, the State Constitutions otherwise determine, are to be derived from the 
 common law. Rice v. Railroad Co. 1 Black, 358. Construction should lean toward 
 
224 INTERPRETATION OF WILLS. 
 
 personal liberty, and statutes authorizing arrest, etc., are to be strictly construed, 
 Elara v. Rawson, 21 Geo. 139 ; Ramsey v. Foy, 10 Incl. 493. It is said that where a 
 statute is ambiguous, that construction should be given which is most favorable to 
 the public. Haydon v. Supervisors, &c. 2 Nev. 371 ; but this cannot be so where the 
 law purports to interfere with private rights of property or person, on the basis of 
 any assumed public need or public governmental function, for it is clearly settled that 
 all such statutes must be strictly construed, and the benefit of all reasonable doubts 
 and ambiguities must be given to the individual proprietor or possessor of the right. 
 An intent to change an existing law should clearly appear, Lee v. Forman, 3 
 Mete. (Ky.) 114 ; and this applies as well whether the existing law is statutory or 
 'the law promulgated by judicial decision. As a plain corollary of this general rule, 
 statutes should not be so construed as to interfere with rights previously granted by 
 the Legislature, unless the intent to do so is clear. McAfee y. Southern R. R. 36 
 Miss. 669. 
 
 Common and Technical Terms; Interpretation of Particular Terms. Technical 
 legal terms, as a general rule, and in the absence of any countervailing intent which 
 displaces the rule, are to be taken in their established common-law signification; 
 thus a statute giving dower in lands of which the husband was seized, does not in- 
 clude a contingent remainder, Apple v. Apple, 1 Head (Tenn.) 348 ; but this rule, 
 although very general, may be overcome by other considerations, and even without 
 any express statement of a contrary intent; e. g., in a statute using the phrase " in an 
 action of debt," there was no express statement of a meaning other than the common- 
 law one, but as there was no such technical action known to the procedure of the 
 State, and as a technical interpretation would have destroyed the plain design of the 
 statute, it was held that the phrase was not used in its legal sense, but meant any 
 action to recover money for the breach of a "contract. Robinson v. Varnell, 
 16 Tex. 382. In another case, the word "heirs" was held to mean those inheriting 
 according to the existing laws of the State, and not those inheriting at the common- 
 law. Mace v. Cushman, 45 Me. 250. This decision is not in conflict with the general 
 rule just stated, for the technical legal sense spoken of means such sense according to 
 the law of the State in which the statute is passed, and, in the absence of other rules, 
 that sense is a common-law one ; but if the original common-law signification of the 
 phrase or term had been previously changed in the particular State by legislation or 
 by judicial decision, of course the legal meaning thus determined is to be taken as 
 the one which the Legislature intended and adopted in the statute. A term in use 
 in English law, employed in a statute without any definition, is to be construed as it 
 is understood in the English law, e. g., " next of kin" was held to include only legit- 
 imate persons, McCool v. Smith, 1 Black, 459 ; but a very important limitation 
 should be added to this statement of the rule, namely, that the term employed in 
 the statute has not prior thereto received, either by legislation or by judicial decis- 
 ion, a meaning within the particular State, or the United States, if the statute was 
 passed by Congress, different from that given to it by the English law. If the term 
 had previously received such different meaning, then it is to be interpreted accord- 
 ing to that new meaning, although the statute in which it occurs is silent as to its 
 meaning; this is an obvious corollary of the principle stated above. 
 
 Words in common use, when found in a statute, are to be taken in their ordinary 
 sense, and technical words in their technical sense, unless as respects either a con- 
 trary intent plainly appears ; but the real obvious intent is to prerail over any mere 
 literal sense ; thus " house of another," in a statute against breaking and entering, 
 was held to mean only the mansion and the houses so connected therewith, as to 
 
SPECIAL RULES OF CONSTRUCTION. 225 
 
 form in law part and parcel thereof. Neville v. State, 7 Cold. 78. That the ordi- 
 nary and popular signification is to be taken, except as to terms of art, which are to 
 be interpreted in their technical signification, and that the meaning of terms and 
 words is to be ascertained from the whole statute, and is to be such as will best carry 
 out the general intent, and that where a word is used in a particular sense in one 
 part of a statute, it will be presumed to be used in the same sense throughout, and 
 that when the words " house " and " branch " (speaking of a Legislature), in a Con- 
 stitution are generally used to denote a duly constituted quorum, they will be so 
 construed where, in another clause, a two-thirds vote of such " house " or " branch " 
 is required. See Green v. Weller, 32 Miss. 650. If two acts are in pari materia, the 
 second one being in effect amendatory of the first, a word in the second will not be 
 presumed to be used in a different sense from that in which it is used in the first. 
 Bobbins v. Omnibus R. R. 32 Cal. 472. 
 
 The ordinary and popular meaning of words is to be preferred. Mayor, &c. v. 
 Winter, 29 Ala. 651 ; Schrifer v. Wood, 5 Blatch. C. C. 215 ; thus " internal improve- 
 ments," used in a statute conferring power upon a municipality in their aid, is not 
 to be construed as merely improvements internal to the town. Ibid. ; and see Park- 
 inson v. State, 14 Md. 184 ; and " wagon " does not include a " hackney coach," 
 Quigley v. Gorham, 5 Cal. 418; and "connection '' of railroads was held to mean, 
 such arrangement that freight and passengers could be conveniently passed from one 
 to the other by transition of cars or otherwise. Philadelphia, &c. R. R. v. Cata- 
 wissa, &c. R. R. 53 Penn. St. 20. 
 
 Ambiguous words are to be interpreted by comparing therewith the context of 
 the whole statute, and by considering its reason, spirit, and cause. State v. Judge T 
 &c. 12 La. Ann. 777 ; and the law is to be construed as a whole. State v. Weigel, 48 
 Mo. 29. A statute which treats of things of an inferior degree, cannot ordinarily be 
 extended by general words to things of a higher degree ; but where all the actions, 
 of an inferior degree were provided for in express terms, and there were general 
 words in addition, it was held that they covered an action of a higher degree, which 
 was within their scope. Ellis v. Murray, 28 Miss. 129. It is not so much the ab- 
 stract meaning of words which is to be regarded, but the sense in. which they are 
 used in the particular statute, and this is to be ascertained from the context. Mcln- 
 tyre v. Ingraham, 35 Miss. 25. See further as to technical terms, Ormsby Co. v. 
 State, 6 Nev. 283. 
 
 Grammar and Punctuation. Common sense should prevail over strict grammat- 
 ical rules, and punctuation should not control. Gyger's Estate, 65 Penn. St. 311. i 
 The punctuation of a statute is not to be considered. Gushing v. Warrick, 9 Gray, 
 382 ; Hamilton v. Steamboat Hamilton, 16 Ohio, N. S. 428. A clause purporting to 
 define the meaning of " obligation or other security of the United States," as used in. 
 other parts of the act, was construed as applying to the terms " obligation" and 
 " security" actually used, the phrase as quoted not being in fact found in any other 
 part of the statute. U. S. v. Rossvally, 3 Ben. (U. S.) 157. 
 
 General Scope of the Statute. Words are to be interpreted with reference to the 
 general scope and object of the statute. Thus a statute creating a city out of a part 
 of a town, and providing for its organization, etc., and adding that after a certain 
 day it should cease to be a part of the town, was construed to mean that such sep- 
 aration should only occur on the completion of the organization ; although the clause 
 providing for such separation on the given day was in itself not limited, it was con- 
 strued as limited by the rest of the statute. State v. Button, 25 Wise. 109. 
 
 The construction of any particular clause, as well as of an entire statute, should 
 15 
 
226 SPECIAL RULES OF CONSTRUCTION. 
 
 be reasonable, and the provision should not be perverted so as to work injustice or 
 as to include cases not intended to fall within it. Thus a statute requiring any 
 writing, etc., upon which a petition (the plaintiffs first pleading in many States) or 
 other pleading is founded, to be filed in court, was held not to apply to a subscrip- 
 tion paper or to articles of association, when sued upon. Workman v. Campbell, 46 
 lyio. 305. Particular provisions are not to be extended beyond the general scope of 
 the statute, unless manifestly designed. Thus a statute as to religious societies was 
 limited to those within the State. Estate of Ticknor, 13 Mich. 44. "Assignee," in 
 one case was held to include " grantee," as being within the reason and object of the 
 act. Mattoon v. Young, 45 N. Y. 696. It has been said that the true rule is to sup- 
 pose the law-giver actually present, and to ask him, " Did you intend to cover such 
 a case ? " etc. Ryegate v. Wardsboro, 30 Vt. 746. But it is very plain that such a 
 rule does not in the least remove any difficulty or suggest any criterion of interpre- 
 tation, for as the questioner must answer his own question, he gains nothing by pro- 
 posing it. The previous state of the law, and the existing facts as shown by recitals 
 in the preamble or in the act, or as shown by extrinsic proof, are to be looked to. 
 Atty. Gen. v. Powis, 1 Kay, 186. 
 
 The whole Statute to le harmonised. The whole statute is to be so construed that 
 all its provisions may be harmonized, if possible. Scott v. State, 22 Ark. 369 ; Davy 
 v. Burlington, &c. R. R. 31 Iowa, 553. Thus when one section said that a certain 
 notice should be published ten days in succession, and another section said that all 
 notices under the act should be published daily, Sundays excepted, it was held that 
 the publication of the notice first mentioned should be ten days, subtracting Sundays, 
 
 Ithat is, for a period of ten days, the Sundays being counted as part of the ten days. 
 Taylor v. Palmer, 31 Cal. 240. Incongruities are to be so construed as to harmonize 
 with the general intent of the whole. Commonwealth v. Conyngham, 66 Penn. St. 
 99. An act required examiners " to be appointed by the Court of C. P. at the first 
 term of the court in each year." This act was in fact not passed until after the first 
 term of that year. It was held that examiners should be appointed for that year 
 upon the passage of the act. Ibid. General words at the end of a statute refer to 
 and qualify the whole ; but if they occur in the middle, they are not to be extended 
 to what follows them, unless clearly so intended. Coxon v. Doland, 2 Daly 66. The 
 sections of a code upon one subject are to be construed as a single statute. Mobile, 
 &c. R. R. v. Malone, 46 Ala. 391. 
 
 / A Limiting Clause is generally to be restrained to the last preceding antecedent. 
 Cushing v. Worrick, 9 Gray, 382. 
 
 Subsequent Clause. If a subsequent clause is obscure, it will not control a previous 
 clear provision. State v. Williams, 8 Ind. 191. 
 
 Consequences of a particular Interpretation. Incidental effects are to be considered 
 if the meaning is doubtful (In re Day, 9 Blatchf. C. C. 285), but not if the meaning 
 is plain. Learned v. Corley, 43 Miss. 687. Where the meaning is plain, there is no 
 room for construction. Bradbury v. Wagenhorst, 54 Penn. St. 180; U. S. v. Rags-- 
 -dale, 1 Hempstead, 497 ; Fitzpatrick v. Gibhart, 7 Kans. 35 ; State v. Washoe Co. 
 'Comm'rs, 6 Nev. 104. And in such case the consequences are for the Legislature 
 and not for the court. Bosley v. Mattingley, 14 B. Mon. 89 ; Coffin v. Rich, 45 Me. 
 507 ; Dudley v. Reynolds, 1 Kans. 285. 
 
 Construction ut res magis valeat. A statute by its terms amending section 293 
 will be held to refer to section 296, if it would otherwise be a nullity. People v. 
 King, 28 Cal. 265. Words were treated as surplusage where the statute would other- 
 wise fail of its object, in U. S. v. Stern, 5 Blatch. C. C. 512. Where the language is 
 
SPECIAL RULES OF CONSTRUCTION. 227 
 
 eliptical, the necessary words supplied must be such and so construed as to have 
 some force. Nichols v. Halliday, 27 Wise. 406. Where a statute named eighty per- 
 sons, and enacted that they, " or any three of them be and hereby are appointed 
 commissioners," it was construed as leaving to the election of the persons named 
 whether the whole or any three should act, and about forty having acted, their pro- 
 ceedings were held valid, as it appeared that the whole number had not elected to 
 act, and the excess over three could do no harm. Commonwealth v. Westchester, 
 &c. R. R. 3 Grant's Gas. (Penn.) 200. 
 
 Contemporaneous Construction. The contemporaneous construction of a statute 
 under which rights of property have been acquired, should be followed, if possible 
 e. g., construction by a Probate Court. In re Warfield, 22 Cal. 59. Contem- 
 poraneous construction by a Legislature is of high authority. Philadelphia, &c. R. R. 
 v. Catawissa R. R. 53 Penn. St: 20. The practical construction given to a statute 
 by the public officers of the State, and acted upon by the people thereof, is to be 
 considered, and is perhaps decisive in case of doubt. Union Ins. Co. v. Hoge, 21 
 How. 35 ; Matthews v. Shores, 24 111. 27 ; Solomon v. Comm'rs, &o. 41 Geo. 157 ; see 
 Plummer v. Plummer, 37 Miss. 185. A Constitution is to be construed in the sense 
 it is supposed it was understood when adopted (Leavenworth Co. v. Miller, 7 Kans. 
 479), and as to legislative construction of a Constitution, see Ex parte Selma & Gulf 
 R. R. 45 Ala. 696. 
 
 Legislative Construction ~by Declaratory Acts, etc. A rule of construction laid down 
 by the Legislature is not necessarily invalid, e. g., a provision that the statutes 
 which may at any time be in force in the State relative to the Circuit Courts shall 
 relate also to the County Courts of a certain county (Prentiss v. Danaher, 20 Wise. 
 311) ; but in fact this provision was in no true sense a " construction " of any statute 
 by the Legislature. It was a direct enactment in reference to the County Courts of 
 the specified county, conferring or limiting jurisdiction, or regulating procedure, or 
 whatever else might be the subject-matter. See, also, State v. Oskins, 28 Ind. 364; 
 Morgan v. Smith, 4 Minn. 104. Where a statute declared that the charter of a city 
 should be construed so as to give it full control over all ferries within its limits, this, 
 although of no force as a construction of the charter, operated it seems as a grant of 
 the power, if that was not already possessed under the charter, Aiken v. Western 
 R. R. 20 N. Y. 370. That the opinion of a Legislature subsequent to that which 
 enacted the statute, as to its construction, should have no more weight than that of 
 private persons. See Bingham v. Supervisors, &c., 8 Minn. 441. This was a case 
 where the Legislature had repealed so much of a certain statute as authorized the 
 payment of a certain fee of seventy-five cents, and it was attempted to make this a 
 Legislative declaration that the act repealed did authorize such fee. It seems, also, 
 that an amendatory statute giving a right of appeal in certain cases, does not show 
 that the right did not exist under the original statute. Tilford v. Ramsey, 43 Mo. 
 410. Where a statute in the emergency clause gives as a reason for the emergency 
 that there is no law punishing the offence which it is to cover, this is equivalent to 
 a declaration that the statute shall be prospective only in its operation. Smith v. 
 State, 28 Ind. 321. That legislative construction should have weight, but should 
 not be conclusive, see Pike v. Megoun, 44 Mo. 491. 
 
 Stare Decisis. For instances of the application of the rule, see Field v. Goldsby, 
 28 Ala. 218 ; Seale v. Mitchell, 5 Cal. 401. But if satisfied that the decision was 
 erroneous, the courts will not follow the rule. Bane v. Wick, 6 Ohio N. S. 13. In 
 the same case, and between the same parties, the rule is imperative, even in a second 
 appeal. Matthews v. Sands, 29 Ala. 136; Miller v. Jones, II. 174; Clary v. Hoag- 
 
228 SPECIAL RULES OF CONSTRUCTION. 
 
 iand, 6 Cal. 685. And where rules laid down may be fairly presumed to have beenr 
 acted upon as rules of property, they should be sustained, though not upon points 
 necessarily involved in the case. Matheson v. Hearin, 29 Ala. 210. That the rule 
 will be adhered to in matter relating to property, unless it appears that the mischief 
 resulting from such adherence will be greater than that resulting from a change. 
 See Boon v. Bowers, 30 Miss. 246 ; Day v. Munson, 14 Ohio, N. S. 488. A construc- 
 tion of a clause in a State Constitution as to the method of amending statutes, is not? 
 a rule of property. Greencastle v. State, 28 Ind. 382. 
 
 Presumptions. The fact that a rule of law or of equity is embodied in the Revised 
 Statutes, does not raise a presumption that such was not the law before. Nunally 
 v. White, 3 Mete. (Ky.) 584. It will not be presumed that a State intended to 
 abridge its governmental powers (Gilman v. Sheboygan, 2 Black. 510), e. g., to sur- 
 render its power to tax. St. Louis v. Boatmen's Ins. Co. 47 Mo. 150. It is not to be 
 presumed that a word is used in one tariff act in a different sense from that in which 
 it was employed in a former act for which the present one was substituted. Roose- 
 velt v. Maxwell, 3 Blatch. C. C. 391. It is not to be presumed that a State intended 
 to waive or discharge a public right, e. g., to discharge the sureties on a sheriff's 
 bond. Bennett v. McWhorter, 2 W. Va. 441. Nor that a statute intends what is 
 unreasonable. Neenan v. Smith, 50 Mo. 525. Nor will exemption from taxation be 
 presumed. Minot v. Phil. W. & B. R. R. 2 Abb. (U. S.) 323. It will be presumed 
 that the Legislature intended to require notice of proceedings to take private prop- 
 erty under the power of eminent domain. Boonville v. Orrnrod, 26 Mo. 193 ; "Wick- 
 bam v. Page, 49 Mo. 526. 
 
 Implication. When a statute commands an act to be done, it authorizes all that 
 is necessary for its performance, e. g., when the Legislature increases the salary of an 
 officer whom a municipality is bound to pay, it authorizes such municipality to raise 
 the money. Green v. New York, 2 Hilton, 203. Where the Constitution provided 
 that charters should not be granted except where in the judgment of the Legislature 
 general laws are insufficient to meet the case, such judgment is implied in the pas- 
 sage of a charter without any recital upon the subject, the court relying somewhat 
 upon the fact that many such charters had been granted without question, and that 
 important rights had thus accrued. Johnson v. Joliet, &c. R. R. 23 111. 202. It is 
 plain, however, that this construction makes the constitutional clause a dead letter. 
 See, also, State v. Donehey, 8 Clarke (la.) 396, where, the Constitution providing 
 that if the '' Legislature shall deem any law of immediate importance," they may 
 provide that the same shall take effect upon publication in newspapers, it was held 
 that the direction that the statute was thus to take effect was a sufficient indication 
 of the Legislative judgment as to its " immediate importance," and was a compliance 
 with the Constitution. These cases are not entirely analogous, for in the latter one, 
 the constitutional provision being affirmative in form, may fairly be treated as direc- 
 tory ; while in the former the provision is negative in form and, according to all 
 canons of interpretation, is not directory. 
 
 Where a statute prohibited all sales of liquor, not excepting sales for medicinal 
 or sacramental purposes, such exception was made by implication in Thornasson v. 
 State, 15 Ind. 449. And as a general rule, all cases to which a statute cannot consti- 
 tutionally apply, will be excepted by necessary implication from even the most 
 express and absolute general provisions. Opinion of Justices, 41 N. H. 553. 
 
 Where a statute assumes jurisdiction to exist, and makes explicit provision for 
 the mode of its exercise, this is sufficient to create the jurisdiction. State v. Miller, 
 23 Wise. 634. A statute is not unconstitutional because it is summary in its grant 
 
SPECIAL RULES OF CONSTRUCTION. 229 
 
 of power, and fails to prescribe the form of proceeding to effect the desired object, 
 since all reasonable and necessary incidents are impliedly granted with the power. 
 People v. Eddy, 57 Barb. 593. Where the general policy of the laws in pari materia 
 was to fix a maximum for the compensation of registers of the land office, and an act 
 was passed giving in one section the right to charge certain fees for certain services, 
 and giving in the next section the right to compensation for similar past services, at 
 the same rate, to register now in or out of office, and the last section contained a 
 proviso limiting the compensation to the maximum allowed by law, it seems a similar 
 proviso should be implied in the first section. U. S. v. Babbit, 1 Black, 55. 
 
 Revision. A change of phraseology in a revision will not be regarded as altering 
 the law where it had been well settled by plain language in the statutes, or by 
 judicial construction thereof, unless it is clear that such was the intent. Hughes v. 
 Farrar, 45 Me. 72 ; Burnham v. Stevens, 33 N. H. 247 ; Overfield v. Sutton, 1 Mete. 
 (Ky.) 621 ; McNamara v. Minnesota R. R. 12 Minn. 388; Conger v. Barker, 11 Ohio 
 N. S. 1. But where language is changed in a special enactment not part of a re- 
 vision, it indicates a change of intent, and calls for a change of construction. Rich 
 v. Keys'er, 54 Penn. St. 86. Where a criminal code repealed all statutes upon the 
 same " subject-matter," it did not repeal statutes against certain crimes not provided 
 for therein. State v. Fuller, 14 La. Ann. 678. The sections of a former statute, or 
 chapter of a statute, being separated and scattered by a revision, are still to have the 
 same construction as before. Smith v. Smith, 19 Wise. 522. The General Statutes 
 of Missouri, which were adopted in 1865, enact that their provisions, so far as they 
 are the same as those of existing laws, shall be construed as a continuing in force of 
 such laws, and not as new enactments ; it was held that a section thereof curing cer- 
 tain defects in conveyances " heretofore " made, and identical with a provision of a 
 statute passed in 1855, did not operate upon conveyances made subsequent to 1855. 
 Bishop v. Schneider, 46 Mo. 472. 
 
 Reference Statutes. If one statute refers to another for the powers given by the 
 former, the statute referred to is to be considered as incorporated in the one making 
 the reference. Turney v. Wilton, 36 111. 385. Thus, where certain proceedings of a 
 water-works company were to be conducted according to an act of 1853, relating to 
 railroad companies, and the act of 1853 was afterwards repealed and another act was 
 substituted in its place, it was held that the act of 1853 remained in force so far as 
 incorporated by reference into the water company's act. Spring, &c. Works v. San 
 Francisco, 22 Cal. 434; Sika v. Chicago, &c. R. R. 21 Wise. 370. A statute regulat- 
 ing procedure, and referred to as the rule for another case, is to govern as stibse- 
 quently modified from time to time. Kugler's Appeal, 55 Penn. St. 123. Where an 
 action given by a statute is by a subsequent statute extended to another case, every- 
 thing annexed to the action by the first statute is included, and applies to that other 
 case. Baltimore, &c. R. R. v. Wilson, 2 W. Va. 528. A statute authorizing the issue 
 of certificates to assignees of certain claims, repeals a prohibition of the assignment 
 of such claims. Perry v. Glass, 25 Tex. 368. As to when recitals of a settlement as 
 though it were a valid settlement in a statute will validate it, see Howard v. Earl of 
 .Shrewsbury, Law R. 2 Ch. 759. 
 
 That a statute granting powers and referring to another statute for their definition 
 only gives the general powers, and not the particular powers conferred by the statute 
 referred to, see Ex parte Greene, 29 Ala. 52; Matthews v. Sands, II. 136. A stat- 
 ute requiring proceedings in replevin before justices to be the same as in the Circuit 
 'Court, a subsequent statute altering the proceedings in the Circuit Court was held to 
 .affect in the same manner those before justices. McKnight v. Crinnion, 22 Mo. 559. 
 
230 VATTEL'S RULES OF CONSTRUCTION. 
 
 Where the provisions of an act are adopted by general reference, they will be 
 more liberally construed than if originally passed with reference to that particular 
 subject, and only that portion applicable and appropriate is adopted. Jones v. Dex- 
 ter 8 Flor. 276. Thus, when the "law of descents" was by general reference 
 adopted to govern the distribution of personal property, certain provisoes in the 
 statute regulating descents, considered inapplicable to personal property, were held 
 not to have been adopted. Hid. Reference to a particular map in a statute makes 
 it part of the statute. People v. Dana, 22 Cal. 11. As to whether reference to a 
 contract as an existing contract in a subsequent statute validates it so far as it may 
 be of questionable validity, on grounds of public policy, see Galloway v. London, Law 
 R. 1 H. L. 39. 
 
 Similar Statutes. Statutes having similar objects are to be construed alike. 
 Thus the same principles applied in the construction of bankrupt laws are to govern 
 in the case of a statute to prevent frauds by incorporated companies having a similar 
 object in view, namely, an equal distribution of assets among creditors. Receivers of 
 People's Bank v. Paterson Savings Bank, 2 Stockt. 13. 
 
 The following extracts, vide supra, p. 191, notes, are from that part of 
 Vattel's work which relates to the Interpretation of Treaties, Liv. II, ch. 17> 
 262 to 310: 
 
 It is necessary to establish rules founded on reason, authorized by the law 
 of nature, capable of diffusing light over what is obscure, of determining what 
 is uncertain, and of frustrating the views of him who acts with duplicity in 
 forming the compact. Let us begin with those that tend particularly to this 
 last end with those maxims of justice and equity which are calculated to re- 
 press fraud, and to prevent the effects of its artifices. 
 
 The first general maxim of interpretation is, that it is not allowable to 
 interpret what has no need of interpretation. When a deed is worded in clear 
 and precise terms, when its meaning is evident and leads to no absurd conclusion, 
 there can be no reason for refusing to admit the meaning which such deed 
 naturally presents. To go elsewhere in search of conjunctures, in order to 
 restrict or extend it, is but an attempt to elude it. 
 
 Those cavillers who dispute the sense of a clear and determinate article, 
 are accustomed to seek their frivolous subterfuges in the pretended intentions 
 and views which they attribute to its author. It would be very often dangerous 
 to enter with them into the discussion of those supposed views, that are not pointed 
 out in the piece itself. The following rule is better calculated to foil such 
 cavillers, and will at once cut short all chicanery. If he who could and ought 
 to have explained himself clearly and fully has not done it, it is the worse for 
 him ; he cannot be allowed to introduce subsequent restrictions which he has 
 not expressed. This is a maxim of the Roman law : Pactionem obscuram Us 
 nocere in quorum fuit potestate legem apertius conscribere. The equity of this 
 rule is glaringly obvious, and its necessity is not less evident. 
 
 The third general maxim or principle on the subject of interpretation, is 
 That neither the one nor the other of the parties interested in the contract has a, 
 right to interpret the deed or treaty according to his own fancy. For if you are 
 at liberty to affix whatever meaning you please to my promise, you will have 
 the power of obliging me to do whatever you choose, contrary to my intentions, 
 and beyond my real engagements ; and, on the other hand, if I am allowed to 
 explain my promises as I please, I may render them vain and illusory, by 
 giving them a meaning quite different from that which they presented to you r 
 
VATTEL'S RULES OF CONSTRUCTION. 231 
 
 and in -which you must have understood them at the time of your accepting 
 them. 
 
 On every occasion when a person could and ought to have made known his 
 intention, ive assume for true against him what he has sufficiently declared. 
 This is an incontestible principle, applied to treaties ; for if they are not a 
 vain play of words, the contracting parties ought to express themselves in 
 them with truth, and according to their real intentions. 
 
 In the interpretation of a treaty, or of any other deed whatsoever, the 
 question is, to discover what the contracting parties have agreed upon to- 
 determine, precisely, on any particular occasion, what has been promised 
 and accepted that is to say, not only what one of the parties intended to 
 promise, but also what the other must reasonably and candidly have supposed 
 to be promised to him, what has been sufficiently declared to him, and what 
 must have influenced him in his acceptance. Every deed, therefore, and every 
 treaty, must be interpreted by certain fixed rules calculated to determine its mean- 
 ing, as naturally understood by the parties concerned at the time when the deed^ 
 was drawn up and accepted. This is a fifth principle. 
 
 Let us now enter into the particular rules on which the interpretation ought 
 to be formed, in order to be just and fair. Since the sole object of the lawful 
 interpretation of the deed ought to be the discovery of the thoughts of the 
 author or authors of that deed, whenever we meet with any obscurity in it, we 
 are to consider what probably were the ideas of those who drew up the deed, and 
 to interpret it accordingly. This is the general rule for all interpretations. It 
 particularly serves to ascertain the meaning of particular expressions whose 
 signification is not sufficiently determinate. 
 
 Let us suppose that a husband has bequeathed to his wife all his money. 
 It is required to know whether this expression means only his ready money, or 
 whether it extends also to that which is lent out, and is due on notes and other 
 securities. If the wife is poor, if she was beloved by her husband, if the 
 amount of the ready money be inconsiderable, and the value of the other 
 property greatly superior to that of the money both in specie and in paper, 
 there is every reason to presume that the husband meant to bequeath her as 
 well the money due to him, as that actually contained in his coffers. On the 
 other hand, if the woman be rich, if the amount of the ready specie be very 
 considerable, and the money due greatly exceeds in value all the other property, 
 the probability is that the husband meant to bequeath to his wife the ready 
 money only. 
 
 The contracting parties are obliged to express themselves in such manner 
 that they' mutually understand each other. This is evident from the very 
 nature of the transaction. Those who form the contract concur in the same 
 intentions ; they agree in desiring the same thing ; and how shall they agree in 
 this instance, if they do not perfectly understand each other ? Without this, 
 their contract will be no more than a mockery or a snare. If, then, they ought 
 to speak in such a manner as to be understood, it is necessary that they should 
 employ the words in their proper signification the signification which common 
 usage has affixed to them and that they annex an established meaning to- 
 every term, every expression, they make use of. 
 
 From all these incontestable truths, results this rule : In the interpretation 
 of treaties, compacts, and promises, we ought net to deviate from the 'common use: 
 of the language, unless we have very strong reasons for it. 
 
 In all human affairs, where absolute certainty is not at hand to point out the 
 way, we must take probability for our guide. In most cases, it is extremely 
 probable that the parties have expressed themselves conformably to the 
 established usage; and such probability ever affords a stronger presumption, 
 which cannot be overruled but by a still stronger presumption to the contrary, 
 
232 VATTEL'S RULES OF CONSTRUCTION. 
 
 Mahomed, Emperor of the Turks, at the taking of Negropont, having 
 promised a man to spare his head, caused him to be cut in two through the 
 middle of the body. Tamerlane, after having engaged the city of Sebastia, 
 under promise of shedding no blood, caused all the soldiers of the garrison 
 to be buried alive : gross subterfuges which, as Cicero remarks, only serve to 
 aggravate the guilt of the perfidious wretch who has recourse to them. To 
 spare the head of any one, and to shed no blood, are expressions according to 
 common custom, and, especially on such an occasion, manifestly imply to spare 
 the lives of the parties. All these pitiful subtilties are overthrown by this 
 unerring rule : When we evidently see what is the sense that agrees with the intention 
 of the contracting parties, it is not allowable to wrest their words to a contrary 
 meaning. The intention, sufficiently known, furnishes the true matter of the 
 convention, what is promised and accepted, demanded and granted. 
 
 Is it necessary, in an enlightened age, to say that mental reservation cannot 
 be admitted in treaties'? This is manifest, since, by the very nature of the 
 treaty, the parties are bound to express themselves in such manner that they 
 may mutually understand each other. There is scarcely an individual now to 
 be found who would not be ashamed of building upon a mental reservation. 
 What can be the use of such an artifice, unless to lull the opposite party into a 
 false security, under the vain appearance of a contract ? It is, then, a real 
 ; piece of knavery. 
 
 Technical terms, or terms peculiar to the arts and sciences, ought commonly 
 to be interpreted according to the definition given of them by masters of the 
 art, or persons versed in the knowledge of the art or science to which they 
 belong. I say commonly, for this rule is not so absolute but that we may and 
 ven ought to deviate from it, when we have good reasons for such deviation ; 
 as, for instance, if it were proved that he who speaks in a treaty, or in any 
 other deed, did not understand the art or science from which he borrowed the 
 term, that he was unacquainted with its import as a technical word, that he 
 employed it in a vulgar acceptation, etc. 
 
 If, however, the technical or other terms relate to things that admit of 
 different degrees, we ought not scrupulously to adhere to definitions, but rather 
 to take the terms in a sense agreeable to the context ; for a regular definition 
 describes a thing in its most perfect state, and yet it is certain that we do not 
 always mean it in that state of its utmost perfection whenever we speak of it. 
 
 Now, the interpretation should only tend to the discovery of the will of the 
 contracting parties to each term. Would he who had stipulated for the assist- 
 ance of ten thousand good troops have any reason to insist upon soldiers of 
 whom the very worst should be comparable to the veterans of Julius Caesar "? 
 And if a prince had promised his ally a good general, must he send him none 
 but a Marlborough or a Turenne? 
 
 There are figurative expressions that are Become so familiar in the common 
 use of language, that in numberless instances they supply the place of proper 
 terms; so that we ought to take them in a figurative sense, without paying any 
 attention to their original, proper, and direct signification : the subject of the 
 discourse sufficiently indicates the meaning that should be affixed to them. To 
 hatch a plot, to carry fire and sword into a country, are expressions of this sort ; 
 and there can scarcely occur an instance where it would not be absurd to take 
 them in their direct and literal sense. 
 
 There is not, perhaps, any language that does not also contain words which 
 signify two or more different things, and phrases which are susceptible of more 
 than one sense. Thence arises ambiguity in discourse. The contracting parlies 
 ought carefully to avoid it. Designedly to use it, with a view to elude their 
 engagements in the sequel, is downright perfidy ; since the faith of treaties 
 obliges the contracting parties to express their intentions clearly. But if an 
 
VATTEL'S RULES OF CONSTRUCTION. 233 
 
 ambiguous expression has found its way into a deed, it is the part of the inter- 
 preter to clear up any doubt thereby occasioned. 
 
 The following is the rule that ought to direct the interpretation in this as 
 well as in the preceding case : We ought always to affix such meaning to the ex- 
 pressions as is most suitable to the subject or matter in question. For by a true 
 interpretation we endeavor to discover the thoughts of the persons speaking, or 
 of the contracting parties in a treaty. Now, it ought to be presumed that he 
 who has employed a word which is susceptible of many different significations, 
 has taken it in that which agrees with his subject. 
 
 Let us. illustrate this rule by examples. The word day is understood of the 
 natural day, or the time during which the sun affords us his light, and of the 
 civil day, or the space of twenty-four hours. Where it is used, in a convention, 
 to point out a space of time, the subject itself manifestly shows that the parties 
 mean the civil day, or the term of twenty-four hours. It was therefore a piti- 
 ful subterfuge, or rather notorious perfidy, in Cleomenes, when, having con- 
 cluded a truce of some days with the people of Argos, and finding them asleep 
 on the third night in reliance on the faith of the treaty, he killed a part of their 
 number and made the rest prisoners, alleging that the nights were not compre- 
 hended in the truce. The word steel may be understood of the metal itself, or 
 of certain instruments made of it ; in a convention which stipulates that the 
 enemy shall lay down their steel, it evidently means their weapons ; where- 
 fore, Pericles, in the example related above, gave a fraudulent interpretation to 
 those words, since it was contrary to the nature of the subject manifestly pointed 
 out. 
 
 If any of those expressions which are susceptible of different signification 
 occur more than once in the same piece, we cannot make it a rule to take it 
 everywhere in the same signification. For we must, conformably to the pre- 
 ceding rule, take such expression in each article according as the subject requires 
 -pro substrata materia, as the masters of the art say. The word day, for in- 
 stance, has two significations, as we have just observed. If, therefore, it be said 
 in a convention, that there shall be a truce of fifty days, on condition that com- 
 missioners from both parties shall, during eight successive days, jointly endeavor 
 to adjust the dispute, the fifty days of the truce are civil days of twenty-four 
 hours ; but it would be absurd to understand them in the same sense in the 
 second article, and to pretend that the commissioners should labor eight days 
 and nights without intermission. 
 
 Every interpretation that leads to an absurdity ought to be rejected ; or, in 
 other words, we should not give to any piece a meaning from which any absurd 
 consequences would follow, but must interpret it in such a manner as to aVoid 
 absurdity. 
 
 Those fanatic Jews who scrupled to defend themselves when the enemy 
 attacked them on the Sabbath day, gave an absurd interpretation to the fourth 
 commandment. Why did not they abstain from dressing, walking, and eat- 
 ing ? These also are " works," if the term be strained to its utmost rigor. 
 
 It is said that a man in England married three wives, in order that he might 
 not be subject to the penalty of the law which forbids marrying two. 
 
 sit is not to be presumed that sensible persons in treating together, or transact- 
 ing any other serious business, meant that the result of their proceedings should 
 prove a mere nullity. The interpretation, therefore, which would render a treaty 
 null and inefficient cannot be admitted. We may consider this rule as a branch 
 of the preceding ; for it is a kind of absurdity to suppose that the very terms 
 of a deed should reduce it to mean nothing. It ought to be interpreted in such 
 a manner as that it may have its effect, and not prove vain and nugatory. And 
 in this interpretation we proceed. 
 
 Thucydides relates that the Athenians, after having promised to retire from 
 
234 VATTEL'S RULBS OF CONSTRUCTION. 
 
 the territories of the Boeotians, claimed a right to remain in the country under 
 pretense that the lands actually occupied by their army did not belong to the 
 Boeotians ; a ridiculous quibble, since, by giving that sense to the treaty, they 
 reduced it to nothing, or rather to a puerile play upon words. 
 
 If he who has expressed himself in an obscure or equivocal manner has spoken 
 elsewhere more dearly on the same subject, he is the best interpreter of his own 
 words. We ought to interpret his obscure or equivocal expression in such a 
 manner that may agree with those clear and unequivocal terms which he has 
 elsewhere used, either in the same deed or on some other similar occasion. 
 
 Let us suppose, for instance, that two allies have reciprocally promised each 
 other, in case of necessity, the assistance of ten thousand foot soldiers, who are 
 to be supported at the expense of the party that sends them, and that by a pos- 
 terior treaty they agree that the number of auxiliary troops shall be fifteen 
 thousand, without mentioning their support; the obscurity which remains in 
 this article of the new treaty is dissipated by the clear and express stipulation 
 contained in the former one. 
 
 As the allies do not give any indication that they have changed their minds 
 with respect to the support of the auxiliary troops, we are not to presume any 
 such change ; and those fifteen thousand men are to be supported as the ten 
 thousand promised in the first treaty. 
 
 It frequently happens that, with a view to conciseness, people express im- 
 perfectly, and with some degree of obscurity, things which they suppose, to be 
 sufficiently elucidated by the preceding matter, or which they intend to explain 
 in the sequel ; and, moreover, words and expressions have a different force, 
 sometimes even a quite different signification, according to the occasion, their 
 connection, and their relation to the words. The connection and train of the 
 discourse is therefore another source of interpretation. We must consider the 
 whole discourse together, not so much the signification which it may individually 
 admit of, as that which it ought to have from the context and spirit of the dis- 
 course. Such is the maxim of the Roman law, Incivile est, nisi tota leg e per- 
 specta, una aliqui particula ejus proposita judicare, vel respondere. 
 
 The very connection and relation of things in question helps also to discover 
 and establish the true sense of a treaty, or of any other piece. The interpreta- 
 tion ought to be made in such a manner that all the parts may appear consonant 
 to each other that what follows may agree with what preceded, unless it evi- 
 dently appear that, by the subsequent clauses, the parties intended to make 
 some alteration in the preceding ones. For it is to be presumed that the 
 authors of a deed had an uniform and steady train of thinking; that they did 
 not aim at inconsistencies and contradictions, but rather that they intended to 
 explain one thing by another and, in a word, that one and the same spirit reigns 
 throughout the same production or the same treaty. Let us render this more 
 plain by an example. 
 
 A treaty of alliance declares, that in case one of the allies be attacked, each 
 of the others shall assist him with a body of ten thousand foot, and supported ; 
 and in another article it is said that the ally who is attacked shall be at liberty 
 to demand the promised assistance in cavalry rather than in infantry. Here we 
 see that, in the first article, the allies have determined the quantum of the suc- 
 cor, and its value, that of ten thousand foot ; and in the latter article, without 
 appearing to intend any variation in the value or number, they leave the nature 
 of the succors to the choice of the party who may stand in need of them. If, 
 therefore, the ally who is attacked calls upon the others for cavalry, they will 
 give him, according to the established proportion, an equivalent to ten thousand 
 foot. But it appears that the intention of the latter article was, that the prom- 
 ised succors should in certain cases be augmented if, for instance, it be said> 
 that in case one of the allies happens to be attacked by an enemy of considerably 
 
VATTEL'S RULES OF CONSTRUCTION. 235 
 
 superior strength, and more powerful in cavalry, succors should be furnished in 
 cavalry and not in infantry. It appears that, in this case, the promised assistance 
 ought to be ten thousand horse. 
 
 The reason of the law or of the treaty that is to say, of the motive which 
 led to the making of it, and the object in contemplation at the time is the most 
 certain clue to lead us to the discovery of its true meaning ; and great attention 
 should be paid to the circumstance, whenever there is question either of ex- 
 plaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of 
 applying it to a particular case. When once we certainly know the reason 
 which alone has determined the will of the person speaking, we ought to inter- i 
 pret and apply his words in a manner suitable to that reason alone. 
 
 But we ought to be very certain that we know the true and only reason of 
 the law, the promise, or the treaty. In matters of this nature it is not allowable 
 to indulge in vague and uncertain conjectures, and to suppose reasons and views 
 where there are none certainly known. If the piece in question is in itself ob- 
 scure if, in order to discover its meaning, we have no other resource than the 
 investigation of the author's views or the motives of the deed we may then 
 have recourse to conjecture; and, in default of absolute certainty, adopt, as the 
 true meaning, that which has the greatest degree of probability on its side. 
 But it is a dangerous abuse to go, without necessity, in search of motives 
 and uncertain views, in order to wrest, restrict, or extend the meaning of a 
 deed which is of itself sufficiently clear, and carries no absurdity on the face of 
 it. Such a procedure is a violation of that incontestible maxim, that it is not 
 allowable to interpret what has no need of interpretation. Much less are we 
 allowed when the author of a piece has in the piece itself declared his reasons 
 and motives to attribute to him some secret reason which may authorize us 
 in giving an interpretation repugnant to the natural meaning of the expres- 
 sions. Even though he should have entertained the views which we attribute 
 to him, yet if he has concealed them and announced different ones, it is upon 
 the latter alone that we must build our interpretation, and not upon those which 
 the author has not expressed : we assume as true against him what he has suffi- 
 ciently declared. 
 
 We ought to be the more circumspect in this kind of interpretation, as it 
 frequently happens that several motives concur to determine the will of the 
 party who speaks in a law or in a promise. Perhaps the combined influence 
 of those motives was necessary, in order to determine his will ; perhaps each 
 one of them, taken individually, would have been sufficient to produce that 
 effect. In the former case, if we are perfectly certain that it was only in con- 
 sideration of several concurrent reasons and motives that the Legislature or the 
 contracting parties consented to the law or the contract, the interpretation and 
 application ought to be made in a manner agreeable to all those concurrent rea- 
 sons, and none of them must be overlooked. But in the latter case, when it is 
 evident that each of the reasons which have concurred in determining the will 
 was sufficient to produce that effect, so that the author of the piece in question 
 would, by each of the reasons separately considered, have been induced to 
 form the same determination which he has formed upon all the reasons taken 
 in the aggregate, his words must be so interpreted and applied as to make them 
 accord with each of those reasons take,n individually. Suppose a prince has 
 promised certain advantages to all. foreign Protestants and artisans who will 
 come and settle in his estates ; if that prince is in no want of subjects, but of 
 artisans only, and if, on the other hand, it appears that he does not choose to 
 have any other subjects than Protestants his promise must be so interpreted 
 as to relate only to such foreigners as unite those two characters of Protestants 
 and artisans. But if it is evident that this prince wants to people his country, 
 and that, although he would prefer Protestant subjects to others, he has in par- 
 
236 VATTEL'S RULES OF CONSTRUCTION. 
 
 ticular so great a want of artisans that he would gladly receive them of what- 
 ever religion they be, his words should be taken in a disjunctive sense, so that 
 it will be sufficient to be either a Protestant or an artisan in order to enjoy the 
 promised advantages. 
 
 The consideration of the reason of a law or promise not only serves to ex- 
 plain the obscure or ambiguous expressions which occur in the piece, but also 
 to extend or restrict its several provisions independently of the expressions, and 
 in conformity to the intention and views of the Legislature or the contracting 
 parties, rather than to their words. For, according to the remark of Cicero, 
 the language invented to explain the will ought not to hinder its effect. When 
 the sufficient and only reason of a provision, either in a law or a promise, is per- 
 fectly certain and well understood, we extend that provision to cases to which 
 the same reason is applicable, although they be not comprised within the sig- 
 nification of the terms. This is what is called interpretation. It is commonly 
 said that we ought to adhere rather to the spirit than to the letter. Thus the 
 Mohamedans justly extend the prohibition of wine in the Koran to all intoxicat 
 ing liquors : that dangerous quality being the only reason that could induce 
 their legislator to prohibit the use of wine. 
 
 But we should here observe the caution above recommended, and even still 
 greater, since the question relates to an application in no wise authorized by the 
 terms of the deed. We ought to be thoroughly convinced that we know the true 
 and only reason of the law or the promise, and that the author has taken it in the 
 same latitude which must be given to it in order to make it reach the case to which 
 we mean to extend the law or promise in question. 
 
 The rule just laid down serves also to defeat the pretexts and pitiful evasions 
 of those who endeavor to elude laws or treaties. Good faith adheres to the in- 
 tention ; fraud insists on the terms, when it thinks that they can furnish a cloak 
 for its prevarications. The isle of Pharos, near Alexandria, was, with other 
 lands, tributary to the Rhodians. The latter having sent collectors to levy the 
 tribute, the queen of Egypt amused them for some time at her court, using in 
 the meanwhile every possible exertion to join Pharos to the mainland, by means 
 of moles; after which she laughed at the Rhodians, and sent them a message, 
 intimating that it was very unreasonable in them to pretend to levy on the main 
 land, a tribute which they had no title to demand except from the islands. There 
 existed a law which forbade the Corinthians to give vessels to the Athenians. 
 They sold them a number at five drachmae each. The following was an expe- 
 dient worthy of Tiberius : custom not permitting him to cause a virgin to be 
 strangled, he ordered the executioner first to deflower the young daughter of 
 Sejanus, and then to strangle her. 
 
 Restrictive interpretation, which is the reverse of extensive interpretation, is 
 founded on the same principle. As we extend a clause to those cases which, 
 though not comprised within the meaning of the terms, are nevertheless com- 
 prised in the intention of that clause, and included in the reasons that produced 
 it, in like manner we restrict a law or promise, contrary to the literal significa- 
 tion of the terms our judgment being directed by the reason of that law or that 
 promise ; that is to say, if a case occurs to which the well-known reason of a 
 law or promise is utterly inapplicable, that the case ought to be excepted, 
 although, if we were barely to consider the meaning of the terms, it should seem 
 to fall within the purview of the law or promise. 
 
 It is impossible to think of every thing,' to foresee every thing, and to ex- 
 1 press every thing ; it is sufficient to enounce certain things in such a manner 
 as to make known our thoughts concerning things of which we do not speak ; 
 and, as Seneca, the rhetorician, says, there are exceptions so clear, that it is un- 
 necessary to express them. The law condemns to suffer death whoever strikes 
 his father : shall we punish him who has shaken and struck his father, to recover 
 
VATTEL'S RULES OF CONSTRUCTION. . 237 
 
 him from a lethargic stupor ? Shall we punish a young child, or a man in a 
 delirium, who has lifted his hand against the author of his life ? In the former 
 case, the reason of the law does not hold good ; and to the two latter, it is not 
 applicable. 
 
 We have recourse to restrictive interpretation in order to avoid falling into 
 absurdities. A man bequeaths his house to one, and to another his garden, the 
 only entrance into which is through the house. It would be absurd to suppose 
 that he had bequeathed to the latter a garden into which he could not enter ; we 
 must therefore restrict the pure and simple donation of the house, and under- 
 stand that it was given only upon the condition of giving' a passage to the 
 garden. 
 
 When a case arises in which it would be too severe and too prejudicial to 
 any one to interpret a law or a promise according to the rigor of the terms, a 
 restrictive interpretation is then also used, and we except the case in question 
 agreeably to the interpretation of the Legislature, or of him who made the 
 promise; for the Legislature intends only what is just and equitable; and, in 
 contracts, no one can enter into such engagements in favor of another as shall 
 essentially supersede the duty he owes to himself. 
 
 Thus, towards the end of the last century, Victor Amadeus. Duke of Savoy, 
 found himself under the necessity of separating from his allies, and of receiv- 
 ing law from France, to avoid losing his states. The king, his son, would have 
 had good reasons to justify a separate peace in the year 1745, but, upheld by his 
 courage, and animated by just views of his true interest, he embraced the gen- 
 erous resolution to struggle against an extremity which might have dispensed 
 with his persisting in his engagements. 
 
 We have said above that we should take the expressions in the sense that 
 agrees with the subject or the matter. Restrictive interpretation is also directed 
 by this rule. If the subject or the matter treated of will not allow that the 
 terms of a clause should be taken in their full extent, we should limit the sense 
 according as the subject requires. Let us suppose that the custom of a particu- 
 lar country confines the entail of fiefs to the male line, properly so called : if an 
 act of enfeoffment in that country declares that the fief is given to a person for 
 himself and his male descendants, the sense of these last words must be re- 
 stricted to the males descending from males, for the subject will not admit of 
 our understanding them also of males who are the issue of females, though they 
 are reckoned among the male descendants of the first possessor. 
 
 The following question has been proposed and debated : Whether promises 
 include a tacit condition of the state of affairs continuing the same ; or, whether 
 a change happening in the state of affairs can create an exception to the promise, 
 and even render it void ? The principle derived from the reason of the promise 
 must solve the question. If it be certain and manifest that the reason of the 
 consideration of the present state of things was one of the reasons which occa- 
 sioned the promise that the promise was made in consideration or consequence 
 of that state of things it depends on the preservation of things in the same 
 state. This is evident, since the promise was made only upon that supposition. 
 When, therefore, that state of things which was essential to the promise, and 
 without which it certainly would not have been made, happens to be changed, 
 the promise falls to the ground when its foundation fails. And in particular 
 cases where things cease for a time to be in the state that has produced or con- 
 curred to produce the promise, an exception is to be made to it. An elective 
 prince, being without issue, has promised to an ally that he will procure his ap- 
 pointment to the succession. He has a son born. Who can doubt that the 
 promise is void by this event ? 
 
 But we ought to be very cautious and moderate in the application of the 
 present rule. It would be a shameful perversion of it to take advantage of 
 
238 VATTEL'S RULES OF CONSTRUCTION. 
 
 every change that happens in the state of affairs, in order to disengage ourselves 
 from our promises. Were such conduct adopted, there could be no dependence 
 placed on any promise whatever. That state of things alone in consideration 
 of which the promise was made, is essential to the promise, and it is only by a 
 change in that state that the effect of the promise can be lawfully prevented or 
 suspended. Such is the sense in which we are to understand that maxim of the 
 civilians, Conventio omnis intelligitur rebus sic stantibus. 
 
 What we say of promises must also be understood as extending to laws. A 
 law which relates to a certain situation of affairs can only take place in that 
 situation. We ought to reason in the same manner with respect to the em- 
 peror, turned back on being informed of the death of Galba. 
 
 In unforeseen cases, that is to say, when the state of things happens to be 
 such as the author of a deed has not foreseen, and could not have thought of, we 
 should rather be guided by his intention than by his words, and interpret the 
 instrument as he himself would interpret it if he were on the spot, or conforma- 
 bly to what he would have done if he had foreseen the circumstances which are 
 at present known. This rule is of great use to judges, and to all those in society 
 '. who are appointed to carry into effect the testamentary regulations of the citi- 
 zens. A father appoints by will a guardian for his children who are under age. 
 After his death the magistrate finds that the guardian he has nominated is an 
 extravagant profligate, without property or conduct ; he therefore dismisses him 
 and appoints another, according to the Roman laws, adhering to the intention of 
 the testator and not to his words ; for it is but reasonable to suppose and we 
 are to presume it as a fact that the father never intended to give his children 
 a guardian who should ruin them, and that he would have nominated another 
 had he known the vices of the person he appointed. 
 
 When the things which constitute the reason of a law or convention are con- 
 sidered not as actually existing, but simply as possible, or, in other words, 
 when the fear of an event is the reason of a law or a promise, no other cases 
 can be excepted from it than those in which it can be proved to demonstration 
 that the event is really impossible. The bare possibility of the event is suffi- 
 cient to preclude all exceptions. If, for instance, a treaty declares that no army 
 or fleet shall be conducted to a certain place, it will not be allowable to conduct 
 thither an army or fleet, under pretence that no harm is intended by such a step ; 
 for the object of a clause of this nature is not only to prevent a real evil, but 
 also to keep all danger at a distance, and to avoid even the slightest subject of 
 uneasiness. 
 
 We have already observed, that men's ideas and language are not always 
 perfectly determinate. There is, doubtless, no language in which there do not 
 occur expressions, words, or entire phrases, susceptible of a more or less exten- 
 sive signification. Many a word is equally applicable to the genus or the spe- 
 cies. The word fault implies intentional guilt or simple error. Several species 
 of animals have but one name common to both sexes, as partridge, lark, spar- 
 row, etc. When we speak of horses merely with a view to the services they 
 render to mankind, mares also are comprehended under that name. In techni- 
 cal language, a word has sometimes a more or sometimes a less extensive sense 
 than in vulgar use. The word " death," among civilians, signifies not only natu- 
 ral death, but also civil death. Verbum, in the Latin grammar, signifies only 
 that part of speech called the verb ; but in common use, it signifies any word 
 in general. 
 
 But it is to this head that the famous distinction between things of a favor- 
 able, and those of an odious nature particularly belongs. 
 
 When the provisions of a law or a convention are plain, clear, determinate, 
 and attended with no doubt or difficulty in the application, there is no room for 
 any interpretation or comment. The precise point of the will of the Legislature, 
 
VATTEL'S RULES OF CONSTRUCTION. 239 
 
 or the contracting parties, is what we must adhere to. But if their expressions 
 are indeterminate, vague, or susceptible of a more or less extensive sense if 
 that precise point of their intention cannot, in the particular case in question, 
 be discovered and fixed by the other rules of interpretation we must presume 
 it, according to the laws of reason and equity ; and, for this purpose, it is neces- 
 sary to pay attention to the nature of things to which the question relates. 
 There are certain things of which equity admits the extension rather than the 
 restriction ; that is to say, that, with respect to those things, the precise point 
 of the will not being discovered in the expressions of the law or the contract, it 
 is safer, and more consistent with equity, to suppose and fix that point in the 
 more extensive than in the more limited sense of the terms, to give a latitude to 
 the meaning of the expressions, than to restrict it. These are the things called 
 favorable. Odious things, on the other hand, are those of which the restriction 
 tends more certainly to equity than the extension. Let us figure to ourselves 
 the intention or the will of the Legislature, of the contracting parties, as a fixed 
 point. At that point precisely should we stop, if it be clearly known ; if un- 
 certain, we should, at least, endeavor to approach it. In things favorable, it is 
 better to pass beyond that point than not to reach it ; in things odious, it is 
 better not to reach it than to pass beyond it. 
 
 It will not now be difficult to show, in general, what things are favorable and 
 what are odious. In the first place, every thing that tends to the common ad- 
 vantage in conventions, or that has a tendency to place the contracting parties 
 on a footing of equality, is favorable. The voice of equity, and the general rule 
 of contracts, require that the conditions between the parties should be equal. 
 
 For the same reason, every thing that is not for the common advantage 
 every thing that tends to destroy the equality of a contract every thing that 
 burthens only one of the parties, or that burthens one more than the other, is 
 odious. In a treaty of strict friendship, union, and alliance, every thing which, 
 without being burthensome to any of the parties, tends to the common advan- 
 tage of the confederacy, and to draw the bonds of union closer, is favorable. 
 
 In unequal treaties, and especially in unequal alliances, all the clauses cf 
 inequality, and principally those that burthen the inferior ally, are odious. 
 Upon this principle, that we ought, in case of doubt, to extend what leads to 
 equality, and restrict what destroys it, is founded that well known rule Incom- 
 moda vitantis melior quam commoda petentis est causa : The party who endeavors 
 to avoid a loss, has a better cause to support than he who aims at obtaining an 
 advantage. 
 
 All those things which, without proving too burthensome to any one in par- 
 ticular, are useful and salutary to human society, are to be ranked in the class 
 of favorable things ; for a nation is already under a natural obligation with re- 
 spect to things of this natnre. 
 
 On the other hand, let us consider as odious every thing that is, in its own 
 nature, rather injurious than useful to mankind. Those things which have a tend- 
 ency to promote peace are favorable ; those that lead to war are odious. 
 
 Every thing that contains a penalty is odious. With respect to the laws, 
 it is universally agreed that, in case of doubt, the judge ought to incline to the 
 merciful side, and that it is indisputably better to suifer a guilty person to es- 
 cape. Penal clauses in treaties lay a burthen upon one of the parties : they 
 are, therefore, odious. 
 
 Whatever tends to render a deed void and ineffectual, either in the whole or 
 in part, and consequently whatever introduces any change in things already 
 agreed upon, is odious ; for men treat together with a view to their common 
 benefit; and if I enjoy any particular advantage, acquired by a lawful contract, 
 I must not be deprived of it except by my own renunciation. 
 
 Whatever tends to change the present state of things, is also to be ranked 
 
240 VATTEL'S RULES OF CONSTRUCTION. 
 
 in the class of odious things ; for the proprietor cannot be deprived of his right 
 except so far, precisely, as he relinquishes it on his part ; and in case of doubt, 
 the presumption is in favor of the possessor. 
 
 Finally, there are things which are at once of a favorable or odious nature, 
 according to the point of view in which they are considered. Whatever dero- 
 gates from treaties, or changes the state of things, is odious ; but if it is con- 
 ducive to peace, it is, in that particular, favorable. A degree of of odium al- 
 ways attaches to penalties ; they may, however, be viewed in a favorable light, 
 on those occasions when they are particularly necessary for the safety of society, 
 
 When there is question of interpreting things of this nature, we ought to 
 consider whether what is favorable in them greatly exceeds what appears odious 
 whether the advantage that arises from their being extended to the utmost 
 latitude of which the terms are susceptible, will materially outweigh the severe 
 and odious circumstances attending them ; and if that is the case they are to be 
 ranked in the class of favorable things. Thus, an inconsiderable change in the 
 state of things, or in conventions, is reckoned as nothing when it procures the 
 inestimable blessings of peace. In the same manner, penal laws may be inter- 
 preted in their most extensive meaning, on critical occasions, when such an in- 
 stance of severity becomes necessary to the safety of the state. 
 
 1. When the question relates to things favorable, we ought to give the 
 terms the utmost latitude of which they are susceptible according to the common 
 usage of the laguage ; and if a term has more than one signification, the most 
 extensive meaning is to be preferred ; for equity ought to be the rule of con- 
 duct with all mankind, wherever a perfect right is not exactly determined and 
 known in its precise extent. When the Legislature or the contracting parties 
 have not expressed their will in terms that are precise and perfectly determinate, 
 it is to be presumed that they intended what is most equitable. 
 
 Thus, Cicero, in pleading the cause of Cascina, justly maintains that the 
 interlocutory decree ordaining " that the person expelled from his inheritance be 
 reinstated in the possession," should be understood as extending to the man who 
 has been forcibly prevented from entering upon it; and the Digest decides in 
 the same manner. 
 
 In questions relating to favorable things, all terms of art are to be inter- 
 preted in the fullest latitude of which they are susceptible not only in common 
 usage, but also as technical terms, if the person speaking understands the art to 
 which those terms belong, or conducts himself by the advice of men who under- 
 stand that art. 
 
 But we ought not, from the single reason that a thing is favorable, to take 
 the terms in an improper signification : this is not allowable, except when neces- 
 sary in order to avoid absurdity, injustice, or the nullity of the instrument, as 
 is practiced on every subject ; for we ought to take the terms of a deed in their 
 proper sense, conformably to their custom, unless we have very strong reasons 
 for deviating from it ( 271). 
 
 Though a thing appears favorable when viewed in one particular light, yet 
 where the proper meaning of the terms would, if taken in its utmost latitude, 
 lead to absurdity or injustice, their signification must be restricted according to 
 the rules given above ( 293, 294). For here, in this particular case, the thing 
 becomes of a mixed nature, and even such as ought to be ranked in the class of 
 odious things. 
 
 For the same reason, although neither absurdity nor injustice results from 
 the proper meaning of the terms, if nevertheless manifest equity or a great com- 
 mon advantage requires their restriction, we ought to adhere to the most limited 
 sense which the proper signification will admit, even in an affair that appears 
 favorable in its own nature because here also the thing is of a mixed kind, and 
 ought, in this particular case, to be esteemed odious. 
 
VATTEL'3 RULES OF CONSTRUCTION. 241 
 
 Since odious things are those whose restriction tends more certainly to 
 equity than their extension, and since we ought to pursue that line which is 
 most conformable to equity, when the will of the Legislature or of the contract- 
 ing parties is not exactly determined and precisely known, we should, when 
 there is question of odious things, interpret the terms in the most limited sense ; 
 we may even to a certain degree adopt a figurative meaning, in order to avert 
 the oppressive consequences of the proper and literal sense, or any thing of an 
 odious nature which it would involve ; for we are to favor equity, and do away 
 every thing odious, so far as that can be accomplished x^thout going in direct 
 opposition to the tenor of the instrument or visibly wresting the text. 
 
 Now, neither the limited nor even the figurative sense offers any violence to 
 the text. It is said in a treaty that one of the allies shall assist the other with a 
 certain number of troops, at his own expense, and that the latter shall furnish 
 the same number of auxiliary troops at the expense of the party to whom they 
 are sent : there is something odious in the engagement of the former ally, since 
 he is subject to a greater burden than the other; but the terms being clear and 
 and express, there is no room for any restrictive interpretation. But if it were 
 stipulated in this treaty, that one of the allies shall furnish a body of ten thou- 
 sand men, and the other only of five thousand, without mentioning the expense, 
 it ought to be understood that the auxiliary troops shall be supported at the 
 expense of the ally to whose assistance they are sent; this interpretation being 
 necessary, in order that the inequality between the contracting powers may not 
 be carried too far. 
 
 Let us conclude this subject of interpretation with what relates to the collis- 
 ion or opposition of laws or treaties. We do not here speak of the collision of 
 a treaty with the law of nature : the latter is unquestionably paramount. There 
 is a collision or opposition between two laws, two promises, or two treaties, 
 when a case occurs where it is impossible to fulfil both at the same time, though 
 otherwise the laws or treaties in question are not contradictory, and may be both 
 fulfilled under different circumstances. 
 
 They are considered as contradictory in this particular case, and it is re- 
 quired to show which deserves the preference, or to which an exception ought 
 to be made on the occasion. In order to guard against all mistakes in the busi- 
 ness, and to make the exception conformably to reason and justice, we should 
 observe the following rules : 
 
 1. In all cases where what is barely permitted is found incompatible with 
 what is positively prescribed, the latter claims a preference ; for the mere per- 
 mission imposes no obligation to do or not to do. What is permitted is left to our 
 own option : we are at liberty either to do or to forbear to do it. But we have 
 not the same liberty with respect to what is prescribed : we are obliged to do 
 that. Nor can the bare permission in the former case interfere with the dis- 
 charge of our obligation in the matter ; but, on the contrary, that which was 
 before permitted in general ceases to be so in this particular instance, where 
 we cannot take advantage of the permission without violating a positive duty. 
 
 2. In the same manner, the law or treaty which permits ought to give way 
 to the law or treaty which forbids; for the prohibition must be ^obeyed, and 
 what was, in its own nature or in general, permitted, must not be attempted 
 when it cannot be done without contravening a prohibition ; the permission, in 
 that case, ceases to be available. 
 
 3. All circumstances being otherwise equal, the law or the treaty which or- 
 dains gives way to the law or the treaty which forbids. I say " all circum- 
 stances being otherwise equal," for many other reasons may occur which will 
 authorize the exception being made to the prohibitory law or tre"aty. The 
 rules are general : each relates to an abstract idea, and shows what follows 
 from the idea without derogation to the other rules. Upon this footing it is 
 
 16 
 
242 VATTEL'S RULES OF CONSTRUCTION. 
 
 evident that, in general, if we cannot obey an injunctive law without violating 
 a prohibitory one, we should abstain from fulfilling the former, for the prohibi- 
 tion is absolute in itself, whereas every precept, every injunction, is in its own 
 nature conditional, and supposes the power, or a favorable opportunity, of do- 
 ing what is prescribed. Now, when that cannot be accomplished without con- 
 travening a prohibition, the opportunity is wanting, and this collision of laws 
 produces a moral impossibility of acting ; for what is prescribed in general, is 
 no longer so in the case where it cannot be done without committing an ac- 
 tion that is forbidden. 
 
 Our meaning wifl be better explained by an example. It is expressly for- 
 bidden, for reasons to me known, to pass through a certain place under any 
 pretense whatsoever. I am ordered to carry a message. I find every other 
 avenue shut ; I therefore turn back, rather than take any message over that 
 ground, which is so strictly forbidden. But if the prohibition be only a general 
 one, with a view to prevent any injury being done to the productions of the soil, 
 it is easy for me to judge, that the orders with which I am charged ought to 
 form an exception. 
 
 4. The dates of laws or treaties furnish new reason for establishing the ex- 
 ception in cases of collision. If the collision happen between two affirmative 
 laws or two affirmative treaties, concluded between the same persons or the 
 same states, that which is of a more recent date claims preference over the older 
 one ; for it is evident that, since both laws or both treaties have emanated from 
 the same power, the subsequent act was capable of derogating from the former. 
 But still, this is upon the supposition of circumstances being in other respects 
 equal. If there be a collision between two treaties made with two different 
 powers, the more ancient claims the preference ; for no engagement of a con- 
 trary tenor could be contracted in the subsequent treaty. And if this latter 
 be found in any latter case, incompatible with that of more ancient date, its exe- 
 cution is considered as impossible, because the person promising had not the 
 power of acting contrary to his antecedent engagements. 
 
 5. Of two laws or two conventions, we ought (all other circumstances be- 
 ing equal) to prefer the one which is less general, and which approaches nearer 
 to the point in question ; because special matter admits of fewer exceptions 
 than that which is general. It is enjoined with great precision, and appears to 
 have been more pointedly intended. Let us make use of the following example 
 from Puffendorf. One law forbids us to appear in public with arms on holi- 
 days ; another law commands us to turn out under arms, and repair to our 
 posts as soon as we hear the sound of the alarm bell. The bell is rung on a 
 holiday. In such case we must obey the latter of the two laws, which creates 
 an exception to the former. 
 
 6. What will not admit of delay is to be preferred to what may be done at 
 any other time; for this is the mode to reconcile every thing and fulfill both 
 obligations. Whereas, if we gave the preference to the one which might be 
 fulfilled at another time, we would unnecessarily reduce ourselves to the alterna- 
 tive of failing in our observance of the other. 
 
 7. When two duties stand in competition, that one which is the more consid- 
 erable, the more praiseworthy, and productive of the greater utility, is entitled 
 to the preference. This rule has no need of proof. But as it relates to duties 
 that are equally in our power, and, as it were, at our option, we should care- 
 fully guard against the erroneous application of it to two duties which do not 
 really stand in competition, but of which the one absolutely precludes the 
 other. For instance, it is a more praiseworthy deed to defend one nation 
 against an'unjust aggressor, than to assist another in an offensive war. But if 
 the latter be the more ancient ally, we are not at liberty to refuse her our as- 
 sistance and give it to the former, for we stand pre-engaged. There is not, 
 
DOMAT'S RULES. 243 
 
 strictly speaking, any competition between these two duties they do not lie 
 at our option; the prior engagement renders the second duty, for the present, 
 impracticable. However, if there were question of preserving a new ally from 
 certain ruin, and that the more ancient ally were not reduced to the same ex- 
 tremity, this would be the case to which the foregoing rule should be applied. 
 
 As to what relates to laws in particular, the preference is undoubtedly to be 
 given to the more important and necessary ones. This is the grand rule to be 
 observed whenever they are found to clash with each other. It is the rule 
 which claims the greatest attention, and is therefore placed by Cicero at the 
 head of all the rules he lays down on the subject. It is counteracting the gen- 
 eral aim of the Legislature, and the great end of the laws, to neglect one of 
 great importance, under pretense of observing another which is less necessary 
 and of inferior consequence. In fact, such conduct is criminal ; for a lesser good, 
 if it exclude a greater, assumes the nature of an evil. 
 
 8. If we cannot acquit ourselves, at the same time, of two things promised 
 to the same person, it rests with him to choose which of the two we are to per- 
 form ; for he may dispense with the other on this particular occasion, in which 
 case there will no longer be any collision of duties. But if we cannot obtain a 
 knowledge of his will, we are to presume that the more important one is his 
 choice, and we should, of course, give that preference. And, in case of doubt, 
 we should perform the one to which we are the more strongly bound ; it being 
 presumable that he chose to bind us more strongly to that in which he is more 
 deeply interested. 
 
 9. Since the stronger obligation claims a preference over the weaker, if a 
 treaty that has been confirmed by an oath happens to clash with another treaty 
 that has not been sworn to all circumstances being in other respects equal 
 the preference is to be given to the former ; because the oath adds a new force to 
 the obligation. But as it makes no change in the nature of treaties, it cannot, 
 for instance, entitle a new ally to a preference over a more ancient ally whose 
 treaty has not been confirmed by oath. 
 
 For the same reason, and all circumstances being in other respects equal, 
 what is enjoined under a penalty, claims a preference over that which is not 
 enforced by one, and what is enjoined under a greater penalty, over that which 
 is enforced by a lesser ; for the penal sanction and convention gave additional 
 force to the obligation. They prove that the object in question was more ear- 
 nestly desired, and the more so in proportion as the penalty is more or less 
 severe. 
 
 DOMAT'S RULES. 
 
 The following extracts are taken, and very freely translated, from Domat's 
 Loix Civiles, Liv. Prel. des Regies du Droit en General, tit. I, sec. II. In order 
 to understand them, it is necessary to bear in mind the author's distinction 
 between natural and arbitrary laws. He says, Liv. Prel. lit. I, Sect. I, Sec. 2,, 
 " Laws or rules are of two sorts ; the one, laws of natural right or equity, 
 and the other positive, human, or arbitrary laws : thus the rule that a gift may 
 be revoked on the ground of the ingratitude of the donee, is a rule of natural 
 law ; the rule that gifts inter vivos must be recorded, is a rule of positive or 
 arbitrary law." Without undertaking to vindicate or to criticise this classifica- 
 tion, we proceed to Domat's rules for the application and interpretation of laws. 
 The illustrations are in some cases omitted, both because they are not always 
 clearly intelligible to modern jurisconsults, and because the mind will very 
 readily suggest others drawn from our own law. 
 
 SEC. 1. All laws, whethe 1 * natural or arbitrary, are intended to produce re- 
 
244 DOMAT'3 RULES. 
 
 suits conformable to that general idea of justice in which they originate. Con- 
 sequently, their application must be governed by the demands of this general 
 spirit of justice ; or in regard to natural laws by equity, and in regard to pos- 
 itive or arbitrary laws by the intention of the legislator. In this distinction 
 and discrimination, the science of law mainly consists. 
 
 SEC. 2. If a rule of natural justice is applied to a case that it apparently 
 embraces, and the result is contrary to equity, we are bound to conclude that 
 the rule is improperly applied, and that the case should fall under some other 
 law. 
 
 SEC. 3. If an arbitrary or positive rule is applied to a case which it appar- 
 ently embraces, and the result is contrary to the intent of the legislator, the 
 rule should not be applied to the case. 
 
 SEC. 4. But we must not consider as unjust and repugnant to equity, or to 
 the legislator's intention, those decisions which appear rigorous and severe, 
 where it is evident that rigor or severity is the essential characteristic of the 
 law in question, and that it could not be mitigated without impairing its effect ; 
 so in regard to the formalities prescribed relating to the execution of wills, the 
 severity and arbitrary character of the rule which annuls all wills where these 
 formalities are neglected, is in those cases an indispensable part of the law. 
 
 SEC. 5. If, however, the severity of a law is not the necessary and indispens- 
 able part of it, but it can be carried into effect by a milder interpretation and 
 one more conformable to equity and natural justice, then this is to be preferred 
 to the strict and harsh construction. 
 
 SEC. 6. It follows from the preceding rules, that we cannot declare as a fixed 
 and invariable rule, either that the strictness of law is to be followed against a 
 more equitable interpretation, or the reverse. Rigor becomes injustice when 
 the law will bear an equitable interpretation ; rigor should be practiced when 
 an equitable interpretation would defeat the law. Thus rigor or strictness is 
 cither an unjust and odious severity, contrary to the spirit of the law, or it fur- 
 nishes a just but inflexible rule. These two ideas are never to be con- 
 founded ; and the strict or the equitable construction ought to be adhered to ac- 
 cording to the rules here given. 
 
 SEC. 7. It is never a matter of indifference whether we apply a strict or a 
 liberal construction. In each case we are to inquire whether the rule in ques- 
 tion calls for a strict interpretation or will bear a liberal one, and decide ac- 
 cordingly. 
 
 SEC. 8. Although the strictness of law appears at first sight opposed to 
 equity, it is nevertheless true that where it ought to be applied it is only on 
 account of its inherent justice. What is equitable cannot be contrary to jus- 
 tice ; and so what is just cannot be contrary to equity. 
 
 SEC. 9. The obscurities, ambiguities, and other defects of expression, which 
 may render the meaning of a law doubtful, and all other difficulties in its con- 
 struction and application, should be resolved by the natural sense of the lan- 
 guage, according to the nature of the subject, so as if possible at once to con- 
 form to the intent of the legislator and to equity. This is to be arrived at by 
 the different consideration of the nature of the law, its object, its connection 
 with other laws, the exceptions to which it may be subject, and other similar 
 considerations. 
 
 SEC. 10. To arrive at the meaning of a law, we are to weigh its terms and 
 examine its preamble, if there be one, in order to judge of its provisions by its 
 object and the whole context, and not to limit its interpretation to what would 
 appear different from its intention, either in a single portion of the law, or in 
 a single defective expression. We must prefer the evident meaning of the 
 whole law, to the inconsistent meaning of a defective expression. 
 
 SEC. 11. If in any law, we find the omission of something essential to it, 
 
DOMAT'S RULES. 245 
 
 or which is a necessary result of its provisions and requisite to give the law its 
 full effect, we may supply what is wanting but not expressed, and extend the 
 law to what it was manifestly intended to embrace but in its terms does not 
 include. 
 
 SEC. 12. If the language of a law clearly expresses its meaning and inten- 
 tion, that intention must be carried out ; but if the true sense of the law cannot 
 be arrived at by the interpretation which may be made according to the rules 
 here given, or the meaning be clear and inconvenience appear to result, then 
 we must have recourse to the sovereign to interpret, to declare, or modify the 
 law. 
 
 SEC. 13. If the provisions of a law are clear, but its object not understood, 
 and in its application inconveniences appear to result, we are bound to pre- 
 sume that the law is useful and just ; and its meaning and its authority are to 
 be preferred to mere abstract reasoning. Otherwise many useful and well- 
 contrived rules would be overturned on grounds of alleged equity or ingenious 
 argument. 
 
 SEC. 14. Laws which favor what public utility, humanity, religion, freedom 
 of intercourse (liberte des conventions), and other similar interests regard favor- 
 ably, as well as those intended to favor particular individuals, ought to be inter- 
 preted with all the liberality to which these interests are justly entitled, in an 
 equitable point of view, and ought not to be interpreted severely, nor be applied 
 in a manner calculated to prejudice the persons intended to be favored. 
 
 SEC. 15. Laws which restrain natural liberty, as those which prohibit what 
 is not of itself illicit, or which derogate otherwise from common right ; laws 
 fixing the punishment of crimes and offences, or penalties in matters of a civil 
 nature which prescribe formalities that seem severe, those which permit parents 
 to disinherit children, and others of a similar character, ought to be so inter- 
 preted as not to extend their provisions to cases which they do not embrace; 
 and, on the contrary, they should receive all practical mitigation of equity and 
 humanity. 
 
 SEC. 16. If any law or custom is established for particular reasons, contrary 
 to other rules or to common right, it ought not to be applied except to those 
 cases for which it is expressly intended. 
 
 SEC. 17. The grants and gifts of sovereigns are to be favorably regarded, and 
 to have that extension to which they are entitled from the natural presumption 
 of princely liberality, provided, however, that they are not to be so liberally 
 construed as to injure other individuals. 
 
 SEC. 18. If laws of doubtful meaning be connected with or related to other 
 laws which throw any light on their purport, the interpretation thus derived is 
 the one that should be adopted. 
 
 SEC. 19. If the doubts or difficulties in regard to the interpretation of a law 
 or a custom are solved by an old usage which has fixed the meanings, and which 
 is supported by a uniform series of adjudications, we should adhere to the usage, 
 which is the best interpreter of laws. 
 
 SEC. 20. In case any provinces or districts are without certain rules to de- 
 cide difficulties in regard to matters which are there governed by usage, if these 
 difficulties are not determined by natural justice, or by written law, but depend 
 on custom and usage, we ought to adopt the principles which result from the 
 customs or usages of the province or district. 
 
 SEC. 21. All laws necessarily bear with them all the powers or incidents 
 necessary to fully carry out their intention. Thus, as the law permits boys to 
 contract marriage at the age of 14, and girls at the age of 12, it necessarily 
 results from this law that those who marry can, although infants and not of 
 full age, bind themselves in regard to the settlement, community of goods, and 
 the like. 
 
246 LIBBER'S RULES. 
 
 SEC. 22. In laws which confer power, the greater authority implies the less. 
 Thus, those who have the right to give their property, have, with still greater 
 reason, the right to sell it. 
 
 SEC. 23. In laws which prohibit acts, the lesser prohibition implies the 
 greater. Thus, spendthrifts who are forbidden to manage or control their prop- 
 erty, a fortiori cannot alienate or transfer it. 
 
 SEC. 24. The implications spoken of in the two last sections are to be re- 
 stricted to subjects of the same nature as those to which the law applies, or to 
 which it ought to apply, according to the preceding rules. Thus, the liberty 
 that a minor adult enjoys to make a donatio causa mortis should not be extended 
 so as to sustain a gift inter vivos. 
 
 SEC. 25. If a law grants an amnesty, or pardon for past offences, it is to be 
 understood as prohibiting similar acts for the future. Cum lex in preteritum 
 quid indulget, in futurum vetat. L. 22, Ff. de Legibus. 
 
 SEC. 26. If a right be vested in a person by reason of a law, it is of no con- 
 sequence whether the person s6 vested be cognizant or ignorant of the law, or 
 whether he know or be ignorant of the fact on which the vesting of the right de- 
 pends. Thus, the son is heir to his father, though he be both ignorant of the 
 law of succession and of his father's death. 
 
 SEC. 27. Persons competent in law to act may waive any benefit or priv- 
 ilege created by law in their favor. Thus, one of full years may renounce an 
 inheritance devolved on him by law. But this liberty of renunciation or 
 waiver does not extend to the rights of third persons, nor to those cases in 
 which the waiver would be contrary to equity, or to good morals, or to any 
 other law. 
 
 SEC. 28. The rules of law cannot be modified by any private contract or 
 agreement. Jus publicum privatorum pactis mutari non potest. 
 
 Professor LIEBER, in his work on Legal and Political Hermeneutics, gives 
 the following rules for interpretation and construction. I have, supra, p. 191, 
 referred to the distinctions drawn by him between these two operations of the 
 mind, and the classifications which he adopts. 
 
 1. A sentence, or form of words, can have but one true meaning. 
 
 2. There can be no sound interpretation without good faith and common 
 sense. 
 
 3. Words are, therefore, to be taken as the utterer probably meant them 
 to be taken. In doubtful cases, therefore, we take the customary signification, 
 rather than the grammatical or classical ; the technical, rather than the etymo- 
 logical verba artis ex arte tropes as tropes. In general, the words are taken 
 in that meaning which agrees most with the character of both the text and the 
 utterer. 
 
 4. The particular and inferior cannot defeat the general and superior. 
 
 5. The exception is founded upon the superior. 
 
 6. That which is probable, fair, and customary, is preferable to the improb- 
 able, unfair, and unusual. 
 
 7. We follow special rules, given by proper authority. 
 
 8. We endeavor to derive assistance from that which is more near, before 
 proceeding to that which is less so. 
 
 9. Interpretation is not the object, but a means; hence superior considera- 
 tions may exist. Lieber's Hermeneulics, p. 120. 
 
 ******** 
 
 XVH. Recapitulating the general principles of construction, we find the 
 following to be most essential points : 
 
LIBBER'S RULES. 247 
 
 1. All principles of interpretation, if at all applicable to construction, are 
 valid for the latter. 
 
 2. The main guide for construction is analogy, or rather reasoning by 
 parallelism. 
 
 3. The aim and object of an instrument, law, &c., are essential, if distinctly 
 known, in construing them. 
 
 4. So also may be the causes of a law. 
 
 5. No text imposing obligations is understood to demand impossible things. 
 
 6. Privileges or favors are to be construed so as to be least injurious to the 
 non-privileged, or unfavored. 
 
 7. The more the text partakes of the nature of a compact, or solemn agree- 
 ment, the closer ought to be its construction. 
 
 8. A text imposing a performance, expresses a minimum, if the performance 
 is a sacrifice to the performer ; the maximum, if it involves a sacrifice or suffer- 
 ance on the side of the other party. 
 
 9. The construction ought to harmonize with the substance and general spirit 
 of the text. 
 
 10. The effects which would result from one or the other construction, may 
 guide us in deciding which construction we ought to adopt. 
 
 11. The older a law, or any text containing regulations of our actions, 
 though given long ago, the more extensive the construction must be in certam 
 cases. 
 
 12. Yet nothing contributes more to the substantial protection of individual 
 liberty, than a habitually close interpretation and construction. 
 
 13. It is important to ascertain whether words were used in a definite, ab- 
 solute, and circumscribed meaning, or in a generic, relative, or expansive char- 
 acter. 
 
 14. Let the weak have the benefit of a doubt, without defeating the general 
 object of a law. Let mercy prevail, if there be real doubt. 
 
 15. A consideration of the entire text, or discourse, is necessary in order to 
 construe fairly and faithfully. 
 
 16. Above all, be faithful in construction. Construction is the building up 
 with given elements, not the forcing of extraneous matter into a text. Lieber's 
 Hermeneutics, p. 144. 
 
 ******** 
 
 The author subsequently gives (pp. 167-172) the following as the most gen- 
 eral rules and principles applicable to all interpretation : 
 
 1. The true meaning of words can be but one. 
 
 2. Honest, faithful, bonafide interpretation is all-important ; common sense 
 must guide us. 
 
 3. Words are to be taken according to their customary, not in their original 
 or classical signification. 
 
 4. The signification of a word, ort he meaning of a sentence, when dubious, 
 is to be gathered from the context, or discovered by analogy, or fair induction. 
 Yet the same word does not always mean the same in the same discourse or 
 text. This would, in fact, militate with the important rule, that we are to take 
 words in their natural sense, according to custom and their connection. 
 
 5. Words are always understood as having regard to the subject-matter. 
 
 6. The causes which led to the enactment of a law are guides to us. If one 
 interpretation would lead to absurdity, the other not, we must adopt the latter. 
 So, that interpretation which leads to the more complete effect which the Legis- 
 lature had in view, is preferable to another. 
 
 For the above rules, see Blackstone and Puffendorf. As to rule 6, see Dig. 
 L. 50, tit. 17, 67. 
 
 7. Two chief objects of all government are peace and security ; the State 
 
248 LIBBER'S RULES. 
 
 can never be understood to will anything immoral, so long as there is any doubt. 
 Laws, therefore, cannot be construed as meaning anything against the one or 
 the other. Security and morality are the supreme law of every land, whether 
 this be expressly acknowledged or not. 
 
 8. The general and superior prevails over the specific and inferior ; no law, 
 therefore, can be construed contrary to the fundamental law. If it admits of 
 another construction, this must be adopted. 
 
 ******** 
 
 9. A law contrary to the fundamental or primary law, may at any time be 
 declared so, though it has already been acted upon ; for that which was wrong 
 in the beginning cannot become valid in the course of time. Dig. L. 50, Tit. 
 
 17,24. 
 
 ******** 
 
 10. If, therefore, the law admits of two interpretations, that is to be adopted 
 which is agreeable to the fundamental or primary law, though the other may 
 have been adopted previously. 
 
 11. Custom of the country, 'where the law was made, supplies the deficiency 
 of words. 
 
 12. In dubious cases, the fairer interpretation is to be adopted. " Every- 
 where, especially in law, equity is to be considered." Dig. L. 50, Tit. 17, 90, 
 192, 200. 
 
 13. That which is probable, or customary, is preferable to that which is 
 less so, wherever obscurity exists. 
 
 14. If two laws conflict with each other, that must yield the effect of which 
 is less important; or, that is to be adopted by the -adoption of which we ap- 
 proach nearest to the probable or general intention of the legislator. Specific 
 rules, adopted for the protection of private individuals, must be followed. 
 
 ******** 
 
 15. The more general the character of the law is, the more we ought to try 
 strictly to adhere to the precise expression. Without it, it would be a waver- 
 ing instead of a stable rule, and we must presume that the words have been the 
 better weighed. Many considerations, however, may exist, which would oblige 
 us to follow a different course ; e. g., the cruelty of a law, its antiquity, and 
 consequent unfitness. 
 
 16. If any doubt exists in penal laws or rules, they ought to be construed in 
 favor of the accused ; of course, "without injury to any one else. 
 
 17. In cases of doubt between the authority and an individual, the benefit of 
 the doubt, all other reasons being equal, ought to be given to the individual, 
 not to the authority, for the State makes the laws, and the authority has the 
 power ; yet it is subversive of all good government, peace, and civil morality, 
 if subtlety is allowed to defeat the wise object of the law, or if a morbid par- 
 tiality for an evil-doer guides the interpreter. 
 
 18. The weak (hence the individual arraigned by the State) ought to have 
 the benefit of doubt ; doubt ought to be construed in mercy, not in severity. 
 A, law may be rendered milder, but not more severe. Lieber's Ifermeneutics, 
 p. 172. 
 
 Copious extracts from the writers on the civil law in regard to the subject 
 of this note, will be found in the 12th chapter of Mr. Smith's work on Statutes. 
 
 Mr. ROBERT PHILLIMORE, in his very able and useful work upon Inter- 
 national Law, devotes a chapter (part v, chapter viii) to the subject of the 
 Interpretation of Treaties. He arranges the principles and rules appertaining 
 to this subject under three heads. 
 
SAVIGNY ON INTERPRETATION. 249 
 
 Authentic Interpretation ; or, the exposition supplied by the lawgiver him- 
 self. 
 
 Usual ; or, that founded on usage and precedent. 
 
 Doctrinal ; or, that founded on a scientific exposition of the terms of the in- 
 strument this being subdivided into, 1. Grammatical, and 2. Logical Exposi- 
 tion. 
 
 The learned and sagacious SAVIGNY, in his recent work on Contracts, re- 
 marks that, with respect to agreements, the principles of interpretation to be 
 found in the Civil Law which are substantially those of Vattel and Domat 
 are of a very general and superficial character, and scarcely afford any aid, 
 beyond that which an intelligent and dispassionate consideration of each par- 
 ticular case would furnish. His words are as follows : 
 
 " Fur die Auslegung nun in Anwendung, auf die meisten Falle dieser letzten 
 lassen sich durchgreifende Grundsatze der Auslegung nicht wohl aufstellen. 
 Auch sind die meisten Aesserungen der Romischen Juristen heriiber von einem 
 sehr allgemeinen Character, und ziemlich auf der Oberflache liegend, so dasz sie 
 in zweifelhaften Fallen nicht leicht welter fiihren werden, als wohin die beson- 
 nene Erwagung des einzelnen Falles ohnehin fiihren musste. Folgende Aus- 
 spruche werden diese Behauptung anschaulich machen, und zur Ueberzeugung 
 bringen." Das Obligationen Recht, ii, 189. 
 
 I refer to this with satisfaction, as it goes to confirm what has been said in 
 the text as to the*practical utility of these minute and precise Codes of Interpre- 
 tation. 
 
 See also Mr. Justice STORY'S criticisms on Vattel's Rules of Interpretation. 
 Story on the Cons., vol. i, p. 291. 
 
CHAPTER VII. 
 
 OF STRICT CONSTRUCTION, AND OF LIBERAL OR EQUITABLE 
 CONSTRUCTION. 
 
 The Line Separating Judicial Construction from Judicial Legislation. Strict Con- 
 struction, and Liberal or Equitable Construction. Statutes when Strictly Con- 
 strued. Statutes Conflicting with a 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 Proceedings. Stat- 
 utes Authorizing Summary Administrative Proceedings. 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. 
 
 I HAVE in the preceding chapter, endeavored to state the 
 general rules of construction with regard to the means to be 
 employed, for the purpose of solving doubts in regard to the 
 true intent of a given legislative act. We have now to con- 
 sider a very different class of cases. There are, as have been 
 already observed, many cases of ambiguity or irreconcilable 
 contradiction, where all aids fail, and the task of arriving at the 
 intent of the legislator may be said to be hopeless. Still, the 
 doubt is to be resolved, the case to be decided, the statute to be 
 interpreted and applied ; and the functions of the judge in these 
 cases necessarily approach those of the legislator. There are 
 again other cases of great apparent hardship, where the statute 
 is on its face sufficiently intelligible, but where its provisions 
 are sweeping and arbitrary, and where its literal operation and 
 application involve really innocent parties in great suffering 
 and, it may be, remediless disaster. Out of these cases has 
 grown the idea already stated, that the judiciary have the right 
 to make a distinction between different statutes, or classes of 
 statutes ; and that while some are to be strictly construed and 
 
STRICT AND LIBERAL CONSTRUCTION. 251 
 
 rigidly enforced according to their letter, others are to be liber- 
 ally expounded, and to be molded and interpreted according to 
 judicial notions of policy or equity. 
 
 This branch of our subject is one of the most important in 
 the whole range of jurisprudence; for while on the one hand it 
 is proper, and indeed indispensable to the intelligent adminis- 
 tration of justice, that the judiciary should, to a certain extent, 
 possess and exercise this power, still, on the other, it is one ex- 
 tremely liable to abuse; and, indeed, it has been so much 
 abused as at times almost to obliterate the important line be- 
 tween the judicial and legislative functions. " Equitable con- 
 structions," say the Supreme Court of Massachusetts, " though 
 they may be tolerated in remedial and perhaps some other 
 statutes, should always be resorted to with great caution, and 
 never extended to penal statutes or mere arbitrary regulations 
 of matters of public policy. The power of extending the mean- 
 ing of a statute beyond its words, and deciding by the equity 
 and not the language, approaches so near the power of legisla- 
 tion that a wise judiciary will exercise it with reluctance, and 
 only in extraordinary cases." * 
 
 * In this case, the statute declared that if substantive law in question being the work of 
 
 a citizen had an estate, which should be ap- the legislator, every application made of the 
 
 praised at a certain sum, and be assessed principle of nullification is a contempt, an act 
 
 thereon, he should obtain a settlement; and of insurrection against the authority of his 
 
 it was held that mere residence and posses- constitutional superior. Condition, extension, 
 
 sion of the estate would not give a settle- limitation, modification, exception, expres- 
 
 ment, where the appraisement and assess- sions interconvertible (expressions in effect 
 
 ment had not been made. Monson v. Chester, the same), by the legislator ; none at all an- 
 
 22 Pick. 385. nexed, none at any rate to the effect in ques- 
 
 Bentham's hostility to the usurpations of tion. To this declaration of the will of the 
 
 the judiciary, is expressed at once with his legislator the genuine and lawful legislator 
 
 usual force of thought and peculiarity of Ian- the judge, by help of the principle of nulli- 
 
 guage ; he says, " A statement of the instances fication, attaches exceptions of his own at 
 
 in which the authority of Parliament has pleasure. To the extent of these exceptions, 
 
 been, and continues to be, trampled upon by the will of the legislator is in effect frustrated, 
 
 its sworn servants, might fill volumes upon the law repealed." Evidence, vol. iv, chap, 
 
 volumes." Bentham's Evidence, vol. ii, chap, xxv, p. 403. 
 xxv, p. 395. " For thus it is that on pretense of being 
 
 " An equal degree of contempt for the au- declared, laws upon laws, laws fighting with 
 thority of the legislator is manifested by every laws, are made throughout the manufactory 
 application of the principle of nullification, of common, that is, of judge-made law. That 
 On a former occasion, the principle of nulli- B. may receive warning (warning which it 
 fication was considered in its character of an is neither designed or expected should ever 
 engine of fraud ; in respect of its particular reach him), A. must first have been consigned 
 and more immediate effects on each particular to distress or ruin. Gulphs by the side of 
 occasion, to the prejudice of the party having gulphs cover in its whole expanse; the field 
 right on its side. On the present occasion, of jurisprudential law; nor can any of them 
 the character in which it presents itself to take its chance of being closed, till the prop- 
 view, is that of an engine of usurpation." erty or liberty of some involuntary Curtius 
 Evidence, vol. iv, p. 402. has been thrown into it." Evidence, vol. ii, 
 
 " On the part of the judge, the mass of chap, ii, p. 28. 
 
252 GENERAL RULES. 
 
 I shall endeavor briefly to state what I suppose to be the 
 true principles of our law in connection with this subject, and 
 then, by an examination of the adjudged cases, illustrate how 
 far the correct rule has been observed, and how far departed 
 from. 
 
 The duty of the Legislature is to make the law, or a general 
 rule for all cases; that of the judge, to declare and apply the 
 law to particular instances. When a case of doubt arises in 
 regard to a statute, the first duty of the judge is to ascertain 
 the meaning of the legislator who framed it, that is, to construe 
 or to interpret the statute as the legislator himself would have 
 done ; and so long as by any legitimate means the intent of the 
 legislator can be ascertained, the judge is not permitted to seek 
 any other mode of solving the difficulty. But if the language 
 employed is such, or for any other reason the case is such, that 
 the judge cannot pretend to say what the meaning of the law- 
 giver was, his duty becomes different. 
 
 The question is still to be decided, but he must resolve the 
 doubt on some other principle. The judge then ceases to ex- 
 plore and discover the purpose of another mind ; he acts on the 
 case before him by his own intellect, he determines the ques- 
 tion as he thinks it ought to be determined. In doing this he 
 acts, truly, not as a judge, but as a legislator. An attempt has 
 been made to frame a rule : from, the ambiguity of language or 
 other causes, the attempt has failed ; and what the lawgiver 
 has not succeeded in doing, the judge proceeds to do. But, as 
 I have said, this proceeding is only legitimate in cases where 
 the effort to ascertain the intent of the legislator must be aban- 
 doned as hopeless. 
 
 Now, in exercising this truly legislative power, it is evident 
 that two leading considerations will have weight. First, the 
 general policy of a given construction will be contended for ; 
 and, secondly, the hardships of the particular case will be urged. 
 Pressed by these arguments, and really embarrassed by the 
 very greatness of their power, the courts have frequently 
 attempted to define and limit it, by declaring in what cases 
 statutes are to be strictly construed, and in \vhat to be liberally 
 interpreted. Indeed, in no other sense than in this which I 
 
GENERAL RULES. 253 
 
 have here stated, can the terms strict and liberal construction 
 be used ; for to admit as a general thing, that statutes are to be 
 loosely or rigidly construed as the judges think fit, without 
 reference to the intention of the Legislature, in cases where that 
 intention can be arrived at in a legitimate way, is really to 
 place all legislation in the power of the judiciary, or in other 
 words, to efface the line between these two branches of the 
 government. 
 
 But notwithstanding all the efforts which have been made 
 to set bounds to this authority, we shall find, as might naturally 
 be supposed, that a power so liable to abuse has often been 
 warped and perverted; and this we shall better understand 
 when we examine the adjudged cases. We shall see that the 
 exercise of the power has not been confined to its legitimate 
 sphere, those cases where the task of discovering the legisla- 
 tive intent was hopeless; but that the judges, pressed by con- 
 siderations of policy on the one hand and of hardships on the 
 other, have often entirely disregarded all the legitimate modes 
 of discovering the meaning of the lawmaker, and have even 
 decided against that intention expressed as plainly as words 
 can express it. 
 
 I suppose the true rules to be, first, that the intention of* 
 the legislator is to be learned from the words he has used, and 
 the other legitimate aids enumerated in the last chapter ; second, 
 that if that intention is expressed in a manner devoid of contra- 
 diction and ambiguity, there is no room for interpretation or 
 construction, and the judiciary are not at liberty, on considera- 
 tion* of policy or hardship, to depart from the words of the 
 statute ; that they have no right to make exceptions or insert 
 qualifications, however abstract justice or the justice of the par- 
 ticular case may seem to require it. Let us now see how the 
 matter stands upon authority. 
 
 The idea of an authority vested in the judges to disregard 
 the letter of a statute, in order in a given case to attain the ends 
 of justice, is familiar to the authors of the civil law ; and by 
 them this vague and undefined power is called ^Equitas. Puf- 
 fendorff says, Circa rectam applicationem sententice legis ad 
 casus particulares in qua officium judicis vertitur, diligenter 
 
254 THE EQUITY OF THE CIVIL LAW. 
 
 observanda quce communiter dicitur cequitas. Hcec in eo con- 
 sistit, ut prudenter declaretur, casum aliquem peculiaribus vesti- 
 tum circumstantiis a legislator e sub generali lege nonfuisse com- 
 prehensum. Scepenumero enim contingit, ut ex litera legis in 
 applicatione ad casus speciales sequatur absurdum aliquod, eo 
 quod legislators eos ob varietatem ac multitudinem perspicere et 
 peculiariter excipere non potuerint. Cum, autem, nemo prcesu- 
 matur absurda lege constituisse, intelligitur utique legislator tales 
 cases noluisse comprehendere ; ideoque non adversatur legislator i 
 judex, sed potius prudenter voluntatem ejus ex analogia et sensu 
 cceterarum legum colligit, qui universalitatem literce per cequita- 
 tem restringit.* 
 
 This idea of a natural equity to be observed in the construc- 
 tion of a statute, runs through all the great authors of the civil 
 law ; and we have also had occasion to observe it in connection 
 with the distinction between things odious and things favorable, 
 insisted on in the copious extracts from Vattel, in the last chapter. 
 
 From the civil the maxim was imported into the common 
 law. Lord Coke, partly speaking for himself and partly citing 
 Bracton, says, " Equitie is a construction made by the judge, 
 that cases out of the letter of a statute, yet being within the 
 same mischief, or cause of the making of the same, shall be 
 within the same remedie that the statute provideth ; and the 
 reason hereof is for that the lawgivers could not possibly set 
 down all cases in express terms. ^Equitas est convenientia re- 
 rum quce cuncta cocequiparat, et quce in paribus rationibus paria 
 jura et judicia desiderat. And againe, ^Equitas est perfects 
 qucedam ratio quce jus scriptum interpretatur et emendat, nulld 
 scripturd compreliensa^ sed sol/am in verd ratione consistens* 
 JEquitas est quasi cequalitas. Bonus judex secundum cequum 
 et bonum judicat, et cequitatem stricti juri prcefert. Et jus re~ 
 spicit cequitatem" f And the proposition, that in construing a 
 
 * Puffendorff, Elem. Jur. Univ. lib. i, def. tension ; 2, sometimes by restriction ; 3, some- 
 
 xiii, 22. times by implication ; 4, sometimes a disjunc- 
 
 f Coke, Inst. 24 b. live for a copulative ; 5, a copulative for a 
 
 The rules of interpretation given by Lord disjunctive ; 6, the present tense for the 
 
 Chancellor Ellesmere in the Postnati Case are future ; 7, the future for the present ; 8, some- 
 
 often referred to, as exhibiting the latitudinary times by equity out of the reach of the words ; 
 
 ideas of construction that atone time infested 9, sometimes words taken in a contrary sense ; 
 
 the judicial minds of England. He says,"Words 10, sometimes figuratively as continens pro 
 
 are taken and construed 1, sometimes by ex- contento ; and many other like." And of all 
 
THE EQUITY OF THE COMMON LAW. 255 
 
 statute the judges have a right to decide in some cases even in 
 direct contravention of its language, has been repeatedly as- 
 serted and practiced upon by the highest authority, (a) 
 
 these he says, " Examples be infinite, as well in the civil law as common law." Petyt, Jus 
 
 Parl. ch. v, p. 66. 
 
 (a) The Literal Meaning, when Not to ~be Followed. Effects and consequences of a 
 construction are to be considered, and where, from a literal interpretation, an effect 
 would follow contrary to the whole intent and spirit of the statute, the intent and 
 not the literal meaning must be regarded. Ryegate v. Wardsboro, 30 Vt. 746. Thus 
 a statute providing that upon a decision that a pauper had been improperly removed, 
 the town to which he was removed should be reimbursed for the cost of his support, 
 was held not to apply to a case where, the decision not being upon the merits, the 
 town would, by a literal interpretation, be repaid the expense of maintaining its own 
 pauper. Ibid. And where a statute will operate unjustly, or absurd consequences 
 will follow, if the literal meaning is taken, the intention as gathered from the whole 
 will prevail. Ex parte Ellis, 11 Cal. 222, in which it was held that the writ of 
 habeas corpus could not run out of the county, although by the letter of the act it 
 might. And under a statute prohibiting the purchase and holding of real estate by 
 banks, but allowing them to hold mortgages and liens as security for existing debts, 
 a purchase of real estate by a bank at sheriff's sale under an execution for a debt to 
 itself, was held valid. Ingraham v. Speed, 30 Miss. 410. Where the right of appeal 
 was given in equity cases pending in a certain Court on the first day of July, and 
 there could be no such cases pending therein on that day, but there could be on the 
 first Monday of July, it seems the statute should be construed to mean the first Mon- 
 day. Burch v. Newbury, 10 N. Y. 374, per Jewett, J. If following the literal mean- 
 ing will lead to absurd consequences, the literal meaning will be controlled ; e. g., a 
 statute against " wilfully destroying " a fence, was held to apply only to an act which 
 was a trespass. State v. Clark, 5 Dutch. 96. The principle that the intent rather 
 than the letter is to be followed was applied in determining whether an instrument 
 was a " consent " to the erection of a building within the statute as to mechanics' liens, 
 and the writing not being executed with the forms contemplated by the act, and 
 obviously having a different purpose, was held not to be within the statute, in Jersey 
 Co. v. Davison, 5 Dutch. 415. A statute for keeping clear the bed of a stream, and 
 prohibiting the placing any " building, erection, or thing," within a certain distance 
 of its centre, was held not to prohibit the laying of stones along the bottom where it 
 was scooped out by a freshet, so as to raise it to its old height. Colbran v. Barnes, 
 11 C. B. (K S.) 244. Where the Constitution required the vote of a " majority of the 
 electors" of a county at a general election as the pre-requisite of a change of the 
 county seat, held that a majority of those actually voting at such election was suffi- 
 cient, as they must be presumed to be the electors, and as any other construction 
 would lead to absurd consequences. Taylor v. Taylor, 10 Minn. 107 ; see Bayard r. 
 Klinge, 16 Minn. 249. Although in an act imposing joint and several liability for 
 the debts of the corporation upon the trustees the.-eof for default in making and pub- 
 lishing certain annual returns, the terms are broad enough to include debts to an 
 individual trustee, yet such a construction was rejected on the ground of its unjust 
 results. Briggs v. Easterly, 62 Barb. 51. A constitutional provision as to giving 
 canal contracts to the lowest bidder is, it seems, to be construed not according to its 
 strict letter. Frost v. Fay, 3 Lans. 398. 
 
256 STATUTES CONSTRUED AGAINST THEIR LETTER. 
 
 " Acts of Parliament," says Lord Coke, " are to be so con- 
 strued as no man that is innocent and free from injury or 
 wrong be, by a literal construction, punished or endangered."* 
 - So in Maryland, it has been said that the intent and meaning 
 of the makers should be followed, although it may seem to be 
 contrary to the letter of the statute, f " The words of an act," 
 says the Supreme Court of the same State, " may be disre- 
 garded when that is necessary to arrive at the intention of the 
 lawmakers, but not where the act admits of only one interpre- 
 tation." J So, too, in New York, it has been said, that such a 
 construction ought to be put upon a statute as may best an- 
 swer the intention the makers had in view ; and the intention 
 is sometimes to be collected from the cause or necessity of such 
 statute, and sometimes from other circumstances; and when- 
 ever such intention can be discovered, it ought to be followed 
 with reason and discretion in the construction of the statute, 
 although such construction seems contrary to the letter of the 
 statute ; 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. I 
 
 The precise meaning of the rule will be best understood by 
 a more minute reference to the adjudged cases, where a con- 
 struction has been put on laws in opposition to their plain and 
 positive language ; for it is perhaps more in this branch than 
 any other that it may be said, that legal accuracy cannot be 
 attained by any abstract rules, but only by impregnating, or as 
 it were saturating, the mind with judicial decisions, and with 
 that learning tempered by sagacity which so eminently distin- 
 guishes the English and American tribunals. 
 
 By the act of 51 George III, c. 36, it was declared that no 
 person named as a justice of the Cinque Ports should be author- 
 ized to act unless he had taken and subscribed certain oaths, 
 and delivered at some geoeral sessions a certain certificate. A 
 person appointed justice had taken the oath, but had filed no 
 
 * Margate Pier Co. v. Hannam, 3 B. & $ Brown v. Somerville, 8 Maryland, 444, 
 
 Aid. 266. 456. 
 
 f Canal Co v. R. R. Co. 4 Gill & Johns. || Bacon's Abr. Statute I. Jackson v. Col- 
 
 R. 152. In this case many other points as to lins, 3 Cowen, 89, 96 ; People v. Utica Ins. 
 
 statutes and their construction are raised and Co. 15 J. R. 358, 380, 381. 
 decided. 
 
STATUTES CONSTRUED AGAINST Tl 
 
 certificate ; it was held, nevertheless, that the effect of the stat- 
 ute was only to make it unlawful for the justice to act, and 
 not to render his acts invalid.* It was there said, "many per- 
 sons acting as justices of the peace in virtue of offices in cor- 
 porations, have been ousted from their office from some defect 
 in their election or appointment ; and although all acts properly 
 corporate, . and officially done by said persons are void, yet acts 
 done by them as justices, or in a judicial character, have in no 
 instance been thought invalid." 
 
 Again, it has been said, that the words of a statute are not 
 to be construed so as to extend beyond the mischief contemplated 
 by the act, where such construction would be injurious to third 
 persons. So, where an English statute directed in regard to 
 ecclesiastical leases, that all leases therein specified should be 
 'Utterly void and of none effect, to all intents, constructions, and 
 purposes; yet, upon the ground that the object of the statute 
 was to prevent the impoverishing of the successor, it was held 
 that a lease by a dean and chapter, though within the act, was 
 good during the life of the dean.f 
 
 So, where an English statute, 26 Geo. Ill, c. 60, 17, declared 
 that a bill or other instrument of sale of a vessel, which did 
 not recite the certificate of registry, should be utterly null and 
 void to all intents and purposes, it was held that where a bill 
 of sale transferred a ship by way of mortgage without reciting 
 the certificate of registry, the instrument should be treated as 
 void so far forth as it was meant to convey the property in the 
 ship ; but that the mortgagor might be sued upon his personal 
 covenant in the instrument for the repayment of the money 
 lentj 
 
 So, an English statute, 9 Anne, c. 14, 1, declared that all 
 notes, &c.j given for money won at gaming, sliall be utterly void, 
 frustrate, and of none effect, to all intents and purposes what- 
 soever. Notwithstanding this strong language, it was held that 
 a draft accepted for a gaming debt by the loser, and passed by 
 the winner as indorser for a valuable consideration to a third 
 
 * Margate Pier Co. v. Hannam, 3 B. & f Edwards v. Dick, 4 B. & Aid. 212. 
 Aid. 266. This case, as is evident, was de- \ Dwarris, pp. 638 and 639. 
 
 cided mainly on the argumentum ab incon- 
 venienli, or general policy. 
 17 
 
258 STATUTES CONSTRUED AGAINST THEIR LETTER. 
 
 party, was good as against the winner and indorser, on the 
 ground that otherwise a gross frand would be committed.* 
 
 An English statute (2 Geo. Ill, c. 19, 1, and 39 Geo. Ill, 
 c. 34) enacts that no person shall, upon any pretense whatso- 
 ever, take, kill, or have in his possession any partridge, between 
 the first day of February and the first day of September. The 
 defendant had partridges in his possession several days after 
 the first of February ; but the King's Bench refused to construe 
 the statute according to its plain letter, because, as they said, it 
 might lead to the absurd consequence, that a party who should 
 on the last moment of the first of February kill a partridge, 
 would be guilty of an offence by having the same partridge 
 in his possession at the earliest moment of the second of Feb- 
 ruary.f 
 
 The statute 46 Geo. Ill, 4, enacts that every person who 
 shall appraise any estate, real or personal, in expectation of any 
 hire or reward, shall be deemed an appraiser within the act. In 
 construing it, Lord Ellenborough admitted "that if those words 
 are to be construed literally, the consequence will be that 
 every person who, in one single instance only, shall happen to 
 make a valuation, must, without regard to circumstances, be 
 subject to the appraisers' duty ;" and on the ground of the in- 
 convenience and hardships of such construction, held that it was 
 to be limited to the persons who pur sued the calling or occupation 
 of an appraiser. % 
 
 A statute (5 & 6 Win. IV, c. 50, 98) conferred a power 
 of certifying for the costs of a special jury on the court before 
 which an indictment should be "preferred" This was held to 
 mean " tried" on the ground that if the words were taken as 
 they stood, it would be determined that the Legislature had 
 been guilty of a very great omission; for in a great majority of 
 cases it was known that the indictment is preferred before a 
 different court from that by which it is tried. | 
 
 By an English statute (8 & 9 Wm. Ill, c. 70) it was de- 
 
 * E<lwards v. Dick, 4 B. & Aid. 212. This Reg. v. Pembridge, 12 Law J. (1843), part 2, 
 
 seems to be decided on the equity of the par- Q. B. 47 ; contra. Reg. v. Preston, 7 Dowl. P. 
 
 ticular case. C. 593. It is to be noticed that tlie corre- 
 
 f Simpson v. Unwin, 3 B. & Adol. 134. spending clause in a former act, 13 Geo. Ill, 
 
 {Atkinson v. Fell, 5 Maule & S. 240, 241. c. 78, t>5, used the word "tried," instead of 
 
 Rex v. Upper Papworth, 2 East, 413; "preferred." Dwarris, 592. 
 
STATUTES CONSTRUED AGAINST THEIR LETTER. 259 
 
 dared that no servant should gain a settlement in any parish, 
 unless he should continue and abide in the same service for one 
 whole year. But a constructive service, pursuant to a hiring 
 for a year, has been held to confer a settlement ; though this in- 
 terpretation has been repeatedly regretted.* 
 
 So, on a statute declaring that a judge's certificate that an 
 action was really brought to try a right, must be given imme- 
 diately after the- verdict is delivered, it has been held, that the 
 word " immediately " does not mean as soon as ever the verdict 
 is delivered, but that the judge must necessarily have some 
 little time for reflection.f 
 
 So, " null and void " have been construed to mean " voidable" 
 " It is extraordinary," said Lord Denman, " that there should be 
 cases in which it has been held that the words ' null and void ' 
 should not have their usual meaning ; but the word void has 
 certainly been construed as voidable, when the proviso was in- 
 troduced in favor of the party who did not wish to avoid the 
 instrument." J 
 
 In this country, many cases exhibiting the same laxity of 
 construction are to be found. A Massachusetts statute declared 
 all usurious mortgages utterly void / but the court held that this 
 meant void only as against the mortgagor and those holding 
 under him, and that a usurious mortgage could not be avoided 
 by a mere stranger or trespasser.! So, in the same State, the 
 statute of wills provided that all persons, of full age and of 
 sound mind, might dispose of their real estate, as well by last 
 will and testament in writing, as otherwise by any act executed 
 in his or her lifetime. But this language was held not to in- 
 
 O O 
 
 elude married women, on the ground that it was not the design 
 of the Legislature to alter the relation between husband and 
 wife, or the legal effect of that relation. *[ 
 
 * Dwarris, p. 608. Crosley T. Arkwright, 2 T. R. 605 ; Dwarris, 
 
 f Thompson v. Gibson, 8 Mees. & "VVel. pp. 606, 639, & 640. 
 
 288 ; Page v. Pearce, 8 Mees. & Wei. 677. . || Green v. Kemp, 13 Mass. 518 ; affJ. in 
 
 But see Grace v. Clinch, 4 Q. B. 606, and Commonwealth v. Weiher, 3 Met. 445. In 
 
 Shuttleworth v. Cocker, 1 M. & G. 829. Smith 'v. Saxton, 6 Pick. 483, where a statute 
 
 \ Pease v. Morrice, 2 A. & E. 94. See, prohibited sheriffs from filling up process, and 
 
 also, Reg. v. Inhabitants of Fordhare, 1 1 A. & declared that " all such acts done by them 
 
 E. 83 ; Reg. v. Justices of Leicester, 7 B. & G. should be void," an attempt was made to have 
 
 6; Reg. v. Inhabitants of Birmingham, 8 B. the word read voidable ; but it was defeated. 
 
 & G. 29; The King v. Inhabitants of St. ]\ Osgood v. Breed, 12 Mass. 530; Wilbur 
 
 Gregory, 2 Ad. & Ell. 99; Rex v. Inhabitants v. Crane, 13 Pick. 284. 
 
 of Hipswell, 8 B. & C. 466 ; Gye v. Felton, 4 In Vermont, where it was provided by one 
 
 Taunt. 876; Barber v. Dennis, 1 Salk. 68; section of an act, that if an attorney should 
 
200 STATUTES CONSTRUED AGAINST THEIR LETTER. 
 
 So, where a statute gave treble damages against any person 
 who should commit waste on land pending a suit for its recov- 
 ery, the court held that the act did not apply to a party wholly 
 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 pending of the suit. The statute 
 is highly penal, and should therefore be limited in its applica- 
 tion to the object the Legislature had in view." * 
 
 So, in New York, a statute prohibited any sheriff or any 
 deputy sheriff, or any one for them, from purchasing any prop- 
 erty at any execution sale, and declared all purchases so made, 
 void. In an action of ejectment, certain premises had been sold 
 by one deputy sheriff, on an execution issued under a judgment 
 owned by another deputy of the same sheriff, and were bid off ; 
 as was alleged, by the deputy who owned the judgment. It 
 was contended that, under the statute, the purchase was void. 
 It was conceded that if the facts were as alleged, the case came 
 within the letter of the act ; but it was held by the Supreme 
 Court of New York that the statute should not apply, on the 
 ground that the manifest object of the law was to prevent 
 abuse, and to prohibit sheriffs and their deputies in their official 
 capacity, from being purchasers at their own sales, and thus 
 being induced to act corruptly in relation to them ; but that it 
 could never have been intended to place those persons in a 
 worse situation than others as to the collection of their own de- 
 mands.f 
 
 The words, " beyond seas," in a State statute of limitations, 
 incautiously borrowed from an English act, has been construed 
 by the Supreme Court of the United States, to mean out of the 
 State.% So again, in Maryland, an act authorizing attachments 
 
 knowingly receive a greater sum for fees than of forcing the construction of the words of the 
 
 provided for by law, he should pay a tenfold act, in order to avoid so gross an absurdity as 
 
 penalty, and the next section declared that if the literal interpretation would lead us into." 
 
 any officer or other person should receive any Henry v. Tilson, 17 Verm. 479, 486, 487. 
 
 greater fees than provided for by the law, he See, also, The Schooner Harriet, 1 Story, 251, 
 
 should pay a penalty, it was held that the 255, where a word in one section was inserted 
 
 word knowingly was to be construed as incor- in another by construction, 
 pcrated in the latter section; and in regard * Reed v. Davis et al. 8 Pick. 516, 517. 
 
 to another section of the same act, it was said, f Jackson v. Collins, 3 Cowen, 85, 96. 
 
 " The necessity of the case compels us to in- f Murray v. Baker, 3 Wheat. 541; see, 
 
 dude these additional words, at the expense also, Shelby v. Guy, 11 Wheat. 361. 
 
STATUTES CONSTRUED AGAINST THEIR LETTER. 261 
 
 on judgments, to be laid in the hands of any " person or per- 
 sons whatever, corporate or sole," has been held not to include 
 'municipal corporations, they being considered to be excepted 
 on grounds of public policy and convenience, municipal corpo- 
 rations being parts of the State government, exercising dele- 
 gated political powers for public purposes.* 
 
 In the same State, the charter of a cemetery company 
 provided that a certain number of acres of land should be for- 
 ever appropriated and set apart as a cemetery, which, so long as 
 used as such, should not be liable to any tax or public imposition 
 whatever. Notwithstanding this general and sweeping lan- 
 guage, it has been held by the Court of Appeals, that a paving 
 tax for paving the street in front of the property in question, 
 was not embraced in the exemption, on the ground that the 
 intention of the Legislature was to exempt the property from 
 all taxes or charges imposed for the purpose of revenue, but 
 not to relieve it from impositions inseparably incident to the 
 location in regard to other property, f 
 
 A review of the decisions which we have thus grouped 
 together, can hardly fail to bring to the lips of the student the 
 motto of this volume : " Great is the mystery of judicial inter- 
 pretation." Here we find cases in numbers, and the numbers 
 might be easily increased, where laws have been construed, not 
 merely without regard to the language used by the legislator, 
 but in defiance of his expressed will. Qualifications are in- 
 serted, exceptions are made, and omitted cases provided for, 
 and the statute is in truth remolded, by the mere exercise 
 of the judicial authority. It is vain to seek for any principle 
 by which these decisions can be supported, unless it be one 
 which would place all legislation in the power of the judiciary. 
 
 * Mayor of Bait. v. Root, 8 Maryland, 95. on the authority, or weight, of the cases 
 
 See on this point of policy, Divine v. Harvie, determined in the State of New York, where 
 
 7 Monroe, 444; Chealey et al. v. Brewer, 7 it has been held, that an exemption from taxes 
 
 Mass. 259; and Bulkley v. Eckert, 3 Barr. did not include assessments for opening 
 
 (Penn.)Rep. 368. The general doctrine is streets. Matter of the Mayor <fec. of New 
 
 that money in the hands of a public officer, York, 11 Johnson, 81 ; Bleecker v. Ballou, 3 
 
 cannot be arrested at the suit of a private Wendell, 263 ; The People v. Mayor <fec. of 
 
 creditor, on account of the derangement which Brooklyn, 4 Comstock, 429. But the analogy 
 
 would be thus produced in the service of the does not seem complete ; an assessment for 
 
 government. street opening is founded on the idea of 
 
 f Mayor of Baltimore v. Greenmount benefit conferred, and in that point of view 
 
 Cemetery, 7 Md. 517. This case was decided certainly differs from a simple tax. 
 
262 TRUE DUTY OF THE JUDGE. 
 
 They are indeed all condemned by the terse and expressive 
 maxim, divinatio est, non inter pretatio, quce omnino recedit a 
 litera* 
 
 The mode in which these decisions are arrived at is obvious. 
 Take, for instance, the case where the statute declares all 
 gaming paper absolutely void.f The court simply inserts the 
 w^ords, "except in the hands of a lonafide indorsee for value." 
 Take again the case where the statute declares all usurious 
 mortgages void. The court merely incorporates the exception, 
 " except as against a stranger or trespasser.". It is, too, to be 
 observed that these are not cases of contradiction or ambiguity. 
 The words of the statute are perfectly plain and intelligible. 
 There is no propriety in calling the process, construction or 
 interpretation. It consists in inserting a clause, to provide for 
 a class of cases which the court thinks ought, as a matter of 
 justice, to be excepted out of the statute. Nor is there any 
 ground for asserting, that if the subject had been called to the 
 attention of the legislator he would have made the exception. 
 On the contrary, it is utterly impossible to say that the 
 Legislature did not intend to do precisely what it has clone, 
 viz., to establish a sweeping and universal rule, which, it is true, 
 may act hardly in some cases, but which on the other hand 
 certainly diminishes the chances for fraud or perjury to evade 
 the statute. The process, therefore, in these cases, is not 
 obedience to legislative commands : it is not an effort to arrive 
 
 o * 
 
 at the legislative intention ; it is not construction of a doubtful 
 provision ; it is a violation of the w r ords of the statute, in order 
 to make a rule according to the judicial notion of right. It is 
 purely and strictly judicial legislation. And, fortunately, we 
 are not without abundant authorities in our law which steadily, 
 it may be sternly applied, will establish in its proper place the 
 line that separates the judicial from the legislative functions. 
 In analyzing the above cases, it will be found, as I have said, 
 that they almost all consist in simply excepting out of the 
 
 * It is very difficult, in examining these exist. It is only in the application of those 
 
 cases, to accede to the remark of Chief principles, that the difference discovers itself." 
 
 Justice Marshall, that " on the abstract prin- United States v. Fisher et al. 2 Cranch, 358. 
 ciples which govern courts in construing ( Ante, p. 257. 
 
 legislative acts, no difference of opinion can \ Ante, p. 259. 
 
TRUE DUTY OF THE JUDGE. 2C3 
 
 statute, some particular class of cases, either on the ground of 
 policy or hardship, or on the notion that the case before them 
 is a casus omissus, or omission on the part of the Legislature. 
 All these practices have been condemned by the tribunals of 
 both England and America, in language which leaves little to 
 be done but to collect and collate the authorities. " We are 
 bound," says Mr. J. Buller, in an early case in the King's 
 Bench, " to take the act of Parliament as they have made it * 
 a casus omissus can in no case be supplied by a court of 
 law, for that would be to make laws ; nor can I conceive that 
 it is our province to consider whether such a law that has been 
 passed be tyrannical or not." * 
 
 In a case in Massachusetts where it was attempted to evade 
 the absolute prohibition in a statute prohibiting the sale of 
 liquor, by showing that it was sold to be used as medicine, the 
 learned and able Mr. Chief Justice Shaw used this impressive 
 language: "The decisive answer is, that the Legislature has 
 made no such exception; If the law is more restricted in its 
 present form than the Legislature intended, it must be regulated 
 by legislative action." f " It would be going too far," said the 
 Supreme Court of the United States, in a case which we shall 
 presently examine under another head, "to make exceptions 
 which the Legislature has not made." % 
 
 As to cases being decided on the grounds of policy or 
 hardship, the idea has been repeatedly and vigorously con- 
 demned. " Policy," says Mr. Justice Taunton, " is a very 
 questionable and unsatisfactory ground ; because men's minds 
 differ much on the nature and extent of public policy." " The 
 ground of public policy is a very unsafe one ; it is best to 
 adhere to the words used in the act of Parliament." | 
 
 " Arguments drawn from impolicy or inconvenience," says 
 Mr. Justice Story, " ought to have little weight. The only 
 sound principle is to declare ita lex scripta est, to follow and to 
 obey ; nor if a principle so just could be overlooked, could 
 there be well found a more unsafe guide or practice than mere 
 
 * Jones v. Smart, 1 T. R. 44, 52 ; a case f Commonwealth v. Kimball, 24 Pick. 370. 
 on the game laws, and the qualifications t M'lver v. Ragan, 2 Wheat. 25. 
 
 required under them. | The Inhabitants of St. Gregory, Dwarris, 
 
 p. 597. 
 
264 TRUE DUTY OF THE JUDGE. 
 
 y 
 
 policy and convenience. Men on such subjects complexionally 
 differ from each other, the same men differ from themselves at 
 different times. The policy of one age may ill suit the wishes 
 of another ; the law is not subject to such fluctuations." * 
 
 So, the idea that any regard is to be paid to the consequences 
 that may flow from a given construction, has been rejected 
 in very decided language. " I cannot tell what consequences," 
 says Patteson J., " may result from the construction which we 
 must put upon the statute ; but if mischievous, they must be 
 remedied by the Legislature."f " A court of law," says Lord 
 Abinger, "ought not to be influenced or governed by any 
 notions of hardship ; cases may require legislative interference, 
 but judges cannot modify the rules of law." J 
 
 When in a case on the rates in England, the question was 
 whether the inhabitants of Sergeant's Inn should be rated, and 
 the hardship of the case was dwelt on, Lord Campbell, C. J., said, 
 " Hardship can only be urged before us, when we are construing 
 doubtful language, to assist us in getting at the real intention 
 of the Legislature. Here we think that the language imposing 
 the liability is not doubtful." And the rate was held good.) 
 
 In Massachusetts, a statute provided that where a person 
 charged in execution desired to take the poor debtor's oath, in 
 order to obtain his liberation from imprisonment, the keeper of 
 the prison should apply to a justice, and a notice " should be 
 served on the creditor or creditors, if he, she, or they were with- 
 in the commonwealth," and it was held that notice must be 
 served on all the creditors. "It is said," said Shaw, C. J., " that 
 this construction will be attended with great inconvenience, es- 
 pecially where the creditors are numerous, and could not have 
 been intended by the Legislature. The argument from incon- 
 venience may have considerable weight upon a question of con- 
 struction, where the language is doubtful ; it is not to be pre- 
 sumed, upon doubtful language, that the Legislature intended to 
 
 * Conflict of Laws, 17. " It is not for \ Rhodes v. Smethurst, 4 Mees. & W. 63. 
 
 courts of justice, proprio marie to provide for See to same point, Hall v. Franklin, 3 Mees. 
 
 all the detects or mischiefs of imperfect legis- & Wels. 259. 
 
 lation ;" per Story, J., Smith-v. Rues, 2 Sumn. | Moss v. Commissioners of Sewers, 4 Ellis 
 
 354 > 355. <fc Black. (Q. B.) 670, 679. 
 
 f The Queen v. Justices of Lancashire, 11 
 A. & E. 157. 
 
TRUE DUTY OF THE JUDGE. 265 
 
 establish a rule of action which would be attended with incon- 
 venience. But where the language is clear, and where of course 
 the intent is manifest, the court is not at liberty to be governed 
 by considerations of inconvenience." * " Inconvenience can have 
 weight in the construction of a statute but in doubtful cases."f 
 
 " By the rules which are laid down in England," says the 
 Supreme Court of the United States, " for the construction of 
 statutes, and the latitude which has been indulged in their ap- 
 plication, the British judges have assumed a legislative power 
 and on the pretense of judical exposition, have, in fact, made a 
 great portion of the statute law of the kingdom. Of those rules 
 of construction, none can be more dangerous, than that which, 
 distinguishing between the intent and the words of the Legis- 
 lature, declares, that a case not within the meaning of a statute 
 according to the opinion of the judges, shall not be embraced 
 within the operation of statute, although it is clearly within the 
 words ; or, vice versa, that a case within the meaning, though 
 not within the words, shall be embraced. We should invariably 
 deem it our duty to defer to the expression of the Legislature, to 
 the letter of the statute, when free from ambiguity and doubt, 
 without indulging in speculations, either upon the impropriety 
 or hardship of laws." J 
 
 Indeed, the idea that the judges in administering the written 
 law, can mold it and warp it according to their notions, not of 
 what the legislator said, not even of what he meant, but of what 
 in their judgment he ought to have meant, in other words, ac- 
 cording to their own ideas of policy, wisdom, or expediency, 
 is so obviously untenable that it is quite apparent that it never 
 could have taken rise, except at a time when the division lines be- ; 
 t ween the great powers of government were but feebly drawn, and 
 their importance very imperfectly understood. In the present con- 
 dition of our political systems, this practice cannot be acted on 
 with either propriety or safety. It must inevitably be attended 
 by two great evils. It gives the judiciary a power almost arbi- 
 trary and which cannot fail to be abused, and it leads to un- 
 
 * Putnam v. Longley, 11 Pick. 487, 490. \ Priestman v. The United States, 4 Dal. 
 
 f Per Parsons, C. J., Gore v. Brazier, 3 la?, 30, n. (1.) per Chase, J. 
 Mass. 523, n. 539; s. P. Langdon v. Potter, 3 
 Mass. 215, 221. 
 
266 STRICT CONSTRUCTION. 
 
 bounded carelessness in the matter of legislation. There can 
 be little inducement to caution or precision in drawing legisla- 
 tive enactments, if it is understood that all errors can be supplied, 
 and, indeed, all provisions be overridden, by the mere exercise 
 of the powers of judicial construction. 
 
 These considerations apply, as I have said, where the lan- 
 guage of statutes is clear. If, however, by reason of ambiguity 
 or contradiction, the intent cannot be ascertained, then, as I have 
 said, the case alters, and the duty of the judge is very different. 
 The judge must decide ; but the law has not spoken. It is evi- 
 dent that his functions necessarily become to a certain extent 
 legislative. There is no alternative, he must make the rule in 
 a new matter ; and these cases present some of the most embar- 
 rassing questions that can occur in the whole range of juridical 
 science ; for to the responsibilities of a judge they add those of 
 a legislator. To these cases the rules and nomenclature of strict 
 and equitable construction properly apply, and to these they 
 should carefully be restricted. Where the judge has an admit- 
 ted and necessary discretion, considerations of policy and wis- 
 dom, hardship and inconvenience, become as indispensable as 
 they are out of place where the matter has been definitively de- 
 cided by the Legislature. Such, however, has not been the 
 language of our law ; and the notion of a restricted or an en- 
 larged construction has been introduced and practiced upon 
 rather with reference to the kind or class of laws to which the 
 statute in question belonged than to the clearness or ambiguity 
 of the letter of the enactment. The subject will be better un- 
 derstood after a careful examination of the decisions that have 
 been made upon various classes of statutes. 
 
 We shall, then, first consider in what cases it has been held 
 that statutes are to be strictly construed, next examine the cases 
 in which it has been said that they are to be equitably inter- 
 preted, and thus finally endeavor to discover the true boundaries 
 of the judicial and legislative attributes. 
 
 Statutes Conflicting with a Constitution or with a Fundamental 
 Law. It has been said that it is a safe and wholesome rule, to 
 adopt the restricted construction of a statute when a more lib- 
 
STATUTES STRICTLY CONSTRUED. 267 
 
 eral one will bring us in conflict with the fundamental law.* (a) 
 So in England it has been held that acts of Parliament which 
 
 O- 
 
 take away the trial by jury, or abridge the liberty of the sub- 
 ject, ought to receive a strict construction. f So there, too, it 
 has been said in regard to the Court of King's Bench, that it 
 cannot be ousted of its jurisdiction but by express words or by 
 necessary' implication, any more than an heir at law of his in- 
 heritance. Yet where a clause was clearly inserted for the bene- 
 fit of parties prosecuted, saying, that it " shall and may " be law- 
 ful for justices to hear complaints under the statute, it was held 
 that the penalty could be recovered only before a justice, because 
 otherwise the defendant might be saddled with unmerciful costs 
 by a merciless prosecutor. 
 
 Statutes in Derogation of the Common Law. It has been 
 repeatedly declared that statutes which alter common-law 
 remedies or affect common-law rights must be strictly complied 
 with. (5) Says Lord Coke : " The wisedom of the judges and 
 
 * People v. Board of Education of Brook- \ Gates v. Knight, 3 Term R. 442. See 
 
 lyn, 13 Barb. 400, 409. Crisp v. Banbury, 8 Bing. 394, where it was 
 
 f Looker v. Halcomb, 4 Bing. 183 ; Dwar- held that proceedings against the trustee of a 
 
 ris, p. 646; a case on the act of 1 Geo. IV, c. benefit society could be taken by arbitration 
 
 56, empowering justices of the peace to award only, the courts being ousted of their jurisdic- 
 
 satisfaction for damages done by malicious tion by the express words of the act. 
 and wilful trespassers. 
 
 () Of two constructions that must be adopted which will render the statute consti- 
 tutional, even though it be not the most obvious, provided that violence is not done 
 to the language and terms of the act, French v. Teschemaker, 24 Cal. 518 ; People 
 v. San Francisco, &c. R. R. 35 Cal. 606 ; Bigelow v. West, Wise. R. R. 27 Wise. 478 ; 
 and if a statute is capable of a construction which will make it constitutional, this 
 construction will and must be adopted, Buncombe v. Prindle, 12 Iowa 1 ; Colwell v. 
 May's Landing, &c. Co. 4 C. E. Green. 245 ; Iowa, &c. Co. v. Webster County, 21 Iowa, 
 221 ; Roosevelt v. Godard, 52 Barb. 533. But a construction must not be forced 
 upon a statute doing violence to the plain import of its language, in order to render 
 it constitutional. A court will doubtless and should, on the principle of ut res magis 
 valeat, strive to uphold a statute by any reasonable method of interpretation, and even 
 by being astute in finding a valid meaning and intent, but it cannot make a new 
 statute. As an illustration of this principle, see the celebrated legal tender case of 
 Hepburn v. Griswold, 8 Wall. 603, which has not been overruled so far as it proceeds 
 upon this doctrine. 
 
 (&) Statutes in Derogation of the Common Law to be Strictly Construed. That stat- 
 utes are not to be presumed to alter the common law farther than they expressly declare, 
 see Sullivan v. La Cross, &c. Co. 10 Minn. 386 ; Blackman v. Wheaton, 13 Minn. 326 ; 
 Bennett v. Hollman, 44 Miss. 323. And a transaction must be both within the letter 
 and spirit of the statute which derogates from the common law in order to be 
 governed by it. Dewey v. Goodenough, 56 Barb. 54. Even a constitutional pro- 
 
268 STATUTES STRICTLY CONSTRUED. 
 
 sages of the law Lave alwayes suppressed new and subtile in- 
 ventions in derogation of the common law." * So of a statute 
 
 * Coke, Inst. 282, b. L. 3, 485; Crayton v. Hunger, 11 Texas, 234. 
 
 vision in derogation of the common law, it is said, ought not to be extended by con- 
 struction, e. g., a provision securing to married women their separate property. 
 Brown v. Fifield, 4 Mich. 322. This particular doctrine, however, is plainly opposed 
 to the whole theory of State government ; it makes the common law in theory superior 
 to the Constitution, and represents the Constitution as something imposed upon and 
 drawing its life from the common law. On the contrary, the true conception of the 
 State government regards the Constitution as the fundamental law of the State, and 
 the common law as existing in and part of the jurisprudence of the State by the ex- 
 press or implied consent of that Constitution; in other words, the Constitution 
 recognizes the common law, and not the common law the Constitution. 
 
 There has been great conflict of opinion as to the rule of construction which 
 should be applied to the statutes altering the legal status of married women and giv- 
 ing them additional power over their property. Some courts, because these statutes 
 change the common law, have said that they should be construed strictly, and not 
 extended beyond the letter. Perkins v. Perkins, 62 Barb. 531. Other courts regard- 
 ing them as highly remedial, and looking at the general intent, have been inclined 
 to follow their spirit beyond the letter. De Vries v. Conklin, 22 Mich. 255. We 
 shall add a few observations upon these statutes, and upon the principle of construc- 
 tion, at the close of this note, simply saying that it is impossible to reconcile the 
 decisions upon any principle, and some of them are undoubtedly wrong. The reader 
 should be cautious in relying upon these decisions, for many of them have been re- 
 versed on appeal, and not a few of them have been overruled, this being notably the 
 case in New York. As a general proposition, although there are exceptions upon 
 one or two points of construction, the New York Court of Appeals, since the passage 
 of the first act in 1848-9, has given these statutes a liberal construction, following 
 their intent with reasonable freedom, and refusing to apply the rule which is the 
 subject-matter of this note, and in doing so has many times reversed the decision of 
 the supreme and other inferior courts in that State which were, as a whole, inclined 
 to construe the statutes strictly. Thus, in a recent case, the Supreme Court of N. Y. 
 said, that the acts authorizing married women to contract in relation to their sepa- 
 rate estate, and to sue and to be sued, are to be construed strictly, and refer to, and 
 recognize such forms of contract only, and such forms of action and kinds of remedy 
 as were in existence and legal in respect to such persons and their property at the 
 time the statutes were passed ; and a wife intending thereby to become her husband's 
 surety, having indorsed his promissory note, and having added to the indorsement 
 this stipulation, " For value received I hereby charge my individual property with 
 the payment of this note," and an ordinary legal action having been brought against 
 her, seeking to recover an ordinary common-law personal judgment for the amount of 
 the note, the court held that the action could not be maintained, that the only action 
 contemplated by the statute was a suit in equity to charge the separate property of 
 the wife, and that the stipulation quoted was not sufficiently specific in pointing out 
 and describing the property intended to be affected with the lien to create any equi- 
 table charge which could be enforced according to the settled doctrines of equity. 
 Corn Exchange Ins. Co. v. Babcock, 57 Barb. 222. It is very plain that this decision 
 nullified the statute, for it virtually said that after all its labors, and notwithstanding 
 
STATUTES STRICTLY CONSTRUED. 2GQ 
 
 extending the common-law right of distress by preferring the 
 landlord over an execution creditor, provided notice was given 
 
 the strong express provisions it had enacted, the Legislature had simply left the law 
 as to married women's contracts and the remedies to enforce them exactly where it 
 was when the statute was passed. On appeal, the Court of Appeals held that the 
 statutes were to be construed liberally as remedial statutes according to their fair 
 intent ; that they provided for a legal action and a personal judgment against a 
 married woman ; that they simply required as a condition to her liability, if the con- 
 tract was not made in her business or was not for the benefit of her property, that she 
 should indicate in the contract an intention to charge her property ; and that the 
 statute had nothing to do with the old equitable doctrines as to remedy against the 
 wife's property instead of against her personally. Corn Exch. Ins. Co. v. Babcock, 
 42 N. Y. 613. We have thus stated these two decisions at large, because they illus- 
 trate in a striking manner the working of the rule that statutes in derogation of the 
 common law are to be construed strictly, and show how an application of it may 
 override positive mandates of a Legislature and destroy a highly remedial measure, the 
 intent and general object of which were as clear as could be made by appropriate 
 language. 
 
 We give other examples of statutes to which the rule in question has been ap- 
 plied, and in which it has been held, and often with plain propriety, that the con- 
 struction must be strict ; a statute providing for constructive service of process, 
 Stewart v. Stringer, 41 Mo. 400 ; Gray v. Larrimore, 2 Abb. U. S. R. 542 ; authoriz- 
 ing one to be a witness in his own cause, Warner v. Fowler, 8 Md. 25 ; Dwelly v. 
 Dwelly, 46 Me. 377; relaxing the rule of evidence as to what constitutes an adverse 
 possession, Thistle v. Frostburg Coal Co. 10 Md. 129 ; creating statutory remedies 
 different from those at the common law, Bailey v. Bryan, 3 Jones Law, 357 ; e. g., 
 giving mechanics a lien on chattel interests, Esterley's Appeal, 54 Penn. St. 192 ; 
 giving a summary mode of obtaining possession of land, Baldwin v. Cooley, 1 Rich. 
 N. S. 256 ; providing for sale of land of decedent for payment of debts, Hollman v. 
 Bennett, 44 Miss. 323 ; providing for arbitrations, Burnside v. Whitney, 21 N. Y. 
 148 ; but per contra see Tuskaloosa Bridge Co. v. Jemison, 33 Ala. 476 ; changing 
 the commercial law, Crowell v. Van Bebber, 18 La. Ann. 637 ; allowing a debtor of 
 a judgment debtor to pay his debt to the sheriff in discharge thereof, Howey v. Mil- 
 ler, 67 N. C. 459 ; giving a remedy against public officers by motion on their official 
 bond, Hearn v. Ewin, 3 Cold. 399. 
 
 Statutory remedies, especially when the right to be enforced was unknown at the 
 common law, are to be followed with strictness both as to the methods to be pursued 
 and the cases to which they are applied, Lease v. Vance, 28 Iowa, 509 ; Bailey v. 
 Bryan, 3 Jones Law, 357 ; Banks v. Darden, 18 Geo. 318) ; must be " substantially " 
 followed, Ham v. Steamboat Hamburg, 2 Clarke (la.), 460 ; People v. Gates, 57 Barb. 
 291 ; as illustrations of such remedies and of the rule applied to them, statutory 
 power of courts under a special statute, e. g., to relieve from disability, State v. 
 Woodson, 41 Mo. 227 ; conferring additional powei on justices of the peace, O'Brian 
 v. State, 12 Ind. 369; allowing constructive service, Stewart v. Stringer, 41 Mo. 
 400 ; allowing sale of property for taxes, every provision having the semblance of 
 benefit to owner must be complied with, Newell v. Wheeler, 48 K Y. 486 ; tax pro- 
 ceedings, Harley v. Ramsey, 49 Mo. 309 ; Abbott v. Doling, 49 Mo. 302 ; one who 
 
270 STATUTES STRICTLY CONSTRUED. 
 
 to the officer of rent due before the sale, it was held that being 
 in derogation of the common law it must be strictly pursued, 
 and that a notice after the sale would not answer.* 
 
 * Bussing v. Bushnell, 6 Hill, 382. 
 
 pursues a statutory remedy waives all objections to the constitutionality of the statute 
 in respect of the conditions which it imposes, Burrows v. Bashford, 22 Wise. 103. 
 
 There are many cases in which the court has given little weight to the rule under 
 consideration, and, regarding the statute as remedial, has rather favored than re- 
 stricted its operation. Thus it has been said that statutes giving mechanics a lien 
 are not to be construed strictissimi juris, but so as to do substantial justice, Putnam 
 v. Ross, 46 Mo. 337 ; and are even to be construed liberally to advance the remedy, 
 Oster v. Rabeneau, 46 Mo. 595 ; Buchanan v. Smith, 43 Miss. 90. A summary 
 remedy by landlord and tenant process seems to have been held remedial, and to 
 have been treated liberally, in Jackson v. Warren, 32 111. 331. 
 
 The same law may be liberally construed as to some purposes, and strictly as to 
 others ; thus a mechanics' lien law will be strictly construed so far as it imposes a 
 lien on property on account of work for which the owner did not contract. Jersey 
 Co. v. Davison, 5 Dutch. 415. Laws giving a lien to certain classes of creditors in 
 cases of insolvency are to be construed with reasonable strictness. Chapin v. Persse 
 &c. Works, 30 Conn. 461 (mechanics' lien law). 
 
 It was said in a recent case by the N. Y. Court of Appeals, that a statute, though 
 in derogation of the common law, if it is not penal or in derogation of natural right, 
 is to be fairly, if not even liberally construed ; e. g., the phrase " any goods or mer- 
 chandise whatsoever" in the act of Congress of March 3, 1851, limiting the liability 
 of ship owners, was held to include baggage. Chamberlain v. Western Trans. Co. 
 44 N. Y. 305. 
 
 This we believe to be the true doctrine, and it suggests a few observations upon 
 the rule under consideration. The rule that statutes in derogation of the common 
 law are to be strictly construed, was introduced at an early day, when the common 
 law was in its integrity ; when courts and judges and writers like Coke, ignorant of 
 every other system of jurisprudence, spoke of it as the perfection of human wisdom, 
 atid were jealous of every attempt of Parliament to change it in the minutest particu- 
 lar, and defended its most outrageous provisions by arguments which to us are. the 
 perfection of unreason and absurdity; when Parliament itself very seldom undertook 
 to modify or add to it. And it would seem that modern courts and judges have re- 
 peated the rule without any knowledge of its origin and without any thought of the 
 enormous changes in the relations between the courts and the Legislature which 
 have taken place since the rule was promulgated. In fact, the reason for the rule, or 
 rather the occasion of it, for there never was any reason for it, has entirely passed 
 away. It is a demonstrable proposition, that there is hardly a rule or doctrine of 
 positive practical jurisprudence in England or in the United States to-day, which is 
 not the result, in part at least, of legislation ; hardly a rule or doctrine of the original 
 common law which has not been abolished, or changed, or modified by statute. 
 Furthermore, it is conceded that the ancient conception as to the perfection of the 
 common law was absurdly untrue. The great mass of its practical rules as to prop- 
 erty, as to persons, as to obligations, and as to remedies, were arbitrary, unjust, cum- 
 bersome, barbarous. For the last generation the English Parliament and our State 
 Legislatures have been busy in abolishing these common-law rules, and in substitut- 
 
STATUTES STRICTLY CONSTRUED. 271 
 
 So, where a statute giving a summary proceeding to recover 
 possession of land, directs a trial by jury, a jury cannot be 
 waived even by consent. In this case it was said, " The statu- 
 tory remedy by way of a summary proceeding is in derogation 
 of the common-law remedy by action, and must be strictly pur- 
 sued. A peculiar and limited jurisdiction is thereby conferred 
 
 ing new ones- by means of statutes. That all tliis remedial work, all this benign and 
 necessary legislative endeavor to create a jurisprudence scientific in form and adapted 
 to the wants of the age, should be hampered, and sometimes thwarted by a parrot- 
 like repetition and unreflecting application of the old judicial maxim that statutes in 
 derogation of the common law are to be strictly construed, is, to say the least, 
 absurd. The statutes in regard to married women are an excellent illustration of 
 this truth. The common law upon this subject was to the last degree barbarous- 
 The Legislature of every State in the Union has recognized this barbarous character 
 of that law, and has, to a greater or less extent, modified it, and in many instances 
 utterly abolished it. The unanimity on the subject is complete. There is not an 
 instance of a Legislature retracting its steps ; on the contrary, any change has been 
 in the direction of further amendment. These statutes are in the highest degree 
 remedial, and, although many of them are carelessly drawn, their general intent and 
 object are plain beyond the possibility of doubt or question ; they remove an enor- 
 mous wrong which had disfigured our jurisprudence and our civilization. In the 
 face of all this, many courts and judges have attempted to defeat this great reform 
 by pronouncing the statutes to be in derogation of the common law, and therefore to 
 be confined in their operation to the very letter, and in not a few instances this letter 
 has been disregarded and overruled. But, on the whole, the attempt has been un- 
 successful, and the statutes have been treated as remedial, and have been carried out 
 fairly and reasonably according to their spirit. 
 
 What, then, is the true limit and application of the rule ? With all the gross im- 
 perfection of the common law, it did contain certain grand principles, and these 
 principles had been worked out into many practical rules both of primary right and 
 of procedure, which protected personal rights, rights of property, of life, of liberty, 
 of body and limb, against the encroachments both of government and of private 
 individuals. This was the great glory of the common law. Any statutes which 
 should take away, change, or diminish these rights should be strictly construed. To 
 this extent the rule is in the highest degree valuable, not because such statutes " are 
 in derogation of the common law," but because they oppose the overwhelming power 
 of the government to the feeble power of resistance of the individual, and it is the 
 duty of courts under such circumstances to guard the individual as far as is just and 
 legal, or, in other words, to preserve the individual from having his personal rights 
 taken away by any means that are not strictly legal. 
 
 Except in the class of cases last mentioned, the rule has become obsolete; the 
 form of verbal reasoning which once supported it has vanished ; and the rule itself 
 should be abolished. 
 
 Statutes affirming the common law are to be construed as to their consequences 
 in accordance with the common law ; e. g., where a statute prohibited divorce on the 
 confession of the parties, this was held not to render confessions inadmissible in evi- 
 dence. Baker v. Baker, 13 Cal. 87. 
 
272 STATUTES STRICTLY CONSTRUED. 
 
 on certain magistrates, which can be exercised only in the way 
 prescribed. They have no jurisdiction to try the cause except 
 by the mode pointed out." * 
 
 So it has been said, that statutes in derogation of the com- 
 mon-law rules of evidence should be so construed if possible as 
 to preserve the principles deemed essential in the reception of 
 testimony.f Thus it has been held in Maryland, that an act 
 permitting a party to prove his own account by oath or affir- 
 mation is in derogation of the common law and, like all such 
 legislation, to be construed strictly. J So again it has been said, 
 that statutes exempting portions of a debtor's property from, lia- 
 bility for his debts are in derogation of the common law, and 
 not to be extended by an equitable construction ; and it has 
 been held that where a statute declared a team should be ex- 
 empt from execution this did not exempt the necessary food for 
 them, although a previous act of exemption did exempt a cow 
 and two swine and the necessary food. || So, too, acts restrict- 
 ive of common-law rights, as giving exclusive power to port- 
 wardens to survey vessels unfit to go to sea, and to decide on 
 the extent of repairs wanted, are to be construed strictly. ^[ 
 
 Where a statute for the more effectual protection of prop-* 
 erty of married women provided, " that any married female 
 might take by inheritance or by gift, grant, devise, or bequest 
 from any person other than her husband, and hold to her sole 
 and separate use, and convey and devise real and personal 
 property, and any interest or estate therein, and the rents, 
 issues, and profits thereof, in the same manner and with the 
 like effect as if she were unmarried," it was held that the pro- 
 vision to convey should be limited, like the provision to take, 
 to persons other than her husband, in order to prevent a wife 
 from surrendering her dower right to her husband, and also to 
 " preserve, to some extent, that invaluable principle of the 
 common law by which husband and wife are regarded, during 
 coverture, as one person, incapable of contracting with and con- 
 veying lands to each other."** 
 
 * Benjamin v. Benjamin, 1 Seld. 383. It || Rue v. Alter, 5 Denio, 119. 
 
 will be observed, however, that the opinion ^[ Portwardens of N. Y. v. Cartwright, 4 
 
 in this case is obiter. Sandf. 236. 
 
 f The People v. Hadden, 3 Denio, 220. ** Graham v. Van Wyck, 14 Barbour, 531, 
 
 \ Warner v. Fowler, 8 Maryland, 25 ; 582. 
 Dyson v. West's Extc. 1 Har. and J. 567. 
 
THE COMMON LAW. 273 
 
 To understand the meaning and present value of the rule 
 that statutes in derogation of the common law are to be strictly 
 construed, we must keep in mind the feelings of our ancestors 
 in regard to that system of jurisprudence. They invariably 
 spoke of it with a reverential awe, blended with a tender 
 attachment. Says Lord Coke, " This is another strong argu- 
 ment in law, Niliil quod est contra rationem est licitum ; for 
 reason is the life of the law ; nay, the common law itselfe is 
 nothing else but reason, which is to be understood by an arti- 
 ficiall perfection of reason gotten by long study, observation, 
 and experience, and not of every man's natural reason. This 
 legall reason est summa ratio / " * and again, " De common droit 
 of common right this is by the common law ; because the 
 common law is the best and most common birthright that the 
 subject hath for the safeguard and defence not only of his 
 goods, lands, and revenues, but of his wife and children." * 
 " The common law of England sometimes is called right, 
 sometimes common right, and sometimes communis justitia. In 
 the grand charter, the common law is called right. Rectum 
 nulli vendemus, nulli negabimus aut differ emus justitiam vel 
 rectum" f And again, says an old reporter, " The statute law 
 is like a tyrant, where he comes he makes all void ; but the 
 common law is like a nursing father, makes only void that part 
 where the fault is, and preserves the rest." % 
 
 It is difficult, if not impossible, now to understand this en- 
 thusiastic loyalty to a body of law, the most peculiar features 
 of which the activity of the present generation has been 
 largely occupied in uprooting and destroying. But to our 
 ancestors the common law represented the old customs of the 
 country, the ancient landmarks of their property ; and, what 
 was more dear to them still, the common law as opposed to 
 
 * Coke, Insf. 97 b. to an act of Parliament.' Atkyiis, 1, 33, 
 
 \ Coke, Inst. 142 a. Superior ? how so ! The reason is not the 
 
 \ 1 Mod. 35 ; Collins v. Blantern, 2 Wils. less brilliu.it for being unintelligible. ' It 
 
 351 ; Dwarris, 638. It is curious to contrast works itself pure from the fountains of jus- 
 
 with these tender laudations of the old law, tice : ' fountains abundant on the ground floor 
 
 Bentham's savage denunciation of the same of the great hall, unknown (it seems) above 
 
 king, 
 laws ' (says he in so many words) ' is superior diciai Evidence, vol. iv. 
 
 18 
 
274 TIIE COMMON LAW. 
 
 the civil law represented, imperfectly it is true, that irrepressi- 
 ble desire for absolute liberty of thought and speech and 
 action the chief glory of our race. This is the reason why 
 the common law is the subject of the fervid eulogy of our 
 ancestors, and why the courts saw fit to regard every statutory 
 innovation on its ancient observances with distrust and disfavor. 
 
 But in regard to the common law now, while insisting 
 strenuously upon the propriety in all cases of adhering strictly 
 to the expressed intention of the Legislature, let us not attach 
 too much value to maxims which really belong to another age. 
 The condition of things has very essentially altered since the 
 time of Lord Coke. The procedure of the law in which he 
 gloried is almost wholly effaced; as far as it relates to real 
 estate, its maxims are in a great measure abrogated ; in regard 
 even to private relations, its doctrines are materially changed, 
 and the liberties of that portion of our race at least which 
 occupies American soil, rest upon a surer basis than ancient 
 customs. It would appear, therefore, that the doctrine that 
 statutes in derogation of the common law are to be strictly 
 construed, has now truly no solid foundation in our jurispru- 
 dence ; and, though it will long, no doubt, be familiar to the 
 forensic ear, that there is really no reason whatever why the 
 innovating statutes of our day should be regarded with any 
 peculiar severity, or be subjected to any particularly stringent 
 rules of interpretation, because they abrogate some ancient 
 rule of that renowned, but somewhat obsolete, system of juris 
 prudence.* 
 
 These ideas have indeed been already partially sanctioned 
 by judicial authority. The Supreme Court of Massachusetts 
 has held this language : " It is said that statutes made in dero- 
 gation of the common law are to be construed strictly. This 
 is true, but they are also to be construed sensibly, and with a 
 view to the object aimed at by the Legislature." And so it 
 was held that a statute exempting one cow and one swine from 
 exemption, applied to the animal whether alive or dead, f In 
 
 * The New York Code of Procedure, 46*7, in derogation of that law are to be strictly 
 says, " The rule of common law that statutes construed, has no application to this act." 
 
 f Gibson v. Jenney, 15 Mass. 205, 203. 
 
STATUTES STRICTLY CONSTRUED. 275 
 
 another case the same court said : " The rules of the common 
 law are not to be changed by doubtful implication ; " * and to 
 this extent the idea of the sanctity of the old jurisprudence 
 may safely be admitted. An ancient and settled system ought 
 not to be overturned, except by clear, unambiguous, and per- 
 emptory language. 
 
 While on this subject, I may refer with advantage to the 
 decisions made in New York upon the statute giving landlords 
 summary proceedings to recovery possession of premises where 
 tenants hold over. Before the passage of that statute (13 April, 
 1820), the remedy where the tenant held over was expensive 
 and dilatory ; but in one case under the law it was held, that 
 this being a summary proceeding in derogation of the common 
 law, the statute should be strictly pursued.f In another case, 
 however, it was said, " The Legislature have prescribed a sum- 
 mary proceeding calculated to save rights of parties, and insure 
 a speedy decision. This remedial act must be construed libe- 
 rally, to carry into effect the intent by suppressing the mischief, 
 and advancing the remedy." Finally, in another case, it was 
 said that the act was to be construed liberally, in looking to the 
 remedy so as to make it effectual, but strictly and rigidly in scan- 
 ning the proceedings to attain that remedy. J Whether this last 
 nice distinction can be carried out, I am not prepared to say ; but 
 these cases appear to furnish a good illustration of the confusion 
 likely to result from the assumption of power to construe a 
 statute strictly or liberally as circumstances seem to require. ^f 
 
 Statutes prescribing Forms of Procedure, or Modes of Proof. 
 In regard to these the maxim holds good, Non olservata forma, 
 infertur adnullatio actus.** So, where a statute declared, " that 
 the form of proceedings set forth in the schedule should be 
 used," a material variance from the form was held fatal.f f 
 
 Of the statutes of the class now under consideration the 
 most marked are the statutes of frauds, of wills, and of limita- 
 tions. In these cases the proof, or the procedure required by 
 the law is rigidly exacted, the restriction strictly insisted on 
 
 * Wilbur v. Crane, 13 Pick. 284, 290. If See also in regard to this statute, Roach 
 
 f Farrington v. Morgan, 20 Wend. 207. v. Cozine, 9 Wend. 227. 
 ' Lynde v. Noble, ^0 J. R. 80, 82. ** 2 In4. 388; Dwarris, 611. 
 
 Smith v. Moffat, 1 Barb. S. C. R. 65. ff Davison v. Gill, 1 East, 64. 
 
276 STATUTE OF FRAUDS. 
 
 without regard to the facts or the hardship of the case ; and 
 this with abundant reason, for it is the evident intention of 
 these statutes to prescribe fixed forms or rules to guard against 
 certain abuses likely to occur from the absence of an arbitrary 
 and peremptory provision ; and a liberal or equitable construc- 
 tion of the statute would completely defeat its object by letting 
 in precisely the kind of testimony that the act means to ex- 
 clude. The New York statute of frauds declares, that " when- 
 ever goods are sold at public auction, and the auctioneer shall 
 at the time of sale" make a memorandum, such memorandum 
 shall be considered as a note of the sale for the purpose of 
 charging both parties. It has been held that this provision 
 must be strictly construed and strictly complied with, and that 
 the memorandum must be completed by the proper entries in 
 the proper book as soon as the goods are struck down to the 
 purchaser, and before the auctioneer enters upon any other 
 business or transaction whatever.* Such, too, is the general 
 construction of acts permitting or requiring instruments to be re- 
 corded, and giving priority according to the date of the registry. 
 Efforts have, indeed, repeatedly been made, especially in 
 courts of equity, to get rid of the rigor of these statutes, and 
 to a certain extent with success, as we shall see again when we 
 come to consider the subject of the equity of a statute, on the 
 ground, in regard to the registry acts, that enactments which 
 were intended to prevent frauds should never be used as a 
 means to cover them, and in regard to the statute of frauds, 
 that as it was made with a design to prevent perjury and con- 
 tradiction of testimony, the cases not liable to those mischiefs 
 should be exempted from its severe operation.f But these de- 
 cisions have been greatly regretted as breaking in upon and 
 diminishing the utility of these statutes ; and the sound opinion 
 would seem to be that where, for the very purpose of prevent- 
 ing frauds, a certain form or mode of proof is prescribed by the 
 Legislature, the form or mode prescribed shall be steadily main- 
 tained by the judiciary. J 
 
 * Hicks v. Whitmore, 12 Wend. 548; Goe- Esp. 190; Laragne v. Stanley, 3 Lev. I; 
 
 let v. Cowdrey, 1 Duer, 132. Dwarris, pp. 629, 630, and 653. 
 
 \ Cheval v. Nichols, 1 Str. 664. Worse- \ Doe ex. dcm. Robiuson v. Allsop, 5 B. 
 
 ley v. DeMattos, 1 Bnrr. 467; Le Neve v. Le and A. 142; Doe v. Routledge, Cowp. 712 ; 
 
 Neve, 3 Atk. 646 ; Knight v. Crockfof d, 1 Dwarris, p. 628, el seq. 
 
STATUTES REGULATING PRACTICE. 277 
 
 To this same class belong statutes of limitation, or statutes 
 limiting the time within which certain actions must be brought. 
 These statutes, intended to guard against the loss of evidence, 
 and the mischiefs arising from lapse of time, are to be strictly 
 construed without any reference to the hardships of the par- 
 ticular case. It was at one time held in regard to these stat- 
 utes, that .where by reason of the defendant's fraud the exist- 
 ence of a cause of action was concealed, it would furnish an 
 equitable exception to the express language of the statute. 
 This was intimated obiter by Lord Mansfield * and expressly 
 held in Massachusetts ; f but the contrary has been decided in 
 New York ; J and the idea that implied and equitable excep- 
 tions, which the Legislature has not made, are to be engrafted 
 by the courts on a statute of limitations is now generally aban- 
 doned. I So, in a case on a statute of this class the Supreme 
 Court of the United States has said, " Wherever the situation 
 of a party was such as in the opinion of the Legislature to fur- 
 nish a motive for excepting him from the operation of the law, 
 the Legislature has made the exception. It would be going far 
 for this court to add to those exceptions." And even in a case 
 where a survey which would have taken the case out of the 
 statute was prevented by positive legislation, the lands lying 
 in the Indian country, it was held no excuse.^ 
 
 So, too, it has been repeatedly held, that courts have no 
 dispensing power, even in matters of practice, when the Legis- 
 lature has spoken. Thus, where a statute declares that a judge 
 at chambers may direct a new trial if application is made 
 within ten days after judgment, it has been said that "he can 
 no more enlarge the time than he can legislate in any other 
 matter." ** When a statute fixes the time within which an act 
 must be done, the courts have no power to enlarge it, although 
 it relates to a mere question of practice. So where an appeal, 
 
 * Bree v. Holbeck, Dong. 656. 382. That the statute of limitations runs, 
 
 \ First Massachusetts Turnpike v. Field though the cause of action does not accrue 
 
 et al. 3 Mass. 201; Homer v. Fish et al. 1 until after the death of the party against whom 
 
 Pick. 435. it runs, see Tynan v. Walker, 35 Cal. 634. 
 
 J Allen v. Miller, 17 Wend. 202. EDITOR.] 
 Cozier v. Ellis, 28 Mississippi, 730 ; M'- ^[ M*Iver v. Ragan, 2 Wheat. 25. 
 Iver v. RagaH, 2 Wheat. 25. [And no excep- ** Seymour v. Judd, 2 Comst. 464 ; Bleeck- 
 
 tion will be implied in favor of minors or mar- er v. Wiseburn, 5 Wend. 136. 
 ried women. Warfield v. Fox, 53 Penn. St. 
 
278 STATUTES REGULATING PRACTICE. 
 
 to be valid, must be made within ten days, it is void if taken 
 on the eleventh.* So when an act declared that a special 
 . jury, when struck, shall be the jury for the trial of the issue, 
 and the defendant had a special jury struck and afterwards 
 wilfully abandoned it, it was still held that the act was impera- 
 tive, that a common jury could not try the case, and that the 
 plaintiff should have summoned the special jury, f Where a 
 statute requires an oath from the principal, it cannot be satis- 
 fied by the oath of an agent. J So, statutes enabling creditors 
 to redeem, as against prior judgments, must be complied with 
 strictly. Where an act authorizing a creditor to redeem re- 
 quired an affidavit of the amount due to be made by the cred- 
 itor or his agent, it was held the affidavit must state in express 
 terms that the deponent was the agent, and merely naming him 
 as such in the affidavit would not answer ; and that the affida- 
 vit of the amount should also show that the agent had the 
 means of knowledge, and state the amount positively, not ac- 
 cording to his belief. | In the municipal corporation act, ^f 
 where the words are " shall publish not later than two of the 
 clock," a publication cannot be made after two o'clock, even for 
 the purpose of correcting an error. ** The English statute of 
 43 Eliz. c. 2, s. 1, which has been called the Magna OJiarta of 
 the poor, declared that the churchwardens of every parish, and 
 four, three, or two householders, should be nominated by the 
 justices of the peace to be overseers of the poor. Motion was 
 made to quash an order of the justices appointing j^i^ overseers. 
 Usage was invoked in support of the order, but the facts did 
 not sustain the alleged custom of augmenting the number, and 
 after a careful examination of the statutes in pari materia, the 
 number was held imperative, and the order was quashed, ff 
 
 * Ex parte Ostrander, 1 Demo, 680, 681; ** The Queen v. Mayor <fec. of Leeds, 11 
 
 Seymour v. Judd, 2 Corns. 464; Jackson ex A. & E. 512; Dwarris, p. 477. "It is as a 
 
 dem. Bleecker v. Wiseburn, 5 Wend. 136; maxim," says Mr. Dwarris, "generally true, 
 
 Barclay v. Brown, 7 Paige, 245; Caldwell v. that if an affirmative statute, which is intro- 
 
 The Mayor, <fcc. of Albany, 9 Paige, 572. ductory of a new law, direct a thing to be 
 
 f Montague v. Smith, 17 Ad. <fc Ell. N. S. done in a certain manner, that thing shall not, 
 
 688. A special jury involves, in England, a even although there are no negative words, 
 
 considerable expense. be done in any other manner." It seems to 
 
 \ The People v. Fleming, 2 Comstock, me this decision should be rather referred to 
 
 484, 485. the present branch of our subject. 
 
 I Ex parte Bank of Monroe, 7 Hill, 177. -f-f Rex v. Loxdale, 1 Burr, 447. 
 
 1 Hob. 298; Sid. 56; Stra. 1125; 2 T. 
 Rep. 395. 
 
PENAL STATUTES. 27ft 
 
 To this rule, that statutes prescribing modes of procedure 
 are to be strictly construed, however, there exists a large class 
 of exceptions, of which we shall speak when we consider the 
 cases in which the positive language of enactments is treated 
 as directory merely. 
 
 Penal Statutes. In regard to penal statutes, we shall find 
 the same oscillation of judicial opinion, that we have already 
 had occasion to observe in other cases, and we shall notice the 
 same difficulties and perplexities that must ever result from 
 any attempt by the judiciary to insert exceptions in acts of 
 legislation, or in other words practically to exercise a dis- 
 cretionary control over legislative provisions, (a) 
 
 (a) Penal Statutes are to be strictly construed. The following are instances 
 and illustrations of the application of this rule, there being in each case a penalty : 
 " Sale " held not to include " exchange." Gunter v. Leckey, 30 Ala. 591. An 
 overseer being required for a "plantation" worked by slaves, two neighboring tracts 
 worked together, were held to form one plantation. State v. Whetstone, 13 La. 
 Ann. 376. " Notice " construed to mean personal notice. St. Louis v. Goebel, 32 
 Mo. 295. " Domestic distilled spirits," in an inspection law confined to those 
 manufactured within the State, and not extended to those refined there. Common- 
 wealth v. Giltinan, 64 Penn. St. 100. Where the master of a steamboat was made 
 subject to a penalty for failing to deliver any letter which should have been " in his 
 care or within his power," it was held that there must be knowledge on his part, 
 and that the mere possession of the letter by the clerk of his boat was not enough. 
 U. S. v. Beaty, 1 Hemps. 487. 
 
 Statutes prescribing summary mode of taking property against owner's consent 
 must be strictly construed. Trumpler v. Bemerly, 39 Cal. 490; Hopkins v. Mason, 
 61 Barb. 469. Penal statutes cannot be extended beyond the grammatical and 
 natural meaning of their terms, on any plea of a failure of justice. Remington v. 
 State, 1 Oregon, 281. 
 
 Criminal statutes in particular are inelastic ; there can be no constructive crimes ; 
 the offence must be within the spirit and the letter. State v. Lovell, 23 Iowa, 804. 
 And must be construed strictly in fatorem vita, e. g., "attempt at insurrection" 
 does not cover an attempt to incite insurrection. Gibson v. State, 38 Geo. 571. 
 The offence must be within both the spirit and the letter. Lair v. Killrner, 1 Dutch. 522. 
 And the clause defining it cannot be enlarged by the clause imposing the penalty. 
 Elias v. Nightingale, 8 E. & B. 698. Where a statute is silent as to place of 
 imprisonment, the imprisonment must be at the place which renders it the less 
 severe punishment, that for confining persons guilty of misdemeanor rather than 
 that for persons guilty of higher crimes. Horner -. State, 1 Oregon, 267. 
 
 But criminal and penal statutes are not to be so strictly construed as to defeat 
 their obvious intent, e. g. , under clause punishing person keeping " houses " of ill- 
 fame, a person keeping one such house may be punished. State v. Main, 31 Conn. 
 572. Acts which work forfeiture or confiscation are to be strictly construed, but at 
 the same time full eflfect should be given to the language and to the legislative will 
 
280 PENAL STATUTES. 
 
 The ancient rule of our law, often reiterated, was that penal 
 statutes were to be construed strictly. " The general words of 
 a penal statute shall be restrained," says Mr. Dwarris, " for the 
 benefit of him against whom the penalty is inflicted." * And 
 this maxim in the early stages of English jurisprudence was 
 often invoked and acted upon by the judges partly, no doubt, 
 from a humane desire to mitigate the rigors of the criminal law 
 as it then stood. Thus, the stat. 1 Ed. VI, c. 12, having enacted 
 that those who were convicted of stealing horses should not 
 
 * Dwarris, p. 634. 
 
 properly expressed by it. U. S. v. Athens Armory, 85 Geo. 344. And in such 
 statutes words will not be confined to their strict technical sense, if this defeats the 
 obvious intention and a common and popular sense will carry out that intention: 
 thus "prize and capture" were not confined to captures at sea. U. 8. v. Athens 
 Armory, 2 Abb. U. S. R. 129. Revenue laws imposing penalties are to be construed 
 so as to carry out the intent, neither strictly nor with excess of liberality. U. S. v. 
 100 Bbls. of Spirits, 2 Abb. U. S. R. 305. The rule of strict construction does not 
 mean that a narrow sense must be given to the words, but that the case must come 
 within the words; thus "house" includes not only "abode" but "building." 
 State v. Powers, 36 Conn. 77. Nor does the rule mean that everything is to be so 
 construed as to defeat the proceeding. Bartlett v. Achey, 38 Penn. St. 273. Penal 
 as well as beneficial statutes are to be so construed as fairly to suppress the mischief 
 and advance the remedy. Parkinson v. State, 14 Md. 134. And are to be extended 
 to every case within the mischief, if within the words. Hoffman v. State, 29 Ala. 
 40. And words will even be rejected as surplusage, when they defeat the obvious 
 intent U. S. v. Stern, 5 Blatch. C. C. 512. When a statute is in the nature of a 
 police regulation, giving a remedy for a private injury resulting from its violation, 
 and also imposing fines and penalties for the same violation, at the suit of the public, 
 the former provision will not be regarded as penal, nor the recovery as a penalty, 
 unless so expressly declared. Pittsburg &c. R. R. v. Methven, 21 Ohio, N. S. 586. 
 Tor a case where two forfeitures imposed by the same statute, and for the same 
 wrong, one of the animal itself running at large, and the other of a pecuniary sum, 
 Tvere held independent, and both enforceable by the same person, see Town v. 
 Lamphere, 34 Vt. 365. 
 
 A statute allowing double damages is penal in its nature, and its repeal, after 
 Terdict but before judgment, will defeat the right to such double recovery, no 
 " personal equity underlying the law or arising from it," appearing. Bay City, &c. 
 K. R. v. Austin, 21 Mich. 390. 
 
 A penalty implies prohibition, Bacon v. Lee, 4 Iowa, 490, if imposed upon 
 public grounds. D'Allex v. Jones, 37 E. L. & E. 475. ' But when the penalty is 
 only on one of the contracting parties, the contract not being declared invalid as to 
 the other party may be enforced by him. Watrous v. Blair, 32 Iowa, 58 (case under 
 a Sunday law). 
 
 A statute prohibiting attorneys from buying any bond, etc., or any thing in action, 
 with the purpose of bringing suit thereon, is penal, and is to be strictly construed, 
 and does not include stock in a corporation. Ramsey v. Gould, 57 Barb. 398. 
 
PENAL STATUTES. 281 
 
 have the benefit of clergy, the judges held that this did not 
 extend to a party guilty of stealing but one horse ; and a new 
 act was procured for that purpose.* So it 1 is said, if the law" 
 be that for a certain offence, a man shall lose his right hand, 
 and the offender hath had his right hand before cut off in the 
 wars, he shall not lose his left hand, but the crime shall rather 
 pass unpunished, than the letter of the law be extended.f 
 
 " If we had the power of legislation," says Lord Kenyon, 
 applying the penalties for non-residence, " perhaps we should 
 think it proper to extend the penalties created by the statute 
 of Hen. V11I, c. 13, to all benefices with cure of souls ; but as it 
 is our duty to expound and not to make acts of Parliament, 
 we must not extend a penal law to other cases than those 
 intended by the Legislature, even though we think they come 
 within the mischief intended to be remedied." J " This is a 
 penal act," said he again, when considering the question, 
 whether tumblers came within the 10 Oreo. II, c. 28, " and we 
 cannot extend it to entertainments that did not exist when the 
 statute was made, though perhaps it is desirable that the 
 prohibitions should be extended." | " If this rule is violated," 
 said Best, C. J., " the fate of accused persons is decided by the 
 arbitrary discretion of judges, and not by the express authority 
 of the laws." ^[ So, if a penalty given by a statute, is to be 
 recovered in a court of record, this can only be done in one of 
 the Superior Courts of "Westminster ; for, being a penal law, it 
 must be construed strictly, and those are the courts in which 
 the king's attorney is supposed to attend.** 
 
 And the general rule has been frequently declared in this 
 country. So in New York, it has been said that penal statutes, 
 in declaring what acts shall constitute an offence, and in pre- 
 scribing the punishment to be inflicted, are certainly to be con- 
 strued rigorously.ft So, in Massachusetts also, penal statutes 
 must be construed strictly according to the intention of the 
 
 * Dwarris, p. 364. ^[ Fletcher v. Lord Sondes, 3 Bing. 580. 
 
 f Dwarris, p. 634 ; Bacon's Maxims, 58, 59. ** Rex v. Hyinon, 7 T. R. 536 ; Wai win 
 
 ' \ Jenkinson v. Thomas, 4 T. R. 666; v. Smith,! Salk. 177,178; Cro. Eliz. 480; 
 
 Dwarris, p. 636. Noy, 62 ; Dwarris, 642. 
 
 I Rex v. Handy, 6 T. R. 288 ; see, also, f f The Watervliet and Turnpike Co. v. 
 
 Warne v. Varley, 6 T. R. 443; Martin v. M'Kean, 6 Hill, 616. 
 Ford, 5 T. R. 101. 
 
282 PENAL STATUTES. 
 
 Legislature as discovered by the import of the words, and 
 when not remedial, are not to be extended by equitable prin- 
 ciples.* 
 
 But the rule that statutes of this class are to be construed 
 strictly, is far from being a rigid or unbending one ; or rather, 
 it has in modern times been so modified and explained away, 
 as to mean little more than that penal provisions, like all 
 others, are to be fairly construed according to the legislative 
 intent as expressed in the enactment; the courts refusing on 
 the one hand to extend the punishment to cases which are not 
 clearly embraced in them, and on the other, equally refusing 
 by any mere verbal nicety, forced construction, or equitable 
 interpretation, to exonerate parties plainly within their scope. 
 Indeed, this was said in England at an early day. "It is not 
 true," said Mr. J. Buller, " that the court in the exposition of 
 penal statutes are to narrow the construction. We are to look 
 to the words in the first instance, and where they are plain, we 
 are to decide on them. If they be doubtful, we are then to 
 have recourse to the subject-matter ; but at all events, it is 
 only a secondary rule." f 
 
 So the Supreme Court of the United States has said, "In 
 expounding a penal statute, the court certainly will not extend 
 it beyond the plain meaning of its words ; for it has been long 
 and well settled, that such statutes must be construed strictly. 
 Yet the evident intention of the Legislature ought not to be 
 defeated by a forced and overstrict construction.^ We are to 
 ascertain the true legislative intent of the words used ; and 
 that sense being once ascertained, courts of justice are bound 
 to give effect to that intent, and are not at liberty to fritter it 
 upon metaphysical niceties." | " We are undoubtedly bound," 
 says Mr. Justice Story, "to construe penal statutes strictly, and 
 
 * Melody v. Reab, 4 Mass. 473. without the vote being given. 3 Burr. 1235 ; 
 
 f The King v. Inhabs. of Hodnett, 1 T. Dwarris, p. 635. 
 
 R. 96, 101. The enactment that made killing J U. S. v. Morris, 14 Peters, 464. Inclict- 
 
 a master, treason, was extended so as to include ment under the acts to prohibit the slave 
 
 a mistress. Hard. 20.8 ; Plowd. 86 ; Dwarris, trade. See also on this same point American 
 
 635. So, under the English bribery acts, to Fur Company v. The United btates, 2 Peters, 
 
 satisfy the term " procuring," it is necessary 358. Indictment for selling ardent spirits to 
 
 that the vote should be actually given ; but Indians. 
 
 as to "corrupting," that is not necessary; || The Schooner Nymph, 1 Sumner, 516, 
 
 the corruption has been held to be complete 518; where "trade" was held to include 
 
 " cod-fishery." 
 
PENAL STATUTES. 283 
 
 not to extend them beyond their obvious meaning by strained 
 inferences. On the other hand, we are bound to interpret 
 them according to the manifest import of the words, and to 
 hold all cases which are within the words and the mischiefs, 
 to be within the remedial influence of the statute." *. 
 
 And the rule has been coupled with this reasonable modifi- 
 cation in a large number of the tribunals of this country. So in 
 New Hampshire, it has been said, that by the phrase strict con- 
 struction, as applied to penal statutes, it is not meant that the 
 judges will disregard the intention of the Legislature ; it is only 
 intended that where there is a doubt, the judiciary will not so 
 construe them as to a inflict a punishment which the Legisla- 
 ture may not have intended. The strict construction is only to 
 be applied where the law is reasonably open to question.f So 
 in New York it is said that, " The rule that penal statutes are 
 to be construed strictly when they act on the offender and inflict 
 a penalty, admits of some qualification. In the construction of 
 statutes of this description it has been often held, that the plain 
 and manifest intention of the Legislature ought to be regarded. 
 A statute which is penal to some persons, provided it is benefi- 
 cial generally, may be equitably construed."^ So again, " Al- 
 though a penal statute is to be construed strictly, the court are 
 not to disregard the plain intent of the Legislature ; and it is well 
 settled that a statute which is made for the good of the pub- 
 lic, ought, although it be penal, to receive an equitable con- 
 struction.") 
 
 In a case in Massachusetts, Parker, C. J., said, 
 
 In this, as in all other statutes, if there be any ambiguity of expression, the \ 
 meaning and intent of the Legislature must be sought for in the statute itself, if 
 from a consideration of other parts of it, it is capable of explanation, and from . 
 other statutes relating to the same subject, if it be necessary to resort to any 
 
 * The Schooner Industry. Information "We may remark that every penal statute 
 
 for landing goods without a permit, under the must be intended to be " generally beneficial ;" 
 
 revenue laws. 1 Gall. 114, 117, 118. See the only ground on which punishments or 
 
 U. S. v. Athens Armory, 35 Geo. 344 ; as to penalties can be inflicted on individuals is, 
 
 confiscation, Acts of Aug. 6, 1861, and July that the community is thereby to be generally 
 
 17, 1862. benefited. 
 
 f Wilton v. "Wentworth, 5 Foster, K H. | The People v. Bartow, 6 Cowen, 290, 
 
 247; Fairbanks v. Antrim, 2 N. H. 105; 293; Indictment for violating the banking 
 
 Woodbury v. Thompson, 3 N. H. 194; Pike law. And here again we may inquire, whether 
 
 v. Jenkins, 12 N. H. 255. any penal statute can be regarded as not made 
 
 $ Sickles v. Sharp, 13 J. R. 498, 499. for "the good of the public ?' 
 
284 PENAL STATUTES. 
 
 thing extrinsic in order to obtain an explanation. If a statute, creating or in- 
 creasing the penalty, be capable of two constructions, undoubtedly that con- 
 struction which operates in favor of life or liberty is to be adopted ; but it is 
 not justifiable in this, any more than in any other case, to imagine ambiguities 
 merely that a lenient construction may be adopted. If such were the privilege 
 of a court, it would be easy to obstruct the public will in almost every statute 
 enacted ; for it rarely happens that one is so precise and exact in its terms, 
 as to preclude the exercise of ingenuity in raising doubts about its construc- 
 tion.* 
 
 So, where a statute provided that if any person not being 
 authorized by the selectmen of any town in the commonwealth, 
 should dig up any human body, should be prosecuted, <fec., it 
 was held to be sufficient to aver and prove that the defendant 
 was not authorized by the selectmen of the town where the body 
 had been buried ; and it was said by Parker, C. J., delivering 
 the opinion of the court : 
 
 The question in this case arises from an unfortunate obscurity in the terms 
 of the statute on which the indictment is founded. Taken strictly, without re- 
 ference to subject-matter and the manifest intention and object of the Legislature, 
 it would appear that in order to sustain an indictment on the statute, it must 
 be averred and proved that the board of health, or selectmen, of no town in the 
 commonwealth had given license to do the act complained of. The consequence 
 would be, as oral testimony alone can be admitted on criminal trials, of facts 
 provable by witnesses, that the officers of every town, to the number of three or 
 four hundred, must be summoned and give their personal attendance in the court 
 Avhere such prosecution is pending. We hazard nothing in saying, that the Legis- 
 lature never intended such an absurdity. 
 
 But it is said that penal statutes admit of no latitude of construction ; that 
 they are to be taken strictly, word for word, let the consequences be what they 
 may. It is true, it is so laid down as a general rule ; and the reason is, that the 
 court shall not be allowed to make that an offence which is not made so by the 
 legislative enactment. But the rule does not exclude the application of com- 
 mon sense to the terms made use of in the act, in order to avoid an absurdity 
 which the Legislature ought not to be presumed to have intended. There are 
 cases which show this, although precedents would not be required to sustain so 
 reasonable a doctrine. Bac. Abr. statute i, 9 ; Heydon's Case 3 Coke, 7 ; Rex 
 v. Gage, 8 Mod. 65 ; Plowd. 86; and the Soldier's Case, Cro. Car. 71 all of 
 which are cited by Bacon go to show that even penal statutes, though to be 
 construed strictly, as the general rule, yet are to receive such a construction as 
 will conform to the intention of the Legislature ; some of them are stronger cases 
 than this, f 
 
 * Commonwealth v. Marton, 17 Mass. 359, \ Commonwealth v. Loring, 8 Pick. 370, 
 
 362, 363. 374. 
 
PENAL STATUTES. 285 
 
 Where a statute provided that if any master or other officer 
 should, without justifiable cause, &c., beat, <fec., any one of the 
 crew, he should be punished by fine, <fec., it was held that the 
 word crew should be held to include the officers, and was not 
 restricted to the common seamen ; and Mr. Justice Story said 
 
 Now, I do not think any thing material in the construction of this statute 
 can turn upon, the rule so ably and strenuously expounded at the bar, that penal 
 statutes are to be construed strictly. I agree to that rule in its true and sober 
 sense ; and that is, that penal statutes are not to be enlarged by implication, 
 or extended to cases not obviously within their words and purport. But where 
 the words are general, and include various classes of persons, I know of no 
 authority, which would justify the court in restricting them to one class, or in 
 giving them the narrowest interpretation, where the mischief to be redressed 
 by the statute is equally applicable to all of them. And where a word is used 
 in a statute which has various known significations, I know of no rule that re- 
 quires the the court to adopt one in preference to another, simply because it is 
 more restrained, if the objects of the statute equally apply to the largest and 
 broadest sense of the word. In short, it appears to me that the proper course 
 in all these cases, is to search out and follow the true intent of the Legislature, 
 and to adopt that sense of the words which harmonizes best with the context, and 
 promotes in the fullest manner the apparent policy and objects of the Legislature.* 
 
 In another case the same learned judge said, 
 
 Penal statutes are to be construed strictly ; and cases within the like mis- 
 chief are not to be drawn within a clause imposing a prohibition or forfeiture, 
 unless the words clearly comprehend the case. * * But in construing a 
 statute, we are to take into consideration all the provisions thereof, and to look 
 to all the objects and the entire intent of the statute. If, then, a clause is found 
 in one section which in its general language and import is equally as applicable 
 to other sections and provisions of the same act as it is to the very section in 
 which it is found, if the true intent and policy of the act will be best promoted 
 by reading it as applicable to all those sections, and if public mischiefs equally 
 within the scope of the statute would be thereby prevented, and upon a differ- 
 ent construction those mischiefs would be left without redress, there certainly 
 is very strong ground to say that the clause ought to be so interpreted as to 
 suppress the mischiefs, and not promote or protect them ; that as its language 
 is appropriate, so it shall be construed as intended to include them.f 
 
 The subject has been well discussed by Mr. Justice Living- 
 ston, on the first circuit. He used this language : 
 
 * U. S. v. Winn, 3 Sumner, 209, 211, 212. ante, p. 259, note,^[ Henry v. Tilson, 17 Ver- 
 
 \ The schooner Harriet, 1 Story, pp. 251, mont, 479, where a word in one section of a 
 
 255, 256. Case under the act giving bounties statute was inserted by construction in an- 
 
 to vessels licensed for the cod-fisheries. See other. 
 
286 PENAL STATUTES. 
 
 But while it is said that penal statutes are to receive a strict construction, noth- 
 ing more is meant than that they shall not, by what may be thought their spirit 
 or equity, be extended to offences other than those that are specially and clearly 
 described and provided for. A court is not, therefore, as the appellant sup- 
 poses, precluded from inquiring into the intention of the Legislature. However 
 clearly a law be expressed, this must ever, more or less, be a matter of inquiry. 
 A court is not, however, permitted to arrive at this intention by mere conjec- 
 ture, but it is to collect it from the object which the Legislature had in view, 
 and the expressions used, which should be competent and proper to apprise the 
 community at large of the rule which it is intended to prescribe for thar gov- 
 ernment. For although ignorance of the existence of a law be no excuse for 
 its violation, yet if this ignorance be the consequence of an ambiguous or ob- 
 scure phraseology, some indulgence is due to it. It should be a principle of 
 every criminal code, and certainly belongs to ours, that no person be adjudged 
 guilty of an offence unless it be created and promulgated in terms which leave 
 no reasonable doubt of their meaning. If it be the duty of a jury to acquit 
 where such doubts exist concerning a fact, it is equally incumbent on a judge 
 not to appply the law r to a case where he labors under the same uncertainty as 
 to the meaning of the Legislature. If this be involved in considerable difficulty, 
 from the use of language not perfectly intelligible, unusual circumspection be- 
 comes necessary, especially if the consequences be so penal as scarcely to ad- 
 ^ mit of aggravation. When the sense of a penal statute is obvious, consequences 
 are to be disregarded ; but if doubtful, they are to have their weight in its in- 
 . terpretation. It will at once be conceded that no man should be stripped of a 
 very valuable property perhaps of his all be disfranchised and consigned to 
 public ignominy and reproach, unless it be very clear that such high penalties 
 have been annexed by law to the act which he has committed. If these prin- 
 ciples be correct, as they are deemed to be, a court has no option where any 
 considerable ambiguity arises on a penal statute, but is bound to decide in 
 favor of the party accused. "It is more consonant to the principle of liberty," 
 says an eminent English judge, " that a court should acquit when the Legis- 
 lature intended to punish, than that it should punish when it was intended to 
 discharge with impunity." * 
 
 The rule and the qualification have been very ably considered 
 by the Supreme Court of the United States. The 8th section of 
 an act of the United States (30th April, 1790, c. 36) provided for 
 the punishment of certain crimes committed upon the high seas, 
 or in any river, haven, basin, or lay, out of the jurisdiction of 
 any particular State. The 12th section provided for the punish- 
 ment of manslaughter committed upon the high seas; man- 
 slaughter not being mentioned in the 8th section. Upon an 
 indictment for manslaughter committed on board an American 
 
 * Schooner Enterprise, 1 Paine's Reports, pp. 33, 34. 
 
PENAL STATUTES. 287 
 
 vessel, in the river Tigris, in China, thirty-five miles from its 
 mouth, it was held that the United States had no jurisdiction 
 under the 12th section; and the court said, 
 
 The rule that penal laws are to be construed strictly, is perhaps not much 
 less old than construction itself. It is founded on the tenderness of the law for 
 the rights of individuals ; and on the plain principle, that the power of punish- 
 ment is vested in the Legislature, not in the judicial department. It is the 
 Legislature, not the court, which is to define a crime and ordain its punish- 
 ment. 
 
 It is said that, notwithstanding this rule, the intention of the law-maker must 
 govern in its construction of penal, as well as other statutes. This is true. But 
 this is not a new, independent rule, which subverts the old. It is a modification 
 of the ancient maxim, and amounts to this, that though penal laws are to be con- 
 strued strictly, they are not to be construed so strictly as to defeat the obvious 
 intention of the Legislature. The maxim is not to be so applied as to narrow 
 the words of the statute to the exclusion of cases which those words, in their 
 ordinary acceptation, or in that sense in which the Legislature has obviously 
 used them, would comprehend. The intention of the Legislature is to be col- 
 lected from the words they employ. Where there is no ambiguity in the 
 words, there is no room for construction. The case must be a strong one, in- 
 deed, which would justify a court in departing from the plain meaning of 
 words, especially in a penal act, in search of an intention which the words 
 themselves did not suggest. To determine that a case is within the intention of 
 a statute, its language must authorize us to say so. It would be dangerous 
 indeed, to carry the principle that a case which is within the reason or mischief 
 of a statute, is within its provisions so far as to punish a crime not enumerated 
 in the statute, because it is of equal' atrocity, or of kindred character, with those 
 which are enumerated. If this principle has ever been recognized in expound- 
 ing criminal law, it has been in cases of considerable irritation, which it would 
 be unsafe to consider as precedents forming a general rule for other cases.* 
 
 We admit that it is extremely improbable, that Congress could have in- 
 tended to make those differences with respect to place, which their words im- 
 port. But probability is not a guide which a court in construing a penal stat- 
 ute can safely take. We can conceive no reason why other crimes which are 
 not comprehended in this act, should not be punished ; but Congress has not 
 made them punishable, and this court cannot enlarge the statute. 
 
 These decisions, as I have said, materially modify the old 
 rule that penal statutes are to be construed strictly. The more 
 correct version of the doctrine appears to be that the statutes, 
 of this class, are to be fairly construed and faithfully applied 
 according to the intent of the Legislature, without un warrant- 
 
 * U. S. v. Wiltberger, 5 Wheat. 76, 95, 96, 105. 
 
288 REVENUE LAWS 
 
 able severity on the one hand, or equally unjustifiable lenity on 
 the other : in cases of doubt the courts inclining to mercy. 
 
 Revenue Laws. In regard to the laws for the collection of 
 the revenue, we find the same contradictions that we have al- 
 ready noticed in other cases, as to whether they are to be strict- 
 ly or liberally construed, growing out of the different light in 
 which they may be regarded, that is, as laws imposing penal- 
 ties and forfeitures, of a highly important character, on which 
 the operations of Government mainly depend, or as laws 
 intended to regulate the great subject of commercial inter- 
 course, and chiefly to regulate the operations of commercial 
 men. (a) 
 
 In England, it has been said that statutes made for the ad- 
 vancement of trade and commerce, and to regulate the conduct 
 of merchants, ought to be perfectly clear and intelligible to 
 persons of their description, and that otherwise they would be 
 mere snares. Where clauses, therefore, are obscure, the courts 
 will lean against forfeitures ; and, in this view, the ship regis- 
 try acts, so far as they apply to defeat titles and to create for- 
 feitures, are to be construed strictly as penal laws. "The 
 Legislature," says Heath, J., " is ever at hand to explain its own 
 meaning, and to express more clearly what has been obscurely 
 expressed." * 
 
 In the same spirit in this country, on the first circuit in con- 
 struing a revenue law, Mr. J. Story said, " Laws imposing du- 
 ties are never construed beyond the natural import of the lan- 
 guage ; and duties are never imposed upon the citizen upon 
 
 * Hubbard v. Johnson, 3 Taunt. 177; Dwarris, p. 641. 
 
 (a) Statutes for raising revenue are to be liberally construed ; what is implied is as 
 much a part of them as what is expressed. U. S. v. Hodson, 10 Wall. 395. Tax 
 statutes are to be so construed as to carry out their obvious intent. Cornwall v. Todd, 
 88 Conn. 443. Revenue and duty acts are neither penal nor remedial, and are to be 
 construed according to their true import and meaning. Davy v. Morgan, 56 Barb. 
 218. For a ease where certain provisions of the internal revenue laws were held to 
 be strictly construed, see Crosby v. Brown, 60 Barb. 548. Ordinarily in tariff acts 
 terms are to have their commercial signification, but if it appears that Congress in- 
 tended something different, that intent must control. Roosevelt v. Maxwell, 3 Blatch. 
 C. O. 891. In cases of serious ambiguity or doubtful classification in a revenue act, 
 it seems the construction should favor the importer, as duties are not to be imposed 
 upon vague or doubtful interpretations. Powers v. Barney, 5 Blatch. C. C. 202. 
 
REVENUE LAWS. 289 
 
 doubtful interpretations ; for every duty imposes a burthen on 
 the public at large, and is construed strictly, and must be made 
 out in a clear and determinate manner from the language of the 
 statute." * 
 
 The Supreme Court of the United States has said on this 
 subject, 
 
 In one serise, every law imposing a penalty or forfeiture may be deemed a 
 penal law ; in another sense, such laws are often deemed, and truly deserve to 
 be called, remedial. It must not be understood, that every law which imposes 
 a penalty is therefore, legally speaking, a penal law, that is, a law which is to 
 be construed with great strictness in favor of the defendant. Laws enacted for 
 the prevention of fraud, for the suppression of a public wrong, or to effect a 
 public good, are not in the strict sense penal acts, although they may inflict a 
 penalty for violating them. It is iu this light we view the revenue laws, and 
 we would construe them so as most effectually to accomplish the intention of the 
 Legislature in passing them." f 
 
 And again, on the first circuit, Mr. Justice Story has used 
 this language : 
 
 Eevenue and duty acts are not in the sense of the law penal acts, and are 
 not, therefore, to be construed strictly. Nor are they, on the other hand, acts 
 in furtherance of private rights and liberty, or remedial, an<] therefore to be 
 construed with extraordinary liberality. They are to be construed according 
 to the true import and meaning of their terms ; and when the legislative inten- 
 tion is ascertained, that and that only is to be our guide in interpreting them. 
 We are not to strain to reach cases not within their terms, even if we might 
 Conjecture that public policy might have reached those cases ; nor, on the other 
 hand, are we to restrain their tirms so as to exclude cases clearly within them, 
 simply because public policy might possibly dictate such an exclusion. J 
 
 These decisions show the gradual tendency of the judicial 
 mind to disavow and renounce any right to construe statutes ac- 
 cording to considerations of policy or hardship, and to recognize 
 the duty of conforming on all occasions to the will of the law- 
 making body. I 
 
 * Adams v. Bancroft, 3 Sumner, 386, 387. '* When a etatote gives a forfeiture or pen- 
 
 f Taylor v. The U. S. 3 Howard, 109. It ahy against him who wrongfully detains the 
 
 maybe permitted us to ask wi:h deference, property of Another, or dispossesses him of his 
 
 whether all laws must not be supposed intend- duty or intere t, he th it lias the wr>ng shall 
 
 ed to"eff<ct a public go<-d;" and whether have the forfeiture or penalty, and shall have 
 
 the effort " to accomplish the int.;ntion of the an action therefor on the statute at co nmon 
 
 Legislature " should be any more earnest in law, and the king shall not have the forfeit- 
 
 this case than in all others. ure." Co. L>t.t. 159 a. 
 
 tU. S. v. Breed et al. 1 Sumner, 159 160. ' If an act of Parli merit give a forfeiture 
 
 Some rules as to forfeiture uiay be here for a collateral thit>ir the king shall have it: 
 
 noticed : but where it is given in lieu of property and 
 19 
 
290 USURY LAWS. 
 
 Usury Laws. "Before the statute of Henry VIII" 
 Henry VIII, c. 9), says Lord Mansfield,* " all interest on money 
 lent was prohibited by the canon law, as it is now in Roman 
 Catholic countries."f This statute was repealed in the reign of 
 Edward VI, but re-enacted in the reign of Elizabeth, J and, 
 since that period, with occasional modifications, has retained its 
 place in England, and obtained a footing, more or less secure, in 
 this country. 
 
 There are few things which better show the power claimed 
 by the courts over statutes, than the course pursued by them in 
 regard to these laws. The act of 12 Anne, 2, c. 16, declared 
 all securities and contracts affected by usury, void. But when 
 the courts of equity were appealed to for aid by a borrower on 
 usury, they did not hesitate to brand the statute as inequitable, 
 if not dishonest, and, declaring that he who sought equity must 
 do equity, refused relief except upon the terms of payment of 
 the principle and legal interest.! The courts of common law 
 followed in part in the same track, and when their discretionary 
 powers were appealed to, refused interference except on the 
 same terms. ^[ Finally, however, the King's Bench came to the 
 true rule on the subject, and in compliance with and obedience to 
 the statute, treated usurious contracts as void for all purposes.** I 
 have already had occasion to refer to the course pursued on this 
 subject in our tribunals, and have noticed the fact that in the 
 latter decisions the courts appear disposed to give full effect to 
 the legislative will. ft 
 
 In construing a statute of this class in Massachusetts, the 
 following language has been held. It is valuable, as showing 
 the curious niceties into which the courts have been drawn, in 
 their efforts to explain and to methodize their notions of strict 
 and liberal construction : 
 
 interest, it shall go to the person injured, lances, estates tail are comprehended." Jenk. 
 
 Where, however, it is giveu for a crime, the 287, pi 21 ; H"b. 334; Dwai-ris, 641. 
 
 king shall have the forfeiture, though he be * Lowe v. Waller, 2 Douglas, 736, 740. 
 
 not named." 13 Vin. Abrnt. tit. Forfeiture. f See also Renss. Glass Factory v. Reid, 5 
 
 "The words 'shall forfeit' vests only a Cow. 687 and 604. 
 
 right or title, and not the freehold or deed, or | Dwarris, p. 65. 
 
 in law, without an office to find the certainty || Benfield v. Solomons, 9 Ves. jun. 84 : 
 
 of the land." PI. Com. 486. Scrivener, exparte, 3 Ves. and B. 14. 
 
 " Where a statute gives a forfeiture ' of all ^[ Hindle v. O'Brien, ] Taunt. 413. 
 
 inheritance,' it does not extend to an estate ** Koberts v. Goff, 4 B. and Aid. 92; 
 
 tail; but where it is ' of all manner of inheri- Dwarris, p. 855. 
 
 ff Ante, p. 185. 
 
STATUTES CREATING MONOPOLIES. 291 
 
 General statutes or written laws of the government, are usually arranged under 
 three great divisions : Declaratory, which are expressive of the common law ; 
 Remedial, which are required in consequence of the errors in human judgments, 
 or are rendered necessary by the various changes which are constantly taking 
 place as the community enlarges and its concerns increase ; Penal, or acts for 
 the prevention and punishment of offences ; and in ascertaining their meaning 
 it soon grew to be an axiom in the law, that remedial statutes should be con- 
 strued liberally and penal statutes strictly. But the rule prescribing the line 
 between remedial and penal statutes was not well defined ; an'd the statutes 
 against frauds were often both held to be remedial and penal ; as where the 
 statute acted on the offender it was taken strictly, but where it acted upon the 
 offence, by setting aside the fraudulent transaction, it was to be expounded lib- 
 erally. [1 bl. Com. 88.] Admitting, then, as the fact was, that the original 
 statutes [against usury] were clearly penal, the present law, while it is penal to 
 some extent in its consequences, is in fact so modified that it may be said to be 
 adopted into the family of remedial statutes, and, though a brother of the half 
 blood, is nevertheless entitled to its share of the inheritance, or, in other words, 
 has the like privilege of a liberal constiuction with those statutes which are 
 wholly remedial.* 
 
 Of Statutes Creating Monopolies, Granting Franchises, and' 
 Charters of Incorporation.(a) We have seen f that the civil law 
 
 * Gray v. Bennett, 3 Met. 622, 527, 629, \ Ante, p. 245, Domat's Rules, 17. 
 
 per Hubbard, J. 
 
 (a) Grants of corporate powers to private corporations are to be construed strictly 
 as against the grantee. Dugan v. Bridge Co 27 Penn. St. 303 ; Cleveland, &c. R. 
 R. v. Erie, 27 Penn. St. 380 ; Johnson v. Philadelphia, 60 Penn. St. 445 ; Hartford 
 Bridge Co. v. Union Ferry Co. 29 Conn. 210 ; Bridge Co. v. Hoboken &c. Co. 2 
 Beasley, 81, 92, 94; s. c. 1 Wall. 116; Currier v. Marietta. &c. R. R. 11 Ohio, N. S. 
 228. In this case it was held that the corporation had no power to make a tempo- 
 rary location on one side of a town while building its permanent track on the other 
 side. Where no u bridge," was to be built wi hin a mile of a toll bridge provided 
 for in a charter, held that a rai'road bridge might be built. Lake v. Virginia, &c, 
 R. R. 7 ISTev. 294 ; and see Bridge Co. v. Hoboken, &c. Co. ubi supra, to the same 
 effect. 
 
 Where it is doubtful which is the true cons' ruction of a charter, that is to be pre- 
 ferred which is in accordance with subsequent statutes. Mays\ille Tump. Co. y. 
 How, 14 B. Mon. 426. A legislative grant is to be construed, if possible, so as to 
 effect the intent, but if doubtful the leaning must be against the grantee. Rice v. 
 Railroad Co. 1 Black, 358 A grant by a 3tate Legislature of lands thereafter to be 
 granted to the State by the United States passes nothing by grant or by estoppel. 
 Ibid. For a case where a ch.irter was construed by a divided court fa-orably to the 
 corporation, in such a manner as to sustain a grievous monopoly, and to invalidate a 
 subsequent act of tha State Legislature, 'and to reverse the judgment of the State 
 courts, although the language was susceptible of a different construction which had 
 been put upon it by the court below, and was put upon it by the dissenting judges, 
 
292 STATUTES CREATING MONOPOLIES 
 
 inclined to consider grants made by the sovereign with a favor- 
 able eye, and to give them an enlarged and liberal interpreta- 
 tion. The common law, however, in obedience to its instinctive 
 sympathy with equal rights and its jealousy of prerogative, has 
 always adopted a widely different and much sounder rule. The 
 uniform language of the English and American law is that all 
 grants of privilege are to be liberally construed in favor of the 
 public, and as against the grantees of the monopoly, franchise, 
 or charter to be strictly interp eted. Whatever is not une- 
 quivocally granted in such acts, is taken to have been withheld ; 
 all acts of incorporation, and acts extending the privileges of 
 incorporated bodies, are to be taken most strongly against the 
 companies.* 
 
 * Lees v. The Manchester & Ashton Canal 'In regard to public grants of franchises, 
 
 Company, 11 East, fi52; Soles v. Pickering, the rules of construction are said by the Su- 
 
 4 Bingham, 452 ; Dock Company at Kingston- preme Court to be these: Fir*t, that where 
 
 upon-Hull v. Browne, 2 Barn. & Adol. 43 ; The the grant is designed by the sovereign power 
 
 Providence I'auk v. Billings & Pittman. 4 to be a general benefit and accommodation to 
 
 Peters, 514; Charles River Bridge v. Warren the public, it' the meaning of the words be 
 
 Bridxe, 11 Peters, 420; Parker v. Sunbury doubtful, they shall betaken most strongly 
 
 And Erie R. R. Co. 19 Penn. State R. 211, against the grantee, and for the government ; 
 
 and where the construction actuary given by the majority required a physical impos- 
 sibility, see The Binghamton Bridge Case, 3 Wall. 51. 
 
 No public rights can be taken away by inferen e or construction ; there must be 
 express words; thus when the Legislature have granted the right to lay pipes in pub- 
 lic streets, it was held that the city could order them to be lowered to suit a new 
 grade. Jersey City v. City of Hudson, 2 Beasley, 420. For the construction of an 
 early land grant in Mass., see Commonwealth v. Roxbury, 9 Gray, 451. 
 
 Where a turnpike charter prohibited the erection of a toll-gate within the town of 
 T., quaere whether it meant the then limits or the limits as they might be extended; 
 Detroit v. Detroit, &c. 12 Mich 333; but where an amendment to such charter gave 
 the right to extend the turnpike to a certain street within the city limits, pro- 
 vided no tollgate be placed within the city limits, that meant the limits as then exist- 
 ing. Ibid. A person who is authorized to build a macadamized road, and to charge 
 tolls, obtains no right to collect the tolls until he has complied with the terms of the 
 statute and completed the road. State v. Curry, 1 Nev. 251. A grant of the right 
 to build a bridge does not confer the right to obstruct navigation without an express 
 provision to that effect. Selman v. Wolf, 27 Tex 68. 
 
 A grant of power to a municipal corporation, it has been said, must be strictly 
 construed, and if there is a fair and reasonable doubt, the construction is to be against 
 the power. Paine v. Spratley, 5 Kans. 525 ; but on the othsr hand it seems by the 
 highest English authority that a grant of the power of eminent domain, to a munici- 
 pality, will be more liberally construed than a grant to a railroad or other quas pub- 
 lic corporation ; Gallaway v. London, Law R. 1 H. L. 34. A status authorizing a 
 transfer of a franchise without any increase of it, is not, as it seems, to be strictly 
 construed ; Black v. Delaware, &c. Canal, 22 N. J. 130. 
 
STATUTES CREATING MONOPOLIES. 293 
 
 It is interesting to observe the vigilance with, which this 
 
 o o 
 
 principle has been applied. Where a company was incor- 
 porated by statute for the purpose of inland navigation, and 
 they accquired lands forming a reservoir, which lands were to 
 vest in the company in fee, "to and for the use of the said 
 navigation company, and to or for no other use or purpose 
 whatever," it was held by the Court of Queen's Bench, that 
 a railway company which succeeded to the rights of the naviga- 
 tion company, could not let out boats for hire on the reservoir.* 
 So again it has been said, that statutes interfering with the 
 general rights of the subject, establishing monopolies and im- 
 posing penalties, are to be strictly construed. Thus, where an 
 act of Parliament imposed a penalty on all but freemen of the 
 Waterman's Company, for navigating any wherry, lighter, or 
 other craft, on the Thames, it was held that a steam-tug was 
 not within the description and prohibition of the act.f Where 
 a company was authorized to take lands for a railway, and a 
 jury was to be summoned to fix the value of the lands, and to 
 award separately for injury sustained, and a jury so summoned, 
 gave a verdict for an entire sum, it was held that the company 
 could not treat the verdict as a nullity, the provision being for 
 the benefit of the claimant. J 
 
 and therefore the grant is not to be extended Co. v. Hustler, 1 B. & Cres. 424 ; Kingston*- 
 
 by implication in favor of the grantee beyond upon-Hull Dock Co. v. La Marche, 8 B. <fe 
 
 the natural or obvious meaning of the words Cres. 51; Priestly v. Fould, 2 Scjtt N. R, 
 
 employed. Second, if the grant admits of two 205; Portsmouth Floating Bridge Co. v. 
 
 interpretations, one of which fs more extended Nance, 6 Scott N. R. 823; Stourbridge 
 
 and the other more restricted, so that a choice Canal Co. v. Wheeley, 2 Barn. & Ad. 792, 
 
 is fairly open, and either may be adopted are ale ises to the effect, that in grants of 
 
 without any violation of the appirent object franchises or privil"ges, any ambiguity must 
 
 of the grant, if in such a cae, one interpre- op rate against the grantees, and in favor of 
 
 pretation would render the grant inoperative, the public. See, to s. P., Barrett v. The 
 
 and the other would give it force and effect, the Stockton and Darlington R. Co. 2 Scott N. R. 
 
 latter, if within a reasonable construction of 337; Stockton and Darlington R. Co. v. 
 
 the terms employed, should be adopted. Barrett, s. c. in Exchequer Chamber, 3 Scott 
 
 Charles River Bridge v. Warren Bridge, 11 N. R. 803. Verha char tarum for tius accip- 
 
 Peters, 544; Mil.s v. St. Clair County, 8 iuntur contra prof erentem. 
 
 Howard, 581. See also Blakemore v. The Glamorgan- 
 
 * Rostock v. The North Staffordshire shire Canal Navigation, 1 Mylne & K. 154, as 
 
 Railway, 4 Ellis & Black. 799 ; a case certified to the construction of acts creating companies 
 
 on a question sent dowu from the Court of to construct public works. 
 
 Chancery. Campbell, C. J., Coleridge and In regard to the strictness with which, 
 
 "Wightman, JJ., united iu the certificate; in England, the railway companies are held 
 
 Earle, J.. gave a contrary opinion. to a performance of tho;r chartered obliga- 
 
 f Reed v. Ingham, 3 Ellis & Blackburn tions, see the rai way cases generally, and 
 
 Q. B. p. 889. Commonwealth v. Piltsburg and Coimelsville 
 
 \ in re, London and Greenwich Railway R. R. Co. 24 Penn. S. R. 159, where they are 
 
 Co. 4 Nev. & Mann. 458 ; Gildart v. Glad- reviewed per Lowrie, J. 
 stone, 11 East, 685; The Leeds & Liverpool 
 
294 STATUTES CREATING CORPORATIONS. 
 
 In this country, the same doctrine has been steadily adhered 
 to. So, the Supreme Court of the United States says, " A 
 corporation is strictly limited to the exercise of those powers 
 which are specially conferred upon it. The exercise of the 
 corporate franchise, being restrictive of individual rights, cannot 
 be extended beyond the letter and spirit of the act of incor- 
 poration." * So again, in the same court, it is said that in 
 regard to charters of incorporation, it has always been held 
 that a corporation takes nothing except what is plainly ex- 
 pressed and unequivocally granted. The charter is held to be 
 a contract between the State and the corporation, and no clause 
 of power or privilege can be inserted by implication. This 
 lias been repeatedly declared in cases where the corporation 
 has contended for implied immunities, such as an exemption from 
 taxation. This privilege can only be granted by express words, f 
 
 The language in Connecticut is the same : " The rules of 
 construction which apply to general legislation, in regard to 
 those subjects in which the public at large is interested, are 
 essentially different from those which apply to private grants to 
 individuals, of powers or privileges designed to be exercised 
 with special reference to their own advantage, although involv- 
 ing in their exercise incidental benefits to the community gen- 
 erally. The former are to be expounded largely and benefi- 
 cially, for the purposes for which they were enacted. The lat- 
 ter liberally in favor of the public, and strictly as against the 
 grantees." J 
 
 So, too, in Pennsylvania it is said, " Corporate powers can 
 never be created by implication, nor extended by construction. 
 No privilege is granted unless it be expressed in plain and un- 
 equivocal words, testifying the intention of the Legislature in a 
 manner too plain to be misunderstood. * * In the construction 
 of a charter, to be in doubt is to be resolved, and every resolu- 
 tion which springs from doubt is against the corporation.!" 
 
 * Beaty v. Lessee of Knowler, 4 Peters, mercial Bank of Cincinnati, 7 Ohio R. 125 > 
 
 152, 168. Union Bank v. State .of Tennessee, 9 Yerger, 
 
 f Charles River Bridge v. Warren Bridge, 490, 
 
 11 Peters, 420; Bank of Easton v. Co nmon- \ Bradley v. N. Y. & N. Haven R. R. Co. 
 
 wealth, 10 Penn. State R. 422 ; B ink of Penn- 21 Conn. 294, 306. 
 
 sylvaniav. Commonwealth, 7 Penn. State R. || Pennsylvania R. R. Co. v. Canal Com'rs, 
 
 144. But see, contra, State of Ohio v. Com- 21 Penn. 9. 
 
STATUTES CREATING CORPORATIONS. 295 
 
 So, in the same State, in regard to a statute authorizing a 
 
 / / o * ' 
 
 railroad company to take land upon a report of viewers, which, 
 among other things, should state the quality and value of the 
 land taken, it was held that a report of the viewers omitting 
 to state the quality and value of the land is fatally defective ; 
 and the court said, " It is most manifest equity, that he who 
 claims a special privilege must submit to a strict construction of 
 it. He who claims the right to be tried before a special tribu- 
 nal and in a special form, both of which are out of the general 
 course of the law, must expect that the special mode of trial 
 shall be strictly pursued as to the forms prescribed, and not be 
 allowed to innovate upon the general principles of law further 
 than is indicated by the law that prescribes it."* 
 
 In New York it has been said a statute conferring privileges 
 upon individuals should not be so construed as to work a pub- 
 lic mischief, unless required by explicit and unequivocal lan- 
 guage. So where an act authorized a proprietor of lands lying 
 on the East River, which is an arm of the sea, to fill up and 
 construct wharves and bulkheads in front of his lands, and 
 there was at the time a public highway through the land to the 
 river, it was held that the proprietor could not by filling up, 
 obstruct the public passage from the land to the water, and that 
 the street, by operation of law, extended from the former ter- 
 minus over the new-made land to the water."f 
 
 So in Pensylvania, a grant of a right of way of fifty feet 
 wide, for a railway, through a small slip of land in a densely 
 populated city, will only convey so much ground as is neces- 
 sary for the line of the road, and will not carry by implication 
 the right to erect within such line depots, car-houses, or other 
 structures for the business of the road ; and such a grant does 
 not confer on the railroad company the right to permit their 
 cars or locomotives to remain on the track of the road within 
 the fifty feet for a longer time than is necessary to receive and 
 and discharge freight and passengers.!}; 
 
 " Private statutes," says Parsons, C. J., of the Supreme Court 
 of Massachusetts, speaking of an act granting a fishing right to 
 
 * Zack v Penn. Railroad Co, 25 Penn. \ Mayor, <fcc. of Allegheny v. Ohio and 
 
 State R. 394. Penn. R. R. Co. 26 Penn. 355. 
 
 f The People v. Lambier, 5 Denio, 1. 
 
296 STATUTES CONFERRING EXEMPTIONS. 
 
 a town, " made for the accomodation of particular citizens or 
 corporations, ought not to be construed to affect rights or privi- 
 leges of others, unless such construction results from express 
 words or necessary implication."* 
 
 In New York, in regard to the ferry franchise conferred on 
 the municipal government of the city of New York by its charter, 
 it is held that it is not a mere authority to administer the ferry 
 franchise as a political trust, liable to be resumed by the legis- 
 lative power ; but that it is a vested right, and a valuable in- 
 terest, which cannot be taken away by the Legislature ; while 
 it was at the same time admitted, that charters or grants con- 
 veying to municipal bodies rights of a private nature, should be 
 strictly construed, and that in case of ambiguous phraseology? 
 the presumption should be in favor of construing the same as a 
 public grant.f 
 
 Statutes Conferring Particular Exemptions from General 
 Burthens, or against Common and General Riglit.(a) The stat- 
 
 * Coolidge v. Williams, 4 Mass. 140. (page 243) his remarks on the case of the 
 
 Case on an alewife-fishing statute. town of East Hartford v. Hartford Bridge Co. 
 
 j- Benson v. The Mayor, &c. of New York See also as to ferry franchises, Mills v. St. 
 
 et al. 10 Barb. 224, per Barculo, J. ; and see Clair County, 8 Howard's (U. S.) Rep. 569. 
 
 (a) Statutes derogating from common right are to be strictly construed. As illus- 
 trations : giving a preference in payments out of county revenues, People v. Williams, 
 8 Cal. 97 ; requiring gratuitous services from any class of persons, Webb v. Baird, 6 
 Ind. 13; subjecting property to forfeiture for the offence of another person than the 
 owner, such forfeiture cannot arise from implication, Ohio v. Stunt, 10 Ohio, N. S. 
 582; condemning private property for public use, Gilmer v. Lime Point, 19 Cal. 47; 
 Curranv. Shattuck, 24 Cal 427; Adams v. Saratoga, &c. R. R. 10 N. Y. 328; but 
 not so literally as to defeat the object, 1ST. Y. &c. R R. v. Kip, 46 N. Y. 546 ; provid- 
 ing that a passenger riding on the platform of a car when there is room inside shall 
 have no claim for compensation in case of accident, Willis v. Long Island R. R. 32 
 Barb. 398; impressing property for public use, e. g., in case of pestilence, Pinkham 
 v. Dorothy, 55 Me. 135 ; authorizing municipal aid to railroads, Hoag v. Peck, 62 
 Barb. 545; restraining trade or the alienation of property, Richardson v. Emsvviler, 14 
 La. Ann. 668 ; excluding testimony, Pelham v. Messenger, 16 La. Ann. 99. 
 
 The same is true of statutes conferring special privileges, as banking laws, 
 State v. Chase, 5 Ohio, N. S. 528. Thus when the act authorized the organization of a 
 certain number of banks, and the authorized number were organized, and some of 
 them afterwards ceased to do business, it was held, that no new ones could be organ- 
 ized to take their places. Ibid. A statute prescribing how a man shall build on his 
 own land, with pains and penalties, should be scrutinized with great care. Stiel v. 
 Mayor of Sunderland, 6 H. & N. 796. 
 
 Statutes imposing disabiliti2S for the protection of the party, e. g., in the case of 
 the Indians, are not to be strictly construed. Doe v. Avaline, 8 Ind. 6. 
 
STATUTES AGAINST COMMON RIGHT. 297 
 
 utes which fall in this class are, like those which we have just con- 
 sidered, regarded with a jealous eye and strictly construed. So 
 in Indiana, it has been said, the sound principle is that all per- 
 sons should bear the burthens of taxation alike. Consequently, 
 any statute which exempts persons or property from taxation, 
 is to be construed strictly. So, a statute exempting the lands 
 whereon any building erected for religious worship is situate, 
 not exceeding ten acres, does not include any part of the ten 
 acres which is actually used for secular purposes for gain.* 
 
 So in the same State it has been said, in reference to the 
 compulsory assignment of counsel, that a statute requiring the 
 services of the citizen gratuitously is against common right, and 
 therefore to be strictly construed ; and consequently a statute 
 requiring gratuitous services in civil cases would not be ex- 
 tended to criminal cases.f 
 
 In Maryland, the bill of rights gives the Legislature power 
 to compel a party to give evidence against himself; and in re- 
 gard to this, the Court of Appeals in that State have said, " Al- 
 though it is competent to the Legislature to alter the rule of 
 evidence so as to compel a party to give testimony against him- 
 self, it is nevertheless a power of such transcendent and over- 
 whelming operation that a just regard for the liberties of the 
 citizen should at all times induce the most jealous and cautious 
 exercise of it by the Legislature. And especially should courts 
 of justice anxiously and narrowly watch it, and never under 
 any pretense whatever extend it beyond the limits to which the 
 
 * Orr v. Baker, 4 Indiana, 86. f "Webb v. Baird, 6 Indiana, 13. 
 
 Exemptions from Taxation. See Bank of the Republic v. Hamilton, 21 111. 53 ^ 
 B. C. Cemetery v. City of B. 46 K Y. 506; Exemption from "all public taxes, rates, 
 and assessments," does not include exemption from assessment for local improvement. 
 Ibid. Canal Co. v. Dauphin County, 3 Brewst. 124. As to exemption of U. S. securi- 
 ties, see People v. Hoffman, 37 N. Y. 9, which was reversed by the Supreme Court of 
 the U. S., see notes to " taxation" under the head " State and National." 
 
 A person claiming exemption, whose case falls within the descriptive words of the 
 law laying the tax, must clearly establish the exemption, but other statutes may be 
 looked to for the intent, as in other cases. Hannibal &c. R. R. v. Shacklett, 30 Mo. 
 550. But where a statute provided that farming lands taken into a city by an ex- 
 tension of its limits should be taxed at a less rate, it was held, that this act being for 
 an equitable distribution of the burden, and not for mere exemption, was not to be 
 strictly construed against the claimant. Gillette v. Hartford, bl Conn. 351. 
 
298 STATUTES AGAINST COMMON RIGHT. 
 
 strictest interpretation of the legislative act confines it in the 
 particular case.* 
 
 So, in construing a Massachusetts statute avoiding " every 
 gift, bargain, sale, or transfer, of any real or personal estate" by 
 a spendthrift after appointment of a guardian, it was said, 
 " Every man of full age and sound mind is at liberty to make 
 contracts; and if made upon good consideration and without 
 fraud he must be bound by them, unless by statute provision 
 he is disabled ; and disabling statutes of that nature should be 
 construed strictly ; for, though founded in policy and a just re- 
 gard to the public welfare, they are in derogation of private 
 rights ; " and the statute was held not to avoid a promissory 
 note of the spendthrift, although it might indirectly affect his 
 real or personal estate, f 
 
 In the same State, a statute providing that all real and per- 
 sonal estate which shall at any time be exposed to sale at pub- 
 lic auction or vendue shall be subject to duty, was held not to 
 apply to a lease of real estate by auction ; and it was said that 
 statutes which imposed restrictions upon trade or common oc- 
 cupations or which levy an excise or tax upon them, must be 
 construed strictly. "J 
 
 It has been attempted to bring statutes in derogation of the 
 common rights of creditors, within this rule. So it has been 
 said in England, that a statute for the discharge of insolvent 
 debtors ought to be construed strictly, quoad the cessio lonorum, 
 and the rights of the creditors. "Let a statute be ever so 
 charitable," said Holt, C. J., " if it gives away the property of 
 the subject, it ought to be construed strictly."! And in this 
 country it has been said, that statutes in derogation of the com- 
 mon rights of creditors to secure their debts out of the property 
 of their debtors, as statutes exempting property from execution, 
 ought to have a strict construction. So in Massachusetts, a 
 statute exempting the tools of a debtor from execution does not 
 apply to a printing-press, and types. ^f But I doubt if any such 
 general rule can be asserted to exist ; on any construction the 
 
 * Broadbent v. The State, 7 Maryland, J 12 Mod. 513. 
 
 416. jf Buckingham v. Billings, 13 Mass. 80 ; 
 
 t Smitt v. Spooner, 3 Pick. 229, 230. Danforth v. "Woodward, 10 Pickering, 423. 
 \ Sewall v. Jones, 9 Pick. 414. 
 
SUMMARY JUDICIAL PROCEEDINGS. 299 
 
 word " tools " can be hardly said to include printing-presses and 
 types ; and in a subsequent case this law has been called a 
 " humane and beneficial statute, not to be too narrowly con- 
 strued."* We have here again an illustration of the dangers of 
 construction resting on motives of policy. Policy is a shifting 
 and varying element ; and it is evident that judicial notions of 
 the wisdom or expediency of an act of the Legislature, can with 
 no propriety be permitted to override the authentic declarations 
 of the will of the governing power, (a) 
 
 Statutes Authorizing Summary Judicial Proceedings. It 
 is a well settled and wholesome rule, that statutes authorizing 
 summary proceedings, and by which extraordinary powers are 
 given to courts or officers of justice, are to be strictly construed; 
 and that the powers conferred must be strictly pursued, so far 
 as regards all the steps and proceedings necessary to give juris- 
 diction, or the whole proceedings will be void. So, where a 
 statute authorizing justices to stop up an old foot-way and sub- 
 stitute a new one, required "that the forms of proceedings set 
 forth in the schedule annexed shall be used on all occasions, 
 with such additions or variations only as may be necessary to 
 adapt them to the particular exigencies of the case," a strict 
 observance of these forms was held essential ; and Lord Ken- 
 yon, C. J., said, " I cannot say that these words are merely 
 directory. Power is given to the magistrate to take away, on 
 certain conditions, a right which the public before enjoyed ; and 
 this is to be done in a certain prescribed form, with such addi- 
 tions and variations only as the locality of the description may 
 require. Now, here there is a material variance in the order 
 from the form prescribed, for it does not set forth the length 
 and breadth of the new path set out in lieu of the old one." 
 The court therefore held the order void, and the public still 
 entitled to the use of the old path through the plaintiffs land.f 
 
 So, where a statute required that on petition for the sale of 
 
 * Howard v. "Williams, 2 Pick. 80, 83. f Davison v. Gill, 1 East, 64. 
 
 (a) A power vested by a State Constitution in the courts to relieve individuals 
 under certain circumstances from a general disability imposed upon a class to which 
 they belong, must be strictly construed. State v. Woodson, 41 Mo. 227. 
 
300 SUMMARY JUDICIAL PROCEEDINGS. 
 
 lands, a guardian should be appointed for infants, and it was 
 not done, it was held that the sale was void as to such infants.* 
 So, when a statute confers a new power on a justice of the 
 peace, he must proceed strictly in the mode prescribed by stat- 
 ute, f In New York, where before an attachment can be issued 
 by a justice of the peace, against a non-resident of the county, a 
 bond must be given by the applicant, the giving this bond is a 
 condition precedent to the power which the statute confers ; 
 and if the justice undertakes to execute the power by issuing 
 the attachment, without exacting a prior performance of the 
 condition, his acts are utterly void, and the process affords him 
 no protection for what is done under it. J 
 
 So, a justice authorized t< take jurisdiction of certain offences 
 on complaint under oath or view, cannot convict on confession. | 
 So again, where a statute requires a justice's summons to be 
 served by reading it to the defendant and delivering him a 
 copy, a service by delivering the summons personally to the 
 defendant is bad, and gives the magistrate no jurisdiction. *]f 
 So in New York, the proceedings to obtain judgment, upon an 
 award of arbitrators are summary, and must be complied with. 
 And when it was provided that where there had been a sub- 
 mission to arbitrators under the statute, judgment might be 
 rendered on the award, upon such submission being proved by 
 the affidavit of a subscribing witness thereto, the affidavit of a 
 witness who subsequently attested it was held not sufficient.** 
 
 In the same State it has been decided, that a sale of an 
 intestate's real estate to pay debts, by virtue of a surrogate's 
 order under a statute declaring that in such cases a guardian 
 shall be appointed for infant heirs, is void unless such guardian 
 be appointed. The statute is imperative, and leaves nothing to 
 the discretion of the surrogate. Public policy demands that 
 the safeguard which the Legislature has provided for the protec- 
 tion of the helpless, against negligence, oppression, and fraud, 
 should be maintained, ff On the same ground, the Supreme 
 
 * Bloom v. Burdick, 1 Hill, 130; Rea v. | Bargis v. The State, 4 Indiana, 126. 
 
 M'Eachron, 13 Wend. 465; Babbitt v. Doe, 4 J Campau v. Fairbanks, 1 Michigan, 151. 
 
 Indiana, 355; Atkins v. Rinnan, 20 Wend. ** Bollenback v. Fleming, 6 Hill! 303. 
 
 241. If Per Gardiner. J.. in ,-chneider v. Mc- 
 
 Bigelow v. Stearns, 19 J. R. 39. Farland. 2 Corns. 459. See also on this sub- 
 
 \ Davis v. Marshall, 14 Barb. 96. ject MTherson v. Cunliff, 1 1 Serg. & Rawle, 
 
SUMMARY JUDICIAL PROCEEDINGS. 301 
 
 Court of the United States has decided that executors and ad- 
 ministrators, in making sale of property, must comply strictly 
 with the requisites of all statutory provisions on the subject ; 
 and that unless every essential direction of the law is complied 
 with, those whose interests are affected are not affected by the 
 sale, unless, from a long acquiescence, a foundation is laid for a 
 fair and reasonable presumption that the requisites of the law 
 have been complied with. So, where an Alabama statute de- 
 clared that it should not be lawful for an executor to dispose of 
 the estate of the decedent at private sale, such a sale was held 
 absolutely void. * 
 
 So, too, in Michigan it has been held, that when a court 
 exercises a special jurisdiction under a statute, the mode of pro- 
 ceeding must be strictly pursued; thus, where a statute re- 
 quires that before a writ of attachment shall issue, an affidavit 
 of indebtedness shall be made and annexed to it, it was held 
 that a writ issued without any affidavit, but to which an affi- 
 davit made ten days afterwards was annexed before actual 
 service, was irregular and void, f So as-ain in New York, in a 
 
 ' O O / 
 
 proceeding by an insolvent debtor for a discharge,, where the 
 petition set forth that the petitioners had given a bond pursu- 
 ant to the tenth section of the act on the subject, and the tenth 
 section made mention of two bonds, only one of which gave the 
 officer jurisdiction ; it was held that jurisdiction was not ac- 
 quired, and the proceedings were reversed on certiorari. J 
 
 On the other hand, it has been frequently decided that 
 where a court once obtains jurisdiction, its proceedings cannot 
 be collaterally impeached, although they appear to have been 
 irregular and contrary to law. | The distinction appears to be, 
 and it is one which distinguishes this class of cases from the 
 administrative proceedings which we shall consider under the 
 next branch of our subject, that in regard to summary judicial 
 proceedings, it is indispensable that all the statutory directions 
 in regard to the steps required to give the officer jurisdiction, 
 
 429, and Grignon's Lessee v. Astor, 2 How- \ The People ex rel. Cornier v. Reed, 5 
 
 aru's (U. S.) li. 319. Denio, 554. 
 
 * Ventress et a/, v. Smith, 10 Peters, 161. || Voorliees v. Bank of U. S. 10 Peters, 
 
 f Buckley v. Lowry, 2 Mich. 419. 449; Grig-non's Lessee v. Astor, 2 Howard's 
 
 (U. S.) R. 319. 
 
302 SUMMARY ADMINISTRATIVE PROCEEDINGS. 
 
 whether over the person or over the subject-matter, as the case 
 may be, must be strictly observed, otherwise the whole pro- 
 ceedings are void, cor am non judice; and the objection may be 
 taken wherever they are set up and relied on ; but if jurisdic- 
 tion be once acquired, then any subsequent errors or irregulari- 
 ties committed by the officer are treated like other judicial 
 errors, and can only be corrected in the particular manner, on 
 appeal to the proper tribunal. In regard to administrative pro- 
 ceedings, on the other hand, no judicial discretion or authority 
 is recognized: they are treated as ministerial throughout; and 
 any departure from the directions of the statute is fatal, whether 
 the objection be taken directly, or indirectly in any collateral 
 matter. In regard to summary judicial proceedings, the line 
 which divides the steps necessary to give jurisdiction from those 
 subsequent is often very difficult to define with precision, and 
 depends on the nature of the proceedings and the language of 
 the statute. 
 
 Statutes Authorizing Summary Administrative Proceedings. 
 Affecting Rights of Property. Where summary proceedings are 
 authorized by statute, the effect' of which is to divest or affect 
 rights of property, the rule holds good that they are to be 
 strictly construed. The power conferred must be executed 
 precisely as it is given, and any departure will vitiate the whole 
 proceeding. It is, indeed, a general rule that all statutes con- 
 ferring special ministerial authority by which any man's estate 
 may be affected, must be strictly pursued. So, where certain 
 loan commissioners are authorized on the default of payment of 
 moneys loaned by them, to sell the premises mortgaged to se- 
 cure the <debt, a sale by one only is void.* So again, where a 
 statute in New York authorized loan commissioners in default 
 of payment to advertise and sell on a certain day (the first Tues- 
 day of February), and if not sold or struck off, and the bid not 
 paid, then, to enter and to lease till the third Tuesday of Sep- 
 tember following, and then to sell again, it was held that the 
 lands being struck off on the first day and the bid not paid, it 
 was not competent for the commissioners to resell them on the 
 same day to another person, but that they were bound to wait 
 
 * Powell v. Tuttle, 3 Comst. 396; Olmsted v. Elder, 1 Seld. 144. 
 
TAX SALES. 303 
 
 till the second day named in the statute ; and where the sale 
 was directed to be for cash, it was held that the commissioners 
 could not sell on credit.* 
 
 In this country, there is a large and important class of cases 
 falling under this branch of our subject, where ministerial offi- 
 cers, either the direct agents of the State, or of corporations 
 clothed with certain attributes of local sovereignty are author- 
 ized to sell the property of private individuals for non-payment 
 of taxes, or charges imposed on them. The proceedings contem- 
 plated by these enactments are generally directed to be taken 
 without giving the party alleged to be in default any oppor- 
 tunity of defence; and their validity has been denied, on the 
 ground of their being in conflict, as it has been urged, with the 
 constitutional provision which, in most if not all States, guaran- 
 tees to every citizen the protection of " the law of the land." 
 This objection has been, however, overruled, and the power has 
 been sustained on grounds of immemorial usage and state neces- 
 sity. But while asserting the power, it has, in all cases, been 
 held that it must be strictly pursued, and that its exercise will 
 be vigilantly watched.f So, the Supreme Court of the United 
 States has said, in regard to the sale of lands for taxes, that 
 every prerequisite to the exercise of the power should precede 
 it ; that the party who sets up a title under such a sale, must 
 furnish the evidence necessary to support it ; and that the 
 marshal's deed is not even prima facie evidence that the prere- 
 quisites required by law have been complied with. J A statute 
 authority, by which a man may be deprived of his estate, must 
 be strictly pursued. Thus, where by the law of Tennessee it is 
 made essential to the validity of a sale of land for taxes, that 
 
 * Sherwood v. Reade, 7 Hill, 431 ; over- as filling up an advertisement of sale, may be 
 
 ruling the decision of Mr. Chancellor Wai- delegated; or when one overseer of the poor 
 
 worth in same case, 8 Paige, 633. in the name and behalf of two, applies for proc- 
 
 We may here notice some general rules as ess. Downing v. Rugar, 21 Wend. 178 ; but 
 
 to powers. Asa genernl thing, in the exercise not so when any discretion is to be executed ; 
 
 of an authority whether ministerial or judicial, Powell v. Tuttle, 3 Coinst. 396. 
 all the persons to whom it is committed must -j- State v. Allen, 2 McCord, 55 ; Harris v. 
 
 confer and act together. Downing v. Rugar, Wood, 6 Monroe, 643; Willard v. Whether- 
 
 21 Wend. 178. bee, 4 N. H. R. 118. See other cases cited 
 
 So the concurrence of four justices is nee- in Blackwell on Tax Titles, p. 38, el scq. See 
 
 essary to execute a valid warrant appoiuting also Scott v. Watkins, 22 Ark. 556. 
 overseers of the poor. King v. Forrest, 3D. \ Williams v. Peyton's Lessee, 4 Wheat, 
 
 and E. 38 ; King v. Inhabs. of Haverstall 77. See also, s. P. M'Clung v. Ross, 5 
 
 Red ware, Ibid. 380. Wheat. 116., 
 
 An authority to do acts merely ministerial, 
 
304 TAX SALES. 
 
 the sheriff should make a certain return and certain publications, 
 it was held by the Supreme Court of the United States that 
 those steps must be strictly taken, and that they must also ap- 
 pear on the face of the record. And as they did not, the sale 
 was held absolutely void.* So, where an Arkansas statute pro- 
 vides that before a sheriff can assess land for taxes, he shall file 
 an affidavit by a certain day, and the assessment by a certain 
 other day, non-compliance with these requisitions has been held 
 by the Supreme Court of the United States, to make the assess- 
 ment, and of course the sale for taxes, invalid, and the deed void.f 
 
 In cases of this nature, it has been held by the States gener- 
 ally that the steps prescribed by the statute must all be strictly 
 followed, and that the burthen of proof is on the party who 
 claims a right under the summary proceedings. It is the busi- 
 ness of the purchaser to collect and preserve all the facts and 
 muniments of title on which the validity of his claim depends. 
 It will be useful to notice the strictness with which these whole- 
 some rules have been applied. So, in New York it has been 
 held that a power to sell lands for taxes imposed thereon, will 
 not authorize a sale for taxes imposed not on the land but on 
 the owners and occupants. Nor will a power given to sell 
 for taxes, authorize a sale for a mere assessment for the 
 construction of a well and pump. So, if a tax be only author- 
 ized on the petition of a majority of a certain class of parties 
 interested, the purchaser under the tax sale must show that 
 those who signed the petition were a majority. So, where a 
 demand of payment is made necessary before sale, it must be 
 made; so, where the statute directs notice of an assessment to 
 be given before the sale, proof is required that the requisite 
 notice was given, and it must be given for the precise time re- 
 quired by the statute. So too, of a notice to redeem.;); 
 
 In the same State, lands are under various statute provisions 
 sold for unpaid taxes by the State comptroller ; and in order to 
 authorize him to do so, the lands must have been assessed in due 
 form by the town assessors, taxed by the county supervisors, a 
 
 * Thatcher v. Powell, 6 Wheat. 119. See j Shnrp v. Speir, 4 Hill, 76; Sharp v. 
 
 also Jackson v. Esty, 7 Wend. 148. Johns .n, 4 Hill, 92 ; St.iker v. Kelly, 7 Hill 
 
 f Parker et al. v. Overman, 18 Howard, 25; and 3 l)uer, 323; Doughty v. Hope, 3 
 
 137. Deuio, 594 ; and 1 Corns. 79. 
 
TAX SALES. 305 
 
 certified transcript of the assessment must be transmitted by the 
 county treasurer to the comptroller, with the collector's affidavit 
 that the taxes are unpaid, and the tax must be unpaid for two 
 years from the first of May following the imposition of the as- 
 sessment, and so remain at the time of the sale.* But the assess- 
 ment is fatally defective where there is a misdescription of the 
 property, such as might probably mislead the owner if his ob- 
 ject were to pay the taxes or to redeem after the sale. So, where 
 a lot was described by a wrong nuinber.f 
 
 Again, where the township in which the land is situated 
 was incorrectly described, J the sales were held invalid and void. 
 So, where a statute in regard to sales on execution provided 
 that the time and place of sale should be advertised publicly, 
 and previously for six weeks successively, first by the posting 
 of a notice in three public places, and secondly by publishing 
 the notice once a week in a country newspaper, the notice was 
 properly posted ; but the notice in the newspaper, though pub- 
 lished six weeks, was first published only thirty-nine days pre- 
 viously to the day of sale ; it was held that the statute was im- 
 perative, and the sale void ; || and it was also held that the cir- 
 culation of the notices of sale in slips headed, " Plattsburg Re- 
 publican Extra," would not aid the plaintiff: it was not a pub- 
 lishing in a newspaper, within the statute. So where a statute 
 requires personal service, a notice by mail though it reaches the 
 party is not good. If 
 
 Thus, too, in Connecticut, it has been held in regard to the 
 power of taxation, that statutory requirements must be strictly 
 complied with. So, where the assessors omitted to lodge an 
 abstract of the assessment lists in the town clerk's office by the 
 first of December, as they were required by law to do, though 
 they lodged it on the twentieth of the month, it was held that 
 the assessment lists were invalid, and that no tax could be law- 
 fully laid or collected thereon.** And so in Michigan also, it 
 
 * 1 R. S. 391, 11, 12, 13, Isted.p. 395; 1 Rathbun v. Acker, 18 Barb. 393. 
 
 33 ; p. 399, g 10 ; p. 402-3, 26 ; p. 407, ** Thames Manuf. Co. v. Lathrop. 7 Conn. 
 
 52; and Jackson v. Morse, 18 J. R. 441. R. 550. Where also held that to a statute 
 
 f Dike v. Lewis, 4 Denio, 237 ; 2 Barb, explicitly retrospective to a certain extent 
 
 Ch. 344. and for a certain purpose, the court will not 
 
 1 Tallman v. White, 2 Comst. 66. by construction give a retroactive operation 
 
 I Olcott v. Robinson, 20 Barb. 148. to any greater extent or for any other purpose. 
 
 20 
 
306 TAX SALES. 
 
 has been decided that the auditor general cannot assume the 
 power to convey lands sold for taxes on foreclosure, unless it is 
 expressly conferred upon him by the statute.* 
 
 As to the very important matter of evidence connected with 
 this subject we may notice, that a deed executed by a city cor- 
 poration, purporting to be given on a sale of land for taxes, and 
 reciting a compliance with the statutory provisions, does not 
 dispense with proof of the facts. The recitals in the conveyance 
 are not evidence against the owner of the property sold.f But 
 on the other hand it has been held in New York to be com- 
 petent for the Legislature to enact that any conveyance of 
 lands sold for taxes executed by the comptroller, shall be pre- 
 sumptive evidence that the comptroller had authority to sell 
 and convey the land described in it for arrears of taxes, and that 
 all the previous proceedings required by law had taken place ; 
 but that such presumption may be repelled by legal evidence. J 
 Perhaps the legislative power in this case cannot be denied ; 
 but it is obvious that the tendency of this decision is to defeat 
 the salutary tendency of the wholesome rules which we have 
 just considered. In cases of this kind where the question, 
 whether the individual is divested of his property by the sum- 
 mary proceedings of the government, depends on the regularity 
 of the proceedings, to declare that the execution of a deed or 
 any other similar formality is prima facie proof of regularity, 
 and by doing this to throw the burthen of proving a negative 
 on the original owner, is in a multitude of cases to strip him of 
 all protection whatever. It is comparatively easy for the State 
 and its agents to prove that certain steps have been taken. In 
 many cases it is impossible to prove that they have not been 
 taken, however certain the fact may be. " The negative," Chief 
 Justice Marshall has said in a case of this kind, " will not admit 
 of proof." 1 
 
 * Sibley v. Smith et al. 2 Michigan, 486. In regard to this branch of my subject, I 
 
 f Sharp v. Speir, 4 Hill, 76 ; Striker v. take pleasure in referring to Blackwell on 
 
 Kelly, 2 Denio, 323 ; Beekman v. Bigham, 1 Tax Sales A Practical Treatise on the power 
 
 Selden, 366 ; Hoyt v. Dillon, 19 Barb. 644. . to sell land for the non-payment of taxes as- 
 
 \ Hand v. Ballon, 2 Kern. 541. See also sessed thereon by Robert S. Blackwell Esq., 
 
 Delaplaine v. Cook, 7 Wise. 44. of the Illinois Bar: Chicago, 1855. Mr. Black- 
 
 I Williams v. Peyton's Lessee, 4 Wheat, well has exhausted the important subject of 
 
 W- tax sales. In discussing it he has been led to 
 
 consider the true boundaries of judicial and 
 
STATUTES GIVING COSTS. 307 
 
 Statutes of Explanation. It lias been said that statutes of 
 explanation shall be construed only according to their words,, 
 and not by any manner of intendment ; for it is incongruous, it 
 is said, for an explanation to be explained. "If any exposition," 
 said the judges, " should be made against the direct letter of the 
 exposition made by Parliament, there will be no end of ex- 
 positions." , But the rule has been denied; and, indeed, it 
 seems to be founded rather on a conceit than a reason.* 
 
 Stamp Acts. The English acts imposing stamp duties are, 
 it is said, to be construed strictly ; f so, too, there it has been 
 said, that statutes giving costs are to be regarded as inflicting a, 
 kind of penalty, .and to be construed strictly.^ There would 
 be little interest or instruction in giving any minute or de- 
 tailed attention to the very numerous decisions of statutes giv- 
 ing costs ; but I cannot refrain from calling attention to the 
 illustration which the idea, that statutes awarding costs are to 
 be construed strictly, furnishes of the frequent unreasonableness 
 of the distinction between liberal and strict construction. Costs 
 are not in any proper sense a penalty. They are a partial re- 
 muneration to a prevailing party for the injury he has sustained 
 by the presentation of an illegal demand, or the resistance to 
 legal claim. If the decisions of the law are in a majority of 
 cases equitable, costs are in most cases due not only in law, but 
 in justice ; and it seems very extraordinary to say that a remedy 
 of this kind is to be strictly construed, which means unfavor- 
 ably regarded. But the truth is, that the judges have perpetu- 
 ally taken refuge in the clouds and mists of strict and liberal 
 construction whenever they have been pressed by the hardship 
 or injustice of a particular case. I 
 
 legislative power ; and his two first chapters, Worrington v. Furbor, 8 East, 242 ; Dwams, 
 
 on the fundamental principles which control the 646. 
 
 taxing power, and of the nature of the power to \ Cone v. Bowles,! Salk. R. 205 ; Rex 
 
 sell land for the non-payment of taxes, and of v. Inhab. of Glastonby, Cases Temp. Hardw. 
 
 the strictness required in such sales, contain a 357 ; Dwarris, p. 644. 
 
 close and searching discussion of the whole | In regard to costs, the New York Code of 
 subject. He arrives at the result that the Procedure declares what seems to be the true 
 only safe and tolerable rule of interpretation rule, 5.03: All statutes establishing or regu- 
 in cases free from ambiguity is, that the judi- lating the costs and fees of attorneys, solici- 
 ciary should confine themselves to a strict tors, and counsel, in civil actions, and all ex- 
 obedience to the legislative will. isting rules and provisions of law, restricting 
 
 * Dwarris, 628 ; Butler and Baker's Case, or controlling the right of a party to agree 
 
 3 Rep. 31 a; Dean and Chapter of Norwich's with an attorney, &c. for his compensation are 
 
 Case, 3 Rep. 75. repealed ; and the measure of such compensa- 
 
 f Tompkins v. Ashby, 6 B. & C. 541 ; tionisleftto the agreement, express or implied, 
 
308 REMEDIAL STATUTES. 
 
 We have thus far considered those classes of statutes which 
 are, as it has been said, to be strictly construed. In doing this, 
 we have had occasion to see how much uncertainty and contra- 
 diction there is in the rule ; and that as applied and expounded 
 by our modern tribunals, it seems to tend to take the form of 
 the doctrine that in all cases statutes are to be faithfully con- 
 strued, so as to carry oat the intention of the Legislature when- 
 -ever the intent can be ascertained. Pursuing the same exam- 
 ination of the authorities, we now turn to a contrary class of 
 cases, in which it has been held that statutes are to be liberally 
 construed. 
 
 4 
 
 Remedial Statutes, (a) " There can be no question," says 
 
 of the parties ; but there may be allowed to the the action, which allowances are called costs ; 
 prevailing party upon the judgment certain and there may be in certain cases addi- 
 sums by way of indemnity fur his expenses in tional allowances. 
 
 (a) Remedial Statutes are to be construed liberally, and so as to remove the evil 
 and extend the benefit proposed. White v. Steam Tug, 6 Cal. 462. Thus " towing" 
 is included within "transportation of property," in a statute as to common carriers. 
 Ibid. Everything is to be done to advance the remedy which can be done consist- 
 ently with fair construction. Chicago &c. R. R. v. Dunn, 52 111. 260. Thus the time 
 within which an act is prescribed to be done by such statute, if not made essential 
 by express terms, will not be regarded as so by construction. Ryan v. Valandingham, 
 7 Incl. 416. And a statute providing a remedy on official bonds, "not in the penalty 
 payable and conditioned as prescribed by law," was held to apply to bonds that were 
 conditioned as prescribed by law, but were not executed, approved, and filed within, 
 the time prescribed. Sprowl v. Lawrence, 33 Ala. 674. 
 
 It has been held, however, that remedial statutes in derogation of the common 
 law do not come within this rule. Bailey v. Bryan, 3 Jones Law, 357 ; but see note 
 ante, upon "Statutes in Derogation of the Common Law," and the absurdity of such 
 an exception is seen from the fact that every remedial statute must of necessity be in 
 derogation of the common law. 
 
 A statute extending the right of appeal is remedial, and may be carried by con- 
 struction beyond but not against the strict letter, and even retrospectively, if no 
 vested right is thereby interfered with. Converse v. Burrows, 2 Minn. 229. A stat- 
 ute giving to absent creditors further time for proof of claims against the estates of 
 deceased persons is remedial, and is to be construed so as to extend the remedy, and 
 applies to a creditor who is absent during the publication, but returns afterwards. 
 Cullerton v. Mead, 22 Cal. 95. The following are other illustrations of remedial 
 statutes to which the rule has been applied: allowing the original owner to redeem 
 from a tax sale. Jones v. Collins, 16 Wise. 594. Extending the landlord and tenant 
 process to new cases. Jackson v. Warren, 32 111. 331. For the recovery of the ex- 
 pense of improving sidewalks from abuttors. Hudler v. Golden, 36 N. Y. 446. Giv- 
 ing a municipality the right to sell for taxes. Haskell v. Burlington, 30 Iowa, 232, 
 sed quaere. Requiring railroads to fence their tracks, etc. Ohio &c. R. R. v. Bruba- 
 ker, 47 111. 462. 
 
REMEDIAL STATUTES. 300 
 
 Mr. Dwarris, " tliat the words of a remedial statute are to be 
 construed largely and beneficially, so as to suppress the mischief 
 and advance the remedy."* It is by no means unusual in con- 
 struing a remedial statute, it has been said, to extend the enact- 
 ing words beyond their natural import and effect, in order "to 
 include cases within the same mischiefs." f On this ground in 
 the Magdalen College case, notwithstanding the general rule 
 that the crown is not affected except by express words, it was 
 held that the queen was bound by an act couched in general 
 terms. "It was never seen," says Lord Coke, "that an act 
 made for the maintenance of religion, advancement of learning,, 
 and exhibitions of poor scholars, and therefore to be favorably 
 expounded, should be so construed that a byway should be left 
 open, by which the said great and dangerous mischiefs should 
 remain, and the necessary and profitable remedy be suppressed,, 
 and the queen made an instrument of injury and wrong." J 
 "In remedial cases," says Lord Mansfield, "the construction of 
 statutes is extended to other cases within the reason and rule 
 of them." I 
 
 So again, it has been held in the case of a remedial act, that 
 every thing is to be done in advancement of the remedy that 
 can be given, consistently with any construction that can be 
 put upon it. T So, under the statute against frauds (13 Eliz. 
 c. 5), the words " good consideration," were held to exclude the 
 consideration of nature or blood, and to mean money, or other 
 valuable consideration, on the ground that otherwise the statute 
 would serve for little or nothing, and no creditor would be sure 
 of his debt. ** So, too, statutes against frauds are, it is said, 
 always liberally and beneficially expounded. " Chancery will 
 aid remedial laws," said Lord Keeper Wright, " though they 
 
 * Dwarris, p. 632. on a statute against bribery ; the affirmations 
 
 f St. Peters, York, Dean and Ch. v. Mide- of Quakers were at that time (1776) received 
 
 borough, 2 Y. <fc J. 196. in civil but not in criminal cases. It turned, 
 
 fll Reports, 67, 716. therefore, on the point whether the case was 
 
 Atcheson v. Everitt, Cowp. 382, 391. a criminal one; and Lord Mansfield holding 
 
 "But," aiids his Lordship, "where it is a it to be a penal and not a criminal action, the 
 
 hard, positive law, and the reason is not very affirmation was received. The report is a 
 
 plainly to be seen, it ought not to be extended very interesting one. 
 
 by construction." In this case, the question ^[ Johnes v. Johnes, 3 Dow, 15; Dwarris, 
 
 was whether a Quaker could be received to 654. 
 testify on his affirmation in an action of debt ** Dwarris, 654, 655. 
 
310 REMEDIAL STATUTES. 
 
 are called penal, not by making them more penal, but by let- 
 ting them have their course." ' 
 
 In this country, too, it has been repeatedly held that reme- 
 dial or beneficial statutes are to be liberally construed.f So, 
 an act " to prevent the insolvency of moneyed corporations," 
 has been declared to be a beneficial statute, not to be defeated 
 l>y a narrow construction ; and held that any act which the di- 
 rectors were prohibited from doing, would be equally illegal and 
 void if done by any other officer or agent of the bank.^ So, in 
 Maryland an act passed, as its preamble declared, to do away 
 "a most oppressive and pernicious practice," was declared a 
 remedial statute, and to be liberally construed. | In New York, 
 .also, in regard to the act for the incorporation of religious 
 societies, it had been said by the Supreme Court " We must 
 give the statute a reasonable and liberal construction, for the 
 benefit of the churches." ^f 
 
 Sometimes the act itself declares that it shall be liberally 
 'construed. So, the act incorporating the House of Refuge in 
 the city of New York, declares " that it shall be construed in all 
 courts and places benignly and favorably, for every humane and 
 laudable purpose therein contained." ** Indeed, in one case in 
 New York, a very able and learned judge claimed for statutes 
 generally a liberality and flexibility that would put an effectual 
 ^end to all rules of interpretation or construction. " My judg- 
 ment," says Mr. Chancellor Jones, " must be borne down by the 
 force and weight of authority, before I can deny to legislative 
 enactments the liberal, benign, and equitable construction which 
 will give them the attributes of a nursing mother equally with 
 the common law."ff 
 
 A statute may be penal in one part, and remedial in another 
 part. % J And in the same act of Parliament a strict construction 
 may be put on a penal clause, and a liberal construction on a 
 
 * Ch. Prac. 215; Dwarris, 653. trustees of a religious corporation to be annu- 
 
 j- Admx. of Tracy v. Admr. of Card, 2 ully chosen, that an annual election held each 
 
 Ohio State Rep. N. S. 431. year on Pinxter Monday (Monday after Whit- 
 
 } Gillet v. Moody, 3 Corns. 479. The re- Sunday), though a movable holiday, and not a 
 
 mark was, it is true, obiter. day certain, was good. 
 
 || State, use of l^prigg, v. Jones et al. 8 ** Act of 29th March, 1824, c. 126, 7. 
 Maryland, p. 88. ff White v. Carpenter, 2 Paige, 217, 229. 
 
 fThe people v. Runkel, 9 J. R. 147. \\ Hyde v. Cogan, Douglas, 702; Dwar- 
 
 Where held under a statute requiring the ris, 655. 
 
EQUITY OF A STATUTE. 311 
 
 remedial clause. This has been done in regard to the statutes 
 which make it a felony to burn a house, or other property, and, 
 at the same time, give those who suffer from the felony a 
 remedy against the hundred.* 
 
 The Equity of a Statute is immediately connected with this 
 branch of our subject. (a) This doctrine which has been 
 applied, as we have seen, to the statute of frauds and the regis- 
 try laws and the statute of limitations, grew out of the peculiar 
 ideas that were engendered in the minds of the English lawyers 
 by the double organization of the tribunals of justice : while 
 the common-law courts sat to administer the strict rules of law 
 the courts of equity arrogated to themselves the duty of doing 
 justice on a more enlarged and liberal scale, and in the early 
 days of their organization carried their power so far as to over- 
 ride the express words of statutes where in the particular case 
 it appeared to them to work hardship or inconvenience. This 
 power in regard to statutes is, however, now looked on with 
 distrust; and courts of chancery endeavor to adhere to the 
 much more logical rule that equity follows the law. It cannot 
 be denied, however, that a large class of exceptions has been 
 introduced and established. Indeed, there is nothing more curi- 
 ous in the history of jurisprudence than the successful efforts of 
 courts of equity to defeat the operation of the statute of frauds 
 
 * Dwarris, 656. 
 
 (a) Equity of Statutes. Where the language is unambiguous, there is no room for 
 construction. Thus where a statute of Connecticut validated deeds of land, " exe- 
 cuted and acknowledged in any other State, etc., in conformity with the laws of such 
 State, etc., relative to the conveyance of lands therein situated," it was held not to 
 apply to a deed executed in New York of land in Connecticut, defective if executed 
 in Connecticut, because it had but one witness, and not in conformity with the law 
 of New York, because it was acknowledged before a Connecticut commissioner. 
 Farrell Foundry v. Dart, 26 Conn. 376. 
 
 The rule as to the equity of a statute, is said to be especially applicable to statutes 
 concerning practice and procedure. Hoguet v. Wallace, 4 Dutch. 523. 
 
 Where a statute enacted that, in the case of sales theretofore or thereafter made 
 under the provisions of a specified chapter and section of the Revised Statutes, the 
 burden of showing certain irregularities should be on the one objecting to the sale, 
 it was held to apply to sales made under earlier statutes of a similar purport to the 
 designated chapter and section. Chandler v. Northrop, 24 Barb. 129. 
 
 A person accused of crime cannot be convicted, on the ground that he comes 
 within the equity of a statute. U. S. V. Ragsdale, 1 Hemps. 497. 
 
312 STATUTES LIBERALLY CONSTRUED. 
 
 requiring agreements for the sale of lands to be in writing.* 
 So, the statute was disregarded in cases where the contract 
 though not in writing was admitted in the answer, subject, 
 however, to the question w r hether the benefit of the statute w r as 
 insisted on. So again, where the bargain has been in part per- 
 formed, subject, however, to the question what is a part per- 
 formance. In cases of this kind and in others the courts of 
 equity treated the statute very much as if it had never been 
 made, not, however, without the protest of very able judges, f 
 Mr. Justice Story says, " It is obvious that courts of equity are 
 bound as much as courts of law by the provisions of this stat- 
 ute, and therefore they are not at liberty to disregard them. 
 That they do, however, interfere in some cases within the reason 
 of the statute is equally certain." J 
 
 At law a judgment is a general lien upon all the legal in 
 terest of the debtor in his real estate; but in chancery that gen- 
 eral lien is controlled by equity so as to protect the rights of 
 those who are entitled to an equitable interest in the lands or 
 in the proceeds thereof. | 
 
 Some other cases where statutes have been liberally con- 
 strued, may here be noticed, (a) The Massachusetts statute of 
 
 * The subject is treated at large by Mr. \ Story, Eq. Jurisprudence, 754. 
 
 Justice Story, in his work on Equity Juris- | W bite v. Carpenter, 2 Paige, 2 1 7 ; Keir- 
 
 prudence, 753, etscq. See ante, p. 83. sted v. Avery, 4 Paige, 9; Buchan v. Sum- 
 
 j- See Lord Redesdale, in Lindsay v. ner, 2 Barb. Ch. R. 165. 
 Lynch, 2 Sch. and Lef. 5, 7, 8. 
 
 (a) Liberal Construction. The following are some illustrations of statutes and classes 
 of statutes to which the rule of liberal construction has been applied: Those intended 
 to promote the public convenience, e. g., an act giving power to the corporation of 
 N. Y. City, to enlarge the slips for shipping, was held to include lengthening as well 
 as widening, and not to be limited to those already existing. Marshall v. Vultee, 1 
 E. D. Smith, 294 ; statutes as to arbitrations, Tuskaloosa Bridge Co. v. Jemison, 33 
 Ala. 476; but per contra, Burnside v. Whitney, 21 N. Y. 148; homestead exemption 
 laws, Charless v. Lamberson, 1 Clarke (la.) 435 ; statutes allowing judgments ob- 
 tained by fraud to be opened, Sharp v. N. Y. 31 Barb. 572 ; acts regulating practice 
 and procedure so far as they are remedial, Hoguet v. Wallace, 4 Dutch. 523, where a 
 statute allowing judgment in vacation on nil elicit was held to authorize such judg- 
 ment on a cognovit as within the equity of the act ; statutes allowing appeals, Pear- 
 son v. Lovejoy, 53 Barb. 407. 
 
 Clauses in favor of persons from whom property is to be summarily taken ; e. g., 
 clauses providing in favor of tax payers, that assessors shall sit so many days to re- 
 vise assessments, .are to receive a construction most favorable to the tax payers. 
 Walker v. Chicago, 56 111. 277. Statutes for redemption from tax sales are to be 
 
STATUTES LIBERALLY CONSTRUED. 313 
 
 trustee process, or for reaching the property of a debtor in the 
 hands of third persons, declares that every person having any 
 goods, effects, or credit of the principal defendant, intrusted or 
 deposited in his hands or possession, may be summoned as 
 trustee. In an action under the statute the alleged trustee ad- 
 mitted that he had a cow of the defendant's in his possession, but 
 averred that he had no claim to her of any kind whatever, and 
 insisted on this ground that he could not be summoned as a 
 trustee. It was said by the court that, admitting that accord- 
 ing to the letter of the statute the defendant was liable, still 
 "that statutes are to be construed according to the intentions 
 of the makers, if these can be ascertained with reasonable cer- 
 tainty, although such construction may seem contrary to the 
 ordinary meaning of the letter of the. statute; " and it was 
 added, " We think it never could have been the intention of the 
 Legislature that the possession of property by a party having 
 no claim to hold it against the owner should render him liable 
 therefor as trustee, and thereby subject him. to trouble and ex- 
 pense in answering a claim in which he has no interest. Such 
 a construction of the statute would be prejudicial in many cases, 
 and cannot be admitted." * 
 
 An interesting question on the construction of railroad acts, 
 has arisen in Massachusetts. A charter, passed in 1845, author- 
 ized a railroad corporation to make a branch from the village 
 of Cabotville to that of Chicopee Falls, without defining the 
 route. The road was laid down on a main street or highway 
 in Cabotville. On a bill filed for an injunction, it was said that, 
 by a railroad grant in such general terms, prima facie the 
 power to run on the highway could not be inferred, as the use 
 of it by the railroad was inconsistent with its original destina- 
 tion. That such power could only be given by express words 
 or necessary implication. That such necessary implication might 
 arise from the application of the act to the subject-matter, as for 
 
 * Staniels and another v. Raymond, &c. Trustee, 4 Gush. 314. 
 
 liberally construed in favor of the owners, and especially so when they provide in- 
 demnity for the purchaser, and impose a penalty on the delinquent, Corbett v. Nutt, 
 10 Wall. 464. Acts conferring a limited jurisdiction are to be strictly construed as 
 to jurisdiction, but liberally as to procedure. Russell v. Wheeler, 1 Hemps. 8. 
 
314 STATUTES LIBERALLY CONSTRUED. 
 
 instance if the railroad could not by reasonable intendrnent be 
 laid on any other line ; and it was referred to commissioners to 
 ascertain the fact.* 
 
 In a great fire which took place in the city of New York, 
 in December, 1835, a building owned by Rufus L. Lord, and 
 occupied by Daniel N. Lord as his tenant, for a year from 1st 
 May, 1835, was destroyed by the order of the mayor, to prevent 
 the spreading of the conflagration. The statute authorizing 
 the action of the mayor in similar cases, provided if any build- 
 ing was so destroyed, that, upon the application of any person 
 interested in such building, a precept should issue for a jury to 
 inquire of, and assess the damages which the owner of such 
 building, and all persons having any estate or interest therein, 
 should have sustained by the destruction, and after inquiry 
 and assessment, the sum assessed should be paid in full satisfac- 
 tion of all demands of such persons respectively by reason of 
 the destruction of the buildings ; the sum assessed for any build- 
 ing so destroyed as aforesaid, to be borne and defrayed by the 
 city government. The damages of the owner of the building 
 were assessed at $7,168 50, and of the tenant, for his goods, 
 $156,27480; but it was insisted that, by the words of the 
 statute, no recovery could be had for anything but the building, 
 and that injury to personal property in it was not covered. 
 The entire assessment was, however, sustained, on the ground 
 that the statute was remedial, and should be liberally con- 
 strued.f 
 
 * Inhabs. of Springfield v. Conn. River R. The Mayor <fec. of New York, 25 Wend. 177, 
 R. Co. 4 Cush. 63. I may be permitted to say, an effort was made to carry the construction 
 that unless the Supreme Court of Massachu- of the statute so far as to entitle the lessee of 
 setts have some statutory power peculiar to a building destroyed by order of the mayor 
 themselves, and to that State, the true course to recover for merchandise destroyed, which 
 would seem to have been to decide the case did not belong to the lessee, but was the prop- 
 on the words of the act. To refer the case to erty of others, in his possession as a factor, 
 commissioners on a question of fact as to the or merely on storage; but this interpretation 
 practicability of running the road on the street, was rejected. 
 
 if that question had not been, considered be- In Russell v. The Mayor &c. of New York, 
 fore the passage of the act, was to substitute 2 Denio, 461, the authority conferred on the 
 the judgment of the commissioners for that of mayor, by this statute, was said not to be a 
 the Legislature. If the Legislature had con- grant of the right of eminent domain, and 
 sidered the question.it was a revision of their therefore not within the constitutional pro- 
 decision on a matter of which they should be vision as to private property ; but that it was 
 the sole judges. only a regulation of the right which individ- 
 
 f Mayor of New York v. Lord, 17 Wend, uals possess, in cases of inevitable necessity, 
 
 285 ; 18 Ibid. 126. See Mr. Justice Bronson's to destroy property to prevent an impending 
 
 able dissenting opinion. calamity. 
 
 In a subsequent case, Stone and others v. 
 
STATUTES LIBERALLY CONSTRUED. 315 
 
 In regard to the New York act, enabling limited partner- 
 ships to be formed by making certain publications specified by 
 the statute, and declared necessary in order to restrict the 
 liability of the special partner, it has been held, that the terms 
 of the statute must be substantially complied with, but that 
 mere errors of form, either unintentional, or not calculated to 
 mislead, will be overlooked. So, the mistake in the printed 
 notice of one month for another,* or the misprint of a name,f 
 not likely to lead into error, will be disregarded ; but a mis- 
 print of the sum put in as capital, as where it is asserted to be 
 jive thousand instead of two, is regarded as fatal, and converts 
 the special into a general partner. J 
 
 A statute relating to principals and factors declared, that 
 one intrusted with the possession of the goods of another for 
 the purpose of sale, should be deemed the true owner, so far as 
 to give validity to a disposition thereof for money advanced, 
 upon which it has been held in New York, that this does not 
 protect a party who had made advances to such factor, with a 
 knowledge that he was not the owner of the goods, on the 
 ground that a contrary construction would authorize the agent 
 or factor, by connivance to commit a fraud on the principal. ( 
 
 So, where the United States bankrupt act declares (act of 
 1841, 4), that the certificate may be pleaded as a full bar, it 
 has been held that the word pleaded was not to be strictly 
 construed, and that the certificate might be proved under a 
 notice attached to the plea, under the old system of pleading. ^ 
 
 A statute restraining any person from doing certain acts, 
 applies equally to corporations or bodies politic, although not 
 mentioned.** 
 
 We have thus far examined two classes of decisions, one in 
 which statutes have been strictly construed, and another in 
 which they have been liberally or equitably interpreted. Our 
 
 * Madison Co. Bank v. Gould, 5 Hill, 309. person embraces the State, foreign govern- 
 
 f Bowen v. Argall, 24 Wend. 496. ments, autt corporations, i. e., when the word 
 
 i Smith v. Argall, 6 Hill, 479. person is used to designate the party whose 
 
 Stevens v. Wilson, 3 Denio, 472, 475. property may be the subject of any offence. 
 
 Tf Campbell v. Perkins, 4 Selden, 430 ; 2 R. S. part iv, chap, i, title 7, 36. The 
 
 Ruckman v. Cowell, 1 Comstock, 505. Revised Statutes have in many cases, defined 
 
 ** People v. Utica Ins. Co. 15 J. R. 358, the meaning of the terms made use of by the 
 
 381, 382. By the Revised Statutes of New revisors. See Index, tit. Definitions. 
 York, in certain criminal cases, the word 
 
316 STATUTES WHEN TREATED AS DIRECTORY. 
 
 consideration of the subject will not, however, be complete, till 
 we shall have discussed the very curious class of cases in which 
 the legislative enactment is neither strictly nor liberally con- 
 strued, but simply disregarded altogether. This takes place 
 where the mandate of a statute is called, and regarded as, 
 directory. 
 
 Statutes when held to be Directory, (a) When statutes direct 
 
 (a) Directory and Mandatory. Affirmative words, without negative, are often 
 held directory; thus a statute declaring that a fi.fa. shall issue, and on its return, 
 etc., a ca. sa. does not, it seems render void a ca. sa. issued in the first instance, there 
 being no negative words. State v. Baker, 9 Kich. Eq. 521. Statutes prescribing 
 the time within which an act shall be done, without any negative or prohibitory 
 words, are directory. State v. Harris, 17 Ohio, N. S. 608, where a tax was directed 
 to be levied in the year 1866, and it was held that it could be levied in another 
 year. Looney v. Hughes, 30 Barb. 605 ; Tuohy v. Chase, 30 Cal. 524 ; People y. 
 Lake Co. 33 Cal. 487 ; People v. Rochester, 5 Lans. 11; Shaw v. Orr, 30 Iowa, 355; 
 Corbett v. Bradley, 7 Nev. 106 ; State v. Homer, 34 Md. 569. Where a statute 
 defines the time within which an act may be done, e. g., where it allows ten days for 
 filing an answer, it may be done at any time until some action of the court or of the 
 adverse party concludes the right. Lewis v. Labauve, 13 La. Ann. 382. But in 
 People v. McCreery, 34 Cal. 432, the time of levy was held mandatory. Also statutes 
 as to the time within which laws are to be published may be treated as directory, 
 but still the publication cannot be indefinitely postponed, the fact that wrong and 
 injury may result from the delay, making some reasonable limit necessary. State v. 
 Lean, 9 Wise. 279. 
 
 A license law prescribing what books should be kept with tabular forms, etc., 
 and declaring sales void, where there was any breach of the act, a substantial com- 
 pliance was held sufficient. Barnard v. Houghton, 34 Vt. 264. 
 
 Enabling statutes impliedly prohibit any other than the statutory mode of doing 
 the act, e. g., a statute enabling married women to convey their property and pre- 
 scribing the mode of acknowledging their deeds. Dalton v. Murphy, 30 Miss. 59. 
 
 The following are illustrations of statutes and provisions which have been held 
 mandatory; a provision that sheriffs' sales should be at the court-house, it being 
 essential for the protection of debtors, and there being certain excepted cases 
 specified in the statute. Koch v. Bridges, 45 Miss. 247 ; a statute prescribing the 
 requisites of a bond to be given before an attachment is issued. Blake v. Sherman, 
 12 Minn. 420. A provision in an act consolidating a city and county that surviving 
 debts should be paid, although an ordinance was necessary to carry out the 
 command, and a mandamus for that purpose was granted. Frank v. San Francisco, 
 21 Cal. 668. Where a statute imposes a duty, and gives the means of performing it, 
 e. g., furnishing aid to families of volunteers. Veazie v. China, 50 Me. 518 ; Milford 
 v. Orono, Ib. 529. A provision that a person serving a summons, should indorse the 
 date of the service thereon. Wendel v. Durbin, 26 Wise. 390. A provision for the 
 proclamation of a vacancy and of an election to fill the same, before holding such 
 election. McKune v. Weller, 11 Cal. 49. A statute which prohibits one thing until 
 another is done, is mandatory. Stayton v. Hulings, 7 Ind. 144. 
 
 Power conferred by statute on public officers, concerning rights of third parties, 
 
STATUTES WHEN TREATED AS DIRECTORY. 317 
 
 certain proceedings to be done in a certain way or at a certain 
 time, and a strict compliance with these provisions of time and 
 
 may be enforced as a duty, though the language is permissive. Hogan v. Devlin, 2 
 Daly, 184. If a public body is clothed with the right to do a thing which public 
 interest requires to be done, the execution of the power may be enforced as a duty, 
 although the language of the statute is simply permissive. Hines v. Lockport, 5 
 Lans. 16, 21. A statute "authorizing" supervisors to change the _grade of a certain 
 street, was held mandatory, there being other provisions of the statute, which 
 negatived any intent to leave the matter to discretion. People v. San Francisco, 36 
 Cal. 595. 
 
 The following are illustrations of statutes and provisions which have been held 
 directory : a provision requiring loan commissioners to make entries of their doings 
 in a book. Wood v. Terry, 4 Lans. 80. A provision that the judge shall caution 
 the jury, etc. Thompson v. State, 26 Ark. 823. Certain provisions as to the mode 
 of obtaining jurors. State v. Carney, 20 Iowa, 82. Directions to public officers as to 
 holding election. Taylor v. Taylor, 10 Minn. 107. And as to time of closing the 
 polls. Fry v. Booth, 19 Ohio, N. S. 25. Requirement for filing a copy of a map, 
 where a contract for making a sewer until such filing is not prohibited. In re N. Y. 
 P. E. Pub. School, 47 N. Y. 556. A statute authorizing supervisors to " contract " 
 for a certain map, and making it their duty to do so, is directory, the word " contract " 
 and the fact that size, etc., are not specified imply discretion. Bowers v. Sonoma 
 Co. 32 Cal. 66. Directory acts are said to be those which are not of the substance of 
 the thing provided for. McKune v. Weller, 11 Cal. 49. For an example of affirmative 
 language construed as directory, and negative as prohibitory, see matter of Douglas, 
 58 Barb. 174. 
 
 Constitutional Provisions. The following special constitutional provisions have 
 been held mandatory : that bills shall be read three times, and that votes shall be by 
 yeas and nays, etc. Supervisors v. Heenan, 2 Minn. 330 ; Stechert v. East Saginaw, 
 22 Mich. 104. That " the Legislature shall establish but one system of town and 
 county government," which shall be " as nearly uniform as practicable." State v. 
 Dousman, 28 Wise. 541. That no county containing nine hundred square miles or less, 
 shall be divided without popular vote. State v. Merriman, 6 Wise. 14. A requirement 
 of "proportional" taxation. Oliver v. Washington Mills, 11 Allen, 268. The 
 declaration in a bill of rights, that " all property subject to taxation ought to be 
 taxed in proportion to its value ; " any other mode is prohibited. Life Association, 
 &c. v. A?sessors, 49 Mo. 512. The provision in the schedule to a Constitution 
 requiring all officers to qualify within fifteen days after notice of appointment. 
 State v. Johnson, 26 Ark. 281. 
 
 The following special constitutional provisions have been held directory : a require- 
 ment that judges shall give a written opinion on each question arising on the record. 
 Willets v. Ridgway, 9 Ind. 367. Requirement of an oath of allegiance by the 
 members of the Legislature. Hill v. Boyland, 40 Miss. 618 ; Thomas v. Taylor, 6 
 Nev. 651. 
 
 The two preceding cases suggest a partial test to determine whether provisions 
 are directory or mandatory : namely, if no legal sanction is provided, by which a 
 compliance with them can be enforced, they are plainly directory. Thus, the 
 provisions last mentioned are without such sanction, for it could not be pretended 
 that judgments of a court are nullities, because the judges did not write an opinion 
 
318 STATUTES WHEN TREATED AS DIRECTORY. 
 
 form does not appear essential to the judicial mind, the pro- 
 ceedings are held valid, though the command of the statute is 
 
 O ' O 
 
 disregarded or disobeyed. In these cases, by a somewhat 
 singular use of language, the statute is said to be directory. 
 In other cases the statute is held to be imperative or mandatory.* 
 
 The great importance of this branch of our subject is at once 
 apparent ; and conceding as we must the power, it is equally 
 apparent that the questions which arise under this head are not 
 properly those of construction or interpretation. They are 
 questions rather of application. The statute is sufficiently 
 clear ; the only point, is what shall be the consequence of a dis- 
 obedience of its directions. . 
 
 Neither the idea that statutory provisions may, to a certain 
 extent, with impunity be disregarded, nor the phrase that in 
 these cases they are treated as directory, is of any recent origin. 
 In an early case on a municipal election, the mayor was to be 
 chosen out of the aldermen who were " annuatim eligend; " but 
 it appeared that the aldermen present at the mayor's election 
 had been in office several years, and none of them had been re- 
 elected within a year. The King's Bench held the election void ; 
 but upon error in the Exchequer Chamber and two solemn ar- 
 guments, the judgment was reversed, and the words " annuatim 
 eligend " were held to be directory only ; and the reversal was 
 affirmed in Parliament. f So, in an early case Lord Mansfield 
 
 * Directions given by a sovereign in to be directory." Entwhistle v. Dent, 1 Exch. 
 
 regard to a matter over which his power is 811, 823, per Pollock, C. B. 
 conceded, would according to the ordinary \ Foot v. Prowse, Mayor de Truro, 
 
 use of language, be held to involve, as its Strange, 625, 11 George I. In the preface of 
 
 correlative, obedience. But, as in the cases this volume, I may here remark in passing, 
 
 now under consideration, obedience is dis- Sir John Strange, who was Master of the 
 
 pensed with by the judiciary, the statute Rolls, complains that " the profession of the 
 
 might be better called advisory. The phrase law is already overburthened with reports ! " 
 is the more calculated to mislead, as it is In the case of the Queen v. Corporation of 
 
 frequently used in the strict and proper sense Durham, 10 Mod. 146, 147, the K. B. said that 
 
 of the word. So, when a commercial letter though a town clerk be annuatim eligibilis, he 
 
 of instructions contained the phrase " you remains town clerk after the year, and until 
 
 may invest the proceeds as follows, <fec., <fec.," another was chosen ; but if he had been 
 
 the Court of Exchequer interpreted these eligibilis pro uno anno tanlum, his office would 
 
 words as conveying a peremptory manadate, have expired at the end of the year, 
 saying, " These words are to be construed to 
 
 upon all the questions raised by the record, nor that all acts of a Legislature are void, 
 "because the members thereof did not take the required oath. But this test is not, 
 under the decisions, universal, because, as it appears from many of the foregoing 
 cases, as well as from those gfven in the text, the courts have frequently held 
 provisions to be directory, which could be enforced by legal sanctions. Whether 
 this simple test should not have been originally adopted, it is now too late to inquire. 
 
STATUTES WHEN TREATED AS DIRECTORY. 319 
 
 said, " There is a known distinction between circumstances which 
 are of the essence of a thing required to be done by an act of 
 Parliament, and clauses merely directory. The precise time in 
 many cases is not of the essence." ' 
 
 From the English jurisprudence the doctrine was adopted 
 in our own ; and of late years, owing partly to the immense 
 multiplicity of statutes, and the haste and carelessness with 
 which they are drawn, partly to the want of education and sys- 
 tem on the part of subordinate officers clothed with important 
 trusts, this practice of treating statutes has been carried to a 
 very great extent. In order to give an accurate idea of the 
 state of the law in this respect, our attention will now be given 
 to some of the prominent decisions made in both countries. 
 
 In some cases it has been intimated that the character and 
 construction of the statute would be determined by the use of 
 affirmative or negative words. That is to say, that a mere 
 affirmative command would be held to be directory ; but that 
 if the statute declared the act should be done in no other way, 
 it would be held to be imperative or mandatory. 
 
 Again, the decision has turned on the mere phraseology of 
 the act. So, where a marriage act declared that " the consent 
 of the father, etc., is hereby required for the marriage " of a 
 child under age, the words were held directory only, Lord Ten- 
 terden saying, " The language of this section is merely to require 
 consent ; it does not proceed to make the marriage void if sol- 
 emnized without consent."f 
 
 Again, it may turn on whether the direction is inserted in 
 the shape of a proviso, and upon the mode in which the proviso 
 is framed. Where a statute declared that guardians of the 
 poor should have power to bind as apprentices, "provided that 
 the children should not be bound for a longer term than " till a 
 certain age, an indenture binding a child for a longer term 
 than that allowed by the act, was held not absolutely void, but 
 merely voidable, on the ground, that tjas proviso " was only as 
 mild a form of directing, and only directing, as could be ; " that 
 the act did not declare the binding null and void, nor contain 
 
 * Rex v. Loxdale, 1 Burr. 447. See, also, Alabama, 619 ; Rex v. Justices of Leicester, 
 
 as to the different effect of affirmative or nega- 7 B. <fe C. 6 ; s. c. 9 D. & R. 772. 
 
 tive -words as to making a statute imperative f Rex A r . Inhabts. of Birmingham, 8 B. & 
 
 or directory, Savage et al. v. Walsh et al. 26 C. 29, 35. 
 
320 STATUTES WHEN TREATED AS DIRECTORY. 
 
 any penalty, nor any words to make it illegal ; nor was public 
 policy in any way concerned in setting the bond aside.* By a 
 paving act, commissioners were empowered to enter into con- 
 tracts for the work, provided that no contract should be made 
 for a longer term than three years ; and the act then went on 
 to declare that ten days' notice of proposals should be given, 
 that the contracts should specify the work, the price, and the 
 time of completion, and should be signed by at least three of 
 the commissioners, and that copies should be kept. It was held 
 that the proviso as to the term of the contract was imperative, 
 but that all the other clauses were merely directory (Tindal, C. 
 J., saying, "The act says that the contracts shall be signed 
 by the commissioner, &c. ; it does not say that they shall be 
 void unless so signed "), and that a contract was good without 
 them. Here it is obvious that provisions inserted by the Legis- 
 lature for the protection of tax-payers, were nullified by a judi- 
 cial decision.f 
 
 In New York, an effort has been made to declare a rule for 
 cases of this class. Where a statute authorized the command- 
 ing officer of each brigade of infantry, on or before the first day 
 of June to appoint a brigade court martial, in an action for fines 
 imposed by a court martial it appeared that the court was not 
 appointed till July, and it was objected that the fines were ille- 
 gally imposed ; but the statute was held to be directory merely ; 
 and it was said, " There is nothing in the nature of the power 
 showing that it might not be as effectually exercised after the 
 first of June as before, and the act giving it contains no prohi- 
 bition to exercise it after that period." It was considered a 
 mere direction, and not a limitation ; and the court proceeded 
 to add, " The general rule is, that where a statute specifies the 
 time within which a public officer is to perform an official act 
 regarding the rights and duties of others, it will be considered 
 as directory merely, unless the nature of the act to be per- 
 
 * The King v. Inhabts. of St. Gregory, 2 no copies. The embarrassment in these cases, 
 
 Ad. & Ell. 99. See Rex v. Inhabts. of Hips- as I shall have occasion again to observe, ap- 
 
 well, 8 B. & C. 466. pears chiefly to arise from the statute either 
 
 f Cole v. Green, 6 Man. & G. 872, 890. connecting together provisions of very une- 
 
 This seems clear as to the clauses requiring qual importance, or from its omitting to pre- 
 
 notice of the proposals, and detailed con- scribe the consequenses of a violation of its 
 
 tracts ; and yet it was difficult to hold that the directions, 
 contracts should be violated if the clerks kept 
 
STATUTES WHEN TREATED AS DIRECTORY. 321 
 
 formed, or the language used by the Legislature, shows that the 
 designation of the time was intended as a limitation of the 
 
 O 
 
 power of the officer." * 
 
 I A Massachusetts, where a statute required the assessors to 
 assess a tax within, thirty days after the vote of the- tax being 
 certified to them, it was held that the naming the time for the 
 assessment was to be considered as directory to the assessors, 
 and not as a limitation of their authority, f So in New York, 
 where a school tax was voted at a meeting of which no notice 
 was given as required by statute, and afterwards levied, the 
 act was held to be directory merely, and the tax to be well 
 laid. J A statute requiring a tax to be assessed, and the tax- 
 list therefor to be made out by the trustees, and a proper war- 
 rant attached thereto within thirty days after the district meet- 
 ing in which the tax shall have been voted, is merely directory 
 as to time. It being for the benefit of the public, those acts 
 may be done after the time specified in the statute has elapsed. | 
 It may perhaps be doubted whether these cases do not conflict 
 with the wholesome strictness required, as we have seen, in 
 summary administrative proceedings. So again, where a city 
 ordinance required a superintendent of streets to keep an ac- 
 count of the expenses done under an assessment, and to report 
 the same in ten days, the provision was held to be merely 
 directory, and not a condition precedent to the making of a 
 valid assessment. *[[ 
 
 The Revised Statutes of New York ** provide that every 
 person elected to the office of sheriff shall within twenty days 
 after he shall receive notice of his election, execute a bond, <fec., 
 to the people of the State. This provision also has been held 
 to be a direction, and not a limitation. ff In another recent case 
 in the same State, it was said that statutory requisitions are 
 
 * The People v. Allen, 6 Wendell, 487, tory provisions as to time and notice of hold- 
 
 488, per Marcy, J. The act regulating sales ing, <fec., have not been complied with, 
 of real property on an execution, makes it the f Pond v .Ve^us et al. 3 Mass. 230 ; Wil- 
 
 duty of sheriffs to file a certificate of sale in liams v. School District, 21 Pick. 75. 
 the clerk's office in ten days after the sale \ Marchant v. Langworthy, 6 Hill, 646 ; 
 
 takes place ; but this omission does not affect 3 Denio, 6'26. 
 
 the validity of the sale. Jackson ex dem. \\ Gale v. Mead, 2 Denio, 160 ; Thomas v. 
 
 Hooker v. Young, 5 Cowen, 269. See The Clapp, 20 Barb. 165. 
 
 People v. Kunkle, 9 J. R. 147, and The People Tf City of Lowell v. Hadley, 8 Met. 180. 
 v. Peck, 11 Wend. 604, for cases where church ** 1 R. S. 378, 67. 
 
 elections have been held good though statu- f f The People v. Holley, 12 Wend. 481. 
 21 
 
322 STATUTES WHEN TREATED AS DIRECTORY. 
 
 deemed directory only when they relate to some immaterial 
 matter, where a compliance is a matter of convenience 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, f 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 ap- 
 plied 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 punish- 
 ment of the officers for wilful or corrupt conduct ; that no ac- 
 tual evidence of fraud was adduced, nor any proof that the 
 irregularity complained of had produced an improper result. | 
 
 I think it may well be doubted whether in the desire to 
 sustain proceedings against which no bad faith has been al- 
 eged, 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 en- 
 tire impunity as to the result of the particular 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 per- 
 sonally. 
 
 The general principle, that statutory provisions may in cer- 
 tain 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 con- 
 
 * The People v. Schermerhorn, 19 Barb. \ In the Matter of the Mohawk and Hud- 
 
 540. son R. R. Co. 19 Wend. 143. 
 
 f Striker v. Kelly, 7 Hill, 9. J People v. Cook, 14 Barbour, 259 ; s. c. 
 
 4 Seld. 88, 89, 93. 
 
STATUTES WHEN" TREATED AS DIRECTORY. 323 
 
 cerned.* 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 reviewed, although no two of the arbi- 
 trators appointed by him had the prescribed qualifications^ 
 So, too, in Louisiana, it has been held that a provision in an 
 act providing for the subscription by municipal corporations, 
 to the stock of companies undertaking works of internal im- 
 provement, requiring that the commissioners of election should 
 be furnished with a properly certified list of the authorized 
 voters, is directory merely.^ In Connecticut, it has been said 
 that, when a duty is required by statute to be performed on a 
 certain day, and the object contemplated by the Legislature 
 cannot otherwise be carried into eifect, the time prescribed 
 must be considered imperative ; but if there is nothing indi- 
 cating that the exact time is essential, it is to be considered as 
 
 O ' 
 
 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. I In Alabama, a clause in an act for the final settlement 
 of the affairs of a bank, requiring the trustees to sell the re- 
 maining property, " within thirty days from the first Monday 
 in November," has been held not to be mandatory, but direct- 
 ory merely ; and that a sale made after the expiration of the 
 time specified was good, on the ground that the act contained 
 merely affirmative, and not negative words, ^f 
 
 I may here notice that this same principle has been applied 
 
 * The People v. John Doe, 1 Michigan, twelve months to compel the surveyor to sur- 
 
 452, 453. Te J. an( i obtained ; but the survey was not 
 
 f The State v. McGinley, 4 Indiana Re- completed within the twelve months. It was 
 
 ports, p. 7. held, nevertheless, that the survey was valid, 
 
 \ City of New Orleans v. St. Rowes, 9 La. on the ground that it was not intended to 
 
 Ann. R. 573. Vide the dissenting opinion of compel a party to do an act wholly out of his 
 
 Buchanan, J. power. Edwards v. James, 13 Texas, 52. 
 
 | Colt v. Eves, 12 Conn. 243. ^ Savage et al. v. Walsh et al. 26 Ala. 
 
 A statute in Texas provided that certain 620. For other cases see Ex parte Heath and 
 lands theretofore located, should be surveyed others, 3 Hill, 42 ; People v. Holley, 12 Wend, 
 within twelve months, or the location should 481 ; Jackson v. Young, 5 Cowen, 26&; Hoi- 
 be null and void. The locator applied to the land et al. v. Osgood, 8 Verm. 276, and Cor- 
 surveyor to survey, and the surveyor refused, lisa v. Corliss, Ibid. 373. 
 A mandamus was applied for within the 
 
324 STATUTES WHEN TREATED AS DIRECTORY. 
 
 to the construction of Constitutions. The Constitution of New 
 York provides, in regard to all laws, " that the question upon 
 the final passage shall be taken immediately upon the last read- 
 ing, 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 lax- 
 ness, 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 sanc- 
 tioning the evasion or disregard of statutes, which we have had 
 occasion to notice in the cases thus examined, has been earned 
 beyond the line of sound discretion. This idea has been re- 
 peatedly expressed. " I am not very well satisfied with the 
 summary mode of getting rid of a statutory provision, by call- 
 ing it directory," says Hubbard, J., in the Supreme Court of 
 Vermont. " If one positive requirement and provision of a 
 statute may be avoided in that way, I see no reason why an- 
 other may not."f But it is not to be denied that the practical 
 inconveniences likely to result from insisting with literal sever- 
 ity on strict compliance with all the minute details which 
 modern statutes contain, 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 absurd- 
 ity. If it should be thought, on a review of these cases, that 
 the judiciary have, in regard to the construction of statutes as 
 directory, really infringed on the province of 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 consequence which the lawmaker intends to follow from 
 the disregard of his directions. "Perhaps," says Lord Den- 
 man, 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." J 
 
 * The People against the Supervisors of f Briggs v. Georgia, 15 Verm. 61, 72. 
 Chenango, 4 Seld. 317. See also Lehman v. | Reg. v. Inhabs. of Fordham, 1 1 A. & E. 88. 
 
 McBride, 15 Ohio, N. S. 573. "When a statute prescribes how it shall be 
 
GENERAL RULES. 325 
 
 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 ex- 
 amined in this chapter, we find that sometimes laws are con- 
 strued strictly, and sometimes liberally, sometimes liberally for 
 one purpose, or in one aspect, and strictly in another, some- 
 times exceptions are inserted to obviate suggestions of hardship 
 or inconvenience, and sometimes the courts refuse to make such 
 qualifications, sometimes statutes are interpreted with strict 
 and literal severity, and sometimes 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 sure to~ 
 result from a latitude of construction so considerable as we find 
 to exist ; and I, therefore, attempt, with great deference for the 
 able and learned magistrates who are practically engaged in 
 the administration 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 absolutely 
 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 enact- 
 ment.* (a) 
 
 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 siibject, antecedent jurisprudence and 
 legislation, contemporaneous and more recent exposition, judi- 
 
 construed, the courts are bound by such pro- is left for construction ; " " resort is not per- 
 
 vision. Smith v. State, 28 Ind. 321. mitted to extrinsic facts, to ascertain the 
 
 * No principle is more firmly established, meaning of a statute otherwise clear." Per 
 
 or rests on more secure foundations, than the Goldthwaite, J., in Bartlett v. Morris, 9 Por- 
 
 rule which declares, when a law is plain and ter, Ala. 268, 269. See this case, also, with 
 
 unambiguous, whether it be expressed in reference to the point that the title of a 
 
 general or limited terms, that the Legislature statute may explain what is doubtful, but 
 
 shall be intended to mean what they have cannot control what is contained in the body 
 
 plainly expressed, and consequently no room of the act. 
 
 (a) As to where a discretion is vested in officers not to be reviewed by the court, 
 see Hargreaves v. Smith, 3 B. & S. 611. 
 

 326 GENERAL RULES. 
 
 cial 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 consideration. 
 
 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 construing a statute, 
 strictly or liberally, with reference either to the particular 
 character of the statute, or to their own ideas of policy or 
 equity. Where the meaning of the statute, as it stands, is 
 clear, they have no power to insert qualifications, eograffc excep- 
 tions, 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 ambiguous, 
 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 can be laid down than that it must be 
 exerted under the guidance of learning, fidelity, and practical 
 s agacity. 
 
 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 
 
 o o 
 
 framed so as to specify with precision the consequences intended 
 io follow upon a disregard 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 labyrinth 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 at- 
 tention 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 remedial statute, either as in 
 derogation of the common law or a beneficial innovation, is, 
 in its very nature, delusive and fallacious. Every statute may 
 
INTENTION OF THE LEGISLATURE. 327 
 
 be said to have two aspects ; if it be severe in regard to an 
 individual, it is beneficial to the community ; 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 procedure ; so that every act is 
 capable, if this doctrine be admitted, of being construed in two 
 ways dianfetrically 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 differ- 
 ent circumstances. The acts diminishing the severity of 
 imprisonment for debt, will be at one time looked upon as loose 
 and profligate enactments, impairing 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 restric- 
 tions on the commercial dealings of mankind ; so that, if con- 
 strued according to the different lights in which they are 
 viewed, the same laws will be differently interpreted at differ- 
 ent times, and even in different places at the, same time. 
 
 The inconsistencies 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.* 
 
 The Intention of the Legislature. We have had repeated occasion to make 
 use of this term in the course of the last two 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 intent of a given legislative act be found, 
 and how can its existence be proved 1 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 difficulty 
 presents itself. If an act be passed to make a railroad, or to raise 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 
 
 * See the opinion of Chief Justice Ed- bond, for a clear and forcible statement of 
 wards, in Hardin v. Owings, 1 Bibb, 215, the evils resulting from the loose notions of 
 Kentucky, a case on the form of an appeal construction which have heretofore prevailed. 
 
328 INTENTION OF THE LEGISLATURE. 
 
 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 con- 
 struction grow the case is very different. Take, for instance, the statute for- 
 bidding sheriffs to buy at sales on executions issued to them (ante, p. 260), 
 which has been construed to mean, "excepting in cases where sheriffs are 
 plaintiffs," or the statutes authorizing all persons to make wills (ante, p. 259), 
 and which has been construed not to include married women, or any still 
 nicer cases. Did the Legislature in these cases mean to exclude skeriff-plaintiffs, 
 or to include married women ? 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 precise question, as that a 
 sheriff might be a plaintiff? How many knew anything of the rule of the 
 common law, that married women are incompetent to make wills ? 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 prevenf 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 bill, for the purpose of defeating it, and yet 
 the bill passes. Again, a committee reports a bill with one object, and it is 
 completely or partially altered by amendments in its passage through the 
 legislative body. These considerations, moreover, all apply to two bodies, there- 
 by doubling the difficulty of arriving at the real intention of the law-making power. 
 
 Illustrations of this kind might be extended almost indefinitely. They 
 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 mem- 
 bers themselves were put on the stand, it would be utterly impossible 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 be, that the legislative intent must be taken as expressed 
 by 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 ; the interpretation in these cases is necessarily conjecture, tending to 
 assume the shape of mere arbitrary discretion ; and that construction should be 
 strictly confined to cases 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 intended anything different from what their 
 language imports." Mr. Senator Porter, in The Supervisors of Niagara v. The 
 "People, 7 Hill, 511. 
 
CHAPTER VIII. 
 
 THE CONSTRUCTION AND APPLICATION OF STATUTES IN PARTICU- 
 LAR CASES. 
 
 Statutes Delegating Public Authority. Revenue Laws. Penal Laws. Laws as 
 Affecting the Rights of the Government. Effects 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. Com- 
 putation of Time in Statutes. Subject-matter. General "Words. Misdescrip- 
 tion and Surplusage. Remoteness of Effect. Statutes against Wagers. Cor- 
 porations. The Interpretation and Proof of Foreign Laws. Revision of 
 Statutes. State Laws, how Construed in the Courts of the United States. In- 
 terpretation of Particular Words. Miscellaneous Cases. Grants of 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 construction and application of statutes in particu- 
 lar 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 certain general rules or maxims 
 of our law to this special branch of it, to speak of certain arbi- 
 trary rules of interpretation which have been adopted, and 
 finally to examine the sense in which particular words are re- 
 ceived. 
 
 Statutes Delegating Authority to Public Officers. We have 
 already* called attention to the subject of public officers created 
 by statute ; and although 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 faitli, with due discretion, 
 and within 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 
 
 * Ante, pp. 81, 82. 
 
330 STATUTES DELEGATING PUBLIC AUTHORITY. 
 
 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 doctrine we have already partially considered 
 under the heads of summary judicial and administrative pro- 
 ceedings.* 
 
 So where a statute of the State of Illinois authorized certain 
 commissioners to borrow money and issue bonds, but the stock 
 or bonds of 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 author- 
 ized 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 com- 
 missioners were authorized to loan money on mortgage, 
 and upon non-payment the commissioners were directed by 
 statute to advertise for sale in three places, it was held that a 
 compliance with the statute was indispensable ; and the direc- 
 tions of the act having been neglected the sale was held void. | 
 In cases of authority of this kind, where personal trust or 
 confidence is reposed in the agent where his discretion is to be 
 exercised the authority is purely personal, and cannot be dele- 
 gated. Thus, where authority was conferred upon canal com- 
 missioners to enter upon lands, <fec., it was held that the power 
 could only be exercised by them in person, or by their express 
 direction, and that an engineer, or other subagent could not 
 exercise the power without the express directions of the com- 
 
 * Ante, p, 309. tion of the court or officer issuing it, is a com- 
 
 f The State of Illinois v. Delafield, 8 plete justification to the ministerial officer by 
 
 Paige, 627. See this case for a discussion of whom it is executed, though in fact the court 
 
 the meaning of the word par, and of the sub- or officer had no jurisdiction. So it has been 
 
 ject of exchange. decided in regard to an execution, regular on 
 
 \ Agent of State Prison v. Lathrop, 1 its face, issued on a justice's judgment in a 
 
 Michigan, 438. case where the justice had no jurisdiction ; 
 
 I Denning v. Smith, 3 J. C. R. 332; Savacool v. Boughton, 5 Wend. 170; and 
 
 Nixon v. Hyserott, 5 J. R. 58. also in regard to a school-district tax warrant 
 
 In regard to these questions of the power regular on its face, though the district meet- 
 
 and jurisdiction of public officers, we may ing afwhich the tax was voted, was illegal ; 
 
 here notice the rule that process regular on Abbott v. Yost, 2 Denio, 86. 
 its face, and apparently within the jurisdic- 
 
QUORUM. 331 
 
 missioners. " 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 officers."* 
 
 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, the execution of the power may be in- 
 sisted on as a duty, even though the phraseology of the statute 
 be permissive only ; and 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 be made in that city, and 
 to cleanse the same, it was held that it was their duty to keep 
 them clean, and that an action would lie for negligence in re- 
 lation thereto.f But in order to succeed in such an action, it 
 must be 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 required legislative majority, and 
 the bridge fell by reason of its negligent construction, the corpo- 
 ration was held not to be liable. J 
 
 In regard to the number requisite to constitute a quorum of 
 the members of a public body, or the number requisite to do 
 business, it has long been settled that, where a statute consti- 
 tutes a board of commissioners or other officers to decide any 
 matter, as to open books, to receive subscriptions, and distribute 
 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. J (a) 
 
 * Lyon v. Jerome, 26 "Wend. 485, 496. the court, what was the precise point which 
 
 f The Mayor of N. Y. T. Furze, 3 Hill, they intended to decide. I give the substance 
 
 612 ; Henley v. Mayor et al. of Lyme Regis, of the marginal note. See also People v. 
 
 5 Bing. 91, 3 Barn. & Adol. 17 ; 1 Bing. E. C. Cooper, 6 Hill, 516. 
 
 222, s. c. in error. | Withnell v. Gartham, 6 T. R. 388 ; 
 
 I The Mayor, &e. of Albany v. Cunliff, 2 Grindley et al v. Barker et al. 1 B. & P. 
 
 Corns. 165. It must, however, be admitted 229; Expiate Rogers, 7 Cow. 526 ; Crocker 
 
 that in this case it is not easy to ascertain v. Crane, 21 Wend. 211; Babcock T. Lamb, 
 
 from the opinions of the different members of 1 Cowen, 238. In New York the Revised 
 
 (a) Where a statute gives a power to a board of public officers, it is sufficient if a 
 majority act upon the notice to all; so where power is given to "the judges." 
 Merchant v. North, 10 Ohio, K S. 251. 
 
332 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 interpretation which are to be applied to them. The Supreme 
 Court of the United States has said that " laws imposing duties 
 on the importation of goods, are intended for practical use and 
 application by men engaged in commerce. Merchants are not sup- 
 posed 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 articles, according to 
 the commercial understanding of the terms used." f 
 
 Mr. Justice Story, on the first Circuit, has said that, 
 
 Acts of this nature are to be interpreted, not according to the abstract pro- 
 priety 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 merchants, 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 Legis- 
 lature 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 manufacturers 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 more 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 question 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 considered, and 
 
 Statutes provide, " Whenever any power, and adjudge that the commissoner was with- 
 
 authority or duty is confided by law to three out the authority to make it. His powers and 
 
 or more persons, and whenever three or duties are strictly of a ministerial character, 
 
 more persons or officers are authorized or re- People v. Schoonmaker, 19 Barb. 657. 
 quired by law to perform any act, such act * Ante, p. 288. 
 
 may be done, and such power, authority or f Two Hundred Chests of Tea, 9 Wheat, 
 
 duty may be exercised and performed by a 430, 438 ; Elliott v. Swartwout, 10 Peters, 
 
 majority of such persons or officers, upon a 137; see this case, as to the distinction be- 
 
 meeting of all the persons or officers so en- tween woolen goods and worsted goods, 
 trusted or empowered, unless special provision "Public policy, national purposes, and the 
 
 is otherwise made." 2 R. S. part iii, title 17, regular operations of government, require 
 
 27, vol. ii, p. 565. that the revenue system should be faithfully 
 
 In New York the act of 1848, creating the observed and strictly executed," says Mr. J. 
 
 office of Auditor of the Canal Department, Chase, in Priestman v. the United States, 4 
 
 conferred on him no power to look behind a Dallas, 28, 34. And see U. S. v. 100 Barrels 
 
 draft drawn' by one of the canal commissioners of Spirits, 2 Abb. U. S. R. 305. 
 
PENAL LAWS. 333 
 
 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 characters and properties, but as used in their known 
 and common commercial 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.* 
 
 Penal Laws. Under the head of incidents and attributes 
 of statutes in our fourth chapter, and under that of strict and 
 and equitable construction in the last, we have already had oc- 
 casion to consider many questions in regard to penal statutes. 
 Certain other rules remain, which more properly belong to this 
 place. 
 
 The question is often raised, whether a given statute is prop- 
 erly 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 offence committed 
 on board of a boat navigating 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 offence, prescribes the punishment, nor alters the 
 mode of trial ; it merely changes the venue, f In Maine, it has 
 been said, that a statute declaring that any person who assists 
 a debtor to defraud his creditor by making a fraudulent con- 
 cealment or transfer 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. $ 
 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 de- 
 fect in a highway, has been similarly regarded. Shaw, C. J.,in 
 delivering the opinion of the court, said, "We think the action 
 
 * II. S. v. Breed, 1 Sumner, 159, 163, 164. brook v. Handley, 2Y Maine, 53 ; Thacher v. 
 
 f The People v. Hulse, 3 Hill, 309. Jones, 31 Maine, 528. 
 \ Frohock v. Pattee, 38 Maine, 103 ; see || Stanley v. Wharton, 9 Price, 301. 
 
 also, Quimby v. Carter, 20 Maine, 218; Phil- 
 
334 PENAL LAWS. 
 
 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 extent as punish- 
 ment ; but the distinction is (in the case of a penal action), 
 that it is prosecuted for the purpose of punishment, and to 
 deter others from offending in like manner. Here, the plaintiff 
 sets out the liability of the town to repair, and an injury to 
 himself 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 by law for the detention of other debts, 
 is penal in its character; but as it is given to the party in- 
 jured, who seeks the recovery of a just debt to which the in- 
 creased 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 statute 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 wholly ignorant that any suit was pending, saying, 
 " We can hardly suppose the Legislature intended to punish so 
 severely, a trespasser wholly ignorant of the pendency of the 
 suit. The statute is highly penal, and should therefore be 
 limited in its application t.o the object the Legislature had in 
 view."^ Where a bridge company act declared that it should 
 not be lawful for any person to cross the lake over which the 
 bridge was constructed, within three miles of it, without pay- 
 ing 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 con- 
 struction of statutes made in favor of corporations and partic- 
 
 *Reed T. Northfield, 13 Pick. 94, 100, Squire, 5 Pick. 168; Lee v. Clark, 2 East, 
 
 101. And on the ground that it was not a 333; Newcomb v. Butterfield, 8 J. R. 266. 
 
 penal action, it was held in this case not to f The Suffolk Bank v. The Worcester 
 
 be necessary that the declaration should con- Bank, 6 Pick. 106; Reed v. Northfield, 13 
 
 elude, contra formam statuti. Pick. 94; Palmer v. York Bank, 18 Maine, 
 
 See to this latter point Wells v. Iggulden, 166 ; Bayard v. Smith, 17 Wend. 88. 
 
 5 "Dowl. & Ryl. 13 ; s. c. 3 Barn. & Ores. 186 ; \ Reed v. Davis et al. 8 Pick. 515, 516. 
 Peabody v. Hayt, 10 Mass. 36; Nichols v. 
 
PENAL LAWS. 335 
 
 ular persons, and in derogation of common 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 entering 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 ex- 
 pressly authorized by statute, -the declaration must set forth the 
 particular acts or omissions which constitute the cause of ac- 
 tion, and by which the alleged penalty was incurred. This is 
 the general rule.;]! 
 
 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 prosecute, the defendant cannot object 
 that the ten days had not elapsed, nor that sufficient security 
 had not been given. [ 
 
 In Pennsylvania, where the 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 qui tarn action. ^[ 
 
 It has been said that the same expressions may be differ- 
 ently 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 judg- 
 ment, on the ground that the act under which the conviction 
 
 t O 
 
 was obtained, had been repealed after conviction. Its language 
 was doubtful ; but it was said by Tilghman, C. J., " It is said, 
 
 * Spague v. Birdsall, 2 Cowen, 419, 420. mode of declaring in proceedings of this 
 
 f Williams v. Tappan, 3 Foster, 385; clas?, by merely alleging the " indebtedness" 
 
 Brackett v. Hoyt, 9 Foster, 264. It was de- of the defendant, with a reference to the 
 
 cided in this case that it was the offer for a statute. 2 R. S. 482, 10. But this is 
 
 sale of pressed hay, and not the sale unac- abolished by the Code of Procedure, 140, 
 
 companied by an offer, that was made illegal and the old rule, as stated in the text, is re- 
 
 by the statute. vived. Morehouse et al. v. Crilley, 8 Howard 
 
 % 1 Chit. PI. 405 ; Cole v. Smith, 4 John. Pr. R. 431. 
 
 193; Bigelow v. Johnson, 13 John. 428; Col- | Thayer v. Lewis, 4 Denio, 269. 
 
 lins v. Ragrew, 15 J. R. 5 ; The People v. If Specht T. The Commonwealth, 24 Penn. 
 
 Brooks, 4 Denio, 469. The Revised Statutes 103. 
 of New York authorize a more compendious 
 
336 PENAL STATUTES. 
 
 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 warranted in giving it a different construc- 
 tion, 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 mild and merciful intendnient 
 towards those who are objects of punishment ; we apply the 
 principles of the law to 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 reference to cor- 
 porations, may perhaps be applicable to some stock associations 
 formed by articles of copartnership, provisions creating misde- 
 meanors and imposing penalties and forfeitures cannot be so 
 extended by implication without violating a fundamental rule 
 in the interpretation of statutes, and enacting ex post facto law 
 by judicial legislation.-)- 
 
 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 offence and the language used. So, 
 for keeping or injuring greyhounds, it was held that but one 
 penalty could be demanded. J 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 offences, 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 informers 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 offence so as to discharge the 
 share of the crown, he cannot deprive the informer of his 
 portion. 4 ^ 
 
 * Commonwealth v. Duane, 1 Binney, 601. Bleasdale, 4 T. R. 809 ; Dwarris, p. 642. So 
 
 \ Curtis v. Leavitt, 17 Barb. 39, 362. too, for exercising a trade on Sunday, Cripps 
 
 j Marriott v. Shaw, Com. 274 ; The v. Durden, Dwarris, p. 643. 
 
 Queen v. Matthews, 10 Mod. 27; Hardyman | Brooke, g. t. v. Milliken, 3 T. R. 509. 
 
 v. Whitaksr, Bui]. N. P. 189 n. (b.); Rex v. j[ Grosset v. Ogilvie, 6 Bro. P. C. 527. 
 
ACTS IN VIOLATION OF STATUTES. 337 
 
 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 containing 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.(a) We have 
 already had .occasion to call attention to the force and meaning 
 of the maxim nullum tempus occurrit regi (ante, p. 84) ; 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 indis- 
 putable from the act that it was intended to include the State.f 
 
 Effect of Statutes on Contracts, or Acts in Violation of 
 them. We have already % called attention to the rule which 
 declares void all agreements made in contravention of statutes ; 
 the subject is of sufficient importance to demand here more par- 
 ticular attention. The general principle is that an individual 
 shall not be assisted by the law in enforcing a demand originat- 
 ing in a breach or violation on his part of its principles or en- 
 
 * 2 R. S. part iv, chap, i, title 6, vol. ii, p. trary to the present rule in regard to grants, 
 
 696, 55 [Sec. 39]. most strongly in favor of the grantee, 2 Bl. 
 
 f Josselyn v. Stone et al. 28 Mississippi, Com. 347; Stanhope v. Bishop of Lincoln et 
 
 753 ; ante, p. 28. See also p. 49, as to pro- al. Hob. 243 ; Turner & Atkyns, B. Hard, 
 
 visions; 1 Black. Com. 261; Com. Dig. tit. 309; Bro. Abr. Patent, 62. But the rule ap- 
 
 Parliament, R. 8 ; The King v. Allen, 15 East, pears subject to many qualifications. Sir 
 
 333 ; The King v. Inhabitants of Cumberland, John Molyn's Case, 6 Co. 5 ; Alton Wood's 
 
 6 Term R. 194; United States v. Hoar, 2 Ma- Case, 1 Coke, 26. See opinion of Mr. Justice 
 
 son R. 314; Commonwealth v. Baldwin, 1 Story in Charles River Bridge v. Warren. 
 
 "Watts Penn. R. 54; People v. Rossiter, 4 Bridge, 11 Peters, 589. The idea seems to 
 
 Cowen, 143; United States v. Hewes, U. S. have resulted from a notion of the impropriety 
 
 D. C. for Pennsylvania, July, 1840; 1 Kent of setting strict bounds to royal munificence. 
 
 Com. p. 460. See Domat's ru'es, 17, ante, p. 245. 
 
 lu regard to royal grants, the old rule ap- \ Ante, p. 69. 
 pears to have been that they were taken, con- 
 
 () When the State is Bound. It is bound by a law prescribing method of investi- 
 gating elections. Commonwealth v. Garrigues, 28 Penn. St. 9. It is not bound by a 
 law restricting judgment liens unless the intent is clearly manifest. Josselyn v. Stone, 
 28 Miss. 753. Nor by a statute by which any of its prerogatives or rights would be 
 curtailed or taken away, unless the language is express. State v. Kinne, 41 N. H. 
 238. See Martin v. State, 24 Tex. 61 ; Green v. U. S. 9 Wall. 655. 
 22 
 
338 ACTS IN VIOLATION OF STATUTES. 
 
 actments. * This is expressed in the maxims Ex turpi contracts 
 oritur non actio / Ex dolo malo non oritur actio, and other simi- 
 lar and familiar forensic adages. The rule finds frequent appli- 
 cation in the common law, and has decided a great number of 
 cases. So, agreements in consideration of future illicit cohab- 
 itation ; for the sale of libelous or immoral 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 en- 
 forced, f 
 
 The general principle is the same in regard to legislative 
 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 statutes 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 regard to all statutes intended 
 generally to protect the public interests or to vindicate public 
 morals, (a) 
 
 So, policies effected in England on vessels sailing during 
 war, in contravention of the convoy acts, were held void.J So 
 where the voyage was against the provisions of the East India 
 Company acts,| or the South Sea Company acts.^" So, a note 
 discounted by the teller of a bank for his own benefit, in viola- 
 
 * Chitty on Contracts, ch. iv ; Parsons on || Johnson v. Sutton, 1 Doug. 254 ; Cam- 
 Contracts, 382, note a. den- v. Anderson, 5 T. R. 709 ; Chalmers v. 
 
 f Chitty on Contracts, ch. iv. Bell, 3 B. & P. 604. 
 
 \ Wainhouse v. Cowie, 4 Taunt. 178; ^j" Toulmin v. Anderson, 1 Taunt. 227; 
 
 Darby v. Newton, 6 Taunt. 544. Hodgson v. Fullarton, 4 Taunt. 787. 
 
 (a) Where the court has for a long time been equally divided as to the validity 
 of a repealing act, and finally holds it void, it seems that the statute supposed to 
 have been repealed -will not be treated as in force during such period. Ingersoll v. 
 State, 11 Ind. 464. This is, of course, directly opposed to all correct theory of judi- 
 cial decision and of its effects, and was a weak yielding to the apparent hardship of 
 the case, and is worthless as a precedent. The original statute was either repealed 
 or was in force. For a court to say that it was not repealed, but that for a long time 
 it was not really in force, because they were unable to agree whether it was repealed 
 or not, is one of the rarest specimens of judicial absurdity which the reader meets 
 with in an examination of the reports. 
 
ACTS IN VIOLATION OF STATUTES. 339 
 
 tion of the statute of the State of New York (1 K. S. 595, 
 28) concerning the discounting of commercial paper by officers 
 and agents of banking corporations, is void.* 
 
 It is very important, however, to observe the modifications 
 and qualifications by which this, like almost all the general 
 rules of our system, is hedged about. We have already f 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 cannot be set up as avoiding 
 a contract.^ So again, a sale of property out of England, the 
 seller not being a British subject, is held valid, though he 
 knows that the purchaser intends to smuggle the property into 
 England.! 
 
 O II 
 
 It has been said that even though a statute merely inflicts a 
 penalty for doing a certain act, without expressly 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 them, 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 transaction.** 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 instance, 
 may know the destination intended by the purchaser for the 
 articles which he sells, that destination may be illegal, the law 
 
 * Henry v. Salina Bank, 1 Corns. 83. <fe E. 599; Pellicat v. Angel, 2 C. M. & Ros. 
 
 f Ante, pp. 71 and 72. 3J1. 
 
 \ Johnsou v. Hudson, 11 East, 180; ^[ Seidenbender v. Charles, 4 Serg. & R, 
 
 Brown v. Duncan, 10 Barn. & Cres. 93; Cope 150; De Begnis v. Armistead, 10 Bing. 187, 
 
 v. Rowlands, 2 Mees. & Wels. 157 ; See Har- citing Lord Holt's dictum in Bartlett v. Vinor, 
 
 ris v. Runnels, 12 Howard, 79. Carthew, 252, that a penalty implies a prohi- 
 
 | Holman v. Johnson, Cowp. 341 ; Biggs bition. Vide ante, pp. 32 and 335. 
 v. Lawrence, 3 D. & E. 454 ; Clugas v. Pena- ** Hudson v. Temple, 5 Taunt. 181. 
 luna, 4 D. & E. 466 ; Warnell v. Reed, 5 D. 
 
340 ACTS IN VIOLATION OF STATUTES. 
 
 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 
 ignorant 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 be smuggled into England 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 illegal, it was held that mere knowledge on the part of the 
 vendor that the purchaser intended to sell them in New Hamp- 
 shire, 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 redressing their rights, a violation of this* 
 statute will not render the whole transaction illegal, nor deprive 
 the violator of the statute of his lesral remedies in other 
 
 O 
 
 respects.f Thus, where a statute prohibited masters of vessels 
 under a penalty, from shipping seamen without a certain agree- 
 ment being signed, but did not declare the voyage rendered 
 illegal by reason of the violation of the statute, an insurer 
 on the ship was held not to be thereby relieved from his con- 
 tract. 
 
 So again, a buyer of spirits cannot refuse payment because 
 the seller violated the revenue laws in the sale, by not trans- 
 mitting 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 has ever been precluded by an infringement of the law 
 
 * Smith r. Godfrey, 8 Foster, 379. f Redmond v. Smith, 7 Man. & Gr. 457. 
 
CUMULATIVE REMEDIES AND PENALTIES. 341 
 
 not contemplated by the contract, in the performance of some- 
 thing 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 un- 
 lawfully 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 Penn- 
 sylvania, " work a confusion of relations, and lend a very doubt- 
 ful assistance to morality, if we should allow one offender 
 against the law 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 con- 
 travention 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 
 exceptions. So, where there are different and independent 
 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.| 
 
 Cumulative Remedies and Penalties. Where a precise 
 remedy for the violation of a right is provided by statute, it 
 often becomes a matter of interest to know whether the statu- 
 tory 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. (a) In regard to 
 
 * Wetherell v. Jones, 3 Barn. & Ad. 221. fl Mouys v. Leake, 8 T. R. 411 ; Kerrison 
 
 f Mohney v. Cook, 26 Penn. 342. v. Cole, 8 East, 234 ; Dwarris, p. 638. See 
 
 \ Ante, p. 73. Chitty on Contracts, p. 536. 
 
 (a) When Statutory Remedies Exclusive. For cases holding such remedies exclu- 
 sive, see Camden v. Allen, 2 Dutch. 398 (taxes) ; Victory v. Fitzpatrick, 8 Ind. 281 
 (Eminent domain) ; MeCormack v. Terre Haute, &c. K. R. 9 Ind. 283 (Eminent do- 
 main). A statute prescribing a method of investigating elections takes away the 
 common-law remedy in cases covered by it. , Commonwealth v. Garrigues, 28 Penn. 
 St. 9. When a pecuniary obligation is created by statute, and a remedy is given by 
 
342 CUMULATIVE REMEDIES AND PENALTIES. 
 
 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 maybe 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 taking 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 cumulative, 
 and that a common-law action on the case would lie, by the 
 vendee of the privilege against any person obstructing the pas- 
 sage of the fish.* 
 
 So, too, in England, under the original copyright statute, 8 
 Anne, c. 19, it was held that the penalties and forfeitures im- 
 posed by the act were merely cumulative remedies, and that a 
 -common-law action on the case would lie for an infringement of 
 the owner's right of property, f So also in New York, in the 
 act giving R. R. Livingston an exclusive right to the navigation 
 of the Hudson River, the statutory forfeitures imposed on par- 
 ties infringing his privilege were held to be cumulative, and an 
 injunction was sustained.^ 
 
 We have also noticed the rule, that if a statute gives a 
 remedy in the affirmative, without a negative expressed or im- 
 plied, 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-Jaw remedy. || So, 
 
 * Ante, p. 76 ; Barden v. Croker, 10 Pick, with approbation in Barden v. Croker, 10 
 
 383, 389. The regulation and preservation of Pick. 383. 
 
 the alewive fishery, has been an object of the J Livingstdn v. Van Ingen, 9 J. R. 506, 
 
 particular attention of the legislature in Mas- 662, 571. The acts creating the monopoly 
 
 sachusetts ; see Coolidge v. Williams, 4 Mass, were deemed by the Supreme Court of the 
 
 R. 144, where it js said to be a part of the United States to be unconstitutional, so far as 
 
 common law of the State, that a town may they conflicted with the general coasting sys- 
 
 appropriate the fish in its waters, if not ap- tern of the United States, Gibbons v. Ogden, 
 
 propriated by the Legislature. 9 Wheat. 1. 
 
 f Beckford v. Hood, 7 T. R. 620, cited || Com. Dig. Action upon Statute C. 2 Inst. 
 
 200. Ante, p^ 75. 
 
 means of a peculiar proceeding, the language indicating an intent that such remedy 
 and no other shall be pursued, the statutory remedy is exclusive. St. Pancras v. Bat- 
 lerbury, 2 C. B. (N. 8.) 471. 
 
CUMULATIVE REMEDIES AND PENALTIES. 343 
 
 where the Legislature authorized the erection of a mill-dam, 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 right 
 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 importance, and 
 frequently acted upon, that where by a statute a new right is 
 given and a specific remedy provided, or a new power and also 
 the means of executing it are provided 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 provided for its construction by tax or assessment, f 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 corporation has no power at common law to make any 
 assessments of this kind, and that, 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.J So in Massachusetts when 
 
 * Crittenden v. Wilson, 6 Cowen, 165. whole subject has been very elaborately ex- 
 
 f City of Boston v. Shaw, 1 Met. 130, 138. amined, in the Hartford and New Haven R. 
 
 i In Massachusetts, see New Bedford and R. Co. v. Kennedy, 12 Conn. 507, et seq, per 
 
 Bridgewater Turnpike Co. v. Adams, 8 Mass. Huntington, J., where assumpsit for an assess- 
 
 138; Andover and Medford Turnpike Co. v. ment was held to lie against the stockholder 
 
 Gould, 6 Mass. 40 ; Worcester Turnpike Co. of a corporation. In New York, see Jenkins 
 
 v. Willard, 6 Mass. 80. In Franklin Glass v. Union Turnpike Co. 1 Caines' Cases in Er- 
 
 Co. v. White, 14 Mass. 286, the same rule was ror, 86; The Goshen and Minisink Co. v. 
 
 applied to a manufacturing Co. ; see also Es- Hurtin, 9 J. R. 217; The Dutchess Cotton 
 
 sex T. Co. v. Collins, 8 Mass. 292. In Taun- Manufactory v. Davis, 14 J. R. 238; and 
 
 ton and S. B. T. Co. v. Whiting, 10 Mass. 327, Spear v. Crawford, 14 Wend. 20, where the 
 
 the subscriber was held liable. See also Rip- defendant was held liable. The question 
 
 ley v. Sampson, 10 Pick. 370, and Chester seems generally to turn on the precise form 
 
 Glass Co. Jv. Dewey, 16 Mass. 94; see also of the association or corporation, and whether 
 
 Trustees of Phillips Limerick Academy v. a promise to pay is to be implied or not. As 
 
 Davis, 11 Mass. 113, where it was held that to assessments on pews, see Trustees of F. P. 
 
 no action would lie on a voluntary subscrip- C. in Hebron v. Quackenbush, 10 J. R. 217. 
 tion to erect an academy. In Connecticut the 
 
344 CUMULATIVE REMEDIES AND PENALTIES. 
 
 an action was given by statute against the directors of an insolv- 
 ent 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 provid- 
 ed to enforce such duty or for the violation of such right, the 
 remedy given must be pursued.* So, too, in the same State an 
 action of debt does not lie upon an award of damages of a com- 
 mittee of the sessions for locating a highway ; a remedy by dis- 
 tress warrant being provided by the statute. " Where a stat- 
 ute gives a right and furnishes the remedy, that remedy must 
 be pursued."! And so, as at common law and before the stat- 
 utes of 18 Eliz. and 6 Geo. II, the putative father of an illegiti- 
 mate child was under no' legal liability to maintain his illegiti- 
 mate offspring, 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 where 
 the exclusive privileges of ferries were not known till they were 
 created by statute, the owners of ferries must rely on the pro- 
 visions of the act for their security. | So, too, it has been said 
 in Michigan, that where a statute gives a new right and pre- 
 scribes a particular remedy, such remedy must be strictly pur- 
 sued, and the party is confined to that remedy only, as to re- 
 cover threefold the amount of usurious interest paid. 1 ]" In New 
 Hampshire 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 pro- 
 vides a remedy for the recovery of the damages, the party in- 
 jured is confined to the statute remedy for such damages, and 
 no remedy can be had upon a common-law declaration.** 
 
 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. 
 
 * Hinsdale v. Lamed et al. 16 Mass. 65. J Lang v. Scott, 1 Blackford, 405; ap- 
 
 f Gedney v. Inhabitants of Tewksbury, 3 proved Almy v. Harris, 5 John. R. 175. 
 
 Mass. 807,309, per Sedgwick, J. vide ante, p. 76. ^[ Thurston v. Prentiss et al. 1 Michigan, 
 
 \ Moncrief v. Ely, 19 Wend. 405; Came- 193. 
 
 ron v. Baker, 1 Carr & Payne, 268 ; Furillio ** Henniker v. Contoocook Valley R, R. 9- 
 
 v. Crowther, 7Dowl. & Ryl. 612. Foster, 147. 
 
CUMULATIVE REMEDIES AND PENALTIES. 345 
 
 If a statute gives the same remedy which the common law does, 
 it is merely affirmative, 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. * 
 
 The analogy of these rules holds good in the criminal law. 
 Thus, where an offence intended to "be guarded against by a 
 statute, is punishable before the making of any statute prescrib- 
 ing 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 
 any 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 pur- 
 sued, and not the common-law mode of an indictment, f 
 
 It has been said, however, to be a clear and established prin- 
 ciple, that when a new offence 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 pen- 
 alty, but he may proceed on the prior clause, upon the ground 
 of its being a misdemeanor. J 
 
 It is no objection in this country to an indictment for an 
 offence against a statute of a State, that the defendant 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 prosecuted by the Federal Government for violating 
 her laws by the same act which violated the law of the State. 
 In other words, a party in committing a wrongful act, may by 
 one act violate the laws of the two governments, and render 
 himself amenable to both. | 
 
 * Gooch y. Stephenson, 13 Maine ( 1 Shep- would not lie for keeping an ale-house without 
 
 ley) 371. a license, because it was no offence at com- 
 
 f By Lord Mansfield, in Rex v. Robinson, mon law, and the statute making it an offence 
 
 2 Burr. 799, where held that an indictment had made it punishable in another manner, 
 
 would lie for disobedience to a filiation order See Rex v. Robinson, approved in Sturgeon 
 
 of the quarter sessions, though a particular v. The Staie, 1 Blackf. Ind. 39. 
 
 forfeiture of twenty shillings per month was \ The King v. Harris, 4 T. R. 205. See 
 
 affixed to any disobedience of the statute un- this case cited and commented on in the Hart- 
 
 der which the order was made. See Castle's ford & N. H. R. R. Co. v. Kennedy, 12 Conn. 
 
 Case, Cro. Jac. 644. In Stephens v. Watson, 499, 527. 
 
 1 Salk. 45, it was held that an indictment || The State v. Moore, 6 Indiana, 436. 
 
346 RETROACTIVE EFFECT OF LAWS. 
 
 Retroactive Effect of Laws (a). We have already spoken * 
 of laws in this aspect ; and we have stated the general rules to 
 
 * Ante, p. 160, et set). 
 
 (a) Retrospective Laws. The discussion in the text and in this note properly be. 
 longs in the chapter upon state constitutional law, and falls under the general topic 
 of " due process of law," or " law of the land." Laws in relation to civil matters 
 which act retrospectively, unless they impair vested rights or the obligation of con- 
 tracts, are constitutional and valid in the absence of any peculiar constitutional pro- 
 visions forbidding them. The following are illustrations of such statutes which have 
 been sustained : A law taxing capital employed in trade during a past year. Munic- 
 ipality v. Wheeler, 10 La. Ann. 745 ; New Orleans v. Cordeviolle, 13 La. Ann. 268 ; 
 State v. Manhattan &c. Co. 4 Nev. 318; and see "Taxation." A law enlarging a 
 remedy or giving a new one for an existing cause of action, though the Legislature 
 cannot retrospectively create a cause of action. Coosa R. S. Co. v. Barclay, 30 Ala. 
 120; Stokes v. Rodman, 5 R. I. 405; and see supra, "Vested Rights." A statute 
 changing joint tenancies into tenancies in common, was held in New Hampshire not 
 to be a "retrospective law" in the sense of the Constitution of that State, which ex- 
 pressly forbids such laws. Stevenson v. Cofferin, 20 N. H. 150 ; but that such a 
 statute is retrospective, see Boston &c. Co. v. Condit, 4 C. E. Green, 394 ; and see 
 " Vested Rights." It was said in Ohio that retroactive laws are constitutional 
 " where they violate no principle of natural justice." Butler v. Toledo, 5 Ohio, N. S. 
 225, 231. In.laying down this criterion, however, the Ohio court plainly overlooked 
 the true matter of inquiry, and confounded two entirely different subjects. It is, in 
 fact, entirely a question of poicer, whether a Legislature may pass a retroactive law, 
 and not a question of expediency, or of morality, or of whether such laws are in them- 
 selves just. The doctrine quoted comes to this, when put into plain English : The 
 Legislature may pass a retroactive law when such a law is right, but may not do so 
 when such a law is wrong. This method of statement shows the utter absurdity of 
 the supposed rule. It is this constant confusion of ideas, especially in matters relat- 
 ing to governmental powers, this constant confounding of " powers" with the method 
 of exercising those powers, which has made the constitutional law such a mass of 
 contradictions, and has obscured the plainest principles. Our State Legislatures can- 
 not pass retroactive laws which violate certain principles of "natural justice," simply 
 because they are expressly forbidden to do so in certain instances, such as when 
 vested rights would be invaded, or the obligation of contracts impaired ; but there is 
 no general constitutional limitation or restriction which shuts up the Legislature to 
 the passage of such statutes as are wise, just, equitable, moral, and upright. 
 
 After an act has been construed by the courts, the Legislature cannot expound it 
 differently so as to alter vested rights. Gordon v. Ingraham, 1 Grant's Cas. 152 ; 
 West Br. B. Co. v. Dodge, 31 Penn. St. 285; People v. Supervisors &c. 16 N. Y. 424; 
 and see note " what is law," supra. But a legislative curing of irregularities, though 
 retrospective, is not unconstitutional, e. <?., resolutions of a city council not properly 
 approved by the mayor, may be validated. State v. Newark, 3 Dutch. 185. And 
 the want of a stamp on a contract may be remedied, and the stamp act having been 
 .repealed, and all unstamped contracts declared valid by the Legislature, it is the 
 duty of an appellate court to reverse the decision of an inferior court made before the 
 repeal, excluding evidence of an unstamped contract. State v. Norwood, 12 Md. 195. 
 On the same principle a statute declaring that marriages shall not be impeached or 
 
RETROACTIVE EFFECT OF LAWS. 347 
 
 "be, that retrospective laws which conflict with a State Constitu- 
 tion,* which violate the provisions of the 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 legis- 
 lative power ; and that the courts will always struggle to give 
 laws a prospective construction 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 judi- 
 ciary will not interfere with them. The question is of so much 
 practical importance, that the following decisions ought not to 
 be overlooked. 
 
 " It is not in the power of the Legislature," says the Su- 
 preme Court of Maryland, "to give a statute a retrospective 
 operation, so as to divest vested rights acquired under a will." f 
 Says the Supreme Court of Louisiana, " However repugnant 
 to logic and sound policy retrospective laws may be, retrospect- 
 ive laws in civil matters do not violate the Constitution unless 
 
 * The Constitution of Tennessee, art. xi, f Wilderman v. Mayor and City Council 
 20, contains a positive declaration, " That of Baltimore, 8 Maryland, 551. 
 no retrospective law, or law impairing the 
 obligation of contracts, shall be made." 
 
 questioned collaterally on the ground of insanity or idiocy, is valid in its applica- 
 tion to past marriages. Goshen v. Richmond, 4 Allen, 458. And an act regulating 
 legal proceedings, e. g., competency of witnesses, may operate retrospectively. Rals- 
 ton v. Lothain, 18 Ind. 303. It was also held in Pennsylvania that a statute making 
 uncontested probates final after five years from their dates, and allowing two years 
 from its passage to contest past probates, was valid. Kenyon v. Stewart, 44 Penn. St. 
 179. The Legislature cannot, however, make corporators retrospectively liable for 
 corporate debts, for this would be to create a cause of action, and to invade vested 
 rights of property. Coffin v. Rich, 45 Me. 507. 
 
 When bridges had been built by railroads under the provisions of a statute requir- 
 ing such building on order of town authorities, but imposing no liability for result- 
 ing damage, a subsequent statute imposing upon the railroads a liability for damages 
 to abuttors from such bridges already built, was held void in New Hampshire as 
 being in violation of the express provision of the State Constitution forbidding retro- 
 spective laws. Towle v. Eastern R. R. 18 K H. 547. 
 
 A statute affecting substantial rights will not be construed as retrospective unless 
 the intent that it should act so is clear. Kelley v. Kilso, 5 Ohio, N. S. 198 ; and see 
 " Retrospective Laws," under the head of " Construction of Statutes." 
 
 The existing Constitutions of the following States expressly prohibit retrospective 
 or retroactive legislation : Louisiana, art. vi, 110; Missouri, art. i, 28; New Hamp- 
 shire, pt. i, art. 23 ; Tennessee, art. i, 20 ; Texas, art. i, 14. 
 
348 RETROACTIVE EFFECT OF LAWS. 
 
 they tend to divest vested rights, or to impair the obligation of 
 contracts.* 
 
 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 26th 
 of April, 1850, in regard to the lien of judgments on the estates 
 of decedents, was not retrospective, f 
 
 In Michigan, 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 construction which, by a re- 
 troactive operation, will affect the rights of parties ; and statutes 
 are generally to be construed to operate in future, unless a re- 
 trospective effect be clearly intended ; " but the mere fact of a 
 statute being clearly retrospective does not of itself make it un- 
 constitutional. J 
 
 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, whenever partition cannot be made in 
 any other way, has been held " not to be retroactive within the 
 legal import of that term, but to be purely a remedial law act- 
 ing 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." || 
 
 In Massachusetts, where a statute was passed giving towns 
 a remedy against paupers for expenses incurred for their sup- 
 port, it was held that, as prior to the act no such suit could be 
 maintained, the act must be construed to have a prospective 
 operation only, on the ground that the Legislature could not 
 have entertained 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. 1 ]" 
 
 The subject of the retroactive effect of statutes constantly 
 
 * Municipality No. 1 v. "Wheeler, 10 La. lateur peut porter vine dispositi on retroactive; 
 Ann. R. 745, 746. And the court cites Mar- et toute irrationnelle que sera cette disposi- 
 (jade", 62: "Mais enfin, tant qu'une loi tion, elle n'en devra pas moins s'appliquer." 
 existe, si mauvaise, si peu logique qu'elle \ NefFs Appeal, 21 Penn. 243. 
 
 puisse etre sous tel ou tel rapport, le pouvoir Scott v. Smart's Exrs. 1 Mich. 295. 
 judiciaire ne peut pas ne point 1'appliquer. |[ Richardson v. Muryson, 23 Conn. 94. 
 
 Dura lex, zed est lex. En fait, done, le legis- *j[ Medford v. Learned, 16 Mass. 216. 
 
RETROACTIVE EFFECT OF LAWS. 349 
 
 presents itself in connection with the subject of vested rights 
 and their immunity from legislative interference. We have al- 
 ready * considered the difficulty of drawing a line between those 
 vested rights that are absolutely sacred, and those held to be 
 under the control of the Legislature. The subject is of vast im- 
 portance in reference to the daily exercise of legislative power ; 
 but until some clear and settled rules are declared by authority, 
 we can only hope to arrive at an approximation to correct prin- 
 ciples 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 conveyances by married 
 women, which were then void as not complying with a statute 
 of 1820, is an unauthorized exercise of legislative power, and as 
 such null ^n the ground that the act divested married wo- 
 men of their property, without consent, without compensation, 
 and not for crime, f 
 
 A Pennsylvania act of Assembly, declaring the children 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 con- 
 strued 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 construed retrospectively, the act would di- 
 vest vested rights, and be in direct hostility to the provision of 
 the bill of rights of the State, which declares that no citizen 
 shall be deprived of his property, unless by the law of the 
 land.J 
 
 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 di- 
 rection, 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 might 
 
 * Ante, p. 152. 394. So as to defective re'eases of dower. 
 
 f The Lessee of Good v. Zerclier, 12 Ohio, Russell v. Rumsey, 35 111. 362. 
 
 t Norman v. Heist, 5 Watts & Per. 171. 
 
350 RETROACTIVE EFFECT OF LAWS. 
 
 have been finally adjudicated prior to the passage of the act, 
 should "be valid. A question arose as to the applicability of 
 the act to a will executed in 1840; and the court held that the 
 act of 1848, if retroactive, was an exercise of judicial power in 
 settling 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 constitutional provision giving to 
 property the protection of the law of the laud; they conse- 
 quently held that the act was merely prospective in its opera- 
 tion.* 
 
 The subject of the retroactive effect of statutes with reference 
 to vested rights, has been examined in a very interesting case 
 in Maryland. Suit was brought in 1 846 on a single bill exe- 
 cuted by the defendant in 1840. The defendant pleaded that 
 the note was usurious and void, under an act of 1 704. The 
 plaintiff replied a statute passed on the 10th of March, 1846, 
 declaring substantially that in any suit or action thereafter to 
 be brought 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 re- 
 trospective, 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 opera- 
 tion in all cases susceptible of doubt ; but held that this could 
 have no application to a case where the Legislature had di- 
 rected, in a 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 ; J and as 
 
 * Greenough v. Greenough, 11 Penn. 489. f See also on this point Goshen v. Ston- 
 
 See C. J. Gibson's interesting opinion and nington, 4 Conn. 220. 
 
 cases cited. \ Satterlee v. Mathewson, 2 Peters, 413; 
 
 Watson v. Mercer, 8 Peters 110. 
 
RETROACTIVE EFFECT OF LAWS. 351 
 
 to the provision in the Maryland Bill of Eights, art. 15, declar- 
 ing " retrospective laws punishing acts committed before the ex- 
 istence of such laws, to be oppressive and unjust," that it re- 
 lated solely to retrospective criminal laws, and was an express 
 recognition of the legislative power to pass retrospective laws 
 in regard to civil cases and contracts, as laws healing imperfect 
 deeds or validating defective acknowledgments. The objection 
 that the right to plead usury under the act of 1704 was a 
 vested right, and that the act of 1846 was void as tending to 
 divest it, shared a similar fate. The court admitted the sacred - 
 ness of vested rights, and declared that an act which divested 
 a right under the pretense of regulating the remedy was as ob- 
 jectionable 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 pay- 
 ment 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 exer- 
 cise in relation to past as well as future contracts.* 
 
 A New York act of 1850, chap. 172, declares, that "no cor- 
 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 civilized and 
 especially in all commercial communities, that it is very difficult 
 to obtain for it an impartial hearing ; but as long as the prohi- 
 bition stands on the statute book, it certainly is the duty of the 
 judiciary fairly to cany out the legislative will ; and I cannot 
 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 judicial prerogative, which by a 
 
 * Baugher v.-Nelson, 9 Gill, 299. The f Curtis v. Leavitt, IT Barb. 311. 
 case is indexed as Grinder v. Nelson. 
 
352 RETEOACTIVE EFFECT OF LAWS. 
 
 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 ob- 
 vious that a valid law might be framed general in its terms, but 
 really intended to effect private objects, and calculated to work 
 the grossest injustice. 
 
 In connection with this subject, the following case in New 
 York is important : Clark and Cornell, commissioners of high- 
 ways in a town, by direction of the voters of the town sued a 
 a turnpike company ; they were unsuccessful, and obliged to 
 pay costs. These costs the town refused to pay. The com- 
 missioners 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 submitted 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, appointing 
 three commissioners to determine the amount of costs, <fec., due 
 Clark and Cornell, to make an award 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 
 propei'ty 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 un- 
 constitutional, as 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 judicial in its character. 
 Perhaps the decision maybe sustained on the grounds on which 
 it is put ; but it is obvious that the result of the matter is that 
 the Legislature compels payment out of the pockets of the defend- 
 ants of a claim which the law had already pronounced 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 com- 
 
THE MORE RECENT STATUTE CONTROLS. 353 
 
 pels the payment of the claim by the defendants. This may be 
 called taxation, but in truth it is the reversal of a judicial de- 
 cision.* 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 subject of retrospective statutes, it has 
 been held, that an act in regard to practice declaring 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 
 event, unless the court should otherwise 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 if it were 
 otherwise construed, it would often defeat the intention of the 
 parties who acted under the old law." f 
 
 Last Statute in Point of Time Controls. We have already^ 
 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. If And this principle has been declared by the Su- 
 preme Court of the State of New York.** So in Kentucky it 
 has been said, " If there be an absolute inconsistency between 
 these statutes, the act of 1825 being posterior in date, and also 
 more comprehensive in its terms, must have superseded the 
 other so far as they conflicted." ff So in Pennsylvania it has 
 been said, that in cases of irreconcilable repugnancy the rule is 
 to let the last part determine the intentions of the lawgiver. JJ 
 
 * Town of Guilford v. Supervisors of T[ Bacon, Abr. Stat. D. 
 Chenango Co. 3 Kernan, 147. ** Harington v. Trustees of Rochester, 10 
 
 f Hughes v. Lumley, 4 Ellis & Blackb. Wend. 547. 
 
 358, 359; Jenkins v. Betham, 15 C. B. 169 ff Naz. Lit. & Benev. Inst. v. Common- 
 
 and 190. wealth, 14 B. Monroe, 266. 
 
 \ Ante, pp. 48, 49, 65, 107. \\ Packer v. Sunbury & Erie R. R, Co. 7 
 
 1 Bacon, Abr. Stat. D. Harris (Penn.) R. 211. 
 
 23 
 
354 MISDESCRIPTIOX AND SURPLUSAGE. 
 
 But it is only in cases of irreconcilable repugnancy that 
 this rule applies ; it gives way to the fundamental principle, 
 that the intention of the Legislature is to govern. " A subse- 
 quent statute," says Parsons, C. J., " generally will control the 
 provisions of former statutes, which are repugnant to it accord- 
 ing to its strict letter. But there are exceptions to this rule, 
 depending on the construction of the last statute agreeably to 
 the intention of the Legislature." * (a) " The general rule is 
 conceded to be," it has been said in Pennsylvania, " that where 
 two statutes contain repugnant provisions, the one last signed 
 by the governor is a repeal of one previously signed. But this 
 is so merely because it is presumed to be so intended by the 
 law-making power. Where the intention is otherwise, and that 
 intention is manifest upon the face of either enactment, 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 ob- 
 vious purposes of the legislative power in a matter over which 
 that power has a constitutional right to control." f 
 
 Misdescription and Surplusage. The maxim, Falsa demon- 
 Mratio non nocet, applies to statutes as well as in other cases. (J) 
 
 * Pease v. "Whitney et al. 5 Mass. 380, 382. wealth, 26 Pennsylvania Reports, pp. 448, 
 f The Southwark Bank v. The Common- 449. 
 
 (a) Thus, when a statute appropriated a sum granted to the State by Congress to 
 the redemption of certain bonds, and a subsequent statute made an appropriation 
 which if fully carried out would interfere with the first, the second act was held to 
 apply only to the surplus of the fund after redeeming the bonds as provided for by 
 the former act. State v. Bishop, 41 Mo. 16. 
 
 (b) Mistake and False Description. An amendatory statute referring to the 
 amended act by its date and by its subject-matter, and the reference to the date 
 being wrong, the other reference, if it identifies the statute to be amended, is suf- 
 ficient. Madison &c. PI. R. v. Reynolds, 3 Wise. 287, and see Blake v. Brackett, 47 
 Me. 28. If a clerical or typographical error is manifest, e. g., " penal" for "final," 
 the correction will be made in construction. Moody v. Stephenson, 1 Minn. 401 ; 
 Jocelyn v. Barrett, 18 Ind. 128 ; Nazro v. Merchants' Ins. Co. 14 Wise. 295. Where 
 the language was that a person convicted of a certain crime should be "imprisoned 
 in the penitentiary not less than two, nor more than five years, or by fine and im- 
 prisonment, one or both at the discretion of the jury trying the same," it was held 
 that the words " be punished " must be supplied between the word " or" and " by 
 fine." Turner y. State, 40 Ala. 21. The word "article " in an amendatory statute 
 was read " chapter " in Gibson v. Belcher, 1 Bush (Ky.) 145. A clerical error in the 
 title made in engrossing the bill after its passage, but before its approval by the 
 
CAUSE AND EFFECT. 355 
 
 It was early held that, in an act of Parliament, the misnomer 
 of a corporation where the express intention appears shall not 
 avoid the act, any more than in a will, when the true corpora- 
 tion intended is apparent.* So, where a statute is referred to 
 by general descriptive particulars, some of which are manifestly 
 false and others true, the former may be rejected as surplusage, 
 provided the remainder is sufficient to show clearly what is 
 meant, f Thus again, where a statute referred to the vote of a 
 town by a wrong date, where the reference would have been 
 good without any date at all, it was held that the erroneous 
 date might be rejected as surplusage. 
 
 Connection between Cause and Effect. The relation of 
 cause and effect sometimes presents itself in regard to the con- 
 struction of statutes ; and here we find a class of questions 
 analogous to those growing out of the subject of remoteness or 
 consequentially of damages, and dependent on the maxim 
 proximo, causa non remota spectatur.\ So, where the embargo 
 act of 22d December, 1807, required a bond conditioned to re- 
 land certain goods in some port of the United States, " the dan- 
 gers of the seas only excepted," it was held by the Supreme 
 Court of the United States, where a vessel was driven b*y stress 
 of weather into one of the West Indies, and there detained by the 
 
 * The Chancellor of Oxford's Case, 10 i Shrewsbury v. Boylston, 1 Pick. 108. 
 Rep. 57. I Sedgwick on the Measure of Damages, 
 
 f The Watervliet Turnpike Co. v. Me- chap. iii. 
 Kean, 6 Hill, 616. 
 
 governer, will not invalidate the act, provided the act as a whole on inspection will 
 not mislead. People v. Onandaga, 16 Mich. 254, Cooley, J., dissenting. When the 
 context is plain and the meaning requires it, words may be transposed. Matthews 
 y. Commonwealth, 18 Gratt. 989. A clause clearly inserted from inadvertence will 
 be disregarded. Pond v. Maddox, 38 Cal. 572. When there clearly was some 
 mistake which might be one or the other of two possible ones, and the only question 
 was which of the two had probably been made, that is, which of the two possible 
 corrections should be made, the court held that the mistake least likely to have 
 been detected the one most latent was the one made. Jenks v. Langdon, 21 
 Ohio, N. 8. 362. A statute providing for indictment " on conviction " of bribery, 
 the words " on conviction " were rejected as surplusag"'. U. S. v. Stern, 5 Blatch. 
 C. C. 512. 
 
 Falsa, Demonstratio. See State v. King, 28 Cal. 265 (reference to the wrong sec- 
 tion); Chambers v. State, 25 Tex. 307 (" pro-visions to art. 411," for "proviso to art. 
 411 "); State v. Orange, 3 Vroom, 49 (mistake in description of a street in the ordi- 
 nance for laying it out) ; Commonwealth v. Marshall, 69 Penn. St. 328 (mistake in the 
 date of an ordinance sought to be validated) ; and see People v. Clute, 63 Barb. 356. 
 
356 COMPUTATION OF TB1E. 
 
 government of the island, that this was a casualty within the ex- 
 ception ; the court saying, " an effect which proceeds inevitably 
 and of absolute necessity from a specified cause, must be ascribed 
 to that cause." ' 
 
 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 offence, 
 it shall be applied, after payment of costs and expense, to 
 satisfy the damages sustained by any person by reason of the 
 misderr eanor. 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 col- 
 lected on the recognizance ; 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 immediate cause of the 
 loss, was his own inexcusable folly." f 
 
 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 
 time is to begin to run is to be included in the reckoning. (a) 
 The earlier English decisions included that day.J 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 ; 
 
 * The United States v. Hall, 6 Cranch, Castle T. Burditt, 3 T. R. 623; Glassington 
 
 171, 178. v. Rawlins, 3 East, 407. In Lester v. Garland, 
 
 f Commonwealth v. Bobbins, 26 Penn. however, 15 Ves. 248, the day was excluded, 
 
 165, 167. and it was intimated that no general rule ex- 
 
 \ The King v. Adderley, Doug. 463 ; isted. 
 
 () Where the governor had ten days to retain bills, it was held exclusive of the 
 first and inclusive of the last, the period being a time given him for deliberation ; 
 otherwise in contracts, if necessary to carry out the intent, for there the first day 
 njay be included. Price v. Whitman, 8 Cal. 412; Iron Man. Co. v. Haight, 39 Cal. 
 540. That the day the bill is presented, and also Sundays, are to be excluded, sea 
 also People v. Hatch, 33 111. 9 ; but see opinion of the justices, 45 N. H. 607. By 
 statute,' bills were to be presented to the governor " one day previous " to ad- 
 journment, held, that at least twenty-four hours were necessary. Hyde v. White, 24 
 Tex. 137. 4 
 
 The usual rule in construing statutes as to computation of time is to include the 
 first and exclude the last. Commonwealth v. Maxwell, 27 Penn. St. 444. " Months " 
 are to be taken to be calender months. Gross v. Fowler, 21 Cal. 892. 
 
COMPUTATION OF TIME. 357 
 
 and such is, I believe, now the English rule.* 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 
 notes, the day of the date is excluded." f 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. J 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 computation of 
 time from an act done, the day of performance 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 execu- 
 tion should issue without interval of more than ninety days, 
 an original execution was returned on the 14th of April, and 
 an alias issued on the 14th July next thereafter, or on the 
 ninety-first day, held that 'the lien was not lost ;^f the court 
 saying that the statute must be construed as if it had said that 
 the lien should not be lost if an execution issued to the sheriff 
 without interval of more days than ninety days. But this rule 
 as to disregarding fractions 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 time, to include 
 one day and exclude the other, except where the -statute re- 
 quires specially a given number of entire days to intervene, in 
 which case both are excluded.f f 
 
 *3 Chit. Practice, 109; Pitt v. Shew, 4 R. 18; Ryman v. Clark, 4 Blackf. 329; 
 
 Barn. & Aid. 208 ; ex parte Dean, 2 Cowen, Jacobs v. Graham, 1 Ibid. 392 ; Arnold v. The 
 
 605; Jackson v. Van Valkenburgh, 8 Cowen, TJ. States, 9 Cranch, 104; Pierpont v. Gra- 
 
 260 ; Comml. Bank of Oswego v. Ives, 2 Hill, ham, 4 Wash. C. C. R. 232 ; Cornell v. Moul- 
 
 356; Homan v. Liswell, 6 Cowen, 659 ; Co- ton, 3 Denio, 12. 
 
 lumbia Turnpike Road v. Haywood, 10 Wend. f Wilcox v. Wood, 9 Wend. 348, per 
 
 422. See Small T. Edrick, 5 Wend. 137, Savage C. J. 
 
 where a contrary construction was given to \ Columbia Turnpike Road v. Haywood, 
 
 peculiar phraseology. Comml. "Bank of 10 Wend. 422. 
 
 Oswego v. Ives, 2 Hill, 355. The decisions in || Fairbanks v. Wood, 17 Wend. 329. 
 
 the other States do not seem uniform. Sims *|[ Lang v. Philips, 27 Ala. 311 ; Judd v. 
 
 v. Hampton, 1 S. & R. 411 ; Portland Bank Fulton, 10 Barb. 117. 
 v. Maine Bank, 11 Mass. 204; Presbrey v. ** Lang v. Philips, 27 Ala. 311. 
 
 Williams, 15 Ibid. 193; Bigelow v. Willson, ff Owen v. Slater et al. 26 Ala. 547. See, 
 
 1 Pick. 485 ; Commonwealth v. Keniston, 5 in N. Y. Fairbanks v. Woods, 17 Wend. 329 ; 
 
 Pick. 420; Hampton v. Erenzeller, 2 Browne's Snyder v. Warren, 2 Cow. 518. 
 
358 COMPUTATION OF TIME. 
 
 When the last day for the performance of a given act falls 
 on a Sunday, the act must be done on the preceding day.* 
 
 It was early settled in England, that in all acts of Parlia- 
 ment where " months " were spoken of without the word " cal- 
 endar," and nothing added from which a clear inference could 
 be drawn that the Legislature intended calendar months, they 
 should be understood to mean lunar months, or a month of 
 twenty-eight days.f 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 in- 
 tended, the month must be considered 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 cal- 
 endar 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 month is used in a 
 statute, it shall 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 con- 
 sidered to mean a calendar month.^f 
 
 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 statute 24 Geo. II, c. 25, enacts 
 that the year shall consist 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.** 
 
 Waiver. Under this head we have already noticed the 
 general rule ff that statutory provisions designed for the benefit 
 
 * Broome v. Wellington, 1' Sandf. Sup. Ct. three cases the statute was interpreted to 
 
 Rep. 664 ; ex parte Dodge, 7 Cowen, 147 ; mean calendar months. See also Jackson v. 
 
 Anon. 2 Hill, 376. Van Valkenburgh, 8 Cow. 260. 
 
 f Bishop of Peterborough v. Catesby, Cro. \ 1 R. S. 606. 4. 
 
 Jac. 167, 168; Barksdale v. Morgan, 4 Mod. *j[ Hunt v. Holden, 2 Mass. 170; A very et 
 
 185 ; Sir Wollaston Dixie's case, 1 Leon, 96 ; al. v. Pixley, 4 Mass. 460; Churchill v. Mer- 
 
 The King v. Peckham, Carth. 406; The King chants' Bank, 19 Pick. 532 ; Brudenell v.Vaux, 
 
 v. Adderley, Doug. 462 ; Castle v. Burditt, 3 2 Dall. 302 ; Commonwealth v. Chambre, 4 
 
 T. R. 623 ; Lacon-v. Hooper, 6 T. R. 224, per Dall. 143 ; Moore v. Houston, 3 S. & R. 144. 
 
 Lord Kenyon. ** 2 R. S. part i, chap, xix, tit. 1, 3 ; see 
 
 } Loring v. Hailing, 15 J. R. 119 ; Snyder The King T. Inhabitants of Worminghall, 6 
 
 v. warren, 2 Cowen, 518 ; Parsons v. Cham- Maule & Selw. 350, a case on a yearly hiring, 
 
 berlain, 4 Wend. 512; People v. Mayor <fec. ff Ante, chap, iy, p. 86. 
 of New York, 10 Wend. 393. In the last 
 
SUBJECT-MATTER. 359 
 
 of a party may be waived ; but that where the enactment is to 
 secure general objects of policy or morals, no consent will ren- 
 der a non-compliance 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 
 account. An auditor was appointed by consent, in an action 
 brought by a declaration embracing 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 that the 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 ace 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 consideration to be utterly void, 
 that the statute was made for the benefit of the party liable 
 upon the contract, 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. J 
 
 Consent, however, will nevef 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 con- 
 fer jurisdiction by waiving all objections. | 
 
 Subject-mutter. It is a general and very sound rule, appli- 
 cable to the construction of every statute, that it is to be taken 
 in reference to its subject-matter. In this way often the opera- 
 tion of general words may be limited. So, too, the stock-job- 
 bing acts are general, and their terms would apply to transac- 
 tions in foreign stock ; a construction, however, which the courts 
 
 * Andrews v. Wheeton, 23* Conn. 142. Bank v. Leavens, 20 Conn. 87; Groton & 
 
 See, also, King v. Lacey, 8 Conn. R. 499 ; Ledyard v. Hurlburt et al. 22 Conn. 178. 
 Selleck v. Sugar Hollow T. P. Co. 13 Conn. f Wales v. Webb, 5 Conn. R. 154. 
 453; Smith v. The State, 19 Conn. 493; \ Ives v. Finch, 22 Conn. 101. 
 
 Crone v. Daniels, 20 Conn. 831 ; Quinebaug || Ives v. Finch, 22 Conn. 101. 
 
360 GENERAL WORDS HOW QUALIFIED BY PARTICULAR WORDS. 
 
 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 how Qualified by Particular Words, (a) It 
 
 * Salkeld v. Johnston, 1 Hare, 196; Hen- ter, 2 Bing. N. C. '722; Elsworth v. Cole, 2 
 derson v. Bise, 3 Starkie, 158 ; Wells v. For- M. & W. 31. 
 
 (a) Construction of General Words. General words may be restrained by partic- 
 ular words in a subsequent clause. Covington v. McNickle, 18 B. Mon. 262. The 
 words " any other persons whomsoever," held not to be restricted in meaning by sub- 
 sequent words describing particular persons. Regina v. Doubleday, 3 E. & E. 501. 
 Special words must prevail over general whether in the same or in other statutes. 
 State v. Goetze, 22 Wise. 363. A particular enactment must prevail over a general 
 enactment in the same statute ; " the general enactment must be taken to affect only 
 the other parts of the statute to which it may properly apply." Pretty v. Solly, 26 
 Beav. 606. Special and imperative provisions as to practice cannot be controlled by 
 general provisions in reference to the same subject-matter. Zachary v. Chambers, 1 
 Oregon, 321. Power was given to city officers to "sell" shares of a railroad to 
 which the city had subscribed " and to do whatever else may seem necessary, etc., in 
 the premises ; " it was held that no power was given to barter or exchange the shares, 
 but only a discretion as to the manner of sale. Cleveland v. State Bank, 16 Ohio, 
 N. S. 236. 
 
 Ejusdem Generis. For applications of the rule that general words will be re- 
 strained to things of the same kind with those particularized, see, Williams v. Gold- 
 ing, Law R. 1 C. P. 69; White v. Ivey, 34 Geo. 186; State v. McGarry, 21 Wise. 
 496 ; Mclntyre v. Ingrahani, 35 Miss. 25. Thus, " auctioneers, etc., etc., and all 
 other trades, avocations, or professions, whatever," does not include lawyers. St. 
 Louis v. Laughlin, 49 Mo. 559. Where by a statute certain specified defects in an 
 indictment were made immaterial, more general language descriptive of defects was 
 restricted to those specified. State v. Pemberton, 30 Mo. 376. But a saving of " con- 
 tract, obligation, right, or lien," was held to include a claim and action ex delicto, 
 because as " rights" would arise from obligations or contracts, the word " right " here 
 used was to have a larger and additional sense, or else it would be mere surplusage. 
 Gould v. Sub District, 7 Minn. 203. And the statutory phrase being " in any dwell- 
 ing-house, out-house, yard, garden, or other place or places," it was held that a 
 warehouse occupied for business purposes only, and not within the curtilage of or 
 connected with any dwelling-house, was a "place" within the meaning of the 
 statute. Queen v. Edmundson, 2 E. & E. 75. , 
 
 ^Implied Exceptions to the General Language of Statutes. A general statute of limita- 
 tions, there -being no express exception of such persons, binds minors and married 
 women though not named ; there is no implied exception. Warfield v. Fox, 53 
 Penn. St. 382. And a statute authorizing in general terms the foreclosure of mort- 
 gages by advertisement and sale under a power, applies to a case where the mort- 
 gagor is insane at the time of the foreclosure. Encking v. Simmons, 28 Wise. 272. 
 If there is nothing in the statute itself to limit its general words, they must have 
 general effect, courts cannot arbitrarily add to or subtract from them. Tynan v. 
 Walker, 35 Cal. 634 ; Harrington v. Smith, 28 Wise. 43. But an exception of infants 
 from general language broad enough to cover them (requiring the filing of 
 
WAGERS. 361 
 
 is a rule of right reason that general words may be qualified by 
 particular clauses of a statute, but that on the other hand a 
 thing which is given in particular 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 potissimum 
 liabitum quod ad speciem directum est. In the less classical' 
 Latin of the early English law, the same idea is conveyed in 
 the words generalis clausula non porrigitur ad ea quce specialiter 
 sint compreJiensa. In conformity to this doctrine it is held that 
 where a general intention is expressed in a statute, and the act 
 also expresses a particular intention, incompatible with the 
 general intention, the particular intention shall be considered 
 as an exception.* Where general words follow particular 
 words, the rule is to construe the former as applicable to the 
 things or persons particularly mentioned.! So, a statute treat- 
 ing of persons or things of an inferior rank, cannot by general 
 words 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 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 
 unknown or contingent event, void, and all contracts for or on 
 account of any money or property, <fec., wagered, bet, or staked, 
 void ; the act, however, being declared not to apply to insur- 
 
 * Churchill v. Crease, 5 Bing. 180 492-3. $4 Rep. 4; 2 Rep. 46; 2 Inst. 478; 
 
 f Sandiman v. Breach, 7 B. & C. 100. Dwarris, 656. But see, contra, 2 Inst. 136. 
 
 || 1 R. S. part i, chap, xx, title 8, art. 3. 
 
 certain statements under certain penalties) was implied from the harshness of any 
 other construction and the omission of any provision for the making of such state- 
 ments by guardians, etc. Coy v. Coy, 15 Minn. 119. < 
 
 General Language Limited fo/ the Object of the Act. A statute contained the follow- 
 ing : " The original jurisdiction of the Circuit Court of the Southern District of N. 
 Y. shall be confined to causes arising within said district, and shall not be construed to 
 extend to causes arising within the Northern District -. " held only to exclude causes 
 arising within the Northern District, and not those arising outside of both districts, 
 the object being to apportion jurisdiction between the two districts. Wheeler v. Mc- 
 Cormick, 8 Blatch. C. C. 267. And where insurance companies before commencing 
 business were required to have a certain amount secured by mortgage " on unincum- 
 bered real estate," it was held that the land must be within the State. State v. King, 
 44 Mo. 283. 
 
362 FOREIGN STATUTES. 
 
 ances 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.* 
 
 Corporations. The Revised Statutes of New York declare 
 that the charter of every corporation that shall hereafter be 
 granted by the Legislature shall be subject to alteration, sus- 
 pension, and repeal in the discretion of the Legislature, f In 
 construing this provision, it has been said that the Legislature 
 could not convert a railroad 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 stock-holders, to subscribe 
 to a railroad in Canada, was constitutional, as the subscribing 
 companies would remain the same as before as to their charac- 
 ter, structure, objects, and business. J 
 
 But in cases where no such power is reserved by the Legis- 
 lature, the true doctrine is that no radical change or altera- 
 tion 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. ( 
 
 Interpretation and Proof of Foreign Statutes. When the 
 
 * Hall v. Bergen, 19 Barb. 122. rule the invalidity of wagers: " La loi n'ac- 
 
 The policy of different countries varies corde aucune action pour un dettedujeuoupour 
 
 very much on the subject of wagers. In En- le paiement d'un pari." Code Civil, Liv. 8, 
 
 gland, at common law wagers are valid con- Tit. 12, Chap. Prem. 1965. But a class of 
 
 tracts, unless contrary to public policy, or exceptions is created in favor of martial 
 
 immoral, or in any way tending to the detri- sports, foot and horse races, tennis, &c., sub- 
 
 ment of the public ; or, unless thev affect the ject, however, to the discretionary exercise of 
 
 interest, feelings or character of a third per- the judicial power, where the demand appears 
 
 son (see Chitty on Contracts, in voc. Wagers), exorbitant. 
 But the courts have frequently expressed f 1 R. S. 600, 8. 
 
 their disapprobation of these contracts, and in j White v. Syracuse and Utica Railroad 
 
 some cases, where trivial or contemptible, Co. 14 Barbour, 661. 
 
 have refused to try actions upon them. Gam- |j Hartford and New Haven Railroad Com- 
 ing debts. and securities are void by statute, pany v. Croswell, 5 Hill, 384; Middlesex 
 The French Code declares as a general Turnpike Company v. Locke, 8 Mass. R. 268. 
 
FOREIGN STATUTES. 363 
 
 statutes of other countries, or of other States of this Union, 
 corne up for construction, the decisions of the courts of the 
 State enacting the law are held to be a conclusive or authentic 
 interpretation ; * 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. 
 
 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 
 w r eight 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 have regulated their grants of patents, as being 
 tacitly referred to in some of the provisions of our patent 
 statute, afforded materials to illustrate it.f 
 
 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 inter- 
 pretation of the statute by the foreign tribunal. It is a mat- 
 ter of fact." J In a case in Massachusetts, turning on the con- 
 struction 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 de- 
 cide what was the law of Georgia in regard to the matter 
 
 * Thompson v. Alger, 12 Met. p. 428. \ Ingraham v. Hart, 11 Ohio, 255 ; Burch- 
 
 \ Pennock & Sellers v. Dialogue, 2 Peters, ard, J., dissented. 
 1, 18. 
 
364 FOREIGN STATUTES. 
 
 in hand ; "but the application was 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 of the State of Georgia, 
 to the statute before them.* But on the contrary, it has been 
 expressly decided in Pennsylvania and Alabama, that the inter- 
 pretation of a foreign statute belongs to the court, f 
 
 As to the proof of foreign laws, it has been said in Massa- 
 chusetts, 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, inter- 
 course 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 presume 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 hav- 
 ing been given.^f It appears to me very proper that the inter- 
 pretation 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 submitting 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. 79) 
 had occasion to notice, that ignorance of law is no excuse, that 
 the principle does not apply to foreign law. Juris ignorantia 
 
 * Holman v. King, 7 Met. 388. 151. la this case, in the King's Bench, the 
 
 f Bock v. Lauman, 24 Penn. 435. In Con- qustion being on a point of French law, grow- 
 
 necticut it is regulated by a statute ; see Hale ing out of the construction of the Code de 
 
 v. N. J. Steam Nav. Co. 15 Conn. 539 ; Lock- Commerce, and the opinions of French advo- 
 
 wood v. Crawford, 18 Conn. 361 ; Inge v. cates having been taken by consent, but ap- 
 
 Murphy, 10 Ala. 885. pearing contradictory, the court examined 
 
 IRaynham v. Canton, 3 Pick. 293. the Code itself, and decided the case upon its 
 Crane v. Hardy, 1 Michigan, 56. own construction of the clause in question. 
 fl" Bock v. Lauman, 24 Penn. 435. See, Vander Donckt v. Thellusson, 8 C. B. R. 8 17: 
 on the subject of proving foreign law as Belgian laws proved by a merchant and stock- 
 matter of fact, Bristow v. Sequeville, 5 Exch. broker. Inglis et al. v. Usherwood, 1 East, 
 275. A student in a foreign university is in- 515, turned upon a question of Russian law, 
 competent to prove the law of that country, but the construction or meaning seems to have 
 See also Trimby v. Vignier, 1 Bing. N. C. been admitted. 
 
REVISION OF STATUTES. 365 
 
 est cum jus nostrum ignoramus / and it had been held that ig- 
 norance of the law of a foreign government is ignorance of fact ; 
 and the laws of the other States of the Union being in this re- 
 spect regarded as foreign laws, it has been decided in Massachu- 
 setts 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 prin- 
 ciples peculiar to this country, growing out of the frequent 
 revision of our statutory law, and the changes consequent 
 thereupon, (a) 
 
 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 by clear expressions 
 in the statutes, or adjudications on them, the mere change of 
 phraseology shall not be deemed or construed a change of the 
 law, unless such praseology evidently purport an intention in 
 the Legislature to work a change, f So in New Hampshire, it 
 has been held that upon the revision of the statutes the con- 
 struction will not be changed by such alterations as are merely 
 designed to render the provisions more concise. J 
 
 In the adoption of the Code, it has been said in Alabama 
 
 * Haven v. Foster, 9 Pick. 112. Young v. Date, 1 Seld. 463; Elwood v. 
 
 f Yate's Case, 4 J. R. 359 ; Matter of Klock, 13 Barb. 50 ; Douglass v. Howland, 
 
 Theriat v. Hart, 2 Hill. 380; Parmelee v. 24 Wend. 35 ; Dominick v. Michael, 4 Sand. 
 
 Thompson, 7 Hill, ^7 ; Taylor v. Delancy, 2 S. C. R. per Dner, J. 374, 409 ; Hughes v. 
 
 C. C. in Error, 150 ; Goodell v. Jackson, 20 Farrar, 45 Me. 72. 
 J. R. 722 ; Croswell v. Crane, 7 Barb. 191 ; \ Mooers v. Bunker, 9 Foster, p. 421. 
 
 (a) Revision. Where a statute evidently is intended to revise the whole subject 
 treated in a former statute, and to be a substitute therefor, it repeals such former 
 statute. Wakefield v. Phelps, 37 N. H. 295 ; Farr v. Brackett, 30 Vt. 344 ; Giddings 
 v., Cox, 31 Vt. 607; State v. Conkling, 19 Cal. 501 ; and see Stirman v. State, 21 
 Tex. 734 ; Conley v. Calhoun Co. 2 W. Va, 416 ; and though there is a plain casus 
 omissus, the courts cannot supply it. Ripley v. Gifford, 11 Iowa, 367. Sections 
 omitted in a revision are not revived but are annulled. Pingree v. Snell, 42 Me. 53. 
 
 Exit where the revisory statute contains a repeal only of all inconsistent acts, etc., 
 the repeal will extend no farther than the inconsistency. Lewis v. Stout, 22 Wise. 234. 
 And where a section is re-enacted with an addition, there being a constitutional pro- 
 vision that an amendment can only be made by setting out the section as amended, 
 it will not be a repeal. Alexander v. State, 9 Ind. 337 ; but, per contra, see Billings v. 
 Harvey, 6 Cal. 381. As to the effect of a substantial re-enactment of a former section 
 in a later section of the same act, see Martindale v. Martindale, 10 Ind. 566. See 
 note on " Repeal.'' 
 
366 CONSTRUCTION OF STATE LAWS IN U. S. COURTS. 
 
 that the Legislature must be presumed to have known the judi- 
 cial construction which had been placed on the former statutes ; 
 and therefore the re-enactment in' the Code of provisions sub- 
 stantially the same as those contained in a former statute, is a 
 legislative adoption of their known judicial construction.* 
 
 In Massachusetts it also has been held in regard to the re- 
 vision of statutes, to be a well-settled rule that when any statute 
 is revised or one act framed from another, some parts being 
 omitted, the parts omitted are not to be revived by construction, 
 but are to be considered as annulled ; to hold otherwise would be 
 to impute to the Legislature gross carelessness or ignorance, 
 which is altogether inadmissible. So, in that State a very use- 
 ful statute, passed in 1754, concerning donations and bequests to 
 pious, and charitable, <fec., was decided not to be in force, on the 
 ground that the Legislature had in 1785 legislated on the same 
 subject, and omitted to re-enact the provisions of the statute.f 
 
 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 com- 
 missioners ; and in submitting their proposed revision or alter- 
 ation to the Legislature, the legal advisers of the State have 
 stated in the shape of 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.J 
 
 State Statutes how Construed in the United States Courts. 
 One great object of the Federal Constitution, among others, was 
 by the creation of a national judiciary to secure a tribunal free 
 from all local influences to decide on controversies between the 
 
 * Duramus v. Harrison & Whitman, 26 f Ellis v. Paige et al. 1 Pick. 43 ; Bartlett 
 
 Ala. 326. And the separation in the revision et al. v. King, Exr. 12 Mass. R. 537 ; Nichols 
 
 into different parts of what was before a con- v. Squire, 5 Pick. 168. 
 nected code, does not affect the construction. $ Forrest v. Forrest, 10 Barb. 46. 
 
 Smith v. Smith, 19 Wise. 522. 
 
CONSTRUCTION OF STATE LAWS IN U. S. COURTS. 3G7 
 
 States themselves, 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 ap- 
 peal lies, in cases affecting the construction of the Federal Charter 
 or of acts of Congress, from the highest State courts to the Su- 
 preme Court of the 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 con- 
 struction which are there applied to them, become therefore a 
 matter of the highest interest, (a) 
 
 * Martin v. Hunter's Lessee, 1 Wheat, the appellate jurisdiction was sustained in an 
 804; Cohens v. Virginia, 6 Wheat. 413, where elaborate opinion by Marshall, C. J. 
 
 (a) Construction of State Statutes ly the U. 8. Courts. They are to receive the 
 construction given to them by the highest court of the State. Bloodgood v. Gracey, 
 31 Ala. 575 ; Black v. Delaware &c. Canal, 22 N. J. 130; The Samuel Strong, 1 
 Newb. Adm. 187 ; Boyle v. Arlidge, 1 Hemps. 620 ; and the same is true of a clause 
 in a State Constitution, State v. Macon Co. Court, 41 Mo. 453 ; Draper v. Emerson, 
 22 Wise. 147 ; and it makes no difference that the transaction was before the decision 
 giving a construction to the statute, nor that the parties have left the State. Ibid. 
 
 But the Supreme Court of the U. S. has not followed this doctrine closely, in a 
 series of recent cases upon the power of municipalities under State laws and Consti- 
 tutions to issue bonds in aid of railroads. Thus, where the power of a city to lay 
 taxes was limited by its charter to one per cent, of the assessed value of the property 
 within it, and a judgment had been recovered against the city upon bonds issued 
 under a former statute, and the State courts had held that the limitation in the 
 charter applied to such a case, and that the city could not be compelled to lay a tax 
 of more than one per cent, to pay such judgment, the Supreme Court refused to fol- 
 low such decision and held that the limitation of the charter did not apply. Butz 
 v. Muscatine, 8 Wall. 575. Where the decision of the United States Circuit Court in 
 construing a State statute follows the construction given by the State courts at the 
 time when it was rendered, the Supreme Court will not reverse such decision, be- 
 cause the State courts have in the mean time changed their construction. Morgan 
 v. Curtenius, 20 How. 1. In respect to titles derived from the U. S., the courts of 
 the U. S. follow their own rules of decision. Thus, although a State statute 'author- 
 izes an action of ejectment upon an entry of land previous to the issue of a patent, 
 the courts of the U. S. will not permit such suit in the.ir jurisdiction, they holding 
 that such title is equitable merely. Hooper v. Scheimer, 23 How. 235. 
 
 The adoption of a statute originally passed in another State, carries with it the 
 construction which obtained in the original jurisdiction at the time of such adoption. 
 Tyler v. Tyler, 19 111. 151; Drennan v. People, 10 Mich. 169; Scruggs v. Blair, 44 
 Miss. 406 ; Galbraith v. Galbraith, 5 Kans. 402. But where such construction was 
 based upon a reason not existing in the State which adopts the foreign statute, the 
 rule may be otherwise. See Tyler v. Tyler, ubi supra. And when a constitutional 
 provision against special and local legislation was borrowed, it was held that the con- 
 struction, that special or local laws could not be enacted when general ones could be 
 
368 CONSTRUCTION OF STATE LAWS IN U. S. COURTS. 
 
 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 
 federal tribunal adopts it as its own.* And the same princi- 
 ple has been declared to hold good in regard to State Constitu- 
 tions^ So, in an early case in the Supreme Court of the Unit- 
 ed States, turning on the Pennsylvania acts respecting the 
 registry of deeds, C. J. Marshall said, "Were this act of 1715 
 now for the first time to be construed, the opinion of this court 
 would certainly be, that the deed was not regularly proved. 
 But in construing the statutes of a State on which land titles 
 depend, infinite mischief would ensue should this court ob- 
 serve a different rule from that which has been long established 
 in the State ; " * * " the court yields the construction which 
 would be put on the words of the act, to that which the courts 
 of the State have put on it, and on which many titles may 
 probably depend." J " The laws imposing a tax on lands, and 
 regulating its collection, in perhaps almost all the States," says 
 Mr. Justice M'Lean, speaking for the Supreme Court of the Unit- 
 ed 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. 
 
 * M'Keen v. Delancey's Lessee, 5 Cr. 22 ; adopts the local law of real property as ascer- 
 
 Polk's Lessee v. Wendell e< al. 9 Cr. 87; Gard- tained by the decisions of the State courts, 
 
 ner v. Collins et al. 2 Pet. 58 ; Shelby v. Guy, whether those decisions are upon the con- 
 
 11 Wheajt. 361 ; Green v. Lessee of Neal, 6 strnction of the statutes of the State, or form 
 
 Pet. 291 ; Nesmith v. Sheldon, 8 How. 812. a part of the unwritten law of the State. 
 
 f Webster v. Cooper, 14 How. 488. Jackson v. Chew, 12 Wheat. 153 ; Also see 
 
 \ M'Keen v. Delancey's Lessee, 5 Cranch, Shelby v. Guy, 11 Wheat. 361, as to the adop- 
 
 22, 32, 33. tion of State law generally ; and Swift v. Ty- 
 
 It has been said, that the Supreme Court son, 16 Peters, pp. 1 and 18. 
 
 made applicable, was also borrowed, but not the decisions defining the cases in which 
 general laws could be made applicable. Hess v. Pegg, 7 Nev. 23. Where there is no 
 proof of the construction of a borrowed statute in the State in which it was origi- 
 nally enacted, it would be construed as such a statute would be in the jurisdiction of 
 its adoption. Smith v. Bartram, 11 Ohio, N. S. 660. 
 
 Construction of State statutes by the courts of the U. S. is not binding upon 
 State courts. Deans v. McLendon, 30 Miss. 343 ; Levy v. Mentz, 23 La. Ann. 261. 
 
STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. 369 
 
 They not only constitute a rule of property, but their construc- 
 tion by- the courts of the States should be followed by the 
 courts of the United States, with equal, if not greater strictness 
 than the construction of any other class of laws." * 
 
 The rule of adoption of State construction 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 Fed- 
 eral 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 un- 
 derstand what is the law of the State, f This course is pursued, 
 it has been again said, " not on the ground of authority, but of 
 policy. J 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 unfortunate 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 individuals on the other ; and in regard to these, 
 the Supreme Court reserves its absolute independence of judg- 
 ment. | 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." ^f But I may be permitted to 
 doubt whether the same reasons of comity, policy, and practical 
 
 * Games et al. v. Stiles, 14 Peters, 322, 328. i Woolsey v. Dodge, 6 M'Lean, 142. 
 
 f Wood, arguendo, in Martin v. Waddell, f Martin v. Waddell, 16 Peters, 367, 418. ' 
 
 16 Peters, 367, 390; Elmendorf v. Taylor, 10 j[ Williamson et al. v. Berny, 8 How. 496, 
 
 Wheaton, 152; Bell v. Morrison, 1 Peters, 543. 
 369; Green v. Neal, 6 Peters, 301. 
 
 24 
 
370 STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. 
 
 ' expediency which recommend the rule as to public statutes, 
 should not make it operate with equal effect on private statutes ; 
 every 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. 
 
 So, too, where the Supreme Court of the United States have 
 first decided upon State laws, the Federal tribunal does not feel 
 bound to surrender their convictions 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, con- 
 trary 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 ex- 
 ception, and had been so received and construed by the people 
 and the courts for a long series of years, and a subsequent Leg- 
 islature sanctioned. the law as published; nevertheless, the Su- 
 preme 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 ques- 
 tions of general commercial law were to be treated as having 
 the binding force of statutory enactments. But the court re- 
 jected the proposition. J 
 
 Having, in the previous pages, endeavored to give a general 
 
 * Rowan v. Runnells, 5 Howard, 139. Supreme Court had given a judicial construc- 
 
 f Pease v. Peck, 18 Howard, 596. tion to a provision of a recent statute, that 
 
 J Swift v. Tyson, 16 Peters, pp. 1 and 18. decision, if not clearly wrong, should be fol- 
 
 As to harmony between the decisions of tri- lowed by the Court of Chancery, so that dif- 
 
 bunals of co-ordinate jurisdiction in regard to ferent rules of construction might not prevail 
 
 the construction of statutes, I may notice that in the courts of law and equity in relation to 
 
 in Merville v. Cownsend, 5 Paige, 80, Mr. the same statutory provisions." 
 Chancellor "Walworth said " that where the 
 
CONSTRUCTION OF PARTICULAR WORDS. 371 
 
 outline of the 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 applied to particular words. It is not designed to do more 
 than to give an idea of the mode in which the judicial authority 
 in this respect is exercised, (a) 
 
 (a) Particular Words. Action construed to include suits in equity. Coatsworth 
 v. Barr, 11 Mich. 199. Does so under N. Y. Code. Corson v. Ball, 47 Barb. 452. 
 Does not include criminal proceedings. Calkins v. State, 14 Ohio, N. 8. 222. 
 
 Absent Person in settlement laws. See Wilmington v. Somerset, 35 Vt. 232. 
 
 And and or are convertible as the sense of the statute may require, even in a crim. 
 inal statute. State v. Myers, 10 Iowa, 448. ''And" construed " or," as being more 
 reasonable, and as being according to the intent shown by a prior statute in pari 
 materia. Townsend v. Read, 10 C. B. (N. S.) 308. " Or" construed "and." Bojles 
 v. Murphy, 55 111. 236. 
 
 Arbitration distinguished from appraisement by valuers. Collins v. Collins, 26 
 Beav. 306. 
 
 Bridge includes such abutments as are necessary. Tolland v. Willington, 26 Conn. 
 578; and see also Linton v. Sharpsburg Bridge, 1 Grant's Gas. 414. As to "railroad 
 bridge," see Bridge Proprietors v. Hoboken &c. Co. 1 Wall. 116. 
 
 Ceteris paribus construed. See Atty. Gen. v. Earl of Powis, 1 Kay, 186. 
 
 Carrying on Business. See In re Alabama &c. R. R. 9 Blatch. C. C. 390. 
 
 Casting Vote held to mean in this case a vote where there was a tie, the person 
 having such casting vote himself voting i. e., having a double vote. People v. 
 Church of the Atonement, 48 Barb. 603. 
 
 Connection between different railroads defined. Philadelphia &c. R. R. v. Cata- 
 wissa R. R. 53 Penn. St. 20. Between societies, defined. Allison v. Smith, 16- 
 Mich. 405. 
 
 Dwelling House means only such as is so used; it is immaterial that the building 
 was originally constructed for that purpose. N. Y. Fire Department v. Buhler, 35 
 N. Y. 177. 
 
 Enclosure is not so broad a term as " close." Porter v. Aldrich, 39 Vt. 326. 
 
 Erection. The removal of a building from one part of a lot to another, where it 
 is permanently located, is not an " erection " within the terms of a statute against the 
 erection of wooden buildings. Brown v. Hunn, 27 Conn. 332. 
 
 Fire-works defined. See Bliss v. Lilley, 3 B. & S. 128. 
 
 General and "public" are, it seems, convertible terms as applied to statutes. 
 Clark v. Janesville, 10 Wise. 136. But many N. Y. cases make a distinction, and 
 oppose "general" to "local," and "public" to "private," holding that a statute may 
 be "public" but "local." See cases collected in note on " Titles and Subjects of 
 Statutes." 
 
 Grain construed to include "millet," and " sugar-cane seed," in a penal statute. 
 Holland v. State, 34 Geo. 455. 
 
 Heirs, held to mean heirs according to the statute of distributions, in In re Ste- 
 vens' Trusts, Law R. 15 Eq. 110. 
 
 Home or Dwelling Place construed in Wilmington v. Somerset, 35 Vt. 232. 
 
372 CONSTRUCTION OF PARTICULAR WORDS. 
 
 Banking Principles. A statutory authority to a corpora- 
 tion to loan and negotiate their moneys and effects upon bank- 
 ing principles, has been said, " if the phrase has any peculiar 
 
 House, a church held to be a house within meaning of a statute relating to setting 
 houses back from the street. Folkestone v. Woodward, Law R. 15 Eq. 159. 
 
 Inland Navigation does not include navigation on the great lakes. Moore v. 
 American Trans. Co. 24 How. 1. 
 
 Internal Improvements. See Mayor of Wetumpka v. "Winter, 29 Ala. 651 ; Low v. 
 Marysville, 5 Cal. 214. 
 
 Judgment Debtor, in a statute giving certain remedies to creditors, includes a cor- 
 poration. De Bemer v. Drew, 57 Barb. 438. 
 
 Laborer, or "operative," does not include a consulting engineer. Ericsson v. 
 Brown, 38 Barb. 390. Nor a contractor for men and horses, although he himself 
 drives his teams. Balch v. N. Y. &c. R. R. 46 N. Y. 521. 
 
 Lessee of a railroad, construed in Burchfield v. Northern C. R. R. 57 Barb. 589. 
 
 Lowest Bidder, whether, when a contract is required to be awarded to the " lowest 
 bidder," it can be given to the owner of a patented article in respect of which there 
 can be no competition ? It can. Hobart v. Detroit, 17 Mich. 246. Per contra, it 
 cannot. Nicholson &c. Co. v. Painter, 35 Cal. 699 ; and see Cleveland &c. Co. v. 
 Fire Comm'rs, 55 Barb. 288. 
 
 Month held to mean calendar month, in Gross v. Fowler, 21 Cal. 392. 
 
 Next of Kin, excludes representation. Clayton v. Drake, 17 Ohio, N. S. 367. 
 
 Owners or Occupiers, construed in Mourilyan v. Labalmondiere, 1 E. & E. 533. 
 
 Par, denned in Galloway v. Jenkins, 63 N. C. 147. 
 
 Perishable ordinarily means " subject to speedy and natural decay." Webster v. 
 Peck, 31 Conn. 495. But where the time contemplated is necessarily long, the term 
 may embrace property liable merely to material depreciation in value from other 
 causes than such decay. Ibid. 
 
 Person includes artificial persons, corporations, or quasi corporations. Douglas v. 
 Pac. Mail 8. S. Co. 4 Cal. 304 ; Louisville &c. R. R. v. Commonwealth, 1 Bush (Ky.) 
 250 ; U. S. Tel. Co. v. West. Un. Tel. Co. 56 Barb. 46 ; Fisher v. Horicon, 10 Wise. 
 351 ; Canal Co. v. Dauphin Co. 3 Brewst. 124. And it even includes the State in a 
 statute to punish certain frauds against " any person." Martin v. State, 24 Tex. 61. 
 
 Personal Property, held in this particular case not to include promissory notes ; 
 and a dictum that these words do not in general cover promissory notes. Mclntyre 
 v. Ingraham, 35 Miss. 25. This dictum is certainly contrary to all of the accepted 
 definitions of the term. There is nothing in promissory notes to distinguish them 
 from other things in action, so that if the dictum were correct, " personal property " 
 would have to be limited to chattels. 
 
 Personal Representative does not include an agent. Jones v. Tainter, 15 Minn. 512. 
 
 Possession, for meaning of, as used in the " Factor's Act," see Pegram v. Carson, 
 10 Bosw. 505. For construction of " actual possession," see Dodge v. Chandler. 9 
 Minn. 97. 
 
 Proceeding. The saving clause of a Code of Practice declared that it should not 
 affect any " proceeding " commenced before its enactment ; it was held that this did 
 not cover a judgment recovered before the passage of the Code, and that another 
 clause of the Code taking away the lien of judgments applied to such prior judg- 
 ment. Daily v. Burke, 28 Ala. 328. That the clause taking away such prior lien 
 
CONSTRUCTION OF PARTICULAR WORDS. 373 
 
 meaning, to be an authority to deduct the interest at the com- 
 mencement 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 
 
 Burglary at common law means the crime of breaking into 
 a house in. the night time, with the intent to steal or commit 
 a felony ; and it has been held in Alabama, that this term, 
 when used in their Code, must receive the same construc- 
 tion. % 
 
 Cattle. Various cases have been decided as to what are 
 considered cattle in England ; and the construction 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 the name by which the city or vL- 
 lage was designated in its charter, and a suit brought in the 
 
 * Maine Bank v. Butts, 9 Mass. 49. the common law, have obtained a fixed and 
 
 f Barker v. The State, 12 Texas, 273. definite meaning, the inference, we think, is 
 
 \ Ex parte Vincent, 26 Ala. 145, the court irresistible, that they were intended to be 
 
 say, " When words are used by the Legisla- used in the common-law sense." 
 ture in relation to a matter or subject, which, || 3 Bing. 581 ; 2 W. Black. 723 ; ex parle 
 
 when used in reference to the same subject at Hill, 3 C. <fc P. 225 ; Dwarris, p. 750. 
 
 would be void as impairing the obligation of contracts, see note to " Obligation of 
 Contracts." 
 
 Property, zs applied to lands, includes " every species of title, inchoate or com- 
 plete," and " rights which lie in contract, those which are executory as well as those 
 which are executed." Figg v. Snook, 9 Ind. 202. As applied to taxation, " prop- 
 erty " includes "credits." People v. Worthington, 21 111. 171. 
 
 Purchaser includes "mortgagee" in the statutory law of Kentucky. Halbert v. 
 McCulloch, 3 Mete. (Ky.) 456. 
 
 Sale and " gift " distinguished. Parkinson v. State, 14 Md. 184. Whether " sale " 
 covers "exchange," see Cady v. Watertown, 18 Wise. 322; Cleveland v. State Bank 
 of Ohio, 16 Ohio, N. S. 236. 
 
 Soil, in connection with mineral rights, is equivalent to "surface." Pretty v. 
 Solly, 26 Beav. 606. 
 
 Subsequent Purchasers, in recording acts, includes purchasers from heirs as well as 
 from ancestor. McClure v. Tallraan, 30 Iowa, 515. 
 
 Such, in statutes, commented on in Eastern &c. B. R. v. Marriage, 6 H. & N. 931. 
 
 Suit, said to be synonymous with "action," and " proceeding at law." Calder- 
 wood v. Estate of Calderwood, 38 Vt. 171. 
 
 Turned Loose, cattle under care of a servant, but without halters, are not. Sher- 
 born v. Wells, 3 B. & S. 784. 
 
 Wagon. See Quigley v. Gorham, 5 Cal. 418. 
 
374 CONSTRUCTION OF PARTICULAR WORDS. 
 
 name of the "President and trustees" of the village, &c., was 
 held improperly commenced. * 
 
 Curtilage. This term, which is peculiar to England, 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, f 
 
 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 con- 
 strued to mean " descent through a parent." ^f 
 
 High Seas. This word, as used in the Crimes Act of the 
 United States (1825, ch. 276, 22), is used in contradistinction 
 to arms of the sea, and bays, creeks, &c. within the narrow 
 headlands of the coast ; and comprehends only the open ocean 
 which washes the seacoast, or is not included within the body 
 of any county 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 boun- 
 daries of low- water mark. ft 
 
 Improvidence. As to what improvidence is, for which a 
 person will be held incompetent to be an administrator, see 
 Coope v. Lowerre, 1 Barb. Ch. R. 45. 
 
 Justifiable Cause. Where an act declares it to be a crime 
 for a master to force a seaman on shore in a foreign port with- 
 out 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 
 
 * The President <fe Trustees of the Village verbal notice is good, unless the notice be a 
 
 of Romeo v. Chapman, 2 Mich. 179. legal proceeding, and then it must be in 
 
 f The People v. Taylor, 2 Michigan, 250. writing. 
 
 \ Lane v. Gary, 19 Barb. 537. See to || Case v. Wilbridge, 4 Indiana, 61. 
 
 same effect, Gilbert v. Col. Turnpike Co. 3 j[ Gardner v. Collins, 2 Peters, 58. 
 John. Cas. 107; and Matter of Cooper, 15 ** U. S. v. Grush, 5 Mason, 290; U. S. 
 
 John. 533. In M'Ewen v. Montgomery In- v. Robinson, 4 Mason, 307. 
 surance Co. 5 Hill, 101, it was held that a ft U. S. v. Ross, 1 Gall. 624. 
 
CONSTRUCTION OF PARTICULAR WORDS. 375 
 
 safety of the ship and crew, and the due performance of the 
 
 Maliciously. When an act declares it to be a crime to force 
 a seaman on shore " maliciously 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 
 wilfully done, that are against what any man of reasonable 
 knowledge and ability must know to be his duty.f 
 
 May and shall. Shall and may. Shall or may. (a) These 
 
 * Per Story, J., U. S. v. Coffin, 1 Sumner, 394; U. S. v. Ruggles, 5 Mason, 192; Phil- 
 394. lips' Case, 1 Moody's Crown Cases, 264, 273. 
 
 f Per Story, J., U. S. v. Coffin, 1 Sumner, 
 
 (a) May and Shall. A statute providing that certain public officers, " if deemed 
 advisable," or "if they believe the public good and the best interests of the city 
 require it," "may" levy a certain tax to pay public debt, is in fact peremptory 
 whenever the public interests or individual rights call for its exercise; e. g., where a 
 judgment creditor seeks to compel the levy by mandamus. Supervisors y. U. 8. 4 
 Wall. 435 ; Galena v. Amy, 5 Wall. 705. And when by statute a county court 
 " may " submit the question to the people before incurring certain expense, they 
 must do so. Steines v. Franklin Co. 48 Mo. 167. " May " is to be construed " shall " 
 where a statute directs the doing of a thing necessary to the ends of justice. Mitchell 
 v. Duncan, 7 Flor. 13. " May " will be construed " shall " where the good sense of 
 the entire enactment requires it ; e . g., where a statute establishes an improvement, 
 and devolves upon some one the doing of acts requisite to its completion. People 
 v. Brooklyn, 22 Barb. 404. 
 
 " May" will not be construed " shall" in order to create a right, but will be so 
 construed in order to enforce a right already existing ; e. g., a person cannot compel 
 the granting of a license under a statute merely permissive in its terms. State y. 
 Holt County Court, 39 Mo. 521; and see ex parte Banks, 28 Ala. 28, where by a 
 divided court a provision declaring that a trial "may" be removed to another 
 county " on application of the defendant duly supported by affidavit," was held sim- 
 ply permissive. An act providing that the offender " may " be punished for grand 
 larceny, although the value of the property stolen be less than $25 (that being the 
 general limit separating grand from petty larceny), gives a discretion. Williams v. 
 People, 24 N. Y. 405. A statute regulating foreclosure sales under mortgages given 
 to a public fund, provided that " such sales may be in parcels so that the whole 
 amount may be realized ; " it was held that this provision was for the benefit of the 
 fund alone, that the*mortgagor had no right to have it enforced, and that " may " 
 could not be construed " shall." Bansemer v. Mace, 18 Ind. 27. A statute provid- 
 ing that offenders " may " be tried in the county where they reside or where they 
 were apprehended, was held to be merely permissive, and not to oust jurisdiction in 
 the county where th e offense was committed. State v. Sweetser, 53 Me. 438. A 
 resolution of the State Legislature was passed after the decision in Hepburn v. Gris- 
 wold, that the State treasurer " may " pay the bonds of the State in coin; upon the 
 change of decision by the Supreme Court by which no one had the right to demand 
 payment in coin, it was held that this resolution ceased to be mandatory. Kellogg 
 
376 CONSTRUCTION OF PARTICULAR WORDS. 
 
 words have been a fertile source of difficulty. In an early case 
 on the construction of an English statute, em powering* church- 
 wardens 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 " may" and did not require the doing it as a 
 duty. u 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.^ 
 
 This subject has been recently much considered in England 
 on the true construction of the act called the 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 may was here held not to be dis- 
 cretionary, but to mean shall / 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 
 
 * Rex et Regina v. Barlow, 2 Salt 609. 1 Gas. in Eq. Abr. 52; 2 Ch. Cases, 143-190; 
 f Alderman Backwell's Case, 1 Vern. 152; Stamper v. Miller, 3 Atk. 211. 
 
 v. State Treasurer, 44 Vt. 356. Where the statutory provision was that the Probate 
 Court " may " remove an executor for certain specified causes, this was held to be 
 discretionary merely, the court saying that the power to remove was not clearly for 
 the benefit of the public nor of any private individual, and holding that this was the 
 true test. Cutler v. Howard, 9 Wise. 309. This case is more than questionable. 
 Adopting the test laid down, the court clearly fell into an error in its application, 
 for the persons directly interested in the estate have a right to the proper adminis- 
 tration of the trust, and the power of removal given is for their express benefit. 
 
 " Shall " will be construed " may " where no public or private right is impaired 
 by such construction ; e. g., in a provision that the assessment roll " shall " be re- 
 turned within forty days. Wheeler v. Chicago, 24 111. 105. " It shall be lawful," 
 like " may," is only imperative where the public are interested, or where the public 
 or third persons have a claim de jure that the act shall be done (Blake v. Ports- 
 mouth, &c. E. R. 39 N. H. 435) ; otherwise it rests in sound discretion, as, for 
 example, where the law having been that the tax list should be delivered to one 
 officer for collection, a subsequent statute provided that it should be lawful to deliver 
 it to another officer. Seiple v. Elizabeth, 3 Dutch. 407. See note on " Directory 
 Statutes." 
 
CONSTRUCTION OF PARTICULAR WORDS. 377 
 
 for by a party interested and having the right to make the ap- 
 plication ; that the word may is not used to give a discretion, 
 but to confer a power upon the court and judges, and the ex- 
 ercise of such power depends not upon the discretion of the 
 court or the judge, but upon 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 in- 
 terests 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 corpora- 
 tion of the city of New York, to repair sewers, <fec.f 
 
 Thus the rule that " may " is to be interpreted as " shall " 
 or " must " is not by any means uniform ; its application de- 
 pends 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 corporation may consist of 500,000 dol- 
 lars," the Supreme Court of the United States said, " Without 
 question such a construction (viz. shall for may), 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, fur- 
 ther 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 of 
 the language must be presumed to be intended, unless it would 
 manifestly defeat the object of the provisions. Now, we can- 
 not say that there is any leading object in this charter which 
 will be defeated by construing the word " may " in its common 
 sense."J 
 
 Where the words of a statute were " It shall and may be 
 
 * MacDougall v. Pafcerson, 11 C. B. 755. judges. See also on this subject The King v. 
 
 This decision of the Common Pleas is at vari- The Mayor of Hastings, 1 Dowl. <fe Ryl. 53. 
 ance with the rulings of the Court of Ex- f The jJayor, <fec. of N. Y. v. Furze, 3 
 
 chequer on the same act in Jones v. Harrison, Hill, 612. 
 
 6 Exch. 328, 2 L. M. <fe P. 257, and Latham v. \ Minor v. Mech's Bk. of Alex'a, 1 Peters, 
 
 Spedding, 20 Law Journal, N. S. Q. 6. 302, 46, 64. 
 
 where the court held the grammatical rule to In the King v. the Bailiffs, <fec. of Eyre, 
 
 govern, and that the use of the word may left the words " shall and may " were held to be 
 
 the whole matter discretionary with the permissive and not mandatory. Smith on 
 
 Statutes, p. 726 ; 2 D. & R. 172. 
 
378 JUDICIAL LIABILITY. 
 
 lawful for the president, <fec., to remove a toll-gate," the words 
 were held not to be imperative, but that the removal was left 
 to the discretion of the company, on the ground that may in 
 statutes means shall only in cases where the public interest 
 and rights are concerned, and where the public or third per- 
 sons have a claim dejure that the power be exercised.* 
 
 So too, where a statute was in these words, " If any person 
 die, &c., his heirs l shall or may ' recover in one action," it was 
 held that they were not bound to unite in one proceeding, but 
 that they might bring several suits, f 
 
 Navigate. The words " navigating a river," should be con- 
 strued in reference to the understanding of persons engaged in 
 the business of navigation.^ 
 
 Notice. Where a statute requires service of a notice on an 
 individual, it means personal service, unless some other* mode 
 of service is specified. | 
 
 Steal. The word " steal " in a statute implies a simple lar- 
 
 I may here notice a few miscellaneous cases of general inter- 
 est. In Alabama it has been said that where a statute affects 
 a community, and requires as a condition to its validity that 
 something should be done before it goes into operation, in such 
 a case the act has no force or effect until the thing required to 
 be done is performed. But where the statute affects one or 
 more designated persons, it matters not whether they are nat- 
 ural or artificial, those interested in the object of the act, may 
 always dispense with a preliminary step, and may claim the 
 benefit of its provisions without requiring the performance of a 
 condition which can affect themselves alone.** 
 
 We have already had occasion to notice the ancient rule of 
 the English system, which holds a judge exempt from all re- 
 sponsibility, civil or criminal, for any act done or omitted to be 
 done by him in his judicial capacity. This rule, however, has 
 
 * The Newburgh Turnpike Co. v. Miller, 5 \ Ruthbun v. Acker, 18 Barb. 393. 
 
 John. Ch. R. 112. J Alexander v. The State, 12 Texas, 540. 
 
 f Malcolm v. Rogers, 5 Cow. 188 ; see At- See Dwarris, 670, 693, for the construction 
 
 torney General v. Lock, 3 Atk. 164, where the of many particular words in the English stat- 
 
 words " shall and may," were held to be obli- utea. 
 gatory. ** Savage tt al. v. Walshe et al. 26 Ala. 
 
 \ The People v. Hulse, 3 Hill, 309. 619. 
 
BANKING SYSTEM OF NEW YORK. 379 
 
 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 injury, waste, 
 or damage sustained in any estate in consequence of any neglect 
 or omission of taking good and sufficient security from guard- 
 ians, executors, or administrators ; " but under this statute no 
 suit can be maintained on the bond for the failure of the judge 
 to require a guardian to renew his bond, or to give further se- 
 curity 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 con- 
 struction, 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 collector so dead, should divide the fees with the successor 
 in office, was held not to apply to a collector removed from of- 
 fice.f 
 
 Where a party was sentenced on the 6th of October, 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 reckoned as part of the term ; for, as the 
 liberty of the subject is concerned, the statute ought to receive 
 a construction favorable to the prisoner. J 
 
 The Banking System of New York. I 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 Eestraining Act, 1 E. S. 589, part 1st, ch. xx, tit. 20, 
 prohibited in New York under heavy penalties almost every branch of banking, 
 such as receiving deposits, making discounts, issuing notes for circulation, &c., 
 to all persons, associations, institutions, or companies, not especially authorized 
 by law. In consequence, it became the practice to grant special charters con- 
 ferring the privilege of banking. And to regulate this corporate banking so 
 carried on under special charters, a system of elaborate checks, restraints, and 
 penalties was imposed ; see R. S. 589, part i, ch. viii, tit. 2, " Of Moneyed Cor- 
 
 * Hamilton v. Williams, 26 Ala. 52Y. See the People v. Hennessey, 15 Wend, 
 
 f Doane v. Phillips, Currier v. Phillips, 12 147, for a case upon a statute against embez- 
 
 Pick. 223. zlement by servants. 
 \ Commonwealth v. Keniston, 5 Pick. 420. 
 
380 BANKING SYSTEM OF NEW YORK. 
 
 porations." Art. 1 being . entitled, Regulations to prevent the insolvency of 
 moneyed corporations, and to secure the rights of their stockholders andcreditors ; 
 and Art. 2, Regulations concerning the election of directors of moneyed corpora- 
 tions. 
 
 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 asso- 
 ciations for the purpose of carrying on the business. It has been a subject of 
 great interest to know how far the provisions of the old system attach to the 
 new; see Tracy v. Talmadge, 18 Barb. 456, where a history of the changes are 
 given, per Roosevelt, J. The first question that arose was, whether the asso- 
 ciations formed under the act were corporations. In Thomas v. 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, how- 
 ever, 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 mem- 
 bers 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 pre- 
 sumed to be thus passed, unless the fact was denied by plea ; 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 v. Beers, 23 Wend. 103 (April, 1840), the Court of Errors held that 
 the associations organized under the general banking law, and in conformity 
 with its provisions, were not bodies politic and corporate within the spirit and 
 meaning of the Constitution, 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 corporate powers ; and whether they were corpora- 
 tions, mere partnerships, or joint-stock companies, and whether, if corporations, 
 a law permitting corporations to be formed ad libitum 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 tribunal, however, it is impossible to learn the precise views of the majority 
 of the court on the subject. The strongest argument was probably the argu- 
 mentum ad inconvenienli growing out of the capital already invested in the free 
 banks. See the result of the decision stated in Gillet v. Moody, 3 Comst. 485. 
 
BANKING SYSTEM OF NEW YORK. 381 
 
 In Purdy v. The People, 4 Hill, 384, the case was whether a law altering 
 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 de- 
 cided 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 associations were not cor- 
 porations ; but the only point really decided was, that municipal corporations 
 came within the constitutional restrictions upon the creation of corporations. 
 See The People v. Purdy, commented on in The Supervisors of Niagara v. The 
 People, 7 Hill, 510. 
 
 In The Supervisors of Niagara v. The People, 7 Hill, 504, it was, however, 
 finally decided that the associations under the act of 1838 were " moneyed or 
 stock corporations " within the meaning of statutes passed long anterior to the 
 Act of 1838, subjecting such corporations to taxation on their capital. Senator 
 Porter, in delivering the prevailing opinion of the Court, said it was obvious 
 that Warner v. Beers, and Purdy v. The People, decided only that the banking 
 associations were not corporations within the spirit and meaning of the State 
 Constitution, and that municipal corporations were embraced in the State Con- 
 stitution; 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 dif- 
 ference between corporations and partnerships, and insisted that the free banks 
 were evidently endowed with a corporate character. 
 
 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 consti- 
 tutional clause had stood, " Corporations shall not be created unless, &c., pro- 
 vided the charters contain any exclusive grants of privilege." See Gillet^v. 
 Moody, 3 Com. 485, for C. J. Bronson's statement of the result of the contro- 
 versy. 
 
 The question, however, still remains, assuming these institutions to be cor- 
 porations, how far they are subject to the details 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 summary proceed- 
 ing, to review the elections of the specially chartered institutions. It was 
 insisted that the free bank in question was a corporation ; but the summary ju- 
 risdiction was denied on the ground, among others, that '' the only moneyed cor- 
 porations in existence at the time those powers 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 officers than a treasurer and cashier ; and it was said that it could 
 
382 BANKING SYSTEM OF NEW YORK. 
 
 not be supposed that the Legislature intended the court should have a sum- 
 mary jurisdiction over the contracts upon which the banking associations were 
 organized under the free banking law. 
 
 In Gillet v. 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 prevent the insolv- 
 ency of moneyed corporations, and that the assignment was valid, although not 
 authorized by a previous resolution of the board of directors. But the decision 
 has been questioned by the same learned judge who delivered it. See Gillet v. 
 Moody, 3 Corns. 486. 
 
 Gillet v. Moody, 3 Comst. 479, was a bill filed by a receiver of a banking 
 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 the terms of 
 the provisions of the Revised Statutes (part i, ch. xviii, tit. ii, art. 1, 1) de- 
 claring it unlawful for the directors of any moneyed corporation to divide, with- 
 draw, 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, without the consent of the Leg- 
 islature, and, it was held by the Court of Appeals that the banking associations 
 were not corporations in any qualified sense, as within the intent and meaning 
 of some particular statute, but corporations 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 facie evidence of insolvency ; and also that the title of the Re- 
 vised Statutes in regard to moneyed corporations was a beneficial statute, not 
 to be defeated by a narrow construction. 
 
 Talmadge v. 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 free 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 modified or superseded by, 
 or are inconsistent with, the free banking act of 1838. 
 
 In Tracy v. 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 cer- 
 tain penal provisions of law previously enacted to govern the action of char- 
 tered banks, undisputed corporations, should apply to these new forms of lim- 
 ited partnership ; and is that intention, 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 interfer- 
 ence." 
 
 I have no room for a discussion of the question ; but considering the differ- 
 
BANKING SYSTEM OF NEW YORK. 383 
 
 ences 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 
 Cleaveland, Esq. The volume contains a vast quantity of information, both of 
 a legal and historical character, which is nowhere else to be found collected, and 
 must undoubtedly prove of great value to all persons, whether in or out of this 
 State, who occupy themselves in any way with matters relating to this most 
 important branch of finance. Mr. Cleaveland's long familiarity with this par- 
 ticular subject, his devotion to his profession, and his reputation as an accurate 
 jurist, are sufficient guaranties in regard to the execution of the work. 
 
CHAPTER IX. 
 
 OF THE INTERPRETATION AND APPLICATION OF TREATIES, OF PAT- 
 ENTS OR GRANTS OF LAND, AND OF MUNICIPAL ORDINANCES. 
 
 Treaties. Part of the Supreme Law of the Union. How far they affect State Legis- 
 lation. 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 Application of the Latter in 
 America. Towns and Cities. Delegation of Legislative Sovereignty. Mode of 
 the Exercise of the Delegated Authority. Cases. General Authority of the 
 Courts. Contracts in Violation of Ordinances 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 unrestrained by any paramount or fundamental 
 law. Before passing to the subject of constitutional limitations 
 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 governed by considerations and 
 rules of the same kind as those which apply to statutes. 
 
 Treaties. The Constitution of the United States* declares 
 that all treaties made or to be made under the authority of the 
 United States, shall from a part of " the supreme law of the 
 land;" and the construction of these instruments thus neces- 
 sarily enters into the scope of this work. The subject has been 
 so_ fully discussed by writers on international law, that any elab- 
 orate examination of it here would be out of place. Some brief 
 observations must, however, be made. 
 
 The effect produced by the grant of the treaty-making power 
 
 * Art. 6, 2. 
 
TREATIES. 385 
 
 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 prop- 
 erty. Thus, it has even been intimated that the stipulations 
 in the treaty of peace between the United States and England, 
 of 1783, were, in regard to the confiscation laws, paramount to 
 the Constitution of Pennsylvania.* 
 
 It has been insisted that the Federal Government had no 
 power to make a treaty that could operate to annul a legislative 
 act 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 
 Legislature of Virginia, of 1777, concerning sequestrations and 
 forfeitures, and that a suit might be brought for the recovery 
 of a. debt, though it was barred by the State law.f So again 
 in New York, a State statute inconsistent with a treaty has 
 been held to be repealed by it. J 
 
 It has even been decided that a treaty may operate retro- 
 spectively, so as to destroy rights not only, vested, but fixed by 
 judicial action. In, 1800, an American ship captured a French 
 schooner, and a decree of condemnation 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 rati- 
 fied with France, by which it was agreed that all property cap- 
 tured should be mutually restored. The Supreme Court held 
 that they were as much bound by a treaty as by an act of Con- 
 gress, and reversed the judgment on this ground alone ; and 
 Marshall, C. 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 judgment when rendered was er- 
 roneous or not. But if subsequent to the judgment, and before the decision of 
 the appellate court, a law intervenes and positively changes the rule which 
 governs, ths law must 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 
 
 * Lessee of Henry Gordon v, Kerr, 1 \ Denn ex dem. Fisher v. Harnden, 1 
 
 Wash. C. C. R. 323. Paine C. C. R. 54. 
 
 f Ware v. Hylton, 3 Dall. 236. 
 25 
 
386 TREATIES. 
 
 of parties; but in great national conceins 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 Goveiment 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 neces- 
 sary to set aside a judgment, rightful when rendered, but which cannot be af- 
 firmed 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 1794, with that country, it has 
 been determined by the 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 under a treaty, it would be most mischiev- 
 ous to admit that the 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."f 
 
 A treaty is in many cases merely a contract, and not a legis- 
 lative act ; in cases of this kind it addresses itself to the polit- 
 ical, not to the judicial department ; and the Legislature must 
 execute the contract before it can become a rule for the court. ; 
 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. | 
 
 It is important to notice the rule that in the construction of 
 this class of documents the judiciary, in one respect, do not oc- 
 cupy the same position nor hold the same language that they do 
 in regard to other matters of written law. Whenever the nation, 
 by its properly constituted agents has declared its interpreta- 
 
 * IT. S. v. Schooner Peggy, 1 Cranch, 109. 314; see United States v. Percheman, *7 
 
 \ Society, <fec. T. New Haven, 8 Wheat. Peters, 51. 
 
 494. \ United States v. Arredondo, 6 Peters, 
 
 J Foster & Elam v. Neilson, 2 Peters, 735. 
 
PATENTS OF LAND. 387 
 
 tion 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." * (a) 
 
 Grants or Patents of Land. The doctrine of the English 
 
 . v O 
 
 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 repub- 
 lican government; and it is our fundamental rule that all 
 individual title to land within the United States must derive 
 either from the grants of our own local State or territorial gov- 
 ernments, or from, that of the United States, or from royal govern- 
 ments established here prior to the Revolution, or from the En- 
 glish 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 private instru- 
 ments, in other respects they so largely affect public interests 
 as to approach the dignity of statutes, and cannot with propri- 
 ety be altogether omitted in a work like the present. 
 
 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 ; 
 
 * Foster el al. v. Neilson, 2 Peters, 253, but they do not fall strictly within the prov- 
 
 307, a case upon the construction of the treaty ince of this work, and a notice of them would 
 
 of San Ilclefonso of 1st Oct. 1800. But see swell this volume far beyond its intended 
 
 Wilson v. Wall, 6 Wall. 83. limits. 
 
 Many cases have been decided, both in the f See 2 Black. Com. 51-59, 86, and 105; 
 
 Supreme Court of the United States, and in see also Kent Com. part vi, ch. li, vol. iii, p. 
 
 courts of the several States, upon the con- 378. 
 struction of particular treaty stipulations; 
 
 (a) That rights acquired by treaty cannot be affected by acts of Congress, and 
 that State courts are not governed in their construction of treaties, by the interpre- 
 tation given, and acted on by other departments of the Government, see Wilson v. 
 Wall, 34 Ala. 288 ; and see s. c. 6 Wall. 83. Treaty rights of Indians cannot be af- 
 fected by State legislation. Fellows v. Denniston, 23 N. Y. 420. 
 
388 
 
 PATENTS OF LAND. 
 
 and their history in both instances bears strong traces of that 
 want of a proper understanding of the true limits of the law- 
 making power, and of those loose notions of the sacredness of 
 vested right, from the influence of which we are not yet alto- 
 gether emancipated.* 
 
 the provisions for the purpose to a money bill, 
 so as to render it impossible for the Lords even 
 
 * See A Discourse upon Grants and Re- 
 sumptions ; showing how our ancestors have 
 proceeded with such ministers as have procured 
 to themselves grants of the crown revenue ; 
 and that the forfeited estates ought to be applied 
 towards the payment of the public debts. By 
 the author of 'the Essay on Ways and Means : 
 ^London, 1700. It is a history of various re- 
 sumptions of crown grants, cited as authori- 
 ties 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 II, 
 in Ireland, were, upon the triumph of Wil- 
 liam III, forfeited to the crown, and distrib- 
 uted by him among his favorites, male and 
 female, in the shape of grants. A strong 
 opposition to the government existed in Par- 
 liament ; 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, notwithstand- 
 ing 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 appoint- 
 ed 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 en- 
 titled, an act for granting an aid to his maj- 
 esty by sale of the forfeited and other estates 
 and interests in Ireland, and by a land tax in 
 England for the several purposes therein 
 mentioned of two shillings in the pound. 
 
 Speaking of this transaction, Mr. Hallam 
 says, '' that as the 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 the resumption 
 of grants were obsolete and from bad times. 
 * * Acts of this kind shake the general 
 stability of possession, and destroy that con- 
 fidence in which the practical success of free- 
 dom consists, that the absolute power of the 
 Legislature, which in strictness is as arbitrary 
 in England as in Persia, will be exercised in 
 conformity with justice and lenity. * * 
 There can be no doubt that the mode adopted 
 by the Commons of tacking, as it was called, 
 
 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 govern- 
 ment, the public voice of a reflecting people 
 averse to manifest innovation, and soon of- 
 fended by the intemperance of factions." 
 Const. Hint. 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 annulling several grants of 
 land made by Colonel Fletcher, the late gov- 
 ernor 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 instruc- 
 tions unto his excellency the governor, bear- 
 ing 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 Godfrey 
 Dellius, Dellius and others, Nicholas Bayard, 
 John Evans, The Churchwardens, <fcc., of Trin- 
 ity Church, and Caleb Heathcote ; declares 
 them all extravagant, within the meaning of 
 the lords justices' instructions ; breaks/vacates, 
 and annuls them, and directs the records to 
 be obliterated, and declares the crown to be 
 reseized and possessed of the premises. 
 Whatever may be thought of the right to 
 annul these grants ; as to their extravagance 
 a notion may be formed from the first to 
 Godfrey Dellius. which contained about sev- 
 enty miles on the Hudson river, by twelve 
 broad, at the reserved rent of one raccoon skin 
 per annum ! Van Schaick's Laws, vol. i, pp. 
 31 and 51. This act was repealed on the 27th 
 of November, 1702, and the repealing act was 
 itself repealed, or rather disapproved 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 govern- 
 ors to grant or demise certain lands for any 
 longer period than for their own time in the 
 government, and in regard to this, in Bogar 
 dus v. Trinity Church, 4 Sandf. Ch. R. 737, it 
 was contended that the effect of the repeal 
 or disapproval of the repealing act was to 
 
PATENTS OF LAND. 389 
 
 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 frequently exercised during 
 the colonial power, and 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 construed.* But we have 
 already had occasion to notice that on this subject the cases are 
 somewhat conflicting. In regard to this rule of strict construe- 
 
 O O 
 
 tion, 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 arj. individual 
 io be held by him as a purchase, and which is intended to be- 
 come private property in his hand. For instance, the grant to 
 an individual of an exclusive fishery in any portion of it, is so 
 much taken from, the common 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 there- 
 fore construed strictly." f 
 
 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 ground that the king of En- 
 gland was originally the proprietor of the soil under navigable 
 waters ; that his title extended to the province of New York ; 
 
 undo all that had been done while the re- I ought not to close this long note without 
 
 pealing law continued in force ; but it was saying that my attention has been drawn to 
 
 held not to be so. " Such a rule of con- the subject of it by the kindness of my very 
 
 struction," said Mr. V. C. Sandford, " ap- learned friend, M. S. Bidwell, Esq. 
 
 piled to private rights, would be deemed * Banne Case, Davies Rep. 157; Jura 
 
 most tyrannical, arbitrary, and unjust. Coronae,177; 7 Conn. R. 200. 
 
 For instance, we have an act of Congress See also Charles River Bridge v. Warren 
 
 requiring a residence of five years to entitle Bridge, 11 Peters, 420. 
 
 an alien to naturalization. Suppose that \ Martin et al, v. Waddell, 16 Peters, 367, 
 
 Congress at its late session had repealed this 411. 
 
 law, and enabled aliens at once to become But with great deference for that high 
 
 citizens, and an alien now arriving here tribunal, it is to be doubted whether this be 
 
 should jtake the necessary oaths, become a the origin of the rule. In the times when it 
 
 citizen and purchase lands, and at the next originated, ' here was but little regard for the 
 
 session of Congress the act of the late session interest of the community, little respefct paid 
 
 should be repealed, would not the doctrine to private rights where they came in conflict 
 
 that thereby all that was done under the stat- with the Government, and the profoundest 
 
 ute while it existed was avoided, be deemed deference for the royal power and dignity. 
 
 monstrous and absurd ? The principle is the It is rather in the old feudal notions of this 
 
 same in respect of the repeal act of 1702. class that the doctrine will, I think, be found 
 
 Rights acquired under it prior to the queen's to have originated. 
 
 disapproval were as valid and effectual as if 
 
 the act of 1699 had never been enacted." 
 
390 PATENTS OF LAND. 
 
 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.* And in cases of this kind 
 the conveyance of land by the sovereign authority invests the 
 grantees with the requisite power to take and hold them.f 
 
 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 Goverment of the United 
 States. Other tracts belong to the separate States. The legis- 
 lative bodies exercising the power of these sovereignties, which 
 have succeeded to the rights of the British Crown, J have ap- 
 pointed cejrtain 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. | 
 
 In New York it is now declared (1 K. S. 198, part i, chap, 
 ix, title 5, art. 1), that the commissioners of the land office shall 
 have the general care and superintending of all lauds belonging 
 to the State, the superintendence 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 lands under the waters of navigable 
 waters or lakes. 1" The New York statute provides that every ap- 
 
 * Gould v. James, 6 Cowen, 396 ; Rogers Pickett v. Dwight et al. 4 Cranch, 421 ; Bod- 
 
 v. Jones, 1 Wend. 237 ; The People v. Scher- ley and others v. Taylor, 5 Cranch, 191; 
 
 merhorn, 19 Barb. 540. Massie v. Watts, 6 Cranch, 148 ; Blunt's 
 
 f Goodel v. Jackson, 20 J. R. 706 ; Jack- Lessee v. Smith and others, 7 Wheat. 248 ; 
 
 son v. Lervey, 5 Cowen, 397 ; North Hemp- Boardman and others v. The Lessees of Reed 
 
 stead v. Hempstead. 2 Wend. 109. and Ford et al. 6 Peters, 328 ; Bagnell et al. 
 
 1 Martin v. Waddell, 19 Peters, 367. v. Broderick, 13 Peters, 436; The Phila- 
 
 I Polk's Lessee v. Wendell et al. 9 Cranch, delphia and Trenton Railroad Co. v. Stimp- 
 
 87 ; Polk's Lessee v. Wendell et al. 5 Wheat, son, 14 Peters, 448 ; Brush v. Ware et al. 15 
 
 293; Bouldin V. Massie's Heirs, 7 Wheat. Peters, 93; Stoddard et al. v. Chambers, 2 
 
 122, 149 ; Stringer et al. v. Lessee of Young Howard U. S.R. 284; The People v. Mauran, 
 
 et al. 3 Pet. 320, 340; Patterson v. Winn, 11 5 Denio, 389; Jackson v. Marsh, 6 Cowen, 
 
 Wheat. 380; Patterson v. Jenks et al. 2 Pet. 281 ; See Mr. Blackwell's able work on Tax 
 
 227; Sampeyreac and Stewart v. The United Titles, p. 99. 
 
 States, 7 Peters, 222 ; New Orleans v. The If 1 R. S. 208, part i, chap, ix, title 5, 
 
 United States, 10 Peters, 662 ; Pollard and art. 4 ; Gould T. James, 6 Cowen, 369 ;. 
 
GRANTS OF LAND. 391 
 
 plicant for a grant of land under water shall, previous to his appli- 
 cation, 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.* 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 per- 
 son shall be void ; and it has been decided that ejectment will 
 lie for the interest conveyed by these State grants of land under 
 water. f The statute requires that letters patent shall contain 
 an exception and reservation to the people of the State of all 
 gold and silver mines ; J but the omission of this reservation 
 does not vitiate the letters patent. The authority of the com- 
 missioners maybe 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 
 
 O 
 
 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 exterior line straight, questions of difficulty 
 have presented themselves as to the relative share of the pro- 
 prietors 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 de- 
 posits 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 
 
 Rogers v. Jones, 1 "Wend. 237; The People v. f 1 R. S. ut supra; Champlain and St. 
 
 Schermerhorn, 19 Barb. S. C. R. 540. Lawrence R. R. v. Valentine, 19 Barb. 484. 
 
 * People Y. Schermerhorn, 19 Barb. 540. See Furman v. The City of New York, 
 
 We have already seen that a somewhat anal- 5 Sandf. 16, as to grants of land under water 
 
 ogous provision in regard to application to by the corporation of that city. The act 
 
 the Legislature, has been held to be merely authorizing the corporation to make these 
 
 directory. Ante, p. 53. Smith v. Heltner, grants was based on the petition of the city 
 
 7 Barb. p. 416, and the People v. Mauran, 5 government; and the preamble of the act re- 
 
 Denio, 389, decide also, that the notice is not ferred to, and in part recited, the petition, 
 
 essential, on the ground that omnia solemnia It was held that both the preamble and the- 
 
 presumuntur rite acta, and on the general doc- petition might be referred to, to remove am- 
 
 trine which makes State grants conclusive biguities in the act. 
 evidence of the correctness of the previous i 1 R. S. p. 198, 5, ut supra. 
 proceedings. This rule we have already had || The People v. Mauran, 5 Denio, p. 389. 
 
 occasion to notice. T[ Deerfield v. Ames, 17 Pick. 45 ; ' 
 
 nel v. Kelsey, 4 Sandf. 202. 
 
392 MUNICIPAL ORDINANCES. 
 
 original river line ; (2) then let the number of feet or rods on 
 the newly-formed line to which each proprietor is entitled, hear 
 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 principle, however, could not be applied if the 
 whole line were not to be adjusted, but only a boundary be- 
 tween 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.* 
 
 Municipal Ordinances. The remaining branch of this por- 
 tion of our subject is one of much interest in many points of 
 Tiew, and especially in this country. In the application of au- 
 thority 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 the Old World 
 Imperial Rome presents 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 
 intentions, moderation, and intelligence inspire and actuate the 
 master, such a system may result in that tranquility and pros- 
 perity whicn are the certain evidences of good government^ 
 
 * Emmerson v. Taylor, 9 Greenleaf, 44 ; under the guidance of virtue and wisdom. 
 
 O'Donnell v. Kelsey, 4 Sandford, 202. The army was restrained by the firm but 
 
 In Mfline, as to the rules for apportioning gentle hand of four successive emperors whose 
 
 flats to the owners of uplands, see Treat r. characters and authority commanded involun- 
 
 Chapman, 35 Maine, p. 34, and cases there tary respect. The forms of the civil admin- 
 
 cited both in that State and Massachusetts. istration were carefully preserved by Nerva, 
 
 f " If a man," says Gibbon, " were called Trajan, Hadrian, and the Antonines, who de- 
 upon to fix the period of the world during lighted in the image of liberty, and who were 
 which the condition of the human race was pleased to consider themselves as the account- 
 most happy and prosperous, he would with- able ministeVs of the laws." Hist. ch. iii. 
 out hesitation name that which elapsed from Gibbon surveyed the ancient world with 
 the death of Domitian to the accession of an eye of wonderful scrutiny and wisdom. 
 Commodus. The vast extent of the Roman His authority is now as absolute as when he 
 empire was governed by absolute power, wrote. But in regard to the affairs of his 
 
MUNICIPAL ORDINANCES. 393 
 
 Cases of this kind, however, are but exceptions to the great 
 rule which teaches that permanent prosperity can only flow 
 from equality and justice. Centralization or despotism cor- 
 rupts the sovereign, debilitates and demoralizes the subject; 
 and history affords no instances 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 theoretical despotism of her 
 Parliament, her system practically secures that division of author- 
 ity those checks and counter-checks, which are only another name 
 for liberty. But to obtain a correct idea of the full extent and 
 operation of local action and local sovereignty, a wider range 
 of observation 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, local- 
 ized power, local sovereignty, and has received its best develop- 
 ments 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 influence, and to dis- 
 tribute its functions among local agents and bodies.* 
 
 The two great national governments, then, which have been 
 thus far the most successful in forming a compromise between 
 the 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 author- 
 ity, 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 sovereignties supreme in the great 
 mass of their domestic affairs, these State sovereignties again 
 sedulously endeavoring to distribute authority among the 
 smaller political and geographical subdivisions, is far the most 
 
 own time, he appears to have had little more calle.l decentralization. By the means of 
 
 philosophy or independence than any other frequent local elections and division ofpower, 
 
 placeman. it has carried local sovereignty to a point 
 
 * Of ihis system, perhaps the convention never tried before. It cannot yet be said 
 
 of the State of New York of 1846 presents the with confidence, whether the line of wisdom 
 
 strongest illustration of what is commonly has not been passed. 
 
394 MUNICIPAL ORDINANCES. 
 
 conspicuous as exhibiting the benefits resulting from localized 
 power and action. 
 
 It is in connection with these considerations, that the sub- 
 ject of municipal ordinances has its chief interest 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 administration of many kinds of business. And the same 
 system, i. &, grants of charters, was extended to the government 
 of boroughs and towns in England. In this country, the town 
 governments or organizations are among the most important 
 parts of the machinery by which the local action and independ- 
 ence of the country is preserved. When the towns become 
 populous they generally receive charters of incorporation, and 
 act upon the interests of person and property confided to them 
 by means of what are called municipal ordinances. The rules 
 governing this branch of written law thus become matters of 
 great importance.* 
 
 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 ordinances or laws regarded as the enactments 
 of the governing power of towns or cities, made by virtue of a 
 delegated sovereignty, fall directly within the limits of our sub- 
 ject, and by reason of the multiplicity of these institutions and 
 the immense number of individuals and the masses of property 
 
 * The account which the learned and saga- cause he owned the Mansus to which the ju- 
 cious historian of the Anglo-Saxon period in dicial right or duty appertained ; and if, as 
 England gives, of the condition of the bor- there is every reason to suppose, the election 
 oughs or towns at that early period is very of Reeves and other similar officers by the 
 curious. He says, " What, then, was the Leet juries has descended from the Anglo- 
 situation of the Anglo-Saxon burghs ? Ren- Saxon age, the other functionaries were vir- 
 dering a light and easy tribute, and perform- tually appointed by the people. Legislation 
 ing moderate services, they were protected was the prerogative of the sovereign and his 
 against compulsory taxation. Beyond their Witan ; yet, though the laws thus enacted, 
 settled and accustomed contribution, no pe- extended in general terms to all those who 
 cuniary aid could be required, except by an were subjected to his supremacy, still, the 
 illegal exertion of power. As a body, they mode of accepting the statutes and of carry- 
 were often, if not always, freed from the ing them into effect, depended upon the de- 
 feudal bond. The rights of the territorial liberations of the burghmoot, and the discre- 
 magistracy resulted ftom their own internal tion of its members ; and London was as much 
 condition, and not from the nomination of the entitled to the name of a distinct state or corn- 
 crown. The Laghman acted as judge, not by munity as the Kentish kingdom." Palgrave's 
 virtue of the king's ' writ' and ' seal,' but be- Commonwealth, vol. i, ch. 21, pp. 632 and 633. 
 
MUNICIPAL ORDINANCES. 395 
 
 under their control, are of very great importance. I shall, there- 
 fore, in this chapter, state some of the prominent rules that 
 govern enactments of this kind, which, within the sphere of 
 their authoritv, have all the force of statutes. . 
 
 / / 
 
 We have had occasion (ante, pp. 135, 138) to notice the 
 general rule that a legislative body is not competent to dele- 
 'gate its functions. But this is subject, like most of the general 
 rules in our complex and artificial system, to a large class of ex- 
 ceptions. It is well settled that in many cases, a certain 
 amount of legislative power may be entrusted to municipal cor- 
 porations. So in New York, a city ordinance in regard to the 
 sale of coal by weight, fixing the number of weighers, and im- 
 posing a penalty on those who should sell coal not weighed, 
 has been sustained.* So in New Hampshire, it has been said 
 that the Legislature may constitutionally authorize a city to 
 enact, and a city may enact, an order that no intoxicating 
 liquors shall be used or kept in any refreshment saloon or res- 
 taurant within the city, for any purpose whatever, f So in the 
 same State, it has been held that an act declaring that a bowl- 
 ing-alley within twenty-five rods of certain specified buildings 
 should be deemed a public nuisance, but that the act should 
 only be in force in such towns as should adopt it, has been 
 held constitutional ; 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 gen- 
 eral ground that powers of local legislation may be granted to 
 cities, towns, and other municipal corporations. J 
 
 So, too, it has been held that the taxing power for local 
 purposes may be delegated to the local authorities ; and on this 
 ground acts authorizing municpal corporations to subscribe to 
 railroad corporations have been sustained, against the objection 
 that they were void as being a delegation of the supreme author- 
 ity. I But I confess that it appears to me, notwithstanding the 
 weight of authority on this head, that a delegation of the power 
 
 * Stokes & Gilbert v. The Corporation of Perm. 188; State of Louisiana v. Executors 
 
 New York, 14 Wend. 87. of John McDonogh, 8 La. Ann. R. 171 ; New 
 
 f The State v. Clark. 8 Foster, 176. Orleans v. Graihle, 9 La. Ann. R. 561 ; Slack 
 
 \ The State T. Noyes, 10 Foster, 279. v. Maysville and Lexington R. R. 13 B. Mon- 
 
 || Sharpless v. The Mayor of Philadelphia, roe, 1 ; The Justice of Clarke Co. v. The P. 
 
 21 Penn. 147 ; Moers v. City of Reading, 21 W. and R. R. Turnpike Co. 11 B. Monroe, 143. 
 
39G MUNICIPAL ORDINANCES. 
 
 to municipal corporations 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 how it 
 can be properly called a local object. 
 
 Again, the highest powers of the State are sometimes dele- 
 gated to these corporations for purposes of general safety. Sb 
 in New York, on an order of the mayor and two aldermen of 
 the city, buildings may be destroyed to prevent the spread of a 
 conflagration.* In this act provision was made for compensa- 
 tion to the owner ; and it seems to be settled, under the gen- 
 eral constitutional clause declaring that private property shall 
 not be taken for public use without compensation, that when 
 acts in connection with measures of municipal regulation 
 authorize the taking of private property, compensation must be 
 provided, or the appropriation will be unconstitutional and 
 void.f 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 property, and may in so 
 doing, to some extent, interfere with private rights without pro- 
 viding for compensation.^ So in Boston it was held that the 
 city authorities were authorized to fill up a creek in the exer- 
 cise of their powers^for the preservation of the health of the 
 city. I 
 
 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 Hudson river opposite the city, it 
 has been held to have the power to 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 cholera 
 in this country, the board of health of Albany declared certain 
 buildings a nuisance and they were pulled down, it was held 
 
 * The Mayor, &c. of New York v. Lord, 1 Clark v. The Mayor of Syracuse, 13 
 
 1Y Wend. 285 ; s. c. 18 Ibid. 126 ; Russell v. Bart). 32. 
 The Mayor, <fcc. of New York, 2 Demo, 461. || Baker v. The City of Boston, 12 Pick. 
 
 f Baker v. The City of Boston, 12 Pick. 184. 
 
 184 ; Clark v. The Mayor, <fec. of Syracuse, J Hart v. The Mayor of Albany, 9 Wend. 
 
 13 Barb. 32. 571. 
 
MUNICIPAL ORDINANCES. 397 
 
 to be rightly done. But this power of abolishing nuisances by 
 mere municipal ordinances, without any judicial investigation 
 and without any obligatory notice to the party in interest, in- 
 volves 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 re- 
 cently decided that the city of Syracuse, in the State of New 
 York, had not the power.f 
 
 In regard to the exercise of judicial construction with re- 
 spect to the powers delegated to these subordinate bodies, it 
 has been said in England generally, in speaking of by-laws 
 framed by corporations, that they 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. J But in regard to corporations of a public 
 character, this does not seem to be the modern English doc- 
 trine. " When public functionaries," says Lord Cottenham, 
 speaking of the poor-law commissioners, " 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." || 
 
 In this country, in regard to the ordinances of municipal 
 corporations, and the exercise of their delegated 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, 
 
 * The People v. The Corporation of Al- see also Agar v. Regent's Canal Co. Cooper's 
 
 bany, 11 "Wend. 539. Equity Cases, 77; The River Dun Navigation 
 
 f' Clark v. The Mayor of Syracuse, 13 Co. v. North Midland Railway Co. 1 Railway 
 
 Barb. 32. Cases, 135 ; Attorney General v. Aspinwall, 
 
 \ The Master, <fec. of Vintner's Co. v. Pas- 2 M. <fc C. <fcc. 613; Same v. Corporation of 
 
 sey, 1 Burr. 235, 239. Poole, 4 M. & C. 30 ; Same v. Mayor of Dub- 
 
 I Fr.ewin v. Lewis, 4 M. & Craig, 249 ; lin, 9 Bligh, 395. 
 
,398 MUNICIPAL ORDINANCES. 
 
 that they shall not possess any power except such as was spe- 
 cially given, or as 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 
 of the city, have no authority to furnish 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 per- 
 formed by the party with whom it is made, payment cannot be 
 enforced against the city.f So a town, which is only author- 
 ized to sue and be sued in its own name, cannot authorize com- 
 missioners of highways to bring a suit in their own names for 
 injuries to the property of the town. A resolution 4 to that 
 effect is void, and the commissioners who bring the suit are 
 remediless for their costs and expenses. \ Nor can there be any 
 subsequent ratification of an act or proceeding which the town 
 has no authority to order. So where a municipal 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 in a street of the city was not a legislative act, but a 
 practical surrender of the power of the corporation, 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 
 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, ^f 
 
 So a common council authorized to make and publish ordi- 
 nances for the purpose of abating nuisances, has no power to 
 direct the removal of a person sick with an infectious or conta- 
 
 * 1 R. S. 337, 22 ; 1 R. S. 599, g 1, 3. New York, 3 Com. 431 ; for other cases grow- 
 
 f Hodges v. City of Buffalo, 2 Denio, 110. ing out of this same matter, see Purdy v. The 
 
 \ Cornell v. Town of Guilford, 1 Denio, People, 4 Hill, 384 ; and Morris v. The People, 
 
 610; see the continuation of the controversy, 3 Denio, 392. The unconstitutionality of the 
 
 Town of Guilford v. Cornell, 18 Barb. 615. appointment of the officers in question was 
 
 I Milhau v. Sharp, 17 Barb. 435. left open by the latter case. 
 1 Halsted v. The Mayor, &c. of the City of 
 
MUNICIPAL ORDINANCES. 399 
 
 gious 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. * In the 
 same State the Court of Appeals has said, " The ordinance 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 coun- 
 cil of the city of Schenectady was authorized by ordinance to 
 pitch, level, and flag streets " in such manner as they might pre- 
 scribe," 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, f 
 
 In Massachusetts, however, the rule that the delegated 
 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 work was done, but not in 
 conformity to the ordinance,^ the Supreme Court of Massachu- 
 setts said, " The general principle that the city ordinance must 
 be adhered to, is a sound 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 con- 
 ceding that the subject of deviation from the ordinance is not 
 free from difficulties in limiting the extent to which departures 
 may be permitted in the mode of construction, the court are of 
 opinion, that the grounds of defence here relied upon are insuffi- 
 cient ; 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 setting it up ; and also when the de- 
 parture is not substantially and palpably an intended deviation 
 from the ordinance, especially when not attended with any sub- 
 stantial increase of expense, and an assessment is made therefor 
 by the city authority, it is not competent for one who is other- 
 wise duly assessed to avoid the payment of his assessment by 
 raising the objection of a departure from the ordinance in the 
 mode of construction." 
 
 * Boom v. City of Utica, 2 Barb. 104. \ City of Lowell v. Hadley, 8 Met. 180. 
 
 f Thompson v. Schermerhorn, 2 Seld 92. 
 
400 MUNICIPAL ORDINANCES. 
 
 It is a general rule that municipal by-laws and ordinances 
 must not be in 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, prohibiting 
 the doing of the same act under a penalty prescribed in the 
 statute, so far as such by-law prohibits 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 council 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 cor- 
 poration 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 Iby 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 inter- 
 fere with the municipal legislation of the city ; that the com 
 mon council would not allow any other body to interfere un- 
 lawfully 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 set at defiance, an application was made for an 
 
 * Southport v. Ogden, 23 Conn. R. 128. 
 
MUNICIPAL ORDINANCES. 401 
 
 attachment against all the members of the common council, as 
 for a contempt. 
 
 The course taken by the common council necessarily in- 
 volved the precise question whether the courts could exercise 
 any jurisdiction over a municipal corporation for a breach of 
 trust, violation of general principles of law, or bad faith. The 
 question was one of very great interest, and attracted the atten- 
 tion 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 in any case, or for any purpose, with the legislative 
 action of a municipal corporation, no matter how gross the vio- 
 lation 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 municipal corporation or any other 
 corporation aggregate in respect to the powers of courts of jus- 
 tice 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 doctrine was asserted on the uni- 
 form authority of the English cases and those of our own 
 courts, and also on the constitutional provision, "that all cor- 
 porations, shall have the right to sue and shall be subject to be 
 sued in all courts, in 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, there- 
 fore, that the complaint alleged sufficient cause to give the 
 court jurisdiction, that the injunction was rightly issued, and 
 
 * Cons, of N. Y. 1846, art. 8, 3. 
 26 
 
402 MUNICIPAL ORDINANCES. 
 
 that as long as in force it was entitled to obedience, an attach- 
 ment was granted. * 
 
 Where a municipal corporation has power to make reasona- 
 ble 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, f If unrea- 
 sonable, the court holds them void. J So, a by-law of the city 
 of Boston in regard to sewage, has been held in that State 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 character. And 
 it has been intimated that a corporation ordinance was equally 
 efficacious. ^[ 
 
 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.** 
 
 As to the passage of municipal ordinances, the following 
 decision is to be observed. It is a general rule of practice in 
 legislative bodies which consist of two branches, that all busi- 
 ness before them, and unfinished at the end of a session, is dis- 
 continued ; and that if taken up at all at & 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 corpora- 
 tion of a legislative character ; and consequently an ordinance 
 
 * Davis v. The Mayor, &c. of the City of there is a deficiency in our system of the ad- 
 New York, 1 Duer, 451. ministration of justice, in not providing the 
 
 The cause came up again on the return to courts with means to obtain for themselves 
 
 the attachment. People v. Compton, ] Duer, satisfactory evidence or instruction in regard 
 
 612. The doctrine of the previous cose was to questions of fact which are left to them to 
 
 sustained ; one of the aldermen was impris- decide. The difficulty presents itself in re- 
 
 oned for fifteen days, and the rest, with the gard to the construction of technical words 
 
 exception of one who apologized, were fined in statutes, us well as iu the matter above re- 
 
 $100 and costs. ferred to. 
 
 \ Commonwealth v. Worcester, 3 Pick. Vandine's Case, 6 Pick. 18*7, 191. 
 
 462. But how is the court to obtain the nee- |j City of Boston v. Shaw, 1 Met. 130. 
 
 essary knowledge ? In Vandine's Case, 6 ^[ Ex parte Dyster in re Moline, 1 Meri- 
 
 Pick. 191, it is said, "To arrive at a correct vale, 155; Bell v. Quin. 2 Sandford, 146; Be- 
 
 decision, whether the by-law be reasonable or man v. Tugnot, 5 Sandf. 154; ante, p. 70. 
 
 not, regard must be had to its object and ne- ** Gee v. Wilden, 2 Lvtw. 1320; Bosworth 
 
 cessity. Minute regulations are required in a v. Budjjen, 7 Mod. 459; 2 Str. 1112; Leath- 
 
 great city, which would be absurd in the ley v. Webster, Sayer, 251 ; Gray on Corpora- 
 
 ccuntry." Necessity is certainly a fact ; and tions, 8; Hills v. Hunt, 15 Com. B. 1, 6 J. 
 
 how is the judicial knowledge of this fact to Scott, 1, 25. 
 be arrived at ? I believe it may be said that 
 
MUNICIPAL ORDINANCES. 403 
 
 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 1 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. * 
 
 In reference to the admissibility of the books of a municipal 
 corporation as evidence, the Supreme Court of the State of New 
 York has said, " that the corporation of the city of New York 
 more nearly resembles the Legislature of an independent State, 
 acting under a Constitution prescribing its powers, than an ordi- 
 nary private corporation. The acts of this corporation concern 
 the rights of the inhabitants of the city ; it exercises a delegated 
 power, not for its own emolument, but for the interests of its 
 constituents ; and while it keeps within the limits of its author- 
 ity, the constituents are bound by the acts of the corporation. 
 When the citizen wishes to show those acts, he must resort to 
 the authentic record of them ; which is the original minutes of 
 the corporation." f 
 
 * Wetinore v. Story, Abbott's Practice See Trustees of Clintonville v. Keetins:, 4 
 
 Cases, vol. iii, p. 263. Denio, 341, for a decision on the validity of a 
 
 Some points of local municipal interest trustee's ordinance imposing a fine for selling 
 
 may here be noticed. In New York, as to ardent spirits. 
 
 the power of the corporation as to the con- For a long and interesting case on the sub- 
 struction of piers and bridges, see Marshall v. ject of the powers of municipal corporations, 
 Guion, 4 Denio, 581. see the Attorney General of the State of New 
 
 In the same State it has been held that an York v. The Mayor, &c. of New York, 3 
 
 arrest cannot be made on Sunday for a viola- Duer, 119. 
 
 tion of a corporation ordinance. Wood V. f Denning v. Roome, 6 Wend. 651, note 
 
 City of Brooklyn, 14 Barb. 425. 800; 3 Phillips on Evidence, p. 1150. 
 
CHAPTEK X. 
 
 LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTI- 
 TUTIONS OF THE SEVERAL STATES OF THE UNION. 
 
 The general Character of Constitutional Provisions regarded as Limitations upon 
 Legislative Power. Principal Restrictions imposed by the State Constitu- 
 tions. Guaranty of Private Property. Trial by Jury. Protection of Law. 
 Searches and Seizures Taxation. Police Regulations. Titles of Bills. 
 Amendments. Repeal. Constitutional Majorities. Religious Tests. Religious 
 Societies. Creation of Judges. Incorporations. Trust Funds. Divorces. 
 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 obtains. We now proceed to 
 consider a branch of the great topic which is confined exclu- 
 sively to this country I mean CONSTITUTIONAL 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 contemporary eye, when speak- 
 ing of the first State governments organized in 1776, says that 
 " the untried principle was everywhere adopted of limiting the 
 constituted authorities by the creation of a written Constitu- 
 tion prescribing bounds not to be transcended by the Legisla- 
 ture itself." * It is in this point of view that I have now to 
 examine the subject of our constitutional 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 provis-. 
 
 * Marshall's Life of Washington, vol. ii, and Rhode Island, whose systems had ever 
 p. 371. He makes an exception as to the been in a high degree democratic." 
 novelty of the idea, in favo# of " Connecticut 
 
CONSTITUTIONAL LAW. 405 
 
 ions which distribute, arrange, and determine political power, 
 this work is not intended to treat. It is confined to the con- 
 sideration of those clauses which, for the purpose of protecting 
 private and personal rights, are inserted as limitations upon 
 legislative action. 
 
 This great head of Constitutional Law is peculiar to 
 American jurisprudence.* It is full of importance to every 
 citizen of the Republic ; to the lawyer it is a matter of com- 
 manding interest ; nor will it ever be possible to under- 
 stand the character or to write the history of our people, 
 without a complete knowledge of this fertile and complex 
 subject, f 
 
 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 cir- 
 cumstances connected with their formation, that in laying down 
 these barriers against legislative invasions of private right they 
 wholly omitted to provide any positive guaranty or specific 
 protection for them. No sanction or penalty is attached. A 
 prohibition or command not to do certain things is laid on the 
 
 * I have already (ante, p. 181) had occa- of the Council and Assembly, to make laws 
 
 sion to notice what are called the principles for the province such laws not being repug- 
 
 of the English Constitution, and have stated ncn>t to this act, or such parts of an act of the 
 
 the fact that they do not in any wise interfere 31 Geo. Ill as are not repealed, or to any act 
 
 with the theoretical supremacy of the British of Parliament made or to be made and not 
 
 Parliament. Mr. Justice Story has said, hereby repealed, which does or shall by x ex- 
 
 " According to the theory of the British Con- press enactment or by necessary intendment 
 
 stitution, their Parliament is omnipotent. To extend to the provinces of Upper and Lower 
 
 annul corporate rights might give a shock to Canada, or to either of them, or to the province 
 
 public opinion which that government has of Canada. The act, however, maiuly relates 
 
 chosen to avoid ; but its power is not ques- to the arrangement and distribution of politi- 
 
 tioiied." Dartmouth College v. Woodward, 4 cal power, including the subject of the church, 
 
 Wheat. 518. "The absolute power of the taxation, and the judiciary, and does not seem 
 
 Legislature," says Mr. Hallam, speaking of to contain, except incidentally, any such 
 
 the resumption of the Irish grants in 1699, guaranties of private rights as are to be found 
 
 "in strictness is as arbitrary in England as in in our State Constitutions. It is interesting, 
 
 Persia." fJallam's Const. JJist. vol. iii, p*. 193, however, as containing the germ of the great 
 
 cb. xv. principle of Constitutional limitation upon 
 
 In regard to Canada, I may notice that legislative power. 
 
 an act was passed in 1840, entitled an f The term Constitution, like many others 
 
 act to re-unite the provinces of Upper and in our law, appears to claim a Latin original, 
 
 Lower Canada, and for the government of and to have b^en primarily used for the will 
 
 Canada, 23d July, 1840 3 and 4 Viet. c. xxxv of the sovereign declaring, decreeing, and ex- 
 
 which operates as a sort of Constitution pounding the law. " Quodcumqiie, igitur, Im- 
 
 i'or the united provinces. The act declares perator per epistnlam el subscriptionem statuit, 
 
 that from and after the re-union of the two vel cognoxcens decrevit, vel de piano interlocutus 
 
 provinces, there shall be in the province a est, vel edicto prascepit, Itgem esse constat. Hcec 
 
 Legislative Council and Assembly, and that sunt quas vulgo Cvnstitutiones appellamus." 
 
 within the province Her Majesty shall have Dig. de Constitutionibus Primipum, ].!,!; 
 
 power, by and with the advice and consent Vicat. Vocab. Utriumq. Juris, in voc. 
 
406 CONSTITUTIONAL LAW. 
 
 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. 
 
 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 insti- 
 tutions, the event has thus far justified their confidence. No 
 difficulty whatever has as yet resulted from the absence of any 
 specific provision on the subject ; the authority to determine 
 the constitutionality 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 judiciary. Nor is it less curious to ob- 
 serve that this is the result of the action of the judiciary itself. 
 
 The subject was early considered in a case in Pennsylvania; 
 and Mr. Justice Patterson asserted the power of the judiciary 
 in very distinct and emphatic terms. He said, " It is an im- 
 portant principle which, in the discussion of questions of the 
 present kind, ought never to be lost sight of, that the judiciary 
 in this country is not a subordinate but a co-ordinate branch of 
 the Government; and whatever may be the case in other 
 countries, 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 I791;f in South 
 Carolina, in 1792 ; J and in 1802, in Maryland. | Finally, the 
 whole subject was elaborately examined and discussed by the 
 Supreme Court of the United States, and the principle delib- 
 erately and definitively settled, that the power of determining 
 whether a given law is repugnant to the principles of a Consti- 
 tution with which it is alleged to conflict belongs to the judi- 
 ciary, and that their decision is conclusive.^ 
 
 * Van Home's Lessee v. Dorrance, 2 Lindsay v. The Charleston Commissioners, 2 
 
 Dallas, 304, a case in relation to the terri- Bay, 38. 
 
 torial controversy between Pennsylvania and || Whittington v. Polk, 1 Harr. & J.236. 
 
 Connecticut. ^]" Marbury v. Madison, 1 Cranch, 137 ; 
 
 f Hay burne's Case. Kent Com. 1, 451. 
 
 \ Bowman v. Miduleton, 1 Bay, 252 ; The point, however, seems to have been 
 
CONSTITUTIONAL LAW. 
 
 407 
 
 Since this period the power has been repeatedly asserted and 
 universally recognized. " It is the duty of the judiciary, as the 
 appropriate means of securing to the people safety from legisla- 
 tive ao-oression, to annul all legislative action without the pale 
 
 <~5O / O * 
 
 of our written Constitutions." * 
 
 The Constitutions of the several States of the American 
 Union generally contain, sometimes, in the shape of a declara- 
 tion or bill of rights, the enunciation of certain general princi- 
 ples of free government which are intended to be, as it were, 
 the foundations, or to serve as the landmarks, of liberty and 
 law. Such are the declarations of the natural equality of man 
 of the abstract right to life, liberty, and the pursuit of happi- 
 ness. To these I have already had occasion to call the attention 
 of the reader, f And of these, as I have remarked, many are 
 
 open in Pennsylvania as late as 1825. In that 
 year, the power of the judiciary over uncon- 
 stitutional acts of the Legislature was much 
 discussed in Eakin v. Raub, 12 Serg. & Rawle, 
 330. By the Pennsylvania act 'of 26th of 
 March, 1785, 2, the right of entry into lands 
 was taken away after the expiration of twenty- 
 one years next after the title of the claimant 
 accrued; but the fourth section saved the 
 rights of persons beyond seas, and gave them 
 ten years after coming into the United States 
 to commence an action. An act of the llth 
 of March, 1815, repealed the fourth section of 
 the act of 1785, so far as the same related to 
 persons beyond the seas, and extended the 
 limitation of the second section of the act of 
 1785 to them. A court of Common Pleas held 
 this act to be retrospective in its operation, 
 so as to form au immediate bar to the claims 
 of persons beyond sea, who had been out of 
 possession twenty-one years prior to the pas- 
 sage of the act of 1815. The Supreme Court 
 of Pennsylvania held, that if the act were re- 
 trospective, it would be unconstitutional and 
 void, but that it must be construed to be pro- 
 spective in its operation; and they reversed 
 the judgment below. In delivering the opin- 
 ion, however, much care was taken in the dis- 
 cussion of the true functions of the judges 
 in regard to laws clearly unconstitutional. 
 Tilghman, C. J., and Duncan, J., asserted the 
 power of the judiciary to declare such laws 
 unconstitutional and void ; but Gibson, then 
 J., but afterwards C. J., denied it so far as it 
 related to laws conflicting with a State Con- 
 stitution, while he admitted it as to laws con- 
 flicting with the Constitution, laws, or treaties 
 of the United States, under the clause of the 
 Federal Constitution declaring their suprem- 
 acy. But in regard to the State Constitutions, 
 
 he held that no such power was conferred by 
 them on the judges, and that it rested with the 
 people alone to correct abuses in legislation, 
 by instructing their representatives to repeal 
 the obnoxious acts. He says, up to that time, 
 though the power had been asserted (Austin 
 v. The University of Pennsylvania, 1 Yeates, 
 260), it had never been exercised. Since that 
 period (1825), however, the doctrine seems as 
 firmly established in Pennsylvania as in the 
 other States. See in this case Mr. J. Dun- 
 can's opinion in regard to the retrospective 
 effect of repealing acts on vested rights, for 
 many cases cited. Indeed, the learned chi.ef 
 justice himself seems subsequently to have 
 given in his complete adhesion to the gener- 
 ally received doctrine. In a more recent case, 
 he says, " It is idle to say that the authority 
 of each branch of the government is denned 
 and limited by the Constitution, if there be 
 not an independent power able and willing to 
 enforce the limitations. * * From its very 
 position, it is apparent that this conservative 
 power is lodged in the judiciary, which, in 
 the exercise of its undoubted rights, is bound 
 to meet every emergency, else causes would 
 be decided not only by the Legislature, but 
 sometimes without hearing or evidence." De 
 Chastelleux v. Fairchild, 15 Penn. 18. In 
 Georgia, the power of the judiciary over un- 
 constitutional enactments, as necessarily flow- 
 ing from the character of our institutions, was 
 declared in Crimball v. Ross, Charlton's Rep. 
 p. 175. 
 
 " The right of all courts, State as well as 
 national, to declare unconstitutional laws void, 
 seems settled beyond the reach of judicial 
 controversy." Story Coram. 1842. 
 * Beebe v. The State, 6 Indiana, 501. 
 f Ante, p. 153. 
 
408 CONSTITUTIONAL LAW. 
 
 framed in such general terms as scarcely to be susceptible of 
 judicial application; other constitutional clauses have as yet 
 given rise to no question of legislative power or judicial con- 
 struction, or are matters of local or comparatively minor interest. 
 None of these are within the necessary scope of this work. I 
 shall, consequently, chiefly confine myself to the consideration 
 of those prominent constitutional provisions which are to be 
 generally found in the Constitutions of all the States, and which, 
 from their importance, and the frequent necessity of recurring 
 to them, have been often discussed and interpreted. The most 
 important of these appear to be that class of constitutional re- 
 strictions on legislative power which declare 
 
 That private property shall not be taken for public uses 
 without compensation; taking in connection with this the sub- 
 ject of taxation and police regulations; 
 
 That the right to trial by jury shall be inviolate ; 
 
 That no citizen shall be deprived of life, liberty, or property, 
 except by the law of the land, or by due course of law; 
 
 That unreasonable searches and seizures shall not be per- 
 mitted. 
 
 Some of the decisions upon these clauses I shall now proceed 
 to examine, in order to exhibit the practical operation and effect 
 of these constitutional limitations. Before doing so, however, 
 it is necessary to consider the general doctrines upon which the 
 courts act in construing the provisions of the State Constitutions. 
 Whether there be any check on legislative power independent 
 of, or in addition to those which are to be found in the Consti- 
 tution, is a question which we have already examined elsewhere ; 
 and I need only here refer to that discussion.* 
 
 * Vide ante, ch. v. "No court can pro- al. v. The Towns of Barnet, Ryegate, etal. 15 
 
 nounce any act of the Legislature void for any Verm. 745. 
 
 supposed inequality or injustice in its opera- In Indiana, it has been held that so much 
 
 tion, provided it be on a subject-matter fairly of the act to prohibit the manufacture and 
 
 within the scope of legislative authority, and sale of spirituous and intoxicating liquors, ap- 
 
 the provisions of the law be general. Hence proved February 16, 1855, as is prohibitory 
 
 it is true, no doubt, that the Legislature, by of the right to manufacture such liquors, and 
 
 general enactment, might tax any given spe- also so much thereof as relates to the estab- 
 
 cies of property, either private or corporate, lishment of agencies and the appointment of 
 
 to the full value of the property itself; for the agents to sell such liquors, is unconstitutional 
 
 power of taxation, when once conceded to the and void, as conflicting with the right to the 
 
 Legislature over any given subject, ' implies enjoyment of property, with which the Legis- 
 
 the power of destruction even,' as was de- lature had no right to interfere. Beebe v. 
 
 clared in the case of M'Cull<>ch v. The State The State, 6 Indiana, 501. See this case for 
 
 of Maryland, 4 Wheat. 316." Armington et an elaborate discussion of the power of the 
 
CONSTITUTIONAL LAW. 409 
 
 The leading rule in regard to the judicial construction of 
 constitutional provisions, is a wise and sound one, which declares 
 that, in cases of doubt, every possible presumption and intend- 
 ment will be made in favor of the constitutionality of the act in 
 question, and that the courts will only interfere in cases of clear 
 and unquestioned violation of the fundamental law. It has 
 been repeatedly said that the presumption is that every State 
 statute, the object and provisions of which are among the 
 acknowledged powers of legislation, is valid and constitu- 
 tional; and such presumption is not to be overcome unless 
 the contrary is clearly demonstrated,* "Courts ought not," 
 says the learned Chancellor of the State of New York, " except 
 in cases admitting of no reasonable doubt, take upon them to 
 say that the Legislature has exceeded its power and violated 
 the Constitution, especially where the legislative construction 
 has been given to the Constitution by those who framed its 
 provisions and contemporaneous with its adoption." f " It has 
 been always said," says the Supreme Court of New York, "that 
 the power of the courts of justice to declare the nullity of leg- 
 islative acts which violate the provisions either of the Constitu- 
 tion of the United States or of the State, while it is undoubted, 
 shall be exercised with extreme caution, and never where a seri- 
 ous 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." J So in Illinois, it has been said, 
 the inquiry into the validity of an act on the ground that it is 
 unconstitutional, is an inquiry whether " the will of the repre- 
 sentative as expressed in the law. is or is not in conflict with 
 the will of the people as expressed in the Constitution. And 
 unless it be clear that the Legislature has transcended its au- 
 
 State Legislature independent of the State of Philadelphia, per Black, C. J., 21 Penn. 147, 
 
 Constitutions. 161. 
 
 In Pennsylvania, it has been said that " the * Fletcher v. Peck, 6 Cranch, 87 ; ex pnrte 
 
 General Assembly cannot pass any law to M'Collom, 1 Cowen, 564 ; Morris v. The Peo- 
 
 conflict with the rightful authority of Con- pie, 3 Denio, 381 ; Newell v. The People, 3 
 
 gress, nor perform a judicial or executive Seld. 109, per Edmonds, J. ; De Camp v. Eve- 
 
 lunction, nor violate the popular privileges land, 19 Barb. 81. 
 
 reserved by tbe Declaration of Rights, nor f Clark v. The People, 26 "Wend. 599. 
 
 change the organic structure of the govern- \ The Sun Mutual Insurance Co. v. The 
 
 ment, nor exercise any other power prohib- City of New York, 5 Sandford, 10. 
 ited in the Constitution." Sharpless v. Mayor 
 
410 
 
 CONSTITUTIONAL LAW. 
 
 thority, the courts will not interfere." * In Massachusetts, it 
 has been said that "acts of a Legislature constitutionally organ- 
 ized are to be presumed constitutional, and it is only where they 
 manifestly infringe some of the provisions of the Constitution, 
 or violate the rights of the subject, that their operation and 
 effect can be impeded by the judicial power." f In Pennsyl- 
 
 * Lane et al. v. Dorman et ux. 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 paramount law. 
 But it is more in fulfilment of their own duty 
 than to restrain the excesses of a co-ordinate 
 department of the Government. Crane v. Me- 
 ginnis, 1 Gill & Johnson, 463. 
 
 f Foster et al. v. 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 established, 
 whose power would expire at a given time, 
 were to be continued in existence as bodies 
 corporate, for three years after the time lim- 
 ited by the charter, for the purpose of suing 
 and being sued, settling and closing their con- 
 cerns, 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 ex- 
 pired, and a suggestion was filed that the cor- 
 poration 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 con- 
 tract was altered. The objection, however, 
 was overruled. It was decided that the law 
 was within the constitutional power of the 
 Legislature, and the banking corporation 
 were held to answer. Parker, J., said, "If 
 the Legislature were to enact that A. H. 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 menber of it, to 
 grant a habeas corpus and discharge him. Or 
 if they should enact that his estate should be 
 confiscated 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 discharged without paying their 
 
 debts, or on paying a less sum than they 
 owed, or in something different from what 
 was agreed, such acts would be unconstitu- 
 tional although not expressly prohibited ; be- 
 cause, by the fundamental principles of legis- 
 lation, the law or rule must operate prospec- 
 tively 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, operating upon all bodies 
 corporate; and it is convenient for them and 
 the public that their, power of suing and be- 
 ing sued should be continued beyond the 
 period within which they are empowered to 
 make contracts, 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 pur- 
 poses. It does not infringe or interfere with 
 any of the privileges secured by the charter, 
 unless it be considered a privilege to be se- 
 cured from the payment of debts or the per- 
 formance of contracts ; and this is a kind of 
 privilege which we imagine the Constitution 1 
 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 corpo- 
 ration. 
 
 " Many statutes have been referred to in 
 the argument, which are much more question- 
 able as 'to their constitutionality, than the 
 one under consideration : The statutes of lim- 
 itation, 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 pe- 
 riod ; The statutes made for curing defects in 
 the proceedings of courts, towns, officers, <fec., 
 When the party to be affected might be said 
 to have a vested right to take advantage 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 reme- 
 dies for the furtherance of justice, cannot be 
 
CONSTITUTIONAL LAW. 411 
 
 vania, it lias been expressly declared to be an established prin- 
 ciple of construction, that where the meaning of the constitu- 
 tional 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 argument that this ruling may 
 be a deadly blow to the common-school system, of Indiana." 
 We do not so regard it. However that may be, the responsi- 
 bility does not lie with the judiciary. If the legislative depart- 
 ment 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, f So in the same State, " It will not be for 
 us," says the Supreme 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. "J 
 
 This subject has been examined by a very learned and 
 accomplished jurist in New York, and the following language 
 held : 
 
 It is highly probable that inconveniences will result from following the Con- 
 stitution as it is written. But that consideration can have no weight with me. 
 It is not for us, but for those who made the instrument, to supply its defects. 
 If the Legislature or the courts may take that office upon themselves, or if, 
 under color of construction, or upon any other specious ground, they may de- 
 part 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 Con- 
 stitutions 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 
 
 charged with violating its duty or exceeding and is in fact nothing more than establishing 
 
 its authority. Had they provided that all a mode by which their business may be closed 
 
 corporations should cease to transact business and their co. tracts carried into execution." 
 
 three years before the time for which they * The Farmers & Mechanics' Bank T. 
 
 were created, expired, in order that they Smith, 3 Serg. & R. 63,, 73 ; Stewart v. Board 
 
 might bring their affairs to a close, it might <fec. of Polk Co. 30 Iowa, 9 ; Newson v. Cocke, 
 
 justly be said that their privileges were taken 44 Miss. 352 ; City v. Empire P. R. Co. 3 
 
 away, and the grant of the Government was Brewst. 570. 
 
 impaired. But to provide for their continu- f The State v. Springfield Township, 6 
 
 ance for such purpose, three years bevond Inciana, 84. 
 
 tboir term, is no breach of their privileges, | Beebe v. The State, 6 Indiana, 601. 
 
412 CONSTITUTIONAL LAW. 
 
 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 yield- 
 ing to such influences that Constitutions are gradually undermined, and finally 
 overthrown. My rule has ever been to follow the fundamental law as it is 
 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 defects by 
 forced and unnatural constructions, they inflict a wound upon the Constitution 
 which nothing can heal. One step taken by the Legislature or judiciary in en- 
 larging 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 funda- 
 mental 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 expositions are frequently re- 
 sorted to, to remove and explain ambiguities. So, in regard to 
 the Constitution of the United States, it was objected that 
 the judiciary act of 1789 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 practice, and acquiescence under it for a period of several 
 years, commencing with the organization of the judicial system, 
 affords an irresistible answer, and has, indeed, fixed the con- 
 struction. It is a contemporary interpretation 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 interpretation, are proper elements 
 of a legal judgment on the subject." J So in New York, 
 " Great deference," says Marcy, J., in the Supreme Court, " is 
 certainly due to a legislative exposition of a constitutional 
 provision, and especially when it is made almost contempora- 
 
 * Bronson, J., in Oakley v. Aspinwall, 3 188; Norris v. Clymer, 2 Perm. 277. As to 
 
 d.>ms. 547, 668. how far expediency and former legislation 
 
 f Stunrt v. Laird, 1 Granch, 299. may be considered, see Baltimore v. State, 15 
 
 j Moers v. The City of Reading, 21 Penn. Md. 376 ; Sadler v. Langham, 34 Ala. 311. 
 
CONSTITUTIONAL LAW. 413 
 
 neously with such, provision, and might be supposed to result 
 from 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 Wa 1 worth, 
 in the Court of Errors in New York, " as to the meaning of a 
 particular clause in the Constitution, a legislative construction, 
 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 interpretation 
 to be applied to the particular phraseology of a statute, it has 
 been said by the Court of Appeals of Maryland, " that Con- 
 stitutions are not to be interpreted 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 
 employed; and its terms must be taken in the ordinary and 
 common acceptation, because they are supposed to have 1 een 
 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." J 
 
 The principle that a statute is void only so far as its 
 provisions are repugnant to the Constitution, that one pro- 
 vision may thus be void, and this not affect other provisions of 
 the statute, has been frequently declared. I (a) " The principle 
 
 * People v. Green, 2 "Wend. 266, 274. Marshall, 73 ; Ely v. Thompson, 3 Wash. C. 
 
 t Coutant v. The People, 11 Wend. 511. C. R. 313 ; Gibbons v. Ogden, 9 Wheaton ; 1, 
 
 \ Manly v. The State, 7 Maryland, 135. 203; City of New York v. Miln, 11 Peters, 
 
 See also Cronise v. Cronise, 54 Penn. St. 255. 102 ; Clark v. Ellis, 2 Blackf. 8. 
 | Edwards v. Pope, 3 Scam. 465; 3 
 
 (a) Unconstitutional in Part. If the part which is unconstitutional is not vital 
 to the statute, it will not vitiate the whole. People v. Hill, 7 Cal. 97; McCulloch 
 v. State, 11 Ind. 424 ; Nelson v. People, 33 111. 390. Where part only of a statute 
 or section is unconstitutional, that part only is void unless the other provisions are 
 so dependent and connected that it cannot be presumed the Legislature would have 
 passed one without the other. Commonwealth v. Hitchings, 5 Gray, 482 ; State v. 
 Wheeler, 25 Conn. 290. The question is whether the part which is unconstitutional 
 can be separated and stand by itself; if so it will be maintained. Mobile &c. R. R. 
 
414 CONSTITUTIONAL LAW. 
 
 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 ava.il ; whilst all other parts of the act, not 
 obnoxious to the same objection, will be held valid and have 
 
 v. State, 29 'Ala. 573 ; Lynch v. Steamer Economy, 27 Wise. 69 ; Mayor &c. v. 
 Dechert, 32 Md. 369. And the same is true where part of a statute is void for 
 uncertainty. State v. Hundhaussen, 26 Wise. 432. 
 
 Where an act was to take effect upon the popular vote of a municipality, and 
 certain provisions of it are unconstitutional, the court, in determining whether such 
 provisions are separable, so that the rest can stand, are not to consider whether the 
 voters would have regarded such provisions as vital to the whole act. Robinson v. 
 Bidwell, 22 Cal. 379. 
 
 It has been held that a void clause submitting a statute to the popular vote will 
 not invalidate the whole statute. Santo v. State, 2 Clarke (la.) 165. But the over- 
 whelming weight of authority is the other way. See note on " Submission of laws to 
 a popular vote." 
 
 Unconstitutional police provisions in an election law will not invalidate the 
 election. Andrews v. Saucier, 13 La. Ann. 301. And though the exemptions in a 
 tax law are void, the rest is valid. People v. McCreery, 34 Cal. 432. 
 
 It has been held that where a law itself unconstitutional expressly repeals all 
 laws inconsistent therewith, the repealing clause is operative. Meshmeier v. State, 
 11 Lid. 482 ; per contra, see People v. Tephaine, 3 Parker Cr. 241, and see ' Repeal." 
 
 In the following cases the void parts of the statute have been held separable: 
 Maize v. State, 4 Ind. 342; Carleton v. People, 10 Mich. 250, per Martin, C. J. ; 
 Brown v. Beatty, 34 Miss. 227; Wakeley v. Mohr, 15 Wise. 609; Kennedy v. 
 Milwaukee &c. R. R. 22 Wise. 581 ; Robinson v. Bidwell, 22 Cal. 379 ; Maclay v. 
 Love, 25 Cal. 367; Mills v. Sargent, 36 Cal. 379; Allen County v. Silvers, 22 Ind. 
 491. 
 
 But Avhere the void provisions were evidently intended as compensations or 
 inducements for the valid provisions, so as to make a presumption that the latter 
 would not have been passed without them, the whole will be void; e. g., where a 
 provision changing the rate of taxation of land annexed to a city was uncon- 
 stitutional, the annexation was held void. Slauson v. Racine, 13 Wise. 398 ; State 
 v. Dousman, 28 Wise. 541. And where a provision for testing the validity of tax 
 titles was held void, another one in the same act making tax titles conclusive in a 
 certain event, was so connected with the former as to full with it. Quinlan v. 
 Rogers, 12 Mich. 168. In general where the different portions of the statute form 
 "inseparable parts of the same system," the whole is invalidated by the uncon- 
 stitutionally of a part. Campau v. Detroit, 14 Mich. 276; Lathrop v. Mills, 19 
 Cal. 513; State v. Perry County, 5 Ohio, N. S. 497; Oatman v. Bond, 15 Wise. 20; 
 Reed v. Omnibus R. R. 33 Cal. 212. 
 
CONSTITUTIONAL LAYv r . 415 
 
 the force of law. There is nothing inconsistent in declaring 
 one part of the same statute valid and another part void." * 
 
 It seems to be settled in regard to Constitutions as to 
 statutes, that no extrinsic 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 just as soon resort to the debates in the Legis- 
 lature for the constitutionality of an act of Assembly, as to the 
 debates in the convention for the construction of the Con- 
 stitution." f 
 
 I have already had occasion to notice, that Constitutions, 
 like statutes, are in some cases construed to be directory 
 merely.^ Indeed, the following language has been used by 
 a very accomplished judge in Pennsylvania: "That every 
 thing in the Constitution addressed to the Legislature by way 
 of positive command is purely directory, will hardly be dis- 
 puted. It is only to enforce prohibitions, that the interposition 
 of judicial authority is thought to be warrantable."* | (a) 
 
 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 Con- 
 stitution 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 
 become a stockholder in any joint-stock company, corporation, 
 or association ; " it was held that a law enacted before the 
 adoption of the new Constitution, authorizing such subscription, 
 
 * Fisher v. M'Girr, 1 Gray, 22 ; Common- J Ante, ch. vii, p. 324. 
 
 wealth v. Kimball, 24. Pick. 361; Norris v. \ Per Gibson, J., in Eakin v. Raub, 12 
 
 Boston, 4 Met. 288 ; Clark v. Ellis, 2 Black- Serg. & Rawle, 354. It is, however, a dis- 
 
 ford, 10. senting, and without any disrespect to this 
 
 f Per Gibson, J., in Eakin v. Raub, 12 able and lamented jurist, I may add, a very 
 
 Serg. & Rawle, 352. It is, however, a dis- heterodox opinion; vide ante, p. 40Y. 
 senting opinion. 
 
 (a) The provision of the Constitution of Tennessee, directing the manner of 
 separating counties into judicial districts is held to be political, and courts can give 
 no relief against a violation of it by the Legislature. Britton v. Moody, 2 Cold. 15. 
 
416 CONSTITUTIONAL LAW. 
 
 was not repealed by implication, as the new clause referred 
 only to future laws. * (a) 
 
 The Supreme Court of Louisiana has very discreetly ex- 
 pressed its unwillingness to decide a question as to the uncon- 
 stitutional! ty of the law of another State, when the question 
 was still open in the State which passed the law, and the case 
 could be decided on other grounds, -f 
 
 O 
 
 In regard to the subject of strict and liberal construction, 
 considerations analogous to those which we have discussed un- 
 der this head as to the interpretation of statutes present* them- 
 selves, in regard to the interpretation of Constitutions. Where 
 a constitutional provision is of doubtful import, it is frequently 
 susceptible 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 advo- 
 cates 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, con- 
 ferred on that body the power to create the institution ; while, 
 on the other hand, the advocates of a stricter interpretation, in- 
 sisted 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- 
 cates of a protective tariff have found the congressional author- 
 ity in the clause giving power to regulate commerce ; 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 con- 
 struction : the topics which they involve are of perpetual and 
 vital interest ; but they approach so near the demesnes of poli- 
 
 * Oass v. Dillon, 22 Ohio, COY. But see f Shelden v. Miller, 9 La. Ann. R. 187. 
 Mr. J. llamsay's able dissenting opinion. 
 
 (a) That the State Constitutions remained unaffected by secession, and until 
 legally changed, see Scruggs v. Mayor, 45 Ala. 220. 
 
CONSTITUTIONAL LAW. 417 
 
 tics, and are so much influenced by the organization and shape 
 of parties, that they are out of place here. Still, some general 
 considerations are too apparent to be overlooked. An arbitrary 
 or equitable power over acts of ordinary legislation has been 
 resisted on the ground " that the Legislature is ever at hand," 
 as it has been said, to explain its meaning. This consideration 
 in favor of a 'restricted 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 regar'd to the 
 Constitution of the United States, any serious amendment, re- 
 quiring as it would the concurrence of two-thirds of the Legis- 
 latures 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 constitutional 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. An- 
 other consideration 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 t*he details of our daily transactions ; they can 
 and do prescribe minute directions for the control of those af- 
 fected 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 lead to endless absurdity, to endeavor to 
 apply to a declaration of principles the same rules of construc- 
 tion that are proper in regard to an enactment of details. In 
 regard to a statute, the general duty of the judge is that of a 
 subordinate power, to ascertain and to obey the will of a supe- 
 rior ; in regard to a Constitution, 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 in- 
 terpretaion in such a matter can be framed. Still, I cannot 
 
 27 
 
418 CONSTITUTIONAL LAW. 
 
 refrain from saying, as a general rule, while a strict adherence 
 to the mere letter of a written Constitution would render our 
 system practically intolerable, that, on the contrary, a loose 
 and careless mode of intepretation 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.* (a) 
 
 Having thus considered the general principles to be applied 
 to the construction of constitutional limitations upon legis- 
 lative power, we approach the examination of particular pro- 
 
 * The analogies of history often throw mankind." See Gibbon, ch. xliv. Our Labeos 
 
 light upon the annals of remote and obscure and Capitos, our Sabinians and our Procu- 
 
 periods; and our schools of strict and liberal leans, might easily be named. Indeed, the 
 
 construction may tend to render intelligible analogies between the whole body of Roman 
 
 the sects or schools of Roman law. " The jurisprudence and the English, are most 
 
 freedom of Labeo was enslaved by the rigor curious and striking. The division into two 
 
 of l>is own conclusions. He decided accord- great bodies, of strict and equitable law; the 
 
 ing to the letter of the law the same ques- formulae by which questions of fact were dis- 
 
 tions which his indulgent competitor (Capito) tinguished from questions of law; the severe 
 
 resolved with a latitude of equity more suit- regard to mere symbolical forms, are as ap- 
 
 able to the common sense and feelings of parent in the one system as the other. 
 
 (a) Implied Restrictions in the Constitution. Where the Constitution reserves to 
 the defendant in criminal trials before justices of the peace the right of appeal, this 
 does not imply any restriction upon the power of the Legislature to give a right of 
 appeal to the prosecution. State v. Tait, 22 Iowa, 141. And when the Constitution 
 gives to resident foreigners the same property rights whicn citizens have, this does 
 not prevent the Legislature from giving equal rights to n on resident foreigners. 
 Purczell v. Smith, 21 Iowa, 540. A Constitutional provision that the Board of Super- 
 visors may provide for laying out highways, etc., does not prevent the Legislature 
 from conferring concurrent authority upon other officials. People v. Highway Com- 
 m'rs, 15 Mich. 347 ; People v. Ingham Co. 20 Mich. 95 ; but the powers of a Board of 
 Education were held exclusive in Dist. Township &c. v. Dubuque, 7 Clarke (la.) 262. 
 " The State may continue to collect all specific taxes accruing under existing laws. 
 The Legislature may provide for the collection of specific taxes from banking, rail- 
 road, plankroad, and other corporations hereafter created ;" held no implied pro- 
 hibition against imposing such taxes upon unincorporated companies. Walcott v. 
 People, 17 Mich. 68. An act for registration of voters was held void as conflicting 
 with implied prohibitions of the Constitution, in Page v. Allen, 58 Penn. St. 338 ; 
 but see Patterson v. Barlow, 60 Penn. St. 54. 
 
 The schedule or ordinance appended to the Constitution, and submitted to the 
 people with it and accepted by them, forms a part of the Constitution, Stewart v. 
 Crosby, 15 Tex. 546 ; but a provision in it found among other temporary provis- 
 ions, is to be presumed temporary. State v. Taylor. 15 Ohio, N. S. 137. 
 
 When the Constitution Executes itself. As to what provisions require legislation 
 to make them operative, see Goldman v. Clark, 1 Nev. 617 ; People v. Highway 
 Comm'rs, 15 Mich. 347. 
 
GUARANTY OF PRIVATE PROPERTY. 419 
 
 visions ; and of these, as 1 Lave said, there is none more im- 
 portant than that which declares that 
 
 Private Property shall not be Taken for Public Purposes 
 without Compensation. In considering the subject of constitu- 
 tional checks as imposed in this country on legislative power, 
 we find two limitations of paramount importance; the one 
 guaranteeing the inviolability of private property, the other 
 protecting the obligation of contracts; the one intended to 
 guard present ownership and enjoyment, the other to secure 
 future transactions, or rights of property not yet converted in- 
 to possession. These provisions are both to be found in the 
 Constitution of the United States, (a) 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- 
 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 guaranty of private prop- 
 erty, I shall first consider the precise nature of the legislative 
 power over private property, and to what branch or branches 
 
 * The Constitution of New Hampshire is is not involved. Since the decision of this 
 silent on the subject of compensation ; but it case, however, the precise question seems to 
 has been held that the duty to provide re- have been considered and determined. It 
 numeration is none the less imperative. Bris- was held in a case growing out of a right to a 
 tol v. New Chester, 3 N. H. R. 535. In South ferry, that the Legislature has the constitu- 
 Carolina there is no constitutional provision tional right to deprive an individual of his 
 whatever ; and it has been there held that property for great national purposes. Stark 
 the legislative power over private property v. M'Gowan, 1 Nott and M'Cord, 387. 
 is supreme and absolute. The State v. Daw- On the other hand, in New Hampshire 
 son, 3 Hill, 100. This was an indictment for the abstract right to compensation, iudepend- 
 obstructing road commissioners in cutting ent of all constitutional provision, has been 
 down timber to repair a road; the act giving declared. "The power of the Legislature is 
 them general power to take so much timber, limited, undoubtedly, in its nature, by the 
 earth, or rock as should be necessary to keep public exigencies ; but it is a power recog- 
 roads in repair. The case was chiefly put on nized by the Constitution, There is no doubt 
 the question whether the act infringed the that when this power is exercised, a just corn- 
 constitutional guaranty of the " law of the pensation is to be made. The Constitutions 
 land," which we shall hereafter consider. It of some of the States expressly declare that 
 was upheld chiefly on the ground of long such compensation shall be made ; and natural 
 usage and acquiescence: and Evans, J., de- justice speaks or this point when a Constitu- 
 livering the prevailing opinion of the court, tion is silent." Bristol v. New Chester, 3 
 says expressly, that the general power of the N. H. 535. 
 Legislature to appropriate private property, 
 
 (a) The provision in the Constitution of the U. S. in regard to taking private 
 property is directed only to legislation and acts of the limited States. Withers v. 
 Buckley, 20 How. 84. 
 
420 GUARANTY OF PRIVATE PROPERTY. 
 
 of the sovereign power of the State the restricting clause is in- 
 tended to apply ; secondly, consider, under the head of delega- 
 tion of the power, by whom it can be exercised ; thirdly, exam- 
 ine the question, w r hat is a talcing of private property within 
 the meaning of the clause ; and lastly, speak of the rules which 
 determine how and when compensation must be made. Before 
 entering, however, 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 sev- 
 eral States, (a) 
 
 (a) Constitutional Provisions. The following are all the provisions respecting the 
 exercise of the right of eminent domain contained in the existing State Constitutions: 
 Private property shall not be taken or applied for public use unless just compen- 
 sation be made therefor; nor shall private property be taken for private use, or for 
 the use of corporations other than municipal, without the consent of the owner : 
 Provided however, that laws may be made securing to persons or corporations the 
 right of way over the lands of either persons or corporations, and, for works cf in- 
 ternal improvement, the right to establish depots, stations, and turnouts, but just 
 compensation shall in all cases be first made to the owner. Alabama, i, 25. No right 
 of way shall be appropriated to the use of any corporation until full compensation 
 therefor be first made in money or secured by a deposit of money to the owner, irre- 
 spective of' any benefit from any improvement proposed by such corporation, which 
 compensation shall be ascertained by a jury of twelve men in a court of record as 
 shall be prescribed by law. INd. xiii, 5. Private property shall not be taken for 
 public use without just compensation. Arkansas, i, 15 ; Rhode Island, i, 16. [Same] 
 nor unless the public exigencies require it. Maine, i, 21. [Same] first secured or 
 paid. Minnesota, i, 13. Nor shall private property be taken for public use without 
 just compensation. California, i, 8; Florida,~Dec. of Rights, 9 ; New York, i, 6. The 
 property of no person shall be taken for public use, without just compensation there- 
 for. Connecticut, i, 11; Michigan, xviii, 14; Nebraska, i, 13; Wisconsin, i, J3. Nor 
 shall any man's property be taken or applied to public use without the consent of 
 his representatives, and without compensation being made Delaware, i, 8. [Same] 
 and without just compensation being previously made to him. Kentucky, xiii, 14. 
 [Same as last except "previously" is omitted.] Ptnnsyhania, ix, 10. Private ways 
 may be granted upon just compensation being paid by the applicant. Georgia, i, 20. 
 Private property shall not be taken or damaged for public use without just compen- 
 sation. Such compensation, when not made by the State, shall be ascertained by a 
 jury, as shall be prescribed by law. The fee of land taken for railroad tracks without 
 consent of the owners thereof, shall remain in such owners, subject to the use for 
 which it is taken. Illinois, ii, 13. The exercise of the power and the right of emi- 
 nent domain shall never be so construed as to prevent the taking, by the General 
 Assembly, of the property and franchises of incorporated companies already organized, 
 . and subjecting them to *he public necessity the same as individuals. The right of 
 trial by jury shall be held inviolate in all trials of claims for compensation, when, in 
 
GUARANTY OF PRIVATE PROPERTY. 421 
 
 Having thus given the leading provisions of the State Con. 
 stitutions on the subject, I now proceed to consider first, the 
 
 the exercise of the said right of eminent domain, any incorporated company shall be 
 interested either for or against the exercise of said right. Ibid, xi, 14. No man's 
 particular services shall be demanded without just compensation ; no man's property 
 shall be taken by law without just compensation, nor, except in case of the State, 
 without such compensation first assessed and tendered. Indiana, i, 21. Private 
 property shall not be taken for public use without just compensation first being made 
 or secured, to be paid to the owner thereof as soon as the damages shall be assessed 
 by the jury, who shall not take into consideration any advantages that may result to 
 said owner on account of the improvement for which it is taken. Iowa, i, 18. No 
 right of way shall be appropriated to the use of any corporation until full compensa- 
 tion therefor be first made in money, or secured by a deposit of money, to the owner, 
 irrespective of any benefit from any improvement proposed by such corporation. 
 Kansas, xii,4. Nor shall vested rights be divested unless for purposes of public 
 utility and for adequate compensation made. Louisiana, vi, 110. The General As- 
 sembly shall enact no law authorizing private 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. Mary- 
 land, iii, 40. No part of the property of any individual can with justice be taken 
 from him or applied to public uses without his own consent, or that of the repre- 
 sentative body of the people. And whenever the public exigencies require that the 
 property of any individual should be appropriated to public uses, he shall receive a 
 reasonable compensation therefor. Massachusetts, pt. i, 10. The property of no per- 
 son shall be taken by any corporation for public use without compensation being 
 first made or secured in such manner as may be prescribed by law. Michigan, xv, 9. 
 Private property shall not be taken for public improvements in cities and villages 
 without the consent of the owner, unless the compensation therefor shall first be 
 determined by a jury of freeholders, and actually paid or secured in the manner pro- 
 vided by law. Ibid, xv, 15. When private property is taken for the use or benefit 
 of the public, the necessity for using such property, and the just compensation to be 
 made therefor, except when to be made by the State, shall be ascertained by a jury 
 of twelve freeholders, residing in the vicinity of such property, or by not less than 
 three commissioners appointed by a court of record, as shall be prescribed by law : 
 Provided the foregoing provisions shall in no case be construed to apply to the action 
 of commissioners of the highways in the official discharge of their duties as highway 
 commissioners. Ibid, xviii, 2. 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 person or persons to be benefited. Ibid, xviii, 14. Lands may 
 be taken for public way for the purpose of granting to i,ny corporation the franchise 
 of .way for public use. In all cases, however, a fair and equitable compensation shall 
 be paid for such land and the damages arising from the taking of the same. Minne- 
 sota, x, 4. Private property shall not be taken for public use except upon due compen- 
 sation first being made to the owner or owners thereof in a manner to be provided by 
 law. Mississippi, i, 10. No private property ought to be taken or applied to public 
 use without just compensation. Missouri, i, 16. Nor shall private property be taken 
 
422 GUARANTY OF PRIVATE PROPERTY. 
 
 precise nature of the power of the State over private property, 
 and the precise extent of the constitutional limitation. The 
 
 for public use without just compensation having been first made or secured, except 
 in cases of war, riot, fire, or great public peril, in which cases compensation shall be 
 afterward made. Nevada, i, 8. But no part of a man's property shall be taken from 
 him or applied to public uses without his own consent or that of the representative 
 body of the people. New Hampshire, pt. i, art. 12. 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. 
 Ntw Jersey, i, 16. Individuals or private corporations shall not be authorized to 
 take private property for public use without just compensation first made to the 
 owners. I 'bid. iv, 7, 9. [Same as xviii, 2 and 14 of Michigan.] New York, i, 7. 
 Private property shall ever be held inviolate, but subservient to the public welfare. 
 When taken in time of war or other public exigency imperatively requiring its im- 
 mediate 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 th 3 owner in money ; 
 and in all other cases where private property shall be taken for public use, a com- 
 pensation 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. Ohio, i, 19. Private property shall not be taken for 
 public use, nor the particular services of any man be demanded, without just com- 
 pensation, nor, except in the case of the State, without such compensation first assessed 
 and *endered. Oregon, i, 19. The Legislature shall not invest any corporate body 
 or individual with the privilege of taking private property for public use, without 
 requiring such corporation or individual to make compensation to the owners of said 
 property, or give adequate security therefor, before such property shall be taken. 
 Pennsylvania, vii, 4. Private property shall not be taken or applied for public use 
 or for the use of corporations, or for private use, without the consent of the owner, 
 or a just compensation being made therefor : Provided, etc. [same as proviso in Ala- 
 bama]. South Carolina, i, 23. 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. Tennessee, i, 21. No per- 
 son's property shall be taken or applied to public use, without just compensation 
 being made, unless by the consent of such person. Texas, i, 14. Private property 
 ought to be subservient to public uses when necessity requires it; nevertheless when- 
 ever any person's property is taken for the use of the public the owner ought to receive 
 an equivalent in money. Vermont, pt. i, 2. But no part of 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 the freemen. Hid. pt. i, 9. The General Assembly 
 shall not pass any law whereby private property shall be taken for public uses with- 
 out just compensation. Virginia, v, 14. No municipal corporation shall take private 
 property for public use against the consent of the owner, without the necessity 
 thereof being first established by the verdict of a jury. Wisconsin, xi, 2. Private 
 property shall not be taken or damaged for public use without just compensation ; 
 nor shall the same be taken by any company incorporated for the purposes of inter- 
 nal improvement until just compensation shall have been paid or secured to be paid 
 to the owner; and when private property shall be taken or damaged for public use, 
 or for the use of such corporations, the compensation to the owner shall be ascer- 
 
EMINENT DOMAIN. 423 
 
 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, there- 
 fore, the clause was rigidly interpreted, it would at once arrest 
 the operations of any government to which it was applied. 
 Such, however, is not its construction. The restriction on tak. 
 ing 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 con- 
 trol for the purposes of police, public health, and public morals, 
 but also the power of taking private property when any public 
 interest of whatever degree calls for it ; and of this demand or 
 exigency, the Legislature or sovereign 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 re- 
 quired 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 
 
 tained in such manner as may be prescribed by general law : Provided that when 
 required by either of the parties such compensation suall be ascertained by an im- 
 partial jury of twelve freeholders. West Virginia, iii, 9. The exercise of the power 
 and the right of eminent domain shall never be so construed or abridged as to pre- 
 vent the taking by the Legislature of the property and franchises of incorporated 
 companies already organized, and subjecting them to the public use the same as of 
 individuals. Ibid, xi, 12. 
 
424 EMINENT DOMAIN. 
 
 to be conceded by all writers, and to be declared under all sys- 
 tems of government. Differences exist as to the right to com- 
 pensation ; but all agree that when the Government demands, 
 private rights must give way, that the property of the individ- 
 ual must be surrended to the general welfare. The power 
 which commands and enforces these concessions, seems to de- 
 rive its 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, different systems recognize 
 very different rules. In France, the right to compensation is 
 universally and peremptorily 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 Legisla- 
 ture thought it necessary," said Lord Kenyon, speaking of turn- 
 pike acts, paving acts, and navigation acts, " as they do in many 
 cases, they would enable the commissioners to award satisfac- 
 tion to the individuals who happen to suffer. But if there be 
 no such power the parties are without remedy, provided the 
 commissioners 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 
 
 * Vattel says, sec. 1, c. xx, 244, " Le manner directed by the Constitution nnd laws 
 
 droit qul apparticnt a la societe ou au snuverain, of the State, whenever the public interests re- 
 
 de d''KpoKtr en can de neccessite et pour le suhit quire it. The only restriction upon this pow- 
 
 public de tout bien renfermedans Fetat, s'appelle er is, that the properly shall not be taken fur 
 
 I)onv>iiie Eminent. Ce droit fait par tie du the public use without just compensation to 
 
 Murerain pouvoir." See Domat as to the the owner, and in the mode prescribed by 
 
 right to take private property, Des Loix Civ- law. The right of emineut domain does not, 
 
 iles, lib. i, tit. ii; sect, xiii, 432, et scq. He however, imply a righl iu the sovereign pow- 
 
 cites a curious old ordinance of 1803, in the er to take the property of one citizen and 
 
 time of Philippe le Bel ; Et pnssessores ill-arum transfer it to another, even for a full compen- 
 
 possessionum ad eas demitteiidum justo prelio sation, where the public interests will be in 
 
 fonificllantur. no way promoted by such transfer." Beek- 
 
 " All separate interests of individuals in man v. Saratoga and Schenectady R. R. Co. 
 
 property are held by the Government under 3 Paige, 73. See also, as to eminent domain, 
 
 the tacit agreement or implied reservation Varick v. Smith, 5 Paige, 159. 
 that the property may be taken for public use f The Cede Napoleon (book ii, tit. ii, 545), 
 
 upon paying a fair compensation therefor, says, " Ko one can be compelled to give up 
 
 whenever the public interests or necessities his property except for the public good, and 
 
 require that it should be so taken. Notwith- for a just and previous indemnity." See also 
 
 standing the grant to individuals, the eminent Kent's Comrn. ii, 339, note. 
 domain, the highest and most exact idea of ^ Governor, &c. of Cast Plate Manufactur- 
 
 property, remains in the Government or in ers v. Meredith, 4 Term. 795; action against 
 
 the Dggregate body of the people in their sov- defendants as commissioners under a paving 
 
 ereign capacity; and tbey have a ri-ht to act; and held that they were not liable, 
 resume the possession of the property in the 
 
TAXATION. 425 
 
 in the constitutional clauses which I have above cited. But, as 
 I have said, the constitutional limitation which requires com- 
 pensation for the sacrifice of private property, does not apply to 
 every branch of the power of eminent domain. It is only in- 
 tended to operate on the exercise of the legislative 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 pro- 
 vision 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 Legislature 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. 158), it has been decided that, no matter how unequally or 
 oppressively the power of taxation be exercised, the courts have 
 no power to interfere, f (a) 
 
 * People v. Mayor of Brooklyn, 4 Corns. 615; Town of Guilford v. Supervisors of 
 423; Town of Guilford v. Cornell, 18 Barb. Chenango Co. 3 Kernan, 147; ante, p. 353. 
 
 f Kirby v. Shaw, 19 Penn. (7 Harris) K.258. 
 
 (a) Taxation in General; Definition. "Taxation, in the veiy meaning of the term, 
 implies the raising of money for public uses, and excludes the raising of it for private 
 objects and purposes," says Appleton, C. J., in the recent case of Allen v. Jay, 
 60 Me. 124, 127, and no doubt all courts -would concede the correctness of this 
 general proposition. The conflict in judicial decision as to the limits of the legis- 
 lative power implied in the word " taxation," in the absence of special restrictions, 
 arises rather over the question, What objects and purposes are private, and, there- 
 fore, beyond the scope of taxation ? 
 
 The Legislature cannot tax A. in order to give the money to B. Thus, a so-called 
 tax on agencies of foreign insurance companies doing business in the State, made 
 payable to a private corporation for the relief of disabled firemen, has been held in- 
 valid, and the court refused to enforce a bond given under requirement of law for its 
 payment. Philadelphia Assn. v. Wood, 39 Penn. St. 73 ; but see Fire Department 
 
426 TAXATION. 
 
 Under this head of taxation is now generally understood to 
 be embraced the mode usually practiced in this country of as- 
 
 v. Helfenstein, 16 Wise. 136. A law authorizing taxation to repay individuals money 
 paid by them for procuring substitutes for themselves, would be invalid, as a taxa- 
 tion for private purposes. Freeland v. Hastings, 10 Allen, 570 ; Thompson v. Pitts- 
 ton, 59 Me. 545. 
 
 But as the Legislature, in the absence of any special constitutional restrictions, 
 can raise money by taxation without specifying the object of the tax, and appropri- 
 ate it when raised at its pleasure, the range of judicial interference is very limited. 
 In the absence of special limitations upon the Legislature, the judicial question in- 
 volving the validity of taxation has generally arisen as to local taxes impossd for a 
 particular purpose, or as to municipal engagements e. g.. subscriptions necessarily 
 involving taxation for their liquidation. 
 
 It seems but a corollary of the proposition that the Legislature cannot lay or au- 
 thorize the laying of a tax for private purposes, that it cannot tax or authorize the 
 taxation of one locality for the public uses of another locality. Thus, it has been 
 held that a municipality cannot be authorized to tax land outside its limits for its 
 own municipal purposes. Wells v. Weston, 22 Mo. 384. And even a technical an- 
 nexation to a city of outlying agricultural tracts has been held insufficient to justify 
 taxation for the city purposes. Covington v. Southgate, 15 B. Mon. 491 ; Maltus v. 
 Shields, 2 Mete. (Ky.) 553 ; Morford v. Unger, 8 Clarke (la.) 82 ; Langworthy v. Du- 
 buque, 16 Iowa, 271; but see Weeks v. Milwaukee, 10 Wise. 242; Bull v. Conroe, 13 
 Wise. 233 ; Abegust v. Louisville, 2 Bush (Ky.) 271 ; People v. Hill, 7 Cal. 97 ; Powers 
 v. Wood Co. 8 Ohio, N. S. 285. 
 
 Local Assessments. The better opinion seems to be that, whether expressly given 
 or resulting from the general grant of legislative power, the power to tax implies the 
 power to apportion, and that there is no limitation inherent in the nature of a " tax " 
 which, in the absence of peculiar constitutional restraint, prevents its imposition on 
 a particular locality in any manner the Legislature may see fit. People v. Brooklyn, 
 4 1ST. Y. 419; Guilford v. Chenango Co. 13 K Y. 143; Litchfieldv. Venion, 41 N. Y. 
 123; Alcorn v. Hamer, 38 Miss. 652; Philadelphia v. Field, 58 Penn. St. 320; Nichols 
 v. Bridgeport, 23 Conn. 189; State v. Newark, 6 Vroom. 168; per contra, see State v. 
 City Council, 12 Rich. L. 702; see, also, Lexington v. McQuillan, 9 Dana, 513. Al- 
 though the Constitution of New York speaks of "assessments" as distinct from 
 " taxes," the cases in that State above cited do not at all rest upon that distinction, 
 but place the power to lay local assessments wholly upon the general power of taxa- 
 tion. The whole doctrine is discussed at large and with great ability in the first of 
 those cases. People v. Brooklyn. 
 
 When the Constitution recognizes the power of laying " assessments " as distinct 
 from "taxation," limitations upon the taxing power, as, e. g., that taxes shall be uni- 
 form, and in proportion to the value of the property taxed, and the like, have been 
 held not to apply to assessments. Hill v. Higdon, 5 Ohio, N. S. 243 ; Burnett v. 
 Sacramento, 12 Cal. 76; Emery v. San Francisco Gas Co. 28 Cal. 846; Piper's Ap- 
 peal, 32 Cal. 530 ; Lumsden v. Cross, 10 Wise. 282 ; Soens v. Racine, 10 Wise. 271 ; 
 Bond v. Kenosha, 17 Wise. 284 ; Weeks v. Milwaukee, 10 Wise. 242 ; Lafayette v. 
 Jenners, 10 Ind. 70; Goodrich v. Winchester, &c. Co. 26 Ind. 119; Palmer v. Stumph, 
 29 Ind. 329 ; Law v. Madison, &c. Co. 30 Ind. 77 ; Paine v. Spratley, 5 Kans. 525. 
 The same is held when the Constitution provides for " duties " as well as for 
 
TAXATION. 427 
 
 sessing the expense of local improvements ; and thus property 
 is daily taken for opening streets and other objects of a similar 
 
 " taxfes." King v. Portland, 2 Oregon, 146 ; see People v. Whyler, 41 Cal. 351, which 
 holds that a charge on the property of a district to pay for levees is a tax, and not a 
 local assessment. 
 
 The same is held even where there is no recognition in the Constitution of the 
 power to lay local, assessments as distinct from the power to tax. Yeatman v. Cran- 
 dall, 11 La. Ann. 220; Wallace v. Shelton, 14 La. Ann. 503; In Matter of New Or- 
 leans, 20 La. Ann. 497 ; Egyptian Levee Co. v. Hardin, 27 Mo. 495 ; Columbia, &c. 
 Co. v. Muir, 39 Mo. 53; McGehee v. Mathis, 21 Ark. 40; St. Joseph v. O'Donoghue, 
 31 Mo. 345 ; Howard v. First Church, 18 Md. 451 ; Bishop v. Marks, 15 La. Ann. 
 147; Richardson v. Morgan, 16 La. Ann. 429 (affirming Yeatman v. Crandall, ubi 
 sup.} ; Goodrich v. Winchester, &c. Co. 26 Ind. 119 ; Warren v. Henley, 31 Iowa, 31 ; 
 Bliss v. Kraus, 16 Ohio, N. S. 54 (making owner of low ground bear the expense of 
 raising it) ; Chambers v. Satterlee, 40 Cal. 497. 
 
 As a particular tract of land may be assessed, so it would seem may a particular 
 class of personal property that is benefited e. g., shipping, for improvement of a 
 harbor. See President, &c. v. State, 45 Ala. 399. 
 
 Such local assessments may be made according to the actual benefit to each lot. 
 In the Matter of Dorrance St. 4 R. I. 230 ; or according to some arbitrary standard of 
 benefit, as, for instance, frontage. Ernst v. Kunkle, 5 Ohio, K S. 520 ; Northern, &c. 
 R. R. v. Connelly, 10 Ohio, N. S. 159 ; Emery v. San Francisco Gas Co. 28 Cal. 
 346; Allen v. Drew, 44 Vt. 174; Wray v. Pittsburg, 46 Penn. St. 365; Stroud v. 
 Philadelphia, 61 Penn. St. 255; St. Joseph v. Anthony, 30 Mo. 537; but se.e In 
 re Washington Avenue, 69 Penn. St. 352, limiting the rule to city lota. Even, it 
 seems, the entire expense of the improvement in front of each estate may be assessed 
 upon that estate. Weeks v. Milwaukee, 10 Wise. 242; Palmyra v. Morton, 25 Mo. 
 593 ; but see Woodbridge v. Detroit, 8 Mich. 274 ; Motz v. Detroit, 18 Mich. 495 ; 
 see, also, Hart v. Gaven, 12 Cal. 476. 
 
 When the assessment takes this form, it is sometimes referred to the police power. 
 See Palmyra v. Morton, uli sup. 
 
 Or the assessment may be laid according to the value of the lots. Barnes v. 
 Atchison, 2 Kans. 454 ; Malchus v. District of Highlands, 4 Bush (Ky.) 547 ; or by 
 the acre. Williams v. Cammack, 27 Miss. 209 ; Egyptian Levee Co. v. Hardin, 27 
 Mo. 495 ; Wallace v. Shelton, 14 La. Ann. 503. 
 
 Where the limitation of u uniformity " has been held applicable to assessments, it 
 has been construed as requiring uniformity according to the subject-matter not a 
 theoretical, but a practical, uniformity ; and local assessments have been upheld as 
 being as equal a distribution of the burden as the circumstances of the case will ad- 
 mit. But such assessments, to be uniform in this sense, must be according to the 
 benefit, and not in excess of the benefit, and, therefore, an assessment by frontage is 
 held not to be " equal " nor " uniform." Chicago v. Lamed, 34 111. 203 ; Ottawa v. 
 Spencer, 40 111. 211 ; Bedard v. Hall, 44 111. 91 ; Creote v. Chicago, 56 111. 422 ; and 
 such assessments must include all benefited in the ratio of the benefit. Chicago v. 
 Baer, 41 HI. 306 ; but, per contra, see Stinson v. Smith, 8 Minn. 366, where an as- 
 sessment, though laid according to benefit, was held void, under a constitutional re- 
 quirement that all property on which taxes are to be levied shall have a cash valua- 
 tion and be equal and uniform throughout the State. 
 
428 TAXATION. 
 
 nature, often without any pecuniary compensation, and the 
 burden thrown on a particular and small locality. In opening 
 
 In Massachusetts, when the power is traced to the power of imposing " propor- 
 tional and reasonable assessments, rates, and taxes," and of passing " wholesome and 
 reasonable laws," assessments according to the benefit have been held valid. Dorgan 
 v. Boston, 12 Allen, 223; Jones v. Boston, 104 Mass. 461. 
 
 Some cases have reconciled local assessments with the express or implied require- 
 ment of uniformity by considering each locality assessed a separate tax district. 
 Lexington v. McQuillan, 9 Dana, 513. 
 
 Local assessments do not conflict with the general provisions for the security of 
 the citizen contained in most Constitutions, as, for example, "the burdens of the 
 State ought to be fairly distributed among its citizens." In the Matter of Dorrance 
 St. 4 R. I. 230 ; or " no person shall be deprived of life, liberty or property without 
 due process of law." People v. Brooklyn, 4 N. Y. 419 ; see, also, Williams v. Cam- 
 mack, 27 Miss. 209 ; per contra, see State v. City Council, 12 Rich. Law, 702. Local 
 assessments in proportion to the benefit upon the property of a corporation are not 
 contrary to a provision in its charter exempting it from all taxes ; otherwise, if the 
 assessment is laid upon the corporation itself not upon the property benefited and 
 is not required to be laid according to the benefit. State v Newark, 3 Dutch. 185. 
 
 Where a Constitution declared, under the head of " Finance and taxation," that 
 'the Legislature shall provide for a uniform and equal rate of assessment and taxa- 
 tion," and under the head of ''Corporations," that provision shall be made by gen- 
 eral law for the organization of cities, &c., and their power of taxation, assessment, 
 &c., shall be so restricted as to prevent the abuse of such power " held, the " assess- 
 ment " in the first clause meant "listing" and '"valuation," and did not refer to 
 assessments for local improvements. Hines v. Leavenworth, 3 Kans. 186. Where 
 the Constitution provides that the Legislature shall impose restrictions upon the 
 abuse of the power of local assessment, it was held in Kansas that if any restriction 
 is imposed, the Legislature is the sole judge of its sufficiency. Hines v. Leavenworth, 
 3 Kans. 186 ; and in Ohio, under the same provision, the court will not treat the 
 assessment invalid, though the Legislature entirely neglect to impose any restrictions. 
 Hill v. Higdon, 5 Ohio, N. S. 243 ; Maloy v. Marietta, 11 Ohio, N. S. 636; see, also, 
 Bank of Rome v. Rome, 18 N. Y. 38 ; Lumsden v. Cross, 10 Wise. 282. A provision 
 in a city charter that no tax shall be levied beyond what may be needed for legiti- 
 mate municipal purposes, without the previous sanction of a majority of the voters, 
 is not such a restriction as the Constitution requires. Foster v. Kenosha, 12 Wise. 
 616. 
 
 Where exemptions from taxation were prohibited by the Constitution, this was 
 held to apply to general taxation only, and not to prohibit local assessments for im- 
 provement in real estate. State v. Linn Co. Court, 44 Mo. 504. Where the Consti- 
 tution provided for uniform and equal rate of assessment and taxation, and prohib- 
 ited the General Assembly from passing local or special laws for the assessment and 
 collection of taxes for State, county, township or road purposes held, that a law 
 authorizing local assessment for local improvements, e. g., a turnpike, was constitu- 
 tional. Law v. M. S. & G. Turnpike Co. 30 Ind. 77; Ryker's Ridge Turnp. Co. v. 
 Scott, 32 Ind. 37. A Constitution contained the following : " The corporate authori- 
 ties of counties, townships, school districts, cities, towns and villages, may be vested 
 with power to assess and collect taxes for corporate purposes." Under this provision, 
 
TAXATION. . 429 
 
 streets and making other similar local improvements in the 
 United States, it is the general practice, when authorizing the 
 
 a levee and drainage company cannot be authorized to impose a tax to defray ex- 
 penses of the improvement. Harward v. St. C. & M. L. &D. Co. 51 111. 130 ; Hessler 
 v. Drainage Commrs. 53 111. 105. Where a statute as to assessment for a local im- 
 provement was manifestly unjust e. g., when it authorized a particular street to be 
 paved with Nicholson pavement at the expense of the abuttors, without their consent, 
 their consent being necessary to pave other streets, it was held invalid. Howell v. 
 Bristol, 8 Bush (Ky.), 493. 
 
 In some cases, the laying of local assessments is treated as an exercise of the power 
 of eminent domain. See Chicago v. Larned, 34 111. 203 ; Peoria v. Kidder, 26 El. 
 351. Thus, in New Jersey, as to assessment in excess of the benefit received. Tide 
 Water Co. v. Coster, 3 C. E. Green, 518. But this view is rejected in the vast major- 
 ity -of the cases. That the Legislature may designate the tract on which the assess- 
 ment for local improvement shall be laid, see Miller v. Craig, 3 Stockton, 175. The 
 improvement must be a public one, and abuttors on a private way cannot be com- 
 pelled to pay the expense of grading the same, though it is open to public travel. 
 Morse v. Stocker, 1 Allen, 150. 
 
 That, in addition to the assessment on the land, there may be a personal liability 
 imposed, see Litchfield v. McComber, 42 Barb. 288 ; St. Louis v. Clemens, 36 Mo. 
 467; but see Creighton v. Manson, 27 Cal. 613; Taylor v. Palmer, 31 Cal. 240 ; Nee- 
 nan v. Smith, 50 Mo. 525, overruling St. Louis v. Clemens, supra. 
 
 What Objects and Purposes are Public, so that they may be made the occasions of 
 Local Taxation. The principle of local taxation for local improvement being thus 
 admitted, the question recurs, What is an improvement constituting such a benefit to 
 the public of the particular locality, that a tax may be imposed ? As before re- 
 marked, the conflict in the judicial decisions and the theoretical discussions, arises 
 from the attempt to answer this question. The cases frequently turn upon the lan- 
 guage of express and special constitutional provisions by which the power of taxa- 
 tion is delegated or limited ; but with such special provisions we are not concerned 
 at present. The question is, however, discussed and answered upon general prin- 
 ciples, in the absence of special express constitutional directions and limitations. 
 The results of these latter discussions and decisions are now given, arranged under 
 various heads according to the nature of the subject-matter. 
 
 Municipal Aid to Railroads. It has been generally held, and the weight of 
 authority is overpowering, that statutes allowing municipalities to aid (by subscrib- 
 ing for stock, or issuing bonds, or loaning credit), in the construction of railroads 
 and similar improvements, which, by terminating in, or running through the muni- 
 cipality, or by being links in lines or routes of transportation that do thus terminate or 
 run, will, as it is supposed, benefit the municipality, are constitutional and valid. 
 Bank of Rome v. Rome, 18 N. Y. 38 ; Benson v. Mayor, &c. 24 Barb. 248 ; Clarke v. 
 Rochester, 24 Barb. 446 ; Gould v. Venice, 29 Barb. 442 ; People v. Henshaw, 61 
 Barb. 409 ; Starin v. Genoa, 23 N. Y. 439 ; Caldwell v. Justices, 4 Jones Eq. 323 ; 
 Hill v. Forsythe Co. 67 N. C. 367 ; Gibbons v. Mobile &c. R. R. 36 Ala. 410 ; Augusta 
 B'k v. Augusta, 49 Me. 507 ; Burns v. Atchison, 2 Kans. 454 ; Union Pac. Q. R. v. 
 Davis Co. 6 Kans. 256 ; Comm'rs of Leavenworth Co. v. Miller, 7 Kans. 479 ; State 
 v. Nemaha Co. Ib. 542 ; Morris v. Morris Co. 2b. 576 ; Cotton v. Leon Co. 6 Flor. 
 610 ; Louisville &c. R. R. v. Davidson Co. 1 Sneecl (Tenn.) 637; Aurora v. West, 9 
 
430 TAXATION. 
 
 work to be done, to cause the expense, which includes the value 
 of the property taken, to be assessed exclusively upon the 
 
 Ind. 74 ; John v. Cincinnati &c. R. R. 35 Ind. 539 ; Maddox v. Graham, 2 Mete. 
 (Ky.) 56; Shelby County Ct. v. Cumberland &c. R. R. 8 Bush, 209; Pattison v. 
 Yuba, 13 Cal. 175 ; Robinson v. Bidwell, 22 Cal. 379 ; Stockton &c. R. R. v. Stock- 
 ton, 41 Cal. 147 ; Clapp v. Cedar Co. 5 Clarke (la.) 15 ; Stewart v. Polk Co. 30 Iowa, 
 9 ; Piatt, Supervisor, &c. v. People, 29 111. 54 ; Butler v. Dunham, 27 HI. 474 ; Comm'rs 
 v. Nichols, 14 Ohio, N. S. 260 ; St. Joseph &c. R. R. v. Buchannan Co. Court, 39 Mo. 
 485; State v. Linn Co. Ct. 44 Mo. 504; San Antonio v. Jones, 28 Tex. 19; Phillips 
 v. Albany, 28 Wise. 340 ; Davidson v. Ramsey Co. 18 Minn. 482. The Supreme 
 Court of the United States has assumed in a series of cases to pass upon this ques- 
 tion and to construe State Constitutions, and has fully sustained the power to pass 
 such statutes, see, Thompson v. Lee County, 3 Wall. 327 ; Knox Co. v. Aspinwall, 21 
 How. 539 ; Zabriskie v. Railroad Co. 23 II. 381 ; Amey v. Mayor, 24 II. 364 ; Gelpcke 
 v. Dubuque, 1 Wall. 175 ; Mercer Co. v. llackett, Ib. 83 ; Meyer v. Muscatine, II. 384. 
 
 Subscription by a town to stock of a company for improving river navigation 
 has also been sustained. Taylor v. Newbern, 2 Jones Eq. 141. But it seems that 
 the Legislature cannot authorize a municipality to donate its aid to a railroad. 
 Sweet v. Hulbert, 51 Barb. 312; Whiting v. Sheboygan &c. R. R. 25 Wise. 167; 
 Rogan v. Watertown, 30 Wise. 259 ; but the contrary was held in Davidson v. Ram- 
 sey Co. 18 Minn. 482, and see Cummins v. Jefferson County, 63 Barb. 287. It has 
 been held that the Legislature may compel a county to subscribe to the stock of a 
 completed road. Napa Valley R. R. v. Napa Co. 30 Cal. 435. The Court of Ap- 
 peals of N. y. has just decided in a very carefully considered case, in which all the 
 authorities, State and national, are reviewed, that the Legislature cannot compel by 
 a mandatory statute a municipality to subscribe in aid of a railroad against its con- 
 sent. People v. Bacheller, 8 Albany Law Journal, 120 ; 53 N. Y. 128. 
 
 It is not necessary that the improvement should be within the municipality 
 making the assessment. Pattison v. Yuba Co. 13 Cal. 175; Skinner's Ex'or v. Hut- 
 ton, 33 Mo. 244. In general the element of situation and benefit must combine to 
 make aid to a corporation come within " county purposes." Gotten v. Leon Co. 6 
 Flor. 610. That a city cannot lay an assessment as for an improvement, where the 
 improvement consists in abating a nuisance caused by the city itself, see, Weeks v. 
 .Milwaukee, 10 Wise. 242; and where a street has been opened and paved, so that 
 the duty of repair is laid upon the city, it seems a change or repairing cannot be 
 treated as an improvement and paid for by local assessment. Hammett v. Philadel- 
 phia. 65 Penn. St. 146. 
 
 The courts of Iowa have held, reversing their prior decisions, that municipal sub- 
 scriptions to railroads could not be authorized by the Legislature. Stokes v. Scott 
 Co. 10 Iowa, 166 ; State v. Wapello Co. 13 11. 388 ; Myers v. Johnson Co. 14 11. 47 ; 
 Smith v. Henry Co. 15 Ib. 385 ; Ten Eyck v. Keokuk, 15 Ib. 486 ; McClure v. Owen, 
 26 11. 243 ; Hansen v. Vernon, 27 Ib. 28. But the most recent cases in that State, 
 following the decisions of the U. S. Supreme Court, and adopting that tribunal's 
 construction of their State Constitution, have receded from this position and affirmed 
 the validity of such legislation. Stewart v. Polk Co. 30 Iowa, 9 ; Bounifield v. Bid- 
 well, 32 Ib. 149. 
 
 In Michigan such legislation is held unconstitutional. People v. Salem, 20 Mich. 
 452; Bay City v. State Treas'r, 23 Ib. 499. 
 
TAXATION. 431 
 
 owners of real estate immediately adjacent to the projected im- 
 provement. These lands are adjudged to be benefited by the 
 
 In Indiana the Constitution prohibits any subscription by municipalities to rail- 
 roads unless paid at the time, but subject to this limitation statutes authorizing 
 subscription to such corporations are held valid. Lafayette &c. R. R. v. Geiger, 34 
 Ind. 185 ; John v. Cincinnati &c. R. R. 35 Ind. 539. 
 
 Where the Legislature is prohibited from pledging the State credit in aid of cor- 
 porations, it seems this does not prevent it from empowering counties, etc., to pledge 
 their credit for such purposes. Gotten v. Leon Co. 6 Flor. 610 ; Prettyman v. Super- 
 visors, 19 111. 406; Robertson v. Rockford, 21 111. 451 ; Clark v. Janesville, 10 Wise. 
 136; Bushnell v. Beloit, Ib. 195. 
 
 In some States there are express constitutional provisions on this subject, but 
 they have not prevented municipal subscriptions. Thus in Alabama, " The State 
 shall not engage in works of internal improvement, but its credit in aid of such may 
 be pledged by the General Assembly on undoubted security," Art. 4. 33, and, 
 " The General Assembly shall not have power to authorize any municipal corporation 
 * * * to lay a tax on real or personal property to a greater extent than 2 per 
 cent, of the assessed value of such property." Art. 4, 30. Held, that subscriptions 
 by counties to railroads were not forbidden; and a statute authorizing subscriptions 
 to railroads by counties, and levy of a tax not exceeding 1 per cent, on real and per- 
 sonal property therefor, is not obnoxious to the second provision, although there is 
 no limit placed upon the number of railroads to which a county may subscribe, and 
 although there must be some taxation by the county for other purposes as well as 
 by cities and towns within it. Ex parte Selma & Gulf R. R. 45 Ala. 696. 
 
 The Ohio Constitution provides that " the General Assembly shall never author- 
 ize any county, city, town, or township by vote of its citizens or otherwise to become 
 a stockholder in any joint stock company, corporation, or association whatever, or 
 to raise money or to loan its credit to or in aid of any such company, corporation, or 
 association." Yet it was held that a city might be authorized to construct a rail- 
 road at its own expense and raise the money by taxation. Walker v. Cincinnati, 21 
 Ohio, N. S. 14. As to whether a constitutional prohibition upon the loaning or 
 giving the credit of the State applies to the construction of a railroad by the State 
 directly or by subscription to its stock, see Galtoway v. Jenkins, 63 N. C. 147 ; Uni- 
 versity R. R. v. Holden, Tb. 410. 
 
 Educational Institutions. That a municipality cannot be authorized to lay a tax 
 in aid of a private educational institution was held in Curtis v. Whiffle, 24 Wise. 
 350. But where the Constitution provided for " reasonable and proportional " tax- 
 ation and assessment, a law allowing a town to raise money for the establishment by 
 the State of an agricultural college therein, was held valid, it being a matter of 
 special interest and benefit to that town as well as of general interest to the State. 
 Merrick v. Amherst, 12 Allen, 500, and see Jenkins v. Andover, 103 Mass. 94. And 
 in Gordon v. Cornes, 47 K Y. 608, the court refused to relieve against a tax imposed 
 by the State upon a village for part of the expense of locating in it a normal school, 
 holding that it must be a manifest case of oppression to lead the court" to interfere 
 with a tax apportioned by the Legislature in the absence of constitutional provisions. 
 Other Private Enterprises. In a late case in Maine, an act allowing a town to 
 raise money by taxation to loan to individuals on condition of their establishing a 
 manufactory in the town was held void. Allen v. Jay, 60 Me. 124 ; and see Opinion 
 
432 TAXATION. 
 
 improvement, and are taxed in proportion to the amount 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 principles 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 con- 
 
 of the Judges, 58 Me. 590. In a still later case in Massachusetts, an act authorizing 
 the raising of money by municipal bonds, in order to assist and hasten the rebuild- 
 ing of a tract devastated by fire by loaning the money on mortgage " to owners 
 about to rebuild," was held unconstitutional. 
 
 Bounties to Volunteers. The payment of bounties to volunteers and drafted men 
 to fill a quota, is a purpose for which a town may be authorized to raise money by 
 taxation. Speer v. School District, 50 Penn. St. 150; Washington Co. v. Berwick, 
 56 Penn. St. 466 ; State v. Collector, 2 Vroom, 189; s. c. 4 Vroom, 450; State v. 
 Demarest, 3 Vroom, 528 ; Taylor v. Thompson, 48 111. 9 ; Shackford v. Newington, 
 46 N. H. 415 ; Butler v. Putney, 43 Vt. 481 ; per contra, see Ferguson v. Sandram, 1 
 Bush (Ky.) 548, where such legislation was held invalid, on the ground that it im- 
 posed taxes for national and not for State purposes. And bounties may thus be 
 given even after enlistment. Brodhead v. Milwaukee, 19 Wise. 624 ; State v. Rich- 
 land Township, 20 Ohio, N. S. 362; but per contra, Shackford v. Newington, 46 N. 
 H. 415. And the Legislature may authorize the refunding of money advanced by 
 individuals for such purposes on the faith of repayment. Weister v. Hade, 52 Penn. 
 St. 474 ; Johnson v. Campbell, 49 HI. 316 ; Cass Township v. Dillon, 10- Ohio, N. S. 
 38 ; State v. Wilkesville, 20 Ohio, N. S. 288 ; see Freeland v. Hastings, 10 Allen, 
 570 ; and even it seems though such advances were made without expectation of re- 
 payment. Hilbish v. Catherman, 6-i Penn. St. 154 ; per contra, see Perkins v. Mil- 
 ford, 59 Me. 315. It has been held that a town may be authorized to lay a tax to 
 pay the commutation of drafted men, even though no provision be made for substi- 
 tutes. State v. Jackson, 2 Vroom, 189 ; but the judgment was reversed and the con- 
 trary held in s. c. 4 Vroom, 450. And the Legislature may confirm the unauthorized 
 vote of a town to raise money for such purposes.^ Grim v. Weissenberg Dist. 57 
 Penn. St. 433; Booth v. Woodbury, 32 Conn. 118; Bartholomew v. Harwinton, 33 
 Conn. 408; Winchester v. Corinna, 55 Me. 9; State v. Demarest, 3 Vroom, 528; 
 Kunkle v. Franklin, 13 Minn. 127; Comer v. Folson, 75. 219. A town cannot raise 
 money by tax to refund to individuals the sums paid by them for substitutes. Free- 
 land v. Hastings, 10 Allen, 570. See, State v. Tappau, 29 Wise. 664, which holds 
 that while the Legislature may authorize, it cannot compel a municipal corporation 
 to impose a tax to pay bounties. This case contains a valuable discussion of the 
 general question of local taxation for quasi public matters. 
 
 Other Matters of Local Concern. A county tax to compensate loss by a change of 
 the county seat has been held valid. Wilkinson v. Chatham, 43 Geo. 258. And the 
 Legislature may make a municipality liable to make compensation for property 
 destroyed in a riot. Luke v. Brooklyn, 43 Barb. 54 ; Darlington v. New York, 31 
 N. Y. 164. 
 
LOCAL IMPROVEMENTS. 433 
 
 stitutional 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 modes of taxation lies 
 with the Legislature and with the people, arid not with the 
 judiciary.* So, in Pennsylvania, the doubts seem now set 
 at rest, and the constitutionality of these proceedings main- 
 tained.f 
 
 In Connecticut, also, it has been decided that a statute au- 
 thorizing 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 assessment 
 is an exercise of the power of taxation vested in the State Gov- 
 ernment, and is not in conflict with any provision of the Consti- 
 tution. The same rule applies where power is given to lay out 
 highways, streets, and avenues ; and though, in cases of this 
 kind, the assessment 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 the estimated benefit is the compensation for the 
 land taken ; but that this is only a mode of taxation. J 
 
 In Michigan, too, it has been decided that the terms " pri- 
 vate property" and the " property of individuals," in the consti- 
 tutional provisions prohibiting the taking of property for public 
 use without compensation, <fec., 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. 
 
 * People v. Mayor of Brooklyn, 4 Com- Matter of Fenelon's Petition, 7 Penn. 173 ; 
 
 stock, 419 ; overruling The People v. The and Extension of Hancock Street, 18 Perm. 
 
 Mayor of Brooklyn, 6 Barb. 214; Livingston (6 Harris) 26, where it is declared to be no 
 
 v. The Mayor of New York, 8 Wend. 85 ; In longer an open question in Pennsylvania; 
 
 the Matter of Opening Furman Street, 17 Schenley and Wife v. City of Allegheny, 25 
 
 Wendell, 649. See in Kentucky, Button's Penn. 128, affirms Sharpless v. City of Phila- 
 
 Heirs v. Louisville. 5 Dana, 30; City of Lex- delphia, 9 Harris, 147, as to the paving and 
 
 ington v. M'Quilian's Heirs, 9 Dana, 513. grading of streets in cities, and the assess- 
 
 f M'Master v. Commonwealth, 3 Watts, ment of the expenses of the same. 
 292 ; In the Matter of the District of the City \ Nichols v. Bridgeport, 23 Conn. 189 ; The 
 
 of Pittsburgh, 2 Watts & Serg. 320; In the People ex rel. Griffin v. The May or, 4 Corns. 4 19. 
 28 
 
434 POLICE POWERS. 
 
 And the provisions of the Constitution relative to taking pri- 
 vate property for public use or improvement, and the mode of 
 ascertaining the compensatio'n therefor, do not apply to such 
 assessment.* 
 
 In Louisiana, however, where the Constitution (art. 105) 
 provides that " taxation shall be equal and uniform throughout 
 the State," f the system of assessing the expense of street as- 
 sessments and other municipal improvements on such neighbor- 
 ing proprietors as are most benefited by them, has been pro- 
 nounced unconstitutional, 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 public purposes what- 
 ever, of a local nature, except on the principles of equality and 
 uniformity.^ 
 
 In Pennsylvania, it has been decided that an act authorizing 
 municipal corporations to subscribe to the stock of a railroad 
 corporation, is within the constitutional powers of the Legisla- 
 ture ; that it is not a taking of private property for public use 
 without compensation, because, though the property of the citi- 
 zen may be more heavily taxed than before, it is not taken ; and 
 that the acts of this kind fall within the scope of the legisla- 
 tive power to permit the appropriation of a local tax within 
 the consent of the local authorities ; | 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 compensa- 
 
 * Williams v. Mayor of Detroit, 2 Michi- J Sharpless v. The Mayor of Philadelphia, 
 
 gan, 560. A distinction is here taken between 21 (9 Harris) Penn. 147. Black, C. J., Wood- 
 
 the power of eminent domain and that of tax- ward, and Knox concurred in the judgment, 
 
 ation. I believe that in strict language the See, to same point, Moers v. City of Reading, 
 
 power of eminent domain, as the general 21 Penn. 188. In the last case, Lewis and 
 
 phrase, expreses the absolute power of the Lowrie, JJ., dissented. The discussion is 
 
 State over private property for all purposes ; able and interesting. 
 
 and that the power of taxation is but a branch ^[ Police Jury v. M'Donogh's Succession, 8 
 
 of it. But see post, p. 438; Commonwealth La. Ann. R. 341 ; New Orleans v. Graihle, 9 
 
 v. Alger, 7 Cush. 53, 85. L. Ann. R. 561. See also, in Kentucky, Slick 
 
 f See also Gumming v. Police Jury, 9 La. v. Maysville and Lexington R. R.,Co. 13 B. 
 
 Ann. R. p. 503. Monroe, p. 1 ; Justices of Clarke Co. v. The 
 
 % Municipality No. 2 v. White, 9 La. Ann. P. W. & K. R. Turnpike Co. 11 13. Monroe, 
 
 R. 447. 143 
 
POLICE POWERS. 435 
 
 tion, is not intended as a limitation of the exercise of those 
 police powers which are necessary to the tranquility of every 
 w ell ordered community, nor of that general power over private 
 property which is necessary for the orderly existence of all 
 governments. () It has always been held that the Legislature 
 
 (a) Police Powers. 
 
 See " Taxation v and " Eminent Domain." 
 
 In very many instances summary proceedings, without the usual forms of a reg- 
 ular judicial trial, have been held valid as falling within the police powers of the 
 Government. The .basis of these powers, their object, and the principles by which 
 they are regulated and limited, are stated at large in the text. This note will be an 
 abstract of illustrative cases, rather than a re-discussion of the underlying principles. 
 It will be seen that, while the existence of these power? is universally admitted, and 
 while there is a general agreement in the statement of abstract principles, there is 
 some discrepancy in the application of these principles by the courts to given facts 
 and transactions. This could hardly be avoided. There being, on the one hand* 
 the great constitutional protection to life, liberty, and property in the guaranties of 
 jury trial, due process of law, and the like; and the necessities of society and good 
 government demanding, on the other hand, a certain amount of summary and repres- 
 sive measures, measures which would lose all their beneficial effect if hampered by 
 the somewhat cumbrous and dilatory machinery of the more regular judicial trial, 
 different courts will naturally give a greater or a less force, breadth, and extent to 
 these exceptional species of governmental authority, as they chiefly consider and are 
 affected by the interests of society, or by the rights of the individual. Those judges 
 who fix their attention upon the interests of organic society, and suffer their field of 
 vision to be filled by that object of contemplation, will allow the exceptional police 
 powers to encroach upon the constitutional safeguards established for the protection 
 of the individual ; while the judges who exalt the rights of the individual citizen, 
 and are apt to forget the claims of the whole body politic, of which the individual 
 is but a unit, will curtail these exceptional police powers within the narrowest 
 limits. Hence the discrepancy and conflict of decision we have mentioned a con- 
 flict, however, which arises in matters of detail, rather than in the broad generaliza- 
 tions in which the powers themselves must be theoretically expressed. We shall, there- 
 fore, in this note, state the decisions in the most condensed manner, and refer the 
 reader for any discussion to the cases themselves. 
 
 Summary statutory proceedings for the seizure, detention, and sale of stray 
 animals running at large have been sustained. Hard v. Nearing, 44 Barb. 472; 
 Campbell v. Evans, 45 N. Y 356; Cooke v. Gregg, 46 K Y. 439; Squares v. Camp- 
 bell, 60 Barb. 391 ; Gosselink v. Campbell, 4 Iowa, 296 ; Roberts v. Ogle, 30 111. 459. 
 But otherwise as to animals found trespassir.g on private inclosures. Rockwell v. 
 Nearing, 35 N. Y. 302 ; and see Fox v. Dunckel, 55 Barb. 4?1 ; Donovan v. Vicksburg, 
 29 Miss. 247. 
 
 An act allowing " floating logs " to be taken up, and, if not redeemed within two 
 months, to become the property of the captor, without notice to the owner, &c., was 
 held void in Pennsylvania. Craig v. Kline, 65 Penn. St. 399. 
 
 A statute for the abating a nuisance does not take away property without due 
 process of law, for the common law recognized the power to abate a nuisance in a 
 
436 POLICE POWERS. 
 
 may make police regulations, although they may interfere with 
 the full enjoyment of private property, and though no compen- 
 
 suminary manner; but it seems the Legislature cannot make that a nuisance which 
 \vas not so at the common law, so as to be liable to summary abatement. Coe v. 
 Schultz, 47 Barb. 64 ; and see Roberts v. Ogle, 30 111. 459. Thus, a city ordinance 
 declaring a wharf a nuisance, when it is not so within any general law of the State 
 or city, is invalid. Yates v. Milwaukee, 10 Wall. 497. But see cases cited below 
 sustaining statutes which declare that spirituous liquors are a nuisance, and the sale 
 of them a nuisance. 
 
 "Dog laws " (so called) were held constitutional in Mitchell v. Williams, 27 Incl. 
 62; State v. Cornwall, 27 Ind. 120; Blair v. Forehand, 100 Mass. 136. Also a law 
 for the removal of dead animals, and that no action lay for the value of their car- 
 casses. Underwood v. Green, 3 Robt. 86. And an ordinance of a board of health as 
 to slaughter-houses, prohibiting their erection within certain limits. Ex parte 
 Sbrader, 33 Cal. 279. And harbor regulations. Roosevelt v. Godard, 52 Barb. 533. 
 As to drains, see West v. B. P. Draining Co. 32 Ind. 138; and, also, see " Eminent 
 Domain." 
 
 As to police powers over interments of the dead, see Kincaid's Appeal, 66 Penu. 
 St. 411, in which case a statute authorizing the sale of a burying-ground, and disiu- 
 terment of the bodies, the proceeds of sale to be applied to the expense of removal, 
 was upheld. 
 
 Laws declaring places kept for the illegal sale of intoxicating liquors to be nui- 
 sances have been held valid. Commonwealth v. Howe, 13 Gray, 26. And laws for 
 the forfeiture of liquors. Gray v. Kimball, 42 Me. 299; State v. Miller, 48 Me. 576; 
 Our House v. State, 4 Greene (Iowa), 172; State v. Brennan's Liquors, 25 Conn. 
 278 ; Gill v. Parker, 31 Vt. 610; Santo v. State, 2 Clarke (Iowa), 165 ; per contra, see 
 Hibbard v. People, 4 Mich. 125, there being no provision for notice or trial; a 
 fortiori prohibitory laws are valid. People v. Gallagher, 4 Mich. 244. A statute 
 prohibiting the distillation of grain was held valid, in Ingram v. State, 39 Ala. 
 247. But the entire prohibition of manufacture and sale of liquor, except to State 
 agents, and by them for medicinal purposes, was held void in State v. Beebe, 6 Ind. 
 501. 
 
 License laws regulating the sale of liquors are valid. Keller v. State, 11 Md. 
 525 ; Mason v. Lancaster, 4 Bush (Ky.) 406 ; Metropolitan Board v. Barrie, 34 N. 
 Y. 657; Perdue v. Ellis, 18 Geo. 586. The sale of liquors within a certain dis- 
 trict, e. g., within five miles of a college, may be prohibited. Dorman v. State, 34 
 Ala. 216. 
 
 A statute requiring a license fee to be paid to a charity by persons following oc- 
 cupations affectirfg the public morals, a. g., theatrical exhibitions, is a proper exercise 
 of the police powers. Charity Hospital v. De Bar, 1 1 La. Ann. 385 ; and see " Tax- 
 ation." And so, also, is an act requiring the gauging of casks, &c., by a public 
 gaugtr, and providing for his fees. Addison v. Saulnier, 19 Cal. 82. That the police 
 power does not extend to capitation tax upon any class of foreigners qua foreigners, 
 as such a tax would interfere with the power of Congress over commerce, see Lin 
 Sing v. Washburn, 20 Cal. 534. 
 
 Petty offenses may be restrained by summary proceedings under the police 
 powers ; on this principle, a city ordinance for the summary conviction and punish- 
 ment of lewd women was upheld in Shafer v. Murama, 17 Md. 331. But a statute 
 
POLICE POWERS. 437 
 
 sation is given. So, an act authorizing harbor-masters to direct 
 vessels where to station, though interfering with private en- 
 
 authorizing the arrest of a person disobeying orders, &c., at a fire, and his detention 
 until the fire should be extinguished, was held void, as it contained no provision for 
 a trial. Judsou v. Reardon, 16 Minn. 431. And imprisonment of children without 
 crime cannot be justified under the police power. People v. Turner, 55 HI. 280. 
 
 " Law of the land," in prosecutions for offenses punishable capitally, or by in- 
 famous punishment, includes and requires indictment by a grand jury. Jones v. 
 Bobbins, 8 Gray. 329. 
 
 The constitutional guaranty may be waived. Thus, a person becoming surety on 
 an appeal bond, under a statute authorizing judgment to be entered summarily on 
 the bond against him, cannot object to the validity of the statute. Chappee v. 
 Thomas, 5 Mich. 53; Davidson v. Farrell, 8 Minn. 258. And the same was held in 
 respect to sureties in replevin. Pratt v. Donovan, 10 Wise. 378. But the court was 
 equally divided in respect to the validity of a similar statute in case of a criminal 
 recognizance, Lang v. People, 14 Mich. 439, and were of opinion that a similar 
 statute authorizing summary process against the sureties of a town treasurer was void. 
 Lenz v. Charlton, 23 Wise. 478. 
 
 Statutes for the protection of the public safety and promotion of the public good 
 have been held valid under the police power, although, within certain reasonable 
 limits, they departed from the regular form of judicial proceeding, were summary in 
 their operation, and caused injury and loss to individuals. 
 
 As illustrations : an act providing that the owner of unfenced land should have 
 no action for trespass by cattle thereto was sustained in Myers v. Dodd, 9 Ind. 
 290. A statute prohibiting the keeping of slaves on a plantation without a white per- 
 son also present. Molett v. State, 33 Ala. 408. An act requiring railroads to rebuild 
 fences destroyed by fire along their tracks. Penn. R. R. v. Riblet, 66 Penn. St. 164. 
 
 But where the convenience and safety of travelers are provided for in the. charter 
 of a road, and penalties affixed, a subsequent statute making the forfeiture of the 
 charter a penalty for neglect in keeping any part of the road in repair cannot be 
 sustained as a valid exercise of the police power. People v. Jackson, &c. PI. R. 9 
 Mich. 285. 
 
 It is within the police power to compel fishways to be made by private owners 
 in their established dams in unnavigable streams. State v. Franklin Falls Co. 49 
 N. H. 240. But would not be if the owners had acquired a prescriptive right as 
 against the public. Ibid. p. 251. The court held, however, that no such right had 
 been acquired even by twenty years' user. 
 
 The United States has no police powers within State limits. United States v. De 
 Witt, 9 Wai. 41. 
 
 The provisions of the United States Constitution as to due process of law are not 
 restrictions upon the States. Twitchell v. Commonwealth, 7 Wai. 321. 
 
 The act of Congress of 6th August, 1861, requiring the President in certain cases 
 to cause certain property " to be seized and confiscated and condemned,'' did not 
 authorize it to be done except by due process of law. Hodgson v. Millward, 3 
 Grant's Cas. (Penn.) 406. The act of Congress of March 3, 1863, making the order 
 of the President a defense against any action to recover damages for any search, 
 seizure, etc., made by its authority, was held unconstitutional in Griffen v. Wilcox, 
 21 Ind. 370 ; and see Drehman v. Stifle, 8 Wai. 595. 
 
438 POLICE POWERS. 
 
 gao-ements, is not a violation of the Constitution.* A statute 
 
 fe o 
 
 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 Legislature to regulate 
 and restrain such particular use of property as would be in- 
 jurious to the public.f 
 
 In the same State it 13 well settled that the Legislature has 
 power to make regulations in the nature of police regulations, 
 which, though affecting the value and even the enjoyment of 
 private property, are held not to conflict with the constitutional 
 provisions devised to secure and protect private property. By 
 an ordinance passed in 1641, by the colony of Massachusetts, 
 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, beyond which no wharf shall be extended or main- 
 tained, and to prohibit building beyond such lines ; and such 
 statutes, although they make no compensation to the proprie- 
 tors, 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 out of the nature of well-ordered 
 civil society, thaj 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 border- 
 ing on tide-waters, is derived directly or indirectly from the Government, and 
 
 * Vanderbilt v. Adams, 7 Cowen, 349. tremely difficult to lay down any general 
 
 f Commonwealth v. Tewksbury, 11 Met. rule. 
 
 65. It was well said, in this case, to be ex- \ Commonwealth v. Alger, TCush. 53, per 
 
 Shaw, C. J. 
 
POLICE POWERS. 439 
 
 held subject to those general regulations which are necessary to the common 
 good and general welfare. Rights of property, like all other social and con- 
 ventional rights, are subject to such reasonable limitations 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 different 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 provid- 
 ing 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 manner of wholesome and reasonable laws, statutes, 
 and ordinances, either with penalties or without, not repugnant to the Con- 
 stitution, as they shall judge to be for the good and welfare of the common- 
 wealth, and of the subjects of the same. 
 
 It is much easier 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 govern- 
 ments, and where its fitness is so obvious that all 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 villages, 
 thereby raising noxious exhalations, injurious to health and dangerous to life. 
 
 Nor does the prohibition of such noxious use of property a prohibition 
 imposed because such use would be injurious to-the public although it may 
 diminish the profits of the owner, make it an appropriation 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 buildings 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. But he is restrained, not because the public have occasion to 
 make the like 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 from it, but 
 because it would be a noxious use, contrary to the maxim, sic utere tuo ut 
 alienum non Icedas. 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 
 
440 PUBLIC WATERS. 
 
 and circumstances of different cases are so various that it is often difficult to 
 decide whether a particular exercise 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 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 ownership. Whether any portion of this 
 sovereignty remained in the British crown, it is now immaterial to inquire ; 
 for it is quite certain that the entire right of property in the soil, 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 Parliament. 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 Govern- 
 ment for special purposes ; but the general jurisdiction remains with the 
 several States, subject, however, to such regulations as Congress may make in 
 the exercise of their admitted powers to regulate foreign commerce 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.f 
 
 . 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 compensation, 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 Jiquor or gunpowder. It is competent for the Legis- 
 lature to declare the possession of certain articles of property, 
 either absolutely or when held in particular places and under 
 particular circumstances, to be unlawful, because they would 
 be injurious, dangerous, or obnoxious. J 
 
 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 
 
 * Commonwealth v. Alger, 7 Cush. 53, 84. f Commonwealth v. Alger, 7 Cashing, 
 
 I have already, ante, p. 424, called attention to 53, 82, citing New Orleans v. The United 
 
 what I suppose to be the true rules of term- States, 10 Pet. 662, 737 ; Pollard v. Hagan, 
 
 inology in regard to eminent domain and 3 How. 212. 
 
 taxation. \ Fisher v. McGirr, 1 Gray, pp. 26, 41. 
 
PUBLIC WATERS. 441 
 
 cannot interfere with its use without adequate indemnity. But. 
 the contrary has been decided. In Massachusetts, an act of 
 the Legislature authorizing the building of a bridge over 
 navigable waters within the limits of the commonwealth, has 
 been held not unconstitutional. The Legislature are to deter- 
 mine when the public convenience and necessity require such 
 an obstruction to navigation, and upon what terms and con- 
 ditions it shall be allowed. It has power to regulate and 
 control by .law, all 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 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 subsequent 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 legislation, 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. | So 
 
 * Commonwealth v. Breed, 4 Pick. 464. power of the judiciary over the subject. See 
 
 In this case it was insisted that the act was Stark v. M'Gowan, 1 Nott & M'Cord 11. 400, n. 
 obtained by fraud. The court said, " If a f Spring v. Russell et al 7 Greenleaf, 292 ; 
 
 legislative act may be avoided for this cause, where held that a plaintiff had no right of 
 
 yet fraud is always a question of fact pecul- action against certain canal proprietors who, 
 
 iarly within the province of a jury, and under the authority of the Legislature, had 
 
 cannot be inferred by the court." The ques- turned the channel of Saco river, and thus 
 
 tion whether and to what extent it can be prevented the plaintiff from floating his logs 
 
 shown that a given legislative act was ob- down the river, as he otherwise would have 
 
 tained by fraud, seems still open. In regard done. 
 
 to strictly private bills, strong arguments i Sleight v. Read, 18 Barbour, 159. 
 
 may be urged ; but there seems, even in f White v. White, 5 Barb. 474 ; Blood v. 
 
 these cases^ great difficulty in asserting the Humphrey, 17 Barb. 660. 
 
442 ALL PROPERTY CAX BE TAKEN. 
 
 ^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.* 
 
 Having arrived, therefore, at the result that the constitu- 
 tional 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 Legislature is the 
 sole judge of the exigency calling for the interposition of its 
 authority. 
 
 First, all property can be taken, no matter whether real or 
 personal, whether susceptible of manual possession or a mere 
 chose in action. So in Pennsylvania, 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 
 subject of compensation.f Thus a franchise to build and main- 
 tain a toll-bridge, may be appropriated, and the right of an in- 
 corporated 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. J So too in Vermont, it 
 has been decided that an act of the Legislature authorizing the 
 Supreme and County Courts to take the franchises of a turn- 
 pike corporation for a public highway, on making compensa- 
 tion, i constitutional.! So in New Hampshire, it has been 
 held that the franchises of a corporation may be taken by vir- 
 tue of the exercise of the power of eminent domain.^]" (ct) 
 
 * Moore v. City of New York, 4 Sandf. How. 83 ; Boston and Lowell R. R. Corp. v. 
 
 461. Salem and Lowell R. Co. 2 Gray, 1. 
 
 f North Perm. R. R. Co. v. Davis, 26 Penn. || Armington et al. \. Barnet et al. 15 
 
 R. (2 Casey) 238. Verm. 375; see the sagacious remarks of Mr. 
 
 \ West I {iver Bridge v. Dix, 6 How. 507 ; J. Reclfield, in this case, on the Charles River 
 
 Richmond F. and P. R. R. v. Louisa R. R. 13 Bridge Case, 11 Peters. 539. 
 
 T Backus v. Lebanon, 11 N. H. R. 19. 
 
 (a) What c<tn be Taken, All private property, except money, seems to be subject 
 to the right. The following are examples and illustrations. Buildings : Wells v. 
 Somerset &c. R. R. 47 Me. 345. Timber, stone, and materials for highways, as well 
 as land : Eldiidge v. Smith, 34 Vt. 484 ; Watkins v. Walker Co. 18 Tex. 585 ; Bliss 
 v. Hosmer, 15 Ohio, 44; Jerome v Ross, 7 Johns. Ch. 315; Wheelock v. Young, 4 
 Wend. G47 ; Lyon v. Jerome, 15 Wend. 569. Streams of water: Gardner v. New- 
 burg, 2 Johns. Ch. 162. Franchises, corporate or otherwise : Red River Bridge v. 
 
NECESSITY FOR TAKING. 443 
 
 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 in- 
 dividuals. " I admit," says Mr. Chancellor Walworth, " that 
 the Legislature are the sole judges as to the expediency of ex- 
 ercising the right of eminent domain for the purpose of making 
 public improvements either for the benefit of the inhabitants of 
 the State generally, or 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 (a) 
 
 * Varick v. Smith, 5 Paige, 160. f Spring v. Russell, 7 Greenl. 292. 
 
 Clarksville, 1 Sneed (Tenn.) 176; In re Kerr, 42 Barb. 119; White River Turnpike 
 Co. v. Vt. Cen. R. R. 21 Vt. 590 ; Forward v. Hampshire &c. Canal Co. 22 Pick 462 ; 
 Springfield v. Conn. R. R. R 4 Gush 63 ; Central Bridge Co. v. Lowell, 4 Gray, 474 ; 
 Boston Water Co. v. Boston &c. R. R. 23 Pick. 360 ; State v. Noyes, 47 Me. 189; 
 Crosby v. Hanover, 36 N. H. 404 ; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35 ; 
 Chesapeake &c. Canal Co. v. Baltimore &c. R. R. 4 Gill & J. 1 ; Newcastle &c. R. R. 
 v. Peru &c. R. R. 3 Ind. 464. 
 
 One railroad may be authorized to cross another on making compensation. Bal- 
 timore &c. R. R. v. Union R. R. 35 Md. 224 ; and a street may be laid out across a 
 railroad by a municipality under its general powers to lay out ways, but cannot, 
 without express grant of authority, be made to destroy or greatly injure the fran- 
 chise. Hannibal v. Hannibal & St. Jo. R. R. 49 Mo. 480. 
 
 Though the franchise and property of a corporation may be taken, its real prop- 
 erty situate in another State cannot be. Crosby v. Hanover, 36 N. H. 404. 
 
 All property can be taken. Bailey v. Miltenberger, 31 Penn. St. 37 ; People v. 
 Mayor, 32 Barb. 102. 
 
 Property may be taken even though the owner is under disabilities. East Tenn. 
 R. R. v. Love, 3 Head, 63. 
 
 (a) The Question what is a Public Use is a Judicial one. There are dicta holding 
 that the Legislature has absolute power to determine that a given purpose for which 
 it authorizes private property to be taken is a public use. It is strange that any 
 respectable judge should have expressed such an opinion, because it emasculates the 
 constitutional safeguard, and places private property at the mercy of the Legislature. 
 In fact, if this opinion were correct, the conceded doctrine that the Legislature can- 
 not authorize private property to be taken for a private use, would be overthrown. 
 But these dicta do not truly state the law. It is now settled that, while the Legis- 
 lative discretion is absolute as to the expediency or necessity of exercising the power 
 if the use is public, the Legislature cannot finally determine whether the use is pub- 
 lic; that question is a jud.cial one to be answered by the courts. Since the contrary 
 dictum of Chancellor Walworth in an early case, which has been carelessly repeated 
 by other judges, this subject has been carefully examined by able courts, and has 
 
444 NECESSITY FOR TAKING. 
 
 In New York, it has been decided that an act authorizing 
 commissioners to enter upon and appropriate the lands of* in- 
 dividuals for the purpose of draining a swamp, is a lawful ex- 
 ercise of the power of eminent domain, and the taking of such 
 lands as far as is necessary, 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 emi- 
 nent 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 * (a) 
 
 * Hartwell v. Armstrong, 19 Barb. 166. public at large benefited by the improvement, 
 But the condition of providing a full compen- and because the apportionment by area of 
 sation to the owner, is fundamental and im- surface was inequitable ; and the act was held 
 perative ; and where an act authorizing the void. The constitutionality of a law to drain 
 draining of a swanjp, provided that the dam- wet lands at the expense of others, is discussed 
 ages or compensation to the owners of lands in Woodruff v. Fisher, 17 Barb. 224; and it 
 tnken, should be made collectable and pay- was intimated that unless the work was for 
 able by assessing the same on the several the public good and not for private benefit, 
 owners of the land drained, according to the the act could not be sustained; but it was 
 number of acres respectively owned by each, said that perhaps after such an act of legisla- 
 it was held that this was not the just com- tion, it is to be presumed that the work will 
 pensation required by the Constitution, be- be beneficial to the owners of the lands gen- 
 cause the burden ought to be borne by the erally. 
 
 been put at rest. Indeed, every decision holding a statute invalid, on the ground 
 that the Legislature cannot take private property for a private use, involves the 
 same doctrine. Tyler v. Beacher, 44 Vt. 648 ; Loughbridge v. Harris, 42 Geo. 500 ; 
 Concord R. E. v. Greely, 17 N. H. 47, 57, 61 ; Talbot v. Hudson, 16 Gray, 417, 421 ; 
 Bankhead v. Brown, 25 Iowa, 540 ; Sadler v. Langham, 34 Ala. 311,326-328; Coster 
 v. Tide Water Co. 3 C. E. Green (N. J.) 54, 63 ; Harris v. Thompson, 9 Barb. 350, 362 ; 
 Matter of Townsend, 39 N. Y. 171, 174, 181. The true doctrine was very accurately 
 and comprehensively stated by Mr. Justice Woodruff in the case last cited, at page 
 174 of the report: "It has indeed been said that the right of eminent domain im- 
 plies the right in the sovereign power to determine the time and occasion and as to 
 what particular property it shall be exercised. Hayward v. Mayor &c. 7 N. Y. 325. 
 This can hardly %e supposed to import that the Legislature can, by its mere declara- 
 tion, override the Constitution ; that by declaring the use to be public, when it' is 
 within the Constitution a private use, it can authorize the property of one citizen to 
 be taken from him and given to another, for a compensation to be ascertained in the 
 manner above stated; but only that, where the use for which the property is desired 
 is in its nature public, the Legislature arc the supreme and final judges of the ques- 
 tion, whether the public necessity or benefit is such as to call for the exercise of the 
 power ; whether the time is a fitting one ; what particular property may be taken, 
 and in what manner in respect to the instrumentalities to be employed for the pur- 
 pose whether State officers, corporations, or individuals. All these are purely mat- 
 ters of discretion within the exclusive cognizance and jurisdiction of the Legislature, 
 and in those matters I apprehend no court can review its action." 
 
 (a) The Necessity, Expediency, or Propriety of the Taking. If the use be a public 
 
PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 445 
 
 Thus far we have observed that the clause in regard to 
 private property has no effect upon legislative supremacy in 
 
 one, the decision of the Legislature as to the necessity, expediency, or propriety of 
 the taking, and as to the manner and instruments of the taking, whether by the 
 State itself, or by individuals or corporations to whom the authority is delegated, is 
 final. Gilmer v. Lime Point, 18 Cal. 229 ; Ford v. Chicago &c. R. R. 14 Wise. 609 ; 
 People v. Smith, '21 N. Y. 597; Matter of Albany St. 11 Wend. 149; Bankhead v. 
 Brown, 25 Iowa, 540 ; Hays v. Risher, 32 Penn. St. 169 ; North Mo. R. R. v. Lack- 
 laud, 25 Mo. 515 ; North Mo. R. R. v. Gott, 25 Mo. 540 ; Concord R. E. Y. Greely, 
 17 N. H. 47; Matter of Townsend, 39 N. Y. 174; Contra Costa R. R. v. Moss, 23 Cal. 
 323 ; Coster v. Tide Water Co. 3 C. E. Green, 54 ; State v. Noyes, 47 Me. 189. The 
 Legislature may itself lay out a particular way, and its decision is final. Haverhill 
 Bridge v. County Commrs. 103 Mass. 120 ; see Matter of Central Park, 51 Barb. 277; 
 Lewis County v. Hayes, 1 Wash. T. 128. 
 
 The owner is not entitled to notice or hearing on the question of taking. People 
 v. Smith, 21 N. Y. 595. 
 
 Where the power has been delegated by the Legislature, the decision of the per- 
 son or corporation to whom the delegation is made, as to the expediency, etc., of the 
 taking, is in general final. Hannibal v. Hannibal & St. Jo. R. R. 49 Mo. 480; and 
 this decision of the depositary of the power is in general final as to the quantity to 
 be taken, if the purpose be a public use, unless perhaps in case of gross excess ; but 
 whether the purpose for which this depositary seeks to take the land is a public 
 use, is a judicial question, and the decision of the depositary is not final. Eldridge 
 v. Smith, 34 Vt. 484. In this case the railroad company having the general power 
 delegated to it, sought to condemn land for a manufactory of cars, and for dwellings 
 for its operatives, and the court held that it was transcending its delegated author- 
 ity. But in another case it was held that a railroad company, under its general 
 delegation of authority, might condemn land for its depots, engine houses, and re- 
 pair shops. Han. & St. Jo. R. R. v. Muder, 49 Mo. 165 ; Chicago &c. R. R. v. Wil- 
 son, 17 111. 123 ; Low v. Galena &c. R. R. 18 111. 324 ; Giesey v. Cincinnati &c. R. R. 
 4 Ohio, N. S. 308 ; New York &c. R. R. v. Kip, 46 N. Y. 546. This subject was 
 carefully considered and fully discussed in a recent case in New York. A railroad 
 company was acting under a statute which authorized it to take land " for any pur- 
 pose necessary to the operation of such railroad." It terminated at Whitehall, at 
 the head of Lake Champlain, and owned land covered by its track, depots, docks, 
 etc. It sought to acquire additional lands for buildings, docks, etc , "for a certain 
 anticipated increase of business" stated in its petition. There was no pretence that 
 the existing business of the railroad demanded the additional land, but it was 
 claimed in the petition that by certain charters granted in Canada, and certain ar- 
 rangements therein made, it was very probable that there would be a great increase 
 of business through Lake Champlain, and that to do the business when it came th^ 
 land sought to be taken would be necessary, and that :t was expedient to .take it 
 then. On appeal from an order appointing commissioners, the court held that by 
 the true construction of the statute delegating the power to take land, it was the 
 province of the court to determine whether the taking was necessary for the uses of 
 the corporation, and that the proposed taking in this instance was not necessary. 
 The court said (p. 146) : '' It may be safely asserted that the acquisition of lands for 
 the purpose of speculation or sale, or to prevent interference by competing lines or 
 
446 PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 
 
 regard to taxation or general police powers however thase 
 powers may be affected by other special constitutional clauses, 
 nor in regard to rights not vested at the time of the passage 
 of any given legislative 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 Leg- 
 islatures over private property. And of these the most im- 
 portant is whether, under our forms of government, and under 
 the operation of the constitutional clause above cited, private 
 property can be taken for any but public purposes, (a) 
 
 methods of transportation, or in aid of collateral enterprises remotely connected with 
 the running or operating of the road, although they may increase its revenue and 
 business, are not such purposes as authorize the condemnation of private property." 
 Rensselaer and Saratoga R. R. v. Davis, 43 N. Y. 137, 146. 
 
 In Louisiana, the decision of parish authorities that it is necessary to lay out a 
 public road may be reviewed by the courts. Le Coul v. Police Jury, 20 La. Ann. 
 3<>8. By some of the State Constitutions, the (i necessity" of the taking is submitted 
 to a jury; as in Michigan; see Mansfield &c. R. R. v. Clark, 23 Mich. 519. 
 
 It has been held in New York, that the Legislature may compel a municipality 
 (a town) to construct and pay for highways against its will. People v. Flagg, 46 
 N. Y. 401. But as the whole proceedings under the right of eminent domain are for 
 the public good and not for any private benefit, a municipality will not be compelled 
 by mandamus, at the suit of individuals, to complete the laying out of a street, where 
 the title to the land taken has not actually vested, but proceedings have been begun 
 and have been so far carried on that the complainants will be injured by the non- 
 completion of the improvement. State v. Graves, 19 Md. 351. 
 
 () What is a Public Use. It is now the settled doctrine throughout the several 
 States, that the business and purposes of railroads^ canals, public highways, turn- 
 pikes, bridges, and other such public means for travel and for the transport of goods, 
 are a public use within the meaning of the Constitution. The following cases must 
 be taken as illustrations of public uses, rather than as furnishing any general defini- 
 tion of what is such a use. Courts have carefully avoided giving any such definition. 
 The objects and business of acqueduct companies and water- works companies for the 
 supply of cities with water, are a public use. Redd all v. Bryan, 14 Md. 444 ; Burden 
 v. Stein, 27 Ala. 104 ; Lumbard v. Stearns, 4 Cush. 60; Mayor &c. v. Bailey, 2 Denio, 
 452, per Gardiner, president. The same is true of a gas company organized to con- 
 vey gas from a natural, spring or well to a city. Bloomfield &c. Gaslight Co. v. 
 Richardson, 63 Barb. 437. The sewerage of a city is a public use. Hildreth v. 
 Lowell, 11 Gray, 345. Also the raising the level of a district where drainage is so 
 defective as to be dangerous to public health. Dingley v. Boston, 100 Mass. 544 ; 
 and see Sessions v. Crunkilton, 20 Ohio N. S. 349. Some cases hold the drainage of 
 swamp lands, in order to make them more valuable, to be a public use. Egyptian 
 
PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 447 
 
 . It seems to be the sounder construction, that the declaration 
 that private property shall not be taken for public use without 
 compensation, hnpliedly prohibits private property being taken 
 
 Levee Co. v. Hardin, 27 Mo. 495; Tide-water Co. v. Coster, 3 C. E. Green (N. J.) 
 518; Matter of Drainage &c. 6 Vroom, 497, where the object was to make the 
 lands fit for cultivation and habitation, as well as to promote health. But other 
 cases hold that the public use of such systems of drainage lies in the benefit to the 
 public health. Hartwell v. Armstrong, 19 Barb. 166; People v. Nearing, 27 N. Y. 
 306; Cypress &c. -Co. v. Hooper, 2 Mete. (Ky.) 350; Anderson v. Kerns Drainage Co. 
 14 Ind. 199, 202. In this last case it was expressly held that, while draining swamp 
 lands for purposes of health was a public use, such draining for purposes of making 
 the lands more valuable was not. 
 
 And, in Ohio, an act for laying out drains by township trustees at the request of 
 individual owners, without limiting such action to cases where the public good re- 
 quired it, was held invalid as being for a private use. Reeves v. Wood County, 8 
 Ohio, N. S. 333. 
 
 Provisions and means for removing dams and permitting stagnant and offensive 
 waters to flow off, thus improving the health of a whole district, are a public use. 
 Miller v. Craig, 3 Stockt. (N. J.) 175; Talbot v. Hudson, 16 Gray, 417. 
 
 Taking land for a public school-house is taking it for a public use. Williams v. 
 School Dist. 33 Vt. 271 ; Long v. Fuller, 68 Penn. St. 170 ; Township v. Hackrnan, 
 48 Mo. 243. And for a fort. Gilmer v. Lime Point, 18 Cal. 229. And for a public 
 burying ground. Edwards v. Stonington Cemetery Ass. 20 Conn. 466. 
 
 It is a public use though the pleasure of the public is chiefly concerned, as in a 
 park or public square. Matter of Central Park, 63 Barb. 282. Or in a highway laid 
 out for pleasure travel. In re Mt. Washington R. R. 35 N. H. 134. Railroads may 
 take land for purposes properly incidental to their legitimate business, such as depots, 
 engine houses, repair shops. Han. & St. Jo. R. R v. Muder, 49 Mo. 165 ; Chicago 
 &c. R. R. v. Wilson, 17 111. 128 ; Low v. Galena &c. R. R. 18 111. 324 ; Giesey v. Cin- 
 cinnati &c. R. R. 4 Ohio, N. S. 308 ; N. Y. &c. R. R. v. Kipp, 46 N. Y. 546. But not 
 for a manufactory of cars, or for dwellings for its operatives. Eldridge v. Smith, 34 
 Vt. 484. 
 
 In some of the States statutes have been in existence from an early day which 
 authorize land to be taken for mill dams, mill sites, and the like. These statutes 
 have been sustained in some New England States, and in a few Western States. 
 Hazen v. Essex Co. 12 Gush. 475 ; Boston and Roxbury Mill Co. v. Newman, 12 Pick. 
 467 ; Fisk v. Framingham Man. Co. 12 Pick. 68; Great Falls &c. Co. v. Fernald, 47 
 N. H. 444 ; Olmstead v. Camp, 33 Conn. 532 ; Todd v. Austin, 34 Conn. 78 ; Jordan v. 
 Woodward, 40 Me. 317 ; Miller v. Frost, 14 Minn. 365 ; Newcomb v. Smith, 1 Chand. 
 (Wise.) 71 ; Thien v. Voigtlander, 3 Wise. 461 ; Pratt v. Brown, 3 Wise. 603. On 
 the contrary, such statutes are held invalid, and the taking of land for mill pur- 
 poses is held to be a taking for private use, in Sadler v. Langham, 34 Ala. 311 ; Tyler 
 v. Beacher, 44 Vt. 648 ; Loughbridge v. Harris, 42 Geo. 500 ; Hay v. Cohoes Co. 3 
 Barb. 47. And an early Tennessee case (Harding v. Goodlett, 3 Yerg. 41), which 
 had sustained the validity of such a statute, was recently overruled in Memphis 
 Freight Co. v. Memphis, 4 Cold. 419. 
 
 A corporation was created to unload and move freight in Memphis, and was au- 
 thorized to take private property for sheds, tracks, &c., to be used in its said busi- 
 
448 PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 
 
 for private use at all. So, in New York, tlie Supreme Court Las 
 said, " The Constitution, .by authorizing the appropriation of 
 
 ness. This delegation of power was held void, and the use a private one. Memphis 
 Freight Co. v. Memphis, 4 Cold. 419. 
 
 Taking land for a " township road," is taking it for a public use. Ferris v. 
 Bramble, 5 Ohio, N. S. 109. Also for lateral and quasi private, railroads. Bailey v. 
 Miltenberger, 31 Penn. St. 37. These decisions are based upon the peculiar local 
 systems of the States in which they were rendered, and upon the fact that the '' town- 
 ship roads" and "lateral railroads" spoken of are essentially public highways. 
 Laud cannot be condemned for private ways, and statutes authorizing such, taking 
 for ways which are really private are invalid, although the ways may be designated 
 *' neighborhood roads." Dickey v. Tennison, 27 Mo. 373 ; Nesbitt v. Trumbo, 39 111. 
 110; Crear v. Crossly, 40 111. 175; Bankhead v. Brown, 25 Iowa, 540; Osborn v. Hart, 
 24 Wise. 89. 
 
 An act providing for the extinguishing of ground rents on payment by owner of 
 the fee of the value as found by a jury was held void, in Pennsylvania, on the 
 ground that it was taking property for a private use. Palairet's Appeal, 67 Penn. 
 St. 479. 
 
 The use is a public one within the meaning of State Constitutions, although it 
 is the public of the United States that is to be benefited, and the proceedings are insti- 
 tuted in State courts under the State Constitutions. Gilmer v. Lime Point, 18 Cal. 
 229 (case of a fort) ; Redall v. Bryan, 14 Md. 444 (case of water-works for Washing- 
 ton city) ; Burt v. Merchants' Ins. Co. 106 Mass. 356 (site for a post-office). But the 
 Supreme Court of Michigan has recently held the contrary doctrine in proceedings 
 to condemn land for the use of the United States for a lighthouse. Trombly v. 
 Humphrey, 23 Mich. 471. It seems to be conceded in New York, in a recent case, 
 that the taking may be for the benefit of a neighboring State, e. </., that land might 
 be taken for a reservoir in New York for the use of a canal incorporated and located 
 in Pennsylvania. Matter of Townsend, 39 N. Y. 171. 
 
 While the courts have, in numerous instances, thus pronounced some particular 
 object to be or not to be a public use, they have not attempted to construct any 
 formula by which such uses are to be determined ; they have seldom even endeavored 
 to lay down any general principle which might be helpful in constructing a defini- 
 tion. It is possible, nevertheless, to reach some broad generalizations from the 
 materials furnished by the decisions. This process will not lead us to any single 
 and comprehensive definition ; it will consist simply in a statement of certain classes 
 of objects which are public uses, and of the principles by which these classes may be 
 ascertained and determined. As a preliminary, we shall quote the language of a few 
 recent cases. In Todd v. Austin, 34 Conn. 78, a strong attack was made upon the 
 flowage and mill acts of the State, but their validity was sustained. The court was 
 driven, by the necessities of its position, to give a broad construction to the phrase 
 " public use," and it did so, without flinching, in the following manner : " The 
 Legislature may lawfully grant rights of easement to individuals or corporations, to 
 enable them to erect and operate structures, if the result of their operation is the 
 production of an article or thing intended to be furnished or sold to the public for 
 a beneficial use, and to supply their reasonable wants. This proposition covers the 
 case in hand, for the flowage law is intended to grant rights of easement which will 
 enable individuals or corporations to _ enlarge -or erect and operate structures, the 
 
PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 449 
 
 private property to public use, impliedly declares that, for any 
 other use, private property shall not be taken from one and ap- 
 
 result or product of the operation of which will be articles, such as cotton or woolen 
 doth and the like, intended to be sold to the public for their necessary and beneficial 
 use." Per Butler, J., p. 90. The " public " here means simply the customers, the 
 persons who chose to buy the cotton cloth or other articles. If this principle be 
 correct, every lawful trade or business or profession, in which a person is a producer, 
 is a " public use." Other courts, however, are not so sweeping and inclusive in their 
 definitions. In Gilmer v. Linie Point, 18 Cal. 229, land was taken for the United 
 States for a fort. The question most discussed was whether property could be con- 
 demned in and by State courts for the use of the United States, it being conceded 
 that a fort was a public use, if the United States was a proper public. Baldwin, 
 J., said (p. 251) : " The words public use here mean a use which concerns the whole 
 community, as distinguished from a particular individual, or a particular number of 
 individuals. It is not necessary, however, that each and every member of society 
 should have the same degree of interest in this use, or be personally or directly 
 affected by it, in order to make it public. * * * If the use for which the property 
 is taken be to satisfy a great public want or exigency, it is a public use within the 
 meaning of the Constitution." Again (p. 252) : " This public use need not be a use 
 general or common to all the people of the State alike. It may be a use in which 
 but a small portion of the public will be directly benefited, as a street in a town, a bridge, 
 or a railroad, necessarily local in its benefits and advantages, though it must be of 
 such a character as that the general public may, if they choose, avail themselves of 
 it." In Memphis Freight Co. v. Memphis, 4 Cold. 425, the court said : " There is a 
 distinction between a public use and a public convenience. To authorize the taking 
 of private property for public use, the use must be for the people at large for trav- 
 elers, for all and must also be compulsory by them, and not optional with the cor- 
 porators ; must be a right in the people, and not a favor ; must be under public 
 regulations as to tolls, &c., &c. But when it is a public convenience merely, the 
 right to take private property does not exist." The doctrine of " public use," which 
 seems to be correct, and which must be correct, unless the door is opened to all business 
 and private enterprises that may be a convenience to customers, was admirably stated 
 by the court in the very recent case (1871) of Tyler v. Beach er, 44 Vt. 656, on a 
 petition to condemn land for a grist mill. " As to railroads, in respect to the public. 
 all persons have the right to ride, and to have property carried on them in the 
 vehicles of the road, upon payment of a common charge. As to turnpikes, all 
 persons may pass and carry on them in their own vehicles, upon payment of a com- 
 mon toll. All who have occasion may use ways. School-houses are instruments of 
 a system that is maintained for all the people of the State. The public, or some 
 essential part of it, has the right to have, and has, to some extent, the actual use and 
 enjoyment of all these ; and the takers of property for them are, in some sense, agents 
 for the State in, taking, and trustees for the public in holding the property taken, al- 
 though they go into the enterprises, in some caises, merely for private gain. In this 
 case the public would not take through the petitioner, but the petitioner would take for 
 himself; and the petitioner would not hold as a trustee for the public, but only for 
 himself. It is to be considered that this taking would be for the public benefit, for 
 such is the effect of the finding [in the court below] ; but the benefit would not arise 
 out of any use the public would acquire by the taking, but out of the better use the pet i- 
 29 
 
450 PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 
 
 plied to the private use of another.* So, again, in the Court of 
 Errors, Mr. Senator Tracy said, that the words " private prop- 
 erty shall not be taken for public use without just compensa- 
 tion, should be construed as equivalent to a constitutional 
 declaration that private property, without the consent of the 
 
 * In the matter of Albany street, 11 "Wend, to take more of the land of an individual for 
 161. In this case it was held that the corpo- the purpose of a street than was actually re- 
 ration of the city of New York had no power quired for that purpose. 
 
 tloner would make of the property taken than the respondents would.' 1 '' This seems to 
 state very accurately the distinction between a "use "by the public, and a mere 
 " benefit" to the public from somebody else's use a distinction which some courts 
 have overlooked. Clearly, under the constitutional provision, the public must, in 
 some sense, use the property taken. See also the observations of the court in Coster 
 v. Tide-water Co. 3 C. E. Green, pp. 63 to 65, 66, 68 ; and in Sadler v. Langham, 34 
 Ala. pp. 323 to 326, 330. 
 
 From the cases above cited in this note, it is beyond dispute that the use is 
 public : (1.) Where the object is purely governmental, as a fort, a public school- 
 house. Under this head would be included court houses, state houses, and other 
 governmental buildings. Here, as the use is for the State or United States, in 
 its corporate capacity, every member of the body politic has a legal interest and a 
 legal right. (2.) In the case of highways, turnpikes, bridges, canals, railroads, 
 ferries, and all other such public means of travel and of transport. In all the in- 
 stances of this class, the use is legally for the entire public ; the common interest 
 and common right to the enjoyment of the use exist in the whole people of the 
 State. It is a complete misconception of legal principles, and a perversion of legal 
 terms, to say of such a use, that.it is for the benefit solely of some particular locality, 
 because the inhabitants of that locality most frequently avail themselves of its ad- 
 vantages. The very essence of such a use is that every member of the State has an 
 equal right to enjoy the use. (3.) There is a third class in which the use is restricted 
 to a particular locality or community, and in which all the members of such com- 
 munity, or inhabitants of such locality, are necessarily interested in and benefited by 
 the use that is, by what makes the use public, rather than private. And it seems 
 to us that the feature in all the instances of this class which has this public charac- 
 ter, and in which all the members of the special community are thus necessarily 
 interested, is the promotion of the common health. In this class fall the cases which 
 uphold the swamp draining, the sewerage of cities, the removal of dams and stag- 
 nant waters, and the like. Here also belongs the case of water supply for cities, 
 water being a sanitary necessity to the whole community as much as air. 
 
 Tliere are several cases cited above, most of them relating to the "flowage" and 
 " mill " statutes, which certainly do not fall within either of these classes. The doc- 
 trine of these cases is not universally accepted ; able courts deny its correctness ; it 
 cannot be sustained on principle, unless we adopt the logical reasoning and con- 
 clusions of the Connecticut decision cited above ; and to do this is to sweep away 
 the constitutional safeguards, and to place private property at the mercy of the 
 Legislature for uses and purposes which are as truly private as the lawful business of 
 every citizen. 
 
 For further discussion of this topic, see " Taxation." 
 
SPECIAL CASES. 451 
 
 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 dis- 
 cussed at length. 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 statute which 
 authorizes the transfer of one man's property to another, with- 
 out the owner's consent, is unconstitutional and void, although 
 
 ' / O 
 
 compensation be made. So, a city corporation cannot, for the 
 purpose of making a street, take the whole of a lot, if a por- 
 tion only be wanted for the object ; and the act under which 
 the proceedings are had must be read as if containing a proviso 
 that the owner's consent as to the part not actually needed 
 otherwise the act is unconstitutional and void, f 
 
 Having thus considered the nature of the power of eminent 
 domain so far as it is intended to be limited by the constitu- 
 tional restriction, before proceeding to the second head that 
 of delegation of the power some other decisions in regard to 
 this constitutional clause, growing out of circumstances peculiar 
 to the several States of the Union, may be noticed here. In 
 New York it has been held that the statutory provisions which 
 authorize towns to determine when cattle may run at large on 
 highways, are unconstitutional and void, inasmuch as they 
 authorize the appropriation without compensation of the 
 grass and herbage on the track of highways, which, subject 
 to the public right of way, are the property of private pro- 
 prietors.;); 
 
 In the same State, the general highway act giving to com- 
 missioners 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, be- 
 
 * Bloodgood v. The Mohawk and Hudson Taylor v. Porter, 4 Hill, 140 (ante) Beekman 
 
 R. R. Co. See 18 Wend. 9 and 59; see, also, v. Saratoga and Schy. R. R. Co. 3 Paige, 73 ; 
 
 matter of John and Cherry streets, 19 Wend, and Varick v. Smith, 5 Paige, 159. 
 659, and Varick v. Smith, 5 Paige, 137. \ Tonawanda Railroad Co. v. Munger, 5 
 
 f Embury v. Conner, 3 Corns. 511, and Denio, 255. 
 cases cited. The same doctrine is asserted in 
 
452 DELEGATION OF THE POWER. 
 
 cause 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 exist- 
 ence or a government.* 
 
 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 
 constitutionally appropriate it to the use for which it was 
 meant without compensation, f 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 
 
 O 
 
 an amount which, if added to the present value of his laud, 
 would make it worth as much as it was before the road was 
 made.if 
 
 An act of the Legislature of Massachusetts incorporated an 
 aqueduct company for the purpose of supplying a village with 
 pure water, with authority to take springs ; but the act did not 
 in terms require the corporation to supply, on reasonable terms, 
 all persons applying for water. It was insisted that this act 
 w r as 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 oppressively, to enhance the value 
 of certain estates by furnishing 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.(a] Hav- 
 ing thus attempted to define the limits of the legislative power 
 
 * Wallace v. Karlenowefski, 19 Barb. 118 ; \ Plank Road Co. v. Thomas, 20 Penn. R. 
 
 Gould v. Glass, 76. 179. 93. 
 
 j- Plank Road Company v. Thomas, 20 || Lumbard v. Stearns, 4 Cush. 60. 
 
 Penn. R. 93. 
 
 (a) Who can take. It is settled by the uniform course of decision that the 
 power to take may be delegated to corporations or to individuals. But the intent 
 to delegate the power must clearly appear. Thus, where a statute authorized cer- 
 tain officers to " provide " a small-pox hospital, this was held not to authorize a con- 
 demnation of private property. Markham v. Brown, 37 Geo. 277. And a power to 
 condemn land for " public grounds, squares, streets, alleys or highways " does not 
 
DELEGATION OF THE POWER. 453 
 
 in regard to private property, the next important question 
 arises, by whom the power must be exercised. It has been in- 
 sisted that the power of taking property by virtue of the right 
 of eminent domain, must be exercised by the State directly, 
 without the intervention of any intermediate agents ; but all 
 doubts in regard to this 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 railroads and other similar public works, either di- 
 rectly or through the medium of corporations or joint-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 payment of the 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 con- 
 structing wharves and basins ; of establishing ferries ; of drain- 
 ing swamps and marshes, and of bringing water to cities and 
 villages, the object of the legislative grant of power is the pub- 
 lic 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 individuals taken by railroad companies and simi- 
 lar corporations under their charters is, from the public bene- 
 fits resulting therefrom, to be deemed to be taken for the pub- 
 
 * Bloodgood v. Mohawk and Hudson R. f Beekman v. The Saratoga and Sch'y 
 
 R. Co. 18 Wend. 9 ; s. c. in error, 18 Wend. R. R. Co. 3 Paige, 75, per Walworth, Ch. 
 17, 78. 
 
 include the power to condemn for a city prison. East St. Louis v. St. John, 47 111. 
 463. 
 
 As the Legislature may itself lay out roads, it may do so through commissioners. 
 Matter of Central Park, 51 Barb. 277. 
 
 As to whether the United States can exercise the power of eminent domain within 
 the territory of the States, and as to whether the power can be exercised by the 
 State courts in its behalf, see Gilmer v. Lime Point, 18 Cal. 229 ; Redall v. Bryan, 14 
 Md. 444 ; Trombly v. Humphrey, 23 Mich. 471 ; Burt v. Merchants' Ins. Co. 106 
 Mass. 356. 
 
451 WHEN PROPERTY DEEMED TAKEN. 
 
 lie 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 1787, it is among other things pro- 
 vided that no man shall be deprived 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 com- 
 mon preservation, to take any person's property, or to demand 
 his particular services, full compensation shall be made for the 
 same. This provision was evidently framed with a jealous eye 
 to arbitrary executive power, and was not designed to restrict 
 judicial or legislative authority, but rather to limit and confine 
 the power over persons and property to them ;" and under the 
 above clause it was held, that the territorial legislature could 
 lawfully authorize a railroad corporation to take private prop- 
 erty for their use ; in other words, that the power of eminent 
 domain could be delegated.f 
 
 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 grinding 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 proprietors, on the ground of the 
 public utility of having such a mill, where each individual had 
 an equal right to be served. J 
 
 WJien Property is Deemed to be Taken, (a) The next prin- 
 
 * Bradley v. N. Y. and N. H. R. R. Co ing the same. Swan v. Williams, 2 Michigan, 
 
 21 Conn. 294. 427. 
 
 f In this case, it was also held that it was \ Harding v. Goodlet, 3 Yerger, 41. In 
 
 no objection to the charter of a railroad, in a New Hampshire it has been said by the Su- 
 
 constitutional point of view, that it did not preme Court of that State, that the power of 
 
 provide for notice to the owners of the lands, eminent domain may be exercised either 
 
 of proceedings to assess the damages for tak- through the action of general laws or of judi- 
 cial tribunals. Bachus v. Lebanon, 11 N. H. 19. 
 
 (a) What Constitutes a Talcing of Private Property for Public Use. Under certain 
 circumstances by the exercise of the police powers of the government, private prop- 
 erty may be seized, confiscated, destroyed, interfered with, regulated or injured, and 
 these acts will not constitute a taking for public use within the meaning of the Con- 
 stitution. Such governmental acts are not done by virtue of the power of eminent 
 domain. Some illustrations of this general principle are given. Ditches and drains 
 may be required to be made under the police power. Sessions v. Crunkilton, 20 
 Ohio N. S. 349 ; O'Reiley v. Kankakee &c. Co. 32 Ind. 169, 191. A law for the 
 
WHEN PROPERTY DEEMED TAKEN. 455 
 
 cipal subject of inquiry in regard to the guaranty of private prop- 
 erty, is as to what taking or appropriation the limitation applies. 
 
 seizure and forfeiture of bread illegally baked is valid. Guillotte v. New Orleans, 
 12 La. Ann. 432. And a law for the killing of dogs found abroad without a collar. 
 Morey v. Brown, 42 N. H. 873. It has been held in California that the necessary 
 destruction of private property by a public officer to stay a conflagration, is not a 
 taking for public use. Sorocco v. Gearry, 3 Cal. 69. And the same was held in 
 Minnesota when the destruction was not by authority of law. McDonald v. Red 
 Wing, 13 Minn. 38; and see Reynolds v. Schultz, 4 Robt. (N. Y.) 282. 
 
 For cases where statutes for the confiscation of liquors have been sustained, see 
 State v. Brennan's Liquors, 25 Conn. 278 ; Oviatt v. Pond, 29 Conn. 479. 
 
 Indirect and Consequential Injury. For an exhaustive discussion of this subject, 
 and a review of the authorities, see the recent case of Eaton v. Boston &c. R. R. 51 
 N. H. 504, 511. It is the settled doctrine of the States that under the general pro- 
 vision common to most of the Constitutions, and in the absence of any different stat- 
 utory rule, there must be some actual, direct, physical interference with the property 
 or some part thereof, to constitute the " taking " spoken of in the Constitutions. It 
 is not necessary that the owner should be divested of all estate in the whole or in 
 any part of the particular piece of property ; nor that exclusive possession of the 
 whole nor of any part thereof should be acquired as against him ; but there must be 
 some direct and physical interference with some part of the particular piece of prop- 
 erty in question. As a consequence of this doctrine, indirect and consequential 
 injuries to property, depreciations in value, and the like, unaccompanied by any 
 direct physical interference, do not constitute the taking. We shall see, however, 
 in the sequel, that if there be the required physical interference with some portion of 
 a given piece of property g. g., a tract of land the owner is entitled, as a part of his 
 compensation for that taking, to damages for the resulting, consequential injury to 
 the rest of the piece or tract. The cases now cited are illustrations of the general 
 doctrine, many of them stating it at large and discussing its extent and application. 
 It has been held that if the State uses or diverts the waters of a navigable stream or 
 lake, or authorizes them to be diverted, a riparian proprietor has no right to compen- 
 sation as he has no private interest or ownership in the waters or in the bed of the 
 stream or lake. Cornmrs. v. Withers, 29 Miss. 21 ; Boston & Wor. R. R. v. Old Col- 
 ony R. R. 12 Gush. 605. But there are cases which seem to be opposed to this doc- 
 trine, and to hold that the riparian owner is entitled under the Constitution to com- 
 pensation. Avery v. Fox, 1 Abb. U. S. R. 246 ; Yates v. Milwaukee, 10 Wai. 497. 
 If the land of the riparian owner is actually flowed, this is a taking notwithstanding 
 the stream is a navigable and public one ; but this rests upon a different principle 
 from the cases last above cited, for here the owner's land is actually invaded, and it 
 is not a case of mere interference with his use of the stream which belongs to the 
 public and not to him. Pumpelly v. Green Bay Co. 13 Wai. 166. A railroad run- 
 ning along within the lines of a navigable river and below low water-mark upon 
 piles, cut off access to the land of a riparian owner and interfered with his use of the 
 river; held not to be a taking, and that he was not entitled to compensation. Gould 
 v. Hudson River R. R. 6 N. Y. 522. Dams constructed in a stream which indirectly 
 injured a canal, held not to be a " taking." Susquehanna Canal Co. v. Wright, 9 W. 
 & S. 9; Monongahela Nav. Co. v. Coon, 6 W. & S. 101. 
 
 Injury to the business of one turnpike, or such like means of travel, by the con- 
 
456 VHEN PROPERTY DEEMED TAKEN. 
 
 It seems to be settled that, to entitle the owner to protec- 
 tion under this clause, the property must be actually taken, in 
 
 struction of another route, such as a railroad, another turnpike, or the like, does not 
 entitle the injured parties to compensation, there is no " taking." Troy &c. R. R. 
 T. Northern Turnp. Co. 16 Barb. 100 ; La Payette Plank R. v. New Albany &c. R. R. 
 13 Ind. 90; Harvey v. Lackawana &c. R. R. 47 Penn. St. 428. 
 
 Laying out a highway along a proprietor's line, and thus making it necessary 
 that he should construct and maintain the whole line fence, does not entitle him to 
 compensation for such additional expense. Kennett's Petition, 4 Fost. 139; Eddings 
 v. Seabrook, 12 Rich (Law.) 504. 
 
 It was held in Arkansas that granting and establishing a ferry landing within the 
 limits of a highway where it abutted on the stream, was not a " taking " as against 
 the abutting owner of the fee of the highway. Murray v. Menefee, 20 Ark. 561. But 
 this decision cannot be reconciled with numerous others which hold that the impo- 
 sition of an additional easement upon the soil of a highway is a " taking " as against 
 the owner of the fee. See this subject infra in this note. 
 
 Consequential injury to a fishery gives no claim to compensation. Tinicum Fish- 
 ery Co. v. Carter, 61 Penn. St. 21. The annexation of a country district to a city, 
 thereby imposing an increased burden of taxation upon the inhabitants of that dis- 
 trict, is in no sense a " taking." Wade v. Richmond, 18 Gratt. 583. It seems that 
 the owner of a way is not entitled to compensation for the establishment of a railroad 
 over it, although he is inconvenienced thereby. Boston & Wore. R. R. v. Old Colony 
 R. R. 12 Gush. 605. 
 
 Injuries caused by a change of grade of streets do not constitute a " taking " so 
 as to require compensation. Marcy v. Indianapolis, 17 Ind. 267. 
 
 For a statement and discussion of the general rule, see In re Mt. Washington R. R. 
 35 N. H. 134; Alexander v. Milwaukee, 16 Wise. 247; Arnold v. Hudson Riv. R. R. 
 49 Barb. 108. A fortiori remote and speculative injuries are not entitled to be com- 
 pensated for, and remote and speculative damages are not allowed. Swett v. Troy, 
 62 Barb. 630; Spangler's Appeal, 64 Penn. St. 387; Koch v. Williamsport &c. Co. 65 
 Penn. St. 288. As an illustration, when N.'s land is taken for a public wharf near 
 his private wharf, the loss of his profits cannot be considered. Fuller v. Edings, 11 
 Rich. (Law.) 239; see Boston & Wor. R. R. v. Old Colony R. R. 12 Cush. 605 ; Rich- 
 mond &c. Co. v. Rogers, 1 Duv. (Ky.) 135 (injury to a ferry). 
 
 It was held in Vermont that where a railroad constructed a high embankment 
 upon its own land adjoining to the land of a private proprietor, which embankment 
 interfered with the access of the latter to his house and lot, such proprietor was not 
 entitled to compensation under the Constitution, and was without remedy in any. 
 form of judicial proceeding. Richardson v. Vt Cent. R. R 25 Vt. 465. This is un- 
 doubtedly in accordance with the generally received doctrine. There are decisions, 
 however, in some of the States, which are not in entire harmony with this doctrine, 
 and which secure some remedy to the proprietor in analogous cases. Thus in Indi- 
 ana, although the fee of public highways or streets is in the public and not in the 
 abuttors, it is held that the abuttor has a legal right, in the nature of an easement, 
 to have free access to the highway from his abutting land. If this right is interfered 
 with either by private persons acting without right, or by railroad and other corpo- 
 rations acting under authority of the State, the abuttor has a remedy for his damages 
 by action. But even here it is said the act of a railroad or other corporation in build- 
 
WHEN PROPERTY DEEMED TAKEN. 457 
 
 the physical sense of the word, and that the proprietor is not 
 entitled to claim remuneration for indirect or consequential 
 
 ing an embankment or the like in the highway, is not a u taking" which entitles the 
 abuttor to compensation under the Constitution, but only an invasion of a right 
 which entitles him to damages in an ordinary action. Haynes v. Thomas, 7 Ind. 33 ; 
 Protzman v. Indianapolis &c. K. R. 9 Ind. 467; Evansville &c. R. R. v. Dick, 9 Ind. 
 433 ; New Albany &c. R. R. v. O'Dailey, 13 Ind. 353. The same rule prevails in 
 Ohio. Crawford v. Delaware, 7 Ohio, N. S. 459 ; Street R. R. v. Cumminsville, 14 
 Ohio, N. S. 523. In New Jersey it was held in a well considered case that where a 
 person or corporation is not acting solely for the public good,' but in part for private 
 gain e. g., a railroad and necessarily does some consequential injury to the lands 
 of a proprietor although none of his lands are taken, such proprietor may recover his 
 damages by action, although not entitled to " compensation " as for a taking. Tins- 
 man v. Belvidere &c. R. R. 2 Dutch. 148; see also Glover v. Powell, 2 Stockt. (N. J.) 
 211 ; Plum v. Morris Canal Co. Ib. 256. In Missouri, also, it is held that obstruction 
 to a highway cannot be legally authorized without compensation to the abuttor, 
 although not the owner of the fee. Lackland v. North Mo. R. R. 31 Mo. 180; see 
 also, McKeen v. Delaware &c. Co. 49 Penn. St. 424. 
 
 In some States compensation is required by statute to be made for " injuriously 
 affecting" as well as for "taking." See Heyneman v. Blake, 19 Cal. 579. 
 
 The parties exercising the right of eminent domain, or carrying out the improve- 
 ment under their authority, are liable for consequential damages arising from negli- 
 gence or want of skill in constructing the works. Bellinger v. N. Y. Cent. R. R. 23 
 N. Y. 42 ; N. Y. & Erie R. R. v. Young, 33 Penn. St. 175. 
 
 Illustrations of " taking.' 1 ' 1 In the following instances property is " taken," within 
 the meaning of the Constitution. Subjecting land to a perpetual flowage, even 
 though on a navigable stream. Pumpelly v. Green Bay Co. 13 Wai. 166; depriving 
 owner of the ordinary use of his land. Hooker v. New Haven &c. Co. 14 Conn. 146. 
 Taking or injuring water front on a stream not navigable. Varick v. Smith, 9 Paige, 
 547. Taking an exclusive wharfage right on tide water. Murray v. Sharp. 1 Bosw. 
 539. Appropriating the herbage in highways which belongs to the abuttors. Tona- 
 wanda R. R. v. Munger, 5 Denio, 255 ; Woodruff v. Neal, 28 Conn. 165. Compelling 
 owner to do acts on his property involving expense or injury to his property, e. g , 
 compelling him to open a fish way in a private dam. State v. Glen, 7 Jones (Law), 
 321 ; or compelling an abuttor on a private way to grade the same. Morse v. Stocker, 
 1 Allen, 150. 
 
 Detention by government of a sum awarded by the Court of Claims is a taking of 
 private property for public use. Brown v. United States, 6 Ct. of Claims (Nott & 
 Huntington) R. 171. Whether seizure under the abandoned or captured property 
 act is a taking. See Wylie's Case, 6 Ib. 295. The emancipation of slaves was held 
 in Kentucky to be a taking for public use. Corbin v. Marsh, 2 Duv. 193. 
 
 The general rule was stated by the court in Pumpelly v. Green Bay Co. 13 Wall. 
 166, that property need not be absolutely tulten in the narrowest sense of that word ; 
 there may be such serious interruption to the common and necessary use of it as will 
 be equivalent to a taking. " Where real estate is actually invaded by superinduced 
 additions of water, earth, sand, or other material, or by having any artificial structure 
 placed upon it, so as to effectually destroy or impair its usefulness, it is a taking 
 within the meaning of the Constitution." Per Miller, J. p. 181. See Redall v. Bryan, 
 
458 WHEN PROPERTY DEEMED TAKEN. 
 
 damage, no matter how serious or how clearly and unquestiona- 
 bly resulting from the exercise of the power of eminent domain. 
 This rule has been repeatedly declared in many of the States of 
 
 14 Md. 444, that laying an aqueduct over a person's land is a " taking." See par- 
 ticularly the recent case of Eaton v. Boston &c. R. R. 51 N. H. 504, for a most 
 exhaustive discussion and analysis of the authorities. A railroad removed a natural 
 ridge which rose between Eaton's farm and a river, and protected the farm from 
 overflow during freshets. In consequence of this removal, the farm was sometimes 
 overflowed during freshets, and sand, gravel, and stones were brought on to it. This 
 was held to be a " taking." The whole opinion is a grateful and refreshing recogni- 
 tion of the rights of private owners of property. 
 
 Imposing Additional Easements. If the soil of a proprietor which is already bur- 
 dened with some public easement, is subjected by authority of the State to an addi- 
 tional and different public easement, there is a taking for public use, and he is en- 
 titled to compensation. This general doctrine is universally admitted. The diffi- 
 culty in applying it has arisen not from any doubt as to the rule itself, but from a 
 difference in opinion as to what constitutes an additional public easement and bur- 
 den. Thus, if a person's soil is subject to the easement of a public highway, does 
 this include every other and new means of transit, or is every such new method an 
 additional burden not embraced within the legal public right and use of a highway ? 
 Courts have not been unanimous in answering this particular question. We shall 
 arrange the cases into classes. 
 
 A public market cannot be authorized in a street without compensation to the 
 abuttors who own the fee. State v. Laverack, 5 Vroom (N. J.) 201. 
 
 Turnpikes, etc. Changing an ordinary highway into a plank-road or turnpike im- 
 poses no additional easement, and does not entitle the abuttors to compensation 
 when they own the fee. Wright v. Carter, 3 Dutcher, 76 ; Douglas v. Boonsboro' 
 Tump. Co. 22 Md. 219; Benedict v. Goit, 3 Barb. 459; Commonwealth v. Wilkenson, 
 16 Pick. 175; Chagrin Falls &c. Plank R. Co. v. Cane, 2 Ohio, N. S. 419; but contra, 
 Williams v. Natural Bridge Plank R. Co. 21 Mo. 580. 
 
 Steam Railroads in Streets. Steam railroads laid in streets and highways are an 
 additional public burden and easement, and abuttors who own the tee of the way 
 are entitled to compensation. Williams v. N. Y. Cent. R. R. 16 N. Y. 97 ; Carpenter 
 v. Oswego &c. R. R. 24 N. Y. 655 ; Mahon v. K Y. Cent. R. R. 24 N. Y. 658 ; Wager 
 v. Troy &c. R. R. 25 N. Y. 526 ; Pres. Soc. v. Auburn &c. R. R. 3 Hill, 567 ; Ford v. 
 Chicago &c-. R. R. 14 Wise. 609; Pomeroy v. Chicago &c. R. R. 16 Wise. 640; Schur- 
 meier v. St. Paul &c. R. R. 10 Minn. 82; Gray v. First Division &c. 13 Minn. 315; 
 Imlay v. Union Branch R. R. 26 Conn. 249 ; Jersey City &c. R. R. y. Jersey City &c.- 
 R. R. 20 K J. Ch. 62, 67. Contra, such railroad is not an additional burden. Morris 
 & Essex R. R. v. Newark, 2 Stockt. 352 ; Snyder v. Penn. R. R. 55 Penn. St. 340 ; 
 Commonwealth v. Erie &c. R. R. 27 Penu. St. 339 ; Matter of Philadelphia &c. R. R. 
 6 Whart. 25; Wolfe v. Covington &c. R. R. 15 B. Mon. 404. 
 
 Horse Railroads in Streets. Horse railroads laid in streets and highways are an 
 additional public burden and easement, and abuttors who own the fee are entitled to 
 compensation. Craig v. Rochester &c. R. R, 39 N. Y. 404. Contra, such horse rail- 
 roads are not a new use or additional public burden. Elliott v. Fairbaven &c. R. R. 
 32 Conn. 579 ; Brooklyn &c. R. R. v. Brooklyn &c. R. R. 33 Barb. 420 ; Brooklyn &c. 
 
WHEN PROPERTY DEEMED TAKEN. 459 
 
 the Union. So, in New York, the consequential damages re- 
 sulting from the raising of the grade of a city street sustained 
 by adjacent proprietors gives no action against the railroad cor- 
 poration, 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 
 laud of which he is deprived is taken for the construction of a 
 railroad, and that its use by the railroad company may be seri- 
 
 * Radcliff's Ex'rs v. Mayor &c. of Brook- also, First Baptist Church v.Utica n 
 lyii, 4 Comstock, 195; Chapman v. Albany nectady R. R. Co/o Barb. 313. 
 and Schenectady R. R. Co. 10 Barb. 360; see //Tr > r _, 
 
 (*** 
 
 R. R. v. Coney Island R. R. 35 Barb. 364. These New Y 
 overruled by Craig v. Rochester &c. R. R. 
 
 Where a city or other municipality owns the fee of the streets ancTMgh w ay 
 Legislature may authorize horse or steam railroads to be laid therein without com- 
 pensation to the abuttors or to the municipality. Carson v. Central R. R. 35 Cal. 
 325 ; People v. Kerr, 37 Barb. 357 ; s. c. 27 N. Y. 188 (horse railroads) ; Clinton v. 
 Cedar Rapids R. R. 24 Iowa 455 (steam railroad); Millburn v. Cedar Rapids, 12 
 Iowa, 246 ; Moses v. Pittsburg &c. R. R. 21 111. 516 (steam railroad). In Indiana the 
 same rule prevails, the fee of the streets being in the public, but the abuttor may 
 maintain action for damages if his access to the street is cut off or interrupted. See 
 cases cited supra in this note under head " Consequential Injuries." 
 
 When a canal company sells its location to a railroad, this will not be an aban- 
 donment of its easement entitling the original owner to new compensation from the 
 railroad company. Hatch v. Cincinnati &c. R. R. 18 Ohio, N. S. 92. 
 
 When land is donated for a particular purpose, an appropriation of it for a differ- 
 ent public purpose would be a "taking." Price v. Thompson, 48 Mo. 361 (laud 
 dedicated for a park) ; Warren v. Lyons City, 22 Iowa, 351 (for a public square). 
 
 Laws establishing a presumption of donation from long user are not laws for tak- 
 ing property. Burnpus v. Miller, 4 Mich. 159. 
 
 When the right is reserved to alter or repeal the charter of a corporation, part of 
 its land may be taken for a street without compensation. Boston & Albany R. R. v. 
 Greenbush, 5 Lans. 461. And a highway may be laid across the track of a railroad 
 corporation under such circumstances without compensation, and it may be required 
 to make the necessary embankments at its own expense. Albany &c. R. R. v. Brow- 
 nell, 24 N. Y. 345; butter contra, see Old Colony R. R. v. Plymouth, 14 Gray, 155. 
 
 When persons have been permitted by the State to occupy and make valuable 
 improvements on public lands, their rights are protected oy the Constitution. Gillan 
 v. Hutchinson, 16 Cal. 153. 
 
 A statute authorizing a corporation to widen a navigable stream and to charge 
 tolls thereon, is constitutional. Bennett's Branch Co.'s Appeal, 65 Penn. St. 245. 
 
 Whether abuttors on a private way thrown open to the public travel, can be com- 
 pelled to grade it if unsafe, see Morse v. Stocker, 1 Allen, 150. 
 
460 WHEN PROPERTY DEEMED TAKEN. 
 
 ously injurious to the rest of his adjacent property.* So, again, 
 the damage likely to result from a road to a mill on the pro- 
 prietor's adjacent land, is not a subject of inquiry, f So, again, 
 in New York, a franchise may be said to be "taken within the 
 meaning of the constitutional guarantee of private property, 
 when the owner is deprived of the power or means of exercis- 
 ing it ; " but it is not " taken " when its emoluments are merely 
 diminished by an improvement which does not destroy or im- 
 pair 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 estab- 
 lishments made under legislative authority. And thus it has 
 been held, that where a public avenue was opened across a 
 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 entitled to compensation, 
 it not appearing that the appropriation of the part of the cause- 
 way required for the avenue would, of itself, diminish the travel 
 over the bridge or throw any physical obstacles in the way of 
 crossing it.J 
 
 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 incorporation ; and acts of incorporation are 
 constitutional, though no provision be made for such damage. || 
 So, in the same State, it has been held that, under the con- 
 stitutional provision declaring that " private property shall 
 not be taken or applied to public use without just compensation 
 being made " no remedy is provided for damages done by 
 
 * Albany Northern Railroad Company v. || Monongahela Navigation Co. v. Coons, 
 
 Lansing, 16 Barb. 68. 6 "W. & Serg. 114; Henry v. Pittsburgh and 
 
 f Canandaigua and Niagara Falls R. R. Allegheny Bridge Co. 8 Watts <fe Serg. 85 ; 
 
 Co. v. Payne, 16 Barb. 273. Miffi'n v. Railroad Company, 16 Penn. 193 ; 
 
 J Matter of Hamilton Avenue, 14 Barb. Reitenbaugh v. Chester Valley Railroad Co. 
 
 405. 21 Penn. 100. 
 
WHEN PROPERTY DEEMED TAKEN. 461 
 
 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 constitutional 
 provision for the 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 avenues which 
 lead to it ; but it is a consequential loss, and must be borne by 
 those 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 con- 
 sequential. 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. \ 
 
 In Massachusetts it has been held that a mere entry of 
 commissioners, under an act of the Legislature, authorizing 
 
 ' O / o 
 
 certain boundaries to be ascertained, is not unconstitutional 
 thoiigh no compensation is provided for the entry. No prop- 
 erty is appropriated. J 
 
 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 damages indirectly resulting from the 
 legal acts of a chartered corporation, the law affords no 
 remedy. ^[ The true construction of the provision has been 
 elaborately examined in the State; and the Supreme Court 
 has there decided, that by tne taking of property within the 
 scope of this clause, is meant such an appropriation of it as 
 
 * O'Connor v. Pittsburgh, 6 Harr. Penn. \ Winslow v. Gilford, 6 Gushing, 327. 
 
 R. 187. \ Rogers v. Kennebec and Portland Rail- 
 
 t Paul v. Carver, 26 Penn. 223. road Co. 35 Maine, 319. 
 \ Clark v. Saybrook, 21 Conn. 313. 
 
462 WHEN PROPERTY DEEMED TAKEN. 
 
 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. * 
 
 In Vermont too, the course is to limit the compensation to 
 damages sustained by the actual taking of property; all other 
 loss sustained by individuals comes under the head of damnum 
 absqiie iujuria, or under the head of sacrifices which individuals 
 must bear for the common benefit, f 
 
 To differ from, the voice of so many learned and sagacious 
 magistrates, may almost wear the aspect of presumption ; but 
 I cannot refrain from the expression of the opinion, that this 
 limitation of the term talcing to the actual physical appropria- 
 tion 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 equal administration of the great 
 powers of government. 
 
 The tendency under our system is too often to sacrifice the 
 
 * Cushman v. Smith, 34 Maine, 247. plaintiff's house. The stntute 8 and 9 
 
 f See Hatch v. Vt. Central R. R. Co. 25 Victoria, c. 18, 8th May, 1845, entitled " An 
 
 Vermont, 49, where the subject is discussed act for consolidating in one act, certain pro- 
 
 in an able opinion of Redfield, J. visions usually inserted in acts authorizing 
 
 For other cases where private property is the taking of lands for undertakings of a 
 
 injured by the construction and grading of public nature," and commonly called the 
 
 highways and railways, when it is not taken Land Clauses Consolidation Act, provides 
 
 within the clause, see Day et al. v. Stetson, 8 compensation for land or any interest taken 
 
 Greenl. 365 ; Callender v. Marsh, 1 Pick. 418 ; or injuriously affected by the execution of 
 
 Canal Appraisers v. The People, 17 Wend, public works ; and the right to compensation 
 
 571; Susquehanna Canal Co. v. Wright, 9 extends to consequential damage. East and 
 
 Watts & Serg. 9. West India Docks and Birmingham Junction 
 
 In England, the disposition seems to be Railway v. Gattke, 3 Man. & G. 155 ; 6 Rail- 
 to extend the protection of private property way Cases, 371. See also, Glover v. North 
 so as to reach every thing that injuriously Staffordshire Railway Co. 15 Jur. 673, 20 L. 
 affects it, as where high embankments are J. Q. B. 376 ; whero lands held to be in- 
 made in front of adjacent premises, or where juriously affected by the proximity of the 
 annoyance and injury is caused by the close railway and passage of the trains. See also, 
 proximity of a railroad, or by the noise of Shelford's Law of Railways, by the Hon. 
 its engines, and in many other cases. Queen Milo L. Bennett, of the Supreme Court of 
 v. Eastern Counties R. Co. 10 Ad. and El. Vermont, where the American cases are also 
 531 ; Glover v. North Staff. R. Co. 5 Eng. to be found on many subjects connected with 
 Law and Eq. R. 335. The act of the 6 and railroads. It is not an agreeable observation 
 7 Will, iv, c. 109, gives remuneration to pro- to make, but I believe it cannot be denied, 
 prietors for lands taken, used, damaged, or th\t the protection afforded by the English 
 injuriously affected, in the construction of the government to property, is much more corn- 
 Sheffield and Rotherham Railway Company; plete in this respect than under our system; 
 Turner et al. v. The Sheffield and Rotherham although Parliament claims to be despoticnlly 
 Railroad Co. 10 Mees. <fc Wels. 425, where supreme, and although we boast our sub- 
 held that the company was liable to make mission to constitutional restrictions; so 
 compensation for dust and drifting from the difficult is it to judge of systems until their 
 railway station and embankment into the practical operation is carefully observed. 
 
COMPENSATION. 463 
 
 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 reason 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 deprived of 
 property, though a particular piece of property may not be 
 actually taken. Objections of the same kind might' 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 conferred 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 individual 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 improvements. 
 
 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 disposition' has been felt 
 not to cramp these enterprises 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 consti- 
 tutional guaranty has failed to secure. 
 
 Compensation, (a) In our examination of the clause which 
 
 (a) The Compensation. Compensation is necessary, and must be expressly pro- 
 vided for. A statute for taking private property without provision for a just com- 
 pensation is void. People v. Kimball, 4 Mich. 95 : and the owner may bring tres- 
 pass. Buffalo Bayou &c. R. R. v. Ferris, 20 Tex. 588. The Constitution does not 
 execute itself; the statute must provide for compensation. A taking without origi- 
 nal authority of law cannot be so confirmed by subsequent act as to take away the 
 right of action on account of the wrongful taking and substitute for it a statutory 
 right and mode of compensation. Matter of Townsend, 39 N. T. 171. 
 
 What is a "Just' 1 ' 1 Compensation, Method of Assessment, etc. In the absence of 
 express constitutional provisions, the compensation, it seems, cannot consist in laying 
 out ways or other improvements instead of payment of money, unless by assent of the 
 o'wner. Central &c. R. R. v. Holler, 7 Ohio, N. S. 220. 
 
 The amount of the compensation must be determined by a fair tribunal ; a stat- 
 
464 COMPENSATION. 
 
 we are now discussing, the last head to be considered is 
 in regard to the time and mode of making compensation. On 
 
 ute providing that an agent of a railroad company should be one of a board to as- 
 sess the damages ex parte, to be paid by the company was held invalid. Powers v. 
 Bears, 12 Wise. 213. A provision for assessment by a board of three citizens without 
 notice was also held void. Langford v. Ramsey Co. 16 Minn. 375T But it is said in 
 some States that notice is not necessary, at least to non-resident owners. Anderson 
 v. Turbeville, 6 Cold. 150 ; Johnson v. Joliet &c. R. R. 23 111. 202 ; nor that the tri- 
 bunal should be sworn, Ibid. The Tennessee case, while holding that notice is not 
 necessary of the proceedings to condemn, does, however, require notice of the assess- 
 ment of compensation. If the owner is notified and appears, he cannot object that the 
 statute does not require notice. Kramer v. Cleveland &c. R. R. 5 Ohio, N". S. 140. 
 
 A statute providing for notice by publication, and that persons not making 
 claims within a specified time should be barred is valid. Cupp v. Commrs. 19 Ohio, 
 N. S. 173. 
 
 The decisions are directly conflicting in different States as to the necessity of a 
 jury. In some a jury is expressly required, and in others is expressly waived by the 
 Constitution. In most, however, the Constitution is silent upon this particular. In 
 New Hampshire a jury is unnecessary. 2nreM.t, Washington &c. R. R. 35 N. H. 134. 
 In Mississippi it is held that a jury is essential. Isom v. Mississippi &c. R. R. 36 
 Miss. 300 ; and in Indiana, Lake Erie &c. R. R. v. Heath, 9 Ind. 558, except in pro- 
 ceedings to open highways. Drouberger v. Reed, 1 1 Ind. 420 ; Hymes v. Aydelott, 26 
 Ind. 431. In Ohio a jury is required by the Constitution. Matter of Wells County 
 Road, 7 Ohio, N. S. 16; see to the necessity of a jury, Norristown &c. Co. v. Burket, 
 26 Ind. 53; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588; Pennsylvania R. R. 
 v. Lutheran Cong. 53 Penn. St. 445 ; Louisiana &c. PI. R. v. Pickett, 25 Mo. 535 
 (jury of five good); H. T. & B. R. W. Co. v. Milburn, 34 Tex. 224; see also note 
 upon " Trial by Jury." 
 
 The Constitution requiring a jury, a statute providing for a jury but not dis- 
 tinctly requiring that they should be sworn, was held void, and the fact that the 
 jury were actually sworn made no difference. Lunesdeu v. Milwaukee, 8 Wise. 485. 
 This case would, doubtless, not be followed. 
 
 The right of a trial by jury in cases of assessing compensation involves the prin- 
 ciple, that all the jurors must concur in the verdict. Chicago &c. R..R. v. Sanford, 
 23 Mich. 418. 
 
 The Constitution providing for assessment by a jury or by commissioners, a stat- 
 ute authorizing the court, on appeal or on motion to confirm the report, to increase 
 or diminish the award was held void. Rochester Water Co. v. Wood, 60 Barb. 137. 
 
 The statutory method is exclusive of any other. Brown v. Beatty, 34 Miss. 227 ; 
 Colclough v. Nashville &c. R. R. 2 Head, 171 ; Dunlap v. Pulley, 28 Iowa, 469; and 
 it seems even when the statutory provisions for taking are not strictly observed. In- 
 diana &c. R. R. v. Oakes, 20 Ind. 9. But the statutory authority must be strictly 
 followed. Curran v. Shattuck, 24 Cal. 427. 
 
 The compensation must be made to the true owner ; and if the owner is a married 
 woman, her right to the money awarded must be protected. East Tenn. R. R. v. 
 Love, 3 Head, 63. 
 
 When the Compensation Must le Made. For cases which hold that the compen- 
 sation must be simultaneous with the taking, see Walther v. Warner, 25 Mo. 277 ; 
 
COMPENSATION. 405 
 
 this subject much diversity of opinion has existed, as to 
 whether payment or tender of compensation should be made a 
 
 San Francisco v. Scott, 4 Cal. 114 ; Drouberger v. Reed, 11 Ind. 420 ; Comuis. v, 
 Bowie, 34 Ala. 461 ; Penrice v. Wallis, 37 Miss. 172; Henry v. Dubuque &c. R. R. 10 
 Iowa, 540 ; Shute v, Chicago &c. R. R. 26 111. 436 ; Ferris v. Bramble, 5 Ohio, N. S. 
 109*; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588 ; Fox v. Western Pacific R. R. 
 31 Cal. 538. 
 
 Where the compensation is to be a condition to or simultaneous with the taking, 
 equity will enjoin the use of the land until the compensation be made. Shute v. 
 Chicago &c. R. R. 26 111. 436; People v. Law, 34 Barb. 494; Western &c. R. R. v. 
 Owings, 15 Md. 199; Curran v. Shattuck, 24 Cal. 427; Penrice v. Wallis, 37 Miss. 
 172. 
 
 When the Constitution requires the compensation to be paid prior to the taking, 
 and a statute authorizing the taking does not specify whether the compensation is 
 to be made before or after the property is taken, it will be construed to intend the 
 former. Sharpless v. West Chester, 1 Grant's Cases, 257. 
 
 The owner can waive prepayment, and a short period of acquiescence in the prog- 
 ress of the work will amount to such waiver. McAuley v. Western &c. R. R. 33 Vt. 
 311 ; but, per contra, it was held in California that when compensation is a prerequi- 
 site, taking without such compensation made at the time is wholly void, and the 
 owner cannot afterwards affirm the taking and recover the compensation in an ac- 
 tion. Johnson v. Alameda Co. 14 Cal. 106. 
 
 Preliminary steps, such as entiy, location, and survey may be made before pay- 
 ment of compensation. Fox v. Western Pac. R. R. 31 Cal. 538; and see State v. 
 Seymour, 6 Vroom, 47. 
 
 But until payment or tender no title is vested, and the party who has taken pre- 
 liminary steps for condemnation of the property may withdraw. A city will not be 
 compelled by mandamus to go on and complete the taking of land for a street, either 
 at the suit of the owner or of one who purchased materials and a portion of a lot at a 
 sale by the city of such materials, etc., on the route of the proposed street, although 
 damages and betterments may have been assessed, and although such purchaser may 
 have paid the betterments assessed on him. State v. Graves, 19 Md. 351 ; but 
 whether the city would not be liable in damages, qu. 
 
 A provision in a charter that, in case of appeal from the commissioners, and re- 
 fusal by owner of a tender of the amount awarded, such amount may be paid into 
 court, and the corporation may thereupon take the land, is valid under a Constitu- 
 tion requiring the payment to precede the taking. Cooper v. Chester R. R. 4 C. E. 
 Green (N. J.), 199. See also Peterson v. Ferreby, 30 Iowa, 327. But on the con- 
 trary, there is a reported case which holds that a statute authorizing the taking of 
 land on tender of the damages awarded by viewers, without awaiting the result of an 
 appeal, is unconstitutional and void. Watson v. P. & C." R. R. 2 Pittsb. 99. 
 
 There are cases which, in the absence of constitutionil requirements of prepay- 
 ment, hold it sufficient if compensation is secured. Smith v. Taylor, 34 Tex. 589 ; 
 Rexford v. Knight, 11 N. Y. 308; People v. Mich. So. R. R. 3 Mich. 496 ; Taylor v! 
 Marcy, 25 111. 518 ; Harper v. Richardson, 22 Cal. 251 ; People v. Hayden, 6 Hill, 
 359 ; Commonwealth v. Pittsburg &c. R. R. 58 Penn. St. 26. 
 
 Pledge of taxes to be raised in a school district as security for the compensation 
 for land taken for the district school-house, was held a sufficient compliance with 
 30 
 
466 COMPENSATION. 
 
 condition precedent to any act of interference with private 
 property. The only certain guaranty, of course, would "be 
 
 the Constitution. Long v. Fuller, 68 Penn. St. 1 70. Providing that a mill owner 
 flowing the land of another shall pay what the land is worth, " to be ascertained by 
 the verdict of a jury in an action of trespass," is not providing a just compensation; 
 but aliter, it seems, if the judgment to be recovered in such action is made a lien 
 from the institution of the proceeding. Newell v. Smith, 15 Wise. 101. 
 
 Compensation by judgment to be rendered at least two terms after the taking, ia 
 not adequate. Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588. 
 
 Amount of the Compensation. The owner is entitled to the fair value of the land 
 taken, its value to sell, and not any value special or peculiar to himself. Somerville 
 &c. R. R. v. Doughty, 2 Zab. 495 ; Sater v. Burlington &c. R. R. 1 Iowa, 386 ; Henry 
 v. Dubuque &c. R. R. 2 Iowa, 288 ; Lexington v. Long, 31 Mo. 369 ; Dickinson v. 
 Fitchburg, 13 Gray, 546. In ascertaining the present worth of land condemned for 
 a railroad, the fact that it is necessary for the railroad to have it is not to be consid- 
 ered. Virginia &c. R. R. v. Elliott, 5 Nev. 358. And if land of one corporation is 
 taken by another, its value in the market, and not its value for the purposes of the 
 particular corporation holding it, is to be given. Boston & Wor. R. R. v. Old Col- 
 ony R. R. 12 Cush. 605 ; and see Goodin v. Cincinnati Canal Co. 18 Ohio, N. S. 169. 
 When the franchise of a railroad is taken in whole or in part, it is not just compen- 
 sation to repay the expense of construction of the road. Commonwealth v. Pitts- 
 burg &c. R. R. 58 Penn. St. 21, 50. 
 
 A statute provided for compensation for commodities impressed, according to a 
 scale of prices, fixed from time to time by commissioners, and to be in force for a 
 certain period of time ; this was held invalid under the Constitution of the Confed- 
 erate States ; the fair value at the time of taking must be paid. Cunningham T. 
 Campbell, 33 Geo. 625. 
 
 When part of a tract is taken, the compensation includes the consequential injury 
 to the remaining portion. The owner is entitled to the amount in which this re- 
 maining portion is depreciated in value; and in ascertaining this amount, all circum- 
 stances which naturally injure the property, resulting from the use of the part taken, 
 are to be taken into account, such as difficulty of access, difficulty in carrying on 
 business, danger from fire, increased expense, and the like. But the owner is not to 
 be compensated for injuries speculative and too remote. Bigelow v. West Wiscon- 
 sin R. R. 27 Wise. 478 ; Wilmington &c. R. R. v. Stauffer, 60 Penn. St. 374 ; Matter 
 of Utica &c. R. R. 56 Barb. 456 ; Hatch v. Cincinnati &c. R. R. 18 Ohio, N. S. 92; 
 Denton v. Polk Co. 9 Iowa, 594 ; Newby v. Platte Co. 25 Mo. 258 ; Pacific R. R. v. 
 Chrystal, 25 Mo. 544 ; Carpenter v. Landaff, 42 N. H. 218 ; Winona & St. P. R. R. 
 v. Waldron, 11 Minn. 515 ; Nicholson v. N. Y. & N. H. R. R. 22 Conn. 74 ; Nichols 
 v. Bridgeport, 23 Conn. 189; Mayor v. Long, 31 Mo. 369; St. Louis &c. R. R. v. 
 Richardson, 45 Mo. 466 ; Little Miami R. R. v. Collett, 6 Ohio, N. S. 182 ; Somer- 
 ville &c. R. R. v. Doughty, 2 Zab. 495 ; Sater v. Burlington &c. PL R. 1 Iowa, 393 ; 
 Henry v. Dubuque &c. R. R, 2 Iowa, 300; In re Poughkeepsie &c. R. R. 63 Barb. 
 151. 
 
 Set-off of Betterments or Benefits. There is direct conflict in the authorities upon 
 the question whether, in estimating the compensation, the benefits or betterments re- 
 sulting to the owner may be set off against the gross amount awarded him. In 
 some States this is expressly forbidden by constitutional provision ; and in others by 
 
COMPENSATION. 467 
 
 to make compensation, in all cases, precede the first act of in- 
 terference witlj individual property ; but it is at once apparent, 
 in this as in many other acts of administrative power, that con- 
 flicting interests present themselves, difficult to be reconciled. 
 In the construction of works of public improvement, as railroads 
 or canals, for instance, before it is known what lands will be 
 wanted, preliminary steps, such for instance as surveys, are in- 
 dispensably necessary. These preliminary steps are, in them- 
 selves, 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, 
 
 statute. In those States where there is no constitutional prohibition, there is a 
 conflict of decision. Many cases hold, and perhaps this is the general rule, that in 
 estimating that portion of the compensation which results from the injury to that 
 portion of the proprietor's land not taken, any benefits to such portion special and 
 peculiar to himself resulting from the improvement are to be offset against the 
 injuries. Columbus P. &I. R. R. v. Simpson, 5 Ohio, N. S. 251; Kramer v. Cleveland 
 &c. R. R. 5 Ohio, N. S. 140 ; Newby v. Platte Co. 25 Mo. 258 ; Garrett v. St. Louis, 
 25 Mo. 505 ; People v. Williams, 51 111. 68 ; In re Mt. Washington R. R. 85 N. H. 134. 
 
 That benefits cannot be offset, see, Brown v. Beatty, 34 Miss. 227; Trow v. 
 Mississippi R. R. 36 Miss. 300 ; Penrice v. Wallis, 37 Miss. 173 ; Alabama &c. R. R. 
 v. Burkett, 42 Ala. 83; Carson v. Coleman, 3 Stockt. 106. 
 
 The Legislature may cause the tax for payment of the compensation to be 
 assessed on the particular locality. Miller v. Craig, 3 Stockt. 175 ; People v. Wearing, 
 27 N. Y. 306 ; Cleveland v. Wick, 18 Ohio, N. S. 303 (under the new Constitution 
 of Ohio, which prohibits offset of benefits) ; Sessions v. Crunkilton, 20 Ohio, N. S. 
 349. 
 
 The value of land talen, must be given without any deduction for benefits : but 
 the benefits may be offset against the damage to the remaining lands. Robbins v. 
 Milwaukee &c. R. R. 6 Wise. 636 ; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588 ; 
 Elizabethtown &c. R. R. v. Helm, 8 Bush, 681 ; See Hayfcs v. 0. O. & R. V. R. R. 54 
 111. 373. 
 
 In those States where benefits may be offset, only those peculiar to the owner are 
 allowed ; those which he shares in common with the community about him cannot 
 be. St. Louis &c. R. R. v. Richardson, 45 Mo. 486 ; In re Mt. Washington R. R. 35 
 N. H. 134 ; Penrice v. Wallis, 37 Miss. 172 ; Pacific &c. R. R. v. Chrystal, 25 Mo. 544 ; 
 Winona &c. R. R. v. Waldron, 11 Minn. 515; Nichols v. Bridgeport, 23 Conn. 189 ; 
 and see also cases last above cited. 
 
 If the owner is satisfied with the provision made for his compensation, an 
 occupant holding under him cannot complain that the act is void. Detmold v. 
 Drake, 46 N. Y. 318. 
 
 When the damages for the erection of a bridge have been assessed and paid, it 
 will be presumed that they included all liability to injury from a future change in 
 the height of the bridge. Skinner v. Hartford Bridge Co. 29 Conn. 523 ; Benden v. 
 Nashua, 17 N. H. 477. 
 
468 COMPENSATION. 
 
 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 construction of the improvement which 
 is in the nature of the assertion of ownership, payment must 
 be made or tendered, or a certain and adequate remedy be pro- 
 vided ; 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 ex- 
 ercise by the State of its right of eminent domain, not to be nec- 
 essary that payment or compensation 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 ob- 
 tain compensation without unreasonable delay. The owner is 
 not to be left dependent on the future justice of the Legislature 
 to provide compensation for his proper ty.f It is sufficient, 
 however, that the law provides for compensation, and it is not 
 necessary that the payment of such compensation should be 
 made a condition precedent to entry upon appropriation of the 
 premises. J 
 
 In Maryland, the Constitution provides (art. iii, 46 ; ante, 
 p. 421) 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 com- 
 pensation, first to be paid or tendered to the owner, to be fixed 
 either by contract with him or by the assessment of com- 
 missioners, 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 
 
 * In Mississippi, as we have seen above, f Bloodgood v. Mohawk and Hudson R. 
 
 the clause is explicit that compensation shall R. Co. 18 "Wend. 9; Baker v. Johnson, 2 Hill, 
 
 be first made; and under that provision it has 342; People v. Hayden, 6 Hill, 359; Rexford 
 
 been there held that payment is a condition v. Knight, 1 Kern. 308. 
 
 precedent to the seizure for public use. \ People v. Hayden, 6 Hill, 359; Smith 
 
 Thompson v. Grand Gulf R. R. and Banking v. Helmer, 7 Barbour, S. C. R. 416. 
 Co. 3 How. Miss. R. 240. 
 
COMPENSATION. 469 
 
 right to a jury trial; and on payment or tender of the com- 
 pensation assessed, the property may be taken for public use. 
 The prohibition 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 not prevent a survey and other necessary 
 preliminary steps. The owner is secure in the use and enjoy- 
 ment of his property until his damages are regularly ascertained 
 and paid or tendered ; and this satisfies the constitutional pro- 
 vision.* So, in Maine, it has been held that the Legislature 
 may authorize a temporary occupation of property, as an in- 
 cipent proceeding, wdthout compensation ; but before the taking 
 is completed, payment must be made or tendered, f 
 
 When the power of taxation in a municipal corporation is 
 so limited as to be inadequate to pay the damages 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 existence 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, and to make compensation in vacant lauds, 
 was for both reasons unconstitutional and void. | 
 
 But it does not seem now to be necessary that the corn- 
 
 * Stewart v. The Mayor, 7 Maryland, 501. England it has been decided, under a railroad 
 
 f Cushman v. Smith, 34 Maine, 247. For act providing for compensation to be made 
 
 cases as to whether payment must precede or for all injury done, that trespass could not be 
 
 Tae simultaneous with taking, see Hooker v. brought till damage was actually sustained, 
 
 The New Haven and Northampton Co. 14 Thicknesse v. Lancaster Canal Co. 4 Mee3. 
 
 Conn. 146; Smith v. Helmer, 7 Barb. 416; and \Vels. 4*72. 
 
 People v. Hayden, 6 Hill, 359 ; Rubottom v. \ Keene v. The Borough of Bristol, 26 
 
 M'Clure, 4 Blackf. 505 ; Thompson v. Grand Penn. 46. 
 
 Gulf R. R. and Banking Co. 3 How. Miss. || Van Home's Lessee v. Dorrance, 2 Dall. 
 
 240 ; Pittsburgh v. Scott, 1 Penn. 309. In 813, 315. 
 
470 COMPENSATION. 
 
 pensation should be assessed by a jury, in the common-law 
 sense of the phrase. Mr. Chancellor Wai worth, in the Court 
 of Errors in the State of New York, has used this language : 
 11 The mode of ascertaining damages 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 the 
 Constitution as to the right of trial by jury, has no relation to 
 cases of the kind now under consideration." * 
 
 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 commissioners appointed by a 
 court of record, f This provision is not satisfied by a city 
 charter which authorizes the common council to appoint five 
 disinterested freeholders to appraise and fix the compensation 
 in regard to a public work; and the act is unconstitutional. J 
 Under this same provision, it has been also decided that by 
 this section is not meant a common-law jury, and 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 : | 
 
 The question then remains, whether these appraisers are a jury, within the 
 meaning of the Constitution. If that term had not acquired a peculiar meaning 
 when applied to this class of cases, by prior legislative 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 by 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 private 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 
 
 * Beekman v. Saratoga and Schy. R. R. i Clark v. City of Utica, 18 Barb. 451. 
 Co. 3 Paige, 76. | Cruger v. Hudson R. R. Co. 2 Kern, 
 
 f Cons. art. i, 7, ante, 420. 196, per Johnson, J. 
 
COMPENSATION. 471 
 
 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 acts, to perform the same functions. We have been 
 furnished with references to many of these acts, by the counsel for the defend- 
 ants. 
 
 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 by majorities or otherwise, as the Legislature in each instance 
 directed. The convention 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 the narrower meaning, 
 familiar as 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 which compensa- 
 tion should be made, it was intimated in an early case by the 
 Supreme Court of the United States, that no just compensation 
 could be made except in money, on the ground that money is 
 the common standard by which all values are ascertained ; * but 
 in New York it has been expressly decided that the benefit 
 accruing to a person whose land was taken for a street, might 
 be set off against 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 result has been 
 arrived at in Pennsylvania. J 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 compensation to be made ;" 
 but there seems no good reason for permitting .the mere legisla- 
 tive discretion to be the supreme arbiter of the meaning of the 
 
 * Van Home's Lessee v. Dorrance, 2 Dall. f Livingston T. The Mayor, <fec. 8 Wend. 85. 
 
 313, said in Satterlee v. Matthewson, 16 Serg. j M'Master T.The Commonwealth, 3 Watts, 
 
 <fe Rawle, 179, to have been questioned. 292. 
 
472 COMPENSATION. 
 
 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 Massachu- 
 setts, 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 of the same owner adjoining or con- 
 nected 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 
 set-off; 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 accru- 
 ing 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 emi- 
 nent 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 (a) In Massachusetts, too, it has been held that where 
 
 * Meacham v. Fitchburg R. R. Co. 4 Gush. f Hey ward v. The Mayor, &c. of N. Y . 
 
 291. , 3 Seld. 314; Rexford v. Knight, 1 Kern. 308. 
 
 (a) Extent of the Taking, whether the Fee, or an Easement. The decision of the 
 Legislature is final as to the extent of the interest to be taken, as well as to the 
 necessity of taking at all. Where the Legislature therefore provides that the fee 
 shall pass, the court will not go behind the statute, but will presume that it was nec- 
 essary to take the fee. De Varaigne v. Fox, 2 Blatch. C. C. 95 ; Dingley v. Boston, 
 100 Mass. 544. And see New York &c. R. R. v. Kip, 46 N. Y. 546. 
 
 Where the Legislature does not expressly provide that the fee shall pass, such 
 estate only passes as is necessary for the use for which it is taken, and of this the 
 court will judge. Heyneman v. Blake, 19 Cal. 579; Corwin v. Cowan, 12 Ohio, N. S. 
 629; Alabama &c. R. R. v. Burkett, 42 Ala. 83; Kane v. Baltimore, 15 Md. 240 (case 
 of taking a stream for city water supply) ; Blake v. Rich, 34 N. H. 282 ; Chapin v. 
 Sullivan R. R. 39 N. H. 564 ; Evans v. Haeiner, 29 Mo. 141 (right to soil and min- 
 erals of land taken) ; "Woodruff v. Neal, 28 Conn. 165 (right to herbage in highways). 
 In the case of a railroad the exclusive right to the possession of the land condemned 
 seems essential. Troy &c. R. R. v. Potter, 42 Vt. 265 ; but see cases last before cited. 
 
 That where the use determines the land does not revert, see Hatch v. Cincinnati 
 &c. R. R. 18 Ohio, N. S. 92. 
 
 The Legislature cannot authorize the taking of more than is necessary for the 
 public use, e. g., more land than is necessary for a street. Matter of Albany Street, 
 
COMPENSATION. 473 
 
 the land of an individual is taken under the authority of the 
 Legislature for public use, and a full compensation is paid to 
 the proprietor for a perpetual easement therein, and the same 
 land is afterwards appropriated by legislative authority to an- 
 other public use of a like kind, the owner of the laud is not en- 
 titled 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 company paid full 
 damages for the flowing of the plaintiff's laud, and the canal 
 was afterwards discontinued, and the land was flowed by an- 
 other company, it was held that the plaintiff was not entitled 
 to redress, and Ms complaint was dismissed. * 
 
 Under the act of the State of New York of 1851, in rela- 
 tion 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 sustained by the turnpike or plank- 
 road company, after the same shall have been ascertained under 
 the statute, f 
 
 It may not be amiss to sum up the result of our examina- 
 tion. If the brief and sweeping clause, " Private property shall 
 not be taken for public use without just compensation" be made 
 to express the modifications and qualifications which construc- 
 tion has inserted in it and added to it, it will stand nearly as 
 follows : Private property shall in no case be taken for private 
 use. Private property may be takeji for public use in the exer- 
 cise of the general police powers of the State, or of taxation, 
 without making compensation therefor. And the power of tax- 
 ation includes the power of charging the expense of local im- 
 provements exclusively upon those immediately benefited thereby. 
 Private property may also be taken for public use in the exercise 
 
 * Chase v. Sutton Manufacturing Co. 4 Road Co. v. The Buffalo and P. R. R. Co. 20 
 Cush. 152. Barb. 644. 
 
 f The Ellicottville and Great Valley Plank- 
 
 11 Wend. 149. But if the owner accepts the compensation awarded for the excess, 
 he cannot afterwards object to the taking of that excess. Embury v. Conner, 3 N. 
 Y. 511. 
 
474 LAW OF THE LAND. 
 
 of the power of eminent domain, but not without just compen- 
 sation being made or provided for before the taking is absolutely 
 consummated. The right of compensation, however, does not at- 
 tach in cases where the value of property is merely impaired 
 and the title to it not divested, nor does it exist in cases where the 
 right to the property taken is not absolutely vested at the time of 
 the legislative 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 guaranties 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 mag- 
 nitude. 
 
 The Law of the Land, and due Course of Law. We next 
 come to the great constitutional provision which guarantees to 
 life, liberty, and property the protection of law. Magna Carta 
 declares, " Nullus liber homo capiatur vel imprisonetur, aut dis- 
 saisietur, aut relegatur, aut exulatur, aut aliquo modo destruetur, 
 nee super eum ibimus, nee super eum mittemus, nisi per legate 
 judicium parium suorum, vel PER LEGEM TERETE." * And de- 
 ducing its origin from this grand original, this important lim- 
 itation of legislative power is to be found, I believe, without 
 exception, in the Constitution 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, (a) 
 3 V ' 
 
 * Magna Carta, 29. x^i <r\*y *^ e phrases " Law of the land " and " due proc- 
 
 f As to the identity of meaning between ess of law," see Mayo v. Wilson, 1 N. H. R. 55. 
 
 (a) Constitutional Provisions. The following are all the provisions in the exist- 
 ing State Constitutions which, in express terms, relate to " due process of law " or 
 "the law of the land:" 
 
 No person shall be deprived of [his] life, liberty, or property, without [but by] 
 [except by] due process of law. Alabama, I, 8 ; Arkansas, I, 9 ; California, I, 8 ; 
 Connecticut, I, 9 ; Florida, Dec. of Rights, 9 ; Georgia, I, 3 ; Illinois, II, 2 ; Iowa, I r 
 9 ; Michigan, VI, 32 ; Minnesota, I, 7 ; Mississippi, I, 2 ; Nevada, I, 8 ; New York, 1, 6 ; 
 West Virginia, III, 10 [adding " and the judgment of his peers "]. No person shall be 
 accused or arrested or detained, except in cases ascertained by law, and according to 
 the forms which the same has prescribed ; and no person shall be punished but by 
 virtue of a law established and promulgated prior to the offence, and legally ap- 
 
LAW OF THE LAND. 475 
 
 Much discussion has taken place in regard to what is meant 
 by the phrase " the law of the land." Perhaps, in most respects 
 there is nowhere to be met with a better definition of it than is 
 to be found in the argument 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 pro- 
 ceeds upon inquiry, and renders judgment only after trial. The 
 meaning is, that every citizen shall hold his life, liberty, prop- 
 erty, 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." (a) 
 
 plied. Alabama, I, 9. No person shall be arrested, detained, or punished, except in 
 cases clearly warranted by law. Connecticut,!, 10. Every person [all persons] for 
 injury done him [suffered] in his lands, goods, [property], person, or reputation, shall 
 have [adequate] remedy by due process [course] of law. Kansas, Bill of Rights, 18; 
 Louisiana, 1,10; Nebraska, 1,9; Ohio, I, 16 ; Oregon, I, 10; West Virginia, III, 17; 
 Indiana, 1, 12. No person shall be held to answer for a criminal offence without due 
 process of law. Wisconsin, I, 8. 
 
 Nor shall [can] he be deprived of [his] life, liberty, or property, [or privileges, 
 Maine], unless [but] by the judgment of his peers or the law of the land. Delaware, 
 I, 7; Kentucky, XIII, 12; Maine, I, 6; Missouri, I, 18; Pennsylvania, IX, 9; Rhode 
 Island, I, 10. Nor can any person [no man shall] be [justly] deprived of his liberty, 
 except by the law of the land or the judgment of his peers. Vermont, Pt. I, 10; 
 Virginia, I, 10. No member [citizen] of [person in] this State shall be disfranchised 
 or deprived of any of the rights or privileges secured to any citizen thereof ["now 
 enjoyed," 8. C.], unless [ a the same is done," Ark.] by the law of the land or the 
 judgment of his peers [" except as hereinafter provided," Ark.] Arkansas, V, 37 ; 
 Minnesota, I, 2 ; New York, I, 1 ; South Carolina, I, 34. 
 
 No man ought to [shall] be taken, or imprisoned, or disseized of his freehold, 
 liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or de- 
 prived of his life, liberty, or property, but by the judgment of his peers, or by the 
 law of the land. Maryland, Dec. of Rights, 23; Tennessee,!, 8; [same, except omit- 
 ting the words "destroyed" and "by the judgment of his peers or"]. North Caro- 
 lina, I, 17. 
 
 No subject [person, S. C.] shall be arrested, imprisoned, despoiled, or deprived 
 [dispossessed, S. C.] of his property, immunities, or privileges, put out of the pro- 
 tection of the law, exiled, or deprived of his life, liberty, or estate, but by the judg- 
 ment of his peers or the law of the land. Massachusetts, Pt. I, 12 ; New Hampshire, 
 Pt. I, 15 ; South Carolina, I, 14. 
 
 No citizen of this State shall be deprived of his life, liberty, property, or priv- 
 ileges, outlawed, exiled, or in any manner disfranchised, except by due course of the 
 law of the land. Texas, I, 16. 
 
 (a) Guaranty of Due Process of Law. This guaranty secures a fair trial after no- 
 tice, except in certain matters of public concern, like taxation, where such protection 
 of individual rights could only be secured by a disproportionate sacrifice of public 
 
476 LAW OF THE LAND. 
 
 The same doctrine lias been declared in a very elaborate 
 case in the State of New York. An act of that State authoriz- 
 
 interests. The same principle, however, applies here as in the case of jury trial, 
 namely, that proceedings and methods which were in existence at the common law, 
 or were in existence by statute at or before the adoption of the Constitution, are to 
 be considered as a part of the "due process of law" required by the Constitution, 
 and as legal and valid notwithstanding this constitutional guaranty. Due process of 
 law refers not to the "process" ~by which the property is taken, but to judicial pro- 
 ceedings in which it is taken ; such proceedings are not necessarily jury trials. 
 Squares v. Campbell, 60 Barb. 391 ; and it was very concisely and accurately said by 
 Mr. Justice Edwards, in Westervelt v. Gregg, 12 N. Y. 209, that "Due process of law 
 undoubtedly means, in the due course of legal proceedings, according to those rules 
 and forms which have been established for the protection of private rights." " Due 
 process of law " means the same as " law of the land," namely, that laws shall be gen- 
 eral in their operation, affecting all alike. Sears v. Cottrel, 5 Mich. 251. The follow- 
 ing cases are illustrative of these principles. The relator, being a private in a militia 
 regiment in time of peace, was proceeded against before a regimental court martial 
 for delinquencies, such as absence from drill, and the like. He was fined, and a war- 
 rant was issued by the court to collect the fine from his goods and chattels, and in 
 default thereof to arrest him and confine him in a jail. These proceedings were in 
 pursuance of a statute. On review by certiorari the statute was held valid, and the 
 proceedings were affirmed. Courts martial in the militia existed at the adoption of 
 the Constitution, and therefore the provisions as to jury trial aad due process of law 
 do not apply to them. People ex rel. Underwood v. Daniell, 50 N. Y. 274, affirming 
 s. c. 6 Lans. 44. As to the validity of a statute allowing judgment against an absent 
 defendant without publication, upon the appointment of an attorney for him by the 
 court, see Ware v. Robinson, 9 Cal. 107. Laws allowing judgment binding the joint 
 property of joint debtors on service of process upon one of them, have been held valid. 
 Brooks v. Mclntire, 4 Mich. 816. And a statute providing that after judgment 
 against a corporation, the officers thereof shall be summoned to show cause why the 
 property of individual stockholders should not be bound, instead of summoning the 
 stockholders themselves, is, it seems, constitutional. Hampson v. Weare, 4 Iowa, 13. 
 Also a statute allowing executors, etc., to compromise future contingent rights with 
 the consent of the court, upon the appointment of some suitable person to represent 
 such future contingent interests before the court, was held valid. Clarke v. Cordis, 
 4 Allen, 466. A statute for foreclosure of mortgages by notice and sale, at least as to 
 all mortgages made after the law had gone into effect, was sustained in Boyd v. Elles, 
 11 Iowa, 97. 
 
 Service by publication in civil proceedings where personal service is impractica- 
 ble, is due process of law. In re Empire City B'k, 18 K Y. 199; Hamilton &c. Ins. 
 Co. v. Parker, 11 Allen, 574; Bond v. Hiestand, 20 La. An. 139; Mason v. Messenger, 
 17 Iowa, 261; Burnam v. Commonwealth, 1 Duv. (Ky.) 210. But notice by publica- 
 tion to persons within the Confederate lines was held void in Dean v. Nelson, 10 
 Wai. 159. This decision, however was based upon the effect of war. Where the 
 proceeding is in rem for forfeiture, notice to the owner is not indispensable. Gray v. 
 Kimball, 42 Me. 299 ; and see State v. Brennan's Liquors, 25 Conn. 273. But that 
 there must be in such in rem proceedings some notice, actual or constructive, beyond 
 the mere seizure itself, and some opportunity to defend, see Donovan v. Vicksburg, 
 
LAW OF THE LAND. 477 
 
 ing private roads to be laid out over the lands of an owner 
 without his consent, provided for the damages to be assessed 
 
 29 Miss. 247 ; Hibbarcl v. People, 4 Mich. 125. A lien law as to vessels was held 
 void which allowed sale of the vessel without personal notice or trial. Parsons v. 
 Russell, 11 Mich. 113. But, per contra, a lien law as to vessels was held valid, there 
 being sufficient constructive notice and opportunity for defence. Happy v. Mosher, 
 48 N. Y. 313. A statute of Michigan allowing rafting and booming corporations to 
 be organized, with power to take control without consent of the owners of logs 
 found on public waters, and to assess their own charges for such service, and to sell 
 the logs to pay such charges, was declared void as violating most of the fundamental 
 guaranties of private property. Ames v. Port Huron &c. Co. 11 Mich. 139. A stat- 
 ute forfeiting goods, etc., exposed for sale near religious meetings, was held void in 
 Pennsylvania, as not providing for trial. Fetter v. Wilt, 46 Perm. St. 457 : sed qu., 
 for such statutes providing for similar summary proceedings are generally sustained 
 as proper police measures to preserve the peace. In New York there are certain 
 Indian reservations, the title to the land being in the respective tribes without power 
 of alienation, and a statute for the summary removal of white squatters from such 
 reservations was held valid, on the ground that they had and could have, under the 
 Constitution and laws, no such property or right as is protected by the constitutional 
 guaranty, such removal adjudicating no title. People v. Dibble, 1 6 N. Y. 203. It 
 should be remarked that this decision proceeds upon the peculiar and exceptional 
 condition of the Indian lands in question, rather than upon any general principles. 
 
 Summary proceedings to enforce collection of taxes are valid ; they do not fall 
 within the Constitutional guaranty from the necessities of the case. High v. Shoe- 
 maker, 22 Cal. 363 ; Commonwealth v. Byrne, 20 Gratt. 165. Clauses as to trial by 
 jury, due process of law, etc., are not applicable to questions of revenue and taxation 
 between the public and an individual. Statutory prohibition of an injunction to 
 restrain collection of tax was held valid. Pullan v. Kinsinger, 2 Abb. C. C. 94 ( 19 
 of Act of July 13, 1866, as amended March 2, 1867, 14 U. S. Stat. at Large, 152, 475). 
 But a statute for forfeiture to the State on default in payment of taxes was held void 
 (Handy, J., dissenting). Griffen v. Mixon, 38 Miss. 424; Baker v. Killy, 11 Minn. 
 480 ; and see also Martin v. Snowden, 18 Gratt. 100* An act directing that upon 
 conviction for a certain offence the defendant shall be adjudged indebted to the com- 
 missioners of pilotage in a certain sum, and that judgment shall be entered for such 
 sum, though such commissioners are no parties to the proceedings, is void. Ex parte 
 Nightengale, 12 Fla. 272. A statute for collecting taxes by distress and sale of any 
 property in the possession of the person taxed, and giving the true owner an action 
 against such person was held constitutional by a divided court. Sears v. Cottrell, 5 
 Mich. 250. 
 
 A State Constitution provided that all persons shall find " a certain remedy in the 
 laws." This was held to be violated by a statute exempting a particular case from 
 the general law, e. g., a statute providing that no costs shall be recoverable in pro- 
 ceedings to set aside certain tax assessments in a designated city. Durkee v. Janes- 
 ville, 28 Wise. 464. The amendment of the Wisconsin Constitution, Art. I, 8, in 
 1870, strikes out the words "unless by the presentment or indictment of 'a grand 
 jury," and inserting the words " without due process of law," so that the section 
 reads, " no person shall be held to answer for a criminal offence without due process 
 of law ;" Held, that since this amendment persons may be tried for felonies without 
 
478 LAW OF THE LAND. 
 
 by a jury of six freeholders, and declared that the road should, 
 when laid out, be for the use of the applicant and his assigns ; 
 
 the interposition of a grand jury. Rowan v. State, 30 Wise. 129. See this case for 
 a very elaborate discussion of the meaning of due process of law. 
 
 Unreasonable Conditions. The Legislature cannot impose unreasonable conditions 
 upon the assertion of rights to property or person. 
 
 ' Thus it has been held that the Legislature cannot make payment of redemption 
 money a condition precedent to the owner's setting up his paramount title against a 
 void tax sale. Conway v. Cable, 37 111. 82; Reid v. Tyler, 56 111. 288. But a law 
 requiring defendant in an action by holder of a tax certificate to make deposit of the 
 tax was held valid. Smith v. Smith, 19 Wise. 615. And an act requiring thirty per 
 centum of the taxes paid by the purchaser since the sale to be paid by the owner as 
 a condition of redemption from the tax sale, is valid. Mulligan v. Hintrager, 18 
 Iowa, 170. And a statute requiring the plaintiff in ejectment against the holder 
 under a tax title, where taxes have been paid and improvements made by the latter, 
 to make an affidavit that he has tendered the taxes, costs, interest and value of im- 
 provements to the holder and has been refused, as a condition to prosecuting the 
 action, was sustained in Pope v. Macon, 23 Ark. 644; Craig v. Flanagin, 21 Ark. 319. 
 A statute prescribing the forfeiture of twenty-five per centum of the amount of his 
 taxes as a penalty on a delinquent tax payer was also upheld in Scott v. Watkins, 22 
 Ark. 556. AJI act requiring the whole land to be sold irrespective of whether the 
 tax could be made by a sale of less, is, it seems, unconstitutional. Martin v. Snow* 
 den, 18 Gratt. 100. 
 
 A statute requiring an oath of loyalty from attorneys was held valid in Cohen v. 
 Wright. 22 Cal. 293 ; but see Cummings v. Missouri, 4 Wai. 277 ; and Ex parte Gar- 
 land, Id. 333 ; and see, also, " Ex Post Facto Laws." 
 
 Rules of Evidence. Although the power of the Legislature over rules of evidence 
 is a large one, and extends in general to their alteration, and to the application of the 
 new rules to existing suits and causes of action, yet it cannot be so exercised as to 
 disturb vested rights of property or to take away property, for this would be a viola- 
 tion of the guaranty of due process of law. 
 
 Thus the Legislature has no power to make a tax deed conclusive evidence of 
 matters vital to the validity of the proceedings. Corbin v. Hill, 21 Iowa, 70 ; Abbott 
 v. Lindenbower, 42 Mo. 162 ; and see Wright v. Cradlebaugh, 3 Nev. 341. But other- 
 wise as to mere matters of ^regularity, but nonessentials. Hurley v. Powell, 31 Iowa, 
 64 ; and see note " Curative Statutes." 
 
 A statute authorizing a judge in proceedings to restore records destroyed by fire 
 to rely upon his own recollection in determining facts, was held invalid in Kimball 
 v. Connor, 3 Kans. 414. 
 
 Limiiations of Actions. The principle of limitations of actions cannot be so ap- 
 plied by the Legislature as t take away property without due process of law. Upon 
 this ground an act making a tax deed conclusive after five years, irrespective of pos- 
 session, was held invalid in Groesbeck v. Seeley, 13 Mich. 329 (Martin, C. J., dissent- 
 ing) ; Baker v. Kelly, 11 Minn. 480; Harding v. Butts, 18 111. 502; but see Newland 
 v. Marsh, 19 111. 376 ; Stearns v. Gittings, 23 111. 387. 
 
 But certain laws based partly on the doctrine of escheats and partly on the pre- 
 sumptions growing out of a lapse of time, are valid, e. g., a law directing clerks of 
 courts after money has remained in their offices a specified time to the credit of pri- 
 
LAW OF THE LAND. 479 
 
 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" (/&. V). After show- 
 ing that the act worked a transfer of property from one indi- 
 vidual 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 pur- 
 pose of working the wrong. That construction would render 
 the restriction absolutely nugatory, and turn this part of the 
 Constitution into mere nonsense. The people would be made 
 to say to the two Houses, ' You shall be vested with the legis- 
 lative 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 wrong unless you choose to do it." " The 
 
 meaning of the section is, that no member of the State shall be 
 disfranchised or deprived of any of his rights and privileges, 
 unless the matter shall be adjudged against him upon trial had 
 according to the course of the common law. It must be ascer- 
 tained 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." Bo, of the phrase " due process of 
 law," it was said, " It cannot mean less than a prosecution or a 
 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 
 
 vate persons to pay the same into the county treasury. Deaderick v. County Court, 
 1 Cold. 202. 
 
480 LAW OF THE LAND. 
 
 the latter can be taken without a forensic trial and judgment, 
 there is nQ security for the others. If the Legislature can take 
 the property of A and transfer it to B, they can take A himself, 
 and either shut him up in prison or put him to death. But 
 none of these things can be done by mere legislation. There 
 must be due process of law." ' In North Carolina and Tennes- 
 see, the term law of the land has received the same construc- 
 tion, f 
 
 In New York, the subject has been again recently consid- 
 ered, in reference to the temperance laws. An act, passed in 
 1855 (9th April), entitled An act for the prevention of intem- 
 perance, pauperism and crime, declared substantially that in- 
 toxicating 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 misdemeanor, 
 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 for- 
 feited and destroyed. Proof of the sale of liquor was to be 
 considered sufficient to sustain an averment of an illegal sale, 
 and proof of delivery to be prima, facie evidence of sale. No 
 person was to be allowed to maintain 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 liquors kept in violation of tne act 
 should be deemed a public nuisance. Toynbee and Berberich 
 having been found guilty of violating the act, appealed to the 
 Supreme Court ; and the act was 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 property ; that 
 
 * Taylor v. Porter, per Bronson, J., 4 Reed v. "Wright, 2 Greene, Iowa, 22. In 
 
 Hill, 140. Nelson, J., dissented, on the ground Texas, James v. Reynolds, 2 Texas, 251. In 
 
 of the antiquity of the system of laying out Pennsylvania, Brown v. Heummel, 6 Barr, 87, 
 
 private roads in the State of New York, and and Ervine's Appeal, 16 Penn. R. 256; Kin- 
 
 the universal acquiescence in its propriety. ney v. Beverly, 2 Hen. & Munf. 336 ; Arrow- 
 
 f Hoke v. Henderson, 3 Dev. 12; Jones smith v. Burlingim, 4 M'Lean R. 498; and 
 
 v. Perry, 10 Ycrg. 59. See also, in Iowa, Blackwejl on tax Titles, 27, 34. 
 
LAW OF THE LAND. 481 
 
 the prohibition of its sale worked a virtual deprivation of 
 property ; that to do this by fines, forfeitures, and imprison- 
 ment, 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, prelimina- 
 rily, to prove that the liquor was lawfully kept ; that it was 
 not competent for the Legislature to declare any recognized 
 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 Constitution.* 
 
 Some other decisions may be noticed. The vested interest 
 of a husband in a legacy bequeathed to his wife cannot be al- 
 tered by subsequent legislation; and the act of 1848, by which 
 it was attempted so to operate retrospectively, is unconstitu- 
 tional on the ground that it takes away property without due 
 process of law.^ 
 
 We have already \ had occasion to notice that certain sum- 
 mary administrative proceedings, have been sustained against 
 the objection that they did not conform to the law of the land. 
 So, in Louisiana, the constructive service of a tax bill, by adver- 
 tisement in the official 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 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 
 
 * People v. Berberich & Toynbee, 11 ture, founded on considerations of public poll- 
 Howard Pr. R. 289. Mr. Justice Brown deliv- cy tending to promote the morals, health, and 
 ered the leading opinion. Mr. Justice Strong, safety of the community. The whole discussion 
 concurring with him, adverted to the inva- is very able, and of great interest to all per- 
 sion of the rights of property effected by the sons investigating the fundamental principles 
 abolition of slavery, and observed that the of our Government. The decision h^s been 
 question whether it was competent for the affirmed on appeal, and has been reported 
 Legislature to prohibit the manufacture of while these p, ges are passing through the 
 liquors, was not before them. Mr. Justice press. Wyneliamer v. The People, 3 Kernan, 
 Rockwell concurred in the reversal on a mi- 378. 
 
 nor point that of the defendant being tried at f Westervelt v. Gregg, 2 Kernan, 202. 
 
 the speci'il sessions; but dissented from his \ Ante, p. 303. 
 
 brethren in their general views of the consti- || City of New Orleans v. Cannon, 10 La. 
 
 tutionality of the act, holding it to be a legiti- Anu. R. 764. 
 mate exercise of the discretion of the Legisla- 
 
 Sl 
 
482 TRIAL BY JURY. 
 
 of giving notice to parties, it is not for us to set aside the stat- 
 ute unless it is clearly unconstitutional." * 
 
 Trial by Jury. The trial by jury is very dear to the race 
 to which we belong. There can hardly be named any institu- 
 tion which has survived so many changes, or existed under 
 such various forms of government. Nullus liber homo capietur, 
 vel imprisonetur, nisi per legate judicium parium suorum, are 
 the words of Magna Carta, more than six centuries ago. When 
 this country threw off the Government of England, the passion- 
 ate 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 survived 
 alike their rule, that of the house of Tudor, and of the house 
 ot Stuart, and now flourishes with all its original vigor under 
 the mildest and wisest form of monarchy of which history 
 makes mention ; while during the same period, transplanted to 
 a different hemisphere, it has struck deep its roots into the new 
 soil, and is, perhaps, the most cherished institution of the great- 
 est exemplar of free and intelligent government that the world 
 has ever seen, f 
 
 The following extracts from some of the State Constitutions, 
 will give a sufficient idea of the manner in which this institu- 
 tion has been incorporated into the fundamental law of the sev- 
 eral States. It is proper to remark that the clauses here given 
 apply, as a general rule, to civil cases, and that the State Con- 
 stitutions contain special provisions in regard to the trial by 
 jury in criminal cases, (a) 
 
 * "Webster v. Alton & N. D. 9 Foster, 369, to the course of the common law." And the 
 
 384. Declaration of Independence, its eloquent re- 
 
 f The Declaration of Rights made by the cital of the causes of separation, commemo- 
 
 first Continental Congress, in 1774, declares rates among others, " acts of legislation for de- 
 
 that " the respective colonies are entitled to priving us, in many cases, of the benefits of 
 
 the reat and inestimable privilege of being trial by jury." Shepard's Const. Ttxt Book, 
 
 tried by their peers of the vicinage, according p. 262. 
 
 (a) Since the text was written great changes have been made in the organic law 
 of many of the States. New Constitutions have been adopted and oldoties modified. 
 The following is a complete list of all the clauses to be found in the present State 
 Constitutions, directly referring to the jury trial, either in criminal or in civil causes. 
 
TRIAL BY JURY. 483 
 
 The general idea intended to be conveyed by the constitu- 
 tional guaranty of the trial by jury, undoubtedly is, that all 
 
 The dates of the adoption of the existing Constitutions are given. The arrangement 
 made will enable the reader at a glance, to compare the various provisions, and to 
 perceive the general model upon which most of them are formed. 
 
 ProKisions expressly relating to Criminal Trials. " In all criminal prosecutions, the 
 accused has a right to have * * * a speedy public trial by an impartial jury." 
 Delaware, 1831, Art. I, 7; New Jersey, 1844, Art. I, 8; Rhode Island, 1842, Art. I, 
 10 ; South Carolina, 1868, Art. I, 18 ; Texas, 1869, Art. I, 8. 
 
 In the following States the provision is the same with this addition, viz., " of the 
 county or district in which the offence [or crime] shall have been committed ; " but 
 in a few instances the phrase is, "of the vicinage." Arkansas, 1868, Art. I, 8 ; 
 Illinois, 1870, Art. II, 9 ; Indiana, 1851, Art. I, 13 ; Kansas, 1859, Bill of Rights, 
 10 ; Louisiana, 1868, Title I, 6 ["parish" instead of county, and with the addi- 
 tion, " unless the venue be changed "] ; Maine, 1820, Art. I, 6 [" vicinity," and " ex- 
 cept in trials by martial law or impeachment "] ; Minnesota. 1857-8, Art. I, 6 ; Ohio, 
 1850, Art. I, 10 [" in any trial in any court "] ; Oregon, 1857, Art I, 11. 
 
 In the following States the provision, while in other respects substantially the 
 same as the foregoing, guarantees the jury trial only " in prosecutions on indictment 
 or presentment, or information." In some of these the jury must be u of the county 
 or district" or " vicinage ; " in the others the clause is silent upon that subject. 
 Alabama, 1868, Art. I, 8 [" of the county or district"]; Connecticut, 1818, Art. I, 
 9; Kentucky, 1850, Art. XIII, 12 ["of the vicinage"] ; Mississippi, 1868, Art. I, 
 7 [" of the county "J ; Missouri, 1865, Art. I, 18 [" of the vicinage"] ; Pennsylva- 
 nia, 1838, Art. IX, 9 [" of the vicinage "] ; Tennessee, 1870, Art. I, 9 [" of the 
 county"] ; Wisconsin, 1848, Art. I, 7 [" of the county or district"]. 
 
 In the following States the provision differs somewhat from the foregoing 
 general models. Georgia, 1868, Art. I, 7: "Every person charged with an offence 
 against the laws, shall have a public and speedy trial by an impartial jury," and Art. 
 V, 4, v. "There shall be no jury trial before the district judge, except when 
 demanded by the accused, in which case the jury shall consist of seven." (N. B. 
 This district judge has jurisdiction of all offences not punishable with death, or im- 
 prisonment in the State penitentiary, and such civil jurisdiction as the Legislature 
 may direct.) Icwa, 1857, Art. I, 10, and Nebraska, 1867, Art. I, 7: "In all crim- 
 inal prosecutions, and in cases involving the life or liberty of an individual, the 
 accused shall have a right to a speedy and public tri.il by an impartial jury." 
 Maryland, 1867, Bill of Rights, Art. 21: il In all criminal prosecutions, every man 
 hath a right to a speedy trial by an impartial jury, without whose unanimous con- 
 sent he ought not to be found guilty." Massachusetts, 1780, Bill of Rights, Art. 12: 
 The Legislature shall not make any law, that shall subject any person to a capital 
 or infamous punishment, except for the government of the army and navy, without 
 trial by jury." Michigan, 1850, Art. VI, 28: "In every criminal prosecution, the 
 accused shall have the right to a speedy and public trial by an impartial jury, which 
 may consist of less than twelve men in all courts not of record." New Hampshire, 1792, 
 Bill of Rights, Art. 16 : " Nor shall the Legislature make any law, that shall subject 
 any person to a capital punishment (except for the government of the army and navy, 
 and militia in actual service), without trial by jury." North Carolina, 1868, Art. I, 
 13 : " No person shall be convicted of any crime, but by the unanimous verdict of a 
 
484 TRIAL BY JURY. 
 
 contested issues of fact shall be determined by a jury, and in 
 no other way ; and this doctrine bas been very faithfully car- 
 jury of good and lawful men in open court. The Legislature may however pro- 
 vide other means of trial for petty misdemeanors, with the right of appeal." South 
 Carolina, 1868, Art. I, 14: "The General Assembly shall not enact any law that 
 shall subject any person to punishment with out trial by jury." Vermont, 1793, Bill 
 of Rights, Art. 10 : " In all prosecutions for criminal offences, a person hath a right 
 to call for a speedy public trial by an impartial jury of the county, without the unan- 
 imous consent of which jury he cannot be found guilty." Virginia, 1870, Art. I, 10: 
 " In all capital or criminal prosecutions, a man hath a right to a speedy trial by an 
 impartial jury of his vicinage, without whose unanimous consent he cannot be found 
 guilty." West Virginia, 1872, Art. Ill, 14: "Trials of crimes and misdemeanors, 
 unless herein otherwise provided, shall be by a jury of twelve men." 
 
 The following are special additional provisions. "In all criminal cases whatever, 
 the jury shtll have the right to determine the law and the fact." Indiana, 1851, Art. 
 I, 19. " In the trial of all criminal cases, the jury shall be judges of law as well as 
 of fact." Maryland, 1867, Art, XV, 5. "The Legislature shall provide by law a 
 suitable and impartial mode of selecting juries ; and their usual number and unanim- 
 ity, in indictments and convictions, shall be indispensable." Maine, 1820, Art. I, 7. 
 " All offences of a less grade than felony, may be prosecuted upon complaint under 
 oath, by any peace officer or citizen, before any justice of the peace or other inferior 
 tribunal ; and the party so prosecuted shall have the right of trial by jury, to be sum- 
 moned in such manner as may be prescribed by law." Texas, 1869, Art. V, 17. 
 
 The Constitutions of the States not included in the foregoing list, do not contain 
 any provisions expressly providing for jury trial in criminal cases. 
 
 Provisions either general in their Nature or expressly relating to Civil Causes. In 
 the following States the provision is simply, "the right of trial by jury shall remain 
 inviolate." Alabama, 1868, Art. I, 18 ; Connecticut, 1818, Art. I, 21 ; Indiana, 1851, 
 Art. I, 20 [with the words " in all civil cases " prefixed] ; Mississippi, 1868, Art. I. 12 ; 
 Missouri, 1865, Art. I, 17 ; Oregon, 1857, Art. I, 18 [with the words " in all civil 
 cases" prefixed] ; Rhode Island, 1842, Art. I, 15; South Carolina, 1868, Art. I, 11; 
 'Tennessee, 1870, Art. I, 6; Texas, 1869, Art. I, 12. 
 
 In the following States, the provision is the same as the one last above quoted, 
 -with the additions or limitations stated in each case. "The right of trial by jury 
 shall remain inviojate, and shall extend to all cases at law without regard to the 
 amount in controversy ; but a jury trial may be waived by the parties in all cases in 
 the manner prescribed by law." Arkansas, 1868, Art. I, 6 ; Minnesota, 1857, Art. I, 
 4; Wisconsin, 1848, Art. I, 5. " Shall remain inviolate ; but the Legislature may 
 .authorize trial by a jury of a less number than twelve men in inferior courts." Iowa, 
 1857, Art. I, 9; Nelrraska, 1867, Art. I, 5. " Shall remain inviolate; but the 
 Legislature may authorize the trial of civil suits, when the matter in dispute does not 
 exceed $50, by a jury of six men." New Jersey, 1844, Art. I, 7. " Shall be secured 
 to all and remain inviolate forever ; but a trial by jury may be waived by the parties 
 in all civil cases, in the manner to be prescribed by law." California, 1849-62, Art. I, 
 3 ; Florida, 1868, Art. I, 4. Same as the last, with the following addition : " And 
 in civil cases if three-fourths of the jury agree upon a verdict, it shall stand, and have 
 the same force 'and effect as a verdict by the whole jury. Provided, the Legislature 
 ;by a law passed by a two-thirds vote of all the members elected to each branch 
 
TRIAL BY JURY. 485 
 
 ried out by the judiciary. Indeed, it may be claimed for them 
 as a merit in this country, that they have never evinced any 
 
 thereof, may require an unanimous verdict notwithstanding this provision." Nevada, 
 1864, Art. I, 3. 
 
 In the following States the provision differs somewhat from the foregoing gen- 
 eral models. "Trial by jury shall be as heretofore." Delaware, 1831, Art. I, 4. 
 " The court shall render judgment without the verdict of a jury, in all civil cases 
 founded on contract, when an issuable defence is not filed on oath." Georgia, 1868, 
 Art. V, 3, iii; and, "the right of trial by jury, except when it is otherwise provided 
 in this Constitution, shall remain inviolate." Ibid. 13. " The right of trial by 
 jury as heretofore enjoyed, shall remain inviolate ; but the trial of civil causes before 
 justices of the peace, by a jury of less than twelve men, may be authorized by law." 
 Illinois, 1870, Art. II, 5. "The right of trial by jury shall be inviolate." Kansas, 
 1859, Bill of Rights, 5 ; Ohio, 1850, Art. I, 5. " 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." Kentucky, 1850, Art. 
 XIII, 8. " In all civil suits, and in all controversies concerning property, the par- 
 ties shall have a right to a trial by jury, except in cases where it has heretofore 
 been otherwise practiced." Maine, 1829, Art. I, 20. " The inhabitants of Maryland, 
 are entitled to the common law of England, and the trial by jury, according to the 
 course of that law." " The parties to any cause may subnr't the same to the court 
 for determination without the aid of a jury." "The right of trial by jury, of all 
 issues of fact in civil proceedings in the several courts of law in this State, where 
 the amount in controversy exceeds the sum of $5, shall be inviolably preserved." 
 Maryland, 1867, Dec. of Rights, 5, and Art. IV, 8, and Art. XV, 6. " In all 
 controversies concerning property, and in all suits between two or more persons, 
 except in cases in which it has heretofore been other ways used and practiced, the 
 parties shall have a right to a trial by jury; and this method of procedure shall be 
 held sacred, unless in causes arising on the high seas, and such as relate to mariners 
 wages, the Legislature shall hereafter find it necessary to alter it." Massachusetts, 
 1780, Dec. of Rights, Art. 15 ; New Hampshire, 1792, Dec. of Rights, Art. 20. " The 
 Legislature may authorize trial by a jury of a less number than twelve men." " 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." Michigan, 1850, Art. IV, 46, and Art. VI, 27. " The trial by jury in all 
 cases in which it has been heretofore used, shall remain inviolate forever ; but a jury 
 trial may be waived by the parties in all civil cases, in the manner to be prescribed 
 by law." New York, 1846, Art. I, 2. "In all controversies at law respecting prop- 
 erty, the ancient mode of trial by jury is one of the best securities of the rights of 
 the people, and ought to remain sacred and inviolable." " In all issues of fact joined 
 in any court, the parties may waive the right to have the same determined by jury, 
 in which case the finding of the judge upon the facts shall have the force and effect 
 of a verdict of a jury." North Carolina, 1868, Art. I, 19, and Art. IV, 18. " Trial 
 by jury shall be as heretofore, and the right thereof remain inviolate." Pennsylva- 
 nia, 1838, Art. IX, 6. " Where any issue in fact proper for the cognizance of a jury 
 is joined in a court of law, the parties have a right to trial by jury, which ought to 
 be held sacred." " Trials of issues proper for the cognizance of a jury, in the Su- 
 preme and county courts, shall be by jury, except when the parties otherwise agree." 
 
486 TRIAL BY JURY. 
 
 
 
 jealousy of the great co-ordinate power of the jury, and that 
 they have always striven to carry out the theory of our system 
 in regard to it.(#) So, in Indiana, where a statute exists for 
 
 Vermont, 1793, Dec. of Rights, Art. 12, and Part II, 31 . " In controversies respecting 
 property, and in suits between man and man, the trial by jury is preferable to any 
 other, and ought to be held sacred." Virginia, 1870, Art. I, 13. " In suits at com- 
 mon law, when the value in controversy, exclusive of interest and costs, exceeds $20, 
 the right of trial by a jury of twelve men, if required by either party, shall be pre- 
 served; except that in appeals from the judgments of justices, a jury of a less 
 number may be authorized by law ; but in trials of civil cases before a justice no 
 jury shall be allowed." West Virginia, 1872, Art. Ill, 13. The Constitution of 
 Texas, 1869, in addition to the general formula already quoted, contains the follow- 
 ing special provisions : " In all cases of law or equity, when the matter in contro- 
 versy shall be valued at or exceed $10, the right of trial by jury shall be preserved, 
 unless the same shall be waived by the parties or their attorneys, except in cases 
 where a defendant may fail to appear and answer within the time prescribed by law, 
 and the cause of action is liquidated and proved by an instrument in writing." 
 Art. V, 16. "In all cases arising out of a contract before any inferior tribunal, 
 when the amount in controversy shall exceed $10, the plaintiff or defendant shall, 
 upon application to the presiding officer, have the right of trial by jury." Ibid. 25. 
 " In the trial of all causes in the District Court, the plaintiff or defendant shall, upon 
 application made in open court, have the right of trial by jury, to be governed by the 
 rules and regulations prescribed by law." INd. 26. 
 
 (a) General Principles. While it is very important, in estimating the force and 
 effect of any particular decided case, to ascertain with accuracy the exact constitu- 
 tional provision which the decision purports to interpret, yet there is a general prin- 
 ciple which the courts have almost uniformly recognized as the basis of their 
 decisions, and which is in fact plainly expressed in most of the State Constitutions. 
 This fundamental principle of interpretation is that in general the constitutional 
 provision does not create, nor enlarge, nor restrict the right of trial by jury, but 
 retains it and preserves it inviolate in all those classes of cases, civil and criminal, in 
 which it existed at the time of the adoption of the Constitution. The whole discus- 
 sion of the subject consists in arranging and classifying the cases in which this gen- 
 eral principle has been applied, and in ascertaining the exceptions to its operation, 
 most of which will be found to have originated from some peculiar and exceptional 
 language of some particular Constitution. 
 
 Civil Cases. From the list given in a preceding note it appears that in a very 
 large majority of States the operative words of the general provision or the provision 
 expressly applying to civil cases are, " the right of trial by jury shall remain invio- 
 late." This language clearly embodies the principle above stated, and indicates the 
 intent that the clause is only to apply to those classes of cases in which a jury was 
 employed at the time of the adoption of the Constitution ; and this interpretation 
 has been uniformly adopted by the courts. Stilwell v. Kellogg, 14 Wise. 461 ; Kop- 
 pikus v. Comm'rs, 16 Cal. 248 ; Whallon v. Bancroft, 4 Minn. 109 ; Whitehurst v. 
 Cohen, 53 111. 247; Lake Erie &c. R. R. v. Heath, 9 Ind. 558. In all the other States, 
 except three, the same intent is stated in yet plainer language, and the guaranty of 
 the right is expressly limited by such phrases as " as heretofore used in this State," 
 " shall be as heretofore," and the like. See Fire Department v. Harrison, 2 Hilt. (N. 
 
TRIAL BY JURY. 487 
 
 the relief of l>ona fide occupants of land who make improve- 
 ments while holding under a title which proves defective. In 
 
 Y.) 455 ; Harper v. Comm'rs. 23 Geo. 566. In three States alone this limitation is 
 not expressed, nor implied by or from .any other language than the very phrase 
 " right of trial by jury," itself: namely, Kansas and Ohio, " the right of trial by jury 
 shall be inviolate," and in Vermont. The same interpretation, however, 13 given to 
 the former of thes,e clauses, Kimball v. Connor, 3 Kans. 415 ; and in Vermont imme- 
 morial usage is looked to in order to determine in what cases a jury trial is to be al- 
 lowed. Plimpton v. Somerset, 33 Vt. 283. 
 
 It would seem that the three classes of provisions thus pointed out necessarily mean 
 one and the same thing; that whether we say "shall be inviolate," or "shall remain 
 inviolate," or " shall remain in all cases in which it has heretofore been used," the 
 rule of interpretation must be the same. This is so because the guaranty does not 
 lie in the words " shall be," "shall remain," and the like, but in the very phrase 
 " right of trial by jury," itself. This phrase, as it alone states the right, contains the 
 extent and limitation of the right. It is the right of trial by jury which exists and 
 is preserved, and what that right is is a purely historical question, a fact to be ascer- 
 tained like any other social, legal or political fact. As a Constitution speaks from 
 the time of its adoption, the fact of the right to jury trial, which is ascertained to 
 have existed at that time, must necessarily determine the meaning of the clause 
 which recognizes and preserves that right. The courts seem, with great unanimity, 
 to have accepted this general principle of construction, and not to have rested their 
 decisions upon the special language of the clause under consideration. 
 
 Where there have been two or more successive Constitutions of the same State, 
 and the court is called upon to interpret and apply this clause as it stands in the ex- 
 isting Constitution that is, in the last one of the series the question might arise, 
 whether the practice as to jury trials at the time of the adoption of that Constitution, 
 or the practice at the time of the adoption of the first or some former one of the 
 series, was to be resorted to in order to ascertain the limits and application of the 
 clause. It has been held in New York that the practice at and immed'ately preced- 
 ing the adoption of the last existing Constitution was to be resorted to, and not that 
 at the time of the adoption of a prior one, although there might be an essential 
 difference in the practice at these two epochs. "Wynehamer v. People, 1 3 N. Y. 
 378. 
 
 Criminal Oases. By referring to the list contained in the preceding note, it will 
 be seen that the general formula is, " in all criminal prosecutions," or " in prosecu- 
 tions on indictment, presentment, or information," " the accused hath a right to have 
 a speedy public trial by an impartial jury." Where the provision departs from this 
 usual model, the variation does not generally indicate an intent to make the guaranty 
 more stringent and inclusive. The fundamental principle of interpretation, already 
 stated, has also been applied with great uniformity to these clauses. The general 
 rule is settled, that those crimes and offences, or classes of crimes and offences, which 
 at the time of the adoption of a Constitution were either triable without a jury at 
 all or without a full common-law jury, are not embraced within the constitutional 
 guaranty, and may be tried in such manner as the Legislature shall prescribe. The 
 numerous cases hereinafter cited either explicitly state or impliedly assume this 
 doctrine. The few exceptions, apparent or real,, will be found to rest upon some 
 peculiar language of the Constitution they interpret. Thus in Work v. State, 2 Ohio, 
 
488 TRIAL BY JURY. 
 
 cases of this class, where the bona fide occupant has put 
 improvements on his land, and a superior title is established 
 
 N. S. 296, it was held that a statute permitting persons charged with assault and 
 battery to be tried in the Probate Court by a jury of six was invalid ; but the decis- 
 ion was chiefly placed upon the very language of the Constitution which says that 
 " in any trial in any court the accused shall be allowed a trial by an impartial jury." 
 But the court expressly recognized the general principle above stated, and carefully 
 guarded their judgment from even seeming to attack it, by saying (p. 308): "We do 
 not intend to imply a doubt of the constitutionality of the act allowing juries, before 
 justices of the peace, composed of six men. Whenever facts are to be found in any 
 proceeding in which a jury was not required by the common law, a jury of any num- 
 ber may be authorized." 
 
 The principle of interpretation thus stated has been accepted as general and fun- 
 damental. The practical difficulty has arisen in its application. As the ultimate 
 test and limit of the constitutional guaranty is to be found in a historical fact, some 
 discrepancy of judicial decision has necessarily arisen from a diversity in the early or 
 original practice in different States, in reference to jury trials in particular instances. 
 The further discussion of the subject consists in ascertaining how the principle has 
 been applied in various proceedings civil and criminal, and this will give the partic- 
 ular rules and doctrines, and will define the practice, extent and limitations of the 
 guaranty as it has been definitely interpreted. The various proceedings, civil and 
 criminal, will be separately arranged and stated. 
 
 Certain classes of civil judicial proceedings were, by the common law of England 
 and of the several States, always carried on without the intervention of a jury. Cer- 
 tain other proceedings analagous to, or modifications of, these last have from time to 
 time been created by statute. Again, certain special proceedings, civil in their 
 nature, utterly unknown at the common law, have been invented by the State Legis- 
 latures. Again, at the common law certain minor offences were triable in inferior 
 courts without a jury ; and the State Legislatures have created new offences analagous 
 to or modifications of these. Finally, civil causes involving a limited amount, have 
 been tried in inferior courts of the States generally before justices of the peace 
 without the full common-law jury. This broad generalization embraces most of the 
 cases which have given rise to questions as to the extent and limitations of the con- 
 stitutional guaranty. We will examine them separately and in detail. 
 
 Equity Suits. As no jury was requisite in equity, so the right to a jury trial does 
 not exist in equity suits where the remedy was in equity prior to the adoption of the 
 Constitution, even though the proceeding (e. g., a foreclosure suit) may have some of 
 the features of an action at law and may end in a personal judgment, and even 
 though the equity and the common-law jurisdictions and procedures may have been 
 amalgamated. Stilwell v. Kellogg, 14 Wise. 461 ; Conn. &c. Ins. Co. v. Cross, 18 
 Wise. 109. 
 
 The same is true of statutory proceedings in relation to matters which, prior to 
 the Constitution, were within the jurisdiction of equity: among these are statutory 
 proceedings for the winding up of insolvent corporations, Sands v. Kirnbark, 27 N. Y. 
 147 ; Matter of Empire City Bank, 18 jST. Y. 199 : statutory proceedings for the enforc- 
 ing liens for supplies, &c., on ships, since the lien might have been enforced in equity. 
 Sheppard v. Steele, 43 N. Y. 52 ; s. c. 3 Lans. 417. The rule seems to be, that if, in 
 addition to the original equity jurisdiction, the Legislature gives the same or a sim- 
 
TRIAL BY JURY. 489 
 
 against him, if he is willing to pay for the value of the land 
 without the improvements, the successful claimant cannot ob- 
 
 ilar remedy through means of a statutory proceeding, the latter proceeding is still 
 essentially an equitable one, and a provision for a jury trial is not essential. 
 
 But the jurisdiction of equity cannot, under color of statutory amendments or 
 proceedings, be extended by the Legislature so as to embrace matters which, at the 
 adoption of the, Constitution, were common-law rights, and within the exclusive 
 jurisdiction of common-law courts, so as to cut off the right of trial by jury. North 
 Penn. &c. Co. v. Snowden, 42 Penn. St. 488; Tabor v. Cook, 15 Mich. 322. 
 
 In some States the language of the provision is, " the right of trial by jury shall 
 remain inviolate, and shall extend to all cases at law" &c., as in Arkansas, Minnesota, 
 and Wisconsin. Under this clause it has been held, in Wisconsin, that the appoint- 
 ment of a guardian of an insane person is not within the guaranty, and the proceed- 
 ing therefor does not require a jury trial. Gaston v. Babcock, C Wise. 503. 
 
 But, on the other hand, in New Hampshire, where there is an express exception 
 of " cases wherein it has been heretofore otherwise used and practiced," it is held 
 that a party to a suit in equity has a constitutional right to a jury, if demanded at a 
 proper time. Hoit v. Burleigh, 18 N. H. 389. But this is purely exceptional, and 
 must depend upon an early practice in that State peculiar to itself. 
 
 Statutory Proceedings. It has been held that all statutory proceedings and rights 
 which did not exist at the common law are without the guaranty. The doctrine 
 lying at the bottom of these decisions is, that the guaranty applies only to rights and 
 proceedings which existed at the common law, and does not apply to any proceed- 
 ings created by statute, even though the statute existed and was in force at the 
 adoption of the Constitution, and provided for a jury trial, e. g., statutory proceed- 
 ings for the restoration of records destroyed by fire. Kimball v. Connor, 3 Kans. 414. 
 
 On the contrary, in New York, where the right of jury trial extends "to all cases 
 in which it has been heretofore used," these words have been held to be generic and 
 to cover statutory additions made since the adoption of the Constitution to the 
 classes of cases in which jury trial was in use at the time of such adoption, e. g., an 
 action for removal of buildings erected contrary to building acts. Fire Department 
 v. Harrison, 2 Hilt. 455. This doctrine was well stated in Wynehamer v. People, 1 3 
 N. Y. 426 : u The expression in all cases in which it has heretofore been used is 
 generic. It does not limit the right to the mere instances in which it had been used, 
 but extends it to such new and like cases as might afterwards arise. For instance, 
 felonies were triable only by jury ; I do not doubt that all new felonies must be tried in 
 that way, and that by force of this section." Per A. S. Johnson, J. Though this refers 
 to the language of the N. Y. Constitution, yet it expresses a general principle, and is 
 applicable to the provisions found in most, if not all, the State Constitutions. The 
 rule thus laid down in New York is undoubtedly part of the constitutional law of 
 the land. The protection of jury trial is not limited to proceedings which existed 
 at the common law, nor to the mere instances in which it existed when a -.particular 
 Constitution was adopted ; it extends to and embraces all the instances and species 
 of the classes of cases in which it was used at that time. J.f this be not the correct 
 interpretation if the doctrine of the Kansas case be accepted it would be easy for 
 a Legislature to practically abolish the jury trial, and annul the right to it. 
 
 In Vermont it is held that the guaranty extends to all cases fit to le tried "by a 
 jury according to the course of the common law, although the cause of action arise 
 
490 TRIAL BY JURY. 
 
 tain possession until he pays the value of the improvements 
 made by the occupant. But where a statute of this kind pro- 
 
 on a statute passed since the adoption of the Constitution ; and this is simply stating 
 the same doctrine in another form. Plimpton v. Somerset, 33 Vt. 283. 
 
 Special Proceedings, Private. Certain special proceedings, although brought to 
 enforce rights purely private, have been held in different States not to be embraced 
 within the guaranty ; but in many other States the practice is very different. Among 
 these are, Mandamus : State ex rel. v. Sharswood, 15 Minn. 221 ; Divorce : Coffin v. 
 Coffin, 55 Me. 361 ; Contested Elections: Ewing v. Filley, 43 Penn. St. 384 ; Contempt 
 of Court, though out of the presence of the court, e.g ., tampering with a juror : State 
 v. Doty, 3 Vroom (N. J.) 403. But in Iowa a statute was held invalid which pro- 
 vided for the examination of an execution debtor and for an order that he deliver 
 up to the creditor any non-exempt property discovered by the examination, and em- 
 powered the court to punish a refusal on his. part to answer or to deliver as a 
 " contempt." Ex parte Grace, 12 Iowa, 208. But this decision is probably excep- 
 tional; for a similar statute exists in many States (in most of those which have 
 adopted the N. Y. Code of Procedure), and seems to have raised no objection. 
 
 Special Proceedings, Public. Certain summary proceedings or inquisitions by the 
 State have generally been held not to be within the guaranty, e. g., tax proceedings. 
 Crandall v. James, 6 R. I. 144 ; Harper v. Commrs. 23 Geo. 566. 
 
 In several of the States proceedings under the right of eminent domain, even 
 though the right be delegated to corporations or individuals (e. g. , proceedings to 
 take land for railroads), have also been held not to be covered by the guaranty, and 
 therefore statutes are held valid which provide for assessment of compensation by 
 appraisers or commissioners, rather than by a jury. This seems now to be the gener- 
 ally received doctrine, although not universally accepted. In New York the present 
 Constitution (of 1846) expressly provides for commissioners, but the courts had so 
 held prior to 1846. Hegeman v. Blake, 19 Cal. 579 ; Donberger v. Reed, 11 Ind. 
 420 ; Beekman v. Saratoga &c. R. R. 3 Paige, 45 ; Livingston v. Mayor, 8 Wend. 85 ; 
 Backus v. Lebanon, 11 N. H. 19; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588. In 
 the last case the court said (p. 599): "The Constitution does not apply to the case 
 of taking private property for public purposes, but to suits in courts of justice, to 
 some known and fixed mode of judicial proceeding for the trial of issues of fact in 
 civil and criminal cases in courts of justice." This language seems to be too broad 
 and sweeping, as it restricts the right of jury trial to " suits" and "cases," and de- 
 nies it in any and all " proceedings " which do not fall within either of those denom- 
 inations. A jury is necessary. Lake Erie &c. R. R. v. Heath, 9 Ind. 558. 
 
 Enlarging Jurisdiction of Inferior Courts. Where justices' courts, acting without 
 a jury, or with a jury of less than twelve, were in existence at the time of the adop- 
 tion of the Constitution, with a certain defined jurisdiction, it has been repeatedly 
 held in many States that additional jurisdiction as to amount may be subsequently 
 conferred, and especially when their jurisdiction has been from time to time enlarged. 
 Dawson v. Horan, 51 Barb. 459 ; People v. Lane, 55 Barb. 168 ; Knight v. Campbell, 
 62 Barb. 16 ; Curtiss v. GiU, 34 Conn. 49 ; Guile v. Brown, 38 Conn. 237 ; Hapgood 
 v. Doherty, 8 Gray, 373 ; Norton v. McLeary, 8 Ohio, N. S. 205. But the substantial 
 right must not be impaired. Ibid. As statutes enlarging jurisdiction of justices' 
 courts frequently give a right of appeal, for additional cases under this head see 
 " Appeal," post. 
 
TRIAL BY JURY. 491 
 
 videtl that the value of the improvements, and of the land 
 without the improvements, should be assessed by three persons 
 
 Appeal. Statutes giving additional civil jurisdiction to inferior courts, or making 
 offences triable before such courts without a jury, or without a common-law jury, 
 frequently provide for an appeal to a higher court with a common-law jury. Such 
 statutes have generally been held valid on the ground that they practically preserve 
 the right of a jury trial. State v. Beneke, 9 Iowa, 203 ; State v. Brennan's Liquors, 
 25 Conn. 278; Gaston v. Babcock, 6 Wise. 503 ; Jones v. Robbins, 8 Gray, 329 ; Nor- 
 ristown &c. Co. v. Burkett, 26 Ind. 53; Haines v. Levin, 51 Penn. St. 412; Bryan v. 
 State, 4 Iowa, 349 ; Beers v. Beers, 4 Conn. 535. And the same has been generally 
 held even though the statute require a bonder bail with surety on the appeal, in order 
 to make it effectual. Hapgood v. Doherty, 8 Gray, 373 ; Morford v. Barnes, 8 Yerg. 
 444 ; Stewart v. Mayor, 7 Md. 500. But on the contrary it has been held in Minne- 
 sota, that such a statute requiring surety was invalid, the court expressly stating, 
 however, that if the right of appeal had been made absolute and unrestricted, the 
 constitutional guaranty would not hare been violated. -State v. Everett, 14 Minn. 
 439. See also People v. Carrol, 3 Park. Cr. 22. 
 
 Where there is a right of appeal to a jury, and also a statutory mode of revision 
 without a jury, one who takes advantage of the latter cannot complain. Des Moines 
 v. Layman, 21 Iowa, 153. 
 
 Minor Offences and Quasi Criminal Proceedings. Minor offences have been very 
 generally held not to be embraced within the constitutional guaranty. The reason 
 is two-fold : (1) beause at the common law many such offences were triable in 
 inferior courts without a jury, and this practice prevailed in most States at the adop- 
 tion of their Constitutions; and (2) because many such offences have been created by 
 statute. There is, however, a considerable discrepancy among the decisions of the 
 different States on this subject, growing partly out of diversity in the early practice 
 of trying such offences, and partly out of the peculiar language of the Constitution. 
 The following are some illustrations of this doctrine: A statute authorizing persons 
 charged with petit larceny to be tried in the special sessions without a jury, held 
 valid because similar statutes existed at the adoption of the Constitution. Murphy 
 v. People, 2 Cow. 815; People v. Goodwin, 5 Wend. 251. The same as to disorderly 
 persons. Duffy v. People, 6 Hill, 75 ; Plato v. People, 3 Parker Cr. 586. The same 
 as to enforcing a municipal ordinance by a short imprisonment or a small fine. Mc- 
 Gear v. Woodruff, 4 Vroom (N. J.) 213, the court saying the constitutional guaranty 
 " was not intended to introduce a trial by jury in cases where it did not exist before." 
 In Louisiana, where the Constitution contained a general guaranty of trial by jury, 
 and also in another clause provided for the" trial of certain minor offences before mu- 
 nicipal officers, it was held that such offences were excepted from the general guar- 
 anty. State v. Gutierrez, 15 La. Ann. 190; State v. Noble, 20 La. Ann. 325. And 
 where there is no express provision of the Constitution as to minor offences, the 
 guaranty must be construed with reference to statutes in force at the time of the 
 adoption of the Constitution, and the trial of minor offences before inferior tribunals 
 according to the analogy of such statutes, is not prohibited by the constitutional 
 provision preserving the jury trial. Byers v. Commonwealth, 42 Penn. St. 89. In 
 Ohio no jury is necessary in statutory proceedings for the commitment of a minor to 
 a reformatory institution. Prescott v. State, 19 Ohio, N. S. 184. 
 
 But while this doctrine is established as a part of the general constitutional law 
 
492 TRIAL BY JURY. 
 
 to "be appointed by the court, it was held that this part of the 
 law was unconstitutional and void, on the ground that the 
 
 of the States, statutes have very frequently been pronounced void, because, while 
 professing to be founded upon the same principle, they in fact exceeded and violated 
 it. The following are some illustrations : The provisions of a prohibitory liquor law 
 (so called) which allowed offences against it to be tried in the special sessions with- 
 out a jury, or with a jury of six, were held void, because at the time of the adoption 
 of the Constitution misdemeanors by violation of the excise laws were triable only in 
 the general sessions or Oycr and Terminer. Wyneharner v. People, 13 N. Y. 378, 
 472, 484. Again, it is held that the Legislature may add new offences of the same 
 grade or class as those triable without a jury at the adoption of the Constitution 
 e. g., disorderly persons and may make them triable in the same manner ; but can- 
 not prescribe such a method of trial for what was at the cominom law an indictable 
 offence e. g., the keeping a house of ill fame. Warren v. People, 3 Park. Cr. 544. 
 A statute of Rhode Island making the right to a jury in a particular criminal case 
 (violation of a prohibitory liquor law) to depend upon the accused giving a bond, 
 with surety, for the payment of the penalty and costs, was declared invalid. Greene 
 v. Briggs, 1 Curtis C. C. 311. In Ohio a statute providing for the trial of prosecu- 
 tions for assault and battery and similar minor offences before the Probate Court 
 with a jury of six, was held void. This has sometimes been called a leading case, 
 but the decision was avowedly based upon the special language of the Ohio Consti- 
 tution, viz., " in any trial in any court the accused shall be allowed," &c. Work v. 
 State, 2 Ohio, N. S. 296. For further cases in which statutes authorizing summary 
 criminal and quasi criminal prosecutions in inferior courts have been held invalid, 
 because they did not provide for jury trial, see Burns v. Le Grange, 17 Tex. 415 ; 
 Smith v. San Antonio, 17 Tex. 643; Bullock v. Geomble, 45 111. 218; Thomas v. Ash- 
 Lmd, 12 Ohio, N. S. 124 (municipal ordinance); Donovan v. Vicksburg, 29 Miss. 
 247 (summary seizure and sale of animals running at large) ; People v. Carrol, 3 
 Park. Cr. 22 (statute impairing right of party carried before a justice to give bail for 
 appearance before a court with a jury) ; Warren v. People, 3 Park. Cr. 544 (statute 
 for summary punishment of keepers of houses of ill fame). But a statute providing 
 that keepers of houses reputed to be houses of ill fame may be required to give 
 sureties, &c., is valid. State v. Maine, 31 Conn. 572. A statute authorizing judg- 
 ment by the Probate Court, without a jury, on charges of embezzlement, &c., pre- 
 ferred by administrators, was held void. Howell v. Fry, 19 Ohio, N. S. 556. It has 
 been held in New York that a member of a militia regiment may be fined and im- 
 prisoned by a court martial in time of peace. People v. Daniell, 50 N. Y. 274 ; 6 
 Lans. 44. 
 
 In Vermont the constitutional guaranty extends to minor offences. -State v. Peter- 
 son, 41 Vt. 504. 
 
 Preliminary Proceedings. Proceedings preliminary, or those which do not deter- 
 mine the right, are not embraced within the guaranty ; e. <7., an act authorizing the 
 arrest of one illegally transporting liquor, and the detention of the liquor, &c , with- 
 out warrant until warrant can be procured, on complaint made for the trial of such 
 person, &c.. is not invalid on the ground that it authorizes arrest and detention with- 
 out making provision for trial by jury. Jones v. Root, 6 Gray, 435. Also an insolvent 
 law authorizing the seizure of property on warrant is valid, the proceeding being pre- 
 liminary, and not determining the rights of the party. O'Neil v. Glover, 5 Gray, 144. 
 
TRIAL BY JUSV. 493 
 
 assessment should be made by a jury; and the court said, 
 "Where facts are to be found, or the value of property assessed, 
 
 Constitution of the Jury, and Incidents of the Trial ly Jury. The jury spoken of 
 in the Constitution is the common-law jury, and consists of twelve men. Wynehamer 
 v. People, 13 N. Y. 378 ; Cruger v. Hudson R. R. R. 12 K Y. 190; State v. Everett, 
 
 14 Minn. 439 ; Work v. State, 2 Ohio, N. S. 296 ; Vaughan v. Scacle, 30 Mo. 600 ; 
 Bowles v. State, 5 Sneed, 360; May v. Milwaukee &c. R. R. 3 Wise. 219; Norval v. 
 Rice, 2 Wise. 22. See further as to number of jurors under the head " Waiver," 
 infra. For cases upon statutes providing for juries of a less number than twelve, and 
 for an appeal therefrom, &c., see supra, under the heads "Appeal" and "Minor 
 Offences." If the trial before a jury of less than twelve in an inferior court is consti- 
 tutional, it seems the Legislature may refuse a retrial of the merits before a jury on 
 appeal. Des Moines v. Layman, 21 Iowa, 153. As to the constitutionality of a stat- 
 ute of South Carolina reducing the number of jurors to eight, see State v. Starling, 
 
 15 Rich. (Law) 120. 
 
 The verdict must be unanimous. Opinions of Justices, 41 N. H. 550. 
 
 Although the common-law jury must be preserved with its essential incidents and 
 features, the constitutional guaranty does not forbid changes in the methods of impan- 
 eling, &c., or in the qualifications if impartiality be maintained, nor in the number of 
 challenges, and the like. For cases sustaining the validity of statutes making such 
 changes, see Stokes v. People, 53 N.Y. 164 ; Rafe v. State, 20 Geo. 60 ; State v. Clayton, 
 11 Rich.(Law) 581. In Ohio a statute admitting jurors who had formed and expressed 
 an opinion, provided the court was satisfied that they would render an impartial ver- 
 dict, was sustained, although the Constitution required an "impartial " jury. Cooper 
 v. State, 16 Ohio, N. S. 328. In Pennsylvania it has been held that a juror may be a 
 witness, although the Constitution requires an " impartial " jury. Howser v. Common- 
 wealth, 51 Penn. St. 332. Giving additional right of peremptory challenge to the State 
 does not violate the constitutional guaranty. Warren v. Commonwealth, 37 Penn St. 
 45 ; Hartzell v. Commonwealth, 40 Penn. St. 462 ; Walter v. People, 32 K Y. 147. 
 
 Jury of the County, District, or Vicinage. In most of the Constitutions it is pro- 
 vided that in criminal cases the accused shall have the right to a trial by a jury u of 
 the county or district in which the crime was committed," or " of the vicinage." 
 The decisions upon this particular provision are directly conflicting. According to 
 some it does not prevent a change of venue at the instance of the prosecution. State 
 v. Miller, 15 Minn. 344 ; but on the contrary, other cases hold that the venue cannot 
 be changed except by the assent of the accused, and that statutes authorizing the 
 court to order the change upon request of the prosecution, and for good cause shown, 
 are void. Osborn v. State, 24 Ark. 629 ; Wheeler v. State, 24 Wise. 52 ; State v. 
 Denton, 6 Cold. (Tenn.) 539; Kirk v. State, 1 Cold. 344. In Tennessee a statute al- 
 lowing " offences committed on the boundary line of two or more counties or within 
 a quarter of a mile thereof" to be tried in either county, was held void. The court 
 said that there were no " districts " to which the langusge of the Constitution could 
 apply, and that the trial must be in the county Avhere the offence is committed. 
 Armstrong v. State, 1 Cold. 338. But in Minnesota a similar statute was pronounced 
 valid, on the ground that it did not violate the intent of the Constitution. State v. 
 Robinson, 14 Minn. 447. 
 
 Miscellaneous Incidents. A statute requiring an affidavit of merits on pain of 
 default, is valid. Hunt v. Lucas, 99 Mass. 404; and one providing that plaintiff 
 
494 TRIAL BY JURY. 
 
 the method must be determined in accordance with the clause 
 in the Constitution." * 
 
 * Armstrong v. Jackson, 1 Blackf. 375. 
 
 need not prove certain facts, unless they are denied on oath in the answer. Thigpen 
 v. Miss. C. R. R. 32 Miss. 347; and one allowing a nonsuit on failure to make out 
 a prima facie case. Naugatuck &c. R. R. v. Waterbury Button Co. 24 Conn. 468. 
 Nonsuit may be ordered -without any permissive statute. Munn v. Pittsburg, 40 
 Penn. St. 364. A statute providing for judgment on failure to plead after overruling 
 a demurrer, is valid. People v. King, 28 Cal. 265. And one giving court power to 
 assess damages without a jury on a default. Hopkins v. Ladd, 35 111. 178. Upon 
 default in pleading in an information to try title to an office, the defendant cannot 
 demand a jury until he tenders an issue. State v. Gleason, 12 Fla 190, 266.' 
 
 The right to a jury trial, although not absolutely denied, may be so hampered as 
 to violate the constitutional guaranty, e. g., by onerous provisions as to bail on appeal. 
 People v. Carrol, 3 Park. Cr. 22. But the requirement of a reasonable jury fee from 
 one demanding a jury trial, is not such an onerous condition, and is proper. Adams 
 v. Corriston, 7 Minn. 456. 
 
 Where a compulsory reference was allowed in certain jury cases before the adop- 
 tion of the Constitution, a statute providing for such references is valid. Mead v. 
 "Walker, 17 Wise. 189; Dane County v. Dunning, 20 Wise. 210; but in Vermont a 
 statute was held unconstitutional which provided for a compulsory reference of cases, 
 and that the report of the referee should be prima facie evidence if either party 
 claimed a jury trial. Plimpton v. Somerset, 33 Vt. 283. The same was held in 
 Pennsylvania of a compulsory reference when the award was to be final. Rhines v. 
 Clark, 51 Penn. St. 96. See also People v. Haws, 37 Barb. 440; Baldwin v. New 
 York, 45 Barb. 359. 
 
 The Legislature cannot dispense with allegations of material facts in indictments, 
 e. g., that no license has been granted, in prosecutions for selling without a license, 
 such sale being prohibited. Hewett v. State, 25 Tex. 722; State v. Wilburn, 11. 738. 
 It seems that the making an act innocent in itself e. gr., the delivery of liquors 
 in or from any place other than a dwelling-house pn'wa facie evidence of unlawful 
 sale is not a violation of the right of trial by jury. Commonwealth v. Williams, 6 
 Gray, 1 ; Commonwealth v. Rowe, 14 Gray, 47 ; State v. Hurley, 54 Me. 562 ; and see 
 State v. Cunningham, 25 Conn. 195. 
 
 Waiver of the Eight. In civil cases the right may be waived; therefore when a 
 party has the option of a jury trial there is no violation of the right. Dailey v. State, 
 4 Ohio, N. S. 57 ; Dillingham v. State, 5 Ohio, N. S. 280. Where the Constitution 
 provided that a jury trial might be waived in all civil cases "in the manner to be 
 prescribed by law," it was held that the power of prescribing what should be a 
 waiver could not be delegated to the courts. Exline v. Smith, 5 Cal. 112. It is 
 settled that in the trial of capital and other felonies the accused cannot waive his 
 right to a trial by the common-law jury, and if he consent personally or by counsel 
 to be tried by a jury of less than twelve, the trial and conviction are nullities. Can- 
 cenii v. People, 18 K Y. 128 ; Wilson v. State, 6 Ark. 601 ; State v. Mansfield, 41 
 Mo. 470. This was an indictment for burglary, the prisoner consenting on the trial 
 to go on with eleven jurors. Held, that in capital crimes and felonies the accused 
 cannot waive a regular jury; but that in misdemeanors he may thus waive, and even 
 submit to be tried by the court. In Hill v. People, 16 Mich. 351, which was an in- 
 
TRIAL BY JURY. 495 
 
 In Ohio, it lias 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 con- 
 trol; 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 una- 
 nimity of the jury were inherent attributes secured by the 
 constitutional provision.* The same general principle has 
 been declared in Kentucky and in many other of the States, f 
 
 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 dis- 
 charge a jury, it has been held in Alabama, that within the 
 meaning of the constitutional provision, a court has no power 
 arbitrarily 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 acquittal. 
 
 * Work jv. The State of Ohio, 2 Ohio f Enderman v. Ashby, Pr. Dec. 65 ; Stid- 
 
 State R. 296.' It was, however, admitted that ger v. Rodgers, Pr. Dec. 64; Carson v. Com- 
 
 in regard to proceedings in which a jury was monwealth, 1 A. K. Marsh, 290; Hughes v. 
 
 not required at common law, the Legislature Hughes, 4 Monroe, 43. 
 
 nrisjht in its discretion authorize a jury of any J Ned v. The State, 7 Porter, 187; Cobia 
 
 number. v. The State, 16 Ala. 781 ; M'Cauley v. The 
 
 dictment for murder, one of the jurors was an alien, which fact was not known to 
 the prisoner or his counsel until after the verdict of guilty ; held, that under the Con- 
 stitution and statute the jurors must be citizens, that the case must be treated as 
 though the trial had been by eleven jurors, and that the accused cannot waive his 
 right to a full jury. The reasoning of the court applied alike to trials for felonies 
 and for misdemeanors, no distinction being suggested between them. There is some 
 conflict in the cases in respect to the power of the accused to waive his right 011 a 
 trial for a misdemeanor. In Commonwealth v. Dailey, 12 Gush. 80, which was an 
 indictment for an assault upon an officer, the trial was with eleven jurors by consent 
 of defendant's counsel in open court; defendant was present, but was not consulted, 
 and said nothing. Held, a valid trial, and the rule was stated that in misdemeanors 
 the accused may waive, though not in felonies. To the same effect are Murphy v. 
 Commonwealth, 1 Mete. (Ky.) 365 ; Tyra v. Commonwealth, 2 Mete. (Ky.) 1 ; State 
 v. Cox, 3 Eng. (Ark.) 436. But in Brown v. State, 16 Ind. 496, a prosecution for 
 malicious mischief, the defendant's counsel waived a full jury in open court, the 
 defendant being present, but not being consulted, and not speaking. Held, that 
 the defendant was not bound, and that the trial was a nullity. See also Brown v. 
 State, 8 Blackf. 561 ; and Bond v. State, 17 Ark. 290, where it was held that on an 
 indictment for assault and battery the accused cannot waive a common-law jury. 
 
496 TRIAL BY JURY. 
 
 But, on the other hand the guaranty is to be reasonably 
 interpreted. It was not intended by this provision 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 pro- 
 vision is not violated, so long as the trial by jury is not sub- 
 stantially impaired, although it be made subject to new modes 
 and even rendered more expensive.* 
 
 It is also to be understood that when the Constitution guar- 
 antees 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 Constitutions were framed. It is well set- 
 tled that the constitutional guaranty of a trial by jury, in the 
 usual terms that " the trial by jury shall remain inviolate," does 
 not apply except to offences which at the time of the adoption 
 of the Constitution were such, either by statute or common law ; 
 and that it is competent for the Legislature to make offences 
 created by statute since that period triable by summary pro- 
 ceedings without a jury.f 
 
 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 intervention of a jury, that right was not 
 taken away by the adoption of the Constitution. J 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. | So, too, in the 
 State of Pennsylvania, it has been held that an act prohibiting 
 the sale of intoxicating liquors on Sunday, and authorizing a 
 conviction for the violation of the statute, is not unconstitu- 
 
 State, 26 Ala. 135. The rule seems substan- the rule does not at all apply. Ex. parts Ed- 
 tially the same in the other States. See as ward Henry, 24 Ala. 638. 
 to the power of discharging a jury, or enter- * Beers v. Beers, 4 Conn. R. 539; Colt y. 
 ing a tiolle prosequi in criminal cases, Com- Eves, 12 Conn. 243, 253. 
 monwealth T. Tuck, 20 Pick. 356; Mount v. f Boring v. Williams, 17 Ala. 510; Timi 
 The State, 14 Ohio, 295 ; Mahala v. The State, v. The Stsite, 26 Ala. 165. 
 10 Yerg. 532 ; The People v. Denton, 2 Johns. 1 Watts v. Griffin, 6 Litt. 247. 
 Cases, 275. The People T. Olcott, 2 J. C. 301 ; f Harris v.Wood, 6 Munroe, 642 ; Creigh- 
 The People v. Barrett, 2 Caines, 305. In civil ton v. Johnson, 6 Litt. 241 ; Ewing T. Direct- 
 cases, the courts possess an unlimited power ors of the Penitentiary, Hardin K. 5 ; Har- 
 to order new trials ; and to these, therefore, rison v. Chiles, 3 Litt. R. 200. See in Penn- 
 sylvania, Emerick v. Harris, 1 Binney, 416. 
 
TRIAL BY JURY. 497 
 
 tional by reason of not providing for a trial by jury. The 
 Legislature may declare a new offence, and prescribe the mode 
 of trial* Indeed, extensive and summary police powers are 
 constantly exercised in all the States of the Union for the re- 
 pression of breaches of the peace and petty offences ; and these 
 statutes are not supposed to conflict with the constitutional 
 provisions securing to the citizen a trial by jury ; and so it has 
 been held, in Vermont, in regard to drunkenness and the sale 
 
 / / o 
 
 of intoxicating liquors, f Statutes giving summary remedies 
 against public officers and their sureties have, in Kentucky, 
 been held not to be within the constitutional limitation ; but 
 in Indiana, a contrary opinion has been expressed. || 
 
 Where a law creates or extends a summary jurisdiction for 
 the trial of causes without a jury, it does not violate the con- 
 stitutional 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 de- 
 cided by a jury before it is finally settled. *[[ 
 
 In Connecticut, the Bill of Bights declares " that in all 
 
 ' O 
 
 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, 
 and to have compulsory process to obtain witnesses in his 
 favor." But this has 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 Massachusetts, 
 it has been held to be no sufficient exception to an indictment 
 for an offence to which the law annexes a fine for the use of 
 the town where the offence is committed, that the foreman of 
 the grand jury who found the indictment is a taxable inhabitant 
 of the town.ff 
 
 * Van Swartow v. The Commonwealth, 24 v. Beers, 4 Conn. 535 ; Emerick v. Harris, 1 
 
 Penn. 131. Binney, 416 ; M'Donald v. Schell, 6 Serg. <fc 
 
 \ In re Powers, 25 Vermont R. 261 ; Mur- Rawle, 240; Ste \vart v. Mayor, <fcc. 7 Mary- 
 
 phy v. The People, 2 Cowen, 815 ; Jackson ex land, 501. As to trial by jury, generally, see 
 
 dem. Wood v. Wood, 2 Cowen, 819. See in Mr. J. Strong's opinion in People v. Berberrick 
 
 Massachusetts, Mountfort v. Hall, 1 Mass. 443 ; <fe Toynbee, 11 Howard P. R. 333, and Wyne- 
 
 Inhabs. of Shirley v. Lunenburgh, 11 Mass. 379. hamer v. The People, 3 Kernan, 378; The 
 
 \ Murry v. Askew, 6 J. J. Marsh. 27 ; People v. Duffy, 6 Hill, 75. 
 
 "Wells v. Caldwell, 1 A. K. Marsh. 441. ** The State v. Wolcott, 21 Conn. 272. 
 
 I Dawson v. Shaver, 1 Blackf. 204. f f Commonwealth v. Thos. Ryan, 5 Mass. 
 
 1C Morford v. Barnes, 8 Yerger, 444 ; Beers R. 90. 
 
 32 
 
498 SEARCHES AND SEIZURES. 
 
 In connection with this subject, it is proper to call attention 
 to the provision to be found in some of our more recent Con- 
 stitutions, 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."* I 
 cannot but regard this as a very unfortunate innovation. The 
 jury loses no small portion of its value when deprived of the 
 aid of an upright and intelligent judge, accustomed to scru- 
 tinize, to compare, to analyze and to weigh testimony. Indeed, 
 so long as the right to state the testimony is left, the prohibi- 
 tion becomes almost nugatory ; it would be difficult, if not im- 
 possible, 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 adequate 
 reason can be alleged.f 
 
 Searches and Seizures. The provisions in regard to search- 
 warrants, to be found in both the State and Federal Constitu- 
 tions, were no doubt suggested by the abuses which experience 
 had shown to result in England, from the practice of granting 
 general warrants issued on suspicion, and without any specifica- 
 tion whatever, to search any house, to break open any recep- 
 tacle, seize, and cany away all or any property. These gen- 
 eral warrants w r ere declared illegal 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 import- 
 ant subject : 
 
 * Cons art. 6, 17. dered. Bond v. Bond, 2 Pick 382. A strong 
 
 f Tne Constitution of Tennessee, art. vi, opinion has been expressed in that State, that a 
 
 9, contains the same provision in the same pecuniary penalty cannot be constitutionally 
 
 words. imposed by a court martial without a jury. 
 
 In Massachusetts, it has been held that a Brooks v. Daniel, 22 Pick. 498. Morton, J., 
 
 statutory provision authorizing additional said, " It assuredly is a novelty to find a 
 
 punishment to be inflicted on a convict upon court martial dealing with mulcts and forfeit- 
 
 an information, is not unconstitutional. Ross's ares, or a common-law court sustaining an ac- 
 
 Gase, 2 Pick. 165. The statute permitting a tion upon the sentence of a court martial." 
 
 judge of probate to appoint a guardian to a But the case was decided on another ground, 
 spendthrift is not unconstitutional, on the \ Enti k v. Carrington, 19 Howell's State 
 
 ground that the spendthrift might appeal to the Trials, No. 1029; Commonwealth v. Dana, 2 
 
 Supreme Court, where a trial by jury can be or- Met. 335. 
 
SEARCHES AND SEIZURES. 499 
 
 Maine. " The people shall be secure in their persons, houses, papers and 
 possessions, from unreasonable searches and seizures ; ami no warrant to search 
 any place, or seize any person or thing, shall issue without 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." * 
 
 Vermont. " That the people have a right to hold themselves, 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 prop- 
 erty, not particularly described, are contrary to that right, and ought not to be 
 granted." f 
 
 Massachusetts. " Every person has a right to be secure from all unreason- 
 able searches and seizures of his person, his house, his papers, and all his pos- 
 sessions. All warrants, therefore, are contrary to this right, if the cause or 
 foundation of them be not previously supported 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 a 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." J 
 
 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 complaint in writing, upon probable 
 cause, supported by oath or affirmation, and describing, as nearly as may be, 
 the place to be searched and the person or things to be seized." || 
 
 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." ^[ 
 
 New Jersey. " The right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, shall not be vio- 
 lated ; and no warrant shall issue but upon probable cause, supported by oath 
 or affirmation, and particularly describing the place to be searched, and the 
 papers and things to be seized." ** 
 
 Pennsylvania. " 8. That the people shall be secure in their persons, houses, 
 papers, and possessions, from unreasonable searches and seizures ; and that no 
 warrant to search any place, or to seize any person or things, shall issue with- 
 out describing them as nearly as may be, nor without probable cause, sup- 
 ported by oath or affirmation." ff 
 
 Delaware. " The people shall be secure in x their persons, houses, papers, 
 
 * Constitution of Maine, art. i, 5. | Constitution of Rhode Island, art. i, 6. 
 
 f Constitution of Vermont, ch. i, 11. "ft Constitution of Connecticut, art. i, 8. 
 
 \ Constitution of Massachusetts, part i, ** Constitution of New Jersey, art. i, 6. 
 
 , 14. ft Constitution of Pennsylvania.art. ix; 8. 
 
500 SEARCHES AND SEIZURES. 
 
 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, unless there be probable cause, sup- 
 ported by oath or affirmation." * 
 
 Maryland. " That all warrants, without oath or affirmation, to search sus- 
 pected 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." f 
 
 The provisions above cited are of great importance as guar- 
 anties 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 necessary 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. [ If a search- 
 warrant for lottery tickets, and a complaint correctly describing 
 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 sufficient, though the war- 
 rant itself contain no further description.^" (a) 
 
 * Constitution of Delaware, art. i, 6. Sandford v. Nichols 13 Mass. 288 de- 
 
 t of Maryland, art. i, 23. cided with reference to the provision of the 
 { Sell v Clapp 10 JR. 263 see llso, as Constitution of the United States on this point, 
 
 to sw T nnewo rk , Beaty v.Pe, ,* 
 kins, 6 Wend. oo^. 
 
 > Searches and Seizures.-ln the following cases, statutes authorizing searches 
 
 and seizures were held valid. Gray v. Kimball, 42 Me. 299 ; State v. Brennan's 
 
 nnuor, 25 Conn. 278; Allen v. Staples, 6 Gray, 491 ; Stanwood v. Green, 2 Abb. L. 
 
 S. R. 184. For a case where the warrant was held void for vagueness, see Ashley v. 
 
 Patterson, 25 Wise. 621. 
 
 Where the constitutional prohibition (Art. 6, 26), is against warrants not base. 
 upon probable cause supported by oath or affirmation, the facts themselves mus 
 
 pear upon knowledge. Brown v. Kelly, 20 Mich. 27, 34. An act allowing search- 
 Trrants in aid of civil proceedings, and merely for the discovery of goods- without 
 provisions for trial of the right thereto, is void. Robinson v. Richardson 18 Gray, 
 ' Js4 The prohibition of the Constitution, does not extend to a proper and reasona- 
 ble ieaich or seizure, by persons attempting to execute a military order authomed 
 by the Constitution, and an act of Congress, e. g. an order for the arrest of per- 
 sons secreting themselves to avoid a draft. Allen v. Colby, 47 K H. 544. 
 
TAXATION. 501 
 
 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 pro- 
 visions that our State Constitutions 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 experience; and to 
 some of the more important of these I now turn the attention 
 of the reader. 
 
 Taxation. Under the head of the clause in regard to pri- 
 vate property we have had occasion to notice,* that the restrain- 
 ing 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 leg- 
 islative 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 domain, f So the Supreme Court of 
 the United States have said, that there is no limitation what- 
 ever 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 constituents, fur- 
 nish the only security against unjust and excessive taxation, ex- 
 cept only in those States where express provisions have been 
 inserted in their Constitutions, 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 extent, 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 possession, that power is admitted to 
 be unlimited and uncontrollable, except by their own discre- 
 tion." 1 
 
 * Ante, p. 424. Jones, 1 Foster, 393 ; Blackwell on Tax Titles 
 
 f Brewster v. Hough, 10 N. H. R, 143. p. 9. 
 
 \ Providence Bank v. Billings, 4 Peters, | Herrick v. Randolph, 13 Verm. 529. 
 
 514; Brewster v. Hough, 10 N. H. 138; Mackv. Taxes are neither judgments nor contracts, and 
 
502 TAXATION. 
 
 In several of the States, however, owing perhaps to the r&- 
 suits of experience in regard to the abuse of the legislative 
 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 ulti- 
 mate control of the judiciary ; and the matter is so important 
 that I annex some of the provisions on the subject, to be found 
 in the more recent Constitutions. 
 
 Michigan. " The Legislature shall provide an uniform rule of taxation, ex- 
 cept on property paying specific taxes, and taxes shall be levied on such prop- 
 erty as shall be prescribed by law." * 
 
 Illinois. " The General Assembly shall provide for levying a tax by valu- 
 ation, so that any person and corporation shall pay a tax in proportion to the 
 value of his or her property ; such value to be ascertained 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, brokers, hawkers, merchants, commission merchants, 
 showmen, jugglers, inn-keepers, grocery-keepers, toll-bridges and ferries, and 
 persons using and exercising franchises and privileges, in such manner as they 
 shall from time to time direct." f 
 
 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 shall 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 privileges, in such manner as they may from 
 time to time direct. A tax on white polls shall be laid in such manner and of 
 such an amount as may be prescribed by law." J 
 
 Louisiana. " Taxation shall be equal and uniform throughout the State. 
 All property on which taxes may be levied in this State shall be taxed in pro- 
 portion 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 Legislature shall have power to 
 levy an income tax, and to tax all persons pursuing any occupation, trade, or 
 profession." | 
 
 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 ascer- 
 tained as directed by law." ^f 
 
 Wisconsin. " The rule of taxation shall be uniform, and taxes shall be 
 levied upon such property as the Legislature shall prescribe." ** 
 
 are not the subject of set-off as such. Peirce Constitution of Tennessee, art. ii, 28. 
 
 V. City of Boston, 3 Met. 520. f Constitution of Louisiana, tit. vi, 123. 
 
 * Constitution of Michigan, art. xiv, 11. T[ Constitution of California, art. xi, 13. 
 
 f Constitution of Illinois, art. ix, 2. . ** Constitution of Wisconsin, art. viii, 1.. 
 
TAXATION. 503 
 
 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 taxation. The Legislature shall 
 have power to lay an income tax, and to tax all persons pursuing any occupa- 
 tion, trade, or profession, provided that the term ' occupation ' shall not be 
 construed to apply to pursuits either agricultural or mechanical." * 
 
 Arkansas. " All property subject to taxation shall be taxed according to 
 its value ; that value to be ascertained in such manner as the General Assem- 
 bly 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 property of equal value; provided, the General Assem- 
 bly 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 concur- 
 rence of two thirds of both houses of the General Assembly. 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 ex- 
 penses of inspection." f 
 
 Missouri. " All property subject to taxation in this State shall be taxed 
 in proportion to its value." J 
 
 Massachusetts. " And, further, full power and authority are hereby given 
 and 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 common- 
 wealth ; and also to impose and levy reasonable duties and excises upon any 
 produce, goods, wares, merchandises, and commodities whatsoever, brought into, 
 produced, manufactured, or being, within the same." || (a) 
 
 * Constitution of Texas, art. vii, 27. \ Constitution of Missouri, art. xi, 19. 
 
 f Constitution of Arkansas, art. ix, Reve- || Cons, of Massachusetts, 1, art. iv. 
 
 nue, 2. 
 
 (a) Uniformity of Taxation. The Constitutions of many other States require 
 that taxation shall be uniform and equal. It has been shown that these provisions 
 have generally been held applicable to taxation for general purposes only, and not 
 to local assessments. 
 
 Licenses. They have also been generally held inapplicable to licenses, especially 
 when evidently imposed for police purposes. Thomasson v. State, 15 Ind. 449 ; 
 Baker v. Cincinnati, 11 Ohio, N. S. 534; New Orleans v. Turpin, 13 La. Ann. 56 ; 
 so of fees of a gauger. Addison v. Saulnier, 19 Cal. 82. The California Constitu- 
 tion says : " Taxation shall be equal and uniform, and all property shall be taxed in 
 proportion to its value," and " All laws of a general nature shall be uniform in 
 their operation." These provisions do not make it necessary to tax all occupations 
 or none, and a license tax on the business of auctioneers was held valid. People v. 
 Coleman, 4 Cal. 46 ; but see People v. McCreery, 34 Cal. 432. A license tax graded 
 on amount of sales, $10 on monthly sales of $1,000, $12 50 on monthly sales of 
 
504 TAXATION. 
 
 In construing these provisions it has been held, in many of 
 the States, that the words " equal and uniform" apply only to 
 
 $2,000, &c., is not unconstitutional as being unequal in its operations. Sacramento 
 v. Crocker, 16 Cal. 119. Uniformity must be such as is compatible with the subject- 
 matter, and as to licenses the only uniformity required is that the tax shall be the 
 same on all those in the same business, and the carrying on of the business of 
 insurance as agent for a foreign insurance company, is, it seems a different 
 business from that of agent for domestic insurance companies. Slaughter v. 
 Commonwealth, 13 Gratt. 767 ; see also Ducat v. Chicago, 48 111. 172. The same 
 was held by the U. S. Supreme Court in Ducat v. Chicago, 10 Wall. 410 ; Liverpool 
 Ins. Co. v. Massachusetts, 10 Wall. 566; Paul v. Virginia, 8 Wall. 168. The 
 requirement that foreign insurance companies doing business within the State 
 should pay a percentage of their premiums to the fire department, was sustained in 
 Wisconsin as an exercise of the police power. Fire Department v. Helfenstein, 16 
 Wise. 136. A tax on the insurance companies of a particular city was held invalid, 
 in State v. Merchants' Ins. Co. 1 2 La. Ann. 802 ; but it would seem that a license tax 
 may be imposed by a particular city. New Orleans v. Turpin, 13 La. Ann. 56. A 
 license law which fixed different rates for different localities, but did not discriminate 
 as to persons, was held valid on the ground that a license is not a tax ! East St. 
 Louis v. Wehrung, 46 111. 392. A tax on all persons keeping over fifty pounds of 
 powder was held not uniform, and therefore void. Police Jury v. Cochran, 20 La. 
 Ann. 373. A license by the State to pursue a particular calling does not prevent a 
 municipality from also imposing a license tax on the same, the power to lay such 
 taxes being given to such municipality by statute, New Orleans v. Turpin, 13 La. 
 Ann. 56. License to pursue a particular calling, does not exempt the person licensed 
 from a tax on the income thence derived. Drexel v. Commonwealth, 46 Penn. St. 
 31. 
 
 County Taxation. These provisions as to uniformity have been held not to 
 apply to taxation for county purposes. A provision of the Virginia Constitution 
 that " taxation shall be equal and uniform throughout the commonwealth, and all 
 property shall be taxed in proportion to its value," was held not to apply to taxation 
 for county purposes, and a special tax on the office of sheriff was sustained. Gilke- 
 son v. Frederick Justices, 13 Gratt. 577. But when the provision of the Constitu- 
 tion was that " laws shall be passed taxing by a uniform rule all moneys, &c., and 
 also all real and personal property according to its true value in money," held 
 to apply to county and municipal taxation as well as State. Zanesville v. Muskin- 
 gum Co. 5 Ohio, N. S. 589 ; but not to local assessments. Hill v. Higdon, Ib. 243. 
 
 Exemptions and Commutations. It was held in Illinois, that the constitutional 
 requirements of " uniformity " do not take away the power of exempting from 
 taxation or of commuting a tax, the Constitution also providing that " the 
 General Assembly shall have power to tax peddlers * * * toll bridges and ferries 
 and persons using and exercising franchises and privileges, in such manner as they 
 shall from time to time direct." 111. Cent. B. R. v. County of McLean, 17 111. 291 ; 
 Hunsaker v. Wright, 30 HI. 146 ; Board of Supervisors &c. v. Campbell, 42 111. 490 ; 
 and the same was held in Michigan, where the Constitution contains no such special 
 provision, the State receiving an equivalent for the exemption. People v. Auditor 
 General, 7 Mich. 84. See also Kneeland v. Milwaukee, 15 Wise. 454, 691 ; Atty. 
 Gen. T. Winnebago &c. PI. R. Co. 11 Wise. 35; Milwaukee &c. R. R. v. Super- 
 
TAXATION. 505 
 
 a direct tax on property ; and that the clause in regard to uni- 
 formity of taxation does not limit the power of the Legislature 
 
 visors, 9 Wise. 431. But a municipality cannot exempt. Weeks v. Milwaukee, 10 
 Wise. 242. But in California, where the Constitution provides that " all property 
 in this State shall be taxed in proportion to its value to be ascertained as directed 
 by law," and "taxation shall be equal and uniform throughout the State," it has 
 been held that exemption of private property is prohibited, and that the rule for 
 State purposes must be uniform. People v. McCreery, 34 Cal. 432. 
 
 The city of La Salle being situate in, and being a part of the township of La 
 Salle, an act exempting the inhabitants of the city from taxation, in support of the 
 township roads outside of the city was held invalid. O'Kane v. Treat, 25 111. 557. 
 But an assessment of labor for repair of roads is not a tax. Pleasant v. Kost, 29 111. 
 490. Under a provision that " no property shall be exempt from taxation except 
 property of schools of the United States, the State, counties and municipalities, it was 
 held that the Legislature had no power to commute taxes. Life Association &c. v. 
 Board of Assessors, 49 Mo. 512. 
 
 What Violates the Requirement of Uniformity. A statute providing that farming 
 lands outside villages should only be taxed at one-half the rate of village lots does. 
 Knowlton v. Supervisors, 9 Wise. 410 ; and an act taxing the real estate of a city ex- 
 clusively for the payment of the municipal debt. Gilman v. Sheboygan, 2 Black, 510 ; 
 and in Nevada, the Constitution requiring " a uniform and equal rate of assessment 
 and taxation," an act taxing three-fourths of the value of the products of mines pre- 
 scribes an unequal rate, as the whole should be taxed. State v. Eastabrook, 3 Nev. 
 173; State v. Kruttschnitt, 4 Nev. 178. Railroads cannot be taxed at a higher rate 
 than individuals. Bureau County v. Chicago &c. R. R. 44 111. 229 ; Chicago &c. R. 
 R. v. Boone Co. 2J>. 240. A provision in a city charter empowering the collector to 
 impose without notice five per cent, additional amount to the tax for delay, conflicts 
 with the requirement of uniformity, and is void. Scammon v. Chicago, 44 111. 269 ; 
 Clayton v. Chicago, Ib. 280. 
 
 Effect of Omissions. That omissions of property will not vitiate the tax 
 where "uniformity" is required, see Merritt v. Farris, 22 111. 303; Dunham v. 
 Chicago, 55 111. 358 ; High v. Shoemaker, 22 Cal. 363 ; People v. McCreary, 34 Cal. 
 432 ; People v. Gerke, 35 Cal. 677 ; but it has been held otherwise if the omission 
 is intentional in Weeks v. Milwaukee, 10 Wise. 242 ; see Kneeland v. Milwaukee, 15 
 Wise. 454. 
 
 What does not Violate the Requirement of Uniformity. A statute that abuttors 
 should keep the street in front of their lands in repair, is as uniform a distribution 
 of the burden as the nature of the case will permit. Hart v. Gaven, 12 Cal. 476. 
 Assessing a tax according to the valuation of the preceding year is not invalid. 
 Kelsey v. Nevada, 18 Cal. 629 ; nor assessing bank shares as of a different date from 
 other property. McVeigh v. Chicago, 49 111. 318. A statute making the tax on a 
 certain species of property e. g., proceeds of mines assessable and payable quarterly, 
 does not violate the rule of uniformity. State v. Manhattan &c. Co. 4 Nev. 318. 
 Nor is the rule of " uniform rate " violated by allowing a deduction of debts owed 
 to be made from the valuation of other property but not from that of national bank 
 shares. McVeigh v. Chicago, 49 111. 318. It is held in Wisconsin, that a tax upon 
 shares in the national banks, there being no tax on shares in State banks, but in 
 place thereof, an equivalent tax on the capital of State banks is valid. The 
 
506 TAXATION. 
 
 as to the objects of taxation, but is only intended to prevent an 
 arbitrary taxation of property, according to kind or quality, 
 
 decision was put upon the ground, that the United States Constitution is controlling, 
 and overrides the rule of valuation in the State Constitution in that particular case, 
 and that the national bank shares are a new species of property created by the 
 United States, and governed by the rules established by Congress to which the 
 State law must yield. Van Slyke v. State, 23 Wise. 655. An act for equalizing 
 assessments by taking averages, &c., was held constitutional, in People v. Solomon, 
 46 111. 333. A statute requiring the city of New Orleans to pay one-half its election 
 expenses, and the State the other half, it was held that the city could not complain 
 of this as unequal taxation without showing that the law worked injustice to it. 
 State v. New Orleans, 15 La. Ann. 354. The Legislature may impose a tax for the 
 current year on property not before taxable. De Pauw v. New Albany, 22 Ind. 204 ; 
 and may lay an income tax based on the profits or income of the preceeding year. 
 Drexel v. Commonwealth, 46 Penn. St. 31 ; see Murchison v. McNeil, 1 Wins. (N. 
 C.) No. 1 (Law), 220 ; and may lay a tax according to a previous assessment, and 
 such tax will not be retrospective nor ex post facto. Locke v. New Orleans, 4 Wall. 
 172; and may authorize the reassessment of taxes. Tallman v. Janesville, 17 Wise, 
 71; Cross v. Milwaukee, 19 Wise. 509; McVeigh v. Chicago, 49 III. 318. " Uniform 
 and equal fate of assessment and valuation " does not require a uniform method of 
 valuation of property ; e. g., a bank officer may be made the representative of the 
 owners in the listing and valuation of bank stock. Whitney v. Ragsdale, 33 Ind. 
 107. 
 
 Reassessments are valid where former one was void for some irregularity. Mills 
 v. Charleton, 29 Wise. 400; Evans v. Sharp, 29 Wise. 564; Dill v. Roberts, 30 Wise. 
 178 ; Dean v. Borchsenius, 30 Wise. 236. See Hale v. Kenosha, 29 Wise. 599, as to 
 what taxes are within the requirement of uniformity. 
 
 Taxation and Representation. It is often said that taxation and representation go 
 together. This does not imply that a person must have the right of suffrage before 
 he can be taxed. Thus, the personal property of an unmarried woman may be taxed, 
 though she cannot vote. Wheeler v. Wall, 6 Allen, 558. Nor is the consent of local 
 representatives necessary. Thus, it has been held that the Legislature may compel 
 a municipality to raise by taxation money to pay a claim against it, Newman v. Jus- 
 tices, 5 Sneed (Tenn.j, 695, and even though such claim is not valid at law. Guilford 
 T. Chenango County, 13 N. Y. 143; Brewster v. Syracuse, 19 N. Y. 116; Blanding v. 
 Burr, 13 Cal. 343; Sinton v. Ashbury, 41 Cal. 525; see, also, Beals v. Amador Co. 35 
 Cal. 624 ; People v. Haws, 34 Barb. 69. 
 
 But where the Constitution provided that "the corporate authorities of counties, 
 &c., may be vested with power to assess and collect taxes for municipal purposes," 
 it was held that the Legislature could not compel a municipality to impose a tax. 
 People v. Chicago, 51 HI. 58. And the same was held in Minnesota, where the Con- 
 stitution requires that taxes shall be as nearly equal as may be. Sanborn v. Rice, 9 
 Minn. 273. 
 
 And where a tax has been levied by a municipality for a particular purpose, it has 
 been held that the Legislature cannot divert it to another purpose, Nashville v. 
 Towns, 5 Sneed (Tenn.) 186 ; State v. Haben, 22 Wise. 660 ; but that the Legislature 
 may direct the application of part of the revenues raised by a county to the payment 
 of the police expenses of a city in such county, see State v. St. Louis County Court, 
 
TAXATION. 507 
 
 without regard to value. Specific taxes have therefore been 
 sustained as a valid exercise of the legislative power. Thus a 
 
 34 Mo 546. That the State may authorize commissioners appointed by the State to 
 levy a city tax, see Baltimore v. State, 15 Md. 376. But see People ex rel. McCagg 
 v. Chicago, 51 111. 17; Lovingstou v. Wider, 53 111. 302; People v. Salomon, 51 
 111. 37. 
 
 State and National Taxation, Agencies of the United States Government cannot 
 be taxed. Thus, an act of Congress exempting United States bonds from taxation 
 is valid, and it seems the exemption would have existed without such act. Newark 
 City Bank v. Assessors, 1 Vroom, 13 ; Bank of Commerce v. New York, 2 Black, 620 ; 
 Bank Tax Case, 2 Wall. 200 ; Van Allen v. Assessors, 3 Wall. 573; People v. Com- 
 missioners, 4 Wall. 244 ; Bradley v. People, Ib. 459 ; The Banks v. Mayor, 7 Wall. 16 ; 
 Bank v. Supervisors, Ib. 26 ; State v. Jackson, 33 N. J. 450. It seems a succession 
 tax on an estate consisting in part of United States securities is good. Strode v. 
 Commonwealth, 52 Penn. St. 181 ; but see People ex rel. Babbitt v. Comm'rs of Taxes 
 of N. Y. cited at p. 64 of Wells' Report on Revision of Tax Laws. It was held in 
 New York that the exemption does not extend to the United States treasury notes 
 and certificates of indebtedness, People v. Hoffman, 37 N. Y. 9 ; but this and other 
 cases were reversed and the doctrine overruled by the United States Supreme Court, 
 and such property was pronounced exempt in The Banks v. The Mayor, 7 Wall. 16, 
 and Bank v. Supervisors, Ib. 26. In People v. Comm'rs, 37 Barb. 635, it was held 
 that the exemption does not extend to United States securities issued before the act, 
 but this must be considered as entirely overruled by the cases cited above. 
 
 A tax on the capital of a bank is a tax on such securities, if the capital is invested 
 in them. Bank Tax Case, 2 Wall. 200 ; Whitney v. Madison, 23 Ind. 331 ; otherwise, 
 of a tax on the shares of individual stockholders, Van Allen v. Assessors, 3 Wall. 
 573. But as the national banks are instrumentalities of the Government, the shares 
 in such banks can only be taxed by consent of Congress, and in the manner that 
 Congress prescribes. Van Allen v. Assessors, 3 Wall. 573. Many State decisions 
 are opposed to this position, but their protest against the doctrine is of course un- 
 availing. SeeUtica v. Churchill, 33 N. Y. 161 ; People v. Barton, 44 Barb. 148 ; Pitts- 
 burg v. First National Bank, 55 Penn. St. 45 ; People v. Bradley, 39 111. 130 ; McVeigh 
 v. Chicago, 49 111. 318. 
 
 The Union Pacific Railroad is not a United States instrumentality, and so exempt 
 from State taxation. Union Pac. R. R. v. Lincoln Co. 1 Dillon C. C. 314 ; Thompson 
 v. Pacific R. R. 9 Wall. 579. In this case the Supreme Court said, that the railroad 
 is at most an agent which Congress employs or may employ, and the general property 
 of United States agents is not exempt from State taxation. But, in Massachusetts, 
 the road-bed of a railroad has been held exempt from local taxation, on the ground 
 that it was public property. Worcester v. Western &c. R. R. 4 Mete. 564. 
 
 On the other hand, the United States cannot tax agencies and instruments of the 
 State Governments. Thus, a stamp tax on writs and process of the State courts is 
 invalid. Craig v. Dimmock, 47 111. 308 ; Warren v. Paul, 22 Ind. 276 ; Jones v. Estate 
 of Keep, 19 Wise. 369 ; Fifield v. Close, 15 Mich. 505 ; Smith v. Short, 40 Ala. 385 ; 
 Union B'k v. Hill, 3 Cold. (Tenn.) 325. Nor can Congress, as very generally held by 
 the State courts, prescribe rules of evidence for State courts, or prescribe that a con- 
 tract shall there be held invalid for want of a stamp. Craig v. Dimmock, 47 111. 308 ; 
 Carpenter v. Snelling, 97 Mass. 452 ; Clemens v. Conrad, 19 Mich. 170 ; Haight v- 
 
508 TAXATION. 
 
 road tax in Illinois,* a bank tax in Massachusetts^ and a tax 
 on merchants, and bankers' licenses in California, J have all been 
 held legal and binding. | 
 
 * Sawyer v. City of Alton, 3 Scammon, ^ People v. Dorr, Same v. Hussey, not yet 
 
 p. 127. reported. 
 
 f Portland Bank v. Apthorp, 12 Mass. p. || See, also, in Texas, Aulanier v. Gov. 1 
 
 252. Texas, 653 ; see contra, Grow v. The State of 
 
 Missouri, 13 Miss. R. 
 
 Grist, 64 N. C. 739 ; Griffin v. Ranney, 35 Conn. 239 ; Green v. Holway, 101 Mass. 
 243; Sarnmon v. Holloway, 21 Mich. 162; Hunter v. Cobb, 1 Bush, 239; People v. 
 Gates, 43 N. T. 40 ; Moore v. Moore, 47 N. Y. 487. 
 
 The Supreme Court of the United States, in The Collector v. Day, 11 Wall. 113, 
 directly affirmed the general doctrine that the United States cannot tax the instru- 
 mentalities of the State Governments, and held that an income tax could not be 
 imposed upon a State judge in respect of his salary. The exemption of State in- 
 strumentalities from national taxation was placed upon exactly the same ground, 
 and was made as broad as the exemption of the national instrumentalities from State 
 taxation. 
 
 A State tax on State writs and process is valid. Cone v. Donaldson, 47 Penn. 
 St. 363. 
 
 The legal tender act has no effect upon State taxes when they are made payable 
 by law in coin. State Treasurer v. Collector of Sangamon Co. 28 111. 509. 
 
 The United States may tax by license laws a business prohibited by State laws, 
 License Tax Cases, 5 Wall. 462 ; but, on the other hand, the States may tax or may 
 prohibit a business taxed under a license law by Congress, at least when Congress pro- 
 vides that its act in laying the license tax shall not abridge such power of the States. 
 Pervear v. Commonwealth, 5 Wall. 475. 
 
 Possessory rights of miners may be taxed by the State, though the land itself 
 belongs to the United States, and is therefore Exempt. Hale &c. Co. v. Storey Coun- 
 ty, 1 Nev. 104. 
 
 The scope of this work does not embrace the subject of State taxation in its rela- 
 tions with the power of Congress to regulate commerce, but the following are very 
 recent cases upon the subject : Crandall v. Nevada, 6 Wall. 382 ; Woodruff v. Parham, 
 8 Wall. 123 ; Hinson v. Sothe, 8 Wall. 148; Case of State Freight Tax, 15 Wall. 232 ; 
 State Tax on Railway Gross Receipts, 15 Wall. 284 ; Sears v. Warren Co. 36 Ind. 267. 
 
 Double Taxation and Place of Taxation. Where the Constitution authorized taxes 
 on income and licenses, but prohibited a tax on the property from which the income 
 so taxed was derived, or the capital employed in the business licensed, it was held, 
 that although the sheriff's income was taxed, his office might also be taxed. Gilke- 
 son v. Frederick Justices, 13 Gratt. 577. An act imposing a tax on the personal 
 property in another State of persons domiciled in the State laying the tax is valid. 
 Boyer v. Jones, 14 Ind. 354 ; but see Hoyt v. Comm'rs of Taxes of N. Y. 23 K Y. 224. 
 That the State may tax non-residents doing business in the State as if residents, see 
 Duer v. Small, 4 Blatch. C. C. 263 ; and may tax alien inhabitants for municipal pur- 
 poses. Frantz Appeal, 52 Penn. St. 367. Where a person does business habitually iu 
 a town, though he resides elsewhere, his income may be taxed in the former place, 
 Worth v. Fayetteville, 1 Wins. (N. C.) No. 2 (Eq.) 70. 
 ' Personal property may also be taxed where situated, without reference to the 
 
TAXATION. 509 
 
 In construing the clause in regard to uniformity of taxation 
 in Louisiana, it has been held that this provision applies as well 
 
 domicil of the owner. Thus, shares owned by a non-resident in a railroad incor- 
 porated by the State laying the tax. Faxton v. McCosh, 12 Iowa, 527 ; Maltby v. 
 Reading R. R. 52 Penn. St. 140. But see " Case of State Tax on Foreign Bondhold- 
 ers," 15 Wall. 300, which holds that a State cannot tax bonds owned by non-resi- 
 dents, though issued by a railroad incorporated by the State and secured by a mort- 
 gage on the property of the road within the State. That a State cannot tax the 
 bonds of a railroad chartered by another State, held by a person not a citizen of the 
 State imposing the tax, although the bonds are there situate, see Northern Central 
 R. R. v. Jackson, 7 Wall. 262. 
 
 Who may Complain. Only those adversely affected. Morgan v. Monmouth PI. R. 
 Co! 2 Dutch. 99 ; People v. Law, 34 Barb. 494. The bondholders of a municipality 
 not complaining, the taxpayers cannot complain of exemptions from taxation. Gil- 
 man v. Sheboygan, 2 Black, 510. 
 
 What may be Sold for Taxes. The fee simple may be, although there is a contin- 
 gent remainder to unborn persons. Johnson v. Babcock, 16 N. Y. 246. It has been 
 held in Michigan, by a divided court, that a statute authorizing property of A. in 
 the hands of B. to be sold for B.'s tax, and giving a remedy to A. against B., is valid. 
 Sears v. Cottrell, 5 Mich. 250. 
 
 Particular Constitutional Provisions. The following are decisions interpreting 
 some special provisions found in various Constitutions : 
 
 New YorTc. "Every law which imposes, continues, or revives a tax shall distinctly 
 state the tax, and the object to which it is to be applied, and it shall not be sufficient 
 to refer to any other law to fix such tax or object." A statute which merely enacts 
 that the expenses of laying out, &c., a certain avenue shall be paid in the manner pro- 
 vided in another act, without specifying or limiting the amount to be raised, is invalid. 
 Hanlon v. Supervisors of Westchester Co. 57 Barb. 383. Providing that the tax shall 
 be paid into the " general fund " which is at the disposal of the Legislature, is a 
 compliance with this provision. People v. Supervisors of Orange Co. 17 N. Y. 235. 
 The statute must state the object of the tax, though it is only an amendment of an- 
 other statute. People v. Moringe, 47 Barb. 642. A local assessment for improve- 
 ment is not such a tax as comes within this provision. In the Matter of Fox, 6 
 Lans. 92. 
 
 Michigan. A similar provision, it was held, does not apply where the Constitution 
 itself appropriates the tax. Wolcott v. People, 17 Mich. 68. 
 
 Maryland. "Every person holding property in the State ought to contribute his 
 proportion of public taxes for the support of government according to his actual 
 worth in real or personal property, yet fines, duties, or taxes may properly and justly 
 be imposed or laid with a political view for the good government and benefit of the 
 community." A tax on collateral inheiitances was held valid, in Tyson v. State, 28 
 Md. 577. 
 
 Iowa. " The property of all corporations for pecuniary profit shall be subject to 
 taxation the same as that of individuals." A statute imposing a tax upon 40 per 
 cent, of the gross receipts of express companies, as the personal property of such 
 companies, at the same rate as the personal property of individuals, and also impos- 
 ing a tax on their real and personal property, is not unconstitutional, although there 
 is no law taxing the earnings of individuals. Such a statute is also neither a local 
 
510 TAXATION. 
 
 to municipal and parochial as to State taxes, and that an ordi- 
 nance of a parish police jury, to compel the inhabitants of a par- 
 ticular portion of the parish to pay for certain embankments, is 
 unconstitutional. * 
 
 Many interesting cases have arisen on the subject of exemp- 
 
 * Gumming v. Police Jury, 9 La. An. R. to be proportional and reasonable. The In- 
 
 503. habitants of Norwich v. The County Commis- 
 
 In regard to "proportional taxation" in sioners of Hampshire, 13 Pick. 60. A city 
 Massachusetts, see City of Lowell v. Hadley, by-law requiring the owners or occupants of 
 8 Met. 181 ; City of Boston v. Shaw, 1 Met. houses to clear the snow from the sidewalks 
 137. An act providing that the expense of in front of their property, is not strictly a by- 
 building a particular bridge shall be borne in law levying a tax. It is rather to be regarded 
 part by the county within which it is situated, as a police regulation. The duty required is 
 when by the operation of the general laws a duty upon the person in respect to the prop- 
 of the commonwealth the expense would be erty which he holds, and is valid under the 
 borne wholly by the town within which it is Constitution of Massachusetts. Goddard, Petr. 
 situated, does not violate the constitutional 16 Pick. 504. 
 provision of Massachusetts requiring taxation 
 
 nor a special law within tLe constitutional prohibition. U. S. Express Co. v. Elly- 
 son, 28 Iowa, 370. (There seems to be no provision that the rule of taxation shall 
 be uniform). See provision as to " particular services " next below, under 
 " Indiana." 
 
 Indiana. " The particular services of individuals shall not be required without 
 compensation." This is violated by a statute requiring attorneys to defend indigent 
 criminals without compensation. Blythe v. State, 4 Ind. 525. It was held in Iowa 
 that a maximum compensation in such cases might be fixed by statute. Samuels v. 
 Dubuque, 13 Iowa, 536. A similar statute requiring the gratuitous services of attor- 
 neys was held invalid in Wisconsin. County of Dane v. Smith, 13 Wise. 585. 
 
 Georgia. Taxation of property shall be ad valorem only, and uniform upon all 
 species of property taxed." Const, of 1868, Art. I, 27. A tax of 20 cents per 
 gallon on the sales of liquor was held valid, in Kenny v. Harwell, 42 Geo. 416. As 
 to what business can be reached by an ad valorem tax, see Hirsh's Case, 21 Gratt. 
 785. 
 
 Missouri. " Taxation upon property shall be in proportion to value." This does 
 not apply to an income tax. Glasgow v. Rowse, 43 Mo. 479. 
 
 Massachusetts. The provision of the Constitution that taxes shall be " propor- 
 tional " is not directory, and a tax of one-fifteenth on- dividends of non-resident 
 shareholders is not ''proportional." Oliver y. Washington Mills, 11 Allen, 268. A 
 statute taxing non-resident shareholders of national banks in the town where the 
 bank is situated, at the local rates as fixed by a valuation in which the value of those 
 shares is not included, the tax itself being for State purposes, does not violate the 
 provision requiring taxes to be " proportional," and is valid. Prov. Inst. for Savings 
 T. Boston, 101 Mass. 575. A tax upon savings banks according to the average of 
 deposits for the half year, was held to be an excise or duty on the franchise, and 
 .valid. Commonwealth v. People's &c. B'k, 5 Allen, 428. That an "excise" must 
 be equal on all who exercise the particular employment or enjoy the particular com- 
 modity taxed, see Oliver v. Washington Mills, 11 Allen, 268. A tax on the capital 
 stock at par of any foreign mining corporation, having an office for business in the 
 State, is a tax on a commodity, and valid. Att'y Gen. v. Bay State Mining Co. 99 
 Mass. 148. 
 
EXEMPTIONS FROM TAXATION. 511 
 
 tion 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 grant and its conditions are equally inviola- 
 ble.* But where the exemption results from a general law, 
 and does not form a portion of a grant, any subsequent Legis- 
 lature may repeal the exemption.f In New Hampshire, it has 
 been said that the Legislature could pass laws conferring ex- 
 emptions from taxation, which would be valid till repealed. 
 But it was intimated that it was not competent for the Legisla- 
 ture to make any contract by which a party should be perpetu- 
 ally exempted from taxation, upon the ground that no such 
 power was delegated to the Legislature, that it could not 
 grant away the essential attributes of sovereignty or right of 
 eminent domain ; that these did not seem to furnish the subject- 
 matter of a contract. 
 
 By a statute of 1793, in Massachusetts, all persons who had 
 held the office of a subaltern, or of higher rank, were exempted 
 from militia duty. This statute was repealed on the th 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 1793, on condition of an 
 annual payment of two dollars. The case was presented of a 
 subaltern officer, honorably discharged in May, 1799, and who, 
 under the operation of the act of 1793, was exempted from 
 militia duty. Under the act of 1810 a fine was imposed 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 a vested right to his exemption. 
 But the objection was overruled; and while admitting 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 
 
 * State of New Jersey v. Wilaon, *7 223 ; Osborne v. Humphrey, 7 Conn. 335 ; 
 
 Cranch, 164. Parker v. Redfield, 10 Conn. 490; Langdon 
 
 t Herrick v. Randolph, 13 Verm. 525. v. Litchfield, 11 Conn. 251. 
 See cases in Connecticut as to exemption from \ Brewster v. Hough, 10 N. H. 145. 
 taxation. Atwater v. Woodbridge, 6 Conn. 
 
512 RELIGIOUS TOLERATION. 
 
 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 com- 
 pensation : f under this it has been held that a statute requir- 
 ing professional services to be gratuitously rendered, would be 
 unconstitutional and void; and it was also said, that a law 
 which requires gratuitous services from a particular class in 
 office, imposes a tax upon that class clearly in violation of the 
 fundamental provision for a uniform and equal rate of assess- 
 ment and taxation upon all citizens. J 
 
 The Constitution of Tennessee contains the same provision 
 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 without just compensation being made 
 therefor." The use of the disjunctive conjunction is worthy of 
 notice. || 
 
 Religious Toleration. Most, if not all of our State Consti- 
 tutions contain provisions designed to secure the great principle 
 of freedom of conscience. But there has been so little disposi- 
 tion to infringe this class of guaranties, 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 
 brought within the range of judicial interpretation. Some few 
 cases may be noticed. (#) 
 
 * Commonwealth v. Baird, 12 Mass. 443. \ Webb v. Baircl, 6 Indiana, 13. 
 
 f Constitution of Indiana, art. i, 21. | Cons, of Tennessee, art. i, 21. 
 
 (a) The Constitution of California declares that " all men are by nature free and 
 independent, and have certain inalienable rights, among which are those of enjoying 
 life and liberty, acquiring, possessing, and protecting property, and pursuing and 
 obtaining safety and happiness," ,and " the free exercise and enjoyment of religious 
 profession and worship, without discrimination or preference, shall forever be allowed 
 in this State." It was held that " an act for the better observance of the Sabbath," 
 prohibiting the pursuit of business on that day, etc., conflicted with the above clauses, 
 and was void. Ex parte Newman, 9 Cal. 502. But this case was overruled and such 
 statute sustained in Ex parte Andrews, 18 Cal. 678, and Ex parte Bird, 19 Cal. 130. 
 Similar legislation was upheld in Frolichstein v. Mayor &c. 40 Ala. 725 ; Gabel y. 
 Houston, 29 Tex. 335; Voglesong v. State, 9 Ind. 112. But see remarks of Perkins 
 J., in Thomasson v. State, 15 Ind. 449. A law closing theaters on Sunday is valid^ 
 Lindenmuller v. People, 33 Barb. 548. It is no reason for the removal of a testa- 
 mentary guardian that he is a Universalist or an infidel. Maxey v. Bell, 41 Geo. 183. 
 
RELIGIOUS TOLERATION. 513 
 
 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 
 
 O " 
 
 no one shall be hurt, molested, or restrained in his person, 
 liberty, or estate, for worshiping God after his own conscience ; 
 and that no subordination or preference of any sect or denom- 
 ination 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 education 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 
 suitable provision, at their own expense, for the support and 
 maintenance of public schools." f Under this general author- 
 ity 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 aris- 
 ing 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 for the guidance of its citizens. It 
 does not necessarily follow that they are unconstitutional, nor 
 that a citizen is to be legally absolved from obedience, because 
 they may conflict with his conscientious views of religious duty 
 or right. To allow this, would be to subordinate the State to 
 the individual conscience. A law is not unconstitutional be- 
 cause it may prohibit what a citizen may conscientiously think 
 right, or require what he may conscientiously think wrong. 
 The State is governed 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 
 
 * Constitution of Maine, art. i, 3. f Constitution of Maine, art. viii. 
 
 33 
 
514 RELIGIOUS TOLERATION. 
 
 refusal to read the books thus prescribed, the committee might, 
 if they saw fit, expel the disobedient scholar.* 
 
 In the State of Massachusetts, it has been held, on consid- 
 eration of the second article of their Bill of Rights, which is 
 similar to the constitutional 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 
 prosecution by punishing any one for his religious opinions, how- 
 ever erroneous they might be." f 
 
 Connected with this subject, I may here call attention to 
 the original provisions of the Constitution of Massachusetts ; 
 which, to a certain extent, recognized and declared a relation- 
 ship and connection between the church and the State. The 
 third article of the original Massachusetts Declaration of Rights 
 was as follows : " The people have a right to invest their Legis- 
 lature with power to authorize and require, and the Legislature 
 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 ex- 
 pense, for the institution of the public worship of God, and for 
 the support 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 in- 
 structions of the public teachers aforesaid, at stated times and 
 seasons, if there be any on whose instructions they can con- 
 scientiously and conveniently attend." In Adams v. Howe et 
 al. 14 Mass. 346., the object and purpose 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 conscience 
 and choice of the mo.de of worship ; 2. To assert the right of 
 
 * Donolioev. Richards, 38 Maine, 379, 410. am aware, which touches on what has been 
 This is the only judicial decision of which I familiarly called the Higher Low. 
 
 f Thurston v. Whitney, 2 Cush. 104. 
 
RELIGIOUS TOLERATION. 515 
 
 the State, in its political capacity, to require and enforce the 
 public worship of God; 3. To deny the right of establishing 
 any hierarchy, or any power in the State itself to require con- 
 formity to any creed or formulary of worship." 
 
 The provision was soon, however, considered unfriendly to 
 the great interests of religious liberty ; several 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 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 importance, 
 as the provision was struck from the Bill of Rights by a popu- 
 lar 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 and pressing, 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 duty resting on the State ; 
 and that provision was made and carried into effect through 
 the instrumentality of local ecclesiastical societies, established 
 by the State, through its legislative power ; and under that 
 
 * See Barnes v. First Parish in Falmouth, but little aid in the construction of the enact-. 
 6 Mass. 400, where the general character of ing parts. It is not unfrequently merely in- 
 the constitutional provision is discussed ; troductory to the first section, and it appears 
 Turner v. Second Precinct in Brookfield, 7 to me that it was so used in this statute." 
 Mass. 60. See also, Kendalls v. The Inhabit- Holbrook v. Holbrook, 1 Pick. 248. 
 ants of Kingston, 5 Mass. 524 ; see Adams v. In another case it was said, " Where the 
 Howe, 14 Mass. 341, as to the constitutional- provisions of two statutes are dissimilar but 
 ity <>f certain exemptions from the operation not repugnant, a party may pursue 'the pro- 
 of the constitutional clause created by statute, visions of either. As if by one statute juris- 
 See also, Holbrook v. Holbrook, 1 Pick. 218. diction of a matter be given to one court, and 
 for another case on exemptions. See also, afterwards by a new statute the same matter 
 Gage v. Currier, 4 Pick. 399. is made cognizable by another court, a p;<rty 
 
 f Many points of a general bearing will may select either tribunal. So, if a special 
 
 be found decided in the cases to which this statute providing that the inhabitants of a 
 
 controversy gave rise. So, in a case on the particular town may separate from a religious 
 
 Massachusetts statute, exempting parties from society on certain conditions, and a general 
 
 the constitutional obligation to support the statute is passed dissimilar but not repugnant, 
 
 church, the Supreme Court of that State said, it is sufficient for a person to bring himself 
 
 per Wilde J. : "In many statutes it will be within the provisions of either." Gage v. 
 
 found that the preamble states imperfectly Currier, 4 Pick. 399. 
 the views of the Legislature, and can afford 
 
516 DIVORCES. 
 
 Constitution the General Assembly constantly exercised 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 re- 
 ligious association ; " and under this Constitution it has been 
 there decided that it is not competent for the Legislature to 
 divide an ancient local ecclesiastical society, f 
 
 Divorces. Legislative acts granting divorces from the mar- 
 riage tie, like the still more objectionable class of acts of at- 
 tainder, 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 almost completely at the mercy of violent and reckless par- 
 tisan 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 prohibiting, expressly 
 and absolutely, all divorces, except 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." J 
 
 California. " No divorce shall be granted by the Legislature." || 
 Missouri. " The General Assembly shall not have power to grant a divorce 
 in any case."^[ 
 
 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 in- 
 vestigated in the courts of justice, and divorces granted.** 
 
 Texas. " No divorce shall be granted by the Legislature." f f 
 Wisconsin. " The Legislature shall never grant any divorce." J J 
 Tennessee. " The Legislature shall have no power to grant divorces, but may 
 authorize the courts of justice to grant them for such causes as maybe specified 
 
 * Cons, of 1818, art. viii, 1. || Constitution of California, art. iv, 26. 
 
 f The Second Eccl. Soc'y of Portland v. Tf Constitution of Missouri, art. iii, 32. 
 
 The First Eccl. Soc'y of Portland, 23 Conn. ** Constitution of Arkansas, art. iv, 24. 
 
 255. ft Constitution of Texas, art. vii, 18. 
 
 \ Constitution of New York, art. i, g 10. \\ Constitution of Wisconsin, art. iv, 24. 
 
TITLES OF LAWS. 517 
 
 by law ; provided that such laws be general and uniform in their operation 
 throughout the State." * 
 
 Indiana. " The General Assembly shall not 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 cas^s 
 where a general law can be made applicable, all laws shall be general, and of uni- 
 form operation throughout the State." f 
 
 Michigan. " Divorces shall not be granted by the Legislature." J 
 Louisiana. " No divorce shall be granted by the Legislature." || 
 Iowa. " No divorce shall be granted by the General Assembly." ^[ 
 
 These changes in the fundamental law of so many 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 commends itself to the national judgment is propa- 
 gated from one member of the confederacy to another, thus 
 keeping in harmony, though under various governments, 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 guaranties are to be found in 
 the restrictions imposed on what may be called the practice 
 and procedure of our legislative bodies. Great abuses have 
 been found to result from a practice, already mentioned, of an- 
 cient date, of incorporating in the same bill subjects of a very 
 heterogeneous nature, resorted to either for the purpose of sur- 
 prising the good faith of the lawmaking body, or of enlisting 
 hostile interests in support of the proposed act.** To put a 
 
 * Constitution of Tennessee, art. xi, 4. the offenders to justice; for continuing two 
 f Constitution of Indiana, art. iv, 22. clauses, to prevent the cutting or breaking 
 Constitution of Michigan, art. iv, 26. down the bauk of any river or sea bank, and 
 Constitution of Louisiana, art. vi, 114. to prevent the malicious cutting of hop-binds ; 
 Constitution of Iowa, art. iv, 28. and for the more effectual punishment of per- 
 ** Acts of this kind are called, in the coun- sons maliciously setting on fire any mine, pit, 
 try from which we derive most of both our or delph of coal or cannel coal ; and t>f per- 
 virtues and our defects, hodge-podge acts, sons unlawfully hunting or taking any red or 
 The English statute, 17 Geo. II, c. 40, is en- fallow deer in fores.^or chafes, or beating or 
 titled thus: " An act to continue the several wounding the keepers or other officers in 
 laws therein mentioned, for preventing theft forests, chafes, or parks ; and for granting a 
 and rapine on the northern borders of En- liberty to carry sugars of the growth, prod- 
 gland; for the more effectual punishing uce, or manufacture of any of his Majesty's 
 wicked and evil disposed persons going around sugar colonies in America, from the said 
 in disguise, and doing injuries and violences colonies directly to foreign ports in ships 
 to the persons and properties of his Majesty's built in Great Britain, and navigated accord- 
 subjects, and for the more speedy bringing ing to law; and to explain two ac:s relating 
 
518 TITLES OF LAWS. 
 
 stop to this practice, many States of the Union have incorpo- 
 rated into their fundamental laws the provisions, some of which 
 I proceed to give. () 
 
 to the prosecution of offenders for embezzling ing," ordered to be printed 13 May, 1Y96, 
 
 naval stores, or stores of war ; and to prevent Parl. Reg. vol. xliv, p. 822. The report con- 
 
 the retailing of wine within either of the Uni- taius a general review of the condition of the 
 
 versities in that part of Great Britain called statute law of the kingdom, and severely cen- 
 
 Eng'and, without license." I take this from sures it as " discordant, perplexed, incongru- 
 
 a very interesting " Report from the Commit- ous, verbose, tautologous, and obscure." See 
 
 tee upon Temporary Laws, Expired or Expir- also, ante, p. 51. 
 
 (a) Titles and Subjects of Statutes. Constitutional Provisions. The following are 
 all the constitutional provisions in the various Slates : 
 
 Each law shall contain but one subject, which shall be clearly expressed in its 
 title. Alabama, IV, 2 ; Kansas, II, 16. No bill shall, &c. [same as above]. Ohio, II, 
 16; Nebraska, II, 19. No act shall embrace more than one subject, which shall be 
 embraced in its title. Arkansas, V, 22 : Minnesota, IV, 27. Laws making appro- 
 priation for the salaries of public officers and other current expenses of the State 
 shall contain provisions on no other subject. Florida, IV, 30; Oregon, IX, 7. Each 
 law enacted by the Legislature shall embrace but one subject and matter properly 
 connected therewith, which subject shall be briefly expressed in the title. Florida, 
 IV, 14 ; Nevada, IV, 17. Nor shall any law or ordinance pass which refers to more 
 than one subject-matter, or contains matter different from what is expressed in the 
 title thereof. Georgia, III, 9, v. No act hereafter passed shall embrace more than 
 one subject, and that 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 so expressed. Illinois, IV, 13 ; Missouri, 
 IV, 32. 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. Indiana, IV, 19 ; 
 Oregon, IV, 20; Iowa, III, 29. To avoid improper influences which may result from 
 intermixing in one and the same act such things as have no proper relation to each 
 other, every law shall embrace but one subject, and that shall be expressed in the 
 title. New Jersey, IV, 7, 4. No law shall embrace more than one object, which 
 shall be expressed in its title. Michigan, IV, 20; Virginia, V, 15. Every law shall 
 express its object or objects in its title. Louisiana, VI, 114. No law enacted by the 
 General Assembly shall relate to more than one subject, and that shall be expressed 
 in the title. Kentucky, II, 37. Every law enacted by the Legislature shall embrace 
 but one object, and that shall be expressed in the title. California, IV, 25 ; Texas, 
 XII, 17. No act hereafter passed shall embrace more than one object, and that shall 
 be expressed in the title. But if any object shall be embraced in an act which is 
 not so expressed, the act shall be void only as to so much thereof as shall not be so 
 expressed. WestVirgj,nia,YL, 30. Every law enacted by the General Assembly shall 
 embrace but one subject, and that shall be described in its title. Maryland, ITT, 29. 
 No bill shall be passed by the Legislature containing more than one subject, which 
 shall be expressed in the title, except appropriation bills. Pennsylvania, XI, 8. 
 Every act or resolution having the force of law shall relate to but one subject, and 
 that shall be expressed in the title. South Carolina, II, 20. No bill shall become a 
 law which embraces more than one subject, that subject to be expressed in the title. 
 
TITLES OF LAWS. 519 
 
 The evils which these provisions are intended to prevent, 
 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 stat- 
 ute with matters entirely foreign to them; the result of which 
 was, that on many important subjects the statute law had be- 
 come almost unintelligible, 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 consti- 
 tutional provision under consideration.* (a) 
 
 * Walker v. Caldwell, 4 Ann. R. 298. 
 
 Tennessee, II, 17. 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. New 
 York, III, 16 ; Wisconsin, IV, 14. 
 
 (a) Titles and Subjects of Statutes. From the abstract given above it appears that 
 the constitutional provisions respecting titles and subjects may be separated into 
 three classes : (1.) In most of the States the provision applies to all statutes, and 
 requires that each shall relate to one " subject' 1 ' 1 only, which shall be expressed in the 
 title. (2.) A few and most of these recent Constitutions have the same require- 
 ment, substituting the word ''object 1 ' 1 for "subject." (3.) Two States limit the re- 
 quirement to u private or local " statutes. The general discussion involves the ques- 
 tions, what is a single "subject" of a statute? and when is this subject properly 
 expressed in the title ? There may also arise the question whether the word " object," 
 as used in a few Constitutions, has any different meaning from, and requires any 
 other construction than the word " subject." As yet no judicial decision has pointed 
 out a distinction. There does not seem to be any practical difference. The word 
 " object" rather more accurately, perhaps, fits the interpretation which the courts 
 have given to the clause with the word " subject," and probably, for this reason, has 
 been used in some recent Constitutions. In the two States, New York and Wiscon- 
 sin, the construction of the clause is complicated by the further inquiry, what stat- 
 utes are local or private ? The cases from these particular States will, therefore, 
 necessarily fall into a group by themselves, and in most of them we shall find that 
 the question whether the statute is private or local or general is by far the most diffi- 
 cult and important. 
 
 Within the past few years this clause in the various Constitutions has assumed a 
 very considerable importance, and the number of decisions giving it a construction 
 has rapidly increased. This fact is partly due to the great increase in the very 
 kind of legislation which the clause was intended to prevent, and partly to the 
 growing disposition of the courts to treat the clause as meaning something, and to 
 regard it with favor as a beneficial provision well calculated to restrain corrupt legis- 
 lation. 
 
 In a few cases the clause has been held to be directory merely, a rule given to the 
 
520 TITLES OF LAWS. 
 
 In the same State, it has been said to be improper to give 
 this provision " too rigorous and technical a construction." If 
 
 Legislature, but without sanction or penalty ; and, as a consequence of this interpre- 
 tation, statutes in which the provision is violated have been held valid. Pins v. 
 Nicholson, 6 Ohio, N. S. 176 ; Washington v. Page. 4 Cal. 888; Ex parte Newman, 9 
 Cal. 502 ; Pierpont v. Crouch, 10 Cal. 315. But these cases are opposed to the gene- 
 ral current of judicial decisions, and in all other States the clause is pronounced man- 
 datory, and a violation of it renders the statute either wholly or partly void. The 
 cases relating to this provision will be arranged and classified under the following 
 heads : 
 
 The Title, when does it sufficiently express the Subject. The title should fairly indi- 
 cate the general subject of the statute, but need not give an abstract of its contents; 
 nor need it mention the means, methods, or instruments by which this general pur- 
 pose is to be accomplished ; nor need it express matters which are merely incidental 
 to this subject. This is the interpretation which has almost universally been put upon 
 the constitutional provision, and most of the cases hereafter cited are illustrations of 
 the interpretation. San Antonio v. Lane, 32 Tex. 405 ; People v. Lawrence, 41 N. Y. 
 137; 36 Barb. 177. But, per contra, it has been said that the title should give the 
 means rather than the end, and should be reasonably particular. Indiana Cent. R. R. 
 v. Potts, 7 Ind. 681. But this is opposed to the general rule. The adjuncts and 
 modus operandi need not be stated. An act to authorize " the erection of two 
 bridges " is sufficient. Ottawa v. People, 48 111. 233. The following cases illustrate 
 this principle : " An act for the relief of I. L. & Son," a sufficient title where the 
 statute authorizes a city to levy an assessment on a portion of its territory, and thus 
 raise a certain sum and pay it to I. L. & Son, who had an equitable claim against 
 the city growing out of a contract. Brewster v. Syracuse, 19 N. Y. 116. " An act 
 for a homestead exemption " is a sufficient title, though it includes exemption from 
 personal property. Tuttle v. Strout, 7 Minn. 465. It has been held that the title 
 u An act to amend " a certain specified act, is sufficient when the title of the original 
 statute was proper, and the amendatory statute contains nothing which is not germane 
 to such original. Swartwout v. Mich. Air Line R. R. 24 Mich. 389 ; Brandon v. State, 
 16 Ind. 197. But where an act was entitled an act to amend a specified chapter of 
 the laws of a certain year, and such chapter was in fact a city charter containing a 
 great number of sections and a mass of details, a provision in it changing the num- 
 ber of directors of a railroad to which the city was entitled was held void. People 
 v. Hills, 35 N. Y. 449, reversing s. c. 46 Barb. 340. " An act to authorize the gov- 
 ernor to till vacancies in certain county offices " is a sufficient title, without specify- 
 ing what offices. Falconer v. Robinson, 46 Ala. 340. 
 
 But if the title is such as to mislead, it is bad, e.g., where an act only affects a 
 particular locality, but gives no notice of this in its title. Durkee v. Janesville, 26 
 Wise. 6i>7. And when the object of a local statute was to reduce the width of a 
 highway, and to give back some of the land to the abuttors, and its title was " An 
 act to regulate " the highway, it was held void. People v. Commissioners, 53 Barb. 
 70. " An act to repeal certain acts therein named " cannot include any affirmative 
 legislation. People v. Mellen, 32 111. 181. But if the title does not mislead or effect 
 a surprise, it will be good, although not the most apt possible, or not as full as might 
 be. People v. McCallum, 1 Neb. 182 ; Commonwealth v. Green, 58 Penn. St. 226. A 
 mere inaccuracy in the title will not defeat the act, e. g., in a statute creating a new 
 
TITLES OF LAWS. 521 
 
 in applying it we should follow the rules of a nice and fas- 
 tidious verbal criticism, we should often frustrate the action of 
 
 town, describing it as constituted in a certain township, when its territory wns really 
 formed out of two townships, one only of which was named. State v. Elvins, 3 
 Vroom, 362. 
 
 When there is One Subject. This particular question has two aspects, which it is 
 important to distinguish and keep separate : (1.) The title may express more than 
 one subject, while the statute really embraces but one ; and (2.) The subject may be 
 really double. Some of the Constitutions expressly authorize a statute to contain 
 " matter properly connected with " the subject ; but this provision is clearly unneces- 
 sary, for without it the same result is reached. The matters incidental and germane 
 to the subject are included, and need not be stated in the title. 
 
 Though the title contains more than is necessary, if it refer to the one subject- 
 matter of the statute in such a manner as to properly designate it, the constitutional 
 provision is not violated. Thus, when the title was " An act for the revising and con- 
 solidating the laws incorporating the city of Dubuque, and to establish a city court 
 therein,' 11 the statute was held valid, because the establishing a city court was not a 
 new subject, but was a mere incident to the general subject stated in the title. 
 Davis v. Woolnough, 9 Iowa, 104. An " act to suppress murder, lynching, and as- 
 saults and batteries," deals with but one subject, though in different grades. Gunter 
 v. Dale Co. 44 Ala. 639. See also, State V. Bowers, 14 Ind. 195; Farley v. Dowe, 45 
 Ala. 324; Ex part ~e Upshur, 45 Ala. 234. " An act to authorize the W. & S. & P. R. 
 R. to consolidate with the M. C. R. R. and to bridge the Mississippi River," held to 
 embrace more than one subject (Miller, J., dissenting). Winona &c. R. R. v. Wal- 
 dron, 11 Minn. 515. "An act for the organization of corporations of public im- 
 provement and utility," held to embrace but one object. Bridgeford v. Hael, 18 La. 
 Ann. 211. 
 
 We give now illustrations arranged under various heads, according to the general 
 subject-matter or purpose of the statute, and inquire, What provisions are, and what 
 are not, germane to the general subject ? When all the provisions of a statute fairly 
 relate to the same subject, have a natural connection with it, are the incidents or the 
 means of accomplishing it, then the subject is single, and if it is sufficiently expressed 
 in the title, the statute is valid. 
 
 Charters of Corporations. What provisions may be inserted in such charter, and 
 not be obnoxious to the constitional restriction ? The charter of a railroad company 
 may contain provisions for municipal subscriptions in aid of it. Supervisors v. People, 
 25 111. 181 ; Phillips v. Covington Bridge Co. 2 Mete. (Ky.) 219 ; Phillips v. Albany, 
 28 Wise. 340 ; per contra, San Antonio v. Gould, 34 Tex. 49. " An act for the bene- 
 fit of the L. & O. Turnpike Co." embraced provisions authorizing the company to 
 borrow on mortgage, and authorizing also a sale of the road to pay debts and a sub- 
 stitution of the purchaser to the rights of the company, and was held valid. Louis- 
 ville &c. Co. v. Ballard, 2 Mete. (Ky.) 165. But in " An act to incorporate an ob- 
 servatory," provisions requiring the comproller of the State to loan money to the 
 corporation out of a public fund, upon very inadequate security, were held void. 
 People v. Allen, 42 N. Y.404. In an act chartering a college, a provision forbidding 
 the sale of liquors within four miles thereof was held germane to the subject and 
 valid. O'Leary v. County of Cook, 28 111. 534. A clause in a bank charter allowing 
 all parties on any bill negotiated at the bank to be sued in one action is also germane 
 
622 TITLES OF LAWS. 
 
 the Legislature, without fulfilling the intention of the framers 
 of the Constitution ; and so it has been said that an act enti- 
 
 to the subject and valid. Davis v. Bank of Fulton, 31 Geo. 69. " An act for the in- 
 corporation of insurance companies, denning their powers and prescribing their 
 duties," cannot properly embrace provisions regulating agencies of foreign com- 
 panies. Igoa v. State, 14 Ind. 239; Grubbs v. State, 24 Ind. 295. But " An act to 
 incorporate the Fireman's Benevolent Association," may include provisions for a tax 
 on incomes of foreign insurance companies doing business at the place for the bene- 
 fit of such corporation. Fireman's Ass. v. Louusbury, 21 111. 511. It seems that an 
 act by its title merely for the extension of a charter, may state the terms upon which 
 the extension is granted. Robinson v. Bank of Darien, 18 Geo. 65. 
 
 Municipal Corporations. The following cases relate to the charters of municipal 
 corporations, and to statutes which relate to the internal affairs, government, and 
 acts of such corporations, including in part the power of taxing held by such 
 bodies : 
 
 It is a general rule that the general object of the act is to be stated in the title, 
 and not the means and methods by which it is to be accomplished, and not the inci- 
 dents and details. People v. Mahany, 13 Mich. 495 ; Mayor &c. v. State, 30 Md. 112; 
 State v. Union, 33 N. J. 354. And all the following cases either imply or expressly 
 state the same principles : 
 
 The title of an act was to amend the charter of a city, and the body of the stat- 
 ute provided for a new assessment for certain city improvements, gave new power to 
 the city council to lay out streets, &c., and fixed the time for delivery of the tax lists. 
 It was held valid. State v. Newark, 5 Vroom, 236. " An act to amend the charter 
 of " a city may, it seems, include provisions that aldermen shall not as theretofore 
 sit as members of a certain court, that the remaining members of such court shall 
 transact its business, and for the punishment of city functionaries for bribery. 
 Phillips v. New York, 1 Hilt. (N. Y. C. P.) 483. " An act to amend the act to 
 incorporate " a city was held to properly embrace a provision for extending the 
 city limits. Morford v. linger, 8 Clarke (la.) 82; and see also Whiting v. Mt. 
 Pleasant, 11 Iowa, 482. "An act to extend the corporate powers of the town of 
 Pontiac," properly contains clauses restricting as well as those enlarging such powers, 
 e. g., as to licensing liquor traffic. Neifing v. Pontiac, 56 111. 172. An act to change 
 the boundaries of two counties may, as incident to such end, apportion the county 
 debt. Humboldt Co. v. Churchill Co. Comm'rs, 6 Nev. 30. An act for the enlarging of 
 a county may provide for re-locating the county seat, for accepting donations of sites 
 therefor, &c. Blood v. Mercelliott, 53 Penn. St. 391. "An act to extend the bound- 
 aries of Kossuth county," was held to properly include the joining to another county 
 of the remnant of the county from which the addition was taken, which remnant 
 was less than the area required by the Constitution for a separate county, inasmuch as 
 this was necessary to the accomplishment of the general purpose of the act, since other- 
 wise a county of less than the required area would have been left. Duncombe v. 
 Prindle, 12 Iowa, 1. Provisions for forming new counties out of old ones and for 
 changing the boundaries of the old ones, are properly joined in one statute. Hag- 
 gard v. Hawkins, 14 Ind. 299. And in acts for the "formation " of new counties, 
 provisions as to the sessions of courts therein are proper. Brandon v. State, 16 Ind. 
 197. But in " An act locating the county seat of Calhouu county," a provision for 
 the sale of county property at the old county seat relates to a different subject from 
 
TITLES OF LAWS. 523 
 
 tied an act to "provide a Iwniestead for widows and children" 
 was good, though in fact the statute only prov ided the pecuniary 
 
 that expressed in the title, and was void. Cutlip v. Calhoun Co. 3 W. Va. 588. An 
 act to establish " township organizations," provided also for aggregation of towns 
 into counties, it was held not to be within the spirit of the constitutional prohibi- 
 tion, although technically embracing two subjects. Supervisors v. Heenan, 2 Minn. 
 380. And an ' c act for the more uniform mode of doing township business" may 
 include provisions for the organization of townships. Clinton v. Draper, 14 Ind. 
 295. 
 
 " An act to enable the supervisors of the city and county of New York to raise 
 money by tax," properly embraced a provision for the re-examination and reversing 
 of judgments againpt the city obtained by fraud, these judgments being payable out 
 of the money thus raised by the tax, an examination into their validity was in fact 
 a means of fixing the amount of indebtedness to be paid, and this was an incident 
 of the general purpose of the statute. Sharp v. New York, 31 Barb. 572 ; Joyce v. 
 Mayor &c. 12 Abb. Pr. 309. In this and all the other New York cases cited, it must 
 be remembered, the statute itself is local or private if it falls within the constitu- 
 tional prohibition. " An act to make provision for the government of the county 
 of New York," may prescribe rules as to county taxation, the property to be taxed, 
 and may repeal exemptions. People v. Comm'rs of Taxes, 47 N. Y. 501. u An act 
 to enable the supervisors of the city and county of New York to raise money by tax 
 for the use of the corporation, and in relation to the expenditure thereof." Section 
 10 enacted that the city shall not be liable upon any contract made by any board or 
 officer of the city not authorized by such act; this provision was held invalid, as 
 being local it was not expressed in the title. Smith v. Mayor &c. 7 Robt. 190. 
 
 " An act to enable the supervisors of the city and county of New York to raise 
 money by tax for the use of the corporation, and in relation to the expenditure 
 thereof, and to provide for the auditing, &c., of claims against said city," cannot 
 contain provisions as to the term of office and time of election of city conncilmen ; 
 such provisions are local and not expressed iu the title. People v. O'Brien, 38 N. Y. 
 193. 
 
 In an act relating to the collection, payment, and application of certain assess- 
 ments in a designated city, a provision for making compensation by means of such 
 assessments to a railroad company for its discontinuing the use of steam in the city, 
 is valid. Also in an act for the purpose of closing a tunnel, restoring the street, and 
 terminating the use of steam by a certain railroad in a city, a clause authorizing the 
 company to maintain a horse railroad in the place of their former one, and for assess- 
 ments to compensate it for the change, is valid. These provisions are incidental, and 
 means to accomplish the object expressed by the title. People v. Lawrence, 41 N. Y. 
 123; s. c. 36 Barb. 177. " An act in relation to the fees of certain officers in the city 
 and county of New York '' sufficiently designates the subject of a local statute which 
 gives salaries instead of fees, and provides that the fees should go into the city 
 treasury. Conner v. Mayor &c. 5 N. Y. 285. " An act to enable the supervisors of 
 the city and county of New York to raise money by tax " is a sufficient title of a 
 local statute which authorizes a tax on the city, and directs a portion of the tax for 
 specified purposes to be .assessed on a particular part of the city. It was held that 
 this statute related to but one subject the power to tax and that the mode of exer- 
 cising this power, and the purposes for which the money was to be raised, need not 
 
524 TITLES OF LAWS. 
 
 means sufficient to purchase a homestead* In the State of 
 Maryland, it has been said that the provision that " every law 
 
 * Succession of Lanzetti, 9 La. Ann. 329. See, also, Lsefon v. Dufrocq, Ibid. 540. 
 
 be expressed. Sun Mutual Ins. Co. v. Mayor &c. 8 N. T. 241 ; s. c. 5 Sandf. 10. An 
 act to consolidate several school districts in a certain village, and to establish a free 
 school therein, does not embrace more than one subject. People v. Bennett, 54 Barb. 
 480. "An act in relation to the establishment of a normal and training school in 
 the village of B." contained provisions for raising money for the school by the issu- 
 ing of village bonds or by a village tax ; these provisions were held germane to the 
 subject and valid. Gordon v. Comes, 47 1ST. Y. 608. In an act relating to con- 
 tracts made by the city of New York, a clause constituting certain officers a board 
 of revision for the correction of assessments was held valid, the object being for the 
 confirmation of assessments by which compensation was to be made to contractors. 
 Matter of Tappen, 36 How. Pr. 390 ; 54 Barb. 225. " An act to make further pro- 
 vision for the government of the city of New York,"" which was in fact the annual 
 tax levy for the city, contained a provision for the reorganization of the courts of 
 special sessions in the city ; this provision was held void, the court saying that both 
 the act, in its general subject and in its separate clauses, and this particular provis- 
 ion, were local in their character, and that the title did not embrace this provision. 
 Huber v. People, 49 N. Y. 132. But in an act of the same title and character, a sec- 
 tion forbidding judgments to be entered against the city, except on a verdict of a 
 jury or on issues of law, was held valid by the Supreme Court, on the ground that 
 it was general in its character, though the mass of the statute was local. Lewenthal 
 v. Mayor. 61 Barb. 511. This case, however, must be considered as overruled by Huber 
 v. People, uhi supra. " An act in relation to certain local improvements in the city 
 of New York," contained the following provisions : that certain contracts for im- 
 provements should be invalid if certain irregularities have occurred, unless commis- 
 sioners appointed by the act shall certify that no fraud has been committed in 
 respect to them; that commissioners be appointed to examine into such contracts, 
 &c. ; that the contracts certified to be free from fraud should be paid ; for the issue 
 of " assessment bonds " to raise money for purposes of such payment ; that no assess- 
 ment for improvement should be set aside for irregularity unless fraud was shown, 
 &c. This statute was held to be local, and to embrace but one subject, and to prop- 
 erly express that subject in the title. The court said : "A subject is that of which 
 anything may be affirmed or predicated, and if the various parts of this act have 
 respect to or relate to local improvements, the act is not obnoxious to the constitu- 
 tional objection interposed, and the degree of relationship, if it legitimately tends 
 to the accomplishment of the general purpose, is immaterial. The general subject 
 of local improvements includes their plan and construction not only, but the means 
 by which the work is accomplished, and the proceedings necessary to be adopted 
 for these purposes, for assessing and paying the expenses incurred, as well as the 
 remedies to parties for redress of grievances growing out of their construction. A 
 general title relating to local improvements would be understood to include, or at 
 least that it might include, these several details." Matter of Mayer, 50 N. Y. 504. 
 " An act in relation to the erection of public buildings for the use of the city of 
 Rochester " contained a provision that commissioners appointed therein to build a 
 city hall should select a site for the building, This clause was held to be valid, as 
 the selection of a site was an incident of the general subject of the statute. People 
 
TITLES OF LAWS. 525 
 
 enacted by the Legislature shall embrace but one subject, and 
 that shall be designated by the title," was to prevent grafting 
 
 ex rel. Hayden v. Rochester, 50 N. Y. 525. The whole scope of the constitutional 
 prohibition was carefully examined, and stated by the New York Court of Appeals, 
 in a very recent case. An act entitled "An act to amend the several acts in relation 
 to the city of Rochester," contained among others the following provisions: in rela- 
 tion to collection of taxes, &c. ; appointing a board of public works, defining their 
 duties, &c., and giving them power over streets, sewers, and all other public works 
 of the city with certain exceptions ; authorizing the tracks of a street railroad to be 
 relaid on each side of a certain avenue ; certain provisions relating to the water com- 
 missioners of the city and the water works, and among these one authorizing such 
 commissioners to lay the pipes through towns and villages on the route from the 
 water supply to the city, and to acquire a right of way therefor, and also to contract 
 with the trustees of any village through which the water mains passed for the supply 
 of such village with water, and in such case authorizing the village authorities to 
 levy and collect the annual expense of such supply by an annual tax of the village. 
 The court held that the title " expresses a subject comprehensive enough to embrace 
 all the details of a city charter," and distinguished it from the title in People v. Hills, 
 35 N. Y. 449 ; and that all the provisions of the statute were within the title, being 
 legitimate details and matters of the city government. Grover, Folger, and Peckham, 
 JJ., dissented. City of Rochester v. Briggs, 50 N. Y. 553. 
 
 ' Taxation. " An act to provide for the general valuation and assessment of prop- 
 erty in this State" covers a repealing clause of exemptions of specified corporations 
 from taxation. County Comm'rs v. Franklin R. R. 34 Md. 159, An act " providing 
 for the election or appointment of supervisors of highways, and prescribing certain 
 of their duties and those of county and township officers in relation thereto," relates 
 to the subject of highways the relation of specified officers thereto and a provision 
 for the levy of a road tax is germane. Bright v. McCullough, 27 Ind. 223. See also 
 cases under last preceding subdivision. 
 
 Administration of Justice. " An act providing for the election and qualification 
 of justices of the peace and defining their jurisdiction, powers, and duties in civil 
 actions," may properly include a provision regulating the manner in which appellate 
 courts shall render judgment for costs on appeal from justices of the peace. Robin- 
 son v. Skipworth, 23 Ind. 311, overruling Kuhns v. Krammis, 20 Ind. 490. "An act 
 to simplify and abridge the rules, practice, pleadings, and forms in civil cases in the 
 courts of this State, to abolish distinct forms of action at law, and to provide for the 
 administration of justice in a uniform mode of pleading and practice, without dis- 
 tinction between law and equity ; " held that a provision giving mechanics a lien is 
 germane to the 'subject expressed in this title. Hall v. Bunte, 20 Ind. 304. " An act 
 relative to slaves " was held to embrace but one subject, although it treated of crimes 
 by slaVes, their punishment, compensation to masters, duties of justices, attendance 
 of witnesses, &c., the general scope being one, and fairly irdicated by the title. State 
 v. Henry, 15 La. Ann. 297. ' An act for the suppression of intemperance " may in- 
 clude the methods of suppression, such as forfeiture, appointment of agents, &c. 
 Santo v. State, 2 Clarke (la.) 165 ; Parkinson v. State, 14 Md. 184. An act creating 
 an insurance department may contain sections for the punishing criminally a breach 
 of its provisions. State v. Mathews, 44 Mo. 523. In a " Code of Civil Practice," 
 under the head " Executions," were provisions stating the duty of officers of cor- 
 
526 TITLES OF LAWS. 
 
 upon subjects of great public benefit and importance foreign 
 and pecuniary matters for local and selfish purposes. * 
 
 * Davis v. The State. Court of Appeals, 7 which shall be expressed in the title, see Bat- 
 Maryland, 151. In Texas, as to the provision tie v. Howard, 13 Texas, 345. 
 tli at every law must embrace but one object, 
 
 porations as to the payment of executions against such corporations, and declaring 
 the consequences to such officers for a failure in this duty. These provisions were held 
 properly embraced under the title. Porter v. Thomson, 22 Iowa, 391. " An act for 
 the protection of Itona fide purchasers for a valuable consideration" may repeal as 
 many laws as are necessary to that end. Martin v. Hewett, 44 Ala. 418. An act 
 regulating the " revocation, admission to probate, and contest of wills," properly in- 
 cludes provisions as to appeal in such cases. Henry v. Henry, 13 Ind. 250. "An 
 act relative to the payment of expenses incident to the prosecution of criminals" 
 will not cover a provision for the payment of fines into the State treasury. Parish 
 of Bossier v. Steele, 13 La. Ann. 433. An act in its title related only to notes and 
 bills of exchange, a provision contained in it respecting other written instruments 
 was held void. Mewherter v. Price, 11 Ind. 199. An act does not embrace more 
 than one subject because it contains criminal as well as civil provisions ; and an act 
 for regulating the " sale " of liquors may prohibit the " giving " of liquors to minors. 
 Thomasson v. State, 15 Ind. 449; see, also, Reams v. State, 23 Ind. Ill ; Hingle v. 
 State, 24 Ind. 28, reaffirming Thomasson v. State, ubi supra, and overruling Laner v. 
 State, 22 Ind. 461. 
 
 Amendatory Statutes. If the amendment is not foreign to the title of the original 
 statute, it mates no difference whether it is cognate to the section amended. Under- 
 wood v. McDuffie, 15 Mich. 361. " An act amendatory to and explanatory of the 
 statute of limitations in this State, passed the 7th of Dec., 1805, so far as it regards 
 idiots, lunatics, and infants," contained a section relative to idiots, lunatics, and 
 infants, and one relative to non-residents, both were held valid as within the title. 
 Denham v. Holeman, 26 Geo. 182. "An act to amend 11 of an act to establish 
 courts of common pleas, so as to extend the jurisdiction of said courts in certain 
 cases," amended 11, which related solely to civil suits, and also added a section 
 giving jurisdiction in criminal cases; the whole was held valid, the original act 
 relating in other sections to criminal matters. Reed v. State, 12 Ind. 641. But 
 where the second section of a statute of limitations related solely to limitations of 
 actions respecting real estate, a statute purporting by its title to be amendatory 
 merely of that section, but which in fact made all the provisions of the original act 
 retrospective, was held invalid. Chiles v. Munroe, 4 Mete. (Ky.) 72. " An act con- 
 cerning licenses to vend foreign merchandise, to exhibit any caravan, menagerie, 
 circus, rooe and wire dancing, puppet show, and legerdemain," embraces only one 
 subject, namely licenses, but as it specifies what licenses, an act by its title merely 
 amendatory thereof cannot introduce a license on concerts, since that would not be 
 germane to the subject as limited in the title of the original act. State v. Bovvers, 
 14 Ind. 195. An act of 1841 authorized a city to raise money by a tax of residents, 
 and by its title was limited to residents ; in 1847, an act was passed " to amend the 
 act of 1841," and recited its title; a provision of it imposing a tax on the property 
 of non-residents was held valid. Jones v. Columbus, 25 Geo. 610. It seems " an 
 act te amend " a certain other act is a sufficient title to cover anything germane to 
 the original statute. Swartwout v. Mich. Air Line R. R. 24 Mich. 389. And if the 
 
TITLES OF LAWS. 527 
 
 In California, much less importance has been attached to 
 the provision, the court saying, " We regard this section of the 
 
 title of the original act be sufficient, it is unnecessary to inquire whether the title of 
 the amendatory act would itself be sufficient. Brandon v. State, 16 Ind. 197. But 
 it was held in New York, that ''An act to amenl chap. 389 of the laws of 1851," 
 did not cover an amendment of a particular section of the original act which was a 
 city charter. People v. Hills, 35 N. Y. 449. But see this case explained in Rochester 
 v. Briggs, 50 N. Y. 553, where the court say that the title in People v. Hills did not 
 express any subject, and that a title " An act to amend the several acts in relation to 
 the city of Rochester," means in relation to the charter of the city of Rochester, and 
 is broad enough and accurate enough to embrace all the details of a city government, 
 three judges however dissenting. 
 
 Miscellaneous. " An act fixing the time and mode of electing a State printer, 
 denning his duties, fixing compensation, and repealing all laws in conflict with this 
 act," provisions applicable to the existing incumbent of the office were held germane 
 to the title and incident to the one subject. Walker v. Dunham, 17 Ind. 483. An 
 act for the separation of two offices, giving power of removal, and repealing incon- 
 sistent acts, embraces but one subject. State v. Commonwealth, 8 Bush (Ky.) 108. 
 An " act to prevent domestic animals running at large in the counties of Munroe, 
 St. Clair, and other counties," contained a provision by which its terms might be 
 accepted by a subdivision of a county, while they were rejected by the county at 
 large, and also aprovision adopting the mode of proceeding established in the estray 
 laws ; the statute was held to embrace a single subject, and to properly express it in 
 the title. Erlinger v. Boneau, 51 HI. 94. An act entitled " AD act to release the 
 Fishkill, &c. Plank-road Co. from the construction of a part of their road, and for 
 other purposes," contained clauses respecting the abandonment of a part of the road 
 already constructed, the relaying the road with gravel, the infliction of penalties for 
 running the toll gates, and legalizing certain previous acts of the corporation. The stat- 
 ute being local, these provisions were held not to be germane to the subject expressed 
 in the title. Fishkill v. Fishkill &c. P. R. Co. 22 Barb 634. An act for the com- 
 pensation of injuries from the negligence of " railroad companies or others," and in its 
 provisions applying both to individuals and to corporations, was held valid, in Chiles 
 v. Drake, 2 Mete. (Ky.) 146. When a statute repeals former laws on the same subject, 
 there need be no reference to such repealing clause in the title. Gabbert v. Jefferson- 
 villeR. R. 11 Ind. 365; Branham v. Lange, 16 Ind. 497; Guilford v. Cornell, 18 
 Barb. 640. The divisions and classifications of a statute are not parts of the title, 
 and the placing a provision under a wrong head does not invalidate the statute 
 nor the provision, if the latter is germane to the subject expressed in the title. Rob- 
 inson v. State, 15 Tex. 311 ; per contra, see Gillespie v. State, 9 Ind. 380. An act 
 entitled "An act to repeal certain acts therein named " is void. People v. Mellen, 32 
 111. 181. "An act for the preservation of Muskegon river improvement" it was held 
 could not provide for the collection of tolls to pay for the construction of the im- 
 provement. Ryerson v. Utley, 16 Mich. 269. "An act to regulate proceedings in 
 county courts," may contain clauses relating to appeals to the district court and 
 regulating proceedings on such appeals. Murphy v. Menard, 11 Tex. 673. " An act 
 to limit the number of grand jurors, and to point out the mode of their selection, 
 defining their jurisdiction, and repealing all laws, &c.," cannot properly contain a 
 
528 TITLES OF LAWS. 
 
 Constitution as merely directory ; and if we were inclined to a 
 different opinion, would be careful how we lent ourselves to a 
 
 provision that a criminal on trial for any offence may be found guilty of a lesser 
 offence of the same nature. Foley v. State, 9 Ind. 863. 
 
 The phrase " and for other purposes," often placed at the close of titles, has no 
 legal significance, and does not warrant any provisions in the statute. Fishkill v. 
 Fishkill &c. PI. R. Co. 22 Barb. 642 ; Ryerson v. Utley, 16 Mich. 269 ; St. Louis v. 
 Teifel, 42 Mo. 578. 
 
 Effect of Nonconformity with the Constitutional Requirement. If a statute should 
 actually embrace two different subjects, and both subjects were expressed in the 
 title, the whole would clearly be void, for the court could not distinguish between 
 the two subjects, and say that one should stand and the other be disregarded. In 
 Cutlip v. Sheriff &c. 3 W. Va. 588, the court held that if an act contains two 
 subjects, and only one of them is properly expressed in the title, the whole is void. 
 This decision, however, is contrary to the weight of authority, and is clearly wrong. 
 
 Where the statute is broader than the title, that is, where it contains matter which 
 is not within the subject expressed in the title, several of the State Constitutions 
 expressly declare that it is void only as to such excess. Such, also, is the settled 
 interpretation of the clause without this provision. If the clauses which do not 
 belong to the subject of the statute as stated in the title, are separable from the rest 
 of the act, they alone are invalid, and the remaining portion stands. The cases 
 cited above illustrate this rule, and, upon examination, it will be found that in very 
 many of them parts of the statute only were rejected, and parts were sustained. 
 Fishkill v. Plank-road Co. 22 Barb. 642 ; People v. O'Brien, 38 N. T. 193; Davis v. 
 State, 7 Md. 151. This doctrine was asserted by the Court of Appeals of New York, 
 in the recent case of City of Rochester v. Briggs, already cited. In speaking of the 
 sections of the act under consideration, which related to a water supply for villages, 
 and a village tax to defray the expense thereof, uli supra, the court said : " But 
 there is another answer to this objection as affecting this case. If the village clause 
 should be construed as another subject, it would be invalid, but would not affect 
 other parts of the law in no way connected with it, the subject of which is prop- 
 erly expressed in the title. The Constitution declares that every local or private 
 bill shall contain but one subject to be expressed in the title, but does not expressly, 
 nor by fair intendment, declare that provisions the subject of which is expressed 
 shall be void. That the valid part should be upheld is not only in accordance with 
 elementary principles, but is sustained by authority. It is a universal rule that 
 where a part of a statute is unconstitutional, that fact does not authorize the courts 
 to declare the remainder void, unless the provisions are so connected together in 
 subject-matter, meaning, or purpose, that it cannot be presumed the Legislature 
 would have passed the one without the other. And this rule applies as well where 
 the forms observed are sufficient for some parts of the act, but not for others, as where 
 a part of the act is constitutionally invalid for any other reason." City of Rochester 
 v. Briggs, 50 N. Y. 565; and see also Williams v. Payson, 14 La. Ann. 7. 
 
 Local or Private Statutes. In New York and Wisconsin the constitutional pro- 
 vision is confined to local or private statutes ; and in those States the preliminary 
 question arises whether the particular statute under consideration is either local or 
 private. We add the most recent cases which discuss this question, and determine 
 the principles by which it may be answered in each case. 
 
TITLES OF LAWS. 529 
 
 construction which must in effect obliterate almost every law 
 from the statute book, unhinge the business and destroy the 
 
 It is settled that if the statute be either local or private, the requirement as to 
 title applies ; that is, if the act be local as to territory, no matter how public it may 
 be in its character, it can contain but one subject, and that must be expressed in the 
 title. 
 
 An act relating to the compensation, &c. of the officers of a certain county for 
 their official services, when such services are rendered in the course of the adminis- 
 tration of the laws, and may interest all citizens of the State, and do equally affect 
 all who come within their range, is neither local nor private. Conner v. Mayor &c. 
 5 N. Y. 285; s. c. 2 Sandf. 355; Phillips v. Mayor, 1 Hilt. 483; People v. Stephens, 
 2 Abb. Pr. N. S. 348; Williams v. People, 24 N. Y. 405. A statute relating to a 
 single county or city, such as a charter, or act amending a charter, or organizing the 
 city government, or authorizing improvements, is 'local, although it may not be 
 private. People v. Hills, 35 N. Y. 449, reversing 46 Barb. 340 (amending a city 
 charter) ; Rochester v. Briggs, 50 N. Y. 553 (amending a city charter) ; Matter of 
 Mayer, 50 N. Y. 504 (local improvements in N. Y. city) ; Brewster v. Syracuse, 19 N. 
 Y. 116 (assessments in a city to pay a contractor). But the contrary rule prevails in 
 Wisconsin. A statute for the removal of a county seat, though it refers the decision 
 to a vote of the county, is general. State v. Lean, 9 Wise. 279. And so is a city 
 charter. Clark v. Janesville, 10 Wise. 136. Also a statute laying a tax on a par- 
 ticular city or county is local, e. g., the tax levy of the city of New York. People 
 v. O'Brien, 38 N. Y. 193; Huber v. People, 49 N. Y. 132; Sun Mut. Ins. Co. v. 
 Mayor &c. 8 N. Y. 241 ; Pullman v. Mayor &c. 54 Barb. 169 : and see also many 
 New York cases cited above in this note. " An act in relation to the fees of the 
 sheriff of the city and county of New York, and to the fees of referees in certain 
 cases in said city," is local; and a provision directing all judicial sales of real estate 
 in said city, except in actions for partition, is void, not being expressed in the title. 
 Gaskin v. Meek, 42 N. Y. 186. A clause in a tax levy for the city of New York 
 restricting the city in respect to making contracts for gas, was held void, in Pullman 
 v. Mayor, &c. 54 Barb. 169. But a statute establishing a metropolitan police district 
 extending over more than one county, and containing penal provisions applicuHle to 
 all persons who might come within the jurisdiction, was held to be neither local nor 
 private. Burnham v. Acton, 7 Robt. 395. An act is local when the subject relates 
 to a portion only of the people or their property, and may not, either in its subject, 
 operation, or immediate necessary results, affect the people of the State or their prop- 
 erty in general. Thus, in a general appropriation bill, a provision appropriating 
 money towards the building of a certain bridge, directed the supervisors of the two 
 counties benefited by the bridge to assess upon their respective counties the one-halt' 
 of the rest of the cost of the bridge; this clause directing such assessment was held 
 to be local and void, not being expressed in the title. People v. Supervisors of 
 Chatauqua Co. 43 N. Y. 10. But a general and public provision occurring in a 
 statute, which in its main scope is local or private, is not void, although not expressed 
 or referred to in the title. Thus, "An act to enlarge the jurisdiction of the courts of 
 general and special sessions of the peace in and for the county of New York," was 
 all local except 3, which related to convictions in courts of oyer and terminer 
 throughout the State. This section was held to be valid, although not referred to in 
 the title, as it was a public and general provision. People v. McCann, 16 N. Y. 58. 
 34 
 
530 AMENDMENT OF LAWS. 
 
 labor of the last three years. The first Legislature that met 
 tinder the Constitution seems to have considered this section as 
 directory; and almost every act of that and the subsequent 
 sessions would be obnoxious to this objection. The contem- 
 poraneous exposition of the first Legislature, adopted or ac- 
 quiesced 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." * 
 
 Amendment of Laws. Serious confusion is constantly 
 caused by the great looseness which prevails in our legislative 
 bodies in regard to the practice pursued by them on the subject 
 of repealing or amending laws.f The former branch of the 
 
 * "Washington v. Murray, 4 California, shall be, and is thereby, repealed ;' or, as con- 
 
 388. tinually occurs, by clauses upon the same 
 
 f " Perhaps the greatest evil of all, as it subject, and for the most part to the same 
 
 affects the interests of the community at large, effect, as other clauses in former acts (but 
 
 is the utter uncertainty that prevails as to without any express reference to former acts), 
 
 what is, and what _ is not, repealed. This leaving it doubtful whether the later enact- 
 
 arises from the vicious practice already no- ments supersede and repeal the earlier, or 
 
 ticed, and which pervades the whole body of whether both are still to remain in force and 
 
 the statute law, of repealing some former acts constitute distinct provisions in the statute 
 
 or enactments, not by express reference, but law. The doubts and difficulties, and, conse- 
 
 by provisions that ' so much of any former act quently, the vast amount of litigation, of 
 
 of Parliament, heretofore made, as is inconsixt- which this uncertainty is the cause, are quite 
 
 tnt with or repugnant to the act in question, beyond calculation. It has been thought that 
 
 For further illustrations of local or private statutes, see all the New York cases 
 already cited. 
 
 In addition to the cases already referred to, see the following : Wilkins y. Miller, 
 9 Ind. 100; Madison &c. R. R. v. Whiteneck, 8 Ind. 217; Central Plank-road v. 
 Hannaman, 22 Ind. 484; Hines v. Aydelotte, 29 Ind. 518 ; Sturgeon v. Kitchens, 22 
 Ind. 107; Baldwin v. New York, 42 Barb. 549; Phillips v. New York, 1 Jlilt. 483; 
 State v. Schofield, 41 Mo. 38; State v. Lafayette Co. Ct. 41 Mo. 39 ; State v. Wardens 
 &c. 23 La. Ann. 720; Police Jury v. Coloinb, 20 La. Ann. 196 ; Laefon v. Dufrocq, 9 
 La. Ann, 350; State v. Harrison, 11 La. Ann. 722; Keller v. State, 11 Md. 525; 
 Davis v. State, 7 Md. 151; Gifford v. New Jersey R. R. 2 Stockt. 171; Deegan v. 
 Morrow, 2 Vroom, 136 ; Robinson v. Lane, 19 Geo. 337 ; Hill v. Comm'rs, 22 G eo 
 203; Wheeler v. State, 23 Geo. 9; Protho v. Orr, 12 Geo. 36; Martin v. Broach, 6 
 Geo. 21 ; Weaver v. Lapsley, 43 Ala. 224 ; Tuscaloosa Bdg. Co. v. Olmstead, 41 Ala. 
 9; Tadlock v. Eccles, 20 Tex. 782; Cannon v. Hemphill, 7 Tex. 184; Battle v. 
 Howard, 13 Tex. 345; Commonwealth v. Drewry, 15 Gratt. 1; Johnson v. Higgins, 
 3 Mete. (Ky.) 566 ; Fletcher v. Oliver, 25 Ark. 289; Inkster v. Carver, 16 Mich. 484; 
 Beam v. Siskiyou County, 36 Cal. 620; Bowman v. Cockrill, 6 Kans. 311 ; R. R. Co. 
 v. Gregory, 15 HI. 20 ; State v. Squires, 26 Iowa, 340 ; McAunich v. Miss. R. R. 20 
 Iowa, 338 ; State v. Gut, 13 Minn. 341 ; Stuart v. Kinsella, 14 Minn. 524 ; Atkinson 
 v. Duffy, 16 Minn. 45 ; Phillips v. Albany, 28 Wise. 340 ; Mills v. Charleton, 29 Wise. 
 400 ; Evans v. Sharp, 29 Wise. 564. 
 
AMENDMENT OF LAWS. 531 
 
 subject lias not yet received with us the general attention which 
 it merits; but at leasf one State (Maryland) has acted on it, 
 and many of our recent State Constitutions contain provisions 
 on the subject of amending legislative enactments which are 
 well worthy of careful attention and of general adoption. I 
 give some of them : (a) 
 
 more than half of the business of all the courts discussions, and, at length, difference among 
 of law and equity iri the kingdom consists of the judges themselves, and, ultimately, appeals 
 disputed questions upon the construction of to tribunals of the last resort." 
 acts of Parliament; and, if that be so, it is I take the above extract from a very in- 
 certain that more than a fourth of the whole teresting letter by Sir Fitzroy Kelly, recently 
 is caused entirely by this mischievous course placed at the head of the new commission 
 of legislation. It is often found impossible to upon the consolidation of the statute law of 
 reconcile these accumulations of enactments ; England, as I find it extracted in the Boston 
 hence the multiplicity of suits, arguments, and Law Reporter for January, 185*7. 
 
 (a) Constitutional Provisions. The following are the provisions in the existing 
 State Constitutions relating to the amendment or revival of laws : 
 
 No law shall be revived [revised, Ala.] or amended unless the new act contain 
 the entire act revived [revised] or the section or sections amended ; and the section 
 or sections so amended shall be repealed. Alabama, IV, 2 ; Kansas, II, 16 ; Nebraska, 
 II, 19 ; Ohio, II, 16. No law shall be revised, altered, or amended, by reference to 
 its title only, but the act revised, and the section or sections of the act, as altered or 
 amended, shall be enacted and published at length. Arkansas, V, 23 ; Michigan, IV, 
 25. No law shall be amended or revised [revived, Gal. and Va.] by reference to its 
 title only, but in- such case the act as revised [revived] or section as amended shall 
 be re-enacted and published at length. Florida, IV, 14 ; California, IV, 25 ; Loui- 
 siana, 115; Nevada, IV, 17; Texas, XII, 18; Virginia, V, 15. No law shall be 
 revived or amended by reference to its title only, but the law revived or the section 
 amended shall be inserted at length [large, W. Va.] in the new act. Illinois, IV, 13 ; 
 West Virginia, VI, 30. No law or section of the Code shall be amended or repealed 
 by mere reference to its title, or to the number of the section in the Code, but the 
 amending or repealing act shall distinctly and fully describe the law to be amended 
 or repealed, as well as the alteration to be made; but this clause shall be construed 
 as directory only to the General Assembly. Georgia, III, 6, 111. 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. Indiana, IV, 21 ; Oregon, 
 IV, 22. And no law or section of a law shall be revived or amended by reference 
 to its title or section only ; and it shall be the duty of the General Assembly, in 
 amending any article or section of the code of laws of this State, to enact the same 
 as the said article or section would read when amended. Maryland, III, 29. No act 
 shall be revived or re-enacted by mere reference to the title thereof; nor shall any 
 act be amended by providing that designated words thereoi shall be struck out, or 
 that designated words shall be struck out and others inserted in lieu thereof; but in 
 every such case the act revived or re-enacted, or the act or part of act amended, 
 shall be set forth and published at length, as if it were an original act or provision. 
 Missouri, IV, 25. All acts which repeal, revive, or amend former laws, shall recite 
 in their caption or otherwise the title or substance of the law repealed, revived, or 
 amended. Tennessee, II, 17. 
 
532 AMENDMENT OF LAWS. 
 
 In regard to the subject of repeal, it lias 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 section 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, (a) And, in 
 
 (a) Amendment of Statutes. The provision is mandatory and not directory. 
 Armstrong v. Berreman, 13 Ind. 422. 
 
 The requirement does not mean that the old section shall be set out at length, 
 but the section as amended. Greencastle &c. Co. v. State, 28 Ind. 882; overruling 
 Langdon v. Applegate, 5 Ind. 327 ; Jones v. Commissioner, &c. 21 Mich. 236 ; 
 Noland v. Costello, 2 Oregon, 57; Portland v. Stock, II. 69; Tuscaloosa Bdg. Co. 
 v. Olmstead, 41 Ala. 9. If the old act is recited, it is merely surplusage, and a 
 clerical error in such recital does not affect the validity of the amending statute. 
 Draper v. Fally, 33 Ind. 465; People v. McCallum, 1 Neb. 182. But the \vhole 
 section as amended, however long, and of however many clauses, it may consist, 
 must be set forth. Martinsville v. Frieze, 33 Ind. 507. 
 
 Under the constitutional provision in Missouri given above, a statute amending 
 a section of a city charter in the matter of boundaries, and embracing in the new 
 act everything relating to boundaries, was held constitutional, although the amended 
 section embraced other matter than boundaries, and was not as a whole embodied 
 and inserted in the amending statute. Boonville v. Trigg, 46 Mo. 288. 
 
 Where the amendment recites the sections as amended at length, and refers 
 properly to the act by its title, it is no objection to the. validity of the amendment 
 that it affects other provisions of the act. Harrington v. Wands, 23 Mich. 885. 
 
 For cases where statutes where held invalid, because they did not set out the 
 sections or act amended at full length, see Rogers v. State, 6 Ind. 31 ; Tuscaloosa 
 Bridge Co. v. Olmstead, 41 Ala. 9. 
 
 The repeal of a definite portion of a section or act without setting forth at 
 length the part not repealed, is valid. Chambers v. State, 35 Tex. 307. 
 
 The constitutional provision in question has no application to repeals by implica- 
 tion. People v. Mahoney, 13 Mich. 481 ; Anderson v. Commonwealth, 18 Gratt. 295; 
 Swartwout v. Mich. Air Line Co. 24 Mich. 389 ; Branham v. Lange, 16 Ind. 497 ; 
 Lehman v. McBride, 15 Ohio, N. S. 573. In Alabama, where the constitutional 
 provision is, " And 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," it was held that a statute which repeals in general 
 terms, all acts and parts of acts inconsistent therewith, is not amendatory and need 
 not set out the sections parts of which are thereby repealed. Falconer v. Robinson, 
 46 Ala. 340; and where the Legislature fails to repeal the amended sections, the 
 Constitution itself effects the repeal and the statute is valid. Medical College v. 
 Muldon, 46 Ala. 603 ; and in Ohio, the provision as to repealing the section or act 
 amended, was held to be directory merely. Lehman v. McBride, 15 Ohio, N. S. 
 573. That no Legislature can lay down for a subsequent one, a binding rule as to 
 how statutes shall be amended, see Morgan v. Smith, 4 Minn. 104, 107. 
 
CONSTITUTIONAL MAJORITIES. 533 
 
 regard to the general policy of the restriction, it has been said, 
 in the same State, that " this clause was inserted in the Con- 
 stitution for the purpose of preventing incautious and fraudu- 
 lent 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 accident, 
 under the deceptive language often employed in the titles 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 ob- 
 taiued.f (a) Some of the most prominent are as follows : 
 
 Texas. " No private corporation shall be created unless the bill creating 
 it shall be passed by two-thirds of both houses of the Legislature ; and two- 
 
 * Davis v. The State, 7 Maryland, 151. 25 Wend. 605 ; Purdy v. The People, 4 Hill, 
 
 la Indiana, as to the construction of the 884 ; Buffalo and N. Falls R. R. v. Buffalo, 5 
 
 clause, see Rogers' Admrs. v. The State, 6 Hill, 209 ; People ex rel. Lynch v. Mayor, 25 
 
 Indiana, 31. The Constitution of Tennessee Wend. 680; People v. Morris, 13 Wend. 325; 
 
 contains a provision to the effect, that after a Lansing v. Smith, 8 Cowen, 146; Coml. Bk. 
 
 bill has been rejected, no bill containing the of Buffalo v. Sparrow, 2 Denio, 97 ; De Bow 
 
 same substance shall be passed into a laNv v. The People, 1 Denio, 9 ; GifFord v. Living- 
 
 during the same session. Cons. art. ii, 19. ston, 2 Denio, 380 ; Russell v. The Mayor, 2 
 
 \ For cases decided on these provisions, Denio, 461 ; Warner v. The People, 2 Denio, 
 
 as to the requisition of a certain number of 272 ; Supervisors of Niagara v. People, 4 
 
 votes, and how the fact is to appear, see Hill, 20 ; Supervisors of Niagara v. People, 7 
 
 Thomas v. Daken, 22 Wend. 112; Warner v. Hill, 504; see, also, ante, ch. iv, p. 54. 
 Beers, 23 Wend. 103 ; Hunt v. Vanbelstyer, 
 
 (a) Majority of Two-thirds. " Two-thirds" of a " house" or " branch" means 
 two-thirds of a duly constituted quorum, it seems. Green v. Weller, 32 Miss. 650. 
 But where the provision is as to what proportion of the House shall make a quorum, 
 " House" means the entire number possible, without deducting for vacancies by 
 death, resignation, or failure to elect. In Matter of Executive Communication, 12 
 Flor. 653. 
 
 For a case in which a statute was held void, because not passed by the requisite 
 two-thirds, see Corning v. Greene, 23 Barb. 33. Where a statute requires a two- 
 thirds vote for its passage, it is not to be presumed that an amendment constitutes 
 a bill a new law, so that the bill as amended must also receive a two-thirds vote; 
 that the amendments are concurred in is prima facie enough. State v. McCulloch, 
 11 Ind. 424. The proceedings are to be presumed constitutional, unless the journals 
 show affirmatively the contrary. State v. McCulloch, 11 Ind. 424 ; Northern Ind. R. 
 R. v. Milliken, 7 Ohio, K S. 383; Matter of Taxpayers of Kingston, 40 How. Pr. 444. 
 
 Where the Constitution requires the submission of a question to " the electors of 
 a county" at a general election, and the assent of " a majority of such electors 
 voting thereon," it means a majority of the electors who vote at such election, and 
 not merely of those voting on the particular question. Bayard v. Klinge, 16 Minn. 
 249; but, per contra, " a majority of all the votes cast at such election" means of 
 those cast upon the particular question. Gillespie v. Palmer, 20 Wise. 544. 
 
534 CONSTITUTIONAL MAJORITIES. 
 
 thirds of the Legislature shall have power to revoke and repeal all private cor- 
 porations, by making compensation for the franchise." * 
 
 Michigan, " The Legislature shall pass no law altering or amending any 
 act of incorporation heretofore granted, without the assent of two-thirds of the 
 members elected to each house ; nor shall any such act be renewed or ex- 
 tended. This restriction shall not apply to municipal corporations." f 
 
 " 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." J 
 
 Indiana. " A majority of all the members elected to each house shall be 
 necessary to pass every bill or joint resolution." | 
 
 In Michigan, under the clause above cited, that the Legis- 
 lature 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, comprising a majority of the members elected, to and 
 qualified to act as members of the body.^f (a) 
 
 * Constitution of Texas, art. vii, 31. | Constitution of Indiana, art. iv, 25. 
 
 f Constitution of Michigan, art. xv, 8. ^f Southworth v. Palmyra and Jackson R. 
 
 j Constitution of Michigan, art. iv, 45. R. Co. 2 Michigan, 287. 
 
 (a) Uniform Operation of General Laws. Constitutional Provisions. The follow- 
 ing State Constitutions expressly require that all general laws shall have a uniform 
 operation. California, i, 11 ; Florida, Dec, of E. 12; iv, 18; Georgia, i, 26; Indiana, 
 iv, 23; Iowa, i, 6; iii, 30; Kansas, ii, 17; Nevada, iv, 21; Ohio, ii, 26. 
 
 The following State Constitutions require general laws in all cases where a gen- 
 eral law can be made applicable. Florida, iv, 18 ; Illinois, iv, 22 ; Indiana, iv, 23 ; 
 Iowa, iii, 30; Kansas, ii, 17; Maryland, iii, 33; Missouri, iv, 27; Nevada, iv, 21; 
 West Virginia, vi, 39. 
 
 Provisions in Regard to General Laws. What are General Laws. See cases as to 
 general and local laws cited in note upon the Constitutional provision' as to the title 
 and subject of statutes, p. 529. In addition to the cases referred to, the following are 
 illustrations. A statute providing for the compensation of county officers has been 
 held local. State v. The Judges, 21 Ohio, N. S. 1. A declaration in the statute itself 
 that it is a " public " law is not sufficient to make it "general " in the sense of the 
 Constitution. Burhop v. Milwaukee, 21 Wise. 257. An act regulating the fees of 
 an office was held not to be general. Ryan v. Johnson, 5 Cal. 86 ; and see llenry v. 
 Henry, 13 Ind. 250. 
 
 General Laws to have a Uniform Operation. The Constitution is complied with 
 in this respect when the law operates uniformly upon all persons who are brought 
 within the relations and circumstances provided for by it. McAunich v. Miss. &c. 
 R. R. 20 Iowa, 338. The statute in this case related to the duties of railroads. An 
 act giving the Court of Common Pleas jurisdiction over certain offences in particu- 
 lar counties failed to comply with this requirement as to uniformity, and was de- 
 clared invalid. Kelly v. State, 6 Ohio, N. S. 269. " Uniform" does not mean '< uni- 
 versal," and a special statute may allow a change of venue in a particular case for 
 
THE JUDICIARY. 535 
 
 The Judiciary. Most of the State Constitutions, as has 
 "been elsewhere said, seek to draw a clear line between the 
 
 causes not specified in the Practice Act. Smith v. Judge, 17 Cal. 547; see also Ex 
 parte Andrews, 18 Cal. 678 ; French v. Teschenacker, 24 Cal. 518. Acts relating to 
 particular classes of persons are valid, e. g., one regulating interest to be charged by 
 pawnbrokers. Jackson v. Shawl, 29 Cal. 267. That " operation" refers to the prac- 
 tical working and effect, and that a statute to be submitted to the votes of each 
 county, and to be in force or not in the particular county according to its vote, is. 
 not uniform in its operation, see Geebrick v. State, 5 Clarke (Iowa) 491. 
 
 An act authorizing judgment and execution without benefit of appraisement on 
 notes, where such benefit is waived, is uniform in its operation and is a general law. 
 Smith v. Doggett, 14 Ind. 442. A State Constitution provided that " the Legisla- 
 ture shall fix the rate of interest, and the rate so established shall be equal and uni- 
 form throughout the State ;" held that an act fixing the rate at six per cent , but in 
 case of a loan giving parties the right to stipulate in the instrument for any rate up 
 to ten per cent., does not conflict with this provision. Caruthers v. Andrews, 2 
 Cold. 378. A law authorizing the addition and taxation of five per cent, upon the 
 recovery as costs in favor of the prevailing party in cases litigated in San Francisco, 
 is not unequal in its operation. Corwin v. Ward, 35 Cal. 195 ; see also Brooks v, 
 Hyde, 37 Cal. 366. If a statute is enacted for the whole State, and is in force over 
 the whole State, it makes no difference that the condition of certain parts of the 
 State may be such that the law has no practical operation therein. Leavenwortli v. 
 Miller, 7 Kans. 479. An act excepting certain counties from the general statute as 
 to fences, was held invalid, in Darling v. Rodgers, 7 Kans. 592. 
 
 The clause in the Constitution of Ohio, requiring that all general laws should 
 have a uniform operation, was Held to be prospective, and not to repeal existing 
 special statutes. Allbyer v. State, 10 Ohio, N. S. 588. But a similar clause in Iowa 
 was held to prohibit the amendment of existing municipal charters by special act.. 
 Ex parte Pritz, 9 Iowa, 30; Davis v. Woolnough, Ib. 104 ; and see Brown v. State, 
 23 Md. 503 ; Atchison v. Bartholomew, 4 Kans. 124. 
 
 Special Legislation Prohibited when General Laws can be made Applicable. The 
 question whether a general law can be made applicable is one for the discretion of 
 the Legislature and not for the courts. State v. County Ct. of Boone Co. 50 Mo. 
 317; People v. Bowen, 30 Barb. 24; State v. Hitchcock, 1 Kans. 178. In Indiana, 
 the Constitution says : " In all the cases enumerated in the preceding section, and 
 in all other cases where a general law can be made applicable, all laws shall be gen- 
 eral and of uniform operation throughout the State." Under this provision, it has 
 been held that where a general law is not required by express terms, it is for the 
 Legislature and not for the courts to say whether a general law can be made ap- 
 plicable. Longworth's Ex'ors v. Common Council of Evansville, 32 Ind. 322 ; and 
 see State v. Hackett, 29 Ind. 302 ; Gentile v. State, Ib. 409. Among the subjects on 
 which special legislation is prohibited by the Constitution of Indiana is the punish- 
 ment of crimes; but a prohibitory liquor law was held not to be a special law. 
 Hingle v. .State, 24 Ind. 28. Also a law applicable generally to a particular class of 
 cases is not special. Madison &c. R. R. v. Whiteneck, 8 Ind. 217 (railroads) ; Henry 
 v. Henry, 13 Ind. 250 (appeals in certain classes of cases); Hymes v. Aydelotte, 26 
 Ind. 431; Brown v. State, 23 Md. 503 (negro apprentices) ; State v. County Commrs. 
 29 Md. 516 (roads in a particular county). A statute applying generally throughout 
 
536 THE JUDICIARY. 
 
 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 irreconcilably variant and discrepant. In New Hampshire, 
 the Constitution in noble language declares it to be " essential 
 to the preservation of the rights of every individual, his life, 
 liberty, property, and character, that there be an impartial in- 
 terpretation of the laws and administration 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, however, to such limita- 
 tions, on account of age, as may be provided by the Constitu- 
 tion of the State ; and that they should have honorable salaries, 
 ascertained and established by standing laws." ' 
 
 On the other hand, the Constitution of Mississippi holds 
 this language : " No person shall ever be appointed 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."t 
 
 The practice of the States has been equally discrepant. In 
 some, the judges have been appointed for a term of years; in 
 
 * Constitution of New Hampshire, part i, \ Constitution of Mississippi, art. i, 30. 
 art. 35. 
 
 the State to elections required by the existing law to be held on a certain day, and 
 fixing another day therefor, is not a " special " law in the sense of the Constitution. 
 State v. Fiala, 47 Mo. 310. An act auditing a pre-existing claim against a county 
 is special and invalid. Williams v. Bidleman, 7 Nev. 68. A statute curing defects 
 in the organization of a particular school district which had been defectively organ- 
 ized under the general law, is not in violation of the provision forbidding any 
 special law where a general law might be made applicable. State v. Squires, 26 
 Iowa, 340. Where the United States authorized the grant of certain privileges to a 
 railroad over a particular route, a law chartering a railroad for that route was held 
 valid, as a general law could not be made applicable. Clinton v. Cedar Rapids &c. 
 R. R. 24 Iowa, 455. 
 
 A 'special statute in the meaning of the Constitutional prohibition, is one re- 
 quiring plea and proof at common law. Toledo &c. R. R. v. Nordyke, 27 Ind. 95. 
 
SUITS AGAINST THE STATE. 537 
 
 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 varying from six to fifteen years. 
 
 I have intended to avoid, in this volume, the discussion 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 complete test 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 j udiciary. 
 
 In Louisiana, the provisions of the State Constitution creat- 
 ing the judiciary, and prescribing the mode of their appoint- 
 ment 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 him- 
 self, to appoint 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 amono; the most fertile sources of that 
 
 O 
 
 corruption which is one of the great evils of our age. I annex 
 the provisions as /they stand in 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 against the State." J 
 
 * The State of Louisiana v. Judge of Sixth f Constitution of California, art. xi, 11. 
 District, 9 La. Ann. R. 62. \ Constitution of Wisconsin, art. iv, 27. 
 
538 SUITS AGAINST THE STATE. 
 
 Arkansas. " The General Assembly shall 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." f 
 
 Illinois. " The General Assembly shall direct, by law, in what manner 
 suits may be brought against the State. "J 
 
 Indiana. "Provision may be made, by general law, for bringing suit 
 against the State as to all liabilities originating after the adoption of this Con- 
 stitution ; 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 action. In con- 
 formity with this 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 proceeding under the authority of 
 law ; and that the fact of the statute in question being uncon- 
 stitutional forms no ground for granting the injunction.^]" The 
 courts of the Federal Government, however, are the legal supe- 
 riors of the 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** 
 
 A few interesting miscellaneous provisions of our State Con- 
 stitutions may be noticed. (V) By art. iv, 11, of the Consti- 
 
 * Constitution of Arkansas, art. iv, 22. trust. Milhau v. Sharp,'15 Barb. 193. So, 
 
 iConstitxition of Missouri, art. iii, 25. again, the same principle has been decided 
 Constitution of Illinois, art. iii* 34. where the act of the corporation was in viola- 
 Constitution of Indiana, art. iv, 24. tion of an express law, and tended to increase 
 ^1" Thompson v. The Commissioner of the the taxes. De Baun v. The Mayor, 16 Barb. 
 Canal Fund, 2 Abbott's Pr. Rep. 248. 392. In this case Edmonds, J., and Morris, 
 
 In regard to municipal corporations, the J., dissented. 
 
 contrary doctrine is held ; and where an act Under the former judicial system of the 
 
 of such a corporation is clearly illegal, and State, the Court of Chancery had no power to 
 
 the necessary effect of the act will be to injure enjoin proceedings for the collection of an ille- 
 
 or impose a burden on the property of a cor- gal assessment. Meserole v. Mayor of Brook- 
 
 porator, it will warrant the interference of the lyn, 8 Paige, 198 ; reversed on appeal, by the 
 
 court by injunction. Christopher v. The Court of Errors, 26 Wend. 132. 
 
 Mayor, <fcc. of N. Y. 13 Barb. 567. So, if the ** Osborn v. The IT. S. Bank, 9 Wheat, 
 
 municipal corporation is guilty of a breach of 738. 
 
 (a) Various Particular Constitutional Provisions. But One Corporation to le Cre- 
 ated at a Time. Where a Constitution provided that " No law shall create, renew, 
 or extend the charter of more than one corporation," a statute giving privileges to 
 
MISCELLANEOUS PROVISIONS. 539 
 
 tution of Alabama, the power to remit fines and forfeitures is 
 given to the governor ; and in that State it has been held, that 
 
 several corporations was held to be valid. Cleveland &c. R. R. v. Erie, 27 Penn. 
 St. 380. 
 
 No Special Act of Incorporation. "The General Assembly shall pass no special act 
 conferring corporate powers." An act declaring that the purchasers of a certain 
 franchise should have corporate powers, was held invalid. Atkinson v. Marietta &c. 
 R. R. 15 Ohio, N. 8. 21. The same was held of a statute enlarging the corporate 
 limits of a city. State v. Cincinnati, 20 Ohio, N. S. 18; Wyandotte City v. Wood, 5 
 Kans. 603. But an act allowing generally any city or town to amend its charter, is 
 valid. Von Phul v. Hammer, 29 Iowa, 222. Under a similar provision it was held 
 that the giving to an individual the privilege of keeping a ferry, was not a violation 
 of the prohibition. McRoberts v. Washburne, 10 Minn. 23. 
 
 Banking Laws to ~be Submitted to the People. " No act of the General Assembly 
 authorizing corporations or associations with banking powers, shall go into or in any 
 manner be in force, unless the same shall be submitted to the people at the general 
 election," &c. An amendment of the general banking law in relation to the- matter 
 of taxation need not be submitted to vote. Bank of Rep. v. Hamilton Co. 21 111. 53. 
 Nor an amendment making all bills presented together payable as one obligation. 
 Reaper's Bank v. Willard, 24 111. 433. 
 
 Appropriation Bills. Where the Constitution required that every act making an 
 appropriation should distinctly state the sum appropriated, a statute appropriating 
 " not exceeding $300,000," to be paid "out of any money thereafter in the treasury 
 not otherwise appropriated," was held valid (Miller and Stewart, JJ., dissenting). 
 McPherson v. Leonard, 29 Md. 377. 
 
 School Fund. The Constitution creating a " school fund," and requiring it to be 
 preserved, a statute inform contemplating a loan from the fund to a corporation, but 
 Avhich in fact, from the nominal security provided for, amounted to a gift, was held to- 
 be an evasion of the Constitution and void. People v. Allen, 42 N. Y. 404. 
 
 Origin of Revenue Bilk. Where bills raising revenue must originate in the lower 
 house, it was held that a bill incorporating a town and giving it power to raise 
 money by taxation, was not a revenue bill, and might originate in the Senate. Har- 
 per v. Comm'rs, 23 Geo. 566. 
 
 Bills to ~be Read Three Times. It is not necessary that everything which is to be- 
 come a law by the adoption of the bill shall be read. Thus the reading a bill enact- 
 ing a code is enough without reading the code itself. Dew v. Cunningham, 28 Ala. 
 466. And where the Constitution provides a particular style, " Be it enacted," etc., 
 it is sufficient if the bill enacting the code has such style. Hid. An association 
 may be incorporated and its constitution made its charter without reciting the char- 
 ter in the act. Bibb County L. Association v. Richards, 21 Geo. 592. 
 
 Such a provision was held directory in Miller v. State, 3 Ohio, N. S. 475. Com- 
 pliance with the requirement will be presumed where hws have been passed and 
 approved by the Legislature, although the journals do not show such readings, the 
 Constitution not requiring entry of the readings in the journals. Supervisors v. Peo- 
 ple, 25 111. 181. 
 
 But where it did not appear from the journals that the bill had ever been put 
 upon its passage or voted upon, it was held that the bill never became a law, as the 
 ayes and noes should have been on the journals. People v. Stearne, 35 El. 121. 
 
540 MISCELLANEOUS PROVISIONS. 
 
 tliis power cannot be exercised by the Legislature, and that, 
 therefore, any act which attempts, directly or indirectly, to 
 remit a fine, either before or after it has been paid, is unconsti- 
 tutional.* 
 
 In 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 com- 
 pany. J 
 
 The Constitution of ~New York, of 1846, making- an effort 
 
 7 7 O 
 
 * Haley v. Clark, 26 Ala. 439. La. Ann. R. 341 ; City of New Orleans v. 
 
 f Art. 121. Graihle, 9 La. Ann. R. 561. 
 
 \. Police Jury v. McDonogh's Succession, 8 
 
 Publication of Statutes. Omission to publish a statute will not afiect its validity. 
 Peterman v. Huling, 31 Penn. St. 432: see also Parkinson v. State, 14 Md. 184. 
 " No general law shall be in force until published." Held that a publication by mis- 
 take among the private acts was a sufficient compliance. In re Boyle, 9 AVisc. 264. 
 But unauthorized publication by a private individual is not enough. Clarke v. 
 Janesville, 10 Wise. 136. The provision as to publishing within a certain time is so 
 far directory that the statute may be published afterwards, if within a reasonable 
 time. State v. Lean, 9 Wise. 279. 
 
 Where private statutes were not to become laws until the payment of an enroll- 
 ment tax, it was held that this did not apply to provisions of a public nature incor- 
 porated in them. Peterman v. Huling, 31. Penn. St. 432. 
 
 Monopolies. " No man or set of men are entitled to exclusive public emoluments 
 or privileges from the community." It was held under this provision that a statute 
 giving a particular gas company the right to lay gas pipes in the streets of a city 
 exclusive as against all except such as might afterwards be authorized by the Legis- 
 lature, was a monopoly and void. Norwich Gas L. Co. v. Norwich C. Gas Co. 25 
 Conn. 19. But a statute of New York, where there is no such express constitutional 
 restriction, authorizing a city to grant the " exclusive" right to lay gas pipes in the 
 streets to a particular company, was held not to constitute a monopoly. People v. 
 Bowen, 30 Barb. 24. An act giving towns through licensed agents the exclusive 
 right to sell liquors, was held not to create a monopoly, in State v. Brennan's Liquors, 
 25 Conn. 278. But a somewhat similar statute was declared void, in State v. Beebe, 
 6 Ind. 501. 
 
 In a State where the Constitution prohibited "public emoluments or privileges 
 but in consideration of public service," a grant of the right to erect a public toll- 
 wharf was sustained. Martin v. O'Brien, 34 Miss. 21. 
 
 Imprisonment for Debt. The constitutional prohibition is not applicable to an 
 imprisonment for contempt in not complying with an order or decree for the pay- 
 ment of temporary alimony. Carlton v. Carlton, 44 Geo. 216. Nor is it violated by 
 an order of the chancellor that a party pay over money in his hands on pain of im- 
 prisonment. Remley v. De Wall, 41 Geo. 466. 
 
GENERAL OPERATION. 541 
 
 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 polit- 
 ical economy," prohibited leases or grants of agricultural land 
 for more than twelve years, in which any rent or service 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 certain nor periodical, nor confined to the use of 
 the land alone. * 
 
 The Constitution of the State of Indiana declares f " that 
 all trust funds held by the State shall remain inviolate, and be 
 faithfully applied to the purposes for which the trust was cre- 
 ated ; " and under this clause it has been held that a law divert- 
 ing the proceeds of the sixteenth section, granted by Congress 
 to the inhabitants of each township for the use of schools, from 
 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. J 
 
 In terminating the examination, necessarily extremely par- 
 tial and incomplete, of this interesting subject, the most super- 
 ficial 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 in- 
 dependent. Provisions inserted in the revision of one State 
 Constitution 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 institu- 
 tions is daily becoming more and more manifest. In regard to 
 the division and general arrangement of political power, the 
 right of suffrage, the guaranties of private property, the pro- 
 tection of private rights the gradual result of the three quar- 
 ters of a century which have elapsed since the foundation of 
 
 * Stephens v. Reynolds, 2 Seld. 454. The years, reserving any rent, or service of any 
 Constitution of Michigan contains a similar kind, shall be valid." Cons. art. xviii, 12. 
 proviso: " No lease or grant hereafter of agri- f Cons. art. viii, 7. 
 
 cultural land, for a longer period than twelve j The State v. Springfield Township, 6 
 
 Indiana, 83. 
 
542 GENERAL OPERATION. 
 
 our institutions was laid, aided by the active intercourse and 
 communication of our citizens, and by a press of great intelli- 
 gence and vigor, has been to bring the members of the con- 
 federacy 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. 
 
 On one subject alone does any considerable diversity of 
 condition or difference of opinion exist. That subject is rend- 
 ered embarrassing beyond all others by disparity of race, and 
 by dissimilarity of climate and production. Bat our past 
 history affords us reasonable grounds to hope and to believe 
 that if the question be approached in the fraternal spirit which 
 our history inculcates, and in the humane temper which marks 
 our national character, a solution of the difficulties 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 dearest 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 fact, the following case may be noticed : The Con- 
 stitution of New York, of 1846, provided that every county should be entitled to a 
 member of Assembly ; and that no new county should be hereafter created, unless 
 its population shall entitle it to a member. The county of Schuyler was created by 
 laws of 1854, c. 386. The question was, whether the Legislature, in determining the 
 question of population, 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 v. Eveland, 19 Barb. 81. 
 
 A repealing clause in an unconstitutional statute, declaring that all laws contra- 
 vening the provisions of this act be, and the same are hereby, repealed, does not 
 affect the previous laws. Tims v. The State, 26 Ala. 165. 
 
 Where an act is void because unconstitutional, an amendatory act is of no effect 
 to give it validity. Bradley v. Baxter, 15 Barb. 131 ; M'Spedon & Baker v. 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 officers 
 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 
 
HOFFMAN'S LEGAL OUTLINES. 543 
 
 principles, ' a mere democracy, or rule of the people, was established. Every power, 
 deliberative 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 had 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 representation from the 
 executive department, these two provinces, at the time of our Revolution, retained 
 it undiminished. The suggestion of the full, unqualified 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 nominal 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 II, from which it has been found suffi- 
 cient to expunge the reservation of allegiance, the required conformity of its legis- 
 lative 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 in it. Rawle 
 on the Constitution, p. 9. 
 
 " Connecticut," says the Federalist, Letter 38, " has always been considered 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 executing the public 
 authority, and which define the relation between the political body and its mem- 
 bers." Lect. ix, p. 365. 
 
 Mr. Hoffman's work was, unhappily, left incomplete, the first volume only, relat- 
 ing 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 marks 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 CONSTI- 
 TUTION OF THE UNITED STATES. 
 
 Clauses of the Federal Constitution which operate as Checks on Legislative Action. 
 General Nature of the Legislative Power of the Union. General Principles of 
 Constitutional Construction or Interpretation. Interpretation and Application 
 of Particular Clauses. Habeas Corpus. Bills of Attainder. Ex post facto 
 Laws. Fugitives from Justice. Fugitives from Labor. Religious Freedom. 
 Freedom of Speech and of the Press. Search Warrants and Seizures. Only 
 one Trial for Offences. Due Process of Law. Compensation for Private Prop- 
 erty taken for Public Purposes. Trial by Jury. Excessive Bail and Cruel Pun- 
 ishments. The Obligation of Contracts. Vested Rights. Conclusion. 
 
 Lsr my consideration of the Constitution of the United 
 States, with reference to the subject of this work, I shall pur- 
 sue 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 char- 
 ter. I shall, on the contrary, confine myself mainly to the con- 
 sideration of those clauses of the instrument which act as 
 limitations on the action either of Congress or of the Legisla- 
 tures of the several States, in regard to matters of private 
 right. 
 
 I omit, therefore, as falling outside of the scope and prov- 
 ince of this work, all the interesting cases growing 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, bank- 
 ruptcy, coinage, the post-office, patents, copyrights, and the 
 like. These belong, strictly, to a treatise on the Constitution 
 of the United States, a subject that has already been treated 
 bv a hand far abler, far more familiar with the theme, but 
 
CONSTITUTIONAL PROVISIONS. 515 
 
 which now, unhappily, rests from its useful and incessant 
 labors.* 
 
 My chief object, as I have said, being to treat of written 
 law as settling and declaring private rights and duties, I shall, 
 after an examination of the general principles of interpretation 
 applicable to the Constitution of the United States, limit my- 
 self 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 guar- 
 anties of private right to those clauses, by virtue of which it 
 has been said that the Constitution of the United States con- 
 tains what may be deemed a Bill of Rights for the people of 
 each State ; f and in regard even to these, I shall discuss them 
 in a 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 con- 
 taining 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 suspended, 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 anything 
 but gold and silver coin a tender in payment of debts, pass any bill of attainder, 
 ex post facto law, or law impairing the obligation 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 
 
 * In addition to the great work of Mr. There is no better or more pleasing compend 
 Justice Story, and the volumes of Mr. Rawle for popular use or elementary instruction than 
 and Mr. Sergeant, the student of constitu- the Constitutional Jurisprudence of the Hon. 
 tional law who wishes haurire forties will re- Win. Alexander Drer, 2d edition, 1856. 
 cur to the Madison Papers and the Federalist, f Fletcher v. Peck, 6 Cranch, 138. "In 
 Mr. Tucker's Blackstone, the writings of Jeffer- like manner," says the Federalist, "the pro- 
 son and Hamilton passim, and to our truly posed Constitution, if adopted, will be the Bill 
 national work, the Commentaries of Mr. Chan- of Rights of the Union." (Letter 84). That 
 cellor Kent. In recent days, the speeches it did not contain a Bill of Kights in form 
 and writings of Mr. Webster and of Mr. Cal- was, as is well known, one of the chief argu- 
 houn, great rival chiefs of widely adverse ments used against its adoption. Story, Com, 
 schools, furnish most important instruction. 1858. 
 35 
 
546 CONSTITUTIONAL PROVISIONS. 
 
 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 testimony of two witnesses to 
 the same overt act, or on confession in open court. 
 
 (2.) The 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; and the Congress may, by general 
 laws, prescribe the manner in which such acts, records, and proceedings shall be 
 proved, and the effect thereof. 
 
 Section 2. 
 
 (1.) The citizens of each State shall be entitled to all privileges and immu- 
 nities of citizens in the several States. 
 
 (2.) A person charged in any State with treason, felony, or other crime, who 
 shall flee from 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 re- 
 moved 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 regulation 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 judicial officers, both of 
 the United States and of the several States, shall be bound by oath or affirma- 
 tion to support this Constitution ; but no religious test shall ever be required as 
 a qualification to any office or public trust under the United States. 
 
 AMENDMENTS. Article I. 
 
 Congress shall make no law respecting an establishment of religion, or prohib- 
 iting 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. 
 
 Article II. 
 
 A well-regulated militia being necessary for .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 ; nor in time of war, but in a manner to be prescribed by 
 law. 
 
CONSTITUTIONAL PROVISIONS. 547 
 
 Article IV. 
 
 The right of the people to be secure in their persons, houses, papers, and 
 effects, against unreasonable searches and seizures, shall not be violated ; and 
 no warrants shall issue but upon probable cause,' supported by oath or affirma- 
 tion, 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, (a) except in cases aris- 
 ing 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 offence, 
 to be twice put in jeopardy of life or limb, nor shall be compelled in any crim. 
 inal 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 district wherein the 
 crime shall have been committed, which district shall have been previously 
 
 () Indictment. For cases under similar provisions in State Constitutions, describ- 
 ing the particularity and form requisite in setting out the offence, see Morton v. People, 
 47 111. 468 ; State v. Corson, 59 Me. 137 ; Hewitt v. State, 25 Tex. 722 ; Wolf v. State, 19 
 Ohio, K S. 248 ; Turpin v. State, 19 Ohio, N. S. 540. The Legislature may limit the time 
 and manner of objections to indictment. Commonwealth v. Walton, 1 1 Allen, 238 ; Com- 
 monwealth v. Greener, 11 Allen, 241. And may provide that upon a plea of misnomer, 
 the proceedings shall go on against the accused under his right name as pleaded. 
 Lagare v. State, 19 Ohio, N. S. 43. But an indictment amended by adding a venue 
 is not, it seems, the indictment of a grand jury. State v. Chamberlain, 6 Nev. 257. 
 
 For cases where indictments were held not sufficient within the constitutional 
 provision, see Murphy v. State, 28 Miss. 637; Norris v. State, 33 Miss. 373; Lemons 
 v. State, 4 W. Va. 755. The Legislature cannot make valid a complaint in which 
 the accusation is not "formally, fully, and precisely set forth." State v. Lerned, 47 
 Me. 426. 
 
 The provisions of the United States Constitution as to indictment by a grand 
 jury are not addressed to the States, and do not bind them. Jane v. Commonwealth, 
 3 Mete. (Ky.) 18. The same provisions in the State Constitutions do not restrict the 
 Legislatures in prescribing forms of indictment, providing a grand jury passes upon 
 the complaint and assents to the prosecution. State v. Millain, 3 Nev. 409. 
 
 When there are degrees of murder differently punished, a statute is not uncon- 
 stitutional which authorizes the indictment to charge murder simply, without 
 specifying the degree. Commonwealth v. Gardner, 11 Gray, 438. And a statute is 
 equally valid which authorizes, upon indictments for felony, an acquittal of part of 
 the offence, and a conviction for the. residue, if such residue is substantially charged 
 in the indictment. Commonwealth v. Long, 10 Gray, 11. As to the constitutionality 
 of a statute of South Carolina, dispensing with the grand jury in the district courts, 
 see State v. Starling, 15 Rich. Law, 120. 
 
548 CONSTITUTIONAL PROVISIONS. 
 
 ascertained by law, and to be informed of the nature and cause of the accusa- 
 tion, to be confronted with the witnesses against him, (a) 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 trial by jury shall be preserved, and no fact tried by a jury- 
 shall be otherwise re-examined, in any court of the United States, than accord- 
 ing to the rules of the common law. 
 
 Article VIII. 
 
 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 Constitution, 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 construction applicable to the Constitution 
 of the United States. Kules of interpretation vary with the 
 instrument to be expounded. A statute is not controlled by 
 the same maxims as those applicable to State Constitutions ; 
 and State Constitutions are subjected, in some respects, to 
 different principles of construction from those which are held 
 proper in regard to the Constitution of the United States.* 
 
 * Mr. Justice Story, in the fifth chapter I. That it is to be construed according 
 
 of the third book of has Commentaries on the to the sense of the terms and the intention of 
 
 Constitution, states the rules of interpretation the parties. 
 
 applicable to the Constitution of the United II. We are to consider its nature and 
 
 States, to be : objects, its scope and design as apparent from 
 
 (a) Con/renting of Witnesses. Under similar provisions in the State Constitutions 
 the following points have been decided: The guaranty is not violated by admitting 
 declarations made in extremis. Commonwealth v. Carey, 12 Cush. 246 ; People v. Glum, 
 10 Cal. 32 ; Walston v. Commonwealth, 16 B. Mon. 15 ; State v. Nash, 7 Clarke (la.), 
 347 ; Bobbins v. State, 8 Ohio, N. S. 131 ; Miller v. State, 25 Wise. 384. Nor by ad- 
 mitting the testimony given at a former trial by a witness since deceased. Summons 
 v. State, 5 Ohio, N. S. 325. Nor by admitting a deposition taken by the committing 
 magistrate in the presence of the accused, the deponent being since dead. State v. 
 Harman, 27 Mo. 120. But it seems a protest of a notary should not be admitted as 
 evidence of no funds in bank. State v. Reidel, 6 Ind. 430. 
 
 That the constitutional guaranty does not apply to evidence which is in its nature 
 essentially documentary, especially wiien the fact to be proved is collateral only, see 
 People v. Jones, 24 Mich. 215. 
 
LEGISLATIVE POWER OF THE UNION. 
 
 549 
 
 The great political idea, if it may be so called, on this 
 subject of the Federal Charter, is the one expressed in the 
 tenth amendment above cited, and repeatedly in various ways 
 affirmed,* that as to the general outline of the instrument, and 
 the Government created by it, the Constitution of the United 
 
 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 inter- 
 pretation, and practical exposition. 
 
 III. It is to receive a reasonable inter- 
 pretation 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. 
 
 IV. Where a power is granted in general 
 terms, the power is to be construed 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 in- 
 convenient, impolitic, or even mischievous. 
 
 VII. No construction of a 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. 
 
 XI. 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 enu- 
 merating certain powers which might other- 
 wise be deemed implied powers within its 
 scope. 
 
 XIV. Every word employed in the Con- 
 stitution 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 mean- 
 ings, 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 can- 
 not 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 ob- 
 served, principles of what may be called 
 political construction; others, very sound 
 and sagacious maxims applicable to all inter- 
 pretation, and especially to that of constitu- 
 tional law. 
 
 The learned author also elaborately dis- 
 cusses 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 particular^ to the distribution of polit- 
 ical power; and I therefore 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. v. Deveaux, 5 Cranch, 87, a case 
 as to the citizenship of corporations aggregate. 
 
 * The Federal Government is one of dele- 
 gated powers. All powers not delegated to 
 it, or inhibited to the States, are reserved to 
 the States or the people. Briscoe v. Bank of 
 Commonwealth of Kentucky, 11 Peters, 257; 
 see this case in regard to the clause prohibit- 
 ing the States to issue bills of credit. 
 
 " A different rule obtains in interpret- 
 ing the powers in the Constitutions of the 
 United States and the States. In ascertain- 
 ing the powers of the former, we examine to 
 see what powers are expressly granted or are 
 necessarily 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 legislative act not prohibited by the 
 Constitution ; and without and beyond these 
 limitations and restrictions, they are aa ab- 
 solute, omnipotent, and uncontrollable as 
 Parliament." Mason v. Waite,4 Scammon, 134. 
 
550 LEGISLATIVE POWER OF THE UNION. 
 
 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 express pro- 
 hibitions contained in the instrument, whether imposed upon 
 the States or on the General Government. 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, for the discussion 
 of some of the general questions in regard to the exercise of 
 the law-making authority, which we have elsewhere con- 
 sidered. But the Federal Constitution intends to preserve 
 the same lines of demarkation between the executive, the 
 legislative, and the judicial powers, as those w r hich 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 considered. The 
 Government of the United States have by various acts, adopted 
 the legislation of the respective States in regard to writs, 
 process, imprisonment for debt, and other matters ; * and in so 
 far as this adoption 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 prospectively 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 questions which are not questions of 
 mere local municipal law, but arise under the law merchant, 
 the Supreme Court pronounces its own judgment, and does not 
 accept the rules of the State courts as authority. | 
 
 * Wayman v. Southard, 10 Wheat. 4; p. 495; Cooley v. Board of Wardens of Phila- 
 
 Bank of the U. S. v. Halstead, 10 Wheat. 51 ; delphia, 12 How. 299. 
 Beers v. Haughton, 9 Peters, 329. \ Webster v. Cooper, 14 Howard, 488 ; 
 
 f U. States v. Knight, 3 Sumner, 369; Greene v. James, 2 Curtis, 187; ante, p. 369. 
 In the Matter of Watson Freeman, 2 Curtis, || Swift v. Tyson, 16 Peters, 1 ; Carpenter 
 
GENERAL RULES OF CONSTRUCTION. 551 
 
 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 Constitution of the United States. 
 
 The political rules of construction in regard to the Federal 
 Charter have been stated as follows by Mars-hall, 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 actually granted must 
 be such as are expressly given or by necessary implication. On the other 
 hand, this instrument, like every other grant, is to have a reasonable construc- 
 tion 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 pro- 
 vide 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 
 inscrutable 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 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 inten- 
 tion 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 comprehended 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. \ 
 
 v. Prov. W. Ins. Co. 16 Peters, 495 ; Foxcroft * Martin v. Hunter's Lessee, 1 Wheat. 
 v. Mallett, 4 How. 377 ; The Gloucester Ins. 305-326. 
 
 Co. v. Younger, 2 Curtis, 338. f Marshall, C. J., in Ogden v. Saunders, 
 
 12 Wheat. 213-332. 
 
552 CONTEMPORANEOUS EXPOSITION. 
 
 I proceed now to state the rules of construction not of a 
 political nature, which are applicable to the instrument. 
 
 The Unconstitutionally must be Clear. It has been re- 
 peatedly held, that to warrant the courts in setting aside a law 
 as unconstitutional, the case must be so clear that no reason- 
 able doubt can be said to exist. The Supreme Court has said, 
 
 The question whether a la\v be void for its repugnancy to the Constitution, 
 is at all times a question of much delicacy, which ought seldom or never to be 
 decided in the affirmative in a doubtful case. The Court, when impelled by 
 duty to render such a judgment, would be unworthy 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 pro- 
 nounced to have transcended its powers, and its acts to be considered void. 
 The opposition 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 case is to be gov- 
 erned 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 1 feel a clear conviction 
 that the case in question is incompatible with the Constitution of the United 
 States.* 
 
 Contemporaneous Exposition. It is well settled that aid, in 
 regard to the construction of the Constitution of the United 
 States, may be derived from contemporaneous exposition and 
 legislative exposition ; f but this cannot be carried so far as 
 to permit usage to override the express terms of the instru- 
 ment ; and Mr. Justice Story has said that contemporary inter- 
 pretation must be resorted to with much qualification and re- 
 serve. J 
 
 Extrinsic Facts not Admitted to Contradict the Words of 
 the Instrument. The general principle on which we have here- 
 
 * Fletcher v. Peck, 6 Cranch, 128; see pronounce upon the conformity of the acts of 
 
 also, to same point, U. S. v. Wonson, 1 Gal- the delegated authority to the fundamental 
 
 lison, pp. 4 and 18; U. S. Bank v. Halstead, law. This court is that depositary, and I 
 
 10 Wheat, p. 53; Parsons v. Bedford, 3 know not of any better. But the success of 
 
 Peters, 433, 448; Ogden v. Saunders, 12 this experiment, so interesting to all that is 
 
 "Wheat. 294. In Green v. Biddle, Mr. Clay, dear to the interests of human nature, de- 
 
 arguendo, said, " The court will exercise its pends upon the prudence with which this 
 
 power with the most deliberate caution, high trust is executed." 8 Wheat. 48. 
 This court is invested with the most import- f Johnson, J., in Ogden v. Saunders, 12 
 
 ant trust that was ever possessed by any tri- Wheat, p. 290; Stuart v. Laird, 1 Cranch, 
 
 bunal for the benefit of mankind. The polit- 299 ; Martin v. Hunter's Lessee, 1 Wheat, 
 
 ical problem is to be solved in America, 304; Cohens v. Virginia, 6 Wheat. 264,418 
 
 whether written Constitutions of government to 421. 
 can exist. They certainly canuot exist with- \ Com. on Con. 406. 
 
 out a depositary somewhere of the power to 
 
TRANSPOSITION OF CLAUSES. 553 
 
 tofore 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 circumstances to ascertain what the framers might 
 have intended, has 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 words, 
 and neither the practice of legislative bodies nor other extrin- 
 sic circumstances, can control its clear language." Such was 
 the language of Marshall, 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 Legisla- 
 tures for thirty years ; and he proceeded to say, 
 
 It would be dangerous in the extreme to infer from extrinsic circumstances, 
 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 in- 
 consistent unless the natural and common import of words be varied, construc- 
 tion 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 contra- 
 dicted by any other provision in the same instrument, is to be disregarded be- 
 cause 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 pro- 
 vision to the case would be so monstrous that all mankind would, without 
 hesitation, unite in rejecting the application.* 
 
 Words to be Taken in their Natural Sense. Chief Justice 
 Marshall has said, "As men whose intentions require no con- 
 cealment generally employ the words which most directly and 
 aptly express the ideas they intend to convey, the patriots who 
 framed our Constitution, and the people who adopted it, must 
 be understood to have employed words in their natural sense, 
 and to have intended what they have said." f 
 
 Transposition of Clauses. In regard to the transposition of 
 sentences in order to arrive at the construction of a constitu- 
 tional provision, Mr. Justice Washington has used this sensible 
 language : 
 
 o o 
 
 * Sturgea v. Crowninshielcl, 4 Wheat. f Gibbons v. Ogden, 9 Wheat. 188, per 
 202, 203. Marshall, C. J. 
 
554 EFFECTS OF UNCONSTITUTIONALLY. 
 
 In the construction of this clause of the tenth section of the Constitution, 
 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 any thing but gold and silver coin a tender in payment of debts, 
 inasmuch as the two provisions relate to the subject of contracts. That the 
 derangement of the words and even sentences of a law may sometimes be toler- 
 ated in order to arrive at the apparent meaning of the Legislature, to be gath- 
 ered 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 Constitution was by the enlightened 
 statesmen who framed it, and so severely examined and criticised by its oppo- 
 nents in the numerous State conventions which finally adopted it.* 
 
 Reference to Clauses struck out. It lias 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.f 
 
 Acts void in part and valid in part. It is well settled that 
 an act may be void in part by reason of its violation of a con- 
 stitutional provision, and good as to the remainder. " If any 
 part of the act be unconstitutional," said the Supreme Court of 
 the United States, "the provisions of that part may be disre- 
 garded, while full effect will be given to such as are not repug- 
 nant to the Constitution of the United States, or of the State, 
 or to the ordinance of 1787." J 
 
 Effects of Unconstitutionally. The effect of a judgment or 
 decree declaring a statute void for unconstitutionally, is very 
 stringent. It has been said by the Supreme Court of Massa- 
 chusetts, that an act of the Legislature which it has no consti- 
 tutional 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 unconstitutional State 
 
 * Ogden v. Saunders, 12 Wheat, pp. 267, be, but that a law may be void in part and 
 
 268. good in part ; or in other words, that it may 
 
 f Fletcher v. Pock, 6 Cranch, 139. be void so far as it has a retrospective ap- 
 
 \ Bank of Hamilton v. Dudley's Lessee, 2 plication to past contracts, and valid as ap- 
 
 Peters, 526; see also, Ogden v. Saunders, 12 plied prospectively to future contracts." See 
 
 Wheat. 295, per Johnson, J. "It was not de- also, Nelson v. People, 83 111. 390; People v. 
 
 nied on the argument, and I presume cannot Mahany, 13 Mich. 481. 
 
 (ft) White v. Cannon, 6 Wall. 443. 
 
POWER OF THE FEDERAL JUDICIARY. 555 
 
 bankrupt law, a creditor wiH not be considered to have assented 
 to, or ratified the discharge, 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.* 
 
 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 Constitution 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 private property shall not be taken 
 without compensation.f So, in regard to the sixth amendment, 
 securing the right of trial by jury in criminal cases. J So, in 
 regard to the seventh amendment, in regard to the right to 
 trial by jury in civil cases. | (a) So, in regard to the fourth 
 amendment, protecting individuals against unreasonable seiz- 
 ures. ^[ So, too, in regard to the prohibition on cruel and 
 unusual punishments.** In all 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 tri- 
 bunal must act. ff 
 
 It is important to notice the rule which has been stated, 
 that where a Constitution passes, taking away the power from 
 
 * Kimberly v. Ely, 6 Pick. 440. ft Calder v. Bull, 3 Dall. 386; Satterlee 
 
 f Barren v. The Mayor <fcc. of Baltimore, v. Matthewson, 2 Peters, 380. The Supreme 
 
 7 Peters, 243. Court has no authority on a writ of error from 
 
 \ Murphy v. The People, 2 Cow. 815; a State court, to declare a State law void on 
 
 Jackson v. Wood, 2 Cowen, 819. account of its collision with a State Constitu- - 
 
 || Livingston v. The Mayor, 8 Wend. 100; tion, it not being a case embraced in the 
 
 Colt v. Eves, 12 Conn. 243. judiciary act, which alone gives power to 
 
 *([ Reed v. Rice, 2 J. J. Marsh. 45. issue a writ of error. Jackson v. Lamphire, 3 
 
 ** James v. The Commonwealth, 12 Serg. Peters, 289. 
 and Rawle, 220; Barker v. The People, 3 
 Cowen, 687. 
 
 (a) But this amendment applies to cases removed from the State into the U. S. 
 courts. The Justices v. Murray, 9 Wall. 274. 
 
556 WRIT OF HABEAS CORPUS. 
 
 the Legislature to pass laws on a particular subject, this is 
 equivalent to a repeal of existing laws on that subject.""' 
 
 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 examination 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 
 con tains, (a) 
 
 Habeas Corpus. Art. i, sect. 9, 2. The writ of habeas 
 corpus ad subjiciendum, was first secured to English liberty by 
 the famous statute 31 Car. II, c. 2 ; but in England, like all the 
 other guaranties of private right, it is subject to the pleasure 
 of Parliament. Here, we have fixed it in the Constitution, 
 and declared that it can only be forfeited during periods of 
 warfare or rebellion. Practically, as yet, Congress has 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.f 
 
 * Ogden v. Saunders, 12 Wheat. 278, per v. Borders, 4 Scam. 344; see this case as to 
 
 Johnson, J. the ordinance of 1787. and the Constitution of 
 
 I may here notice that it has been said in Illinois. On the subject of the ordinance of 
 
 Illinois, that a proviso in a Constitution, as in 1787, see also, 1 Missouri, 472, 725 ; Walker, 
 
 a statute, cannot enlarge the enacting clause ; Miss. 36 ; 20 Martin, 699. 
 
 it can only restrain, qualify, or explain. Sarah f Martin v. Mott, 12 Wheat. 19. 
 
 (a) Treaties. As to the binding effect and force of treaties under the constitu- 
 tional provision in reference to them. An act of Congress passed after a treaty can- 
 not affect private titles under it. Congress has no power to settle rights under 
 treaties except in matters purely political. The construction of treaties is the pecul- 
 iar province of the judiciary in a case between individuals and touching their 
 private rights. Wilson v. Wall, 6 Wall. 83. How far the stipulations, and especially 
 the promissory stipulations, of treaties are binding upon Congress, has been and still 
 is a disputed question. But so far as the acts to be done were political, and so far 
 as the questions arising from the observance or the violation of such stipulations by 
 Congress were political, the courts of the United States would have no jurisdiction; 
 such acts and questions are not within the range of the judicial function. That 
 courts are bound by a political act of Congress imposing a duty, although inconsist- 
 ent with a treaty, see The Cherokee Tobacco, 11 Wall. 617; U. 8. v. Tobacco Co. 1 
 Dillon C. C. 264 ; Ropes v. Clinch, 8 Blatch. C. C. 304. 
 
 It has been held that the treaty of extradition with France is binding upon the 
 State courts without any legislation upon it. Matter of Metzger, Edm. Sel. Cas. 399. 
 
EX POST FACTO LAWS. 557 
 
 of Attainder. 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 inflict- 
 ing capital punishments, and bills of pains and penalties, or 
 those w r hich award lesser punishment, are believed to be 
 equally within the scope of the constitutional restriction.* 
 They both belong in fact, as we have already noticed, to the 
 most vicious class of judicial legislation.f The history of En- 
 gland is filled with instances of the gross abuse of this tre- 
 mendous engine of political power ; but they are now appar- 
 ently, as little likely to be resorted to there as here, unless some 
 violent domestic convulsion should disturb the equilibrium of 
 that eminently practical and conservative people. J 
 
 Ex post facto Laws, (a) Art. i, sect. 9, 3. This phrase is 
 
 * Fletcher v. Peck, 6 Crancb, 138. giance to this State. The forfeitures arising 
 
 f Ante, p. 121. from the attainder must be sought for in the 
 
 \ See Wooddeson's Law Lectures, lect. 41. act and nowhere else." It is an interesting 
 
 Mr. Justice Story, in his Commentary, 1338, case as to the effect of an act of attainder. 
 says that the power of passing bills of at- Mr. Austin, in his valuable work on Juris- 
 
 tainder was used during the American Revo- prudence, says : " The sovereign Roman peo- 
 
 lution with a most unsparing hand. In Jack- pie solemnly voted or resolved, that they 
 
 son v. Catlin, 2 J. R. 248, it is said: "The would never pass, or even take into consider- 
 
 act of 2'2d October, 1779, attainted, among ation, what Twill venture to denominate a 
 
 others, Thomas Jones, of the offence of adher- bill of pains or penalties. This solemn reso- 
 
 ing to the enemy of this State. It was a spe- lution or vote was passed with the forms of 
 
 cine offence, and was not declared or under- legislation, and was inserted in the twelve 
 
 stood to amount to treason ; because many of tables in the following imperative terms 
 
 the persons attainted had never owed alle- Privilegia ne irriganto" 
 
 (a) Ex post facto Laws. The recent cases illustrative of ex post facto laws are ar- 
 ranged in general classes according to the subject-matter of the statute. The rebell- 
 ion gave birth to an unusual number of such laws, and of decisions upon them. 
 
 Forfeitures and Confiscations. Provisions in a statute and in State Constitution 
 declaring forfeiture of office by curators of a college for failure to take a test oath, 
 were held void as ex post facto in State v. Adams, 44 Mo. 570. This and other Mis- 
 souri cases cited follow decisions of the U. S. Supreme Court, and overrule doctrines 
 in earlier cases in the same State; see remarks on the subject of test oaths, infra. 
 Statutes of Congress and of States requiring a test oath from attorneys as condition 
 of being allowed to practice, were also held void in Ex parte Garland, 4 Wall. 333 ; 
 In re Murphy and Glover, 41 Mo. 339 ; State v. Heighland, 41 Mo. 388 ; per contra, 
 Cohen v. Wright, 22 Cal. 293 ; Ex parte Yale, 24 Cal. 241 ; State v. Garesche, 36 Mo. 
 256 ; but these last cases are certainly overruled by the U. S. Supreme Court. A 
 similar requirement as to clergymen as a prerequisite to their exercising their clerical 
 functions, State v. Cummings, 4 Wall. 277, overruling s. c. 36 Mo. 263, and other 
 Missouri cases. The Supreme Court of the United States in the two leading cases, 
 State v. Cummings, and Ex parte Garland, discussed the subject of ex post facto laws 
 at length, and held that all statutes, either of State or of Congress, which require test 
 oaths of loyalty during the rebellion, and prescribe as a result or consequence of 
 
558 EX POST FACTO LAWS. 
 
 now well settled to apply only to acts of a criminal nature, 
 An ex post facto law is one which renders an act punishable in 
 
 not taking such oaths in relation to past conduct, that persons shall not pursue pro- 
 fessions or exercise callings, or engage in business, are ex post facto laws and void. 
 This determination is of course confined to the effect and operation of such laws 
 upon the past conduct of the persons affected l>y them, no such penalties or for- 
 feitures or punishment existing when the criminal acts were done. These decisions of 
 the U. S. Supreme Court, being rendered in cases involving a construction of the 
 national Constitution, are binding upon the State courts, and overrule all the con- 
 trary decisions of those courts, and settle the doctrine for the whole country. 
 
 Some of the State Constitutions or statutes have prescribed a test oath of loyalty 
 as a prerequisite to the right of suffrage. Such a statutory requirement was held 
 void in Rison v. Farr, 24 Ark. 161, as it violated the State Constitution ; per contra, 
 it was held valid in Randolph v. Good, 3 W. Va. 551 ; State v. Neal, 42 Mo. 119; 
 and see Anderson v. Baker, 23 Md. 531 ; Blair v. Ridgeley, 41 Mo. 63 ; State v. 
 Staten, 6 Cold. 248. In Green v. Shumway, 39 N. Y. 418, a statute of K Y. impos- 
 ing a similar test oath as a condition of voting at a certain election, was by the 
 judgment of the court declared void, but it can hardly be said that the court by^ a 
 majority of the judges established any rule or doctrine. The Supreme Court of the 
 United States has not as yet passed upon this particular question. Entirely agreeing 
 with the decisions of the U. S. Court that the test oath statutes were ex post facto 
 laws when applied to the subject-matter of trades, professions, businesses, &c., and 
 made a penalty for past crimes, we think there is a clear and broad distinction 
 between such cases and those involving the right of suffrage. Of course, if the 
 State Constitution prescribes the qualifications of electors, and a statute demands 
 other and antagonistic qualifications, it would violate the State Constitution. But 
 the question under discussion is concerned solely with the relations of State statutes 
 or Constitutions with the provision of the national Constitution prohibiting the 
 States to pass ex post facto laws. In order that a law should be ex post facto, it must 
 inflict some legal penalty, and thus must consist in taking away a legal right or im- 
 posing some legal burden. A State Constitution which demands a test oath of loyalty 
 as a prerequisite of exercising the electoral franchise, does not take away a legal 
 right or impose a legal burden, because no person in the State has any right to vote 
 independent of the express provisions of the State Constitution. The very Constitu- 
 tion which contains the restriction is the source of all power, capacity, or right of 
 voting ; and if such Constitution imposes a test oath as a qualification, it does the 
 same in essence as when it imposes the age of twenty- one years, citizenship, or the 
 male sex, as a prerequisite. In other words, as the subject of electoral capacity has 
 been left to the States absolutely untrammeled, except by the provisions respecting 
 race and color, any changes which the State may think best to make in defining the 
 qualifications of voters, do not take away any right or impose any legal burden, and 
 cannot therefore be ex post facto laws, however much they may apply to past acts 
 and transactions. See Pomeroy's Constitutional Law, 532-535. 
 
 It was held in Ex parte Stratton, 1 W. Va. 305, that an oath of allegiance to the 
 United States might be required of State officers. 
 
 The act of Congress of June 7, 1862, so far as it attempts to forfeit land for non- 
 payment of taxes as a punishment for rebellion, was held void as a bill of attainder 
 in Martin v. Suowden, 18 Gratt. 100. The confiscation act of Congress of July 17, 
 
EX POST FACTO LAWS. 559 
 
 a manner in which it was not punishable when it was com. 
 mitted, whether by personal or pecuniary penalties. * The 
 
 * Fletcher v. Peck, 6 Cranch, 138. 
 
 1862, providing a judicial proceeding and determination is constitutional and valid. 
 Miller v. U. S. 11 Wall. 268; Bigelow v. Forrest, 9 Wall. 339; see also Mrs. Alex- 
 ander's Cotton, 2 Wall. 404 ; U. S. v. Padelford, 9 II. 531. See also Dewey v. Mc- 
 Lain, 7 Kans. 126. The Kentucky court, however, uttered its protest against the 
 statute, and pronounced it void in Norris v. Doniphan, 4 Mete. (Ky.) 385. 
 
 For decisions upon the act of Congress of July 13, 1861, for the confiscation of 
 vessels belonging to citizens of the insurgent States, see Prize Cases. 2 Black, 635 ; 
 The Amy Warwick, 2 Sprague, 123 ; The Ned, Blatch. Prize Gas. 119. These and 
 similar decisions however proceeded largely, if not mainly, on the belligerent power 
 of the United States to establish a blockade. 
 
 A statute which makes the selling of liquor already on hand a crime and thereby 
 lessens its value, is not ex post facto. State v. Paul, 5 R. I. 185 ; State v. Keeran, Jb. 
 497. See note on the " Police Power." The forfeiture of land for breach of internal 
 revenue law by a proceeding in rem is constitutional. U. S. v. A Distillery, 2 Abb. 
 U. S. R. 192. The act of Congress approved March 3, 1865, making forfeiture of 
 citizenship a part of the penalty of desertion, is not an ex post facto law or a bill of 
 attainder, as it contemplates a trial and sentence by a court martial. Gotcheus v. 
 Matheson, 58 Barb. 152. It seems that a statute requiring registration of voters, or 
 otherwise prescribing qualifications for voters, is not an ex post facto law. Anderson 
 v. Baker, 23 Md. 531. 
 
 Renewal of Penalty. A statute extending the time^ibr prosecution after the time 
 has run out, is ex post facto. State v. Sneed, 25 Tex. Supp. 66. And the same is 
 held of a statute repealing an amnesty act as to all cases to which such amnesty had 
 applied. State v. Keith, 63 N. C. 140. After the old law as to murder had been 
 repealed without a saving clause, and thereby a sentence upon a verdict rendered 
 under the old law for a crime committed while the old law was in force, was rend- 
 ered impossible, a re-enactment of the old law was held ex post facto and void as to 
 such criminal, and she was discharged. Hartung v. People, 26 N. Y. 167, and see 
 other N. Y. cases cited below in the next subdivision. 
 
 Increase or Change of the Penalty. By the provisions of a New Hampshire statute 
 the punishment for robbery was solitary imprisonment for six months, and then con- 
 finement for life at hard labor; but the prisoner was entitled as a matter of right to 
 have counsel assigned to him by the State, to have process for his witnesses, a copy 
 of the indictment, and a list of the jurors, &c. This statute was modified by mak- 
 ing the punishment t to be solitary confinement for six months, and then imprison- 
 ment at hard labor for not less than seven nor more than thirty years, and by leaving 
 it to the discretion of the court, whether the prisoner should have counsel assigned 
 to him, process for his witnesses, &c. A person was charged with robbery com- 
 mitted under the former statute, and the modifying act was passed after his offence 
 and before the trial. On the trial the court assigned him counsel, but refused to 
 award him process, or to grant him the other rights conferred by the earlier legisla- 
 ' tion. On error after conviction, it was held that the provisions of the amending 
 statute were not ex post facto, that the penalty on the whole was lessened, and that 
 the incidental deprivation of certain privileges did not add to the penalty. State v. 
 Arlin, 39 K H. 179. This case has been severely criticised, and certainly cannot be 
 
560 EX POST FACTO LAWS. 
 
 prohibition, whether in regard to the government of the Union 
 or of the several States, has no application to retrospective 
 
 harmonized with other recent decisions quoted below. In New York the punishment 
 for murder was that the person convicted should be hung ; a statute repealed the 
 former statute without any saving clause, and substituted as a punishment that the 
 convict should be confined in the State prison at hard labor for at least a year, and 
 should be then hung upon a warrant issued by the Governor. A person committed 
 murder under the former act, but was not tried and sentenced until the second came 
 into operation. The latter statute was held to be ex post facto in its application to 
 her case and to all similar cases. Hartung v. People, 22 N. Y. 95. This decision 
 was followed in other cases, the court establishing this rule : u A law changing the 
 punishment for offences committed before its passage is ex post facto and void, unless- 
 the change consists in the remission of some separable part of the punishment before 
 prescribed, or is referable to prison discipline or penal administration as its primary 
 object." Katzky v. People, 29 N. Y. 124 ; Shepherd v. People, 25 N. Y. 406. 
 
 A statute merely mitigating punishment is not ex post facto, Dolan v. Thomas, 
 12 Allen, 421. Nor a statute changing the place of imprisonment from a house of 
 correction in the county where the offence was committed to a house of correction in 
 any other county, in the discretion of the court, for this is simply a matter of prison 
 discipline and penal administration. Carter v. Burt, 12 Allen, 424. 
 
 It seems that a statute authorizing the jury in their discretion to inflict a fine or 
 imprisonment in the county jail or both, in lieu of imprisonment in the State peni- 
 tentiary not less than two nor more than five years, is a mitigation of the penalty. 
 State v. Turner, 40 Ala. 21. When the original penalty was imprisonment not ex- 
 ceeding one year, and it was changed to imprisonment not less than three nor more 
 than twelve months, the amendatory statute, so far as it affected past offences, was- 
 held to be ex post facto. Flaherty v. Thomas, 12 Allen, 428. Where an original act 
 imposed $50 as a penalty, and a subsequent one applicable by its terms to past 
 offenses imposed a penalty "not exceeding $100," the second statute was held to be 
 operative as to past offences, so far as to make the penalty discretionary, but not to 
 exceed the old limit of $50. Chicago &c. R. R. v. Adler, 56 111. 344. A law defin- 
 ing two degrees of murder, and making the second punishable by imprisonment for 
 life, is not ex post facto as to past offences, since the punishment for the first degree 
 is left the same, and that of the second degree is in fact a mitigation of the penalty 
 which would have been inflicted under the former law. Commonwealth v. Gardner? 
 11 Gray, 438. 
 
 Changes in Procedure, Pleading, Evidence, Courts, and Venue. It seems that a 
 statute limiting the right to object to an indictment to a certain stage in the pro- 
 ceeding, which stage in a particular case had been passed before the passage of the 
 statute, would be ex post facto in its application to such case. Martin v. State, 22 
 Tex. 214. An act authorizing conviction upon the unsupported evidence of an 
 accomplice, cannot be applied to the trial of a crime committed before its passage. 
 Hart v. State, 40 Ala. 32. Where a statute making that evidence of a crime which 
 was not so before, is passed to go into effect at a future day, a person committing 
 the crime after its passage, but before it goes into effect, cannot be tried and punished 
 under it. State v. Bond, 4 Jones (Law), 9. 
 
 An act giving additional right of challenge to the prosecution is not ex post facto. 
 Walston v. Commonwealth, 16 B. Mon. 15; State v. Ryan, 13 Minn. 370. Nor one 
 
JUDICIAL PROCEEDINGS. 561 
 
 laws of a civil character, nor any tendency to protect property 
 or vested rights of a civil description. * 
 
 Faith and Credit of Judicial Proceedings. Art. iv, sec. 1. 
 I have already f called attention to this provision. The act 
 of May 26, 1790, 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 wdthin 
 the United States, as they have by law or usage in the courts 
 of the State from whence the records are taken. Under this, 
 it has been decided that if a judgment has the effect of record 
 evidence in the courts of the State from whence it is taken, it 
 has the same effect in the courts of any other State. At com- 
 mon law, a judgment of the courts of one State would have 
 been prima facie evidence in the courts of any other State. 
 
 * Watson v. Mercer, 8 Peters, 1 10 ; see cision which leaves a large class of arbitrary 
 
 also, Dash v. Van Kleeck, 7 J. R. 477. This legislative acts without the prohibitions of 
 
 restricted interpretation of a phrase which, the Constitution." 
 
 on its face, is susceptible of a much wider In Carpenter v. Commonwealth of Penn- 
 
 construction, has, however, been repeatedly sylvania, 17 How. 456, the Supreme Court 
 
 regretted. In Satterlee v. Matthewson, 2 reviewed the cases, and again decided that 
 
 Peters, 380, where a retrospective law was the phrase ex post facto is to be taken as ap- 
 
 sustained, Mr. J. Johnson, dissenting, says : plied to* criminal cases only, and that it did 
 
 " The whole difficulty arises out of the un- not apply to an explanatory act the effect of 
 
 happy idea that the phrase ex post facto, in which was to charge an estate with taxes to 
 
 the Constitution of the United States, was which it had not been before subjected, 
 confined to criminal cases exclusively, a de- f Ante, p. 63. 
 
 authorizing amendment of indictment in case of misnomer. State v. Manning, 14 
 Tex. 402. Nor one which prevents a defendant from taking advantage of variances 
 which do not prejudice him. Commonwealth v. Hall, 98 Mass. 570. 
 
 Where a city had power under its charter to establish a tribunal to try contested 
 elections, it was held that such tribunal might take cognizance of a case arising out 
 of an election held before it was constituted. State v. Johnson, 17 Ark. 407. But 
 if, at the time an offence was committed, no court or tribunal had' jurisdiction to 
 try it, it cannot be punished, because there was in fact no offence, and clothing a 
 court with authority to try it would be in substance to create the offence. U. S. v. 
 Start, 1 Hemp. 469. It seems, however, that a tribunal may be subsequently author- 
 ized to try prior offences of which another court had, at the time of their commis- 
 sion, exclusive jurisdiction. State v. Sullivan, 14 Rich. (Law) 281. A statute 
 changing the place of trial of an offence after its commission is not ex 'post facto. 
 Cut v. State, 9 Wall. 35. 
 
 Civil Remedies. A law taking away remedies for breach of contract or for tort is 
 not ex post facto. Lord v. Chadbourne, 42 Me. 429. Nor is a re-assessment for local 
 improvements. Butler v. Toledo, 5 Ohio, N. S. 225. Nor are any laws affecting 
 civil fights or remedies merely. Calder v. Bull, 3 Dall. 386 ; Rich v. Flanders, 39 
 N. H. 304 ; South wick v. South wick, 49 N. Y. 510. A constitutional provision of a 
 State prohibiting suits for acts done under military authority is not ex post facto. 
 Drehman v. Stifle, 8 Wall. 595. 
 36 
 
562 PRIVILEGES AND IMMUNITIES. 
 
 The Constitution contemplates a power in Congress to give a 
 conclusive power to such judgments, which power it has exe- 
 cuted by declaring a judgment conclusive when the courts of 
 the State where it is rendered, would so pronounce it.* (#) 
 
 Mutual Enjoyment of Privileges and Immunities. Art. iv, 
 sect. 2, 1. This clause has not as yet received the attention 
 which from its importance it would have been expected to 
 command. It has been considered but in a few instances, and 
 no general authoritative exposition of it has as yet been de- 
 clared. (&) Some partial interpretations of it have, however, 
 
 * Mills v. Duryee, 7 Cranch, 481 ; Hamp- Montgomery, 19 J. R. 162; Borden v. Fitch, 15 
 ton T. M'Connel, 3 Wheat. 234; Andrews v. J. R. 121 ; Black's Case, 4 Abb. Pr. Rep. 164. 
 
 (a) A statute providing that no suit shall be brought on a judgment of any court 
 without the State against a citizen of the State, if the original suit would have been 
 barred by the statute of limitations if brought within such State, is unconstitutional. 
 Christmas v. Russell, 5 Wall. 290. As to the force of judgments of confederate 
 courts, see Martin T. Hewitt, 44 Ala. 418. As to the effect of the clause see Darcy v. 
 Ketchum, 11 How. 165, 175 ; Green v. Van Buskirk, 5 Wall. 307; s. c. 7 Wall. 139; 
 Cheever v. Wilson, 9 Wall. 108, 123 ; Board, &c. v. Columbia Coll. 17 Wall. 521 ; 
 Thompson v. Whitman, 9 Alb. L. J. 256 ; 18 Wall. 
 
 (ft) Citizenship : Privileges an'd Immunities of Citizens. Corporations are not 
 citizens within this guaranty. Paul v. Virginia, 8 Wall. 168 ; Liverpool Ins. Co. v. 
 Massachusetts, 10 Wall. 566; Ducat v. Chicago, 10 Wall. 410; s. c. 48 111. 172;. 
 Phoenix Ins. Co. v. Commonwealth, 5 Bush (Ky.) 68 ; Slaughter v. Commonwealth^ 
 13 Gratt. 767 ; Cincinnati Mut. H. A. Co. v. Rosenthal, 55 111. 85 ; Philadelphia Ass. 
 v. Wood, 39 Penn. St. 73. And the Legislature may prohibit foreign corporations 
 from doing business within the State, or may impose conditions. Fire Department 
 v. Heltenstein, 16 Wise. 136. 
 
 An article in a State Constitution prohibiting any negro or mulatto from coming 
 into the State, and avoiding all contracts made with such as shall come in contrary 
 to such prohibition, conflicts with this guaranty of the United States Constitution^ 
 and is void. Smith v. Moody, 26 Ind. 299. 
 
 The meaning and extent of the clause in question was discussed and partially 
 stated, some of the rights of citizens were enumerated, and a State statute 
 which had the effect to tax citizens passing through the State was held void, in 
 Crandall v. Nevada, 6 Wall. 35. But a statute requiring a defendant removing out 
 of the State after suit brought to give security is valid. H.iney v. Marshall, 9 Md. 
 194. When a city ordinance imposed a license tax upon dealers in beer not manu- 
 factured in the city, but brought there for sale, but it not appearing that the beer in 
 the case at bar was manufactured outside the State, the tax was sustained. Down- 
 ham v. Alexandria Council, 10 Wall. 173. This case was argued upon the assump- 
 tion that the ordinance was aimed at dealers in beer manufactured outside of the 
 State, but the court held that the general question discussed was not raised by the 
 record, and therefore refused to pass upon it. But the same court held in a sub- 
 sequent case, that a discriminating State tax against non-resident traders coming 
 from othsr States is void. Ward v. Maryland, 12 Wall. 418. And this case un- 
 doubtedly overrules many decisions of State courts, some of which are cited infra. 
 
PRIVILEGES AND IMMUNITIES. 563 
 
 been made. * It has been held, on the third circuit, in apply- 
 ing the clause, that an act of the State of New Jersey limiting 
 
 * As to the effect of the clause in New remedies of its citizens in its own courts 
 
 York, see Frost v. Brisbin, 19 Wend. 11; cannot be applied to prevent the citizens of 
 
 Rogers v. Rogers, 1 Paige, 184. An incor- other States from suing in the courts of the 
 
 porated company is not a citizen within the United States in that State, for the recovery 
 
 meaning of the clause in the Constitution by of any property or money there to which they 
 
 which the citizens of each State are entitled may be legally or equitably entitled. The 
 
 to all privileges and immunities of citizens in Union Bank of Tennessee v. Jolly's Admin- 
 
 the several States. The People v. Iinlay, 20 istrators, 18 How. 504; confirming Suydara 
 
 Barb. 68. In connection with this it may be v. Broadnax, 14 Peters, 67. 
 noticed that the law of a State limiting the 
 
 in this note. As to taxation in this connection, see People v. Coleman, 4 Cal. 46 ; 
 Sing Sing v. Washburne, 20 Cal. 534 ; Erie R. R. v. New Jersey, 2 Vroom, 530 ; 
 Commonwealth v. Erie R. R. 62 Penn. St. 286; Hinsen v. Lott, 40 Vt. 133. It was 
 held in Shipper v. Penn. R. R. 47 Penn. St. 338, that a discrimination against 
 through freight in favor of local freight is valid. But in the State Freight Tax, 15 
 Wall. 232, the Supreme Court of the United States decided that a tax upon freight 
 taken up in the State and carried out, or taken up out of the State and carried in, 
 is unconstitutional, on the ground that it is an interference with commerce among 
 the States, over which Congress has exclusive control. * See further on this subject 
 the cases cited in note on " Taxation," subdivision " State and National." 
 
 It was held in Iowa that a provision in a municipal charter authorizing taxation 
 of u transient merchants " was valid. Mount Pleasant v. Clutch, 6 Clarke (la.) 546. 
 So far as this decision uphold? a State tax upon such persons citizens of other States, 
 which is not equally imposed upon the same class citizens of the State imposing the 
 tax, it is plainly overruled by the case of Ward v. Maryland, ubi supra. 
 
 When there are different provisions for valuing lands of non-resident and of 
 resident owners, there being no unjust discrimination against the former, the statute 
 does not violate the Constitution. Redd v. St. Francis County, 17 Ark. 416. A tax 
 of one fifteenth on dividends of non-resident stockholders y^as held unconstitutional, 
 in Oliver v. Washington Mills, 11 Allen, 268. 
 
 The XlVth and XVth Amendments of the National Constitution define the 
 status of citizenship, and more expressly state and define, even if they do not add 
 further protection to, the lights, privileges, and immunities of citizens. The first 
 section of the XlVth Amendment is as follows: " All persons born or naturalized in 
 the United States, and subject to the jurisdiction thereof, are citizens of the United 
 States and of the State wherein they reside. No State shall make or enforce any 
 law which shall abridge the privileges or immunities of citizens of the United 
 States, nor shall any Stato deprive any person of life, liberty, or property, without 
 due process of law, nor deny to any person within its jurisdiction the equal protec- 
 tion of the laws." The XVth Amendment provides that " The right of citizens of 
 the United States to vote shall not be denied or Abridged by the United States or 
 by any State on account of race, color, or previous condition of servitude." Con- 
 gress is empowered to enforce the provisions of both amendments by appropriate 
 legislation. 
 
 The XlVth Amendment, beyond douot, brings a large class of State acts, stat- 
 utes and transactions within the jurisdiction of the United States Supreme Court, 
 which before it were left exclusively to the jurisdiction of the State tribunals. Thus, 
 when it is claimed that a State law has the effect to deprive a person of life, liberty, 
 or property, without due process of law, the validity of such law may be examined 
 
564 PRIVILEGES AXD IMMUNITIES. 
 
 the right to take oysters and clams to actual inhabitants and 
 residents of the State, did not conflict with it, upon the ground 
 
 by the U. S. Supreme Court in the s ^me manner and to the same extent as that 
 court has been accustomed to pass upon the validity of State laws said to impair 
 the obligation of contracts, or to be ex post facto, or bills of attainder. There can be 
 no doubt that this position is correct, we say, notwithstanding some portions of the 
 argument of the prevailing opinion in the Slaughter House Case to be immediately 
 mentioned, seem to confine the entire operations and effects of the XlVth as well as 
 the XVth Amendment to the Negro race. But it is impossible that language so 
 broad as that used in the XlVth Amendment, " Citizens of the United States," 
 "any person," should be restricted to a small class of " citizens " and " persons," 
 namely, the Negroes. This amendment is most beneficial when reasonably con- 
 strued; it supplies a want which had existed in the Constitution from the outset, 
 and makes that instrument, so far as it protects private rights, symmetrical and com- 
 plete; it places the lives, liberty, and property of persons under exactly the same 
 safeguards and protection wt>ich the original Constitution afforded to their contracts. 
 To say that this broad provision, expressed in such inclusive terms, supplying such 
 a long-felt want, making the nation through its judiciary to afford the same pro- 
 tection to the citizen at home which it has always been able to afford by its executive 
 to the citizen abroad, to say that this provision is confined to the Negroes, as a 
 mere step in the progress of their emancipation from slavery, is to contradict at once 
 the meaning of language and the facts of history. 
 
 But whether the XlVth Amendment has adcled anything to the " rights, privi- 
 leges and immunities of citizens," whether it has created any new rights, whether it 
 has done anything more than to bring those which really existed before within the 
 jurisdiction and protection of the supreme national judiciary, and perhaps to enable 
 Congress to legislate directly for their protection, so that positive sanctions may be 
 wielded by the national administrative officials, is another and far different question. 
 From the prevailing opinion of a majority of the Supreme Court in the cases to be 
 immediately referred to, it would seem that the amendment has not increased, 
 altered, or added to the rights, privileges and immunities of citizens, but has only 
 given the protection we have described in the preceding sentence to those already 
 existing. 
 
 In two very recent cases decided in 1873, the Supreme Court construed these 
 amendments, and discussed, with a fullness hitherto found in no case, the meaning of 
 Art. iv, sec. 2, 1, and in an authoritative manner defined the classes of rights, priv- 
 ileges, and immunities which belong to citizens of the United States and of the 
 several States as such, laying down the criterion and test by which such rights can 
 be determined. The first of these cases was that of The New Orleans Slaughter 
 House, Live Stock &c. Association v. Crescent City &c. Co. At the Circuit below, 
 Mr. Justice Bradley decided that a statute of Louisiana giving to a certain corpora- 
 tion the exclusive privilege of slaughtering animals within certain fixed limits in- 
 cluding the city of New Orleans, was void, being in violation of the first section of 
 the XlVth Amendment. He held in substance that this amendment added to the 
 rights, &c., of citizens, that it was a new restriction upon the legislative power of 
 the States, and that among the rights, privileges, and immunities of citizens which 
 it protected, was the right to labor, to engage in any legal trade or calling. See the 
 case below reported in 1 Abb. U. S. R. 388. On appeal from his decree to the Su- 
 
PRIVILEGES AND IMMUNITIES. 565 
 
 that it would be going quite too far to construe the guaranty 
 of privileges and immunities of citizens as amounting to a 
 
 preme Court, it was reversed by a bare majority of the judges. The opinion of the 
 majority describes in an exhaustive manner the classes of rights, privileges, and 
 immunities which belong to citizenship as a status, whether it be of the nation or 
 of a State, and holds that only such rights, privileges, and immunities are .protected 
 by the amendment in question, or by the provision in the fourth article. The statute 
 in controversy was declared to be a reasonable police regulation, always within the 
 competency of State Legislatures. Some portions of this opinion although as it 
 seems to us utterly unnecessary to the decision of the case, or to the main argument 
 upon which that decision is based seem to regard the whole XlVth Amendment 
 as a provision passed for the sole purpose of 'securing the rights of freemen to the 
 former slaves, and as applicable to them alone. The dissenting judges adopted the 
 positions of Mr. Justice Bradley in the court below. See 16 Wall. 36. 
 
 The same questions were also presented and passed upon by the court in the 
 matter of Mrs. Myra Bradwell. Mrs. B. applied to be admitted to the Bar in 
 Illinois, and, so far as appeared, was possessed of all the qualifications required 
 except one, the laws of that State permitting male persons only to be admitted to the 
 Bar. She made her claim partly as a citizen of Vermont, residing in Illinois, partly 
 as a resident of Illinois, and partly as a citizen of the United States, invoking the 
 XlVth Amendment, and the provision of the fourth article, and urging that the law 
 of Illinois was in violation of these constitutional guaranties, and void. The court, 
 however, rejected her contention, and held that no right, privilege, or immunity of a 
 citizen of the United States, or of a citizen of another State, had been violated by 
 the Illinois legislation. See 16 Wall. 130. See also Bartemeyer v. Iowa, 18 Wall. 129. 
 
 Both the XlVth and the XVth Amendments were construed, and their effect 
 upon State laws conferring the electoral franchise was passed upon in the recent case 
 of United States v. Susan B. Anthony, tried at the Circuit Court of the U. S. for the 
 Northern District of New York, in the summer of 1873, before Mr. Justice Hunt, of 
 the U. S. Supreme Court. Miss Anthony had voted in Rochester at the previous 
 election for Member of Congress and/ for presidential electors, and was indicted 
 under a United States statute for such wrongful voting, the laws of New York 
 expressly restricting the electoral franchise to male citizens of the United States of 
 the age of twenty-one. The facts of her sex and of her voting were conceded. Tho 
 court held that neither the XlVth nor the XVth Amendment affected the exclusive 
 control of the States over the electoral franchise, except in the single matter of 
 " race, color, or previous condition of servitude ;" that the first section of the XlVth 
 Amendment did not in any manner affect the electoral franchise aor the electoral 
 capacity ; and that the franchise, capacity, or right of voting was not one of the 
 "privileges or immunities- of citizens of the United States'' protected by that section, 
 against State interference. Another indictment against the election inspectors who 
 permitted Miss Anthony to vote, also resulted ; n a judgment of conviction. This 
 case of Miss Anthony presented another very interesting question. The facts were 
 all conceded by the accused in open court. The court, therefore, after an argument 
 upon the law, held that no question was involved except a pure question of law, and 
 directed the jury to find a verdict of guilty, refusing to allow the jury to be polled. 
 A motion in arrest' of judgment on account of such direction and refusal was after 
 argument overruled. 
 
 For a quaere whether under the XVth Amendment Congress can pass laws to 
 operate upon private individual?, see U. S. v. Souders, 2 Abb. U. S. R. 456, and see 
 
566 PRIVILEGES AND IMMUNITIES. 
 
 grant of a co-tenancy in the common property of a State to the 
 citizens of all the other States ; and Mr. J. Washington said, 
 
 The inquiry is, What are the privileges and immunities of citizens in the 
 several States 1 We feel no hesitation in confining these expressions to those 
 privileges and immunities which are in their nature fundamental ; which belong, 
 of right, to the citizens of all free governments ; and which have at all times 
 been enjoyed by all the citizens of the several States which compose thia Union, 
 from the time of their becoming free, independent, and sovereign. What these 
 fundamental principles are, it would, perhaps, be more tedious than difficult to 
 enumerate. They may, however, be all comprehended under the following 
 general heads : protection by the Government ; the enjoyment of life and liberty, 
 \vith the right to acquire and possess property of every kind, and to pursue 
 and obtain happiness and safety ; subject, nevertheless, to such restraints as the 
 Government may justly prescribe for the general good of the whole. The right 
 of a citizen of one State to pass through or reside in any other State, for pur- 
 poses of trade, agriculture, professional pursuits, or otherwise ; to claim the 
 benefit of the writ of habeas corpus ; to institute and maintain actions of any 
 kind in the courts of the State; to take, hold, and dispose of property, either 
 real or personal ; and an exemption from higher taxes or impositions than are 
 paid by the other citizens of the State may be mentioned as some of the par- 
 ticular privileges and immunities of citizens, which are clearly embraced by the 
 general description of privileges deemed to be fundamental ; to which may be 
 added, the elective franchise, as regulated and established by the laws or Consti- 
 tution of the State in which it is to be exercised. These and many others 
 which might be mentioned are, strictly speaking, privileges and immunities ; 
 and the enjoyment of them by the citizens of each State, in every other State, 
 'was manifestly calculated (to use the expression of the preamble of the corre- 
 
 People v. Brady, 40 Cal. 198, where it was decided that the XlVth Amendment is 
 addressed alone to the States in their corporate capacity, that its prohibitory clauses 
 execute themselves by nullifying adverse State legislation, arid that Congress ob- 
 tained no power under it to pass laws operating affirmatively upon individuals ; but 
 in U. S. v. Canter, 2 Bond, 389, the act of Congress of May, 31, 1870 (commonly called 
 the Force Bill), for punishing the interference by individuals with the right of vot- 
 ing, was held valid. 
 
 The following are State decisions involving a construction of these amendments 
 and of congressional legislation based thereon the " Civil Rights Bill " and the 
 "Force Bill." 
 
 A State statute prohibiting intermarriage between whites and blacks was held 
 valid in Tennessee, notwithstanding the amendments and this legislation. Doc 
 Lomas v. State, 3 Heisk. 287. The " Civil Rights Bill " is not violated by provisions 
 of municipal legislation maintaining separate schools for whites and blacks. Dallas 
 v. Fosdick, 40 How. Pr. 249 ; State v. McCann, 21 Ohio St. 1 98. In People v. Brady, 
 40 Cal. 198, a State statute prohibiting the testimony of Chinese was held valid, so 
 much of the " Civil Rights Bill " as was opposed to such legislation was pronounced 
 unconstitutional, and the XlVth Amendment was declared not applicable to the 
 statute which was said to be a valid police regulation; People v. Washington, 36 
 Cal. 658, was overruled. 
 
PRIVILEGES AND IMMUNITIES. 567 
 
 spending provision in the old Articles of Confederation) " the better to secure 
 and, perpetuate mutual friendship and intercourse among the people of the differ- 
 ent States of the Union." 
 
 But we cannot accede to the proposition which was insisted on by the coun- 
 sel, that under this provision of the Constitution the citizens of the several 
 States are permitted to participate in all the rights which belong exclusively to 
 the citizens of any other particular State, merely upon the ground that they are 
 enjoyed by those citizens; much less, that in regulating the use of the common 
 property of the citizens of such State, the Legislature is bound to extend to the 
 citizens of all the other States the same advantages as arc secured to their own 
 citizens." * 
 
 The Supreme Court of the United States has said, without 
 determining the general interpretation of the phrase " immuni- 
 ties and privileges," that " according to the express words and 
 clear meaning of this clause, no privileges are secured by it 
 except those which belong to citizenship. Rights attached by 
 law to contracts by the usage of the place where such contracts 
 are made or executed, wholly irrespective of the citizenship of 
 the parties to those contracts, cannot be deemed privileges of a 
 citizen." According to the law of Louisiana, a community of 
 acquets, or gains, is created between husband and wife when the 
 marriage is contracted within the State, or when the marriage 
 is contracted out of the State and the parties afterwards go 
 into Louisiana to live. But the privilege thus given to the 
 wife does not extend, by virtue of this clause in the Federal 
 Constitution, to a native-born female citizen of Louisiana who 
 was married in Mississippi, and was domiciled with her hus- 
 band during the marriage. Land acquired by the husband, 
 during the marriage, in Louisiana, was held not subject to the 
 Louisiana law in respect to the community of acquets or gains, 
 upon the ground that the right was one which attached to the 
 contract of marriage which the State of Louisiana had a right 
 to regulate, and was not the personal right of a citizen.f 
 
 In New Jersey, it has been decided that a tax laid upon 
 the agents of foreign insurance companies from other States, 
 doing business within the State, does not conflict with the Fed- 
 eral Constitution in this particular, both for the reason that it 
 was competent for the Legislature to impose a tax on citizens 
 
 * Corfield v. Coryell, 4 Washington's C. f Conner v. Elliott, 18 How. 691. 
 
 C. Reports, p. 381. 
 
568 FUGITIVES FROM JUSTICE. 
 
 of other States as a substitute for other safeguards of the busi- 
 ness to which, as non-residents, they could not be made sub- 
 ject ; and also, because corporations, though citizens for the 
 purpose of giving jurisdiction to the Federal courts, were not 
 citizens in the ordinary sense of the word.* 
 
 The most important question, probably, that can arise under 
 this clause, is that which relates to the protection of slave prop- 
 erty while in transitu through .a free State from one slave State 
 to another slave State, or while the owner is an undomiciled 
 sojourner in a State where slavery is absolutely prohibited, or 
 when carried into a free State from unavoidable necessity, as 
 stress of weather. This grave and perplexing subject I have 
 already considered in regard to the doctrine of comity between 
 the States ; f but it presents itself in a more difficult form under 
 this clause of the Constitution. As, however, the question is 
 now under adjudication in our State tribunals, in a way which 
 must bring it directly to the cognizance of the Supreme Court 
 of the United States, where indeed it is understood to have 
 been already incidentally discussed, any examination of it here 
 would be premature. J 
 
 Fugitives from Justice. Art. iv, sect. 2, 3. The provis- 
 ion in regard to the delivery or extradition of fugitive criminals 
 from other States is very often acted upon, but not many de- 
 cisions have been made in regard to it. In New Jersey it has 
 been said that, in considering this clause, it is material to ob- 
 serve that it does not contain a grant of power. It confers no 
 right. It is the regulation of a previously existing right. It 
 only makes obligatory upon every member of the confederacy, 
 the performance of an act w r hich previously was of doubtful 
 obligation. || 
 
 * Tatem v. Wright, 3 Zabriskie, p. 429. on appeal to the Federal tribunal, the case 
 
 f Ante, p. 62. " will, in all probability, call for a settlement of 
 
 \ The Lemmon Case, as it is commonly the law of this important question, 
 
 called, People v. Lemmon, 5 Sandf. 681, pre- | In the Matter of "William Fetter, 3 Za- 
 
 sents the transit question in one aspect dis- briskie, p. 315, where several cases on the 
 
 tinctly, and is now before the Supreme Court subject are collected. On the subject of this 
 
 of the State of New York on appeal. The clause, see also Ex parte Smith, before Mr. 
 
 case known as the Dred Scott Case, recently Justice M'Lean, cited in 1 Kent Com. 8th edit., 
 
 decided by the Supreme Court of the United vol. i, p. 642. Also, In re Kaine, 14 Howard, 
 
 States, is understood to have incidentally dis- 103 ; State v. Buzine, 4 Harrington, 572 ; State 
 
 cussed this subject ; but we have as yet no v. Schlemn, 4 Harrington, 577 ; Taylor v. 
 
 authoritative report of the judgment of the Taintor, 16 Wall. 366. 
 court. If the People v. Lemmon shall go up 
 
FUGITIVES FROM SERVICE. 569 
 
 It "has been decided in New York and New Jersey, that to 
 enable a magistrate to arrest and examine an alleged fugitive 
 from justice from another State, it must be distinctly alleged 
 by a complaint in writing, on oath, that a crime has been com- 
 mitted in the foreign State, that the accused has been charged 
 in such. State with the commission of such crime, and that he 
 has fled from such State, and is found here. These facts must 
 not be left to inference. * 
 
 In New York, it has been said that when a prisoner is brought 
 up on habeas corpus, and it appears that he has been arrested as 
 a fugitive fr,om justice, by a warrant from the executive of one 
 State on the requisition of the executive of another State, 
 under the Constitution and laws of the United States, the court 
 or judge will not inquire into the probable guilt of the accused. 
 The only inquiry is, whether the warrant states that the fugi- 
 tive has been demanded by the executive of the State from 
 which he is alleged to have fled ; and that a copy of the 
 indictment or affidavit charging him with the crime and cer- 
 tified by the executive demanding him v as authentic, has been 
 presented, f 
 
 It has been decided in New Jersey, that if a fugitive from 
 justice, for whose delivery requisition is made under the Con- 
 stitution of the United States, be in actual confinement on 
 criminal or civil process in the State to which he has fled, he 
 cannot be given up till the justice of that State be satisfied. 
 The Constitution refers to fugitives at large only.J 
 
 Fugitives from Service. Art. iv, sect. 2, 3. ^This clause, 
 which has been twice acted on by Congress, once in the enact- 
 ment of the fugitive slave law of 1793, and once in that of the 
 year 1850, owing to the organization of political parties in 
 this countiy, has been a fertile source of discussion, of a class 
 into which this work is not intended to enter. I confine my- 
 self to stating the most authoritative exposition of the subject 
 which has as yet been made. There can be no serious legal 
 question that it is the duty of all parts of the Union to receive 
 
 * In the Matter of Edward Hey ward, 1 f In the Matter of Clark, 9 Wend. 212. 
 
 Sandford, 701 ; in the Matter of William Fet- \ In the Matter of Troutma.n, 4 Zabriskie,. 
 ter, 3 Zabriskie, p. 315. 634. 
 
570 RELIGIOUS FREEDOM. 
 
 their interpretation of the Federal charter from the Supreme 
 Court of the United States, and to give to the provisions of the 
 instrument, as expounded by that tribunal, in the legitimate 
 exercise of the functions assigned to it by the Constitution, 
 their full and fair effect. It has been decided then, by the 
 Supreme Court, in regard to the fugitive slave law of 1793, 1. 
 That under and in virtue of the Constitution of the United 
 States, the owner of a slave is clothed with entire authority, in 
 every State in the Union, to seize and recapture his fugitive 
 slave, wherever he can do it without illegal violence or a breach 
 of the peace. 2. That the Federal Government is .clothed with 
 appropriate authority and functions to enforce the delivery of 
 a fugitive slave on claim of the owner, and has properly exer- 
 cised its authority in the act of 12th February, 1793. 3. That 
 any State law or regulation which interrupts, impedes, limits, 
 embarrasses, delays, or postpones the right of the owner to the 
 immediate possession of the slave and the immediate command 
 of his service, is void.* 
 
 Since this decision was made upon the law of 1793, another 
 law on the subject has been passed in the year 1850, giving 
 the master more stringent remedies for the recapture of his 
 fugitive slave. No question in regard to it has as yet been de- 
 cided by the Supreme Court of the United States, thpugh its 
 constitutionality has been generally supposed to be disposed of 
 by the judgment above cited.f In the State of Wisconsin, 
 however, its constitutionality has been denied, in an elaborate 
 judgment, on the ground that the article of the Constitution on 
 which the law is based is merely a clause of compact between 
 the States, by which the free States are bound to provide 
 proper legislation for the return of fugitive slaves, but confer- 
 ring no power on the Federal Government.^! 
 
 Religious Freedom. Amendments, art. i. The Constitu- 
 
 * Prigg v. The Commonwealth of Penn- Court of Massachusetts, in the Case of Sims, 
 
 sylvania, 16 Pet. 540; Moore v. The People Law Reporter, vol. iv, N. S. p. 17, per Shaw, 
 
 of the State of Illinois, 14 How. U. S. 13. C. J. The constitutionality of the act of 
 
 In New York, on the subject of this 1850 was also assumed in the case of the 
 
 clause, see Jack v. Martin, 12 Wend. 311; United States v. Stowell, an indictment for 
 
 s. c. 14 Wend. 507 ; in Massachusetts, Com- obstructing the marshal in the service of 
 
 monwealth v. Tracy, 5 Metcalf, 536; and process under the act. 2 Curtis, 153. 
 Kent Com. vol. i, p. 641, 8th edition. \ Duer, Cons. Jurisprudence, p. 271. 
 
 f So it was declared by the Supreme 
 
FREEDOM OF SPEECH. 571 
 
 * 
 
 tion contains no more important clause than that prohibiting 
 all laws prescribing religious tests, establishing religion, or in- 
 terfering with its free exercise ; and fortunately, thus far, the 
 wise spirit of our people has come up to the sagacity and fore- 
 sight of. our ancestors. If in our future history our political 
 toleration shall keep pace with our moderation and forbearance 
 in religious matters, we may hope to escape the evils that have 
 thus far proved so formidable, indeed so fatal, to all free Gov- 
 ernments. It may be remarked, however, that the recent or- 
 ganization of a distinct territorial Government about to claim 
 admission as a State, exclusively occupied by settlers who de- 
 clare polygamy to be one of their fundamental institutions, 
 presents the problems connected with this matter in a new 
 aspect, and will undoubtedly put our principle of absolute 
 toleration to a very severe test. 
 
 Freedom of Speech and of the Press. Amendments, art. i. 
 The only important questions that have been raised on this 
 clause, grew out of the act of 14th July, 1798, c. 91, commonly 
 called the Sedition Act, making it penal to publish false, scan- 
 dalous, and malicious writings against the Government of the 
 United States. The act was extremely unpopular, and was one 
 of the causes of the downfall of the Federal party. The Con- 
 stitutional question has never been settled ; and it may be 
 again agitated, in a different state of the public mind.* 
 
 Search-warrants and Seizures. Amendments, art. iv. 
 The controversy in regard to general warrants, which, in 1763, 
 were pronounced in England to be illegal and void for uncer- 
 tainty^ was very familiar to the mind of the framers of our 
 Government ; and their consideration of the subject led to the 
 insertion of this and the analogous clauses in the State and 
 Federal Constitutions. The only serious controversy that has 
 arisen in regard to them, grew out of the Alien Act of 1798, 
 ch. 75, which authorized the President o'f the United States to 
 order all dangerous aliens out of the republic, and in case of 
 their refusal to comply with the order to depart, to imprison 
 
 * See the Virginia Report and Resolutions in 1799 ; 2 Tucker's Black. Comm. app. note 
 
 of the Virginia Legislature, in December, a, pp. 11 to 30. 
 
 1798, and January, 1800; Resolution of the f Money v. Leach, 3 Burr. 1743; Bell v. 
 
 Legislature of Massachusetts and Kentucky Clapp, 10 J. R. 263; Sailly v.Smith,HJ. R.600. 
 
572 ONLY ONE TRIAL FOR CRIMES. 
 
 them.* The Alien Act shared the fate of the Sedition Act in its 
 unpopularity, but the question of its constitutionality is still 
 open. It has been held under this clause, that a search-warrant 
 to be legal must state the time, place, and nature of the offence 
 charged, with reasonable certainty.f 
 
 Only one Trial for Offences, (a) Amendments, art. v. 
 "The jeopardy spoken of in this clause," said Washington, J. r 
 " can be interpreted to mean nothing short of the acquittal or 
 conviction of the prisoner, and the judgment of the court 
 thereupon." By this provision a party is absolutely protected 
 from being tried a second time, after he has been once con- 
 victed or acquitted. Mr. J. Story has said, on the first circuit, 
 " Upon the most mature deliberation, I am of opinion that the 
 court (the C. C. U. S.) does not possess the power to grant a 
 new trial, in a case of a good indictment, after trial by a com- 
 
 * See 1 Tucker's BL Com. app. 301 to 304. f Exparte Burford, 3 Cranch, 448. 
 
 (a) Constitutional Provisions. The following are all the provisions in the exist- 
 ing State Constitutions : 
 
 No person shall for the same offence be twice put in jeopardy of [his] life or 
 limb. Alabama, I, 11; Delaware, I, 8; Kentucky, XIII, 14; Maine, I, 8; Pennsyl- 
 vania, IX, 10 ; Tennessee, I, 10. No person shall be [subject to be] twice put in 
 jeopardy [of life or liberty, West. Va.] for the same offence. California, I, 8 ; Flor- 
 ida, Dec. of R. 9 ; Illinois, II, 10 ; Indiana, I, 14 ; Kansas, Bill of R. 10 ; Nevada, I, 
 8 ; New York, I, 6 ; Ohio, I, 10 ; Oregon, I, 12 ; West Virginia, III, 5. No person 
 shall after acquittal [upon the merits, Mich.] be tried for the same offence. Iowa, I r 
 12; Michigan, VI, 29; New Jersey, I, 10; Rhode Island, I, 7. No person for the 
 same offence shall be put twice in jeopardy of punishment. Minnesota, 1, 7 ; Nebraska, 
 I, 8 ; Wisconsin, I, 8. No person after having been once acquitted by a jury, for the 
 same offence shall be again put in jeopardy of life or liberty; but if in any criminal 
 prosecution the jury be divided in opinion, the court before whom the trial may be 
 had, may in its discretion discharge the jury, and commit or bail the accused for 
 trial at the same or next term of said court. Arkansas, I, 9 ; [at the next term of 
 said court] Missouri, I, 19. No person shall be put in jeopardy of life or liberty 
 more than once for the same offence, save on his or her own motion for a new trial 
 after conviction, or in case of mistrial. Georgia, I, 8. The accused * * . * shall 
 not be tried twice for the same offence. Louisiana, I, 6. No person's life or liberty 
 shall be twice placed in jeopardy for the same offence. Mississippi, I, 5. No subject 
 shall be liable to be tried after an acquittal for the same crime or offence. New 
 Hampshire, Pt. I, 16. No person, after having been once acquitted by a jury, shall 
 again for the same offence be put in jeopardy of his life or liberty. South Carolina, 
 I, 18. No person for the same offence shall be twice put in jeopardy of life, nor 
 shall a person be again put upon trial for the same offence after a verdict of not 
 guilty. Texas, I, 12. 
 
ONLY ONE TRIAL FOR CRIMES. 573 
 
 potent and regular jury, whether there be a verdict of acquittal 
 or conviction." * The rule does not apply, however, to cases 
 where the jury disagree and are discharged, or where judgment 
 is arrested, or a new trial granted in favor of the prisoner. 
 There must be a good trial. So, insanity of one of the jurors 
 is a good cause for discharging the jury without the consent of 
 the prisoner or of his counsel. Such discharge is in the discre- 
 tion of the court, and cannot form the subject of a plea in bar 
 to the further trial of the prisoner. () 
 
 * United States v. Gilbert, 2 Sumner, 60 ; The People v. Comstock, 8 Wend. 549 ; The 
 
 Davis, J., dissented. United States v. Has- The People v. Stone, 5 Wend. 39. 
 kell & Francois, 4 Wash. C. C. R. 402, 410 ; In Massachusetts the Court has power to 
 
 United States v. Perez, 9 Wheat. 579 ; Com- grant a new trial on the motion of one con- 
 
 monwealth v. Cook, 6 S. and Rawle, 577 ; 1 victed of a capital offence, sufficient cause 
 
 Dever. 276 ; United States v. Gilbert, 2 Sum- being shown for it. Commonwealth v. Green, 
 
 ner, 60; United States v. Daniel, 6 Wheat. 17 Mass. 515. 
 542; The People v. Goodwin, 18 J. R. 187; 
 
 (a) Jeopardy. When the Jeopardy begins. When the parties are at issue upon a 
 valid indictment, in a court of competent jurisdiction, and the proceedings have been 
 regular to that point, the jeopardy has begun. Grogan v. State, 44 Ala. 9 ; Morgan 
 v. State, 13 Ind. 215. And a person is in complete jeopardy,, as a general rule, when 
 the foregoing acts having taken place, a jury has been impaneled and sworn to try 
 him. lUd. ; People v. McGowan, 17 Wend. 386 ; State v. Nelson, 26 Ind. 366 ; Com- 
 monwealth v. Tuck, 20 Pick. 356 ; People v. Webb, 38 Cal. 467 ; People v. Cook, 10 
 Mich. 164 ; State v. Callendine, 8 Iowa, 288. 
 
 But when the tribunal has no jurisdiction there is no jeopardy. Flournoy v. State, 
 16 Tex. 30 ; O'Brian v. State, 12 Ind. 369 ; People v. Tyler, 7 Mich. 161. Nor where 
 it has no final jurisdiction. State v. Hodgkins, 42 N. H. 474. Nor where, there 
 being concurrent jurisdiction with a superior court, the magistrate had power to 
 sentence or bind over, and he adjudged the prisoner guilty, but only bound him over 
 to the higher court. Commonwealth v. Boyle, 14 Gray, 3 ; Commonwealth Y. Many, 
 14 Gray, 82. 
 
 When the former prosecution was got up by collusion between the accused and 
 the prosecutors to screen him from punishment, the proceedings are in fraud of the 
 law, and constitute no jeopardy. State v. Reed, 26 Conn. 202 ; State v. Green, 16 
 Iowa, 239 ; Commonwealth v. Alderman, 4 Mass. 477. 
 
 Notwithstanding the foregoing general rule, it is settled that even after all the 
 facts contemplated by the rule have existed, the jury may still he discharged, and a 
 new trial will not thereby be barred ; in other words, although the jeopardy may have 
 begun, yet it is not complete within the constitutional provision. The jury may thus 
 be discharged, and a new trial had in the following cases : 
 
 Inability of the Jury to agree. Dobbins v. State, 14 Ohio, N. S. 493 (a capital 
 case) ; Moseley v. State, 33 Tex. 671 ; State v. Crane, 4 Wise. 400; Williford v. State, 
 23 Geo. 1; State v. Walker, 26 Ind. 346 ; State v. Nelson, Ib. 366; State v. Prince, 
 63 N. C. 529 ; Winsor v. Regina, L. R. 1 Q. B. 289 ; but see Miller v. State, 8 Ind. 
 325 ; Reese v. State, 11. 416. 
 
 Sickness of a juror or of the judge. Atkins v. State, 16 Ark. 568; Lee v. State, 
 
574 DUE PROCESS OF LAW. 
 
 Due Process of Law. Amendments, art. v. It seems to 
 be now well settled that these words are equivalent to the 
 
 26 Ark. 260; Commonwealth v. Fells, 9 Leigh, 613; Hector v. State, 2 Mo. 166; 
 Nugent v. State, 4 Stew. & Port. 72 ; but see Rulo v. State, 19 Ind. 298. 
 
 Ending of the term without a verdict. State v. Tilletson, 7 Jones Law, 114; 
 State v. Battle, 7 Ala. 259 ; Mahala v. State, 10 Yerg. 532 ; per contra, see Wright v. 
 State, 5 Ind. 290. 
 
 Misconduct of Jurors. McKenzie v. State, 26 Ark. 334. 
 
 Defect of Indictment. When, from defect of indictment, or by variance between 
 proof and indictment, a conviction cannot be sustained, and the jury is discharged, 
 or the prisoner is acquitted, there is no jeopardy. People v. McNealy, 17 Cal. 332 ; 
 People v. Cook, 10 Mich. 164 ; Kohlheimer v. State, 39 Miss. 548 ; Black v. State, 36 
 Geo. 447 ; Mount v. Commonwealth, 2 Duv. (Ky.) 93 ; State v. Kason, 20 La. Ann. 48. 
 
 Where a jury was sworn by inadvertence, but dismissed before arraignment, there 
 was no jeopardy. TJ. S. v. Riley, 5 Blatch. C. C. 204. 
 
 It is always within the discretion of the court to discharge the jury, and abuse 
 must be shown. Price v. State, 36 Miss. 531 ; Barrett v. State, 35 Ala. 406 ; Hoffman 
 v. State, 20 Md. 425. And in case of a misdemeanor, even the improper discharge of 
 the jury is not equivalent to an acquittal. Regina v. Cbarlesworth, 1 B. & S. 460. 
 
 It is now settled that after a conviction, a new trial, obtained at the instance of 
 the accused, is not a second jeopardy. State v. Behimer, 20 Ohio, N. S. 572. Or 
 when the proceedings are set aside, on objection of the accused, for irregularity or 
 defect in law. People v. Olwell, 28 Cal. 456; Younger v. State, 2 W. Va. 579. And 
 in case of reversal for defective verdict and unauthorized sentence, there may be a 
 new trial. Turner v. State, 40 Ala. 21 ; Jeffries v. State, 40 Ala. 381 ; State v. Red- 
 man, 17 Iowa, 329. But where the proceedings are regular until the sentence, and a 
 wrong sentence is pronounced, and judgment is in consequence reversed, there can 
 be no new trial. Shepherd v. People, 25 N. Y. 406 ; Lowenberg v. People, 27 N. Y. 
 336 ; Hartung v. People, 26 K Y. 167 ; Elliott v. People, 13 Mich. 365. 
 
 The accused may waive his right to object to the discharge of the jury. Mc- 
 Corkle v. State, 14 Ind. 39 ; Morgan v. State, 3 Sneed, 475 ; Hughes v. State, 35 
 Ala. 351. 
 
 The accused has a right to have the proceedings go on unless good cause is shown 
 for the delay, and &nolle prosequi entered by the prosecuting officer because he cannot 
 procure sufficient evidence, will operate as an acquittal. State v. Stebbins, 29 Conn. 
 463. When on a trial for an assault with intent to murder, after the impaneling of 
 a jury a nolle prosequi as to the intent to murder was entered by the prosecuting 
 officer without consent of the accused, this was held equivalent to an acquittal of 
 that part of the charge. Baker v. State, 12 Ohio, N. S. 214. Discharge in bastardy 
 proceedings by reason of failure of relator to appear, held no bar to subsequent pro- 
 ceedings. State v. Barbour, 17 Ind. 526. A discharge on a preliminary examination 
 is a bar to a subsequent information, in Michigan. Morrissey v. People, 11 Mich. 
 327. It is held, in Kentucky, that when an indictment is dismissed with consent of 
 the court, even after the jury is sworn and impaneled, there is no jeopardy, because 
 there has been no trial. Wilson v. Commonwealth, 3 Bush (Ky.) 105 ; but this is 
 clearly opposed to the general course of decisions as shown by the cases before cited. 
 
 Where on an indictment for murder the prisoner was convicted of manslaughter, 
 and the verditt was set aside on his objection, it was held that he could not be tried 
 
'.fl/Tn*. '" 
 DUE PROCESS OF LAW. 
 
 *r;9 
 
 phrase " law of the land," which we have elsewhere examined, 
 and the value of which, under our State Constitutions, as one 
 of the most important fundamental guaranties of individual 
 
 * 
 
 again for murder, as he had virtually been acquitted of that charge, but might be 
 tried for manslaughter. People v. Gilmore, 4 Cal. 376 ; see Livingston's Case, 14 
 Gratt. 592 ; State v. Ross, 29 Mo. 32 ; State v. Tweedy, 11 Iowa, 350 ; Guenther v. 
 People, 24 N. Y. 100; State v. Kuttleman, 35 Mo. 105; State v. Martin, 30 Wise. 216; 
 but per contra, see State v. Behimer, 20 Ohio, N. S. 572. Where there has been an 
 acquittal on one count of an indictment charging a crime, there may be a subsequent 
 trial on another count charging an attempt to commit such crime. Major v. State, 
 4 Sneed, 597. An acquittal must be upon an indictment sufficient in law, or it is no 
 bar. Black v. State, 36 Geo. 447. But if the indictment is good, acquittal will be 
 a bar, although obtained on motion on the ground of alleged defect in the indict- 
 ment. Ibid. ; and see State v. Elden, 41 Me. 165, where it was held that if thsre had 
 been a verdict of guilty, though the indictment was dismissed and the prisoner dis- 
 charged, it was a bar. 
 
 Where an indictment stands good by reason of the accused not having seasonably 
 taken advantage of its defects, e. g., by demurrer, he is in jeopardy, and an acquittal 
 is a bar although the indictment would have been adjudged defective on demurrer. 
 State v. Reed, 12 Md. 253. Where the prosecut'on is put to an election between two 
 counts, and elects to proceed on a count which is bad and is quashed, and a nolle 
 prosequi is entered as to the other count, the accused has not been in jeopardy, since 
 by the election he never was on trial on the good counts. Joy v. State, 14 Ind. 
 139. 
 
 It seems the accused cannot be punished twice for the same offence, once under a 
 city ordinance and once under the general law. State v. Cowan, 29 Mo. 330 ; but see 
 Waldo v. Wallace, 12 Ind. 569. But though not twice punishable for the same 
 offence, a person may be twice punished for the same act if it constitutes two 
 offences, e. g., keeping a tippling house, and being a common seller. State v. Inness, 
 53 Me. 536. The same act may be an offence against the State and the United 
 States, and an acquittal by a court martial is no bar to a trial before a State court. 
 State v. Rankin, 4 Cold. (Tenn.) 145. - 
 
 The provision of the Constitution against inflicting punishment twice for the 
 same offence is not violated by an act allowing the recovery of punitive damages by 
 the personal representatives of a person killed by negligence, in addition to the 
 criminal liability. Chiles v. Drake, 2 Mete. (Ky.) 146. A person cannot be prose- 
 cuted for the larceny of part of the articles taken at one time, and afterwards tor the 
 larceny of the rest. Jackson v. State, 14 Ind. 327. 
 
 An act giving the State the right of appeal after conviction, is void. State v. Yan 
 Horton, 26 Iowa, 402. For a statement of the general object of the constitutional 
 provision and of the common law maxim, see Ex parte Lange, 18 Wall. 163. 
 
 As to* legal identity of offences, see Wilson v. State, 24 Conn. 57 ; State v. Nutt, 28 
 Vt. 598; State v. Wightman, 26 Mo. 515; State v. Stanley, 4 Jones Law, 290; Com- 
 monwealth v. Keefe, 7 Gray, 332 ; State v. Keogh, 13 La. Ann. 243 ; State v. Andrews, 
 27 Mo. 267; People v. Saunders, 4 Park. Cr. 196; People v. Krummer, Ib. 217; 
 Wininger v. State, 13 Ind. 540; State v. Lindley, 14 Ind 430; State v. Warner, 14 
 Ind. 572 ; Commonwealth v. Lahy, 8 Gray, 459 ; Commonwealth v. Hudson, 14 Gray, 
 11; Commonwealth v. Bubser, 14 Gray, 83; Commonwealth v. Shea, 14 Gray, 886; 
 Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680. 
 
57G LAW OF THE LAND. 
 
 rights, we have already endeavored to state and to explain.* 
 And so it has been expressly determined. 
 
 In Rhode Island, on the first circuit, Mr. Justice Curtis has 
 decided under the Constitution of that State, that the phrase 
 " law of the land," is equivalent to " due process of law," and 
 that in it is necessarily implied and included the right to an* 
 swer to and to contest the charge, and the consequent right to 
 be discharged from it, unless it be proved ; and where a law of 
 the State of Rhode Island, passed in 1852, designed to prevent 
 the sale of intoxicating liquors, required the accused, before he 
 could answer to or contest the charge, to give security in the 
 sum of two hundred dollars, with sureties to pay all fees and 
 costs adjudged against him, it was held that this provision con- 
 . flicted with the Constitution, and rendered the law void, f 
 
 In 1853 the State of Rhode Island passed another act, en- 
 titled " An act for the more effectual suppression of drinking 
 houses and tippling shops," authorizing a seizure of the prop- 
 erty ; but because it did not provide for notice to the owner, 
 by due legal means, of the nature and cause of the accusation, 
 nor for a trial of the question whether the liquors seized were 
 held for sale in violation of law, the act was declared to violate 
 the Constitution of the State ; and this decision was adhered to 
 and acted upon in the United States Circuit Court, by Mr. Jus- 
 tice Curtis, on the ground that it belongs to the highest judicial 
 tribunal of a State to interpret its Constitution, and to deter- 
 mine how far and in what respects any act of the Legislature is 
 in conflict therewith, and therefore inoperative. J A full and 
 careful examination of the decisions of our courts upon the 
 various temperance laws of the different States, would be of 
 extreme interest, as exhibiting the operation of our system of 
 constitutional law, and particularly of this most important 
 clause. 
 
 But there are exceptions to the universal application of the 
 rule giving to persons in all cases the benefit of this construc- 
 tion of the constitutional guaranty of the law of the land. The 
 Supreme Court has said that though the words due process of 
 
 * Story on Cons. 1*789. \ Greene v. James, 2 Curtis, 189 ; Webster 
 
 f Greene v. Brings, 1 Curtis, 311. v. Cooper, 14 Howard, 488. 
 
TRIAL BY JURY. 577 
 
 law generally imply and include actor, reus,judex, regular alle- 
 gationS7 opportunity to answer, and a trial according to some 
 settled course of judicial proceedings, this is not universally 
 true. To ascertain whether any proceeding is due process of 
 law, the Constitution itself is first to be examined to see 
 whether, any of its provisions be disregarded, and if not, then 
 we must look to the settled usages and modes of proceeding 
 existing in the common and statute law of England at the time 
 of the emigration of our ancestors ; and following this train of 
 
 o * o 
 
 reasoning, it has been decided that a distress- warrant against a 
 defaulting collector of the revenue, is not inconsistent with the 
 
 O / 
 
 provision which prohibits a citizen from, being deprived of his 
 property without due process of law, upon the ground that the 
 ancient common law of England recognized a summary remedy 
 for the recovery of debts due the Government.* 
 
 Compensation for Private Property. Amendments, art. v. 
 In regard to the State Constitutions, we have already considered 
 this important subject elsewhere. This clause in the Federal 
 charter, like all the' other amendments to the instrument, has 
 been adjudged by the Supreme Court to apply only to the 
 Government of the United States, and to have no operation on 
 the State Governments, f 
 
 Trial by Jury. Amendments, art. vi and vii. The right of 
 trial by jury under the Constitution of the United States is 
 secured by three provisions, to be found in the second section 
 of the third article, and the sixth and seventh amendments. 
 The two former of these relate to criminal cases ; the latter, to 
 civil causes. " One of the strongest objections originally taken 
 to the Constitution of the United States," says the Supreme 
 Court of the United States, % " was the want of an express pro- 
 vision securing the right of trial by jury in civil cases." This 
 gave rise to the seventh amendment. 
 
 The provision has been frequently applied. So, where a 
 
 * Murray's Lessee v, Hoboken Land and ernment ; " see also, as to this clause, Green 
 
 Improvement Co. where the subject is elabo- v. Biddle, 8 Wheat. 89. Mitchell v. Harmony, 
 
 rately examined by Curtis, J., 18 Howard, 272. 13 Howard, 115, discusses the question as to 
 
 f Barron v. Mayor, <fec. of Baltimore, 7 the extent of the power of a military corn- 
 Peters, 250. "The amendments," says Mar- mander to take private property in time of 
 shall, C. J. , " contain no expression indicating war. 
 
 an intention to apply them to the State Gov- \ Parsons v. Bedford, 3 Peters, 446. 
 37 
 
578 TRIAL BY JURY. 
 
 law of Ohio declared that an occupying claimant of land 
 should not be turned out of possession till he should be paid 
 for lasting and -valuable improvements, and directed the court 
 in a suit at law to appoint commissioners to value the improve- 
 ments, it was held that this came within the provisions of the 
 seventh amendment, and that the law was unconstitutional and 
 void. * 
 
 It has been held, too, by the Supreme Court of the United 
 States, that this clause embraces all suits not of equity or admi- 
 ralty jurisdiction, and that it applies to the proceedings prac- 
 ticed in Louisiana on the trial of causes by a jury, though 
 peculiar and not according to the course of the common law.f 
 
 Indeed, as I have had occasion to notice in speaking of the 
 operation of the analogous clause under the State Constitu- 
 tions, the provision has been generally very liberally construed. 
 So, it has been intimated that a court of equity cannot order 
 the complainant and his sureties on an injunction bond, to pay 
 the damages sustained by reason of the injunction, on the 
 ground that an action on a bond is in its nature a suit at com- 
 mon law. So, again, it has been decided that to subject the 
 right of trial by jury to any condition, is incompatible with 
 the nature of the constitutional guaranty. Consequently, 
 where a law designed to prevent the sale of intoxicating 
 liquors, required the party accused to give security for the 
 'payment of the penalty and costs awarded by the act for its 
 
 * Bank of Hamilton v. Dudley's Lessee, 2 to the demands of a creditor must always de- 
 Peters, 493. This case is also of much inter- pend upon the wisdom of the Legislature." 
 est, on the subject of repeal and vested rights. P. 523. 
 
 In 1795 the Territorial Government of Ohio f Parsons v. Bedford, 3 Peters, 447. In 
 created an Orphan's Court, and authorized the State of Louisiana, the principles of the 
 the administrator of a decedent to sell the common law are not recognized ; neither do 
 real estate, when there was not a sufficient the principles of the civil law of Rome fur- 
 personal estate to pay the debt. In May, nish the basis of their jurisprudence. They 
 1804, an administrator obtained an order to have a system peculiar to themselves, adopted 
 sell under this statute. In June, 1805, the by their statutes, which embodies much of 
 act of 1795 was repealed. In August, 1805, the civil law, some of the principles of the 
 an order was entered enlarging the adminis- common law, and, in a few instances, the stat- 
 trator's power to sell, and entered nunc pro utory provisions of other States. This sys- 
 tunc, as of May, and a sale took place ; but it tern may be called the civil law of Louisiana, 
 was held bad. It was urged that the interest and is peculiar to that State. Mr. J. M'Lean's 
 of the administrators in the real estate was a dissenting opinion in Parsons v. Bedford, 3 
 vested interest, and that the repeal of the law Peters, 450. 
 
 could not divest it. But the court said that \ Merryfield v. Jones, 2 Curtis, p. 306. 
 
 the repeal divested no vested estate, that it See on this point, Hiriart v. Ballon, 9 Peters, 
 
 was only " the exercise of a legislative power 156 ; Gwin v. Breedlove, 2 How. 29 ; Gwin v 
 
 such as every Legislature possesses. The Barton, 6 Howard, 7; Bein v. Heath, 12 
 
 mode of subjecting the property of a debtor Howard, 168. 
 
TRIAL BY JURY. 579 
 
 violation, as a condition of having a jury trial, it has been de- 
 cided by Mr. Justice Curtis, on the Ehode Island Circuit, that 
 this provision conflicted with the Constitution of that State, 
 which declares that the right of trial by jury shall be inviolate, 
 and rendered the whole act unconstitutional and void.* 
 
 The general rule of the courts of the United States is, that 
 on the trial of causes the court may give their opinion on the 
 evidence to the jury, being careful to distinguish between 
 matter of law and matters of fact. In regard to the former, 
 the opinion of the court is conclusive ; but a mere opinion on 
 the facts has only such influence as the jury may think it enti- 
 tled to. f But, as has been heretofore observed, J there is a 
 diversity of practice in the different States on this subject ; 
 and it has been intimated that in those States where the rule 
 is to confine the charge strictly to questions of law, it will be 
 well for the judges of the Federal tribunals to conform to it, 
 for the general reason that it is desirable that the practice in 
 the courts of the United States should resemble as near as 
 practicable that of the States in which they are sitting. | 
 
 In criminal cases, it has been earnestly insisted that the 
 jury are the judges of the law, as well as of the fact, and that 
 the opinion of the court on questions of law, how conclusive 
 soever in civil causes, has no binding force on the jury in crim- 
 inal cases. But this doctrine has been denied on very high 
 authority; and in the first circuit of the United States, as well 
 as in the States of New York, Indiana, New Hampshire, and 
 Massachusetts, it seems settled that juries in criminal trials have 
 not the right to decide any question of law ; and that if they 
 render a general verdict, their duty and their oath require them 
 to apply to the facts, as they may find them, the law given to 
 them by the court. ^[ 
 
 * Greene v. Briggs, 1 Curtis, 311. United S f ates v. Morris, 1 Curtis, 60; People 
 
 f M'Lanahan v. Universal Ins. Co. 1 T. Price, 1 Barb. S. C. R. 566 ; Townsend v. 
 
 Peters, 182 ; Games v. Stiles, 14 Peters, 322. The State, 2 Blackf. 152 ; Pierce v. The State, 
 
 i Ante, p. 498. 13 N. H. R. 536; Commonwealth v. Porter, 10 
 
 f Mitchell v. Harmony, 13 Howard, 131. Met. 263; and, in Ohio, see Montgomery v. 
 
 See, in this case, in Mr. J. Daniel's dissenting The State, 11 Ohio, 427. In England, see 
 
 opinion, an ingenious and elaborate defence of Parmiter v. Conpland, 6 M. & W. 105; Levi 
 
 the practice, which, he says, is that of most v. Milne, 4 Bing. 195. 
 
 of the Southern States, of confining the charge The trial by jury was at one time used in 
 
 to matters of law. New York as a mode of collecting taxes. The 
 
 [[ United States v. Battiste, 2 Sumner, 240 ; eighty-third letter of the Federalist says it is 
 
580 THE OBLIGATION OF CONTRACTS. 
 
 Excessive Bail and Cruel Punishments. Amendments, art. 
 viii. It has been decided in regard to this, as the other amend- 
 ments, that the clause only operates as a limitation on the 
 General Government, and does not apply to the States of the 
 Union. * 
 
 The Obligation of Contracts. We have thus far been occu- 
 pied with considering the effect of those clauses in the Consti- 
 tution of the United States which act as restrictions on legis- 
 lative power and as guaranties of private rights. Of these 
 clauses, however, we have still to examine that which in its 
 practical operation has as yet proved far the most important, 
 viz. : The provision in the tenth section of the first article, 
 which declares that no State shall pass any law impairing the 
 obligation of contracts.^ 
 
 At the outset of the discussion we may remark, that some 
 of the States have imposed a similar restriction upon them- 
 selves ; J while in regard to the Federal power, there is no 
 express provision protecting the sanctity of contracts. Where 
 it was asserted that an act of Congress granting an exclusive 
 
 o o o 
 
 privilege in the shape of a patent was void on the ground that 
 the patentee had had an exclusive privilege granted him by the 
 State, and that on the expiration of the State grant the right 
 to his invention became by an implied contract vested in the 
 
 now, " in most cases," out of use for this pur- yer, and learned in the civil law, was the 
 
 pose. author of the phrase." 
 
 * Barker v. The People, 3 Cowen, 686; \ Louisiana. No ex post facto law, nor 
 
 James v. Commonwealth, 12 Serg. & R. 220 ; any law impairing the obligation of contracts, 
 
 Barren v. Mayor of Baltimore, 7 Peters R. shall be passed, nor vested rights be divested, 
 
 243. unless for purposes of public utility and for 
 
 \ Ante, p. 545. adequate compensation previously made. 
 
 The importance of this clause certainly Cons. tit. vi, 105. 
 
 does not appear to have been realized at an Tennessee. No retrospective law or law 
 
 early period in our history. The subject of impairing the obligation of contracts shall be 
 
 the Obligation of Contracts is very summari- made. Cons. art. i, 20. 
 
 ly disposed of, in connection with bills of at- Missouri. No ex post facto law, nor law 
 
 tainder and ex post facto laws, by the Federal- impairing the obligation of contracts or re- 
 
 ist, in the 44th letter. Laws in violation of trospective in its operation, can be passed, 
 
 private contracts are referred to in the 7th Cons. art. xi, 17. 
 
 letter, and are spoken of somewhat cursorily ' The Constitution of New Jersey, art. iv, 
 
 as among the causes which might lead to wars sec. 7, contains a peculiar and very important 
 
 among the States. Mr. Rawle's work on the provision, to which I shall again call attention 
 
 Constitution, published in 1825, chap, x, p. when I come to speak of vested rights. "The 
 
 131, contains only a few paragraphs in regard Legislature shall not pass any bill of attainder, 
 
 to the matter. ex post facto law, or law impairing the obliga- 
 
 " The tradition is," says Mr. Hunter, argu- tion of contracts, or depriving a party of any 
 
 endo, in Sturges v. Crowninshield, 4 Wheat, remedy for enforcing a contract which existed 
 
 160, "that Mr. Justice Wilson, who was a when the contract was made." Art. 4, sec. vii, 
 
 member of the Convention and a Scottish law- 8 3. 
 
THE OBLIGATION OF CONTRACTS. 581 
 
 people of the State, the Circuit Court in Pennsylvania denied 
 the proposition, saying, " If, even, the premises were true, still 
 there is nothing in the Constitution of the United States 
 which forbids Congress to pass laws violating the obligation of 
 contracts, although such a power is denied to the States in- 
 dividually." * 
 
 The consideration of this important clause seems naturally 
 to divide itself into two heads : 
 
 First. What are the contracts to which the Constitution 
 refers ? 
 
 Second. What acts of State legislation are considered to 
 impair their obligation f 
 
 I shall examine somewhat in detail the leading cases on the 
 subject, and then endeavor to state the general result of the 
 decisions, remarking, however, before the discussion is com- 
 menced, that it has been decided by the Supreme Court, under 
 a Virginia act of 1788, that the present Constitution did not 
 commence its operation until the first Wednesday of March 
 1789, and that the provision as to the obligation of contracts 
 does not extend to a State law enacted before that time and 
 operating upon rights of property vested before that period, f 
 
 What is a Contract within the meaning of the Constitu- 
 tion f (a) The Supreme Court has said that the contracts 
 
 * Evans v. Eaton, Peters C. C. U. S. E, f wings v. Speed, 5 Wheat. 420. 
 
 337. See Gatlin v. Walton, 1 Wins. (N. C.) 333. 
 
 (a) What is a Contract within this Provision . ? Marriage. According to the weight 
 of authority, marriage is not, as a contract, protected by the constitutional provision. 
 Adams v. Palmer, 51 Me. 480; Carson v. Carson, 40 Miss. 849; Cronise v. Cronise, 
 54 Penn. St. 255. The inchoate rights of property flowing from marriage are not 
 protected, it seems; thus cur tesy may be taken away as to land not vested in th e 
 wife. Thurber v. Townsend, 22 N. Y. 517 ; and see In re Lawrence, 1 Redf. (N. Y.\ 
 310. In some States it is held that dower may be taken away before, but not after 
 the death of the husband. Noel v. Erving, 9 Ind. 37; Magee v. Young. 40 Miss. 164 . 
 Barbour v. Barbour, 46 Me. 9; Strong v. Clem, 12 Ind. 37; Lucas v. Sawyer, 17 
 Iowa, 517. Doubtless a statute abolishing dower would apply to all future ac- 
 quired lands. See Sutton v. Askew, 66 N. C. 172 ; Wesson v. Johnson, 66 N. C. 
 189. It seems that property brought by the wife may be subjected by law subse- 
 quent to the marriage to the husband's debts. Portis v. Parker, 22 Tex. 699. There 
 is some confusion on this subject. As marriage is not a contract within this pro- 
 vision, it is very clear that its incidents are not protected ly this provision. But it 
 by no means follows that certain incidents of marriage, are not protected by other 
 
582 THE OBLIGATION OF CONTRACTS. 
 
 designed to be protected by the tenth section of the first article 
 are "contracts by which perfect rights certain definite, 
 
 provisions. Those property rights flowing from marriage which have become vested 
 in particular lands, are as truly property rights, and protected by the constitutional 
 provisions respecting due process of law and the like, as though they were rights by 
 inheritance. The mere capacity of the husband or wife to acquire property in the 
 things of the -other, may be taken away before it has applied itself to some partic- 
 ular thing, and has thus turned into a right over such thing ; but after such change, 
 and the vesting of the right, the Legislature cannot any more take it away by general 
 laws abolishing curtesy or dower, etc., than by a particular statute applied to some 
 designated husband and wife. See 2 Scribner on Dow. ch. i, 13 to 20; Kelly v. 
 Harrison, 2 Johns. Gas. 29 ; Lawrence v. Miller, 2 N. Y. 245, 250 ; Royston v. Royston, 
 21 Geo. 161 ; Moreau v. Detchmendy, 18 Mo. 522 ; Simar v. Canaday, 53 N. Y. 298. 
 
 Arrangements which are political in their nature, and which it is essential that 
 the Government should have power to change, are not within the guaranty. No 
 mere political capacities or rights, and no statutes, Constitutions, or customs by 
 which such political capacities or rights are acquired or conferred, are contracts. 
 Among these are municipal corporations. The charters of municipal corporations, 
 whether in the form of general or special statutes, are not contracts within the 
 constitutional guaranty. Over the municipal corporation, and over its public 
 property, the power of the Legislature is supreme. People v. Pinkney, 32 N. Y. 377 ; 
 Erie v. Erie Canal Co. 59 Penn. St. 174 ; Philadelphia v. Fox, 64 Perm. St. 169 ; 
 Borough of Dunmore's Appeal, 52 Penn. St. 374 ; Girard v. Philadelphia, 7 Wai. 1 ; 
 State Bank v. Knoop, 16 How. U. S. 369, 380 ; Grogan v. San Francisco, 18 Cal. 590 ; 
 Blanding v. Burr, 13 Cal. 343 ; People v. Hill, 7 Cal. 97 ; Darlington v. Mayor, 31 
 N. Y. 164 ; Savings Friend Soc. v. Philadelphia, 31 Penn. St. 175, 185 ; Philadelphia 
 v. Field, 58 Penn. St. 320 ; Gray v. Brooklyn, 10 Abb. Pr. N. S. 186 ; 50 Barb. 365 ; 
 Brewster v. Syracuse, 19 K Y. 116 ; Sill v. Corning, 15 N. Y. 297 ; People v. Draper, 
 15 N. Y. 532; State v. R. R. Co. 12 Gill & Johns. 399; Baltimore v. Board of Police, 
 15 Md. 376; Police Commr's v. Louisville, 3 Bush, 597; Diamond v. Cain, 21 La. 
 Ann. 309 ; State v. Leory, Id. 538. In some of these cases it has been said that a 
 municipal corporation has a double character, the onepuUie and the other private ; that 
 whatever pertained to the former was under the complete control of the Legislature, 
 but that such a corporation might have private property or some other private rights, 
 in reference to which its charter would be a contract, and which property or rights 
 would be beyond the power of the Legislature. No court has, however, gone beyond 
 such a general suggestion, nor attempted to define in what cases and for what 
 purposes a municipal corporation could hold private property or be clothed with 
 such private rights with such results; the discussion of the courts on the subject 
 has rather been speculative and general. On the other hand, courts have denied the 
 existence of any such dual nature in a municipal corporation, and have held that 
 for all purposes and in respect to all property they are under the control of the 
 Legislature in other words, that a municipal corporation could have no private 
 property or character. See especially for a full and positive statement of these views, 
 Darlington v. Mayor &c. 31 N. Y. 164, 193, per Denio, J. 
 
 The Legislature may apportion municipal burdens in case of consolidation, etc. 
 Layton v. New Orleans, 12 La. Ann. 515 ; People v. Powers, 25 111. 187. And may 
 divert a fund which has been raised by taxation for one public purpose, to another 
 
THE OBLIGATION OF CONTRACTS. 583 
 
 fixed, private rights of property are vested," as distinguished 
 from rights growing out of measures or engagements adopted 
 
 similar purpose e. g., may direct that money raised by taxation in a county may be 
 appropriated to pay expenses of a police force created for a city within the same 
 county. State v. St. Louis County Court, 34 Mo. 546 ; but per contra, see Mayor v. 
 Tows, 5 Sneed, 186. The former of these conflicting decisions is plainly correct on 
 principle, and is sustained by the authorities, for the fund raised by & municipality 
 is in every respect a public fund, and has none of the elements of private property, 
 and in the absence of special restrictions in the State Constitutions is completely 
 under the control of the Legislature ; and it should be remarked that the Tennessee 
 case cited, proceeds upon the State Constitution, rather than upon the provision 
 under discussion in the national Constitution ; and a grant of land to a city to aid 
 in carrying out a public purpose, e. g., for wharves, or docks, and the like, is not a 
 contract, but the land is under the control of the Legislature. People v. Vanderbilt, 
 26 N. Y. 287. 
 
 But after a municipal corporation has been created, its own contracts made with 
 individuals in respect to subjects within its municipal powers, are protected by the 
 constitutional guaranty, so far as the rights of the creditors or other contracting 
 parties are concerned, as as for example, a contract in reference to a supply of gas. 
 Western &c. Soc. v. Philadelphia, 31 Penn. St. 175, 185 ; or a grant of location to a 
 railroad upon conditions, such location having been accepted. Brooklyn &c. E. E. 
 v. Brooklyn &c. E. E. 82 Barb. 358 ; or bonds issued for the funding of municipal 
 indebtedness. People v. Woods, 7 Cal. 579 ; People v. Bond, 10 Cal. 563 ; Board of 
 Education v. Fowler, 19 Cal. 11. And the security to the creditor under such act 
 cannot be diminished ; e. g., a provision that no other bonds shall be issued for any 
 other purpose by the municipality is obligatory. Smith v. Appleton, 19 Wise. 468. 
 Also a clause providing for a special tax to pay the bonds is binding. Von Hoffinan 
 v. Quincy, 4 Wai. 535; English v. Supervisors, 19 Cal. 172 ; and see Gilman v. She- 
 boy gan, 2 Black, 510. And bonds issued under authority of law by municipal cor- 
 porations in aid of railroads, &c., are within the guaranty; and lona fide creditors' 
 rights cannot be impaired either by subsequent State legislation or by subsequent 
 State judicial decision attacking the original authority to issue the bonds. 
 
 But changes may be made in the law under which such municipal contracts or 
 liabilities were created, or by which provision is made for their payment, provided 
 such changes do not injuriously affect the creditors, of which it seems the court will 
 judge. Thornton v. Hooper, 14 Cal. 9; Babcock v. Middleton, 20 Cal. 643. Thus, 
 for example, property may be exempted from taxation so long as it is not shown that 
 the power of the municipality to meet its liabilities is impaired. Eichniond v. E. & 
 D. E. E. 21 Gratt. 604 ; and see Gilman v. Sheboygan, 2 Black, 510. 
 
 It has been held that a contract between the State and a municipal corporation 
 is protected. Grogan v. San Francisco, 18 Cal. 590. And that the State cannot 
 divest a municipal corporation of its private property. Milwaukee v. Milwaukee, 12 
 Wise. 93. But as to this point, see remarks supra, in this note. It has also bee n 
 held that the State cannot arbitrarily create a debt from one municipality to another. 
 Jackson County v. La Crosse Co. 13 Wise. 490 : but see, on this point, People v. Flagg, 
 46 N. Y. 401, in which it was held that the Legislature can compel a town to 
 create a debt for the construction of highways, and to issue bonds therefor, although 
 the improvement was not sanctioned by any town authorities, nor by any assent o f 
 
584 THE OBLIGATION OF CONTRACTS. 
 
 or undertaken by the body politic or State Government for 
 the benefit of all, and which from the necessity of the case 
 
 voters or taxpayers; see, on the other hand, People v. Batchellor, 53 N. Y. 128. It 
 was held in People v. Commissioners &c. 53 Barb. 70, that after a highway had been 
 laid out in the ordinary manner, the owners of the land having been paid for the 
 soil, that there was a contract between the public and such owners which the Legis- 
 lature could not impair by a statute which reduced the width of the road, and 
 released part of the land once taken to the original owners ! ! ! It is hardly neces- 
 sary to say that this decision is not law ; it, in fact, says that the constitutional 
 guaranty prohibits one party to a contract from releasing the other party from its 
 terms, because such act would impair the obligation. There is of course no " public " 
 with which a contract can be made except the State, and the Legislature, as represent- 
 ative of the State, unless prevented by some prohibition in the State Constitution, 
 can release parties from their obligations to the State. Again, all that was said on 
 this subject was utterly unnecessary, for the statute had been pronounced void 
 on another ground, and this opinion of the court was entirely extrajudicial. 
 
 The Legislature may release a corporation from a contract with a town to main- 
 tain a road. People v. F. & B. PI. E. Co. 27 Barb. 445 ; and see Matter of Prot. Epis. 
 School, 46 N. Y. 178. 
 
 Permission to Sue the State. A statute permitting suit against the State may be 
 repealed, although suit has been brought on the faith of it. Platenius v. State, 17 
 Ark. 518; Beers v. State, 20 How. (U. S.) 527. And the Legislature may repeal a 
 law directing the payment of a judgment out of the public funds. Young v. The 
 Territory, 1 Oregon, 213. And may direct that no more warrants shall be drawn on 
 the treasurer. Swann v. Buck, 40 Miss. 268 ; and see Dodd v. Miller, 14 Ind. 433. 
 But, in California, it was held that a statute providing that demands against the 
 State must be approved by an examining board before a warrant could be issued, 
 was unconstitutional in its application to existing contracts. McCarthy v. Brooks, 
 16 Cal. 11 ; and see Lamkin v. Sterling, 1 Idaho T. 103. It has been held in Cali- 
 fornia that the right to sue a county stands on the same footing as the right to sue 
 the State, and that a statute funding a county debt, and prohibiting liquidation 
 otherwise than as the statute directed, was valid. Hunsaker v. Borden, 5 Cal. 288 ; 
 Sharp v. Contra Costa Co. 34 Cal. 284 ; and see Dodd v. Miller, 14 Ind. 433. These 
 decisions are based upon the local provisions in regard to the internal and county 
 organization of the States, by which counties are not municipal corporations, and 
 cannot sue and be sued. The settled doctrine of the United States Supreme Court 
 is, that contracts, such as bonds, entered into by counties, as well as by towns and 
 cities, are within the protection of the constitutional guaranty, and will be enforced 
 by mandamus, if they cannot be by ordinary action prosecuted to judgment and exe- 
 cution. Von Hoffman v. Quincy, 4 "Wai. 535. 
 
 Licenses. Licenses from the State to individuals to carry on trades and the like, 
 are not contracts within the constitutional provision. Commonwealth v. Brennan, 
 103 Mass. 70 ; Met, Bd. of Excise v. Barrie, 34 K Y. 657 ; State v. Holmes, 38 N. H. 
 225 ; Calder v. Kurby, 5 Gray, 597. 
 
 A statute or provision of State Constitution imposing certain qualifications upon 
 an attorney, e. g., an oath of loyalty, does not impair the obligation of contracts be- 
 tween him and his clients, although he may thereby be rendered unable to fulfil those 
 contracts on his part. State v. Garesche, 36 Mo. 256. The correctness of this decision 
 
THE OBLIGATION OF CONTRACTS. 585 
 
 and accordins; to universal understanding are to be varied 
 
 o . ~ 
 
 or discontinued as the public good sliall require. * And 
 
 * Butler et al. v. Pennsylvania, 10 Howard, p. 416. 
 
 is more than doubtful, as the Supreme Court of the United States has pronounced 
 the laws imposing these oaths invalid. See note to " Ex post facto laws." 
 
 A grant of a right to hold a lottery may be repealed if no rights have vested 
 under it. Mississippi Soc. v. Musgrove, 44 Miss. 820. Otherwise, where granted for a 
 valuable consideration, Boyd v. State, 46 Ala. 329 ; or where the grantees have assumed 
 responsibilities on the faith of the grant, and rights have vested. State v. Morrow, 26 
 Mo. 135 ; State v. Miller, 50 Mo. 129. But see the cases first cited supra, under the head 
 of " Licenses." By the reasoning of these cases, the Legislature has power to revoke a 
 grant to hold a lottery at all times, and whether it was conferred with or without a 
 valuable consideration. Laws licensing and regulating lotteries are mere measures 
 of police, and as such are under the absolute control of the Legislature. 
 
 The time within which successful drawers in a State land lottery can assert their 
 rights may be limited by subsequent statute, although there was originally no limita- 
 tion. McKenny v. Compton, 18 Geo. 170. 
 
 Public Offices. Public offices, though salaried, are not held by contract or grant; 
 and unless there be some special restraints in the State Constitution, they are under 
 the complete control of the Legislature. They may be abolished, or the term there- 
 of reduced, the salaries may be reduced, or new duties imposed. Conner v. City of 
 New York, 5 N. Y. 285, 295; Robinson v. White, 26 Ark. 139; State v. Douglas, 26- 
 Wise. 428 ; Wilcox v. Rodman, 46 Mo. 322 ; Head v. University of Mo. 47 Mo. 220 ; 
 Att'y Gen. v. Squires, 14 Cal. 12 ; Christy v. Board <6c. 39 Cal. 3 ; Turpin v. Tipton 
 Co. 7 Ind. 172 ; Standeford v. Wingate, 2 Duv. 440; Alexander v. McKenzie, 2 Rich. 
 (S. C.) N. S. 81 ; but see Gotten v. Ellis, 7 Jones (Law), 545. 
 
 An act, however, prohibiting payment to the State Auditor for services already 
 performed was held void in Missouri, the Constitution forbidding retrospective legis- 
 lation. State v. Auditor, 33 Mo. 287. 
 
 A plain distinction exists between the holding of an office and the contracting for 
 particular services; e. <?., a contract for printing is binding. State v. Barker, 4 Kans. 
 379. 
 
 Grants and Charters of Corporations not Municipal. As stated in the text, it is 
 now the settled doctrine of the United States Supreme Court, and finally of the State 
 courts, that the charter of a corporation not municipal is a contract within the con- 
 stitutional guaranty; and a fortiori is this true of grants from the State to 
 individuals. 
 
 This principle extends to a college wholly endowed by the State. Sheriff v. 
 Lowndes, 16 Md. 357 ; per contra, see Dart v. Houston, 22 Geo. 506 ; Head v. Uni- 
 versity of Mo. 47 Mo. 220. And to quasi corporate powers granted to owners of 
 meadow land, upon the faith of which money has been expended. Glover v. Powell r 
 2 Stockt. 211. And to grants of alternate sections to persons reclaiming certain 
 lands after the labor contemplated has been performed. Montgomery v. Kasson, 16 
 Cal. 189. Where commissioners borrow money to make a canal, and pledge the canal 
 for payment, under a statute authorizing them to do so, the lien thus created cannot 
 be divested by repeal. Wabash &c. Canal v. Beers, 2 Black, 448. 
 
 But a lien created by general law is not a contract protected by the Constitution. 
 Martin v. Hewitt, 44 Ala. 418 ; Coffin v. Rich, 45 Me. 507 ; but see Gunii v. Barry, 15 
 
586 THE OBLIGATION OF CONTRACTS. 
 
 the terms of the clause include as well executory as executed 
 contracts.* 
 
 * Fletcher v. Peck, 6 Cranch, 137. 
 
 Wall. 610, which holds that a State cannot take away the lien of a judgment created 
 by general statutes existing at the time the judgment was recovered. Nor are rights 
 acquired by prescription. Stuber's Road, 28 Penn. St. 199. 
 
 The articles of association of a bank organized under a general banking law, 
 and which contained provisions not authorized by such law, are not a contract with 
 the State. Sherman v. Smith, 1 Black, 587. 
 
 "Where a State consents to the purchase of lands within it by the United States, 
 and acts are done by the United States in respect of such lands in pursuance of the 
 -consent, this is a contract. United States v. Great Falls &c. Co. 21 Md. 119. 
 
 Bounty laws offering exemptions from taxes to those engaging in particular oc- 
 cupations or pursuits are not contracts. Salt Co. v. East Saginaw, 13 Wai. 373 ; a. c. 
 19 Mich. 259 ; Christ Church v. Philadelphia, 24 How. (U. S.) 300. But the statute 
 offering the bounty cannot be repealed so as to take away the bounty from those who 
 have performed the services for which it was offered. People v. Auditor, 9 Mich. 327 ; 
 and see Montgomery v. Kasson, 16 Cal. 189. 
 
 Collateral Stipulations in Charters. It being settled that the charter itself which 
 creates the corporation is a contract, it is now also settled (at least for the present) 
 that collateral stipulations contained in the charter, by which special benefits and 
 exemptions are conferred upon the corporators or the corporation, are equally con- 
 tracts protected by the constitutional guaranty. These stipulations have generally 
 related to the State's right of taxation, or to the State's right of eminent domain, 
 and in them the State has purported to bind itself not to use these legislative powers. 
 The State courts originally denied that such stipulations were binding contracts, on 
 the ground that no Legislature could bargain away for any consideration its highest 
 governmental functions. When forced to abandon this position by the repeated 
 decisions of the United States Supreme Court, they yielded with a protest. In ad- 
 dition to the cases referred to in the text, the following which deny the power of 
 States to enter into such contracts are cited as part of the history of an important 
 judicial controversy. Backus v. Lebanon, 11 N. H. 19 ; Easton B'k v. Commonwealth, 
 10 Penn. St. 442} Mott v. Penn. R. R. 30 Penn. St. 9; East Saginaw &c. Co. v. E. 
 Saginaw, 19 Mich. 259 ; Raleigh &c. R. R. v. Reid, 64 N. C. 155 ; Mech. & Traders' 
 B'k v. De Bolt, 1 Ohio, N. S. 591 ; Toledo B'k v. Bond, Ib. 622 ; Knoop v. Piqua 
 B'k, Ib. 603 ; Milan &c. PI. R. v. Husted, 3 Ohio, K S. 578 ; Thorpe v. Rutland &c. 
 R. R. 27 Vt. 140. 
 
 The United States Supreme Court has by a long series of decisions established 
 the doctrine that in the charter of a corporation not municipal, the State may by a 
 collateral stipulation exempt the corporation from taxation, and may thus bind itself 
 not to use its perhaps highest function. In addition to the cases quoted in the 
 text, that court has decided the following : Jefferson Br. B'k v. Skelly, 1 Black, 436 ; 
 McGee v. Mathis, 4 Wai. 143 ; Wilmington R. R. v. Reid, 13 Wai. 264 ; Humphrey v. 
 Pegues, 16 Wall. 244. And has extended the principle to charters of charitable and 
 literary institutions, in Home of the Friendless v. Rouse, 8 Wai. 430; Washington 
 University v. Rouse, 8 Wai. 439. See also Iron City Bank v. Pittsburg, 37 Penn. St. 
 340 ; O'Donnell v. Bailey, 24 Miss. 386 ; St. Paul &c. R. R. v. Parcher, 14 Minn. 297; 
 State v. Crittenden Co.19 Ark. 360 ; Att'y Gen. v. Bank of Charlotte, 4 Jones Eq. 287. 
 
THE OBLIGATION OF CONTRACTS. , 587 
 
 The clause in the Constitution referring to all contracts 
 without exception, and it being settled that this includes exec- 
 
 In the two cases cited above from 8 Wallace, the United States Supreme Court 
 pushed the doctrine much farther than in any preceding decision. In a prior gen- 
 eral statute the Legislature had reserved full power to alter, amend, or repeal all 
 charters subsequently granted. The charters of these institutions, however, con- 
 tained a clause that such prior statute should not apply to them, and that their 
 property should be free from taxation. This provision was held to be a contract, 
 and a subsequent statute imposing a tax to be void. The court were not unanimous. 
 A very able dissenting opinion was delivered by Mr. Justice Miller, and concurred in 
 by Mr. C. J. Chase and Mr. J. Field, which took the bold and strong ground that 
 the court ought to retrace its steps ; that, upon principle, it was impossible for one 
 Legislature to bind all succeeding Legislatures not to use the highest functions of 
 government, the power of taxation and of eminent domain ; that the consequences 
 of the doctrine laid down by the court might be very grave. Although this doc- 
 trine is as firmly settled as any principle of constitutional construction can be, yet 
 its results in building up enormous monopolies, against which neither the Legisla- 
 tures nor the people of the States can have any redress, may drive the Supreme Court 
 to abandon it, and to overrule the long series of decisions in which it is expressed. 
 This may be the more probable, as it has no political relations and is not now the 
 sign of any political beliefs or heresies. 
 
 The exemption from taxation, to be a binding contract, must not be gratuitous; 
 it must be granted upon what the law calls a consideration, for if it is a mere priv- 
 ilege it may be recalled. People v. Comrn'rs of Taxes, 47 N. Y. 501 ; Christ Church 
 v. Philadelphia, 24 How. (U. S.) 300 ; Brainard v. Colchester, 31 Conn. 407. The ex- 
 emption may be repealed, unless there is an express contract for it upon a considera- 
 tion, so as to be deemed a part of the value of the grant. St. Joseph v. Hannibal & 
 . St. Jo. R. R. 39 Mo. 476. 
 
 The presumption is always against any such contract of exemption ; for it to 
 exist, there must be express language, or the intention of the Legislature must be 
 manifested beyond a doubt. Thus, where a bank charter contained a provision that 
 one per cent, of its earnings should, be paid to the State, but no express prohibition 
 of a further taxation, it was held that a license tax might be imposed. St. Louis v. 
 Man. Sav. B'k, 49 Mo. 574 ; Easton B'k v. Commonwealth, 10 Penu. St. 442 ; Gilman 
 v. Sheboygan, 2 Black, 510 ; Bradley v. McAtee, 7 Bush, 667. And a special tax on 
 stock, without express provision against further taxation, will not prevent a tax on 
 dividends. State v. Petway, 2 Jones Eq. 396. And a license by the State does not 
 prevent a municipality from imposing a license. New Orleans v. Turpin, 13 La. Ann. 
 56. And income derived from the licensed business may be taxed. Drexel v. Com- 
 monwealth, 46 Penn. St. 31. 
 
 The exemption is not to be extended beyond its express terms. Thus, where a 
 railroad itself exempt from taxation, leased its road to another corporation by a lease 
 which provided that the lessee should pay all taxes, the lessee was held not within 
 the exemption. State v. Delaware &c. R. R. 1 Vroom, 473, 480 ; and see Tomlinson v. 
 Branch, 15 Wall. 460. And it would seem that where a charitable society, itself exempt, 
 conveys away an estate for a gross sum, the exemption does not follow. Brainard v. 
 Colchester, 31 Conn. 407. And where a city charter provided that certain improve- 
 ments having been made at the expense of abuttors, the streets should henceforth be 
 
588 THE OBLIGATION OF CONTRACTS. 
 
 utory as well as executed contracts, no difficulty seems to have 
 presented itself in relation to the true construction of the clause 
 
 kept in repair by the city, it was held under a new charter containing no such restric- 
 tion, that the same abuttors might be assessed for substituting Nicholson pavement. 
 Bradley v. McAtee, 7 Bush, 667. And the exemption of a corporation from taxation 
 does not cover land owned by it, but not used or occupied for its necessary purposes. 
 State v. Newark, 1 Dutcher, 315. 
 
 "Where a State Legislature has enacted that the bills of a certain bank shall be 
 receivable for taxes, any such bills issued before the repeal of the law cany with them 
 the privilege. Furrnan v. Nichol, 8 "Wai. 44. But such privilege, though contained 
 in a charter, may be repealed as to future issues. Graniteville &c. Co. v. Roper, 15 
 Rich. L. 138 ; State v. Stoll, 2 Rich. (N. S.) 588. 
 
 Although the subject has been considered in a few cases only, it seems settled 
 that a State may, in a charter, bind itself by a collateral stipiilation which restricts 
 its power of eminent domain. Binghamton Bridge Case, 3 Wai. 51 ; California Tel. 
 Co. v. Alta Tel. Co. 22 Cal. 398. In the Binghamton Bridge Case, a provision in the' 
 charter of a toll bridge that no other bridge should be built within two miles above 
 or below the one in question on the same river, was sustained, and the State charter 
 of a new free bridge company within the limits was held void, although a flourish- 
 ing city had grown up at the place, and the old bridge was utterly inadequate for 
 the public necessities. 
 
 Can a State under the form of a contract alienate its police power ? This question 
 has not been passed upon by the Supreme Court of the United States. The State 
 courts, so far as they have spoken, answer it with a decided negative. Thorpe v. 
 Rutland &c. R. R. 27 Vt. 149, per Redfield, C. J. ; State v. Noyes, 47 Mo. 189; In- 
 dianapolis &c. R. R. v. Kercheval, 16 Ind. 84 ; Ohio &c. R. R. v. McClelland, 25 111. 
 140. 
 
 Where a State Constitution contained the following provision : " No man or set 
 of men are entitled to exclusive separate public emoluments or privileges but in con- 
 sideration of public services," it was held that a clause in the charter of a bank com- 
 muting its tax was constitutional. Daughdrill v. Ala. L. I. & T. Co. 31 Ala. 91 ; see 
 also Bank v. New Albany, 11 Ind. 139. 
 
 Miscellaneous. The provision of the Constitution has no application to contracts 
 entered into after a State statute reserving the power to alter or abrogate them. 
 Thus, contracts made after the passage of a State insolvent law may be discharged by 
 the operation of such law ; and charters granted after the reservation of power 
 therefor, may be changed or repealed. In re Empire B'k, 18 N. Y. 199 ; Roby v. Bos- 
 c well, 23 Geo. 51 ; Guillotte v. New Orleans, 12 La. Ann. 432 ; but see Goenen v. 
 Shroeder, 8 Minn. 387, that the Legislature cannot reserve the right to impair the 
 obligation of contracts; and see remarks of Bradley, J., in Miller v. State, 15 Wall. 
 499. 
 
 A vote of a municipality of the taxpayers or electors to subscribe to the stock 
 of a corporation is not a contract ; there must be a subscription. Aspen wall v. Comm'rs 
 of Daviess Co. 22 How. (U. S.) 364. 
 
 Such circumstances as might estop from doing certain acts do not constitute a 
 contract not to do them. Thus, where land is taken under authority of the Legisla- 
 ture for a public park, the title being taken absolutely and the neighboring property 
 being assessed for the benefit, the Legislature may authorize the use of the land for 
 
THE OBLIGATION OF CONTRACTS. 589 
 
 in regard to agreements of a private character. All private 
 contracts, in the ordinary legal application of that phrase, are 
 understood to be embraced by it. If an agreement is such that 
 
 other purposes, although this will lessen the value of surrounding property. Brook- 
 lyn Park Comm'rs v. Armstrong, 45 N. Y. 234. 
 
 Causes nf action ex ddicto are not within the constitutional guaranty. Drehman 
 v. Stifle, 8 Wai. 595. 
 
 What is included in the Contract, forming apart of it? The rate of interest does, 
 and cannot be lowered by legislation. Myrick v. Battle, 5 Flor. 345. And if it 
 cannot be lowered, for a like reason it cannot be raised ; but days of grace, it is said, 
 do not, and may be shortened by statute by the creation of a holiday. Barlow v. 
 Gregory, 31 Conn. 261. This decision is plainly opposed to the ratio decidendi of the 
 numerous cases in the Supreme Court of the United States defining the meaning of 
 " obligation." " Obligation " being the sum of legal rights and duties which the 
 law creates from the facts of a contract, the right to three additional days of grace 
 is as perfect, and as much a legal right inherent in the particular contract, as the 
 duty to pay the paper at all. Because the parties do not expressly stipulate for three 
 additional days, does not make the legal title to them any the less one of the essen- 
 tial features of this particular contract. To take away this right by statute is as 
 plain a violation of the constitutional guaranty, as the taking away the right to in- 
 terest after the debt became payable would be. This case is a very good illustration 
 of the confusion which the State courts have thrown around a subject which is 
 in itself simple and comprehensible a confusion which results from an indisposi- 
 tion on the part of so many judges to appreciate the meaning of the word "ob- 
 ligation." 
 
 The security upon which a contract was entered into forms a part of the contract. 
 Thus, where improvement bonds were issued with a lien on an entire tract, a statute 
 authorizing the sale of a part of the tract free from the lien was held invalid. Brook- 
 lyn Park Comm'rs v. Armstrong, 45 K Y. 234. 
 
 But the method in which the security is to be made available may be changed, 
 provided the change is not injurious to the creditor. Thus, a statute was upheld 
 which authorized receivers of an insolvent corporation, where its property was en- 
 cumbered with mortgages the validity of which was questioned, and where the 
 property was deteriorating, to sell such property clear of encumbrances, but to hold 
 the proceeds subject to the lien and to abide the event. Potts v. New Jersey Arms 
 Co. 2 C. E. Green, 395. 
 
 Where a charter delegates the power of eminent domain to a corporation, and 
 provides a certain method for its exercise, this method, it has been held, does not 
 form part of the contract between the State and the corporation. Thus, a certain 
 provision in a charter prescribing the method of acquiring a right of flowage may, 
 it has been held, be repealed, and a new method prescribed; and the right acquired 
 under the original method may be divested by 6uch repeal, and the party left to ac- 
 quire the right under the new method. Pick v. Rubicon &c. Co. 27 Wise. 433 ; sed 
 qu. Where the law. provided that purchasers of school lands should have the right 
 to revive their contracts, though forfeitable for non-payment, at any time before a 
 public sale ; this provision, it was held, made a part of the contract with all who 
 purchased school land under it, and they could only be deprived of their rights by a 
 public sale. Damman v. Comm'rs, 4 Wise. 414. 
 
590 THE OBLIGATION OF CONTRACTS. 
 
 if executory it can be enforced in a court of justice, or that if 
 executed a remedy can be sought for its violation or infringe- 
 ment, then it is a contract to be protected within the meaning 
 of the constitutional clause. The precise extent and value of 
 the protection, we shall consider when we consider the next 
 head, as to what impairs the obligation of contracts. 
 
 But much more serious embarrassments present themselves 
 in regard to rights or interests created by or under legislation ; 
 and many most interesting cases have been decided, as to the 
 rules to be applied in this respect to legal enactments. I shall 
 endeavor to state, as briefly as I can with precision, the results 
 thus far arrived at. 
 
 Several years before the point was submitted to the Federal 
 tribunals, it was said by one of the most eminent jurists of the 
 countiy, that " rights legally vested in any corporation cannot 
 be controlled or destroyed by any subsequent statute, unless a 
 power for that purpose be reserved to the Legislature in the 
 act of incorporation."* The question of legislative contracts 
 was first distinctly presented to the Supreme Court of the 
 United States in a case involving the power of a State to repeal 
 an act containing a grant of lands, and under which individual 
 titles of bona fide purchasers had become vested.f The Legis- 
 lature of Georgia, on the 7th of January, 1795, passed an act 
 in relation to their unappropriated territory; and on the 13th 
 of January of the same year, letters patent for a portion of this 
 land were issued, under and by virtue of the act, to Gwin and 
 others. From Gwin and others the lands in question passed to 
 one Greenleaf, by deed of the 22d of August, 1795; and from 
 Greenleaf, by sundry mesne conveyances, to the defendant 
 Peck; and he, by conveyance of the 14th of May, 1803, con- 
 veyed it to the plaintiff with a covenant, that the State of 
 Georgia was, at the time of the passage of the above act of 
 January, 1795, legally seized in fee of the soil; that the Legis- 
 lature had good right to convey ; and farther, that the title to 
 the premises so conveyed by the State of Georgia, and finally 
 vested in Peck, had been in no way constitutionally or legally 
 
 * Per Parsons, C. J., Wales v. Stetson, f Fletcher T. Peck, 6 Crunch, 87, A. D. 
 
 decided in 1806, 2 Mass. 146. 1810. 
 
LEGISLATIVE CONTRACTS. 591 
 
 impaired by virtue of any subsequent act of any subsequent 
 Legislature of the State of Georgia. The declaration in the suit 
 then averred that the passage of the act of the 7th of January, 
 1795, was obtained by undue influence and corruption, and 
 that the Legislature of the State of Georgia afterwards, on the 
 13th of February, 1796, repealed the act of 1795, by an act 
 declaring the former act, and all grants under it, null and void, 
 and affirmed the whole territory in question to be vested in the 
 State. The plea to this count set up that the grantees under 
 the patent were citizens of other States than Georgia, and that 
 they had no notice of the corrupt practices charged. On de- 
 murrer to this plea, the precise question presented was whether 
 the act of the State of Georgia of 1796, repealing the act of 
 1795, could have any effect on the title of a purchaser, acquired 
 under the prior act, for a valuable consideration and without 
 notice; and it was decided by the Supreme Court, on very- 
 elaborate consideration, that as well upon general principles 
 common to all free institutions, as on the particular provision 
 which we are considering, no such effect could be given to the 
 act of 1796. They held that the law of 1795 was in the na- 
 ture of a contract ; that absolute rights had vested under that 
 contract ; that the repeal of the act impaired the obligation of 
 the contract; and that, consequently, the subsequent statute 
 was unconstitutional and void. * 
 
 * Fletcher v. Peck, A.D. 1810, 6 Cranch, State does not possess the power of revoking 
 
 136 to 138. These grants are familiarly its own grants. But I do it on a general 
 
 known as the Yazoo grants. principle, on the reason and nature of things, 
 
 The doubts and difficulties that at first ex- a principle which will impose laws even 
 
 isted as to this clause of the Constitution can upon the D^ity." Ibid. p. 143. 
 be well seen in the opinion of Mr. Justice In regard to the question how far fraud 
 
 Johnson in this case, 6 Cranch, 144, 145. could be alleged in an act of legislation, the 
 
 Several interesting questions were dis- chief justice said " It may well be doubted 
 cussed iu this case. As to the general extent how far the validity of a law depends on the 
 of legislative power, it was said that the valid- motives of its framers, and how far the par- 
 ity of the rescinding act of 1796 might well ticular inducements operating on members of 
 be doubted, even were .Georgia a single sov- the supreme sovereign power of a State to the 
 ereign power. " To the Legislature all legis- formation of a contract by that power, are 
 lative power is granted ; but the question examiiable in a court of justice." See also 
 whether the act of 1796, transferring the Mr. J. Johnson's Opinion, p. 144. The sub- 
 property of an individual to the public, be in ject was discussed at length. But it was said 
 the nature of the legislative power, is well that at all events fraud of this kind could not 
 worthy of serious reflection." On the consti- be set up incidentally and collaterally; that 
 tutional question, Johnson, J., dissented. He it would be indecent in the extreme, upon a 
 held that the obligation clause only applied to private contract between two individuals, to 
 executory contracts, and put his concurrence enter into an inquiry respecting the corrup- 
 with the court on the general doctrine. He tion of the sovereign power of a State, 
 said " I do not hesitate to declare that a I may observe, on this question of fraud, 
 
592 LEGISLATIVE CONTRACTS. 
 
 A case was shortly afterwards presented, of much interest 
 in regard to the general question of the sacredness of legislative 
 grants, in connection with the early history of Virginia.* It 
 appears, and indeed is judicially declared in this case, that at 
 an early period the religious establishment of England, together 
 with the general rights and authorities growing out of the com- 
 mon law of the mother country, was adopted in the colony of 
 Virginia; and by various statutes passed from 1776 to 1788 
 the Legislature of the State confirmed and established the 
 rights of the church to all its lands and other property. In 
 1798 a different public opinion prevailed in the State; and by 
 two statutes passed in that year and in 1801, the Legislature 
 repealed the previous legislation on the subject, as inconsistent 
 with the principles of religious freedom declared by the Consti- 
 tution, and asserted the right of the Legislature to all the prop- 
 erty of the Episcopal church in the State. The Supreme Court, 
 however, held the grants contained in the original acts to be 
 irrevocable, and that the acts of 1798 and 1801 were wholly 
 inoperative. It may be remarked, however, that the decision in 
 this case, although obviously correct, is placed by the court as 
 much on the principles of natural justice, as on express provis- 
 ion ; nor is the statement of the constitutional point very clear 
 or well defined. Indeed, it is matter of interesting observation 
 to notice how gradually the legal mind of the country has ap- 
 proached the solution of our great constitutional questions, and 
 with what sagacious caution the judiciary have generally de- 
 clared their authority. 
 
 The precise question that we are now considering, i.e., 
 how far a legislative act is to be treated as a contract, was soon 
 after presented in a broader shape. In the year 1754, a clergy- 
 man of the name of Wheelock established a charity school in 
 Connecticut for the instruction of Indians in Christianity. De- 
 
 that in Connecticut the following language taining a legislative act will not, when shown 
 
 has been used "Fraud is not to be presumed; in a collateral proceeding, invalidate the act, 
 
 and when this court is called upon, in this see Jersey City, &c. R. It. v. Jenny City, etc. 
 
 collateral manner, to declare void an act of R. R. 20 N. J. Eq. 61. And the same is true 
 
 the General Assembly, upon the ground that of bad motives on the part of the legislators. 
 
 it was fraudulently obtained, this fact should People v. Shepard, 36 N. Y. 285 ; State v. 
 
 be clearly proved." The Derby Turnpike Co. Cram, 16 Wise. 343. EDITOR.] 
 
 v. Parks, 10 Conn. 540. * Terrett v. Taylor, 9 Cranch, 43. 
 [That misrepresentation or fraud in ob- 
 
LEGISLATIVE CONTRACTS. 593 
 
 sirous to extend the institution, he solicited pecuniary aid in 
 England. Funds were collected by private donations, the 
 founding of a college determined on, and New Hampshire 
 selected for its site. Finally a charter from the crown was 
 obtained, in the year 1769, for a body corporate to be called, 
 " The Trustees of Dartmouth College ; " the whole corporate 
 powers, including that of holding real and personal estate, 
 being vested in twelve trustees, clothed with authority to fill 
 vacancies occurring in their body. The institution went into 
 existence under this charter as Dartmouth College, and so con- 
 tinued without interruption or interference till the year 1816, 
 when the Legislature of New Hampshire passed several acts 
 " to amend the charter, and enlarge and improve the corpora- 
 tion," by which the trustees were increased from twelve to 
 twenty-one, the additional number being appointed by the ex- 
 ecutive of the State, and a board of twenty-five overseers cre- 
 ated, of whom twenty-one were also appointed by the executive. 
 
 Upon these, acts being brought up before the Supreme 
 Court of the United States, as conflicting with the constitu- 
 tional guaranty of contracts, it was strenuously contended that 
 the act of incorporation was a mere grant of political power, 
 creating a civil institution to be employed in the administration 
 of a part of the government of New Hampshire, regarding 
 instruction as a subject of public concern, and that as such it 
 was entirely under the control of the State. It was furthermore 
 insisted that the trustees, who complained of the violation of 
 the Constitution, had no vested beneficial or pecuniary interest 
 entitled to protection ; and, on both these grounds, that the 
 charter was not a contract within the meaning of the Constitu- 
 tion. But the Supreme Court of the United States held that 
 Dartmouth College was an eleemosynary and not a civil insti- 
 tution participating in the administration of government, 
 that it was a seminary of education incorporated for the per- 
 petual application of its property to the objects of its creation. 
 They further held that the trustees represented the donors of 
 the original funds, were the assignees of their rights, stood in. 
 their place, and were equally entitled to protection ; that the 
 charter was a contract made on a valuable consideration' for the 
 
 38 
 
594 LEGISLATIVE CONTRACTS. 
 
 security and disposition of property, and as such came within 
 not only the letter but the spirit of the Constitution. The judg- 
 ment of the Supreme Court of New Hampshire which had affirmed 
 the validity of the legislation of the State was reversed, and the 
 statutes in question declared unconstitutional and void.* 
 
 The case of Fletcher v. Peck was a case of grants of laud. 
 The Dartmouth College case was that of the franchises of an 
 
 O 
 
 eleemosynary corporation. These two decisions, therefore, taken 
 together, determined in the most favorable aspect for rights 
 vested by legislative action, that all private rights of property 
 created by virtue of a statute were protected by the Constitu- 
 tion ; and this doctrine has been, ever since the decision of the 
 last-mentioned case, considered the settled law of the Union. f 
 
 It has, indeed, been insisted that the Legislature has no 
 power to grant, by special act, exclusive rights and privileges ; 
 but it is now well settled that the Legislature may make ex- 
 clusive grants of property or privileges, as of bridge, ferry, and 
 railroad franchises. Such grants are not regarded as monopolies, 
 in the odious sense of the phrase, but as contracts within the 
 meaning of the Constitution. It has been urged in argument, that 
 if this right be conceded, a legislature may create gross and out- 
 rageous monopolies. But the Supreme Court of New Hampshire 
 has said, while affirming the general doctrine of the power, that 
 it will be in time to consider whether grants of this character are 
 within the constitutional exercise of the legislative power, when 
 a case is presented in which it is apparent that a fraud has been 
 practiced in obtaining the grant, or the circumstances under which 
 it was made show that it was merely colorable, and intended to 
 effect other purposes than those which appear on the face of it.J 
 
 * Dartmouth Coll. v. Woodward, 4 Wheat, doubt its original property. Therefore, al- 
 
 519, decided in 1819. See Mr. Chancellor though it maybe true that to create a private 
 
 Kent's remarks on this case, 1 Com. 418, lee. corporation without a reserved legislative 
 
 xix. Its decision undoubtedly forms one of power over its charter is an act of improvi- 
 
 the creat epochs in our legal and constitu- dent legislation, yet the judiciary hns no re- 
 
 tional annals. medial power to apply." Washington Bridge 
 
 f "Ever since the case of Dartmouth Coll. Co. v. The State, 18 Conn. 65. 
 
 v. Woodward was decided by the national That a legislature can no more revoke its 
 
 court, recognizing the charters of private cor- grants than a donor his gift when delivered, 
 
 porationsas contracts protected from invasion is now to be considered perfectly well settled, 
 
 by the Constitution of the United States, no Enfield Toll Bridge Co. v. The Conn. Eiver 
 
 other court in this country has disregarded Co. 7 Conn. 44; The Derby Turnpike Co. v. 
 
 the doctrine; and we consider it now as ob- Park, 10 Conn. 541 ; The People v. Platt, 17 
 
 ligatory and settled beyond our reach either Johns. II. 215. 
 
 to deny or disregard, even if any of us should J Piscataqua^ Bridge v. K H. Bridge, 7 
 
LEGISLATIVE CONTRACTS. 595 
 
 The general principle is thus settled in regard to corporate 
 grants, or to contracts resulting from acts of incorporation ; but 
 a very important modification or qualification was attached to 
 the rule by a subsequent decision of the Supreme Court of the 
 United States. They decided that all acts of incorporation, 
 like other public grants, are to be construed strictly, and that 
 no contract or agreement is to be inferred in them, as against 
 the Government and in behalf of the corporation, but what 
 they expressly contain. So, where the Legislature of Massa- 
 chusetts, in 17 8 5, granted a charter for seventy years to a 
 bridge company, with the right of taking tolls, across the 
 Charles river, and in 1828 the State incorporated another com- 
 pany with like authority to build a toll bridge, in such close 
 proximity to the first bridge as actually to take away its tolls 
 and destroy the value of its franchises, it was held that this 
 last act was valid, on the ground that the original bridge char- 
 ter contained no express grant of exclusive privilege, and that 
 the whole matter was within the legitimate control of the Legis- 
 lature. This important doctrine has been repeatedly affirmed, 
 and, I think, has commended itself to the general good sense 
 no less than the sound legal judgment of the country.* 
 
 Having thus exhibited the leading rules which declare the 
 definition of contracts within the meaning of the Constitution, 
 it will be well to examine some of the special cases. 
 
 A compact was entered into between the States of Virginia 
 and Kentucky, contained in an act of the Legislature of the 
 former State, passed the 18th of December, 1789, and ratified 
 by the convention which framed the Constitution of Kentucky, 
 and incorporated into that Constitution, to the effect that all 
 private rights and interests of lands within the district of 
 Kentucky derived from the laws of Virginia prior to their sep- 
 aration, should remain valid and secure under the laws of the 
 proposed State, and should be determined by the laws then 
 existing in the State of Virginia. Two laws were passed by 
 
 N. H. 35. This was a case of a bill filed by Bridge v. The Proprietors of the Warren 
 
 a bridge company to restrain parties from Bridge, 11 Peters, 420. Story, J., dissented, 
 
 proceeding to create another bridge, and thus See, to s. P., The Richmond R. R. Co. v. 
 
 infringing on the exclusive rights of the Louisa R. R. 13 Howard, 81 ; Ohio L. I. Co. 
 
 plaintiffs. v. Debolt, 16 Howard, 430. 
 * The Proprietors of the Charles River 
 
596 LEGISLATIVE CONTRACTS. 
 
 the State of Kentucky in February, 1797, and January, 1812 r 
 concerning occupants and claimants of land, materially affecting 
 private rights and interests to land, by exempting occupants 
 without title from liability for waste, as well as for rents and 
 profits, and compelling the true owner to pay for improvements 
 put on the land by the occupant, even during the pendency of 
 the suit. No acts of a similar character were in existence in 
 Virginia at the time when the compact was made. The Supreme 
 Court held that the compact between the two States came 
 within the constitutional clause; that the laws in question 
 rendered the rights and interests of owners less valid and 
 secure, and thus impaired the contract ; and that Kentucky 
 being a party to the original compact, which guaranteed those 
 rights, could not constitutionally pass the statutes in question.* 
 
 Where the Legislature of Arkansas chartered a bank, the 
 whole of the capital of which belonged to the State, and de- 
 clared that the bills and notes of the institution should be 
 received in payment of debts due to the State, it was held that 
 the undertaking of the State to receive the notes of the bank 
 constituted a contract between the State and the holders of 
 these notes, which the State was not at liberty to break ; but 
 that a repeal of the act put an end to the contract as to all 
 notes subsequently issued, f 
 
 The provision of an act incorporating a railroad, that no 
 other railroad shall be authorized to be made between the same 
 points for thirty years, constitutes a contract to that effect 
 which no subsequent act can be permitted to impair. J 
 
 In regard to the nature of contracts resulting from acts of 
 legislation, it appears to be settled by the Federal tribunals 
 that it is competent for a State to pass laws exempting property 
 from taxation, which shall operate as contracts, and as such be 
 irrepealable. The Delaware Indians, having large claims to 
 the southern part of New Jersey while yet a colony, surrendered 
 
 Green v. Biddle, 8 Wheaton, 1. Mr. f Woodruff Y. Trappnnll, 10 Howard, 191 ; 
 
 Justice Johnson dissented. see also Paup v. Drew, 10 How. 218, on the 
 
 The doctrine of Green v. Biddle was ap- subject of this charter. 
 
 proved and applied in Tennessee, in 1830, to \ Boston and Lowell R. R. Corporation v. 
 
 a case coming up under their State Constitu- Salem and Lowell R. R. Co. 2 Gray, 1. 
 
 tion, which contains a provision similar to || This subject of exemption from taxation 
 
 that of the Constitution of the United States, we have already partially considered, ante, 
 
 Nelson v. Allen et al. 1 Yerger, 360. p. 511. 
 
EXEMPTION FROM TAXATION. 597 
 
 them upon an agreement made between them and the commis- 
 sioners of the colony, by which in consideration of the cession 
 the colony agreed to purchase a tract of land for them to reside 
 on, and the Assembly, in an act passed on the 12th of August, 
 1758, to carry this agreement into effect, declared that the 
 lands to.be purchased for the Indians should be thereafter 
 exempted from taxation. Under the act the agreement was 
 executed and lands purchased for them, which they held till 
 about 1801, when they obtained an act from the Legislature oi 
 the State of New Jersey authorizing them to sell. This act 
 contained no reference to the exemption from taxation. In 
 1803, the Indians sold the lands to the plaintiff in this suit. 
 In 1804, the State of New Jersey repealed the section of the 
 act of 1758 exempting the lands from taxation; and the ques- 
 tion presented was on the constitutionality of this repeal. The 
 court held, that the proceedings between the colony of New 
 Jersey and the Indians, formed a contract ; a privilege, though 
 for the benefit of the Indians, being annexed to the land, not to 
 their persons, that the purchaser had succeeded with the assent 
 of the State to all the rights of the Indians ; and they declared 
 the act unconstitutional and void.* 
 
 In 1845, the State of Ohio passed a general banking law 
 by which it was declared that every banking company organ- 
 ized under the act should serni-annually set off six per cent, on 
 its profits ; and that this should be in lieu of all taxes to which 
 the company or the stockholders should be subject. In 1851, 
 'an act was passed to tax banks, which provided that bank 
 stock should be taxed at the same rate as other personal prop- 
 erty. It was contended for the State, that the act of 1845 was 
 a mere law prescribing a rule of taxation ; that the relinquish, 
 ment of the taxing power could not be made the matter of a 
 binding contract; and that the permanent exemption from 
 taxation was a relinquishment of a portion of the sovereign 
 power of the State, which no legislature could make. But the 
 Supreme Court of the United States held that the act of 1845 
 created a contract fixing the limit of taxation on the banks in 
 
 * State of New Jersey v. Wilson, 7 Cranch, 165 1812. 
 
598 EXEMPTION FROM TAXATION. 
 
 question ; that the position that a State in exempting certain 
 property from taxation relinquished a part of its sovereign 
 power, was an unfounded assertion ; that it was as competent 
 for a State to make a contract in regard to exemptions from 
 taxation as in regard to any other matter; and the act of 1851 
 was held unconstitutional and void. * 
 
 The same question, or one closely analogous, was presented 
 shortly afterwards in another shape, and it was decided that, 
 where the State of Ohio in 1845 chartered a bank, in the charter 
 of which it was stipulated that the tax which the bank should 
 pay should be computed on a certain principle, and should not 
 exceed a certain sum; and in 1852 the Legislature passed an 
 act assessing taxes on the bank to a greater amount and on a 
 different principle, the law was in conflict with the clause of 
 the Constitution of the United States relating to the obligation 
 of contracts, and void. And the fact that the people of the 
 State had in 1851 adopted a new Constitution, in which it was 
 declared that taxes on banks should be imposed in the mode 
 which the act of 1852 purported to carry out, was held not to 
 release the State from the obligations imposed on it by the 
 Constitution of the United States, f 
 
 Again, where the Legislature of the State of Maryland ac- 
 cepted from a banking corporation a bonus as a consideration 
 for the franchise granted, and pledged the faith of the State 
 not to impose any further tax or burden upon them during 
 the continuance of their charter, it was held, that this was a 
 pledge against additional taxation; that the exemption oper- N 
 ated as well in favor of the stockholders personally as of the 
 capital stocks of the banks ; and that a tax upon the stock- 
 holders by reason of their stock impaired the obligation of this 
 contract ; and the tax was therefore declared illegal. J 
 
 * State Bank of Ohio v. Knoop, 16 How. which State decisions control the Supreme 
 369. Catron, J., Daniel, J., and Campbell, J., Court of the United States, 
 dissented. See also the case of the Ohio Life f Dodge v. Woolsey, 18 How. 330; Wool- 
 Insurance and Trust Co. v. Dubolt, 16 How- sey v. Dodge, 6 M'Lean, 142. 
 ard, 416, on the same banking laws. The \ Gordon v. Appeal Tax Court, 3 How. 133. 
 opinions in these cases, as well of the court The same result in regard to contracts for 
 as of the dissenting members, are of great in- exemption from taxation, has been declared 
 terest in regard to the subject of State con- in Connecticut, but doubted in New Hamp- 
 tracts, the general nature of legislative power, shire. Osborn v. Humphrey, 7 Conn. 335 ; 
 exemptions from taxation, and the extent to Brewsterv. Hough, ION. H. 138; ante, p. 511. 
 
EXEMPTION FROM TAXATION. 
 
 599 
 
 . But, in analogy to the rules requiring a strict interpretation 
 to be applied to all corporate grants, it is held, that although a 
 contract may be made exempting a party from taxation it must 
 be very clear and express. The taxing power of a State is 
 never presumed to be relinquished unless the intention to re- 
 linquish is declared in clear and unequivocal terms.* So, when 
 a State enacted that the real property belonging to a hospital 
 " should be, and remain free from taxes," it was held, that there 
 being nothing in the exempting statute in the nature of a con- 
 tract, it was liable to repeal. " No duty," said the Supreme 
 Court of Pennsylvania, " is imposed on the institution as the 
 consideration of the grant ; it is required to do nothing ; it is 
 ' left to pursue its own course as freely as before." f 
 
 In the cases just examined, we have seen that the legislative 
 acts are sometimes held to create a contract, and treated accord- 
 ingly. But we have already J stated that in the term contracts 
 are not included rights, or rather interests, growing out of 
 measures of public policy. So, no contract is created by a stat- 
 
 in New Jersey also it has been decided 
 that when an incorporated company is by its 
 charter exempt from taxation, the stock in the 
 hands of the stockholders cannot be taxed ; it 
 represents and is the title to the property of 
 the company, and therefore is included in the 
 exemption of the charter. The State v. Bra- 
 nin, 3 Zabriskie, p. 485. In this case the ab- 
 solute power of the Legislature over the sub- 
 ject of taxation, is strongly declared. 
 
 See also on the subject of exemption from 
 taxation of stockholders of institutions them- 
 selves exempt, Johnsen v. The Commonwealth, 
 7 Dana, 342; Tax Cases, 12 Gill & J. 117; 
 Gordon's Ex'ors v. The Mayor of Bait. 5 Gill, 
 236 ; Smith v. Burley, 9 New Hampshire, 423. 
 See the subject of statutory exemptions from 
 taxation elaborately considered also in Lan- 
 don v. Litchfield, 11 Conn. 251. 
 
 * Philadelphia & Wilmington R. R. Co. v. 
 Maryland, 10 Howard, 393 ; Providence Bank 
 v. Billings & Pittman, 4 Peters, 614. 
 
 f Hospital v. Philadelphia Co. 24 Penn. 
 229. 
 
 An interesting question of a somewhat anal- 
 ogous nature, has been raised in Massachu- 
 setts in regard to the application of the con- 
 stitutional provision to the grants of lands 
 made in that State to to^ns for the support 
 of the ministry. In 1797 the Legislature 
 passed a resolve authorizing the sale of certain 
 ministry lands in the town of Lanesborough, 
 and the distribution of the income between 
 
 the Congregational and Episcopal societies, 
 and providing for the appointment of trustees, 
 but with a proviso that it should be in the 
 power of the Legislature, on the future appli- 
 cation of any new denomination of Christians 
 in the town, to make a new appropriation. 
 In 1814, the proviso reserving power to the 
 Legislature was repealed, and the actual ap- 
 propriation confirmed. In 1837, the Legisla- 
 ture on the application of the Baptists passed 
 a resolve, that a portion of the income should 
 be paid to that society. It was held, that un- 
 der the special circumstances of the case, the 
 repeal of the proviso was neither a renuncia- 
 tion nor a final execution of the power re- 
 served to the Legislature, and did not pre- 
 clude them from exercising the power re- 
 served; and that the resolve of 1837 was 
 valid. But the court said, " Whether this 
 power, reserved as a perpetual benefit in 
 favor of denominations of Christians who 
 should afterwards spring up in that town, 
 could be renounced by one Legislature so as to 
 bind their successors, if done after notice to 
 all parties then existing; or whether the 
 court would be bound to presume that an act 
 done by the Legislature was done after due 
 notice, are questions of difficulty, on which 
 we give no opinion." Per Shaw, C. J. in 
 Congr. Soc. in Lanesboro' v. Curtis, 22 Pick. 
 332 ; see also Humphrey v. Whitney, 3 Pick. 
 158. 
 
 t Ante, p. 581. 
 
600 MEASURES OF PUBLIC POLICY. 
 
 ute fixing the emoluments of a public office ; and where a Penn- 
 sylvania act reduced the per diem compensation of a public 
 officer during the term for which the office, with its remunera- 
 tion, had been fixed by a previous statute, it was held that the 
 original law created no contract.* So, a grant by a Legislature 
 to a county, of a sum forfeited, may be refunded. Such a grant 
 creates no contract, on the ground that it is made to a public 
 body, and for public not private purposes.f So, the grant of a 
 ferry franchise to a town, creates no contract by which the 
 town can claim a permanent right to the ferry ; and the Legis- 
 lature may, in its pleasure, discontinue the ferry ; and this, both 
 on the ground that the ferry franchise related only to public 
 interests, and also that the town was a mere organization for 
 public purposes, and that the grant was rather in the nature of 
 legislation than of compact. J 
 
 The same doctrine has been applied to municipal ordinances ; 
 and it has beefl decided that the corporation of cities cannot 
 make permanent and irrepealable contracts in regard to matters of 
 public interest ; or, as the proposition is sometimes put in other 
 words, that they cannot strip themselves of any portion of their 
 legislative power. So, it has been held by the Supreme Court of 
 the United States, in regard to an ordinance for grading streets ; | 
 and so in New York, in regard to ordinances regulating the inter- 
 
 7 O O O 
 
 ment of the dead.^f In the latter case, it was determined that or- 
 dinances declaring it unlawful to inter in cities, and which by 
 their necessary operation annulled or revoked the covenants and 
 permissions contained in prior grants of land ceded for cemetery 
 purposes, were valid. It was held that this was so, although the 
 contract was thus annulled by the very body that made it. It 
 was said, " There is, indeed, a seeming inconsistency ; but the 
 defendants, the city, had no power to limit the legislative dis- 
 
 * Butler c? a/. T.Pennsylvania, 10 How. 416. | Goszler v. The Corporation of George- 
 
 f The State of Maryland v. Bait. & Ohio town, 6 Wheat. 593. 
 
 Pt. K. 3 Howard, 551. See also, The People J Presb. Church v. City of N. Y. 5 Cowen, 
 
 v. Morris, 13 Wend. 325; The Common- 542; Coates & Stuyvesant v. The Mayor of N. 
 
 wealth T. Bacon, 6 Serg. & Rawle, 322 ; The Y. 7 Cow. 58. So decided, also, by Nelson, 
 
 Commonwealth v. Mann, 5 Watts <fe Sergeant, J.,in The Mayor v. Brittain (not reported), in 
 
 418; Barker v. The City of Pittsburgh, 4 regard to a street-cleaning contract. I am in - 
 
 Barr, Penn. R. 51. debted for this last case to the kindness of M. 
 
 $ East Hartford v. Hartford Bridge Co. 10 V. B. Wilroyson, Esq., assistant counsel to the 
 
 Howard, 534. See also, Mills v. St. Clare corporation. 
 Company, 8 Howard, 569, 581. 
 
MUNICIPAL ORDINANCES. 
 
 601 
 
 cretion by covenant, and they are not estopped from giving 
 this answer." 
 
 The most serious question that yet exists in regard to the 
 true meaning of the phrase contract under this clause, relates 
 to the subject of marriage. It has been insisted that the Con- 
 stitutional clause only related to pecuniary contracts ; and in 
 regard to marriage, it has been urged that the agreement is not 
 
 O O 7 ~ O 
 
 strictly a contract, but a civil relation, entirely subject to the 
 control of municipal law. On this point, different and conflict- 
 ing decisions have been made. In Missouri, adhering to an in- 
 timation very early made obiter by the Supreme Court of the 
 United States, f it has been decided that marriage is a contract 
 within the meaning of the Constitution, and protected by the 
 clause in question ; and an act of the General Assembly grant- 
 ing a divorce, was held unconstitutional and void.J 
 
 On the other hand, in Maine, the Supreme Court has held 
 that the clause in regard to the obligation of contracts, does 
 
 O O / 
 
 * Presb. Church v. City of N. Y. 5 Cowen, 
 p. 542. 
 
 la England, it has been said that a deed, 
 or covenant, cannot operate in direct opposi- 
 tion to an act of Parliament ; which negatives 
 the idea of the party being prevented by es- 
 toppel from setting up the act. Fair Title v. 
 Gilbert, 2 T. R. 171. 
 
 In connection with this, I may here notice 
 the question whether an agreement to do a 
 thing lawful at the time is annulled by a stat- 
 ute declaring the act unlawful. In an early 
 case, 1683, it was held, that if the thing to be 
 done was lawful at the time when the defend- 
 ant entered into the covenant, though after- 
 wards prohibited by act of Parliament, yet 
 the covenant was binding. Brason v. Dean, 
 3 Mod. 39. 
 
 But a different and more rational doctrine 
 was soon after laid down ; and it was declared 
 that the distinction between the cases when a 
 statute repeals a covenant and when it does 
 not, is this : when a man covenants not to 
 do a thin<j which was lawful for him to do, 
 and an act of Parliament comes after and com- 
 pels him to do it, then the act repeals the 
 covenant ; so, if a man covenant to do a thing 
 which is lawful, and an act of Parliament 
 comes and hinders him from doing it, the cov- 
 enant is repealed ; but if a man covenants not 
 to do a thing which then was unlawful, and an 
 act comes and makes it lawful to do it, such 
 act of Parliament does not repeal the covenant. 
 Brewster v. Kitchin, 1 Ld. Ray. 317; s. c. 1 
 Salk. 198. The same rule has been declared 
 in New York, and applied to municipal cor- 
 
 porations, as above. Presb. Church v. City 
 of N. Y. 5 Cowen, 542. 
 
 f Dartmouth College T. "Woodward, 4 
 Wheaton, 518. 
 
 \ The State, to. the use of Gentry v. Fry, 
 4 Miss. 120. The divorce was also pronounced 
 unconstitutional on the ground that the 
 grant of a divorce was a judicial and not a 
 legislative act. See this case, also, for an 
 elaborate discussion on the subject of the dis- 
 tribution of powers between the Legislature 
 and the judiciary and the executive. The 
 case of Bryson v. Campbell, 12 Miss. 498, 
 was decided in 1849, on the authority of 
 Gentry's case, which was said to be the 
 settled law of the State. 
 
 Several other points decided in this case 
 may be noticed here. Retrospective laws 
 are said neither to accord with sound legisla- 
 tion, nor with the fundamental principles of 
 the social compact. Yet the Constitution of 
 the United States has not made any provision 
 against their passage, and many of the State 
 Constitutions contain no guard against them. 
 All such retrospective laws may be passed, 
 and when passed are binding and obligatory 
 on the judiciary. The Constitution, however, 
 of this State has provided against these laws 
 in express terms ; and, therefore, all such as 
 have a retrospective action, either upon con- 
 tracts or other acts, are by this provision 
 void. P. 135. 
 
 It is conceded that the Legislature is not 
 bound to assign a cause for the passage of 
 any law. P. 156. 
 
 The right of the judiciary to decide a law 
 
MARRIAGE AM) DIVORCE. 
 
 not relate or apply to marriages.* They said, however, at the 
 same time, that under the clause in regard to the division of 
 power into executive, legislative, and judicial, the Legislature 
 had no power to grant divorces in cases where the Supreme 
 Court had jurisdiction ; but that the power to grant divorces 
 existed where that tribunal had no jurisdiction. 
 
 In Connecticut, too, legislative divorces have been sus- 
 tained ; and it has been said that they were neither invalid as 
 within the Constitutional clause, nor repugnant to the State 
 Constitution as an assumption of judicial power by the Legisla- 
 ture ; but much stress was laid on the appalling consequences of 
 declaring all the legislative divorces of the State void ; and the 
 result appears to have been arrived at more on that ground than 
 on any other.f It has also been said, in New York, that marriage 
 was not a contract, in the strict common-law sense of that term. J 
 
 In Florida, the marriage contract is considered within the 
 protection of the Constitution. | But in Kentucky it is treated 
 as an institution created by the public law, and subject to the 
 public wilLT And this, according to Mr. Chancellor Kent, is 
 the true construction.** 
 
 The act of New York, of 1848, entitled, "An Act for the 
 more effectual protection of the property of married women," 
 of which the object was to make a complete change of the rela- 
 tions of husband and wife as regards property, declares that 
 the real and personal property, and the rents, issues, and profits 
 thereof, of any female now married, shall not be subject to the 
 disposal of her husband, but shall be her sole and separate 
 property, except so far as the same may be liable for the debts 
 
 to be unconstitutional, follows inevitably from | Ponder v. Grahnm, 4 Florida, 23. 
 
 its duty to declare what the law is. P. 178. ^[ Maguire v. Maguire, 7 Dana, 184. 
 
 In New York, in the following cases, it ** Kent Comm. vol. i, p. 417, note. I cite 
 
 has been intimated that the contract of mar- the 8th edition. 
 
 riage, and its incidents, as the wife's right of In New Hampshire, it has been decided 
 dower, are within the provisions of the Con- that a grant of a divorce is a judicial proceed- 
 stitution as to the obligation of contracts, ing ; that the Legislature may provide by 
 Kelly v. Harrison, 2 J. Cases, 29 ; Jackson v. general laws, having no retrospective effect, 
 Edwards, 22 Wend. 498 ; Lawrence v. Miller, for the dissolution of existing marriages ; but 
 2 Corns. 245. See, also, Moore v. The Mayor, that an act altering the law of the contract, 
 4 Seld. 110, as to dower, and Westervelt v. and empowering the courts to grant divorces 
 Gregg, 2 Kernan, 202, as to the husband's for causes which, when they occurred, fur- 
 right to the wife's choses in action. Ante, p. nished no ground for the dissolution of the 
 
 marriage, is a retrospective law, within the 
 
 * Opinion of Justices, 16 Maine, 479. provision of the Constitution of that State, 
 
 f Starr v. Pease, 8 Conn. 548. See the and as such void. Clark v. Clark, 10 N. H. 
 
 opinion of Peters, J., in part dissenting. 381. See, in this case, the comments of 
 
 \ White v. White, 5 Barb. 474. Parker, C. J., on the Dartmouth College Case. 
 
MARRIAGE AND DIVORCE. 603 
 
 of the husband heretofore contracted. It has been held that 
 this law, so far as it was intended to affect existing rights of 
 property in married persons, was, in regard to marriages cele- 
 brated before its passage, unconstitutional and void; on the 
 ground that, as regards property, the contract of marriage 
 must stand on the same footing as other contracts ; that the 
 law, as it existed at the time of the making of the contract, 
 formed part of the contract.* 
 
 In the same State, however, it has been held that dower is 
 not the result of a contract, but a positive institution of the 
 State ; and a law extinguishing the wife's right to dower during 
 the husband's lifetime, does not infringe the provision of the 
 Federal Constitution in regard to contracts, f 
 
 I may close this branch of niy subject by stating that it has 
 been intimated that the constitutional provision applies to 
 cases of contract strictly ; and that where the obligation, though 
 of a pecuniary nature, results from a duty imposed on the party 
 by statute, it is wholly under legislative control.^ 
 
 We proceed to the second head of inquiry in regard to the 
 clause of the Constitution now under discussion. WJiat acts of 
 State legislation are considered to impair the obligation of a con- 
 tract ? (a) In reference to this, at the outset, we may remark 
 that, so far as regards the legislation of the several States, the 
 
 * Holmes v. Holmes, 4 Barbour, 296, per \ Per Gridley, J., 17 Barb. 116, in regard 
 Barculo, J. to the laws regulating manufacturing cor- 
 
 f Moore v. The Mayor, <fec. 4 Selden, 110. porations in New York. 
 
 (a) What is meant by the Obligation of a Contract f Undoubtedly much of the 
 conflict in the judicial decisions attempting to give a construction to this constitu- 
 tional provision, has grown out of a misapprehension of the meaning of the phrase 
 " obligation of contracts." The general tendency of the State courts has been to up- 
 hold certain classes of State legislation which affect the integrity of contracts in an 
 indirect manner, such as stay laws, exemption laws, and the like ; and in this course 
 of judicial decision such courts have either expressly or by necessary implication 
 restricted the application of the word " obligation " to the very matters embraced 
 within the stipulations of the contracting parties, so that legislation which did not 
 assume to interfere in terms with these stipulated matters was pronounced valid. 
 The Supreme Court of the United States, as the ultimate judicial interpreter of the 
 national Constitution has, however, on several occasions corrected the errors of the 
 State judiciary, and has given a definition of the word and phrase which must be 
 authoritative and final. We quote the definition as given in one or two cases : " The 
 obligation of a contract consists in its binding force on the party who makes it. 
 This depends upon the laws in existence when it was made ; these are necessarily 
 referred to in all contracts, and forming a part of them as the measure of the obliga- 
 
604 WHAT IMPAIRS A CONTRACT. 
 
 courts of the United States have no right to interfere by virtue 
 of the restraining power of the Federal Constitution, except in 
 the two cases of ex post facto laws, and laws impairing the 
 obligation of contracts. The States may pass retrospective 
 laws, however unjust ; pass acts of a judicial nature, however 
 clearly overstepping the line of legislative power ; they may 
 pass acts divesting vested rights ; they may violate express 
 provisions of their own Constitutions; acts of these classes, 
 
 tion to perform them by the one party, and the right acquired by the other. There 
 can be no other standard by which to ascertain the extent of either than that which 
 the terms of the contract indicate according to their settled legal meaning ; when it 
 becomes consummated, the law defines the duty and the right, compels the one 
 party to perform the thing contracted for, and gives the other a right to enforce the 
 performance by the remedies then in force." McCracken v. Haywarcl, 2 How. (U. S.) 
 612, per Baldwin, J. In Curran v. Arkansas, 15 How. (U. S.) 304, 319, Mr. Justice 
 Curtis very concisely said : " The obligation of a contract, in the sense in which 
 these words are used in the Constitution, is that duty of performing it which is recog- 
 nized and enforced ty the laics. And if the law is so changed that the means of 
 legally enforcing this duty are materially impaired, the obligation of the contract no 
 longer remains the same." This short definition is perfectly accurate, if we remem- 
 ber that there can be no duty resting upon one contracting party without a corre- 
 sponding right held by the other, and that the " obligation " embraces both these 
 legal relations. " These propositions may be considered consequent axioms of our juris- 
 prudence. The laws which exist at the time and place of the making the contract and 
 when it is to be performed, enter into and form a part of it. This embraces alike those 
 which affect its validity, construction, discharge, and enforcement. Nothing is more 
 material to the obligation of a contract than the means of its enforcement. The ideas 
 of validity and remedy are inseparable, and both are parts of the obligation, which is 
 guaranteed by the Constitution against impairment. The obligation of a contract ' is 
 the law which binds the parties to perform their agreement.' Any impairment of the 
 obligation of a contract the degree of the impairment is immaterial is within the 
 prohibition of the Constitution." Walker v. Whitehead, 16 Wai. 314, 317, per Swayne, 
 J. We cite the definition given by a recent text writer based upon an analysis of the 
 decisions of the U. S. Supreme Court and of the word as used in the Roman law where 
 it is a term of science. " First the term is not to be restricted to ' duty ; ' it is to be 
 taken in its Roman sense as including ' right ' as well as duty ; it is ' obligatio] the 
 binding the binding of two things together, namely, the right of one party and the 
 duty of the other ; which binding is done by the law. Secondly, ' the obligation of a 
 contract, 1 is, therefore, the collective legal rights and duties which the existing law 
 applicable to the contract raises or creates out of or from the stipulations of the par- 
 ties ; rights which it devolves upon one party, and corresponding duties which it lays 
 upon the other. * * * * It may be considered, therefore, as settled that the obli- 
 gation of a contract is not what the parties have in terms agreed to do or to forbear; 
 but is the legal effect given to those agreements by the whole of the existing law ap- 
 plicable to such contract ; it includes the rights and duties which the whole existing 
 law creates from the fact of such contract being made." Pomeroy's Introduction to 
 Const. Law, 592, 594. See Walker v. Whitehead. 16 Wall. 314, 317. 
 
WHAT IMPAIRS A CONTRACT. 605 
 
 however objectionable, are not within the scope of the restric- 
 tion of the Federal Constitution, and give no right of appeal 
 from the decisions of the State tribunals.* Questions of this 
 nature can only be presented in the Supreme Court of the 
 United States in cases arising in the circuit courts, within the 
 jurisdiction given to them under the Constitution of the United 
 States, and where, consequently, the circuit courts exercise all 
 the powers of the State tribunals. In regard to the present 
 subject of investigation, therefore, the inquiry is, What legisla- 
 tion is held to impair contracts f And in regard to this, it is 
 well here to remark that it has been said, by a very eminent 
 judge of the Supreme Court of the United States, that " after 
 a careful examination of the questions adjudged by this court, 
 they seem not to have decided in any case that the contract is 
 impaired, within the meaning of the Constitution, where the 
 action of the State has not been on the contract." f 
 
 The clause of the Constitution embraces, as we have seen, 
 private agreements, or agreements inter partes ; and public 
 agreements, as they may be called, resulting from acts of legis- 
 lation. In regard to public agreements growing out of statutes 
 creating charters, and similar enactments, the questions arising 
 in regard to what acts impair them have not been numerous, as 
 the case generally turns on the true construction of the act con- 
 taining the alleged contract. But in regard to private agree- 
 ments, the subject of our present inquiry has presented many 
 veiy perplexing subjects of investigation, (a) 
 
 * Calder v. Bull, 3 Dall. 380 ; Satterlee v. claiming under it. It was objected, that the 
 Matthewson, 2 Peters, 413 ; the Charles River act of 1826 violated the obligation of a con- 
 Bridge Case, 11 Peters, 538. See comments tract; but the Supreme Court said that it did 
 of Mr. Senator Verplank, in Cochran v. Sur- not, either in its terms or in its principles ; 
 lay, 20 "Wend. 379, on Fletcher v. Peck and and they held the plaintiff's recovery below 
 Satterlee v. Matthewson. Watson v. Mercer, final and conclusive, declaring, ' also, that 
 8 Peters, 110; Bait, and S. R. R. v. Nesbit, the court had no right to pronounce an act 
 10 Howard, 401 ; East Hartford v. Hartford of a State Legislature void as contrary to the 
 Bridge Co. 10 Howard, 539. Constitution of the United States, from the 
 
 It may be well to give somewhat at mere fact that it divests antecedent vested 
 
 length one of these cases. In 1785, a deed rights ^f property; and that the Constitution 
 
 was executed of lands in Pennsylvania, which, prohibited no retrospective legislation, ex- 
 
 by reason of a defective acknowledgment un- cepting the passage of tx post facto laws 
 
 der the then law, was insufficient to pass the which term is only applied to penal and crim- 
 
 title. In 1826, a statute of the State was inal laws, and laws violating the obligation 
 
 passed to cure the defect, so as to make the of contracts. Watson v. Mercer, 8 Peters, 88. 
 
 deed as effectual as if properly acknowledged; f In Charles River Bridge v. Warren 
 
 and ejectment was then brought by parties Bridge, 11 Peters, 581, per Mr. Justice M'Lean. 
 
 (a) What State Laws Impair the Obligation of Contracts. All laws which can by 
 
606 WHAT IMPAIRS A CONTRACT. 
 
 Of these, one of the most important relates to the control 
 which may be exercised over private contracts, in the shape of 
 
 possibility impair the obligation of a contract must apply either directly to the terms 
 thereof, or directly to the remedy by which it is to be enforced. Such impairing 
 may be defined to be the preventing, hampering, or hindering, the enjoyment and 
 enforcement of the contract rights or duties by any legislation which was not neces- 
 sarily in the contemplation of the parties at the date of the contract, as being either 
 actually provided for and reserved in the lex loci, or as being a possible and proper 
 exercise of the powers of taxation, of eminent domain, or of police. In other words, 
 all such legislation as was expressly provided for or reserved by the existing law at 
 the date of the contract, and all such as may be a proper exercise of either of the 
 three great governmental powers taxation, eminent domain, and police is to be 
 considered as entering into and forming a part of the entire contract obligation, as 
 shaping the contract rights and duties, and of course such legislation cannot " im- 
 pair " the obligation. "We shall consider the two classes above stated separately. 
 The obligation may be impaired not only by State statutes, but by State Constitu- 
 tions. Railroad Co. v. McClure, 10 Wai. 511 ; Gunn v. Barry, 15 Wall. 610. But 
 the decision of a State court cannot, be reviewed by the U. S. Supreme Court on the 
 ground alone that sych decision impairs the obligation of a contract. Bethel v. 
 Demarest, 10 Wai. 537. 
 
 Laws which apply directly to the Terms of the Contract. 
 
 State Insolvent Laws. The two fundamental propositions stated in the text are 
 settled by ample authority of the State and the national courts, but the doubts sug- 
 gested upon the authority of Massachusetts decisions have been removed. The 
 following is a resume of the established rules. The operation of State insolvent 
 laws upon pre-existing contracts being to destroy their obligation, such effect is, of 
 course, excluded by the constitutional guaranty. Where the contract is made after 
 the passage of the insolvent law, between citizens of the State in which the law 
 exists, and is to be performed in that State, and the parties continue to reside there- 
 in up to the time of the discharge, the discharge is valid. Wilson v. Mathews, 32 
 Ala. 332. When the contract is made between citizens of different States, and is 
 not by its terms to be performed in the State of the debtor, and the discharge is 
 obtained in the latter State, and the creditor has done nothing to waive his consti- 
 tutional privilege, the discharge is clearly invalid. Whiting v. Whiting, 35 N. H. 
 457. 
 
 The courts of Massachusetts for a time maintained the doctrine stated in the 
 text, that if the contract, by its express terms, was to be performed in the State 
 where the debtor resided and where he obtained his discharge, the creditor would 
 be bound by such discharge, though he was all the time an inhabitant of another 
 State. Scribner v. Fisher, 2 Gray, 43 ; Marsh v. Putnam, 3 Gray, 551 , 563, 564. But 
 this doctrine has been completely overturned, and it is settled that under such cir- 
 cumstances, namely, where the contract was by its express terms to be performed in 
 the State of the debtor's residence, and in which he obtained his discharge, the 
 debtor and the creditor being inhabitants of different States, and the creditor having 
 done nothing to waive his right, the discharge would be void. Baldwin v. Hale, 1 
 Wai. 223 ; Oilman v. Lockwood, 4 Wai. 409 ; Kelly v. Drury, 9 Allen, 27 ; Donelly 
 v. Corbett, 7 N. Y. 500. The Supreme Court of the United States puts its decision 
 upon the ground that such insolvent laws have no extraterritorial effect, and that 
 
WHAT IMPAIRS A CONTRACT. 607 
 
 State insolvent or bankrupt laws, whether acting on the person 
 or property of the debtor ; whether applying to subsequent or 
 
 as the rights of the creditor are to be affected, those rights must be taken away by 
 laws of the jurisdiction of which he is a member, and not by the laws of any other 
 jurisdiction. Notwithstanding these reasons and grounds for the rule, it has since 
 been held in 'Massachusetts, that where the contract was made between citizens of 
 the same State, and was to be performed in that State, a discharge granted therein 
 under an insolvent law in force at the date of the contract is good, although the 
 creditor has before such discharge removed his residence to another State. Stoddard 
 v. Harrington, 100 Mass. 87. In this case, the Massachusetts couit adheres to the doc- 
 trine that the right or capacity of discharge inheres in the contract itself. 
 
 It is conceded by all the cases that if the creditor voluntarily makes himself a 
 party to the proceedings in insolvency, he is bound by them wherever he may reside, 
 and cannot afterwards object to the validity of the discharge on account of his own 
 residence. This rule seems to assume that the effect of the discharge depends upon 
 the creditor's status or acts, and not upon any quality originally impressed upon the 
 contract. 
 
 Laws affecting Private Corporations. Laws imposing new burdens upon chartered 
 corporations not municipal, or taking away their privileges, impair the obligation of 
 the contract; but, on the other hand, such corporations are not exempt from the 
 exercise of the State's powers of taxation, of eminent domain, or of police ; and if 
 the State had reserved in the charter itself, or in a general statute, the power to 
 alter or repeal the charter, such express power would form part of the obligation, 
 and could be exercised. 
 
 The following cases are illustrations of the first branch of the proposition ; The 
 Legislature cannot declare a charter forfeit, or transfer the franchises or obligations 
 to another corporation. Bruffett v. Great Western R. R. 25 111. 353. And an act 
 providing for the throwing open of turnpike gates if the road should be found out 
 of repair by commissioners was held invalid. Powell v. Sarnmons, 31 Ala. 552. And 
 though the remedy for enforcing a forfeiture of the charter may be altered and made 
 more efficient, no new cause of forfeiture can, it seems, be created. A. & L. Turnpike 
 Co. v. Holthouse, 7 Iml. 59 ; People v. Jackson &c. Co. 9 Mich. 285. The Legislature 
 cannot compel a canal company to rebuild and repair bridges over its canal. Erie 
 v. Erie Canal Co. 59 Penn. St. 174. Nor compel it to make fishways. Common- 
 wealth v. Penn. Canal Co. 66 Penn. St. 41. A statute providing that the coupons 
 upon certain bonds issued thereunder shall be received in payment of all taxes and ' 
 other dues to the State is a contract, and a repeal of it is void as to such coupons. 
 Antoni v. Wright, 22 Gratt. 833. And see Micou v. Tallassee B'dg Co. 47 Ala. 652; 
 Ala. &c. R. R. v. Burkett, 46 Ala. 569. But see Chapin v. Crnsen, 31 Wise. 209. 
 
 In the foregoing and in the following cases it must be understood that no power 
 had been reserved for the Legislature to modify or repeal the charters, and that 
 the charters themselves contained no provisions permitting the acts done by the 
 Legislatures. 
 
 The following cases are illustrations of the second branch of the proposition : 
 It has, been very generally held that, under the police power of the State, although 
 the original charters contained no provisions to that effect, railroads may be com- 
 pelled to maintain fences and cattle-guards as necessary for the public safety. Gorman 
 v. Pacific R. R. 26 Mo. 441 ; Trice v. Han. & St. Jo. R. R. 49 Mo. 438 ; Ohio &c. R. R. 
 v. McClelland, 25 111. 140 ; Blair v. Milwaukee &c. R. R, 20 Wise. 254 ; Winona &c. 
 
608 WHAT IMPAIRS A CONTRACT. 
 
 pre-existing engagements ; whether affecting only citizens of 
 the State passing the law, or having an extraterritorial opera- 
 
 R. R. v. Waldron, 11 Minn. 515; Thorpe v. Rutland &c. R. R. 27 Vt. 140. And 
 crossings of highways by railroads may be regulated. Bangor &c. R. R. v. Smith, 47 
 Me. 34. And railroads may be made liable for cattle killed on their tracks. Indiana 
 &c. R. R. v. Kercheyal, 16 Ind. 84. And for the death of persons caused by their 
 negligence. Board of Int. Imp. v. Scearce, 2 Duv. (Ky.) 576 ; B. C. & M. R. R. v. 
 State, 32 K H. 215 ; S. W. R. R. v. Paulk, 24 Geo. 356 ; Coosa River St. Bt. Co. 
 v. Barclay, 30 Ala. 120. And a city may regulate the speed of trains -within its 
 limits. Whitson v. Franklin, 34 Ind. 392 ; but see State v. Jersey City, 5 Dutch. 
 170. A lottery franchise may be repealed. Moore v. State, 48 Miss. 147. 
 
 A reasonable license may be imposed upon street cars. Johnson v. Philadelphia, 
 60 Penn. St. 445 ; but see Mayor &c. v. Second Av. R. R. 34 Barb. 41. The majority 
 of the directors of a railroad may be required to reside within the State. State v. 
 Southern &c. Pac. R. R. 24 Tex. 80. Insurance companies may be required to give 
 certain information to the Insurance Department. State v. Mathews, 44 Mo. 523. 
 And officers of a corporation of a public nature e. g., a college may be required, 
 to take a test oath. State v. Adams, 44 Mo. 570 ; but as to test oaths, see note on 
 ex post facto laws. 
 
 The true limit of the police power of the State over such corporations was stated 
 in State v. Noyes, 47 Me. 189, as foll-ows: That such regulations may be imposed as 
 are necessary for the safety, not such as are required merely for the convenience of the 
 public. In accordance with this doctrine, a statute requiring trains to wait to make 
 connections with trains on another road was, in that case, held unconstitutional. State 
 v. Noyes, uli sup. On the same principle, a statute imposing a tariff of way freights 
 was held void. Hamilton v. Keith, 5 Bush (Ky.) 458 ; and see People v. New York, 
 32 Barb. 102. See also, on the question of limit upon the police power, People v. 
 Jackson &c. PI. R. 9 Mich. 285, 307 ; Washington Bridge Co. v. State, 18 Conn. 53 ; 
 State v. Jersey City, 5 Dutch. 170. 
 
 The following additional cases illustrate the exercise of the police power over 
 corporations : Veazie v. Mayo, 45 Me. 560 ; Peters v. Iron Mt. R. R. 23 Mo. 107 ; 
 Grannahan v. Hannibal &c. R. R. 30 Mo. o46; Galena &c. R. R. v. Appleby, 28 111. 
 283 ; Horn v. Atlantic &c. R.R. 35 N. H. 169 ; s. c. 36 N. H. 440; Smith v. Eastern 
 R. R. 35 N. H. 356 ; Bulkley v. N. Y. & N. H. R. R. 27 Conn. 479 ; Jones v. Galena 
 &c. R. R. 16 Iowa, 6; Bradley v. Buffalo &c. R. R. 34 N. Y. 427; Lyman v. Boston 
 & Wor. R. R. 4 Cush. 288 ; Fitchburg R. R. v. Grand June. R. R. 1 Allen, 552 ; s. c. 
 4 Allen, 198 ; Clark's Adm'r v. Han. & St. Jo. R. R. 36 Mo. 202. 
 
 Analogous questions may arise as to implied powers of regulation residing in 
 parties other than the State. Thus, on the sale of a college scholarship, the right is 
 impliedly reserved in the college to make all needful rules and regulations as to its 
 enjoyment ; but a regulation requiring students under the scholarship to board in the 
 college was held unreasonable and to impair the obligation of the contract. Illinois 
 &c. College v. Cooper, 25 111. 148. 
 
 The Power of Taxation. The exercise of this sovereign function of government 
 cannot be considered as impairing the obligation of contracts, whether its operation 
 affects charters or any other species of contract, unless under the doctrine at present 
 accepted by the U. S. Supreme Court, the State has in a valid manner, upon a legal 
 consideration, granted an exemption from taxation. The cases in which this doc- 
 
WHAT IMPAIRS A CONTRACT. 609 
 
 tion. These topics, partly growing out of the clause which we 
 are now considering, partly out of the 8th section of the 4th 
 
 trine is generally applied are those growing out of taxation of private corporations; 
 but the doctrine is, of course, not limited to such cases. Thus, corporations can be 
 taxed by general law, but a special tax on the franchises of a single corporation would 
 in many States be invalid under other constitutional provisions. Erie R. R. v. Com- 
 monwealth, 3 Brewst. (Pa.) 868; Bank of Republic v. County of Hamilton, 21 111. 53. 
 
 The bonds of a corporation may, it seems, be taxed, and the .tax deducted from 
 the interest due bondholders. Maltby v. Reading &c. R. R. 52 Penn. St. 140 ; see 
 Buffalo &c. R. R. v. Commonwealth, 3 Brewst. (Pa.) 374. And a mortgage may be 
 taxed, the tax being payable by the mortgagor and deducted from the interest due 
 the non-resident mortgagee. Cook v. Smith, 1 Vroom, 387. Where the State had 
 postponed the lien of its mortgage bonds, on a railroad to allow the negotiation of first 
 mortgage bonds, it was held that it might tax the gross earnings of the road to pay 
 .the interest and principal of its postponed mortgage debt, it not being shown that 
 prompt payment of interest to the preferred bondholders was endangered. North 
 Mo. R. R. v. Maguire, 49 Mo. 490. But where the State was sole stockholder in a State 
 bank, and famished all the capital, it was held that the claims of creditors were para- 
 mount, and that an act authorizing the sale of the effects, &c., and payment of the 
 proceeds into the State treasury, was void. State v. Bank of S. C. 1 Rich. N. S. 63. 
 
 It has been held in Georgia that a statute taxing certain classes of debts, and 
 making an affidavit that such tax was paid within six months after the act was 
 passed a condition precedent to any remedy at law on the claims, was constitutional. 
 Garrett v. Cordell, 43 Geo. 366 ; Walker v. Whitehead, Ib. 538 ; Welborn v. Akin, 44 
 Geo. 420 ; Conally v. Peck, Ib. 430 ; and see West v. Sanson, 44 Geo. 295. It is very 
 plain that this provision as to the condition precedent to maintaining actions is a 
 gross violation of the constitutional guaranty. Granting that the taxing power is 
 unlimited, that the State may tax a debt out of existence by sweeping it all into the 
 State treasury, all remedy on contracts cannot be taken away in this manner as an 
 incident of the taxing power. This statute was held void in Walker v. Whitehead, 
 16 Wai. 314. 
 
 Eminent Domain. The power of eminent domain, when exercised either upon 
 the property of private individuals, or upon the property and franchises of corpora- 
 tions, does not impair the obligation of contracts, as is correctly and fully stated in 
 the text. And see note on " Eminent Domain." 
 
 But an act for the extinguishment of ground rents on payment of their value as 
 found by a jury was held void, the taking not being for a public use. Palairet's 
 Appeal, 67 Penn. St. 479. 
 
 Laws which operate directly upon the Remedy. 
 
 What is the Remedy ? It is laid down in all cases that the remedy may be changed 
 provided the obligation of the contract is not altered. As this proposition is found 
 in decisions of the United States Supreme Court, which pronounce State laws void 
 which extend the time for redemption by mortgagors after sale, or which stay exe- 
 cution on judgments for a period ; and in the decisions of State courts which pro- 
 nounce State laws valid that exempt most, and perhaps all of the debtor's property 
 from execution, and which hold in substance that the obligation of a contract is spent 
 as soon as a judgment is recovered, it is plain that there is a double meaning in it, and 
 
 that different courts use it to cover entirely different conclusions. In many decisions 
 39 
 
610 WHAT IMPAIRS A CONTRACT. 
 
 Article, giving Congress power to pass bankrupt laws, have 
 been repeatedly and elaborately considered. Nor are they yet 
 
 of State courts, besides those referred to in the text, it is held that the obligation is 
 not impaired provided a substantial remedy is left to the parties. Van Rensselaer v. 
 Snyder, 9 Barb. 302 ; 13 N. Y. 299; Same v. Bull, 19 N. Y. 100 ; Same v. Hays, 19 
 N. Y. 68; Conkey v. Hart, 14 N. Y. 22; Story v. Furman, 25 N. Y. 214 ; Guild v. 
 Rogers, 8 Barb. 502; Van Baumbach v. Bade, 9 Wise. 559; Smith v. Packard, 12 
 Wise. 371; Coriell v. Ham, 4 Greene (Iowa), 455; Maynes v. Moor, 16 lad. 116 ; 
 Heyward v. Judd, 4 Minn. 483 ; Swift v. Fletcher, 6 Minn. 550 ; Auld v. Butcher, Z 
 Kans. 135 ; Paschal v. Perez, 8 Tex. 348; Grosvenor v. Chesley, 48 Me. 369; Kenyon 
 v. Stewart, 44 Penn. St. 179 ; Clark v. Martin, 49 Penn. St. 299 ; Huntzinger v. Brock, 3 
 Grant's Cas. 243 ; Mechanics' &c. B'k Appeal, 31 Conn. 63. And some State cases hold 
 this, even though the new remedy be less effective, convenient, or speedy. Holloway 
 v. Sherman, 12 Iowa, 282 (statute giving mortgagor in foreclosure suit nine months 
 to answer) ; Tarpley v. Harner, 17 Miss. 310 ; Morse v. Gould, 11 N. Y. 281 ; Penrose 
 y. Erie Canal Co. 56 Penn. St. 46 ; Farnsworth v. Vance, 2 Cold. 108. And a Kansas 
 court took the broad ground that the obligation is ended when a judgment on the 
 contract is obtained, that this was all the remedy the party had a right to demand. 
 Mede v. Hand, 5 Am. Law Reg. N. S. 82. 
 
 The conflict in decision has arisen from a confusion of the two meanings which 
 may be given to the word " remedy." That word may refer to and describe the 
 secondary or sanctioning right by which the observance of the contract is made 
 something more than voluntary. In other words, it may describe the right to a 
 specific performance of the contract accruing to the injured party in some cases, or 
 the right of compensation accruing to the injured party in all cases, as soon as the 
 contract is broken. On the other hand, it may mean the mere modes and methods 
 by which this secondary and sanctioning right is made available, the organization 
 and practice of the courts, the rules of pleading, the rules of evidence, and the like. 
 If the decisions of the United States Supreme Court are carefully examined, it is 
 plain that when they speak of the remedy being changed without impairing the ob- 
 ligation of contracts, they use the word in the second sense above stated, and that in 
 every case in which the State statute has taken away from the remedy as used in the first 
 sense above stated, such statute has been pronounced void. On the other hand, many 
 State courts, using the same general formula, have applied it to the remedy, using 
 the word in both of the above significations, and have sustained statutes which 
 plainly impaired the obligation of contracts. It should be remembered that in 
 giving a construction to this constitutional guaranty, the national court is supreme, 
 and the ratio decidendi of its judgments gives the principle by which the correctness 
 of all other decisions is to be tested. See Walker v. Whitehead, 16 Wai. 317. 
 
 The true doctrine was very concisely and accurately stated by Ch. J. Merrick, in 
 Morton v. Valentine, 15 La. Ann. 153 : " Statutes pertaining to the remedy are merely 
 such as relate to the course and form of proceedings, but do not affect the substance 
 of a judgment when pronounced." In Butz v. City of Muscatine, 8 Wai. 575, the Su- 
 preme Court of the United States held that taking away remedies existing at the time 
 a contract was made, impairs its obligation, even when this is the effect of judicial 
 decisions giving a new construction to a statute. See Olcott v. Supervisors, 16 Wai. 678. 
 
 Stay Laws. The cases in the United States Supreme Court cited in the text, 
 namely, Bronson v. Kinzie, McCracken v. Hayward, Grautly's Lessee v. Ewing, and 
 
WHAT IMPAIRS A CONTRACT. 611 
 
 exhausted ; for the division of judicial opinion in the Federal 
 tribunal in some of the cases, has left the precise point decided 
 
 
 
 Howard v. Bugbee, have clearly settled the following rule : That State statutes which 
 create any arbitrary stay of execution or other means of enforcing judgment, whether 
 for a definite or for an indefinite period, when l>y the procedure of the courts such judg- 
 ment might be executed or otherwise enforced sooner were it not for the stay, are void as 
 against contracts existing at the time such statutes were passed. The essential 
 remedial right, which is a part of the obligation of all contracts, implies the right 
 to have the contract enforced without any other delay than the ordinary procedure 
 of the courts makes necessary. If these cases do not establish the doctrine, they are 
 meaningless. Yet State courts in numerous cases have sustained the validity of 
 such stay laws, sometimes on the broad ground that the Legislature has absolute con- 
 trol over the remedy, and sometimes on the ground that the particular stay was for 
 a definite period, while conceding that an indefinite stay would be void. The fol- 
 lowing are such cases : A statute providing for a stay of one year on giving good 
 security was held valid. Farnsworth v. Vance, 2 Cold. (Tenn.) 108. Also a statute 
 providing for a stay of two terms and twelve months. Ex parte Woods, 40 Ala. 77. 
 Aliter, if act provides for an indefinite stay, Hid. And an act giving mortgagors 
 nine months in which to answer in foreclosure suits. Holloway v. Sherman, 12 Iowa, 
 282. Also an act passed May 24, 1861, forbidding the rendition of judgments for 
 debt until January 1, 1862 ; the court saying that the statute did not deal with the 
 remedy, but with the functions and powers of the courts ! ! Johnson v. Higgins, 3 
 Mete. (Ky.) 566 ; Barkley v. Glover, 4 Mete. (Ky.) 44. Andr acts staying suits against 
 persons in the service of the State or of the United States for a definite time "three 
 years or during the war," in Pennsylvania. Breitinbach v. Bush, 44 Penn. St. 313; 
 Coxe v. Martin, II. 322 ; Huntzinger v. Brock, 3 Grant's Cas. 243 ; McCormick v. 
 Rusch, 15 Iowa, 127 ; State v. McGinty, 41 Miss. 435 ; per contra, see State v. Carew, 
 13 Rich. 498 ; Hasbrouck v. Shipman, 16 Wise. 296 ; Barnes v. Barnes, 8 Jones (Law), 
 366. An act staying execution on judgments confessed before demand due until de- 
 mand becomes due, was held valid in Wood v. Child, 20 111. 209. 
 
 The following are cases holding the " stay law " invalid : When it stayed suits 
 against persons in the service " during the war." Clark v. Martin, 49 Penn. St. 299. 
 When it suspended remedies for an indefinite time. State v. Carew, 13 Rich. (Law) 
 498; Wood v. Wood, 14 Rich. (Law) 148; Burt v. Williams, 24 Ark. 91 ; Luter v. 
 Hunter, 80 Tex. 688 ; Hudspeth v. Davis, 41 Ala. 389. When the stay, though defi- 
 nite, was excessive three years. Coffman v. Bank of Kentucky, 40 Miss. 29. Pro- 
 viding for three or four, annual instalment: \ycock v. Martin, 37 Geo. 124 ; Jacobs 
 v. Suiallwood, 63 N. C. 112 ; Jones v. McMan n, SO Tex. 720. Until the second term 
 *fter execution. Stevens v. Andrews, 31 Mo. 205 , and see Taylor v. Stearns, 18 Gratt. 
 244 ; Cutts v. Hardee, 38 Geo. 350. 
 
 It will not make the stay valid that it is conditioned on the assent of o, majority 
 of the creditors. Bunn v. Gorgas, 41 Penn, St. 441. Nor can debts without imprest 
 be made to bear interest as a compensation for the stay. Goggans v. Turnij/^eed, 1 
 Rich. N. S. 80. 
 
 Where a stay is expressly waived none can be granted. Billmeyer v. Evans, 40 
 Penn. St. 324 ; Lewis v. Lewis, 47 Penn. St. 127. 
 
 Under the guise of a stay law the right to sue cannot be permanently taken 
 away. Thus, a statute that parties concerned in the rebellion shall be forever de- 
 
612 WHAT IMPAIRS A CONTRACT. 
 
 a matter of controversy ; and I think, therefore, that I shall best 
 attain the objects of this treatise by a reference to the decisions, 
 
 barred from collecting their debts is void. Vernon v. Henson, 24 Ark. 242 ; Reson 
 T. Farr, Ib. 161. And a statute suspending the right of persons aiding the rebellion 
 to prosecute or defend actions is void. Davis v. Pierse, 7 Minn. 13; McFarland v. 
 Butler, 8 Minn. 116 ; Jackson v. Butler, 11. 117. 
 
 But an act requiring an oath of loyalty from litigants was sustained, in Cohen v. 
 Wright, 22 Cal. 293. 
 
 Stay laws are valid so far as they apply to future contracts between parties sub- 
 ject to the jurisdiction. Barry v. Iseman, 14 Rich. L. 129. A statute allowing the 
 mortgagor six months instead of twenty days in which to answer in foreclosure suits 
 was held valid as to existing mortgages, in Van Baunibach v. Bade, 9 Wise. 559 ; 
 Starkweather v. Hawes, 10 Wise. 125. 
 
 Exemption Laws. Statutes exempting certain property of debtors from execution 
 have generally been held valid, even in their effect upon prior contracts. In addition 
 to the cases mentioned in the text, the following sustain such exemptions : Gronies 
 v. Bryne, 2 Minn. 89 ; Stephenson v. Osborn, 41 Miss. 119 ; Snider v. Heidelberger, 45 
 Ala. 126; Cusic v. Douglas, 3 Kans. 123; Maxey v. Loyal, 38 Geo. 531. But the 
 exemption must not be so great as to render the remedy nugatory. Stephenson v. 
 Osborne, 41 Miss. 119. Such statute was held void in Kibbey v. Jones, 7 Bush, 243. 
 
 Homestead Exemptions. The same is true of statutes authorizing homestead ex- 
 emptions. Hardeman v. Downer, 39 Geo. 425 ; Pulliam v. Sewall, 40 Geo. 73 ; Gunn 
 v. Barry, 44 Geo. 351 (reversed by the United States Supreme Court, see below) ; 
 Cusic v. Douglas, 3 Kans. 123 ; Root v. McGrew, Ib. 215 ; Hill v. Kessler, 63 N. C. 
 437 ; In re Kennedy, 2 Rich. N. S. 216 ; Mede v. Hand, 5 Am. Law Reg. (N. S.) 82. 
 In the last case, and in the other Kansas cases, a statute exempting 160 acres was 
 upheld and applied to a past contract. This is the reductio ad dbsurdum of the argu- 
 ment, that changing the remedy does not impair the obligation. In " The Home- 
 stead Cases," 22 Gratt. 266, a clause of the Virginia Constitution providing for a 
 homestead exemption, and a statute passed in pursuance thereof, were held void as 
 to existing debts. The opinion is a careful discussion of the whole subject. The 
 Supreme Court does not seem as yet to have passed upon the validity of such ex- 
 emption laws in their application to past contracts. We think, however, that the 
 principles laid down by that tribunal would condemn many of them. The Georgia 
 statute has just been passed upon by the U. S. Supreme Court. A creditor had ob- 
 tained a judgment, which at the time was, by existing law, a lien on all the lands 
 of the debtor, with some slight exemption. Before the judgment was enforced, the 
 new Constitution was adopted, which declares that a householder shall be entitled 
 to an exemption of a homestead to the value of $2,000 in specie, and personal prop- 
 erty to the value of $1,000 in specie, &c. The State courts, in the series of cases 
 above cited, held that this applied to existing contracts, and even destroyed the lien 
 of existing judgments. The exact point raised by the facts, and decided by the 
 U. S. Supreme Court, was that the provision was void so far as it purported to affect 
 the lien of existing judgments. Gunn v. Barry, 15 Wall. 610. It cannot be said, 
 therefore, that the national court has directly passed upon the broad question 
 whether exemption laws are valid as against existing contracts, and doubtless many 
 State courts will still insist that they only touch the remedy. But the ratio deci- 
 dendi the whole course of argument of the case plainly covers such statutes in 
 
WHAT IMPAIRS A CONTRACT. 613 
 
 and a brief statement of the points generally understood to 
 have been adjudged.* 
 
 * The cases in the Supreme Court of Penn. v. Smith, 6 Wheat. 131 ; Ogden v. 
 
 the United States are St-ur^es v. Crownin- Saunders, 12 Wheat. 213; Boyle v. Zacharie, 
 
 shield, 4 Wheat. 200; M'Millen v. M'JNeill, 4 6 Peters, 635; Cook v. Moffat, 5 Howard, 
 
 Wheat. 209; Farmers & Mechanics' Bank of 295 ; Bronson v. Kinzie, 1 Howard, 811. 
 
 their operation upon the existing contract, and is not confined to their operation upon 
 an existing judgment lien. The opinion of the court, per Swayne, J., says : " If the 
 remedy is a part of the obligation of a contract, a clearer case of impairment can 
 hardly occur than is presented in the record before us. The effect of the act in ques- 
 tion, under the circumstances of this judgment, does not, indeed, merely impair, it 
 annihilates the remedy. There is none left " (p. 623). Again : " The legal remedies 
 for the enforcement of a contract, which belong to it at the time and place where it 
 is made, are a part of its obligation. A State may change them, provided the change 
 involve no impairment of a substantial right. If the provision of the Constitution, or 
 the legislative act of a State, fall within the category last mentioned, they are to that 
 extent utterly void. The constitutional provision and statute here in question are 
 clearly within that category, and are therefore void " (p. 623). 
 
 This decision plainly overrules many of the cases cited above from the State 
 reports. See, per contra, Snydorv. Palmer, 32 Wise. 406, 411 ; Watson v. Railroad Co. 
 47 N. Y. 157. 
 
 Arrest. The right of arrest and imprisonment for debt may be taken away. 
 People v. Carpenter, 46 Barb. 619 ; Maxey v. Loyal, 38 Geo. 531, 540. 
 
 Limitation of Actions. The period of limitation may be extended before the right 
 of action has become barred. Billings v. Hall, 7 Cal. 1 ; Holcomb v. Tracy, 2 Minn. 
 241 ; Cook v. Kendall, 13 Minn. 324; Pleasants v. Rohrer, 17 Wise. 577; Edwards v. 
 McCaddon, 20 Iowa, 520. But not after the right of action has become barred. 
 Sprecker v. Wakeley, 11 Wise. 432; Hill v. Kricke, II. 442; Parish v. Eager, 15 
 Wise. 532 ; see also Ball v. Wyeth, 99 Mass. 338 ; per contra, see Swickard v. Bailey, 
 3 Kans. 507 ; Page v. Mathews, 40 Ala. 547 ; Cassity v. Storms, 1 Bush, 452 ; Bender 
 v. Crawford, 33 Tex. 745. The period may be shortened provided a reasonable 
 time is allowed. Smith v. Packard, 12 Wise. 371 (nine months held reasonable) ; 
 Howell v. Howell, 15 Wise. 55; Osborn v. Jaines, 17 Wise. 573; Auld v. Butcher, 2 
 Kans. 135 ; State v. Jones, 21 Md. 432 ; Stephens v. St. Louis &c. B'k, 43 Mo. 385 ; 
 Adamson v. Davis, 47 Mo. 268 ; Kenyon v. Stewart, 44 Penn. St. 179 ; Korn v. 
 Browne, 64 Penn. St. 55 ; O'Bannon v. Louisville &c. R. R. 8 Bush, 348 (six months 
 held reasonable) ; see Morgan v. Reed, 2 Head (Tenn.) 276 ; Johnson v. Bond, 1 
 Hempptead, 533. Thirty days was held too short a time, in Berry v. Ransdall, 4 
 Mete. (Ky.) 292. See Sohu v. Waterson, 17 Wai. 596, 599. 
 
 It seems that the time elapsing between the passage of the statute and its taking 
 effect will be considered as part of the time of limitation. Smith v. Morrison, 22 
 Pick. 430 ; Lockhart v. Yeiser, 2 Bush, 231 ; Stine v. "Bennett, 13 Minn. 153 ; per contra, 
 see Price v. Hopkin, 13 Mich. 318. 
 
 Where a State land lottery was drawn, and there was no limitation as to the time 
 within which the grant should be taken out, it was held that the Legislature might 
 afterwards establish such limit. McKenny v. Compton, 18 Geo. 170. 
 
 For a case where a short statute of limitations in a certain class of cases, viz., 
 actions to recover property sold under judicial sales void for want of proper parties, 
 was held unconstitutional as a " partial " law, see Morgan v. Reed, 2 Head (Tenn.) 276. 
 
614 BANKRUPT LAWS. 
 
 It appears then to have been decided by the Supreme Court 
 of the United States, that the power of Congress to pass a 
 
 Recording Acts. Acts requiring instruments to be recorded, and giving priority 
 to a recorded deed, have been held valid in their application to past contracts. 
 Stafford v. Lick, 7 Cal. 479. Also an act requiring claims of homestead to be re- 
 corded on pain of forfeiture. Noble v. Hook, 24 Cal, 638. But a statute declaring 
 that certain classes of debts shall be barred if not registered within a certain time, 
 was held void. Robinson v. Magee, 9 Cal. 81. 
 
 Methods and Instruments of Administering Justice. It is necessary that the Legis- 
 lature should, for the public good, have power to alter from time to time the laws 
 regulating courts, pleadings, forms of action, parties, practice, and evidence, within 
 reasonable limits, and such changes do not impair the obligation of the contracts 
 which they may affect. 
 
 Courts. A law abolishing an existing court, and thereby delaying remedies on 
 contracts, is valid, provided a substantial remedy is left. Newkirk v. Chapron, 17 
 111. 344. As to costs, see Rader v. Road-Dist. 7 Vroom, 273. 
 
 Pleadings. A statute allowing defence of want of consideration to be set up in 
 action on a sealed instrument is valid. Williams v. Haines, 27 Iowa, 251 ; Rich v. 
 Flanders, 39 K H. 304. So of change of form of affidavit to stay proceedings to 
 oust tenant. Lockett v. Usry, 38 Geo. 345. 
 
 Forms of Action or Proceeding. A statute taking away scire facia* and leaving 
 creditor to his common law remedy on his judgment is valid. Parker v. Shannon- 
 house, Phil. (N. C.) Law, 209. The remedy against stockholders of an insolvent cor- 
 poration may be changed from bill in equity to an assessment by receivers. Com- 
 monwealth v. Cochituate B'k, 3 Allen, 42 ; Story v. Furman, 25 N. Y. 214. And an 
 act forbidding suit after the appointment of a receiver is valid. Leathers v. Ship- 
 builders' B'k, 40 Me. 386. 
 
 The Legislature may take away a particular common-law remedy, if another 
 efficient remedy remains e. g., may abolish distress for rent, leaving the landlord 
 to his action. 'Van Rensselaer v. Snyder, 9 Barb. 302; 13 N. Y. 299; Guild v. 
 Rogers, 8 Barb. 502. And this even though the parties have stipulated for dis- 
 tress in their lease. Conkey v. Hart, 14 K Y. 22 ; see Billmeyer v. Evans, 40 Penn. 
 St. 324. 
 
 Parties to Sue or to le Sued. A statute subjecting a mortgagee who takes posses- 
 sion after its passage to a personal suit for taxes was held valid, such taxes always 
 having been a lien on the lands, and it being merely a change of remedy. Andrews 
 v. Worcester &c. Ins. Co. 5 Allen, 65. An equitable owner may be empowered to 
 sue in his own name. Van Rensselaer v. Hayes, 19 N. Y. 68. And such provision 
 may be again revoked provided adequate remedy be left. Van Rensselaer v. Reed, 26 
 N. Y. 558. The right o action may be restricted to the real party in interest. Han- 
 cock v. Ritchie, 11 Ind. 48. But an act allowing equities to be set up against the 
 Iwnafide holder for value before maturity of negotiable paper would be invalid. 
 Cornell v. Hichens, 11 Wise. 353; and see Philbrick v. Philbrick, 39 K H. 468. 
 
 Practice. An act. extending the privilege of new trial to cases where it did not 
 before exist is valid. Johnson v. Semple, 31 Iowa, 49. 
 
 Evidence. Reasonable changes may be made in the law of evidence, and applied 
 to existing causes of action. Cowan v. McCutchen, 43 Miss. 207 ; Neass v. Mercer, 
 15 Barb. 318. For example, parties may be made witnesses. Little v. Gibson, 39 N. 
 
BANKRUPT LAWS. 615 
 
 bankrupt law is not exclusive ; that the exercise of that power 
 by the States, as to future contracts, does not impair their ob- 
 
 H. 505 ; Rich v. Flanders, Ib. 304. And a statute is valid providing that no action 
 shall be maintained on a new promise of a bankrupt not in writing. Kingley v. 
 Cousins, 47 Me. 91 ; per contra, Saunders v. Carroll, 14 La. Ann. 27. And also a 
 statute to the effect that part payment shall not be an admission of debt. Parsons 
 v. Carey, 28 Iowa, 431. But it seems that an act prohibiting parol evidence of 
 leases would be void as applied to past contracts. McDonald v. Steward, 18 La. 
 Ann. 90. 
 
 A statute providing that a tax deed shall be prima facie evidence only of the 
 regularity of the proceedings, when, by the law at the time of the sale, it was con- 
 clusive evidence, has been held unconstitutional in its application to existing deeds. 
 Smith v. Cleveland, 17 Wise. 556 ; Nelson v. Rountree, 23 Wise. 367. The Legisla- 
 ture may, however, prescribe the form of deed to be given, even under past sales, 
 provided it does not impair the effect of the deed. Lain v. Shepardson, 18 Wise. 
 59. But cannot annex new conditions to the issuing of the deed when the right to 
 it has become vested, Knox v. Hundhausen, 23 Wise. 508, unless a reasonable time is 
 allowed within which the deed can be obtained on the old terms. Knox v. Hund- 
 hausen, 24 Wise. 196; Kearns v. McCarville, 24 Wise. 457; Curtis v. Morrow, 24 
 Wise. 664. 
 
 A law requiring the holder of a tax certificate to notify any occupant of the land 
 before taking out a tax deed is valid . Curtis v. Whitney, 13 Wai. 68. 
 
 Scaling Laws. Laws have been passed in most of the Southern States intended 
 to relieve parties from having to pay in United States currency sums based on Con- 
 federate currency, and these laws have generally been held valid. Their most usual 
 form is, perhaps, to allow it to be shown that Confederate currency was intended by 
 the parties in making the contract, and what is the value of that currency in United 
 States currency. Thorington v. Smith, 8 Wai. 1 ; Slaughter v. Culpepper, 35 Geo. 
 25 ; Herbert v. Easton, 43 Ala. 547 ; Woodpin v. Sluder, 1 Phil. (N. C.) L. 200 ; Neeley 
 v. McFadden, 2 Rich. N. S. 169 ; Harmon v. Wallace, II, 208 ; see also Kirtland v. 
 Molton, 41 Ala. 548; Rutland v. Copes, 15 Rich. Law, 84 ; Pharis v. Dice, 21 Gratt. 
 303. A statute allowing the value of the property sold to be considered, irrespective 
 of the currency agreed to be paid for the same, has been held valid. King v. W. & 
 W. R. R. 66 N. C. 277. And a statute allowing juries to reduce debts according to 
 the equities of the case, &c. Cutts v. Hardee, 38 Geo. 350 ; but, per contra, Leach v. 
 Smith, 25 Ark. 246; Woodruff v. Tilley, II. 309. 
 
 But an act allowing set-off of losses during the war would be unconstitutional. 
 Gunn v. Hendry, 43 Geo. 556 ; Solomon v. Lowry, 44 Geo. 290. And so of an act 
 allowing a return of the property sold in full satisfaction. Abercrombie v. Baxter 
 44 Geo. 36. 
 
 Redemption Laws. The Supreme Court of the United States, in the cases cited in 
 the text, has established the doctrine that such statutes giving mortgagors and 
 owners and judgment debtors additional and new powers and opportunities for re- 
 deeming the property sold on foreclosure or execution, are void in their application 
 to existing contracts ; they interfere with and hamper the essential remedy by which 
 the contract is made obligatory, and they thus impair the obligation of the contract. 
 Many State courts have acquiesced in this doctrine. Others, however, have either 
 rejected or evaded it. 
 
616 BANKRUPT LAWS. 
 
 ligation ; that a contract made and 'to "be performed in one State 
 is not, as against a citizen of that State, discharged by a cer- 
 
 The following cases hold such laws invalid as to existing contracts : Thorue v. 
 San Francisco, 4 Cal. 127; Scobey v. Gibson, 17 Ind. 572; Iglehart v. Wolfin, 20 Ind. 
 32; Greenfield v. Dorris, 1 Sneed (Tenn.) 548; Maloney v. Fortune, 14 Iowa, 417- 
 Oatman v. Bond, 15 Wise. 20 ; Robinson y. Howe, 13 Wise. 341 ; Goenen v. Schroederr 
 8 Minn. 387. A statute which lessens the time for redemption after foreclosure sale 
 was held void, in Cargill v. Power, 1 Mich. 369. But was held valid in Butler v. 
 Palmer, 1 Hill, 324 ; Robinson v. Howe, 13 Wise. 341, 346 ; Smith v. Packard, 12 Wise. 
 371. See, per contra, Ashuelet R. R. v. Elliott, 52 N. H. 387. 
 
 it was held, in Pennsylvania, that a law extending the time of redemption from 
 execution sale, passed after a sale but before the deed was given, was valid in its 
 application to such sales. Gault's Appeal, 33 Penn. St. 94 ; per contra, see Robinson 
 v. Howe, 13 Wise. 341 (a tax sale) ; see Tuolumne &c. Co. v. Sedgwick, 15 Cal. 
 515. 
 
 In some cases the right to extend the time of redemption has been asserted as to 
 sales made under decree of court, distinguishing such sales from those made under 
 a power in the mortgage. Stone v. Bassett, 4 Minn. 298 ; Heyward v. Judd, 4 
 Minn. 483. 
 
 A statute allowing a mortgagor six months instead of twenty days in which to 
 answer, was held valid. Von Baumbach v. Bade, 9 Wise. 559 ; Starkweather v.. 
 Hawes, 10 Wise. 125. 
 
 And a statute permitting the mortgagor to retain possession until the end of the 
 time allowed for redemption was sustained in Berthold v. Holman, 12 Minn. 335; 
 Berthold v. Fox, 13 Minn. 501. But a similar statute was declared void in Black- 
 wood v. Vanvleet, 11 Mich. 252; Mundy v. Monroe, 1 Mich. 68, 76. 
 
 It seems a statute requiring the mortgagee to exhaust the mortgage security be- 
 fore suing on the note would" be valid ; but a statute that by suing the note he should 
 forfeit the mortgage would not. Swift v. Fletcher, 6 Minn. 550. 
 
 Appraisement Laws. Statutes providing that property shall not be sold on exe- 
 cution for less than its appraised value, or some fixed portion of that value, are void 
 in their application to prior contracts. Rawley v. Hooker, 21 Ind. 144. 
 
 Miscellaneous Cases of Statutes affecting the Remedy. To take away all remedy 
 impairs the obligation. Penrose v. Erie Canal Co. 56 Penn. St. 46 ; and see many of 
 the cases above cited. In Jackoway v. Denton, 25 Ark. 625, and McNealy v. Gregory, 
 13 Flor.417, a clause of the State Constitution was pronounced void which declared 
 that all past contracts for the purchase or sale of slaves were nullities. So a statute 
 which does not leave a person a substantial remedy, as it existed when the contract 
 was entered into, but clogs and hampers it, is invalid. Oatman v. Bond, 15 Wise. 
 20. An act which reduces the time of publishing notice of sale in foreclosure, by 
 advertisement under a power, from twenty-four weeks to twelve weeks, affects the 
 procedure only and is valid. James v. Stull, 9 Barb. 482. 
 
 Acts providing that a judgment shall not be a lien have been held valid. New 
 Orleans v. Holmes, 13 La. Ann. 502; Curry v. Landers, 35 Ala. 280 ; but see Tillotson 
 v. Millard, 7 Minn. 513. 
 
 A statute releasing the individual liability of stockholders in corporations was 
 sustained in Maine, in its application to existing corporations. Coffin v. Rich, 45 Me. 
 507. But this decision was overruled, and the same statute pronounced void, so far 
 
BANKRUPT LAWS. 617 
 
 tificate obtained under the laws of another State, though such 
 laws were passed before the inception of the contract ; that a 
 
 as it applied to existing corporations, by the U. S. Supreme Court, in Hawthorne v. 
 Calef, 2 Wai. 10. 
 
 For a case sustaining a statute changing the mode of notifying indorsers, see 
 Levering v: Washington, 3 Minn. 323. And as to levy of executions, see Grosvenor 
 v. Chesley, 48 Me. 369 ; and see Sanders v. Hillsborough Ins. Co. 44 N. H. 238. 
 
 Changing, Improving, or Amplifying the Remedy. Laws giving more efficacious 
 remedies, or improving existing ones, or adding new ones, or removing disabilities 
 or penalties, do not impair the obligation of contracts. The following are illustra- 
 tions: Gowen v. Penobscot R. R. 44 Me. 140 (new means of enforcing land damages) ; 
 Portland &c. R. R. v. Grand Trunk R. R. 46 Me. 69 (commissioners to determine 
 rights of connecting roads) ; Coosa R. St. B. Co. v. Barclay, 30 Ala. 120 (right of 
 attachment against foreign corporation) ; New Albany &c. R. R. v. McNamara, 11 
 Ind. 543 (new method of service of process) ; Webb v. Moore, 25 Ind. 4 (shortening 
 notice in foreclosure sales). 
 
 The Legislature may impose individual liability upon stockholders as to all 
 future contracts. Coffin v. Rich, 45 Me. 507 ; Matter of Reciprocity B'k, 29 Barb. 
 369; sect qu. the case in New York, being under a power reserved to alter charters - 
 and see Ireland v. Palestine &c. Co. 19 Ohio, N. S. 369. And the Legislature may 
 increase the efficacy of the remedy against stockholders liable for past indebtedness. 
 Smith v. Bryan, 34 111. 364. 
 
 A statute giving new remedies for breach of an administrator's bond is valid r 
 even as against the sureties. Graham v. State, 7 Ind. 470. And one making it a 
 criminal offence for a person who has contracted to keep a bridge in repair to 
 neglect to do so. Blaun v. State, 39 Ala. 353. This last case must be confined to 
 future neglects ; if it applied to past neglects, it would be an ex post facto law and! 
 void. 
 
 An equitable remedy may be changed to a legal one, and an assignee of a rent- 
 charge enabled to sell in his own name. Van Rengselaer v. Hayes, 19 N. Y. 68 ; Same 
 v. Ball, II, 100; so the assignee of coupons, Augusta B'k v. Augusta, 49 Me. 507; so 
 a sub-contractor, Peters v. St. Louis &c. R. R. 23 Mo. 107 ; Grannahan v. Hannibal &c. 
 R. R. 30 Mo. 546 ; so of day laborers employed by sub-contractors, Branin v. C. & 
 P. Riv. R. R. 31 Vt. 214. 
 
 A law giving a lien to mechanics, &c., is not objectionable as impairing the ob- 
 ligation of contracts. Gordon v. South Fork &c. Co. 1 McAll. C. C. (Cal.) 513 ; Miller 
 v. Moore, 1 E. D. Smith, 739 ; but see Kinney v. Sherman, 28 HI. 520. Though it 
 may be objectionable as creating an obligation or lien where none existed before, and 
 as thus taking property without " due process of law." 
 
 That a remedy for breach of warranty cannot be given prior to eviction, see Great 
 Western &c. Co. v. Saas, 1 Cinn. Supr. Ct. R. 21. A statute taking away the 
 disability of a married woman to convey land is valid. Jones' Appeal, 57 Penn. St. 
 369. 
 
 Laws validating contracts are not objectionable as impairing the obligation. 
 Sparks v. Claffer, 30 Ind. 204 ; Welch v. Wadsworth, 30 Conn. 149 ; Thornton v. 
 McGrath, 1 Duv. (Ky.) 349 ; and see People v. Mitchell, 45 Barb. 208, Such laws, 
 however, might be obnoxious to other constitutional provisions e. ^.,'that requiring 
 due process of law. 
 
618 BANKRUPT LAWS. 
 
 discharge under the laws of the State where the contract was 
 made, but not to be performed, could not be pleaded in bar in 
 
 Statutes affecting Municipal Corporations. See ante in this note, under the head 
 " Municipal Corporations." An act providing that the amount of all judgments 
 against a municipality should be included in the tax levy of the next year, and that 
 DO execution should issue until the money to pay such judgments should be so raised, 
 was held void as to past contracts. Hadfield v. Mayor &c. of N. Y. 6 Robt. 501 ; see 
 also Smith v. Mayor &c. 7 Robt. 190 ; McCauley v. Brooks, 16 Cal. 11 ; but see Dodd v. 
 Miller, 14 Ind. 433 ; Swann v. Buck, 40 Miss. 268. A statute prohibiting a city from 
 levying taxes to pay judgments against it, was held void, in South v. Madison, 15 
 Wise. 30. Requiring a certain amount of the revenue of the year to be set apart is 
 not objectionable, unless it appears that payment of warrants drawn must be de- 
 layed thereby. Humbolt Co. v. Churchill Co. Comm'rs, 6 Nev. 30. 
 
 A law compelling funding of claims at a lower rate of interest is unconstitutional. 
 Brewer v. Otoe Co. 1 Neb. 373. But changes may be made in funding laws, pro- 
 vided the rights of creditors are not injuriously affected. Thornton v. Hooper, 14 
 Cal. 9 ; Babcock v. Middleton, 20 Cal. 643. 
 
 The fact that one of the contracting parties is a municipality does not give the 
 Legislature power to take away the rights or remedies of the other party. Thus, a 
 statute creating a commission for examining into the legality of all outstanding 
 claims against a county, and funding such as are found legal, and providing that no 
 claim not presented to and allowed by such commissioners shall be a legal and valid 
 claim against the county, is void so far as this last provision is concerned. Rose v. 
 Estudillo, 39 Cal. 270. And an act providing that no judgment shall be had against 
 the city of New York, unless on proof that the amount is in the treasury unexpended 
 to the credit of the appropriation for the specific object or purpose for which the 
 contract was made, is void as to past services and prior contracts. Smith v. Mayor 
 <fcc. 7 Robt. 190. 
 
 The Supreme Court of the United States has held, in a long series of cases, that 
 where municipal corporations have created indebtedness e. g., issued bonds under 
 color of legislative authority, which were valid according to the judicial decisions 
 of the State at the time any subsequent legislation affecting the contracts or the 
 remedy upon them, and any subsequent judicial decisions of the State courts putting 
 a different construction upon the State Constitution or statutes, by which the con- 
 tracts would be rendered illegal, impair the obligation of the contracts, and are 
 void ; and the United States courts will enforce such bonds against the municipali- 
 ties by action, or by mandamus, or by receiver, notwithstanding State statutes which 
 forbid the municipality to pay the debts or to levy taxes for the purpose of paying, 
 and notwithstanding the municipal authorities' refuse to levy such taxes. Gelpkev. 
 Dubuque, 1 Wai. 175; Havemeyer v. Iowa Co. 3 Ib. 294 ; Thompson v. Lee Co. Ib. 
 327 ; Mitchell v. Burlington, 4 Ib. 270 ; Butz v. Muscatine, 8 Ib. 575 ; Van Hoffman 
 v. Quincy, 4 II. 535 ; Chicago v. Sheldon, 9 Ib. 50 ; City v. Lamson, Ib. 477. In 
 one case, when the municipal authorities not only refused to levy the tax, but all re- 
 signed, and the municipality was without officers, the U. S. Circuit Court held that 
 it could appoint an officer of the court in the nature of a receiver to perform the 
 duties of the municipal authorities, and levy and collect the tax. Welch v. Ste. 
 Oenevieve, 1 Dillon, C. C. 130. 
 
 Laws incidentally affecting Contracts. As a general proposition statutes cannot 
 
BANKRUPT LAWS. 619 
 
 the Circuit Court of the United States against a creditor, a 
 citizen of another State at the time of the origin of the con- 
 tract and of the discharge ; that the same is true when the 
 
 "be objected to because they incidentally and remotely affect contract rights, they 
 being passed diverse inluitu, and being necessary for the general public welfare. See 
 ante in these notes, upon " Obligation of Contracts," under head of "Police Power," 
 " Taxation," and "Eminent Domain," in their effects upon contracts. The following 
 points and cases are added : A statute authorizing a city to take land for public im- 
 provements applies to a case where the city itself had sold the land with warranty. 
 Brimmer v. Boston, 102 Mass. 19. A charter having contained leave to set up a 
 lottery, a subsequent statute making lotteries illegal passed diverso intuitu was held 
 valid as against such charter. Miss. Soc. of Arts v. Musgrove, 44 Miss. 820. An act 
 annexing part of a county to a city does not impair obligation of contracts of the 
 county creditors. Wade v. Richmond, 18 Gratt. 583. An act prohibiting action on 
 contracts made outside of the State in fraud of its laws is valid. Davis v. Bronson, 
 6 Clarke (la.) 410. As to the effect upon a chartered bank of a statute restricting 
 the negotiation of notes, see Mclntyre v. Ingraham, 35 Miss. 25. 
 
 Courts, however, are inclined to restrain the Legislature in its exercise of general 
 powers, even in matters of public concern, so far as such exercise may encroach upon 
 private rights of contract. Thus, where under a mortgage of a railroad to trustees 
 to secure bonds, the trustees were in possession, and the mortgage contained adequate 
 provision for the appointment, when necessary, of 'successors in the trust, an act pro- 
 viding for an annual election of trustees by the bondholders was held invalid. 
 Fletcher v. Rutland &c. R. R. 39 Vt. 633. The same was held of an act authorizing 
 land dedicated by the owner for a public square to be used for a different purpose, 
 Warren v. Lyons City, 22 Iowa, 351. As to power of the Legislature to authorize 
 the sale of lands devised in charity, although alienation is prohibited by the. terms 
 of the devise, and to change the object of the charity, see Att'y Gen. v. The Clergy 
 Soc. 10 Rich. Eq. 604 ; Burton's Appeal, 57 Penn. St. 213. A statute authorizing 
 debts to a mother bank to be paid to its branches, and vice versa, was held unconstitu- 
 tional, in Bank of Old Dominion v. McVeigh, 20 Gratt. 457. Also a statute exempt- 
 ing the property of a particular corporation from sequestration unless mismanagement, 
 &c., were shown. Penrose v. Erie Canal Co. 56 Penn. St. 46. 
 
 That consolidation of two colleges does not impair the obligation of scholarships 
 sold in one of them, see Huston v. College, 63 Penn. St. 428. As to consolidation of 
 railroads, see McCray v. Junction R. R. 9 Ind. 358. 
 
 The fact that a question of public policy is involved does not make it constitu- 
 tional to take away rights secured by contract. Thus, provisions, whether contained 
 in statutes or in Constitutions, making void past contracts for slaves entered into 
 before slavery was abolished, or prohibiting courts from entertaining suits thereon, 
 are invalid. Pillow v. Brown, 26 Ark. 240': McElvain v. Mudd, 44 Ala. 48 ; Calhoun 
 v. Calhoun, 2 Rich. N. S. 283 ; White v. Hart, 13 W al. 646. And contracts in which 
 the consideration was Confederate money cannot be declared void on that account. 
 Thorington v. Smith, 8 Wai. 1. But the contrary was held in Hale v. Huston, 44 
 Ala. 134. An amnesty act is unconstitutional if it takes away contract rights. State 
 v. Gatzweiler, 49 Mo. 17; Clark v. Ticknor, 49 Mo. 144; see Drehman v. Stifle, 8 
 Wai. 595. And an act allowing set-off of losses during the war. Gunn v. Hendry, 
 43 Geo. 557; Solomon v. Lowry, 44 Geo. 290. And an act allowing defendant to 
 
620 BANKRUPT LAWS. 
 
 action is brought in the courts of a State other than that of the 
 origin of the contract ; that a creditor of one State, who volun. 
 
 return property purchased in full satisfaction of the contract. Abercrombie v. Baxter, 
 44 Geo. 36. 
 
 Who can Complain. That only parties whose rights are invaded can complain, 
 see New Orleans Nav. Co. v. New Orleans, 12 La. Ann. 364, and Mobile &c. R. R. v. 
 State, 29 Ala. 573, where it was held that creditors could not complain of the for- 
 feiture of a charter consented to by the corporation. It seems individual stock- 
 holders may complain of infringement of the contract contained in the charter of a 
 corporation. Gilford v. New Jersey R. R. 2 Stockt. 171. But where a municipality 
 subscribes to the stock of a corporation under legislative sanction, the individual 
 corporators have no right to complain of a statute authorizing a withdrawal of the 
 subscription. People v. Coon, 25 Cal. 635. Where the charter of a turnpike cor- 
 poration provided that certain towns should not be compelled to support any part 
 of the road, is was held that the towns had no constitutional right to the continuance 
 of the exemption. Brighton v. Wilkinson, 2 Allen, 27. 
 
 Extent of the Legislative Power where the Bight to amend, alter, or repeal Charters, 
 <&c., is reserved either in the Charter or in some general Statute. It would seem that 
 the right of alteration or repeal cannot be reserved in such terms as to leave the 
 rights of corporators, or those with whom they contract, wholly at the mercy of the 
 legislative will. See Goener v. Schroeder, 8 Minn. 387. 
 
 It is difficult under the authorities to determine how far, under the reservation 
 usually made, the legislative power extends. It certainly is far broader than the 
 police power, the taxing power, or the power of eminent domain. There are cases 
 which hold that the power of repeal and amendment enables the Legislature to dis- 
 pose of the property of all corporations to the same extent as it may dispose of the 
 property of municipal corporations, and to invalidate contracts so far as the corpo- 
 rations are concerned. Other cases, however, limit the legislative power to measures 
 of change far less radical than these. The reservation of the right to amend merely 
 does not enable the Legislature to repeal, or to defeat or substantially impair, the 
 original object of the incorporation. Comm'rs v. Holyoke &c. Co. 104 Mass. 446, 
 451. See Mayor v.Norwich &c. R. R. 109 Mass. 103 ; Parker v. Metropolitan R.R. II. 506. 
 
 The following cases are illustrations of what the Legislature has done under the 
 reserved right, and it will be seen that some of them, go much further than others. 
 A railroad may be compelled to erect a station at a particular place. Commonwealth 
 v. Eastern R. R. 103 Mass. 254 ; and to alter, grade, and build connecting tracks, 
 Fitchburg R, R. v. Grand Junction R. R. 4 Allen, 198 ; and to widen a bridge, En- 
 glish v. New Haven R. R. 32 Conn. 240 ; and to construct the embankments neces- 
 sary to carry a highway across it at its own expense, Albany &c. R. R. v. Brownell, 
 24 N. Y. 345. Where a statute has exempted a railroad corporation from a duty 
 imposed by law e. g., ringing a bell such duty may be reimposed. Galena &c. R. 
 R. v. Appleby, 28 111. 283. 
 
 But where a corporation has been granted the privilege of increasing its capital 
 stock, in consideration that it shall be liable for all damages to fish-rights caused by 
 its dams, and it has paid large sums on account of such damages, it cannot be re- 
 quired to make new fishways. Commonwealth v. Essex Co. 13 Gray, 239. We think 
 this case cannot be reconciled with many other decisions, and especially with two 
 recent ones made by the United States Supreme Court, and cited below, and seo 
 
BANKRUPT LAWS. 621 
 
 tarily makes himself a party to insolvent proceedings in another 
 State, is bound by the result. 
 
 Comin'rs v. Holyoke &c. Co. 104 Mass. 446. The number of directors in a railroad 
 to which a city is entitled by virtue of its municipal subscription may be increased. 
 People v. Hills, 46 Barb. 340. This case was reversed by the Court of Appeals upon 
 another point. A subsequent case involving the same question was carried to the 
 U. S. Supreme Court, and the ruling in People v. Hills, 46 Barb. 340, was there 
 affirmed. It was urged, on the argument, that the number of directors was not a 
 provision either of the city or of the railroad charter, but depended in fact upon a 
 contract between the city and the company, and that, while the Legislature might 
 alter the charter of both corporations, it could not on the plea of such alteration 
 change the contract made between them. The Supreme Court, however, upheld a 
 statute making the change. Miller v. State, 15 Wall. 478. Bradley and Field, JJ., 
 dissented, and their brief opinion we quote : " I dissent from the opinion of the 
 court in this case, on the ground that the agreement with respect to the number of 
 directors which the city of Rochester should elect was not a part of the charter of 
 the company, but an agreement outside of and collateral to it. Whilst the Legisla- 
 ture may reserve the right to revoke or change its own grant of chartered rights, it 
 : cannot reserve a right to invalidate contracts between third parties ; as that would 
 enable it to reserve the right to impair the validity of all contracts, and thus evade 
 the inhibition of the Constitution of the United States." Hid. 499. By a general 
 statute of South Carolina the right to alter, amend, or repeal charters subsequently 
 granted is reserved, unless the charter, in express terms, is excepted therefrom. A 
 railroad was chartered under this statute. Subsequently an act was passed exempt- 
 ing this railroad from all taxation, but this act did not in any manner state that it 
 was excepted from the operation of the prior general law referred to. Finally, in 
 1868, a new State Constitution, and legislation under it, reimposed taxes upon the 
 railroad. The Supreme Court of the United States held this last legislative act to 
 be constitutional and valid. Tomlinson v. Jessup, 15 Wall. 454. In Holyoke Co. v. 
 Lyman, 15 Wall. 500, the case of Comm'rs v. Holyoke Co. 104 Mass. 446, is affirmed, 
 and, as it seems, that of Commonwealth v. Essex Co. 13 Gray, 239, is overruled. 
 
 Again, the same court held that two colleges might be consolidated, one being 
 removed from its former location, even though this one had issued scholarships 
 which were contracts between the holders thereof and the college. It was urged 
 in this case, also, that the statute had the effect to impair the obligation of these 
 contracts between the college and individuals, but the court held the change 
 was within the legislative power. The decision, however, proceeded partly upon 
 the ground that the terms of the scholarships were not directly invaded, and there- 
 fore that the objection urged did not exist in fact. Pennsylvania College Cases, 13 
 Wai. 190. It has been held that the limits of an exclusive ferry privilege may be 
 narrowed. Perrin v. Oliver, 1 Minn. 202. Anc 1 , in New York, that the land of a 
 railroad may be taken for a public highway without compensation. Boston &c. R. 
 R. v. Greenbush, 5 Lans. 461. These cases, therefore, directly hold that under the 
 ordinary reservation, the Legislature may take away property belonging to the cor- 
 poration, and alter contracts made by it, so far at least as its own rights thereunder 
 are concerned. 
 
 A statute transferring the management of a turnpike road to the county court, on 
 account of the neglect and misconduct of the directors, was held valid in Simpson 
 
622 BANKRUPT LAWS. 
 
 The Supreme Court has not decided that a contract which 
 is in terms to be performed within the State where the dis- 
 charge is granted, may not be barred by such discharge, as 
 against a citizen of another State seeking to enforce the contract 
 in the State where the contract was to be performed and where 
 the discharge was obtained. Nor has it decided the question 
 where the contract was made with a citizen of the State where 
 the discharge is granted, and of which both creditor and 
 debtor were citizens at the time of the proceedings in insolv- 
 ency, though the contract itself was entered into in another 
 State.* 
 
 * I take this clear and succinct statement nard v. Marshall, 8 Pick. 194 ; Betts v. Bag- 
 
 from a recent case in Massachusetts where ley, 12 Pick. 572; Agew v. Platt, 15 Pick, 
 
 the whole subject has been considered. 417; Savoye v. Marsh, 10 Met. 594 ; Fiske v. 
 
 Marsh v. Putnam, 3 Gray, 563, per Thomas, J. Foster, 10 Met. 597 ; Woodbridge v. Allen, 
 
 The other cases in Massachusetts are Bray- 12 Met. 470; Ilsley v. Meriam, 7 Gush. 242; 
 
 County Ct. v. Arnold, 7 Bush (Ky.) 353. Also a statute authorizing the sale of the 
 franchises of a corporation, for purpose of paying its debts, by the chancellor, on 
 application of a creditor. L. &. O. Turnpike v. Ballard, 2 Mete. (Ky.) 165. And a 
 statute for the winding up of insolvent corporations. Robinson v. Gardiner, 18 
 Gratt. 509. 
 
 The method of enforcing the liability of corporators may be changed. Hyatt v. 
 McMahon, 25 Barb. 457. And personal liability may be imposed as to all future 
 transactions. In re Oliver Lee & Co.'s B'k, 21 N. Y. 9 ; Sherman v. Smith, 1 Black r 
 587. The capital stock may be reduced with the assent of a majority of the stock- 
 holders. Joslyn v. Pacific Mail Co. 12 Abb. Pr. R. (N. S.) 329. And the business of 
 a corporation may be extended e. g., a railroad maybe authorized to extend its line. 
 Durfee v. Old Colony R. R. 5 Allen, 230. See, on the subject of altering the charter* 
 of banks organized under-a general banking law containing the usual reservation, 
 In re Oliver Lee & Co.'s Bank, tibi sup. ; Sherman v. Smith, 1 Black, 587 ; see also- 
 Iron City B'k v. Pittsburg, 37 Penn. St. 340. 
 
 Taxes may be increased by general law beyond the limits fixed in the charter. 
 Commonwealth v. Fayette &c. R. R. 55 Penn. St. 452. And where by the charter of 
 a religious society, the trustees had the right to impose assessments or contributions 
 only with the consent of a majority of the pewholders, the Legislature may dispense 
 with such consent. Bailey v. Power Street Church, 6 R. I. 491. 
 
 Though the right is reserved to the Legislature, it may be exercised, by the people 
 by a change in the Constitution. In re Oliver Lee & Co.'s Bank, ubi sup. And where, 
 at the time of granting the charter, a two-thirds vote of the Legislature was required 
 under the Constitution, under a new Constitution not containing such restriction, the 
 alteration may be made by a majority vote. In re Reciprocity Bank, 22 N. Y. 9. 
 
 Where the Constitution reserves the right to alter or repeal charters, provided no 
 injustice be done to the corporators, it seems that the court is to judge of the justice 
 of the amending statute. Iron City Bank v. Pittsburg, 37 Penn. St. 340. But in 
 this case a tax law general in its operation on all banks was held not to be 
 unjust. 
 
BANKRUPT LAWS. 625 
 
 I 
 
 The most embarrassing cases that have arisen, however, 
 under this branch of our inquiry, are those growing out of a 
 nice distinction taken early by very high authority between 
 the obligation of a contract, and the remedy for its infringement 
 or non -performance. Out of this has grown much discussion 
 as to the, extent to which the legislative action of the States 
 may alter the remedy without impairing the obligation of a 
 contract. In a case already cited,* Mr. Chief Justice Marshall 
 used this language, " The distinction between the obligation of 
 a contract and the remedy given by the Legislature to enforce 
 that obligation has been taken at the bar, and exists in the 
 nature of things. Without impairing the obligation of the 
 contract, the remedy may certainly be modified as the wisdom 
 of the nation shall direct. Confinement of the debtor may be 
 a punishment for not performing his contract, or may be allowed 
 as a means of inducing him to perform it. But the State may 
 refuse to inflict this punishment, or may withhold this means, 
 and leave the contract in full force. Imprisonment is no part 
 of the contract, and simply to release the prisoner does not 
 impair its obligation." f This very general language has been 
 repeatedly regretted, and often criticised. And certainly it 
 does not appear to have been necessary for the decision of the 
 cause.J 
 
 Clark v. Hatch, 7 Cush. 455; Scribner v. which by their terms are to be performed and 
 
 Fisher, 2 Gray, 43. These cases are all re- executed within the limits of such State, is 
 
 viewed by the Supreme Court in Marsh v. valid and binding upon such citizens, and that 
 
 Putnam, 3 Gray, 551 ; where held, that a cer- a discharge obtained by a citizen of such 
 
 tificate of discharge under the insolvent laws State under such a law is a valid discharge." 
 of the State of Massachusetts is a bar to an * Sturges v. Crowninshield, 4 Wheat. 200. 
 action on a contract between two citizens of f About the same time the Supreme Court 
 
 the same State, though made and to be per- of the United States held, that an act incor- 
 
 formed in another State. porating a bank and giving to the corporation 
 
 In Betts v. Bagley, 12 Pick. 579, the Su- a summary process, in the nature of an at- 
 
 preme Court of Massachusetts said, " We tachment against its debtors who by express 
 
 consider the case of Ogden v. Saunders as written consent made their notes negotiable 
 
 authority for the proposition that a State in- at the bank, did not conflict with the provis- 
 
 solvent law, when no general law, passed by ions relating to trial by jury or the law of 
 
 the Congress of the United States establish- the land ; but they also held, that the provis- 
 
 ing a uniform system of bankruptcy is in ion did not create a chartered right in the 
 
 force, is not per se and by force of the clause bank that it related to the remedy and not 
 
 in the Constitution of the United States vest- the right, and as such was subject to legisla- 
 
 ing in Congress the power of passing such tive control. Bank of Columbia v. Okely, 4 
 
 law, unconstitutional and invalid ; but that Wheaton, 245 ; see also Young v. The Bank 
 
 the law of a State providing for the discharge of Alexandria, 4 Cranch, 384. 
 of an insolvent debtor upon the surrender of \ Kent terms this language of Marshall, 
 
 his property, so far as it operates upon con- C. J., general, latitudinary, and hazardous, 
 
 tracts made after such law within such State and says, " It seems to me that to lessen or 
 
 by citizens thereof then resident therein, and take away from the extent and efficiency of 
 
624 BANKRUPT LAWS. 
 
 The subject was again considered by the same tribunal. In 
 a case already cited, where certain laws of Kentucky were com- 
 plained of as infringing the constitutional provision because, 
 contrary to a compact with the State of Virginia, they rendered 
 the rights of claimants to lands less secure by depriving them 
 of .the fruits of their property, and charging them with the 
 value of improvements, it was said, "The objection to a law on 
 the ground of its impairing the obligation of a contract can 
 never depend on the extent of the change which the law effects 
 in it. The court proceeded to declare, that " legislation which 
 should deny to the owner of land a remedy to recover the pos- 
 session of it, or to recover the profits, or clogging his recovery 
 of the possession or profits by conditions and restrictions tend- 
 ing to diminish their value, impaired his right to and interest in 
 the property ; " and in the principal case they held the statutes 
 in question unconstitutional and void. * 
 
 The subject of the extent to which the remedy can be al- 
 tered without impairing the obligation, soon came up more dis- 
 tinctly for consideration. In March, 1814, Haile being a 
 prisoner in Rhode Island for debt, gave bond to the jail limits 
 to continue a true prisoner until lawfully discharged. In June, 
 1814, he presented a petition to the Legislature of Rhode 
 Island for relief, and for the benefit of an act passed in Rhode 
 Island in June, 1756, but then no longer in force, for the relief 
 of insolvent debtors. In 1816 the prayer of his petition was 
 granted, and thereafter a discharge from his debts and from im- 
 prisonment was granted him by the proper court. Suit being 
 brought on the bond, the legislative proceedings and the dis- 
 charge were pleaded, and a demurrer interposed, on which the 
 question went up to the Supreme Court of the United States. 
 The court premised by saying that the Legislature of Rhode 
 Island had been in the constant habit of entertaining petitions 
 of a similar character to that of Haile ; and held the discharge 
 valid, saying, "The discharge so far as it related to the im- 
 
 the remedy to enforce the contract legally " I say, with great confidence, that a law 
 existing when the contract was made, impairs taking away all remedy from existing con- 
 its value and obligation." Com. vol. i, p. 456 ; tracts would be manifestly a law impairing 
 vide also ante, pp. 1 13, 165, 171. the obligation of contracts." Per Tritnble,J., 
 * Green v. Biddle, 8 Wheat, pp. 84 and 76. 12 Wheat, p. 327. 
 
THE OBLIGATION AND THE REMEDY. G25 
 
 prisonment of the defendant affected the remedy in part only, 
 and was in the due and ordinary exercise of the powers vested 
 in the Legislature of Rhode Island, and was a lawful discharge 
 and no escape, and of course no breach of the condition of the 
 bond in question." * The court also cited the language above 
 used, in Sturges v. Crownin shield, and said, "Can it be doubted 
 that the Legislatures of the States, so far as relates to their own 
 process, have a right to abolish imprisonment for debt altogether, 
 and that such law might extend to present as well as to future 
 imprisonment ? " f 
 
 The general and sweeping character of the language of these 
 cases, and the singular omission to state any restrictions or to 
 fix any general, practical line of demarkation in regard to the 
 power of the State Legislatures, was perhaps the cause, among 
 others, that many laws were passed by the States striking at 
 the remedy of contracts in a very serious way ; and that the 
 State courts have frequently showed a disposition to sustain 
 legislation of this character. * 
 
 Previous to 1838, in the State of Massachusetts, creditors 
 had by law a right to secure their claims by attachments. An 
 act was passed on the 23d of April, 1838, to go into effect on 
 the 1st of August of that year, organizing what was, in fact, a 
 State bankrupt system providing for the appointment of .an as- 
 signee, an equal distribution of assets, and a discharge of the 
 debtor. The act declared that all the property of the debtor 
 should be vested in the assignees, although then attached on 
 mesne process, but saved all rights which had accrued to any 
 person by virtue of the prior system. Where a debt was due 
 before the passage of this act, of 23d April, 1838, and an at- 
 tachment issued at the suit of an individual creditor on the Yth 
 of August, 1838, or after it went into effect, it was held that 
 the attachment and lien of the attaching creditor could not be 
 sustained as against the assignees under the act of 1838, on the 
 ground that the act only impaired the remedy, and did not 
 
 * Washington, J., dissented, in a clear and der the very curious, original charter of Rhode 
 
 able opinion. Mason v. Haile, 12 Wheat. 379. Island, by which no division of the powers of 
 
 f It may be observed of this case, as of government were created, and under which 
 
 the interesting one of Wilkinson v. Leland, 2 the Legislature seems to haye exercised a des- 
 
 Peters, 627, that they were both decided un- potic sort of authority. 
 
 40 
 
626 THE OBLIGATION AND THE REMEDY. 
 
 affect the contract. And the court said, " A creditor cannot be 
 said to be deprived of all remedy, which, if true, would be tan- 
 tamount to the discharge of his claim; but his contract remains 
 in full force, and the limited remedy which is left to enforce 
 the payment would be more or less valuable according to cir- 
 cumstances." * 
 
 The laxity of legislative practice and of judicial decisions, 
 finally brought up the whole subject again before the Supreme 
 Court of the United States ; and their original language was 
 very seriously modified. Certain laws of Illinois, passed in 
 1841, declared that the equitable estate of the mortgagor in 
 premises mortgaged before the passage of the act, should not 
 be extinguished for twelve months after a sale and a decree in 
 chancery, and prohibited any sale unless two-thirds of the 
 amount at which the property had been valued by appraisers 
 should be bid therefor. These acts being brought up for adju- 
 dication before the Supreme Court of the United States, were , 
 declared to be void within this clause of the Constitution of 
 the United States. The court held the twelve months' delay 
 and the restriction on the sale both clearly to impair the con- 
 tract, as far as regarded mortgages executed previous to the 
 passage of the law.f I give an extract from the able opinion 
 of Mr. Chief Justice Taney, on account of the importance of the 
 subject ; but I cannot refrain from saying that, it appears to me, 
 if the reasoning were pushed to its legitimate and logical results, 
 contracts would have a much more efficient protection than they 
 have yet received. 
 
 * Bigelow v. Pritchard, 21 Pick. 1*74, de- fence to an action on a prison bond executed 
 
 cided in 1838. This language declares that a before the passage of the statute. Walter v. 
 
 substantial limitatinti or diminution of the rem- Bacon, 8 Mass. 468. 
 
 edy does not impair the obligation of the con- I may here notice some other cases be- 
 
 tract ; and it appears very difficult to sustain longing to the lax school of interpretation, 
 
 its reasoning, either on any construction of In Woodfin v. Hooper, 4 Humph. Tenn. R. 13, 
 
 the phraseology of the constitutional clause, it was held that the right to imprison the 
 
 or on principle; nor does it seem in accord- debtor as part of the remedy formed no part 
 
 ance with the later decisions. I may remark of the contract. In Chadwick v. Moore, 8 
 
 that the court in this case added, " A creditor Watts & Serg. 49, a State statute suspending 
 
 has no vested right in the mere remedy, un- sales on executions for a year, unless two- 
 
 lesx he may have exercised that rigid, by the com- thirds of the appraised value was realized, 
 
 menccment of legal process under it before the was held not unconstitutional. See also, on 
 
 law making an alteration concerning it shall the same siile, Evans v. Montgomery, 4 Watts 
 
 have gone into operation." I shall call atten- & Serfj. 218, and Patin v. Prejean, 7 Louis, 
 
 tion elsewhere to this important qualification. Rep. SOI ; Newton v. Tibbats, 2 Eng. R. 160; 
 
 We have elsewhere seen that in the same Bronson v. Newberry, 2 Doug. Michigan, 38 ; 
 
 State an act of the Legislature enlarging the Rockwell v. Hubbeli, 2 Doug. Michigan, 197. 
 limits of a prison-yard, was held a good de- f Mr. Justice M'Lean dissented. 
 
THE OBLIGATION AND THE REMEDY. 627 
 
 If the laws of the State passed afterwards had done nothing more than 
 change the remedy upon contracts of this description, they would be liable to 
 no constitutional objection. For, undoubtedly, a State may regulate at pleasure 
 the modes of proceeding in its courts in relation to its past contracts as well as 
 future. It may, for example, shorten the period of time within which claims 
 shall be barred by the statute of limitations. It may, if it thinks proper, direct 
 that the necessary implements of agriculture, or the tools of the mechanic, or 
 articles of necessity in household furniture, shall, like wearing apparel, not be 
 liable to execution on judgments. Regulations of this description have always 
 been considered, in every civilized community, as properly belonging to the 
 remedy, to be exercised or not by every sovereignty, according to its own views 
 of policy and humanity. It must reside in every State, to enable it to secure 
 its citizens from unjust and harassing litigation, and to protect them in those 
 pursuits which are necessary to the existence and well-being of every com- 
 munity. And, although a new remedy may be deemed less convenient than the 
 old one, and may in some degree render the recovery of debts more tardy and 
 difficult, yet it will not follow that the law is unconstitutional. 
 
 Whatever belongs merely to the remedy, may be altered according to the 
 will of the State; provided the alteration does not impair the obligation of the 
 contract. But.'if that effect is produced, it is immaterial whether it is done by 
 acting on the remedy, or directly on the contract itself. In either case, it is pro- 
 hibited by the Constitution. 
 
 It is difficult, perhaps, to draw a line that would be^applicable, in all cases, be- 
 tween legitimate alterations of the remedy and provisions which, in the form of 
 remedy, impair the right. But it is manifest that the obligation of the contract, 
 and the rights of a party under it, may in effect be destroyed by denying a rem- 
 edy altogether ; or may be seriously impaired by burdening the proceedings 
 with new conditions and restrictions, so as to make the remedy hardly worth 
 pursuing. And no one, we presume, would say that there is any substantial dif- 
 ference between a retrospective law, declaring a particular contract or class of 
 contracts to be abrogated and void, and one which took away all remedy to en- 
 force them, or encumbered it with conditions that rendered it useless or imprac- 
 ticable to pursue it. 
 
 This brings us to examine the statutes of Illinois which have given rise to 
 this controversy. As concerns the law of February 19, 1841, it appears to the 
 court not to act merely on the remedy, but directly upon the contract itself, and 
 to engraft upon it new conditions injurious and unjust to the mortgagee. It de- 
 clares that, although the mortgaged premises should be sold under the decree 
 of the Court of Chancery, yet that the equitable estate of the mortgagor shall 
 not be extinguished, but shall continue for twelve months after the sale ; and it 
 moreover gives a new and like estate, which before had no existence, to the 
 judgment creditor, to continue for fifteen months. If such rights may be added 
 to the original contract by subsequent legislation, it would be difficult to say at 
 what point they must stop. An equitable interest in the premises may, in like 
 manner, be conferred upon others ; and the right to redeem may be so prolonged 
 
628 THE OBLIGATION AND THE REMEDY. 
 
 as to deprive the mortgagee of the benefit of his security, by rendering the prop- 
 erty unsalable for anything like its value. This law gives the mortgagor and 
 the judgment creditor an equitable estate in the premises, which neither of them 
 would have been entitled to under the original contract ; and these new interests 
 are directly and materially in conflict with those which the mortgagee acquired 
 when the mortgage was made. Any such modification of a contract by subse- 
 quent legislation, against the consent of one of the parties, unquestionably im- 
 pairs its obligations, and is prohibited by the Constitution. 
 
 The second point certified arises under the law of February 27, 1841. The 
 observations already made in relation to the other act apply with equal force to 
 this. It is true that this law apparently acts upon the remedy, and not directly 
 upon the contract. Yet its effect is to deprive the party of his pre-existing right 
 to foreclose the mortgage by a sale of the premises, and to impose upon him 
 conditions which would frequently render any sale altogether impossible. And 
 this law is still more objectionable, because it is not a general one, prescribing 
 the mode of selling mortgaged premises in all cases, but it is confined to judg- 
 ments rendered and contracts made prior to the 1st of May, 1841. The act 
 was passed on the 27th of February, in that year ; and it operates mainly on 
 past contracts, and not on the future. If the contracts intended to be affected 
 by it had been specifically enumerated in the law, and these conditions applied 
 to them, while other contracts of the same description were to be enforced hi 
 the ordinary course of legal proceedings, no one would doubt that such a law 
 was unconstitutional. Here a particular class of contracts is selected, and en- 
 cumbered with these new conditions; and it can make no difference in principle 
 whether they are described by the names of the parties, or by the time at which 
 they were made. 
 
 In the case before us, the conflict of these laws with the obligations of the 
 contract is made the more evident by an express covenant contained in the in- 
 strument itself, whereby the mortgagee, in default of payment, was authorized 
 to enter on the premises and sell them at public auction ; and to retain out of 
 the money thus raised the amount due, and to pay the overplus, if any, to the 
 mortgagor. It is impossible to read this covenant, and compare it with the laws 
 now under consideration, without seeing that both of these acts materially inter- 
 fere with the express agreement of the parties contained in this covenant. Yet 
 the right here secured to the mortgagee is substantially nothing more than the 
 right to sell, free an.l discharged of the equitable interest of Kii/zie and wife, in 
 order to obtain his money. Now, at the time this deed was executed, the right 
 to sell free and discharged of the equitable estate of mortgagor in the State, 
 existed without the aid of this express covenant, and the only difference between 
 the right annexed by law and that given by the covenant, consists in this that 
 in the former case the right of sale must be exercised under the direction of the 
 Court of Chancery, upon such terms as it shall prescribe, and the sale made by 
 an agent of the court ; in the latter, the sale is made by the party himself. But, 
 even under this covenant, the sale made by the party is so far subject to the 
 supervision of the court, that it will be set aside and a new one ordered, if 
 
THE OBLIGATION AND THE REMEDY. 629 
 
 reasonable notice is not given, or the proceedings be regarded, in any respect, as 
 contrary to equity and justice. There is, therefore, in truth, but little material 
 difference between the rights of the mortgagee, with or without this covenant. 
 The distinction consists rather in the form of the remedy than in the substantial 
 right; and as it is evident that the laws in question invade the right secured by 
 this covenant, there can be no sound reason for a different conclusion where 
 similar rights are incorporated by law into the contract, and form a part of it 
 at the time it is made. 
 
 Mortgages made since the passage of these laws must undoubtedly be gov- 
 erned by them ; for every State has the power to prescribe the legal and equi- 
 table obligations of a contract to be made and executed within its jurisdiction. 
 It may exempt any property it thinks proper from sale, for the payment of a 
 debt ; and may impose such conditions and restrictions upon the creditor as its 
 judgmert and policy may dictate. And all future contracts would be subject 
 to. such provisions, and they would be obligatory upon the parties in the courts 
 of the United States as well as those of the State. We speak, of course, of 
 contracts made and to be executed in the State. It is a case of that description 
 that is now before us, and we do not think it proper to go beyond it.* 
 
 And again,t the same principle was applied to the same 
 laws, and they were declared unconstitutional so far as they af- 
 fected mortgages given before their passage.^ 
 
 But this rule is only understood to protect contracts made 
 before the passage of the law. Contracts made after the pas- 
 sage of the statute are controlled by it, on the ground that the 
 laws in existence when the contract is made, are necessarily re- 
 ferred to, and form part of the contract, and fix the rights and 
 obligations growing out of it. I 
 
 These decisions exercised a marked and immediate influence 
 on the legislation of the country and on the action of the State 
 tribunals ; and it may perhaps be said, with, however, many 
 serious exceptions, that the tendency of the later decisions is to 
 treat the substantial remedy provided by the laws in existence 
 at the time of the formation of the contract, as a material part 
 
 * Bronson T. Kinzie, 1 Howard, 315, de- constitutional questions, its magnitude cannot 
 
 cided in 1843. easily be overstated. 
 
 I may be permitted to express my regret \ M'.Cracken v. Hayward, 2 Howard, 608. 
 
 that in this case, as in Sturges v. Crownin- j Mr. Justice Catron dissented; see also, 
 
 shield, and the Dartmouth College Case, the Curran v. State of Arkansas, 15 Howard, 304, 
 
 Supreme Court felt themselves at liberty to 318, where the same doctrine is laid down in 
 
 go beyond the case before them, and to ex- an able opinion by Mr. Justice Curtis, 
 press an opinion in regard to other questions, | Moore v. Fowler, Hempstead's Arkansas 
 
 of great moment but not necessarily in judg- C. C. Reports, 537. The law had been before 
 
 ment. The rule which confines judicial de- held valid, even as to contracts made before 
 
 cisions to the very matter before the tribunal it. U. S. v. Con way, Ibiil. 313. 
 is important in all cases ; but in regard to 
 
G30 THE OBLIGATION AIS'D THE REMEDY. 
 
 of the contract ; and that any legislation which materially im- 
 pairs the vigor or efficiency of that remedy, in just so far im- 
 pairs the contract. 
 
 Notwithstanding the great weight of authority on the other 
 side of the question, I am free to confess my entire inability to 
 distinguish between the obligation and the remedy of a con- 
 tract. Obligation, I suppose, means binding force, the force or 
 constraint which binds the party to perform his agreement. 
 What, then, is in legal acceptation, the binding force of a con- 
 tract ? It certainly is not the mere, naked promise. It is not 
 the moral duty. It is not honor, nor fashion, that binds the 
 contracting party to keep his engagement. What is it then, 
 but the remedy the coercive remedy which the law gives 
 against the person or property of the defaulting party. It 
 seems to me, that looking at a contract legally and practically 
 as an instrument by which rights of property are created, and 
 on which they repose, obligation and remedy are strictly con- 
 vertible terms. Take away the whole remedy, and it is ad- 
 mitted the contract is gone. How, then, if a material part of 
 the remedy be taken away, can it be said that the obligation is 
 not impaired? A confusion would seem to have arisen from 
 not sufficiently taking into consideration the full sense of the 
 term impaired. It is said that the remedy forms no part of the 
 contract, and that the creditor makes his bargain, knowing that 
 he is at the mercy Of future legislation ; but as I understand it, 
 all the cases distinguishing between the operation of State in- 
 solvent laws and State stop laws, passed before the making of 
 the contract, and those made after, proceed on the very ground 
 that the legislation in force at the time of the contract enters 
 into and forms part of it. It is said again, that in all countries, 
 and at all times, the remedy has been under the control of the 
 sovereign authority. This is merely begging the question, or 
 rather arguing from false analogies. The very question with 
 us, is whether, under our system, we have not declared a dif- 
 ferent rule. No one seeks to deny that the remedy should be 
 to a certain extent under legislative control. Tribunals may 
 
 o > 
 
 be changed, procedure altered : these modifications do in no- 
 wise impair the remedy or prejudice the holder of a contract. 
 
THE OBLIGATION AND THE REMEDY. G3l 
 
 But it seems to me the only logical rule to hold, that any legis- 
 lation which materially diminishes the remedy given by the 
 law to the creditor at the time his contract is made, just so far 
 impairs the obligation of the contract. We must, however, 
 take our law from the adjudged cases. 
 
 In Pennsylvania and Missouri, the doctrine of Bronson v. 
 Kinzie has been followed, and State stop laws of the same 
 kind have been declared invalid ; * and in Indiana it has been 
 generally decided that the sale of property on execution under 
 judgment on a contract, is governed by the laws in force when 
 the contract was made.f 
 
 In 1830 the Legislature of Mississippi passed an act entitled, 
 An act to establish a planter's bank in the State of Mississippi, 
 by which, among other things, the bank was authorized to re- 
 ceive, retain, and enjoy its property of every kind, and to grant, 
 demise, alien, and dispose of the same. In 1840 the State of 
 Mississippi passed a law declaring that it should not be lawful 
 for any bank in the State to transfer by indorsement or other- 
 wise, any note or bill receivable, and if an action was brought 
 on any note or bill so transferred, the same should be abated. 
 The Supreme Court of the United States held that the obliga- 
 tion in the contract between the State and the bank was, that 
 the bank should have power to assign and transfer its prop- 
 erty ; that the contract between the bank 1 and the signers of its 
 notes was, that they should be paid in the hands of an assignee ; 
 that the law of 1840, by abating the suit, and thus destroying 
 all remedy on the note in suit, impaired the obligation of both 
 contracts, and it was held void.J 
 
 * Lancaster Savings Institution v. Pei- charters, no injury is committed not atoned 
 
 gart, cited 4 Kent Com. 434, note a ; Baum- for ; nothing is done not allowed by pre-ex- 
 
 gardoer v. Circuit Court, 4 Missouri R. 50. isting laws or rights, and consequently no 
 
 f Harrison v. Stipp, 8 Blackf. R. 455. part of the obligation of the contract is iru- 
 
 \ Planters' Bank v. Sharp, t> How. 301. paired. See case of the West River Bridge, 
 
 This case contains the following brief and and authorities there cited, in 6 Howard, 507. 
 
 comprehensive summary of the decisions of " S~>, where the Legislature afterward tax 
 
 the courts on this clause, by Mr. Justice the property of such corporations, in common 
 
 Woodbury : with other property of like kind in the State, 
 
 " Where a new law has taken the prop- it is under an implied stipulation to that 
 
 erty of a corporation for highways, under the effect, and violates no part of the contract 
 
 right of eminent domain, which reaches all contained in the charter. Armstrong v. 
 
 property, private or corporate, on a public Treasurer of Athens County, 16 Peters, 281. 
 
 necessity, and on making full compensation See Providence Bank v. Billings, 4 Peters, 
 
 for it, and under an implied stipulation to be 514 ; 11 Peters, 567 ; 4 Wheat. 699 ; 12 Mass, 
 
 allowed to do it in all public grants and Rep. 252 ; 4 Gill and Johns. 132 ; 4 Dura. & 
 
632 
 
 THE OBLIGATION AND THE REMEDY. 
 
 Where a railroad charter, passed in 1828, provided for a 
 mode of deterrning the value of laud wanted for the road, by 
 the inquisition of a jury, the fee to vest in the company on pay- 
 ment or tender of the sum assessed, in 1836 an inquisition was 
 had and the damages assessed ; but in 1841, before payment or 
 tender made, the Legislature interposed and ordered a new in- 
 quisition to be taken, it was held that this did not impair the 
 contract contained in the original charter, that the company 
 had acquired no vested right by contract with the State, and 
 that consequently none was impaired.* 
 
 An interesting question has been recently presented in New 
 Jersey, in which a sound and vigorous interpretation has been 
 
 East, 2; 5 Barn. & Aid. 157; 2 Railway 
 Cases, 23. 
 
 " So, where no clause existed in the charter 
 for a bridge against authorizing other bridges 
 near at suitable places, it is no violation of 
 the terms or obligation of the contract to 
 authorize another. Charles River Bridge v. 
 The Warren Bridge et al. 11 Peters, 420. 
 
 " Nor is it, if a law make deeds by femes 
 covert good when bona fide, though not ac- 
 knowledged in a particular form ; because it 
 confirms rather than impairs their deeds, and 
 carries out the original intent of the parties. 
 Watson v. Mercer, 8 Peters, 88. 
 
 " Or if a State grant lands, but makes no 
 stipulation not to legislate further upon the 
 subject, and proceeds to prescribe a mode or 
 form of settling titles, this does not impair 
 the force of the grant, or take away any right 
 under it. Jackson v. 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, or shortens the statute of 
 limitations. 3 Peters, 280 ; Hawkins v. Bar- 
 ney's Lessee, 5 Ib. 457. 
 
 " It has been held also, not only that the 
 Legislature may regulate anew what is merely 
 the remedy, but some State courts have de- 
 cided that it may make banking corporations 
 subject to certain penalties for not performing 
 their duties, such as paying their notes on 
 demand in specie, and that does not violate 
 any contract. Brown v. Penobscot Bank, 8 
 Mass. Rep. 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, and no one can doubt that the 
 
 obligation of the contract is impaired. Fletcher 
 v. 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 v. Wilson, 7 Cranch, 164. 
 Or that corporate property and franchises 
 shall be exempt, and they are taxed. Gordon 
 v. Appeal Tax Court, 3 Howard, 138. 
 
 " 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 v. Taylor, 9 Cranch, 43 ; 
 Town of Pawlett v. Clark, 9 Cranch, 292. 
 
 " Or if a charter, deemed private rather 
 than public, has been altered as to its govern- 
 ment and control. Dartmouth College v. 
 Woodward, 4 Wheat. 518. 
 
 " Or if owners of land granted without 
 conditions or restrictions, have been by the 
 Legislature deprived of their usual remedy 
 for mesne profits, or compelled to pay for cer- 
 tain kinds of improvements for which they 
 were not otherwise liable. Green v. Biddle, 
 8 Wheat. 1. 
 
 " Or if after a mortgage, new laws are 
 passed prohibiting a sale to foreclose it un- 
 less two-thirds of its appraised value is offered, 
 and enacting further that the equitable title 
 shall not be extinguished until twelvemonths 
 after the sale. Bronson v. Kinzie, 1 Howard, 
 311; M'Cracken v. Hay ward, 2 Ib. 608 ; " 
 Planters' Bank v. Sharp el al. 6 Ib. 331. 
 
 * Baltimore and Susquehauna Railroad 
 Co. v. Nesbit, 10 Howard, 395. 
 
 See, in Pennsylvania, the Erie and North 
 East R. R. v. 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 re- 
 gard 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. G33 
 
 given to the clause. The Somerville 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 
 real estate of the company, conditioned that on default of pay- 
 ment the lenders should have the right to re-enter and sell. A 
 bill in equity having been filed against the company, and re- 
 ceivers appointed, a statute was passed by the 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 un- 
 constitutional 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 
 
 Some of the recent State decisions, however, exhibit a ten- 
 dency again to relax the rule. It has been held in New York, 
 that where the law has conferred an extraordinary 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 ; arid it was ac- 
 cordingly decided, that an act (1836, c. 369, 2), repealing 
 
 * Ante, p. 580. jurisdiction of courts of law or equity; eon- 
 
 f John M. Martin v. The Somerville Water- sequently, the decisions of the courts of New 
 
 Power Company and others. I find the case Jersey of questions arising under the old 
 
 reported in the New York Evening Post for Constitution, cannot be cited as precedents 
 
 April 4th, 1857. In his opinion in this case, applicable to the present one, which carefully 
 
 Mr. Justice Grier says, " Previous to the 29th defines a>id limits the powers intrusted to the 
 
 of June, 1844, the State of New Jersey was Legislature, the executive, and the judiciary." 
 
 governed by the old colonial Constitution, The remark is important, and tends to throw 
 
 adopted on the 2d of July, 17*76. This con- light upon the cases of Mason v. Haile, 12 
 
 taiued no bill of rights, nor any clear limita- Wheat, p. 376; ante, p. 625; and Wilkinson 
 
 tion of the powers of the Legislatura. The v. Lelnnd, 2 Peters, ante, p. 625, decided 
 
 history of JN'ew Jersey legislation exhibits a under the old Constitution or charter of 
 
 long list of private acts and anomalous legis- Rhode Island, which was equally lax in its 
 
 lation on the affairs of individuals, assuming definition and distribution ot the powers of 
 
 control over wills, deeds, partitions, trusts, Government, 
 and other subjects usually coming under the 
 
634 THE OBLIGATION AND THE REMEDY. 
 
 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 held in the same 
 State, following the intimation made obiter in Bronson v. Kin- 
 zie, 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 
 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, accordingly, 
 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, all 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 impos- 
 sible to establish his right. \ 
 
 The Supreme Court of Massachusetts has said : 
 
 If the Legislature of any State were to undertake to make a law preventing 
 the legal remedy upon a contract lawfully made, and binding on the party to 
 
 * Stocking v. Hunt, 3 Denio, 274. \ Bronson v. Kinzie, 1 How. 311 ; M'Crack- 
 
 f In Quackenbush v. Dauks, 1'Denio, 128, en v. Hay ward, 2 How. 608; Jackson v. 
 
 affirmed by a divided court, 1 Coma. 129, a Lamphire, 3 Peters, 290 ; Briscoe v. Auketell, 
 
 contrary result was arrived at ; but the point 28 Miss. 3t>l. See, also, to what is said as to 
 
 has been finally decided in Morse v. Ooold, 1 statutes of limitation and usury in Sturges v. 
 
 Kernan, 281. Crowuinshield, 4 Wheat. 206. 
 
STATUTES OF LIMITATION. G35 
 
 it, there is no question that such Legislature would, by such act, exceed its 
 legitimate powers. Such an act must necessarily impair the obligation of the 
 contract within the meaning of the Constitution ; and the courts of law would 
 be found, therefore, to consider 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 wholesome 
 and useful regulations, would be extravagant. It must be left to the discretion 
 of the Legislature to fix the proper limitations. In the case under consideration, 
 the term of a year is not, in our opinion, unreasonably short. But a true con- 
 struction 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 judg- 
 ments which had been obtained in any other State, prior to the 
 passage of the law, should be barred, unless suit was brought 
 upon the judgment within two years after the passage of the 
 statute the act was held within the power of the State, even 
 in a case where the person against whom the judgment 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 absconding 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 R L. 369), the 
 State of New York enacted that all deeds made after February, 
 1799, of lauds in certain counties specified, should be recorded, 
 and that every such deed should be adjudged fraudulent and 
 void as against any subseqiient^bona fale purchaser or mortgagee, 
 unless it should be recorded before the recording of the deed 
 or conveyance under which such subsequent purchaser or mort- 
 gagee should claim. In a case arising under this act, Mr. Chan- 
 
 * Call v. Hagger et al. 8 Mass. 429. See Howard, 52Y. It is worthy of observation, 
 
 also Holyoke v. Raskins, 5 Pick. 26; Smith however, that the clause in regard to obliga- 
 
 T. Morrison, 22 Pick. 431. tion of contracts does not appear to have been 
 
 f Bank of State of Alabama v. Dalton, 9 discussed. 
 
636 RECORDING ACTS. 
 
 cell or AVal worth held that it could not be construed retrospective- 
 ly ; that if it were, it would destroy or materially impair a vested 
 right under a previous contract, and be inoperative 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 previ- 
 ously executed deeds, as impairing the obligation of contracts ; 
 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, 1797, the Legislature 
 
 * / O 
 
 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 determine all disputes in regard to land titles in that coun- 
 ty ; 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 
 the 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 claiming under a 
 deed from the original patentee, dated the 17th of January, 
 1784, and recorded on the 25th of April, 1795 ; the other party 
 claiming under a deed dated the 23d June, 1784, and recorded 
 the 3d of April, 1795. 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 regulations to 
 be made in violation of the State Constitution ; 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 
 
 * Varick v. Briggs, 6 Paige, 332; Varick's Exrs. v. Briggs, 22 Wend. 546. 
 
CHANGE OF CONSTITUTIONS. G37 
 
 Supreme Court of the United States held otherwise. They 
 said that the patent contained no covenant to do, or not to do, 
 any further act in relation to the land, and they could not 
 create one by implication ; they said 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 grantors 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 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 necessary to the legal opera- 
 tion 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. Reasons 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 operation, 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 may be so un- 
 reasonable as to amount to a denial of a right and call for the interposition of the 
 court ; but the present is not one.* 
 
 It results from the general nature of the Federal Govern- 
 ment, 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 Constitution, declaring a new mode by which taxes therein 
 
 * Jackson v. Lamphtre, 3 Peters' Rep. p. 289. 
 
G38 EMINENT DOMAIN. 
 
 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 from the fact of being in conformity with 
 the State Constitution of 1851.* 
 
 We are still to consider the effect of the Constitutional 
 clause with reference to the right of eminent domain. The im- 
 portant question, whether the clause in regard to the inviolabil- 
 ity of contracts places State charters beyond the reach of the 
 exercise of the sovereign control over all property with refer- 
 ence to public convenience and necessity, first came before the 
 Supreme Court in a case where a bridge, held by an incor- 
 porated 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 unconstitu- 
 tional ; that the charter was a contract, but, like all other prop- 
 erty, held 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 cor- 
 poration and property held by an individual.f The doctrine 
 
 * Dodge v. Woolsey, 18 Howard, 331; sovereign community there inheres neces- 
 
 and, also, State Bank- of Ohio v. Knoop, 16 sarily the right and duty of guarding its own 
 
 Howard, 369. See the former case, also, for existence, and of protecting and promoting 
 
 one of the most recent cases expounding the the interests and welfare of the commuuity at 
 
 rights and duties of the Supreme Court of the large. This power and this duty are to be 
 
 United States, as an ultimate tribunal to de- exerted not only in the highest acts of sov- 
 
 termine whether laws enacted by Congress, ereignty, and in the external relations of 
 
 or by State Legislatures, and the decisions of governments; they reach and comprehend, 
 
 State courts, are in conflict with the Consti- likewise, the interior polity and relations of 
 
 tution of the United States. social life, which should be regulated with 
 
 f West River Bridge Co. v. Dix et al. 6 reference to the advantage of the whole 
 How. p. 507, by Daniels, J. See, in this case, society. This power, denominated the eminent 
 Mr. Justice Woodbury's opinion. It contains domain of the State, is, as its name imports, 
 the suggestion of some important if practi- paramount to all private rights vested under 
 cable qualifications in regard to the exercise the Government ; and these last are, by nec- 
 of the power of eminent domain. He says, p. essary implication, held in subordination to 
 541, in regard to the comparative protection this power, and must yield, in every instance 
 of private rights here and in England, " Not- to its proper exercise." Page 532. 
 withstanding the theoretical omnipotence of The three cases of the Dartmouth Col- 
 Parliament, private rights and contracts have leije, declaring State charters to be contracts 
 bc.en, in these particulars about compensation within the protection of the Constitution ; of 
 and necessity for public use, as much respected the Charles River Bridge, declaring the prin- 
 in England as here." Vide ante, p. 462, in note, ciples of interpretation applicable to such 
 
 The definition of the power of eminent acts ; and, finally, of the West River Bridge, 
 
 domain given by the court, substantially declaring corporate franchises to be subject 
 
 agrees with that which I have suggested, to the power of eminent domain are all 
 
 ante, pp. 424 aud 434. " In every political cases of extreme interest, and cannot be too 
 
RETROSPECTIVE LEGISLATION. 639 
 
 has been since affirmed ; and, in a recent case, it was again de- 
 cided that the grant of a franchise is of no higher order, and con- 
 fers 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 exercise 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 im- 
 paired provided compensation is secured.f In Massachusetts, 
 it has been decided that an act of the Legislature, in the exer- 
 
 O i 
 
 cise of the right of eminent domain, appropriating to public 
 use, on payment 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 Consti- 
 tution of the United States. And it was intimated that the 
 power would extend to take the entire franchises of a corpora- 
 tion. J 
 
 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 mar- 
 riage 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 solemnized were void. Difficulties 
 arising under the act, another statute was passed, in 1820, de- 
 claring that all marriages which had theretofore been performed 
 and celebrated by a minister authorized to celebrate marriages 
 
 often consulted as fixing some of the most declared. The Enfield Toll Bridge Co. v. The 
 
 important landmarks of legislative power and Hartfcrd and N. H. R. R. 17 Conn. 40. 
 
 providing some of the most valuable guaran- \ The Boston Water-Power Co. v. The 
 
 ties of private right. Boston and Worcester R. R. Co. 23 Pick. 361. 
 
 * The Richmond R. R. Co. v. The Louisa The general doctrine of the Charles River 
 
 R. R. Co. 13 Howard, 82. Bridge Case, that any ambiguity in the terms 
 
 f Piscataqua Bridge v. 1ST. H. Bridge, 7N. of the contract must operate against the cor- 
 
 H. 65. The principle of the Piscataqua poration and in favor of the public, and that 
 
 Bridge Case is affirmed in Barber v. Andover, the corporation can claim nothing but what 
 
 8 N. H. 398; and in Backus v. Lebanon, 11 is clearly given by the act, is affirmed and 
 
 N. H. 19, the power of the State, by virtue of applied in the Richmond <fcc. R. R. Co. v. 
 
 its eminent domain, over corporations, even The Louisa R. R. Co. 13 How. 81. 
 to the extent of taking their franchises, was 
 
640 
 
 RETROSPECTIVE LEGISLATION. 
 
 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 settle- 
 ment, 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 good ; Hosmer, J., said there was 
 no pretense that it was a law which impaired the obligation of 
 contracts, and that the Legislature had the power to pass re- 
 trospective laws to accomplish just and proper ends.* 
 
 * He said, " The interposition of the 
 Legislature to pass retrospective laws pro- 
 motive 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 incon- 
 trovertibly just, no disapprobation has ever 
 been expressed. 
 
 " In result, I feel myself authorized to 
 assert that the question, where no constitu- 
 tional objection exists, whether the judiciary 
 may declare a retrospective law operating on 
 vested rights to he void, is undetermined ; 
 that men of profound learning and exalted 
 talents have greatly differed on the subject ; 
 and that it is an r. quiry beset with difficulty. 
 
 " With those judges who assert the omnip- 
 otence of the Legislature in all cases where 
 the Constitution has not interposed an ex- 
 plicit restraint, I cannot agree. Should there 
 exist what I know is not only an incredible 
 supposition, 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 vindication, 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 Legis- 
 lature 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 believe no 
 person will deny that the exercise of legisla- 
 tive authority, merely, and without further 
 consequences, to confirm marriages not duly 
 celebrated, is valid, although clearly retro- 
 
 spective and manifestly operating on the 
 rights of individuals. And as every law in- 
 trinsically implies an opinion of the Legisla- 
 ture 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 the assertion (Calder et ux. v. 
 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 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 cele- 
 brated, as was believed, according to the 
 prescriptions of the statute. On a close in- 
 vestigation of the subject, under the prompt- 
 ing scrutiny of interest, il was made to ap- 
 pear that there had been an honest miscon- 
 struction of the law ; that many unions which 
 were considered as matrimonial were really 
 meretricious ; and that the settlement of chil- 
 dren 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 matri- 
 monial 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 Legis- 
 lature considered 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 have been frequent and 
 the subject of universal acquiescence, and no 
 injustice can arise from having given legal 
 efficacy to voluntary engagements and from 
 
RETROSPECTIVE LEGISLATION. 641 
 
 An execution was levied on land in the State of Connecti- 
 cut, in December, 1 823. 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 re- 
 sided 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 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 ob- 
 jected 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 in invitum, and that 
 the objection pointed at an object which had no existence ; and 
 the statute was held valid on the ground that, although retro- 
 spective, it was a just and reasonable law.* 
 
 Another case has presented itself, in the same State, in rela- 
 tion to an act, passed in 1826, declaring that no levy of an 
 
 accompanying them with the consequences and unobserved alterations at the late revision 
 which they always impart. The judiciary, of the law relative to the levy of executions, 
 to declare the law in question void, must first The wide-spread mischief to officers who had 
 recognize the principle that every retrospec- faithfully performed their duty according to 
 tive act, however just and wise, is of no valid- their best knowledge, and the rights of un- 
 ity; and that, for the correction of every merous creditors whose debts were in jcop- 
 deviation of the Legislature from absolute ardy, furnished strong political and equitable 
 right, theirs is the supremacy. Impressed reasons for the interposition of the Legisla- 
 with the opinion that this is beyond the con- ture. On the other hand, to the mistaken levy 
 fines of judicial authority, I am satisfied with of the execution the debtors had no reasonable 
 the decision at the circuit, and would not ad- objection ; and creditors and purchasers, al- 
 vise a new trial." Goshen v. Stonington, 4 ways acting with full information derived 
 Conn. R. p. 226. from the records of land titles, could not just- 
 * The court said, " In Goshen v. Stoning- ly complain that they were not permitted to 
 ton, 4 Conn. Rep. 209, it was adjudged by wrench from those who had levied their exe- 
 this court that a retrospective law impairing cations defectively the property to which they 
 vested rights, if it be not clearly unjuxt, is had, at least, an equitable title. The real 
 entitled to obedience ; and that to disregard question to be determined is merely this : 
 an act of the Legislature, unless it be inequi- Whether every retrospective law acting on 
 table, oppressive, and in violation of the social vested rights is invalid. If it is not, there 
 compact, is not within the confines of judicial are few cases the equity of which more iinpe- 
 authority. I discern nothing of this charac- riously demands legislative interposition than 
 ter in tire law under consideration. It is the those within the purview of the late law." 
 ordinary exercise of legislative authority, in, Mather v. Chapman, 6 Conn. Rep. 58 ; s. p. 
 similar cases sometimes requisite to prevent Norton v. Pettibone, 7 Conn. 319; and Booth 
 great injustice and public inconvenience. In v. Booth, 7 Conn. 351. 
 the case before us, the error arose from slight 
 41 
 
642 RETROSPECTIVE LEGISLATION. 
 
 execution theretofore made should be 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 import- 
 ant clause of the Constitution. Its value has certainly been 
 very great ; but if we observe its practical operation in con- 
 nection with that other fundamental guaranty of our rights, 
 that private property shall not be taken without compensation, 
 some deductions will perhaps have to be made from the com- 
 mendations which we bestow on our system of constitutional 
 law. In the one case, by a very rigid and technical interpreta- 
 tion 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 protection 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 limitations in 
 some sense diminishes their security ; the interests that else- 
 where are guarded by a general sense of the importance of re- 
 fraining from all interference with individual rights, here seek 
 the protection of precise texts of written law. It is not a pro- 
 tection of principle, so much as of authority ; and the exercise 
 
 * Hosmer, C. J., said, "Every act of the of an individual, must be considered as of no 
 
 Legislature intrinsically implies an opinion validity. And thus, in cases the most equi- 
 
 that the legislative body had a right to enact table and salutary, the judiciary must deny the 
 
 it. And the judiciary will discover sufficient legislative right to pass a law oppressive to 
 
 promptitude if it determine a law to be in- no one and promotive of entire justice, and 
 
 valid that operates by retrospection unjustly this upon the authority of general principles, 
 
 on person or property. The principle steers I am not speculatist enough to yield my sanc- 
 
 a correct medium, admitting the sovereignty tion to this course of proceeding. Beach v. 
 
 of the Legislature to do justice by an act un- Walker, 6 Conn. 198. 
 
 questioned by the court of law, while it equal- " Under the power to maintain an army 
 ly repels the supposed uncontrollable omnipo- and navy, Congress may authorize infants to 
 tence of the same body to require the ob- make a valid contract of enlistment; and an 
 servance of an unjust law in subversion of indentured infant, bound out by the managers 
 fundamental rights, and in opposition to the of an alms-house as an apprentice, may enlist 
 social compact. The question is not free from with the consent of the master, even although 
 difficulty ; but unless the doctrine sanctioned the consent of the manager is not obtained." 
 by the court be embraced, this extreme would Commonwealth v. Murray, 4 Binn. 487 ; Com- 
 be resorted to, that every retrospective law, monwealth v. Barker, 5 Binn. 423. 
 however just or wise, affecting the property 
 
VESTED RIGHTS. G43 
 
 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 Hights* (a) Having thus surveyed the great field 
 
 * This phrase is one of most frequent oc- those titles had existed and been preserved to 
 
 currence. In a case in Maine, it was said, them in safety." Proprietors Ken Purchase 
 
 " The act is unconstitutional and cannot be v. Laboree, 2 Greenleaf, 295. 
 
 carried into effect, because such operation " It cannot be denied that the Legislature 
 
 would impair and destroy vested rights, and possesses the power to take away by statute 
 
 deprive the owners of real estate and of their what was given by statuie, except vested 
 
 titles thereto, by changing the principles and rights." The People v. Livingston, per Sav- 
 
 the nature of those facts by means of which age, C. J., 6 Wend. 531. 
 
 (a) Vested Rights. This discussion properly belongs under the head of " due proc- 
 ess of law." 
 
 Interference with vested rights by curative statutes or by any other legislative act 
 is 'prohibited by the constitutional guaranty of due process of law, unless, perhaps, 
 the interests of society may, in some extreme and exceptional cases, make such inter- 
 ference necessary. 
 
 In accordance with this principle, it has been decided that a right of entry once 
 vested cannot be divested by the Legislature e. <?., a right of entry for forfeiture, 
 which has vested in heirs, cannot be transferred to devisees by a change in the law 
 as to what may pass by will. Southard v. Central R. R. 2 Dutch. 13. And where a 
 legacy was given to an unincorporated society, and was therefore void, and the right 
 of the next of kin had thus become fixed, it was held that the Legislature could not 
 provide that the society, upon being incorporated, should take the legacy. State v. 
 Warren, 28 Md. 328. 
 
 The right of a married woman to dower vests on the death of her husband, and 
 cannot be divested by subsequent legislation. Lucas v. Sawyer, 17 Iowa, 517; Burke 
 v. Barren, 8 Clarke (la.) 132. 
 
 The husband's right to reduce wife's choses in action to possession, when vested, 
 cannot be taken away by statute ; and it makes no difference that the chose in action 
 is a contingent remainder in personal property, and the contingency does not happen 
 until after the passage of the statute. Dunn's Adm'rs v. Sargent, 101 Mass. 336. A 
 bountv cannot be diminished so as to affect those who have already earned it under 
 the terms of the act. People v. State Auditors, 9 Mich. 327. A statute prohibiting 
 payment of a State officer for services already performed is void, in Missouri, where 
 the Constitution forbids retrospective legislation. State v. Auditor, 33 Mo 287. 
 And where the holder of county scrip had presented the same for payment, there 
 being money in the treasury applicable to his claim it was held that subsequent 
 legislation could not take away his right. La Forge v. Magee, 6 Cal. 650. The right 
 of action against a town of settlement for supplies furnished to a pauper, cannot be 
 divested by a change of the settlement laws. Pembroke v. Epsom, 44 N. H. 113. 
 As to effect of repeal upon vested rights to payment, see Streubel v. Milwaukee &c. 
 R. R. 12 Wise. 67. The Legislature, it has been held in some cases, cannot take away 
 the property of a municipal corporation, but may direct how it shall be used for the 
 benefit of such corporation. State v. St. Louis County Court, 34 Mo. 546. But can- 
 
644 VESTED RIGHTS. 
 
 of constitutional law, and considered the operation and effect 
 of the most prominent clauses in the fundamental law of the 
 
 not, it seems, divert county or municipal taxes levied for one purpose to a different 
 one. Nashville v. Towns, 5 Sneed, 186. When the right to plead the statute of 
 limitations has become complete, it cannot be taken away. Dillon v. Dougherty, 2 
 Grant's Gas. (Penn.) 99 ; Girdner v. Stephens, 1 Heisk. (Tenn.) 280. And where it is 
 provided by statute that payments of usurious interest shall operate as payments on 
 account of principal, no change in the usury laws can revive so much of the debt as 
 has been thus extinguished. Hunter v. Hatch, 45 111. 178. 
 
 *B*ut there is no vested interest in a mere penalty imposed by the usury laws, as, 
 for instance, three-fold interest, Parmelee v. Lawrence, 44 111. 405 ; s. c. 48 111. 331 ; 
 nor in statutory exemptions, Bull v. Conroe, 13 Wise. 233 ; nor in statutory presump- 
 tions. Hence the grantee in a tax deed cannot complain of a repeal of legislative 
 presumptions in favor of the regularity of the proceeding. Hickox v. Tallman, 38 
 J3arb. 608. No vested right is impaired by giving a more effective remedy on past 
 judgments, Porter v. Mariner, 50 Mo. 364 ; nor, it seems, by taking away the lien of 
 -a judgment before rights have vested, Watson v. N. Y. Cent. E. R. 47 N. Y. 157. 
 But a right of action cannot be created between persons where there was none be- 
 fore. Rogers v. Leftwich, 2 Heisk. (Tenn.) 480. And so, it seems, a lien cannot be 
 created where there was no privity. Jacobs v. Knapp, 50 N. H. 71. Aliter, as to 
 future contracts, Blauvelt v. Woodworth, 31 N. Y. 285. Nor can the right to darn- 
 . ages for injury be limited retrospectively as to amount. Kay v. Penn. R. R. 65 Penn. 
 ,8t. 269. 
 
 Notwithstanding the doctrine as to the inviolability of vested rights, illustrated 
 in the foregoing cases, a certain amount of disturbance of existing arrangements is 
 rendered necessary by the changing wants of society, and this disturbance seems 
 sometimes to trench upon the vested rights which the Constitution protects. To 
 illustrate : Modes of alienation of property may be changed and restrictions placed 
 upon them, Williamson v. Williamson, 18 B. Mon. 329 ; Maclay v. Love, 25 Cat 367 ; 
 Warfield v. Ravesies, 38 Ala. 518, though the Constitution declares that all lands 
 are '' allodial," Barker v. Dayton, 28 Wise. 367 ; the power to devise may be changed 
 or restricted, Sturgis v. Ewing, 18 111. 176 ; and though the will is executed before 
 the passage of the amendatory law, the party not dying until after, Baptist &c. Union 
 v. Peck, 10 Mich. 341, 346 ; a right to waive the provisions of a will may be given 
 retrospectively, Hinton v. Hinton, Phill. (N. C.) L. 410. The Legislature may au- 
 thorize the surrender of a collateral power of appointment, Norris v. Thomson, 4 C. 
 E. Green, 307 ; and a fee tail may be changed to a fee simple, De Mill v. Lockwood, 
 3 Blatch. C. C. 56. The rights of parents over the children are subject to legislative 
 control, there is no right of property in them ; and a statute giving the mother cus- 
 tody in certain cases was held valid. Bennet v. Bennet, 2 Beasley, 1 14. The rules 
 as to costs may be changed, even in pending suits. Taylor v. Keeler, 30 Conn. 324. 
 There is no vested right in creditors to receive such dividend as the insolvent law 
 allows them at the time of the assignment, and the law may be changed so as to make 
 a secured creditor prove only for the excess. Mechanics' B'k Appeal, 31 Conn. 63. 
 There is no vested right in the remedies given by the United States to persons un- 
 justly taxed, to recover back the money from the tax collector. Collector v. Hub- 
 bard, 12 Wai. 1. Burden of proof may be changed, Chandler v. Northrup, 24 Barb. 
 129 ; Usher v. Pride, 15 Gratt. 190 ; and parties may be made witnesses, Rich v. 
 
VESTED RIGHTS. 645 
 
 Federal and State Governments, devised to operate as checks 
 on legislative power, and to act as guaranties of private prop- 
 erty, we are better prepared, before taking final leave of our 
 subject, to approach this branch of it in detail, and to form 
 some general conclusions as to the rules by which and the ex- 
 tent to which private rights are secured, under our form of 
 government, from governmental 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 repeat- 
 
 Flanders, 39 K H. 304 ; Little v. Gibson, II. 505 (the Constitution of New Hamp- 
 shire expressly prohibits retrospective legislation) ; and the right of appeal may be 
 taken away retrospectively, Matter of Palmer, 40 N. Y. 561 ; but cannot be given retro- 
 spectively, Lancaster v. Barr, 25 Wise. 560. 
 
 An act allowing defendant in ejectment, against whom judgment is rendered in 
 certain cases, to recover value of improvements, was held valid in Pacquitte v. Pick- 
 ness, 19 Wise. 219. But an act providing that improvements made on land by person 
 wrongfully in possession shall be paid for by the owner of the land, is invalid as di- 
 vesting vested rights. Billings v. Hall, 7 Cal. 1 ; Anderson v. Figk, 36 Cal. 625. 
 And also a statute authorizing a general money judgment for such improvements is 
 invalid, Child v. Shower, 18 Iowa, 261 ; but otherwise, if compensation be made out 
 of rents, &c. The Legislature may authorize recovery for improvements, Saunders 
 v. Wilson, 19 Tex. 194, the possession being in good faith; but a provision that be- 
 fore action to recover rents and profits, the value of improvements must be tendered, 
 is unconstitutional, Hearn v. Camp, 18 Tex. 545 ; but see Craig v. Flanagan, 21 Ark. 
 319, where a statute requiring as preliminary to a suit for redemption of lands sold 
 for taxes, an affidavit of tender and refusal of amount of tax and costs, with 100 per 
 cent, added, and also the full value of all subsequent improvements, was held valid. 
 See Lathrop v. Mills, 19 Cal. 513, where a statute having a similar object was held 
 void. 
 
 Congress may extend a patent previously expired, though the invention has come 
 into public use. Jordan v. Dobson, 2 Abb. C. C. 398. The Legislature may waive 
 an escheat, although escheats are pledged by the Constitution to the school fund. 
 Matter of Henry Stecknoth, 7 Nev. 223. And only an interested party could com- 
 plain. Ibid. Where a statute was passed to subrogate debtors who had been gar- 
 nished by the State, and had paid their debts to the State upon irregular process, to 
 the rights of the State, held that it could not affect a case where the claim had been 
 assigned and the State paid in full. Johnson v. Johnson, 26 Ind. 441. The repeal 
 by the Confederate Congress of the exemption of those who had furnished substi- 
 tutes, was sustained in Ex parte Tate, 39 Ala. 254 ; Burroughs v. Peyton, 16 Gratt. 
 470. The amnesty act was held void so far as it affected vested rights of individuals 
 to recover for property taken, in Terrill v. Rankin, 2 Bush (Ky.) 453. The am- 
 nesty clause in the Missouri Constitution was held valid, in Clark v. Dick, 1 Dillon 
 C. C. 8 And the amnesty act, although taking away right of person to recover dam- 
 ages for property seized, &c., was upheld in Hess v. Johnson, 3 W. Va. 645 ; and see 
 Drehman v. Stifle, 8 Wai. 595. 
 
646 VESTED RIGHTS. 
 
 edly referred to in the progress of this work,* and the difficulty 
 of laying d6wn any precise rule in regard to them pointed out.f 
 Its importance, too, has 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 practical object 
 sought to be obtained. Some governments may chiefly seek to 
 guard against the turbulence of the poorer classes ; some to re- 
 press 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 
 Government the heroes and leaders of a popular revolution ; 
 but it will hardly be denied that with us as a practical ques- 
 tion, the legislative power is the most formidable, nor that our 
 system chiefly aims to guard the citizen against the Legislature 
 to protect him against the power of a majority taking the 
 shape of unjust law. And it is to observed, also, that the un- 
 just 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, 
 
 * Ante, pp. 152 and 166. and even of society itself. The charters which 
 f- In England, as a matter of practice, we call by distinction great, are public instru- 
 vested rights are very sedulously protected ; ments of this nature ; I mean the charters of 
 as a matter of theory, their doctrine of Par- King John and King Henry the Third. The 
 liamentary supremacy leaves little room for things secured by these instruments may, 
 the judicial discussion of them. The most without any deceitful ambiguity, be very fitly 
 prominent case, perhaps, of Parliamentary called the chartered rights of men. 
 examination of the question occurs in the "These charters have made the very name 
 great debate on Fox's East India Bill. Mr. of a charter dear to the heart of every En- 
 Burke said : glishman. But, Sir, there may be, and there 
 " The rights of men, that is to say, the are, charters not only different in nature, but 
 natural rights of mankind, are indeed sacred formed 011 principles the very reverse of those 
 things ; and if any public measure is proved of the great charter. Of this kind is the char- 
 mischievously to affect them, the objection ter of the East India Company. Jdogna 
 ought to be fatal to that measure, even if no charta is a charter to restrain power, and to 
 charter at all could be set up against it. If destroy monopoly. The East India charter 
 these natural rights are further affirmed and is a charter to establish monopoly and -to 
 declared by express covenants ; if they are create power. Political power and corn- 
 clearly defined and secured against chicane, mercial monopoly are not the rights of men ; 
 against power and authority, by written in- and the rights of them derived from charters 
 struments and positive engagements, they are it is fallacious and sophistical to call ' the 
 in a still better condition; they partake not chartered rights of men.' 
 
 only of the sanctity of the object so secured, " These chartered rights (to speak of such 
 
 but of that solemn public faith itself which se- charters and of their effects in terms of the 
 
 cures an object of such importance. greatest possible moderation) do at least sus- 
 " Indeed, this formal recognition by the ' pend the natural rights of mankind at large, 
 
 sovereign power, of an original right in the and in their very frame and constitution are 
 
 subject, can never be subverted but by root- liable to fall into a direct violation of them." 
 
 ing up the radical principles of government, Eurke's Speech on Fox's East India Bill. 
 
TAXATION. G47 
 
 however, little likely to be injuriously affected by the action of 
 the body politic. Property is very differently situated. It is, 
 therefore, of the highest moment, if possible, to obtain a clear 
 idea as to the nature and extent of the protections which guard 
 our rights of property from attack under color of law to de- 
 termine, in, other words, what is a vested right. 
 
 The fundamental guards and guaranties of this class are to 
 be found first in the great constitutional restrictions, whether of 
 the Federal or State charters. 
 
 Private property is not to be taken without compensation. 
 
 No "law is to be passed impairing the obligation of con- 
 tracts. 
 
 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 se- 
 cure 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 do- 
 main, at the foot of which, so far as uncontrolled, every citizen 
 lies prostrate ; and the consequences of the earlier decisions 
 leaving this engine in the hands of unrestrained legislative au- 
 thority, seem to have awakened that conservative 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 taxing power to the often ill-regulated and despotic 
 will of our fluctuating and hasty legislation.* 
 
 * In Missouri, while conceding the uncon- As 'to the difficulty of drawing a line be- 
 
 trolled- power of taxation to the Legislature, tween a legitimate exercise of the taxing 
 
 subject only to the restriction contained in power, and the arbitrary seizure of the prop- 
 
 the Constitution of that State, that " all prop- erty of an individual under the mask of this 
 
 erty subject to taxation shall be taxed in pro- power, see Cheany v. Hooser, 9 Ben. Monroe, 
 
 portion to its value," and conceding also the 389. 
 
 right to delegate the power to subordinate See also, on this point, City of Covington 
 
 agencies, such as municipal corporations, they v. Southgate, 15 Ben. Monroe Law and Equity 
 
 have denied the power arbitrarily to tax the R. 491, where held that though the Legisla 
 
 property of one citizen and give it to another; ture has the power constitutionally to extend 
 
 and on this ground fcave held that the Legis- the limits of towns and cities, and include ad- 
 
 lature cannot authorize a municipal corpora- jacent ag ricultural lands without the consent 
 
 tion to tax for its own local purposes land ly- of the owner, yet the town or city cannot tax 
 
 ing beyond the corporation limits. Wells v. such property as town property, and subject 
 
 City of Weston, 22 Miss. p. 385. it to the city burdens, without the consent of 
 
648 CONSTITUTIONAL SAFEGUARDS. 
 
 "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 
 guaranties of our liberty and rights. The other provisions as 
 to trial by jury, titles of bills, searches and seizures, constitu- 
 tional majorities, and the like, which we have considered, relate 
 rather to modes and details than to principles. The above pro- 
 visions 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 private prop- 
 erty from the invasions of the State, protect contracts fr&m vio- 
 lation under guise of law, and finally, insure to every person 
 impleaded, attacked, or charged, the invaluable right of system- 
 atic 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 ad- 
 dition to these, our attention has also 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 mean- 
 ing of which we have elsewhere considered),* that the Legis- 
 lature can do no judicial act ; and it is almost identical with 
 the constitutional declaration which insures to all persons at- 
 tacked 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, investigation, and deter- 
 mination, 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 
 guaranty of the law of the land as they can be by a peremp- 
 
 the owner, iintil it shrill be laid off into lots property contrary to the principles of our con- 
 
 and used as town property. This decision stitutional law, under color of the power of 
 
 was made distinctly on the ground that the taxation, 
 act in question was an' invasion of private * Ante, pp. 134 and 138. 
 
LEGISLATIVE POWER. G49 
 
 tory 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 protection intended to be conferred 
 by our division of powers into executive, legislative, and ju- 
 dicial, is perhaps best expressed by the proposition just stated, 
 that the work of the Legislature is to be confined to the pas- 
 sage of laws, as distinguished from judicial and executive acts. 
 And this brings us to the precise question of vested rights ; for 
 the prohibition, so far as it exists, of retrospective acts, whether 
 direct* or in the shape of repealing statutes,f and the non-in- 
 terference, so far as it is enforced, with vested rights, in cases - 
 which do not come within the prohibition of the positive 
 clauses in our Constitutions, State or Federal, in regard to pri- 
 vate property and contracts, will be found to be summed up in 
 the idea that the Legislature can only mdke laws, or legislative 
 enactments, as contradistinguished from judicial sentences and 
 decrees. 
 
 If we renounce, as I think we must,J the idea that the 
 validity of a law can be determined by the judiciary on ab- 
 stract 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 guaranty 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 prop- 
 osition that vested rights are sacred. Let us, therefore, sum up 
 
 * Page 166. denied the right of the Legislature to deter- 
 J- Page 114. mine the .ights of parties to land, either by 
 J Ante, ch. v, p. 154, and p. 159. themselves or commissioners. " If they at- 
 | The 47th letter of the Federalist dis- tempted this, they clearly were assuming 
 cusses the subject of the division of power powers which belonged to another branch of 
 between legislative, executive, and judicial, the Government. If they converted them- 
 and shows that it has never been strictly selves into a court of law, their acts in that 
 carried out in England, or in any of the capacity were unauthorized by the Constitu- 
 States of the Union, any more than in the. tion, and of course not binding on the par- 
 Federal Government itself. ties." Jackson v. Frost, 5 Cowen, 346. 
 The Supreme Court of New York has 
 
650 PRIVATE AND PUBLIC ACTS. 
 
 the result of our researches, and state as accurately as we can 
 what direct interference with private rights and interests of 
 property can and cannot be accomplished by laws. 
 
 The difficulty of. this subject fully equals its importance : 
 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 Legislature power to make such changes as the 
 social or political condition requires, would reduce us to a state 
 of Chinese stagnation and immobility, and would be absurdly 
 inconsistent with the condition of our country and the character 
 of our people. These inherent difficulties have led to- frequent 
 contradiction ; and there is perhaps no subject of equal impor- 
 tance 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 al- 
 ready incidentally discussed. 
 
 At the outset we are to keep in mind the distinction be- 
 tween 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. 26. was held that a private act did not bind 
 
 f In 1774, the interest of George Croghan strangers. 2 Black. Com. 345 ; 4 Cruise Dig. 
 
 in certain lands in the State of New York 518. In BoswelPs Case, 25 and 26 Eliz. 
 
 was 'sold, under sheriff's sale, to Thomas cited in Barrington's Case, 8 Co. 138 a, it 
 
 Jones. In 1779 Thomas Jones was attainted, was resolved in the Court of Wards, that 
 
 In 1788, a private act was passed authorizing when an act of Parliament maketh any con- 
 
 the surveyor general to sell the lands so pur- veyance good against the king or other uer- 
 
 chased by Jones, and to pay the money upon son certain, it should not take away the right 
 
 the sheriffs sales which had been arrested by of any other." Although there be not any 
 
 the war. The Supreme Court decided that saving in the act, and although the Constitu- 
 
 nothing passed by the sheriff's sale to Jones, tion of New York then had no clause as to 
 
 on the ground that the provisions of the private property, it was said that if this act 
 
 statute of frauds had not been complied with, had declared the sale to be a bar to the claim 
 
 It further decided, that the act of 1788, and of Croghan, a very serious question would 
 
 sales under it, had no effect upon the rights have arisen on the validity of a statute taking 
 
 of the heirs of Croghan. They said, " It is a away private property without the consent of 
 
 private act, and liable to the rules of con- the owner, and without any public object or 
 
 struction applicable to such statutes. In En- any just compensation. Jackson v. Catlin, 2 
 
 gland a general saving clause is now always J. R. 248 ; affirmed in error, 8 J. R. 520. 
 added, at the close of every private act, of In Jackson v. Cory, 8 J. R. 388, it is said, 
 
 the rights and interests of all persons except " that to take away private property, even 
 
 those whose consent is obtained ; and before for public uses, without making just compen- 
 
 this practice of inserting the saving clause, it sation, is against the fundamental principles 
 
RETROSPECTIVE LAWS. 651 
 
 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 previously vested rights of prop- 
 erty.* 
 
 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 private contested rights, have been held void. 
 
 We have, also, already seen that in some cases the Legisla- 
 ture is competent, by the operation of a repealing act, to put an 
 end to pending proceedings, and to take away rights under ex- 
 isting laws, as that of a mortgage debtor to redeem, and to put 
 an end to pending suits where a good right of action or a valid 
 demand existed ; J but that in others, both in England and in 
 this country, a disposition has been shown to prevent this ar- 
 bitrary interference with the rights of parties, so far as existing 
 rights of action were concerned. | 
 
 We have also considered, ^[ under the head of retrospective 
 laws and the retroactive effect of laws,** a great class .of decis- 
 ions 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.ff 
 
 of free government. And this limitation is Legislature had. power. The People v. Liv- 
 
 to be found, as an express provision, in the ingston, 6 Wend. 527. See, in this case, the 
 
 Constitution of the United States." different phraseology of various repealing 
 
 * Hilour's Case, 7 Rep. 27 ; Kelly v. Har- acts commented on. " It will not be denied, 
 rison, 2 Johns. Cases, 29 ; Jackson v. Lutm, 3 I presume," says Savage, J., " that it is corn- 
 Johns. Cases, 109; Terrett v. Taylor, 9 petent for the "Legislature to repeal any act 
 Cranch, 50. upon which a suit has been brought ; and, if 
 
 f Ante, p. 145. the repeal is absolute, such suit is at an end." 
 
 \ Ante, p. 112. The People v. Livingston, 6 Wend. 530. 
 
 When the Revised Statutes of New York, | Ante, p. 114. 
 
 of 1828, went into operation, the fifth section *j[ Ante, p. 165 and p. 346. 
 
 of the act repealing previous statutory pro- ** Ante, pp. 639 et seq. 
 
 visions conflicting with them, used this Ian- f f At common law, improvements made 
 
 gunge : " The repeal of any statutory prpvis- and annexed to the freehold, by a tenant for 
 
 ion by this act shall not affect any act done, life or years, became a part of the estate of 
 
 or right accrued or established," <fec. ; and it inheritance and went to the reversioner. In 
 
 was held that, where a junior creditor's right 1843. an act was passed in Maine declaring 
 
 to redeem was acquired after the Revised that, in all actions then pending or thereafter 
 
 Statutes, that right must be presented and brought by reversioners against assignees or 
 
 prosecuted under the provisions of the Re- gr an lees of tenants for life, such grantees or 
 
 yised Statutes, and not according to the ante- assignees could obtain compensation for im- 
 
 cedent legislation, on the ground that it provements put by the tenants for life upon 
 
 related merely to the remedy, over which the the premises. In a case where the tenant for 
 
652 VESTED RIGHTS. 
 
 We have, also,* considered the effect of treaties on rights of 
 
 77 O 
 
 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 competent, 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 without 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 de- 
 fault 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 ex parte ma- 
 terna to those who were heirs ex parte paterna but aliens, and 
 as such incapable to take independently 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 1794, and an act subse- 
 quently passed giving it to one of such heirs, it was treated as 
 inoperative and void. J 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 acquired a good title to the land by release 
 from the commissioners of the land office under a general act, is 
 wholly inoperative and void.| 
 
 But even vested interests in real estate have been deemed 
 subject to legislative control, where the power has been consid- 
 ered by the court as used for the benefit of the parties inter- 
 ested. A retrospective statute, turning estates in joint tenancy 
 into tenancies in common, has been held, in Massachusetts, un- 
 
 life died in 1841, the Supreme Court heid tutioh in regard to the enjoyment of prop- 
 that the rights of the reversioners were clearly erty. Cons. art. iii, 1, 2, art. vi, 1, art. 
 vested ; that the improvements made by the IT, 1, art. i, 21 ; Austin y. Stevens, 24 
 person in possession for life became incor- Maine, 525. 
 porated into the reversioner's estate on the * Ante, p. 385. 
 
 decease of the tenant; and that the act could f Jackson ex dem. M'Cloughry v. Lyon, 9 
 
 not have any retrospective operation, as such Cowen, 664. 
 
 interpretation would bring it in direct con- \ Jackson v. Wright, 4 John. R. 79. 
 
 flict with the provisions of the State Consti- | Englishbee v. Helinuth, 3 Conn. 295. 
 
EXEMPTION FROM TAXATION". 653 
 
 objectionable. There seemed to the court no constitutional ob- 
 jection to the power of the Legislature to alter a tenure by 
 substituting another tenure more beneficial to all the tenants ; 
 an absolute interest in one half being considered better than 
 an uncertain interest in the whole.* - 
 
 And what the Legislature cannot do directly it cannot 
 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, consequently, the sale 
 conveyed no title. The act was relied on to bar the action ; 
 but the court said that it could only apply to sales made sub- 
 sequently to its passage; "it could not be construed to extend 
 to sales made more than six years previous, without a violation 
 of vested rights." f And we have seen the same point substan- 
 tially decided in Pennsylvania.^ So, too, we have seen the 
 same point determined by the courts of Mississippi. | 
 
 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 stat- 
 ute in question, no legal right to the money, it 'was held to 
 - have no operation as law.^f 
 
 Thus far it seems sufficiently clear, as a general rule, that 
 the Legislature cannot interfere with existing rights of prop- 
 erty ; but when we leave the subject of vested interests in real 
 
 * Holbrook v. Finney, 4 Mass. 566; Mil- \. Eakin v. Raub, 12 S. and Rawle, p. 339; 
 
 ler T. Miller, 16 Mass. 59 ; Burghardt v. ante, p. 406. 
 
 Turner, 12 Pick. 539. But the equity of this || Boyd v. Barrenger, 23 Miss. 270; ante, 
 
 conversion might depend entirely on the rela- p. 168. 
 tive ages and constitutions of the parties. ^[ Hampshire v. Franklin, 16 Mass. 86. 
 
 f Holyoke v. Haskins, 5 Pick. 20 ; Same 
 v. Same, 9 Pick. 259. 
 
654 
 
 ACTS CONFIRMING INVALID MARRIAGES. 
 
 estate or actual property in possession, we find the subject sur- 
 rounded with difficulty. 
 
 We have seen * that there is no such thins; as a vested right 
 
 O O 
 
 to exemption from militia duty ; and exemptions from taxation 
 depend on the question whether the act creating them is to be 
 treated as a contract ; f 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 confirming 
 
 O 
 
 invalid marriages,^ and declaring valid invalid ministerial pro- 
 ceedings, such as sheriffs' levies, | although they directly de- 
 stroyed rights previously existing, and even in litigation at the 
 time of the passage of the act. 
 
 The same principle has been applied in Massachusetts, and 
 the general power of the Legislature asserted over all matters of 
 general policy, without reference to the rights of individuals.^ 
 
 * Ante, p. 511. 
 
 f Ante, pp. 511 and 598. 
 
 j Ante, p. 639. In this respect, we have 
 English precedent on the same side, though 
 apparently not sustained by positive judicial 
 decision. The 26 Geo. II, c. xxxiii, provided 
 that the banns of matrimony should be pub- 
 lished in certain chapels, and that unless so 
 published, the marriage should be void, and 
 the parties solemnising 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 Legislature" 
 might cure the marriages already solemnized 
 in unauthorized chapels. Thereupon, an act 
 was passed, 21 Geo. Ill, c. xxxiii, declaring 
 all such marriages valid in law, and exempt- 
 ing the clergymen who had celebrated them 
 from the penalties of the 26 Geo. II, c. xxxiii. 
 
 I Ante, p. 641. 
 
 ^[ By a Massachusetts act of 1784, in ad- 
 herence to a policy pursued by several pro- 
 vincial statutes, the courts of sessions were 
 authorized " to fix and determine the bound- 
 aries of the jail yards to the several jails ap- 
 pertaining." Under this act, the Court of 
 Sessions for the county of Cumberland, 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 irresistible evidence of the true 
 construction of the power of the Sessions; 
 
 that they had no authority so to appropriate 
 private property to public uses without com- 
 pensation ; and that they could not extend 
 the limits of the jail yard beyond the land of 
 the county, with the highways adjoining or 
 leading to the prison. Baxter v. Taber, 4 
 Mass. 360. 
 
 Thereupon, in 1808, the Legislature passed 
 a law, and in 1809 one supplementary to it, 
 the two in substance declaring that the bound- 
 aries of jail yards theretofore fixed and deter- 
 mined by the Courts of Sessions, should be 
 valid and legal so far forth that no person 
 found anywhere within them should be con- 
 sidered as having committed an escape. And 
 this act was held a valid exercise of the legis- 
 lative power. The court said, the statute is 
 like the laws frequently made to confirm the 
 acts and doings of towns and other corpora- 
 tions which have been void for some infor- 
 mality, and in reviving 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 be- 
 fore they were passed. Waller v. Bacon, 8 
 Mass. 471 ; Patterson v. Philbrook, 9 Mass. 
 151 ; Locke v. Dane, 9 Mass. 360. The first 
 of these cases is a short, per-curiam opinion. 
 The second was decided on the authority of 
 the first, and the third on the authority of the 
 other two. The subject does not seem to have 
 received the attention that its importance 
 merited. 
 
 A statute passed in Massachusetts, nar- 
 rowing the jail liberties after a day named 
 in the act, has been held not to be unconsti- 
 tutional, as applied to a bond given before 
 the passage of the statute ; and the debtor 
 
ACTS CONFIRMING INVALID PROCEEDINGS. 655 
 
 If the power of the Legislature be conceded over ministerial 
 and administrative proceedings, the question still remains how 
 far they can act upon judicial proceedings which have already 
 taken place ; how far they can interfere with the regular opera- 
 tion 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 in- 
 terpretation 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 disposition, on the part of the judiciary, strictly to 
 enforce the constitutional prohibitions, and to restrain the 
 Legislatures from those invasions of private rights to which the 
 haste of our law-making operations frequently tends.* 
 
 having, after the day fixed by the statute, creditor, and of malting alterations in such 
 made use of the liberties in their previous laws, as a change of circumstances or the 
 extent, was held guilty of an escape. Reed public good may require ; and in doing this, 
 T. Fullum, 2 Pick. 158. one may be deprived of a right, which he has 
 In Maine, under the acts of that State of by existing- laws, to arrest the body or to 
 1835 and 1836, in actions on jail bonds, given attach or seize a certain description of prop- 
 as security against the escape or discharge of erty, without infringing any constitutional 
 debtors charged in execution, the plaintiff provision. When a person, by the existing 
 was entitled to recover as damages the laws, becomes entitled to recover a judgment, 
 amount of the execution costs, fees, and costs or to have certain real or personal estate ap- 
 of commitment, with twenty-five per cent, in- plied to pay his debt, he is apt to regard the 
 terest. And in 1838, while these acts were privilege which the law affords him, as a 
 in force, such a bond was taken. In 1839 the vested right, not considering that it has its 
 Legislature passed a law declaring that in foundation only in the remedy, which may 
 cases of this kind the plaintiff should only re- be changed, and the privilege thereby de- 
 cover his actual damages sustained. In a stroyed." Oriental Bank v. Freese, 18 Maine, 
 case in which the plaintiff relied on the prior 112 ; see also, Potter v. Sturdivant, 4 Green- 
 legislation, it was insisted that the act of leaf, 154. 
 
 1839 was unconstitutional and void; but the * I may be permitted, in this note, to no- 
 court held that it merely controlled the tice some of these cases. Some of them have 
 remedy, as such was valid, and the plaintiff been already more briefly referred to: 
 was nonsuited. Mr. J. Shipley said, "The Jonathan Jenckes, a citizen of New Hamp- 
 constitutional provision in regard to the shire, diet 1 seized of lands in Rhode Island, 
 right of private property, does not prohibit The estate was insolvent. Letters were taken 
 the Legislature from passing such laws as act out in New Hampshire, and a license granted 
 retrospectively not on the right of property by the judge of probate of that State, to sell 
 or obligation of the contract, but only upon the land of the testator for the payment of 
 the remedy which the laws afford to protect debts. Under that order, the land in Rhode 
 or enforce them. The Legislature must neces- Island was sold in 1791. In 1792 an act was 
 sarily possess the power to determine in passed by the Legislature of Rhode Island, 
 what manner the person or property of a ratifying and confirming the title acquired 
 debtor shall be subjected to the demands of a under the sale. In an action of ejectment 
 
C56 
 
 ACTS CONFIRMING INVALID PROCEEDINGS. 
 
 In some cases the Legislature acts directly on the subject- 
 matter. But the question of the extent of legislative power 
 
 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 vir- 
 tue of an order made by a New Hampshire 
 judge of probate, was absolutely void, and the 
 title of the defendant depended on the valid- 
 ity 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 no 
 vested rights except in favor of existing liens 
 of paramount obligation ; that the act was to 
 be considered not as a judicial act, but as an 
 exercise of legislation ; that no attempt was 
 made to impeach the sale for fraud ; and that 
 as to want of notice, it might well be pre- 
 sumed after the lapse of more than thirty 
 years. Wilkinson v. Leland, 2 Peters, 627 ; 
 see the case again, 10 Peters, 294. The court 
 disposes of the question of judicial power very 
 summarily, saying that the act purports to be 
 a legislative resolution, and not a decree. It 
 could hardly purport to be any thing but' 
 what it was. The question was whether it 
 operated like a decree. And in examining the 
 case, it is obvious that in arriving at its de- 
 cision, the court was largely influenced by the 
 peculiar character of the then Government of 
 Rhode Island, which had had no written Con- 
 stitution of Government, but was governed 
 under the Charter of Charles II, which did 
 not attempt to divide the powers of Govern- 
 ment, but gave to the General Assembly a 
 very sweeping power of making laws, under 
 which a long series of acts was proved, show- 
 ing 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 vested 
 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 v. 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 wholesome and reasonable or- 
 ders, laws, statutes, directions and instruc- 
 tions (so as the same be not repugnant or 
 contrary to the Constitution) us 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 ] 783, 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 ; nnd in 
 1792, a resolve was passed by the General 
 Court, or Legislature, of the State, authoriz- 
 ing the father to sell and convey the premises 
 for the best price that could be got, and in- 
 vest, the proceeds for the benefit of the chil- 
 dren. Under this resolvd the property was 
 sold, and the validity of the sale coming up 
 for adjudication, 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 au- 
 thority, the Legislature could not deprive 
 a citizen of his estate, or impair a valu- 
 able contract, it was held that the resolve in 
 question, being for the benefit of the minors, 
 was good. Rice v. Parkman, 16 Mass. 326. 
 The opinion in this case is delivered by a 
 very able judge, Parker, C. 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 decree or judgment affecting the 
 title to property. 1 ' That there was no con- 
 troversy 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 judg- 
 ment affecting the title to property. It is ad- 
 mitted 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 plead- 
 ing, evidence, hearing, and trial. If the 
 Legislature takes away property without any 
 of these proceedings, it does what the judi- 
 ciary 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 that "the 
 power of suspending the laws or the execu- 
 tion of the laws, ought never to be exercised 
 but by the Legislature, or by authority 
 
PROCEDURE, 
 
 657 
 
 often arises in regard to statutes which affect a right of prop- 
 perty indirectly, by acting on the proceedings in courts of jus- 
 
 derived from it, to be exercised in such par- 
 ticular cases only as the Legislature shall ex- 
 pressly pi'ovide 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 Holdeu, 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 de- 
 claring 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 es- 
 tate, it appeared that the claims were in fact 
 barred by the general statute of limitations ; 
 but the resolution was relied on. The court, 
 however, 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 in- 
 dividual case ; and the plaintiff was according- 
 ly nonsuited. Holden v. James, 1 1 Mass. 396. 
 A mortgage executed . to Eames and Ry- 
 der, loan commissioners for the county of 
 Kings, in New York, having become due in 
 1842, notice was published that the premises 
 would be sold. The term of office of one of 
 the commissioners (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 " summary administrative proceed- 
 ings " (ante, p. 302), that a sale by one of sev- 
 eral loan commissioners was wholly void, and 
 that no title could be thus acquired. Olmsted 
 v. Elder, 1 Seld. 144. On the 12th of May, 
 1844, an act was passed entitled an " Act to 
 confirm certain official acts of the commis- 
 sioners for loaning the moneys of the United 
 States of the county of Kings," which de- 
 clared that all the official acts of the commis- 
 sioners 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 per- 
 son 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 deeds and other papers had 
 been sealed and subscribed by both of said 
 commissioners. In an action brought by a party 
 42 
 
 claiming against the foreclosure and sale by 
 Eames, the invalidity of the proceeding being 
 established, it was insisted by the defendant, 
 that it was confirmed and rendered valid by 
 the act of 1845 ; but all retrospective effect 
 was denied to it. The court said, " The act 
 could not, and did not, act retrospectively, as 
 to take away any existing rights. We hold 
 our right of property under a higher power, 
 which cannot be overturned by the Legis- 
 lature." And the plaintiff had judgment. 
 Pell v. Ulman, per S. B. Strong, J. (not re- 
 ported), I take the decision from the printed 
 case, obligingly furnished me by J. Town- 
 send, Esq., counsel for the plaintiff. A ques- 
 tion 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 con- 
 ferring jurisdiction on the surrogate. 
 
 Dean v. Dean, 2 Mass. 150, is a case turn 
 ing on the 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 deniedjaor, indeed,, 
 discussed. 
 
 Where a statute of Massachusetts pro- 
 vided that bank commissioners should be 
 authorized to examine the State banks, and if 
 on examination they appeared to the commis- 
 sioners insolvent or in a hazardous condition, 
 then that on their report a justice of the Su- 
 preme Court should, without further investi- 
 gation, be required to issue an injunction re- 
 straining 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 v. Farmers and Mechanics' 
 Bank, 21 Pick. 543. 
 
 An act authorizing the guardian of an in* 
 fant 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 un- 
 constitutional as an exercise of judicial power. 
 Mason v. Wait, 4 Scammon, 134. 
 
 A provision that a municipal charter 
 shall not take effect until approved of by a 
 majority of the inhabitants of the district in- 
 corporated, is not the delegation of legislative 
 power ; it is the mere question of the accept- 
 ance of a charter. City of Paterson v. The 
 Society, (fee. 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. 285.) In a case arising under 
 this act, it was insisted that this provision 
 
658 EVIDENCE. 
 
 tice, 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 which ac- 
 tions may be brought. Secondly, by acts in regard to the evi- 
 dence or procedure, by altering the remedy or prohibiting a 
 defence. Of these in their order. 
 
 As to statutes of limitation, the rule appears to be that they 
 cannot be made so to retrospect as absolutely to cut off an ex- 
 isting right of action; but within these bounds, it is said that 
 the Legislature has full power over the subject. By the Re- 
 vised Statutes of Massachusetts, it was provided that all actions 
 mpon judgments should be commenced within six years next 
 .after the cause of action shall accrue. The Revised Statutes. 
 were passed on the 4th of November, 1885, and went into 
 operation on the 1st of May, 1836. After the 1st of May, 1 836, 
 suit was brought on a judgment recovered in 1817. The law 
 was held not to be unconstitutional, 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 1st of May, 1836, 
 the creditor had an opportunity in the interval to bring his 
 action on any such judgment recovered more than six years be- 
 fore 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 Legislature to determine." * 
 
 The same rule seems to hold good in regard to evidence ; 
 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 Massachu- 
 setts has said, " The Legislature may prescribe rules of evidence 
 by which parties may support their acknowledged rights. If 
 at any time evidence was required by law which would de- 
 feat a constitutional right, the same would not be binding on 
 the* courts." f 
 
 was unconstitutional, because it conferred ary power of the court. Hitter v. Hitter, 5 
 
 legislative power on the courts ; but the ob- Blackf. 81. 
 
 jcction was held void on the ground that it * Smith v. Morrison, 22 Pick. 430. 
 
 only authorized the exercise of the discretion- f Kendall v. Kingston, 5 Mass. 533. 
 
REMEDIES. 659 
 
 In regard to remedies generally, the right of the Legislature 
 has been repeatedly asserted, and in very sweeping 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 jurisdiction 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 prose- 
 cute to judgment, is a valid act, and may well apply to cases 
 pending at the time it passed." f A statutory provision allow- 
 ing an executor to maintain trespass quareclausum for an in jury 
 done to the land in the life time of the testator, is not uncon- 
 stitutional as applied to a trespass committed before the 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. I 
 
 So, again, a Massachusetts statute, of 1838, regulated pro- 
 ceedings by insolvents to obtain their discharge. 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 17th 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 in- 
 sisted that the insolvent was still entitled to his discharge 
 under the act of 1838 ; but the court held otherwise, saying, "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 statute passed 
 for that purpose. Suit was brought by Sampeyrac, in the Cir- 
 cuit Court of Arkansas, to establish his title to certain lands. 
 An answer was put in, on behalf of f he United States, deny- 
 ing the claim, and setting up that the plaintiff's grants were 
 forged. In 1827, however, a decree was made in favor of the 
 
 * Springfield v. Hampden Commissioners t Wilbur v. Gilmore, 21 Pick. 50. 
 
 of Highway, 6 Pick. 501 a mandamus to f Baugher v. Nelson, 9 Gill, 299 ; ante, p 
 
 commissioners of highways. 350. 
 
 f Holyoke v. Haskins, 9 Pick. 263. T[ Ex parfe Lane, 3 Met. 213. 
 
660 REMEDIES. 
 
 title. No appeal was taken, and the time for appealing expired. 
 In 1830, Congress passed an act authorizing the courts of Ar- 
 kansas 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 de- 
 prived 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 pro- 
 viding a remedy formed no objection to it ; and it was said 
 that, " almost every law providing a new remedy aifects 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 was 
 reversed. * 
 
 It has been said by the chancellor of the State of New 
 York, that where naked trustees might be compelled^ to transfer 
 the legal title to cesluis que trust under the decree of a court of 
 equity, there could be no doubt that* the Legislature had the 
 power to transfer the title.f 
 
 In regard to this matter of remedies, it has been in several 
 cases held, that the right of the Legislature to interfere de- 
 pended on the point whether the end sought to be attained by 
 the Legislature was a good one. So, an act cutting off the de- 
 fence of usury was held valid, because usury was considered 
 as an immoral defence.} So, the Supreme Court of Massachu- 
 setts has said there could be no vested right to do wrong. | So, 
 the act confirming invalid marriages was held to be good, be- 
 cause the object aimed at by the Legislature was commend- 
 able, ^f But this is a formidable if not a fallacious line of 
 
 * United States v. Sampcyrac, 7 Peters, 7 Paige, 82 ; Morgan et al. v. Lesler, "Wright's 
 
 222 ; B. c. Hempstead's Arkansas C. C. R. 119. Ohio R. 144. 
 
 \Ve have seen (ante, p. 168) that, in Pennsyl- J Baugher v. Nelson, 9 Gill, 299 ; ante, p. 
 
 vania, the power of the Legislature to pass a 350. 
 
 statute giving a writ of error in a case where || Foster v. The Essex Bank, 16 Mass. 245 ; 
 
 none lay before the passage of the act, has ante, p. 410. 
 been denied. ^[ Gosheu v. Stonington, 4 Conn. 226 ; ante, 
 
 \ Dutch Church in Garden Street v. Mott, p. 640. 
 
VESTED EIGHTS. 661 
 
 reasoning. It assumes that a power exists in the judiciary to 
 decide on the morality, wisdom, or justice of acts of legislation, 
 and to treat them accordingly. This authority I have already 
 had occasion 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 denning 
 vested rights ; that no general rule can be laid down which will 
 describe with precision the extent to which legislative interfer- 
 ence 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 contracts, and the right 
 to process of law, is settled with considerable accuracy ; but 
 beyond this the subject is infested with plain and painful con- 
 tradiction. On the one hand, we have the propositions that 
 the Legislature 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 investigation 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 previous decisions, and of prin- 
 ciple, 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 Massachusetts, 
 in a case already cited, where the court said, " A creditor has 
 no vested right in the mere remedy, unless he may have exer- 
 cised 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, in Pennsylvania, under an act 
 
 * Bigelow v. Pritchard, 21 Pick. 174. 
 
662 WRITTEN LAW. 
 
 for the sale of vacant lands, passed April, 1792, 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 Con- 
 stitution 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 party of any remedy 
 for enforcing a contract which existed when the contract was 
 made" f This provision is evidently drawn to obviate the 
 difficulties and answer the objections growing out of the subtle 
 distinction taken between the obligation and the remedy. It 
 very clearly declares that the substantial remedial legislation 
 existing at the time a contract is made, enters into and forms 
 part of the agreement ; it is the assertion, by a populous and 
 flourishing community, that vested rights may be safely pro- 
 tected 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 can- 
 not fail to impress the mind. " Absolute liberty, just and true 
 liberty, equal and impartial liberty, is the thing we stand in 
 
 * Bedford v. Shilling, 4 S. & R. 401. f Cons, of New Jersey, art. iv, sec. vii, 3. 
 
PHILLIMORE ON JURISPRUDENCE. 663 
 
 need of ! "* This is the fervid language of the great apostle 
 of toleration ; 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 systematic 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 brill- 
 iant our future, it is in vain to suppose that American freedom 
 can be maintained except just so long as our people shall ex- 
 hibit the capacity justly and intelligently to administer, and 
 the disposition steadily and loyally to obey, the government of 
 WEITTEN LAW. 
 
 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. C., 
 M. P., London, 1856 ; 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 enlight- 
 ened appreciation of the scientific 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," London, 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 recognized or disregarded by the Anglo- 
 American tribunals. Mr. Phillimore'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. 
 
 * Locke, Pref.. to Letter oil Toleration. 
 
GENERAL INDEX 
 
INDEX. 
 
 When figures alone are given, the reference is to the author's text ; when an " (n) " is 
 added to the number of the page, the reference is to the editor's notes. 
 
 ABATING nuisances, 436 (n). (See " Police Powers.") 
 
 " ABSENT person," meaning of, 371 (n). 
 
 " ACTION," meaning of, 371 (n). 
 
 ACTIONS, for violation of statutes, 74, 75 (see " Remedies ") ; on Statutes, 
 forms of, 89-91 ; pending, effect of repeal on, 113, 114, 115, 109 (n) ; 
 ditto, effect of a saving clause, on, 111 ; altering form of does not impair 
 obligation of contracts, 614 (n). 
 
 ACTIONS, LIMITATIONS of, 83-86. (See " Limitations of Actions.") 
 
 ACTS of public officers, relief against, 81, 82. 
 
 ADMINISTERING JUSTICE, titles of laws relating to, 525 (n) ; laws regu- 
 lating mode of do not impair obligation of contracts, 614 (n). 
 
 ADMINISTRATIVE proceedings, summary, statutes authorizing, to be strictly 
 construed, 302-306*. 
 
 AFFIRMATIVE LANGUAGE in statutes, effect of in repealing prior statutes, 
 98 (n), 99 (n). (See " Repeal ") ; when directory, 316 (n). 
 
 AFFIRMATIVE STATUTES, 29, 30 ; their effect on the common law, 30. 
 
 AGREEMENTS, to procure or prevent legislation, effect of, 53, 54 ; in vio- 
 lation of statutes, 69-74. (See " Contracts.") 
 
 AGRICULTURAL land, leases of, 541. 
 
 ALTERING the remedy, effect of on obligation of contracts, 617 (n). 
 
 AMBIGUOUS words, 225 (n). 
 
 AMEND, or repeal charters, power of Legislature when the right to is reserved, 
 620 (n) 622 (n). 
 
 AMENDATORY STATUTES, relate back to time of original act, 68 ; effect 
 of in repealing prior.statutes, 110 (n), 111 (n); not retrospective, 162 (n) ; 
 construction of words in, 222 (n) ; titles of, 526 (n). 
 
 AMENDMENT of a statute, how far it acts as a repeal, 95 (n), 96 (n). 
 
 AMENDMENTS XlVxn AND XVin of U. S. Const., construed and discussed, 
 563 (n)-566 (n). 
 
 AMENDMENTS OF LAWS, 530-533, 531 (n)-532 (n) ; constitutional pro- 
 visions relating to, 531 (n) ; meaning and object of these provisions, 532, 
 533 ; construction of in different States, 532 (n). 
 
 ANCIENT STATUTES, class of, 22 ; proof of, 95. 
 
668 INDEX. 
 
 AND and OR, how used, 371 (n). 
 
 ANIMALS, stray, 435 (n). (See " Police Powers.") 
 
 APPLICATION to Legislature for the passage of a statute, 52, 53. - 
 
 APPRAISEMENT laws, effect on obligation of contracts, 616 (n). 
 
 APPROPRIATION bills, 539 (n). 
 
 APPROVAL by the governor, 56 (n). 
 
 " ARBITRATION," meaning of, 371 (n). 
 
 ARREST for debt, abolition of, does not impair obligation of contracts, 613 (n). 
 
 ASSESSMENTS, local, 426-434, 426 (n)-429 (n). (See " Taxation.") 
 
 ATTAINDER, bills of, in England, 121 ; under U. S. Constitution, 557. 
 
 AUSTIN, John, analysis of his "Province of Jurisprudence," 187-189. 
 
 AUTHORITY AND JURISDICTION of statutes, 56-69 ; in general within 
 
 their own territory, 5 1 ?, 58; by international comity, 50; among the 
 
 several States of the U. S. 60-65. 
 AUTHORITY to public officers, construction of statutes giving, 329-331. 
 
 BAIL, excessive, under U. S. Constitution, 580. 
 
 BANKING LAWS to be submitted to the people, 539 (n). 
 
 " BANKING PRINCIPLES," meaning of, 372. 
 
 BANKING SYSTEM of N. Y., 379-383. 
 
 BANKRUPT laws, of the States, when impair obligation of contracts, 606-622, 
 606 (n), 607 (n). 
 
 BENTHAM, his definition of law, 2. 
 
 BIBLE in public schools, 14 (n), 513. 
 
 " BILLIARDS," meaning of, 373. 
 
 BILLS, time in which the governor may sign, 356 (n) ; to be read three 
 times, 539 (n) ; engrossed, on file, evidence of statutes, 55, 55 (n). 
 
 BILLS OF ATTAINDER, in England, 121 ; under U. S. Constitution, 557. 
 
 BLACKSTONE, his definition of law, 2. 
 
 BLASPHEMY, 14 (n). 
 
 BODY or purview of a statute, described, 45. 
 
 BOUNTIES to volunteers, 432 (n). (See " Taxation.") 
 
 " BRIDGE," meaning of, 371 (n). 
 
 BRIDGES, a public use, 446 (n). (See " Private Property, etc.") ; toll, indi- 
 rect injuries to, not a taking of private property, 455 (n), 460. (See Ibid.} 
 
 " BURGLARY," meaning of, 373. 
 
 BU RIAL of the dead, 436 (n). (See " Police Powers.") 
 
 BURYING grounds, a public use, 447 (n). (See " Private Property, etc.") 
 
 BY-LAWS of cities, &c. (See " Municipal Ordinances.") 
 
 "CARRYING on business," meaning of/ 371 (n). 
 
 CASES in which a jury is not necessary. 488 (n), et seq. ; in equity, jury in, 
 
 488 (n). 
 
 " CASTING vote," meaning of, 371 (n). 
 " CATTLE," meaning of, 373. 
 CAUSE AND EFFECT, connection of, 355, 356. 
 
INDEX. 669 
 
 CAUSE, proximate, 355, 356. 
 
 CEMETERIES, a public use, 447 (n). (See " Private Property, etc.") 
 
 ' CETEBtS PARIBUS," meaning of, 371 (n). 
 
 CHARITIES, private statutes in relation to, 140 (n), 141 (n). 
 
 CHARTERS, of municipal corporations may be submitted to popular vote, 
 135 (n) ; of private corporations to be strictly construed, 291-296, 291 (n), 
 292 (n) ; of private corporations are contracts, 592-599, 585 (n)-588 (n) ; 
 power of Legislature over, when right to amend or repeal has been re- 
 served, 620 (n)-622 (n) ; subject to amendment or repeal, 362 ; titles and 
 subjects of, 521 (n). 
 
 CHRISTIANITY, how far part of the common law, 14. 
 
 CICERO, his definition of law, 2. 
 
 CITIES, ordinances of. (See " Municipal Ordinances.") 
 
 CITIZENSHIP under U. S. Constitution, 562-568, 562 (n)-566 (n) ; citizens of 
 the States, privileges and immunities of, 563-568 ; no rights protected except 
 those which belong to citizenship, 567, 568 ; corporations not within the 
 guaranty, 562 (n) ; negroes and mulattos are, 562 (n).; construction of the 
 constitutional provision by the U. S. Supreme Court, 562 (n) ; State laws 
 taxing passengers, 562 (n) ; and non-resident traders, 562 (n) ; and freight, 
 563 (n); XlVth and XVth amendments construed, 563 (n)-566 (n); ex- 
 tent of the protection by these amendments, 564 (n), 565 (n); rights of cit- 
 izens under XlVth amendment, 564 (n), 565 (n) ; legislative power of Con- 
 gress under the XV th amendment, 565 (n), 566 (n) ; forfeiture of citizenship, 
 laws providing for, not ex post facto, 559 (n). 
 
 CIVIL CASES, jury in, 486 (n), 487 (n). 
 
 CIVIL REMEDIES, laws affecting, not ex post facto, 561 (n). 
 
 CLASSES of statutes, 21-34; according to the civil law writers, 33, 34. 
 
 CLAUSES in statutes, 45-49 ; interpretation clauses. 45, 46 ; saving clauses, 
 47, 47 (n) ; repealing clause, 48 ; other clauses, 49. 
 
 COLONIAL laws of Mass., 34-37. 
 
 COMITY of nations, its effect on statutes, 59. 
 
 COMMENCEMENT of statutes, 41, 42; form in Great Britain, 42; in U. S. 
 Congress, 42 ; in N. Y., 42. 
 
 COMMON LAW, a source of the municipal law, 4-14; adopted by the 
 State constitutions, 5-12; when presumed to be in force in a foreign State, 
 12, 13 (n) ; none of the U. S., 13 ; contracts in violation of, 73, 74 ; 
 remedies, election between them and statutory remedies, 75-77 ; statutes 
 in derogation of to be strictly construed, 267-275, 267 (n) ; ancient rule, 
 267-272, 267 (n), 268 (n) ; rule modified in modern times, 273-275 ; how 
 applied to married woman's property acts, 268 (n), 269 (n) ; other ex- 
 amples, 269 (n) ; unreasonableness of the rule, 270 (n), 271 (n). 
 COMMON RIGHT, statutes in derogation of, to be strictly construed, 296- 
 
 298 ; examples, 296 (n). 
 
 COMPENSATION for taking private property for public use, 463-471, 463 (n)- 
 467 (n) ; when to be made, 464-469, 464 (n), 465 (n) ; case of preliminary 
 
G70 INDEX. 
 
 steps, surveys, &c., 467-469, 465 (n) ; whether must be made prior to the 
 taking, 468, 469 ; how determined. 469471, 464 (n) ; whether by a jury, 
 470, 471, 464 (n) ; must be in money, 471 ; is necessary, 463 (n) ; what 
 is a just compensation, 463 (n), 464 (n) ; no title vests until payment or 
 tender, 465 (n) ; amount of, 466 (n), 467 (n) ; for the land actually taken, 
 466 (n) ; for the injuries to the portion not taken, 466 (n) ; set-off of ben- 
 efits, 467 (n). 
 
 COMPOSITION of the jury, 493 (n). 
 
 COMPUTATION of time, 356-358 ; the time in which the governor may 
 sign bills, 356 (n) ; what days excluded and included, 356,357 ; " month," 
 meaning of, 358 ; " year," meaning of, 358. 
 
 CONDITION, statutes taking effect upon a, 137 (n). 
 
 CONDITIONS, unreasonable, when void, 478 (n). 
 
 CONFISCATION, when laws providing for, are ex post facto, 557 (n)-559 (n). 
 
 CONFRONTING of witnesses, 548 (n). 
 
 CONGRESS of the U. S., nature,of its legislative power, 549, 550. 
 
 "CONNECTION," meaning of, 371 (n). 
 
 CONSTITUTION, to be interpreted like statutes, 19; statutes conflicting 
 with to be strictly construed, 2p6, 267 ; of a State, change in, impairing 
 obligation of contracts, 637, 638 ; construction of. (See " Constitutional 
 Law ") ; of U. S., limitations of on legislative power. (See " U. S. Consti- 
 tution.") 
 
 CONSTITUTIONAL LAW, 404-418 ; divisions of the constitutions, 404, 
 405 ; peculiar to the U. S., 405 ; power of the judiciary to construe con- 
 stitutions, 406, 407 ; bills of right in constitutions, 407, 408 ; general rule 
 of construction, 409, 410 ; when the violation is clear, 411, 412; contem- 
 poraneous and legislative construction, 412; the whole constitution to be 
 considered, 413 ; statutes void in part, 413, 414, 413 (n) ; strict and liberal 
 construction, 416-418; implied restrictions in constitutions, 418 (n) ; 
 schedules or ordinances, 418 (n) ; when constitution executes itself, 418 (n) ; 
 a source of the municipal law, 15-19. 
 
 CONSTITUTIONAL MAJORITIES, 533, 534, 533 (n) ; provisions of certain 
 constitutions, 533, 534 ; majority of two-thirds, 533 (n), 534 ; majority of 
 electors, 533 (n) ; how ascertained, 54, 55. 
 
 CONSTITUTIONAL PROVISIONS, waiver of, 88, 88 (n) ; defining the de- 
 partments of government, 132, 133; miscellaneous, 538-541, 538 (n)-540 
 (n) ; when directory and when mandatory, 317 (n). 
 
 CONSTRUCTION OF CONSTITUTIONS. (See Constitutional Law.") 
 
 COiNSTRUCTION OF GRANTS and patents of land. (See " Grants of Land.") 
 
 CONSTRUCTION OF MUNICIPAL ordinances. (See "Municipal Ordinances.") 
 
 CONSTRUCTION OF STATUTES, power held by Roman Emperor, 174 ; 
 origin and progress of power held by courts, 174-179 ; power belongs to 
 the courts, 122, 179, 180 ; limits on the power of, 183, 184 ; general rules 
 of, 190-249; object of construction to ascertain the intention of the 
 Legislature, 193-197 ; only possible when the language is ambiguous, 
 
INDEX. 671 
 
 195 ; means to be employed, 198 ; means must be found in the statute 
 itself, 199-201 ; the whole statute to be considered, 199-201, 199 (n), 201 
 (n), 226 (n) ; and the whole of a clause or sentence, 201 (n) ; 
 effect must be given to every clause, 200 (n) 57 intent, how far ascertained 
 from extrinsic facts, 202-205 ; statutes in pari materia, 209-212 ; to be 
 taken together, 209-212, 209 (n) ; what are, 210 ; constitutional provisions 
 in pari materia, 209 (n) ; statutes on same subject passed at same session, 
 209 (n) ; 'but the plain meaning of any statute cannot be overcome by this 
 rule, 2 r 10 (n) ; effect of a change in the language from a prior statute, 212 
 (n) ; contemporaneous construction, effect of, 212, 213, 227 (n) ; legisla- 
 tive construction, 214, 227 (n) ; judical construction to be adhered to, 214, 
 215; usage, effect of, 215-218; usage of a particular place, 216 (n) ; 
 construction of the particular language of a statute, 219-230, 223 (n)-230 
 (n) ; words to be taken in their ordinary sense, 220, 223 (n), 224 (n) ; 
 rule of noscitur a sociis, 220 (n) ; technical words, 221-223, 224 (n), 225 
 (n) ; words in an amendatory statute, 222 (n) ; ambiguous words, 225 
 (n) ; grammar and punctuation, 225 (n) ; general scope of the statute, 
 
 225 (n), 226 (n) ; limiting clause, 226 (n) ; subsequent clause, 226 (n) ; 
 consequences of a particular construction, 226 (n) ; rule ut res magis valeat, 
 
 226 (n) ; presumptions, 228 (n) ; implication, 228 (n) ; of a revision, 
 229 (n), 365, 366, 365 (n) ; of reference statutes, 229 (n) ; of similar 
 statutes, 230 (n) ; Vattel's rules, 230-243; Domat's rules, 243-246; 
 Lieber's rules, 246-248 ; Phillimore's rules, 248, 249 ; strict and liberal 
 construction, 250-328. (See " Strict Construction," and " Liberal Con- 
 struction ") ; construction contrary to the language of the statute, examples 
 of, 251-266; author's general rules, 325, 326; statutes giving authority 
 to public officers, 329-331; of "quorum," 331, 331 (n) ; of revenue 
 laws, 332 ; of penal laws, 333-336 ; of laws affecting the State, 337, 
 337 (n) ; of general words, 360, 361, 360 (n), 361 (n) ; of State statutes 
 by U. S. courts, 366-370, 367 (n) ; of particular words, 371-379. 
 
 CONSTRUCTION OF TREATIES. (See "Treaties."-) 
 
 CONSTRUCTION OF U. S. CONSTITUTION, 551-556 ; political rules, 
 551 ; unconstitutionality must be clear, 552 ; contemporaneous interpreta- 
 tion, 552; extrinsic facts not admitted, 552, 553; words to be taken in 
 their natural sense, 553 ; transposition of clauses, 553, 554 ; acts void in 
 part and valid in part, 554; effect of unconstitutionality, 554; power of 
 the U. S. judiciary, 555. 
 
 CONTEMPORANEOUS construction, 212, 213, 227 (n). 
 
 CONTRACTS, to procure or prevent legislation, 53, 54 ; in violation of 
 statutes, 69-74, 337-341 ; when void, 69, 70, 338-341 ; of penal statutes, 
 71, 339 ; valid by the law of the place where made, 71, 72 ; in violation of 
 revenue statutes, 72, 340 ; marriage, 73 ; distinction between contracts 
 opposed to the common law, and those opposed to statutes, 73, 74 ; in 
 violation of Sunday law, 341 ; What contracts are within the provision of 
 the U. S. Constitution, in relation to impairing the obligation of contracts, 
 
G72 INDEX. 
 
 all private, executory and executed, 581-590 ; legislative grants are, 590-- 
 592 ; charters of private corporations are, 592-599, 585 (n), 586 (n) ; and 
 charters exempting from taxation, 597-599, 586 (n)-588 (n) ; such charters 
 to be strictly construed, 595 ; public offices are not, 600, 585 (n) ; 
 municipal ordinances are not, 600; marriage is not, 601-603, 581 (n), 582 
 (n) ; charters-of municipal corporations are not, 582 (n),583 (n); contracts 
 made by municipal corporations, how far protected, 583 (n), 584 (n) ; 
 permission to sue the State is not, 534 (n) ; licenses are not, 584 (n), 585 
 (n) ; stipulations in charters restraining the exercise of the right of eminent 
 domain, 588 (n) ; ditto of police powers, 588 (n) ; miscellaneous cases, 
 588 (n) ; what is included within a contract, 589 (n) ; obligation of, defined, 
 
 . 603 (n), 604 (n) ; what State laws impair, 603-642, 605 (n)-622 (n). 
 (See <k Obligation of Contracts.") 
 
 COPYRIGHT in statutes, 116-118. 
 
 " CORPORATE name," meaning of, 373. 
 
 CORPORATION, contract in violation of charter of, 73 ; private, charter of 
 to be strictly construed, 291-296, 291 (n), 292 (n) ; stututes in relation to, 
 subject to amendment or repeal, 362 ; delegation to, of power to take pri- 
 vate property, 452-454, 452 (n) ; titles and subjects of charters and of stat- 
 utes relating to, 521 (n)-525 (n) ; but one to be created at a time, 538 (n) ; 
 no special act of, 539 (n) ; do not possess the privileges and immunities 
 of citizens, 562 (n) ; private, charters of and statutes relating to, when con- 
 tracts, 592-599, 585 (n)-588 (n) ; municipal, charters of, not contracts 
 582 (n)-584 (n) ; private, when laws affecting them impair the obligation 
 of contracts, 607 (n)-609 (n) ; private, power of Legislature over their 
 charters, when right to amend or repeal has been reserved, 620 (n)-6'22 (n) ; 
 municipal, ordinances of, See " Municipal Ordinances." 
 
 COSTS, statutes giving, how construed, 307. 
 
 COUNTY, jury of, 493 (n) ; taxation, 504 (n). (See " Taxation.") 
 
 COURTS, power to construe statutes, 18, 174-179 ; power to pronounce 
 statutes void, independently of constitutional restrictions, 123-132; power 
 to decide upon the constitutionality of statutes, 180-182, 406, 407 ; their 
 power in interpreting limited, 183, 184; their practice in condemning cer- 
 tain statutes, 185, 186 ; their power to disregard the language of statutes 
 examined, 251-266 ; inferior, jury in, 490 (n), 491 (n) ; changing the or- 
 ganization of, does not impair the obligation of contracts, 614 (n). 
 
 COURTS MARTIAL ; militia, trial, fine, and imprisonment by in peace, does 
 not violate the guaranty of due process of law, 476 (n). 
 
 CRIMES, planned and executed in different States, effect of, 64. 
 
 CRIMINAL cases, jury in, 487 (n), 488 (n). 
 
 CRUEL punishments, under U. S. Constitution, 580. 
 
 CUMULATIVE remedies and penalties, 341-345 when statutory remedy is 
 exclusive or is cumulative, 341-345 ; when exclusive, 341 (n). 
 
 CURATIVE statutes, power of Legislature to pass, 141 (n)-144 (n) ; effect 
 on existing judgments, ib. ; validating defective proceedings of municipal 
 
INDEX. 673 
 
 corporations, ib. ; and sales of infants' estates, ib. ; and deeds of married 
 women, ib. ; and tax proceedings, ib. ; cannot impair vested rights, ib. 
 
 " CURTILAGE," meaning of, 374. 
 
 CUSTOM, a source of the municipal law, 34. 
 
 DAYS, what included and what excluded, 356, 357. 
 
 DEAD, burial of, 436 (n). (See " Police Powers.") 
 
 DEBT, imprisonment for, 540 (n). 
 
 DECLARATORY statutes, 28, 29; effect of iff construction, 227 (n). 
 
 DEFINITION of municipal law, 2. 
 
 DELEGATION of power to take private property for public use, 452-454, 
 452 (n), 453 (n). (See " Private Property, etc.") 
 
 " DENY," meaning of, 374. 
 
 DEPOTS and shops, etc., for railroads, a public use, 447 (n). (See " Private 
 Property, etc.") 
 
 " DESCENT," meaning of, 374. 
 
 DESCRIPTION, false, effect of, 354,354 (n), 355 (n). 
 
 DIRECTORY AND MANDATORY statutes, 316-325; meaning of "direc- 
 tory," 316-318 ; when statutes and provisions are directory, 319-325 ; 
 effect of affirmative or negative words, 319 ; affirmative words without neg- 
 ative, when directory, 316 (n) ; power given to public officers concerning 
 rights of third persons, mandatory, 316 (n),317 (n) ; when constitutional 
 provisions are directory or mandatory, 317 (n) ; test suggested, 317 (n). 
 
 DIVISION of governmental powers in England and the U.S., 119-122; 
 ditto, made by the American Constitutions, 132, 133. 
 
 DIVORCES, 516, 517 ; constitutional provisions relating to, ib. 
 
 DOG LAWS," 436 (n). (See Police Powers. ") . 
 
 DOMAT, his rules of construction, 243-246. 
 
 DOUBLE taxation, 508 (n), 509 (n). (See " Taxation.") 
 
 DOWER, when statutes affecting, may be retrospective, 162 (n). 
 
 DRAINAGE, means of, a public use, 446 (n), 447 (n). (See " Private Prop- 
 erty, etc.") 
 
 DUE PROCESS OF LAW, 138-152, 138 (n)-144 (n) ; 474-481'; -no power 
 in Legislature to pass judicial acts, general rule, 139-146, 138 (n), 139 (n). 
 (See " Legislature, Power of, etc.") ; retroactive effect of laws on vested 
 rights, 346 (n). (See "Retrospective Effect of Laws "); Constitutional 
 provisions guaranteeing, 474 (n), 475 (n) ; " law of the land," meaning of, 
 475-481, and of "due process of law," ii. ; what they secure, 475 (n), 
 476 (n), and examples, 476 (n), 477 (n) ; courts martial in the militia, trial 
 and conviction by in peace, valid, 476 (n) ; and service by publication in civil 
 causes, 476 (n), 477 (n) ; and summary proceedings in tax and revenue col- 
 lection, 477 (n) ; unreasonable conditions cannot be imposed by the Legisla- 
 ture, 478 (n) ; changing rules of evidence, when valid, 478 (n) ; limitations 
 of actions, when valid, 478 (n) ; provision of U. S. Constitution, 574-577. 
 
 " DWELLING-HOUSE," 371 (n). 
 43 
 
674 INDEX. 
 
 EASEMENTS, imposing additional, when a taking of private property for 
 public use, 458 (n), 459 (n) ; viz., changing highways into turnpikes or plank- 
 roads, 458 (n), steam railroads in highways, 458 (n), horse railroads in 
 highways, 459 (n). 
 
 EDUCATIONAL institutions, private, local taxation for, 431 (n). 
 
 EFFECT of repealing statutes, see " Repeal, effect of." 
 
 EJUSDEM GENERIS, rule in respect to use of general words, 360 (n). 
 
 ELECTION between remedies for violation of statutes, 75-77. 
 
 ELECTORS, majority of, meaning of, 533 (n). 
 
 EMINENT DOMAIN, see " Private Property, etc." ; statutes restraining the 
 exercise of the right of, when contracts, 588 (n), effect of statutes exercising 
 the right of, on the obligation of contracts, 638, 639, 607 (n), 608 (n), 609 (n). 
 (See " Obligation of Contracts.") 
 
 " ENCLOSURE," meaning of, 371 (n). 
 
 ENGROSSED bills on file, how far evidence of statutes, 55, 55 (n). 
 
 "EQUAL and uniform" taxation, 504-510, 503 (n)-506 (n). (See " Taxa- 
 tion.") 
 
 EQUITABLE CONSTRUCTION, contrary to the language of the statute, dis- 
 cussed and condemned, 251-266; general rules , and examples, 308-316, 
 308 (n), 311 (n), 312 (n). (See " Liberal Construction.") 
 
 EQUITY, no relief in, against a positive statute, 83. 
 
 :EQUITY CASES, jury in, 488 (n). 
 
 EQUITY OF A STATUTE, 311-315. 
 
 " ERECTION," meaning of, 371 (n). 
 
 EVIDENCE, statutes changing rules of, when valid, 478 (n) ; ditto, do not 
 impair obligation of contracts. 614 (n). 
 
 EXCEPTIONS, in statutes, nature and effect of, 50 ; how pleaded, 93 ; 
 implied exceptions to general language, 360 (n). 
 
 EXCESSIVE bail and cruel punishments, under U. S. Constitution, 580. 
 
 EXEMPTIONS, statutes conferring, to be strictly construed, 266-268 ; 
 from taxation, 297 (n), 510-512, 504 (n), 505 (n) (See " Taxation ") ; ditto, 
 granted to corporations, when contracts, 597-599, 586 (n)-588 (n). (See 
 " Obligation of Contracts" and "Contracts.") 
 
 EXEMPTION LAWS, effect of on, obligation of contracts, 612 (n) ditto of 
 " homesteads," 612 (n), 613 (n). (See " Obligation of Contracts.") 
 
 EX POST FACTO laws, 557-560, 557 (n)-560 (n) ; meaning of, ^./for- 
 feitures and confiscations, 557 (n)-559 (n) ; test oaths, 557 (n), 558 (n) ; 
 ditto, as a condition of voting, 558 (n) ; forfeiture of land as a punishment 
 for rebellion, 558 (n) ; confiscation acts of Congress, 559 (n); forbidding 
 the sale of liquors 559 (n) ; forfeiture of citizenship, 559 (n) ; registration 
 of voters, 559 (n) ; renewal of penalty, 559 (n) ; increase or change of pen- 
 alty, 559 (n), 560 (n) ; changes in procedure, etc., 560 (n), 561 (n) ; civil 
 remedies, 561 (n). 
 
 EXPRESS repeal, 95, 96. (See " Repeal.") 
 
 "EXPRESSIO UNI US," rule in relation to, 31 (n). 
 
INDEX. 675 
 
 "FALSA DEMONSTRATIO NON NOCET? 354, 355 (n). 
 
 FALSE description, effect of, 354, 354 (n). 
 
 FIFTEENTH amendment of the U. S. Constitution, discussed, 563 (n)-566 (n). 
 
 FINES and forfeitures, power to remit, 559. 
 
 " FIRE- WORKS," meaning of, 371 (n). 
 
 FLOWING lands, a taking of private property, 455 (n). 
 
 FOREIGN LAW, presumption in reference to the nature of, 12, 13 (n) ; 
 contracts valid by, but void by that of the forum, 71, 72. 
 
 FOREIGN STATUTES, proof of, 94, 95 ; interpretation and proof of, 362- 
 364. 
 
 FORFEITURES created by statute, nature and effect of, 78; and confisca- 
 tions, when ex post facto, 557 (n)-559 (n). 
 
 FORMS of actions on statutes, 89-91. (See " Pleading.") 
 
 FORTS, a public use, 447 (n). 
 
 FOURTEENTH amendment of the U. S. Constitution, discussed, 563 (n)- 
 566 (n). 
 
 FRANCHISES, grants of to be strictly construed, 291-296. 
 
 FRAUD in procuring statutes, effect of, 54 (n). 
 
 FREEDOM, religious, 571 ; of speech, 571. 
 
 " FROM," meaning of, 374. 
 
 FUGITIVES from justice, under U. S. Constitution, 568, 569; from service, 
 ditto, 569, 570. 
 
 GAS companies, a public use, 446 (n). 
 "GENERAL," meaning of, 371 (n). 
 
 GENERAL LAWS, must have uniform operation, constitutional provisions 
 relating to, 534 (n) ; what are, 534 (n) ; construction of the provisions, 
 
 534 (n), 535 (n) ; special laws forbidden when general ones are possible, 
 
 535 (n), 536 (n). 
 
 GENERAL RULES of construction, 325, 326. 
 
 GENERAL WORDS, how qualified by particular words, 360, 361 ; con- 
 struction of, 360 (n); how restrained to things of the same kinds, rule of 
 ejusdem generis, 360 (n) ; implied exceptions to, 360 (n) ; limited by the 
 object of the statute, 361 (n). 
 
 GEORGIA, law of as to taxation, 510 (n). 
 
 GOOD FAITH, no excuse for the violation of a statute. 79, 80. 
 
 GOVERNMENT, construction of statutes affecting the, 337 ; when bound, 
 337 (n). 
 
 GOVERNOR, approval of statutes by, 56 (n) ; time given to, in which to 
 sign bills, 356 (n). 
 
 " GRAIN," meaning of, 371 (n). 
 
 GRAMMAR, rules of, in construction, 225 (n). 
 
 GRANTS, legislative, when contracts, 590-592, 594. (See "Obligation of 
 Contracts.") 
 
 GRANTS OF LAND, 387-392 ; tenure from the Government, 387 ; royal 
 
C76 INDEX. 
 
 grants, 389; colonial grants, 389 ; power of the U. S. and the State gov- 
 ernments over, 390 ; N. Y. law concerning, 390, 391 ; grants of water, 
 391, 392. 
 
 HABEAS CORPUS, writ of, under U. S. Constitution, 556. 
 
 HEALTH, public, means of preserving a public use, 446 (n), 447 (n). (See 
 
 " Private Property, etc.," and " Police Powers.") 
 " HEIRS," meaning of, 371 (n). 
 HIGH SEAS," meaning of, 374. 
 HIGHWAYS, a public use, 446 (n) ; changed to turnpikes or plank-roads, 
 
 458 (n) ; railroads in, 458 (n), 459 (n). (See " Private Property, etc." ); 
 
 towns compelled by Legislature to construct, 446 (n). 
 " HOME," meaning of, 371 (n). 
 HOMESTEAD exemptions, effect of, on obligation of contracts, 612 (n), 
 
 613 (n). 
 
 HORSE RAILROADS in highways, 458 (n), 459 (n). 
 "HOUSE," meaning of, 372 (n). 
 
 IMPAIRING the- obligation of contracts. (See "Obligation of Contracts.") 
 
 IMPLICATION, repeal by, 97-107 (See "Repeal by Implication") ; effect of 
 in construction, 228 (n). 
 
 IMPLIED exceptions to general words, 360 (n). 
 
 IMPLIED REPEAL. (See "Repeal by Implication.") 
 
 IMPRISONMENT for debt, 540 (n). 
 
 " IMPROVIDENCE," meaning of, 374. 
 
 INCORPORATION, special acts of, forbidden, 539 (n). 
 
 INDIANA, law as to taxation, 510 (n). 
 
 INDICTMENT, based on statutes, forms of, 91, 92 ; ditto, when based on a 
 proviso or exception, 93 ; provisions of U. S. Constitution in relation to. con- 
 strued, 547 (n) ; these provisions not addressed to the State Legislatures 
 and governments, 547 (n). 
 
 INFANTS, statutes in relation to, 81 ; power of Legislature over their estates, 
 141 (n)-143 (n), 147-151. 
 
 INFERIOR COURTS, jury in, 490 (n)-492 (n). (See "Jury Trial.") 
 
 INJURIES, indirect and consequential to property, whether a taking of private 
 property, 457-461, 455 (n)-457 (n). (See " Private Property, etc.") 
 
 " INLAND navigation," meaning of, 372 (n). 
 
 INSOLVENT laws of the States, when they impair the obligation of contracts, 
 606-622, 606 (n), 607 (n). (See " Obligation of Contracts.") 
 
 INTENTION of the Legislature, the object of all construction of statutes, 
 193-197; to be ascertained and to govern, 195-197; to be ascertained 
 from the whole statute, 199-201, 199 (n), 201 (n) ; effect to be given to 
 every clause, 200 (n) ; technical or popular sense of words, 201 (n) ; effect 
 to be given to every part of a clause or sentence, 201 (n) ; how far intent 
 ascertained from extrinsic facts, 202-205 ; to be chiefly ascertained from 
 
INDEX. 677 
 
 the statute itself, 205-208; sometimes declared by the courts contrary to 
 the language of the statute, 251-266 ; when to be followed rather than the 
 literal meaning, 255 (n) ; general rules for ascertaining, 325, 326; mean- 
 ing of, 327, 328. 
 
 " INTERNAL improvement," meaning of, 372 (n). 
 
 INTERNATIONAL comity, its effect on statutes, 59. 
 
 INTERPRETATION, of statutes, treaties, etc., see " Construction." 
 
 INTERPRETATION CLAUSE, effect of, 45, 46. 
 
 INTOXICATING liquors, regulating sale of, 436 (n). (See " Police Powers.") 
 
 IOWA, law of, as to taxation, 509 (n). 
 
 IRREGULARITIES in judicial and other proceedings, power of Legislature to 
 amend, 141 (n)-144 (n), 147-151. 
 
 JEOPARDY, 572, 573, 572 (n)-575 (n) ; provisions of State constitutions re- 
 specting, 572 (n) ; when it begins, 573 (n) ; a new trial may be had, when 
 the jury fail to agree, 573 (n), for the sickness of a juror or judge, 573 (n), 
 by the ending of the term, 574 (n), for the misconduct of jurors, 574 (n),^ 
 for defect in the indictment, 574 (n) ; new trial at the instance of the pris- 
 oner, 574 (n) ; examples of the general rule, 574 (n), 575 (n) ; identity of 
 offences, 575 (n). 
 
 JOINT and several penalties for a violation of statutes, 79. 
 
 JOURNALS of the Legislature, how far evidence of the passage of statutes, 55 (n). 
 
 " JUDGMENT debtor," meaning of, 372 (n). 
 
 JUDGMENTS, power of Legislature over, 141 (n)-144 (n). 
 
 JUDICIAL ACTS, passed by Legislature, when void, 139-146, 138 (n), 139 
 (n) ; what may be passed by the Legislature. (See " Legislative Power to 
 pass Judicial Acts.") 
 
 JUDICIAL NATURE of certain classes of statutes, 138-152. 
 
 JUDICIAL POWER, division of in England and the U. S., 119-122 ; over 
 statutes independent of constitutional restrictions, 123-132; to construe 
 statutes, origin of, 174-179 ; is established, 179, 180 ; to decide upon the 
 constitutionality of statutes, 180-182; to construe statutes is limited, 183, 
 184 ; to construe contrary to the language of the statute, discussed, 251-266. 
 
 JUDICIAL PROCEEDINGS, effect of a repeal on those pending, 109 (u), 
 111-115 ; statutes authorizing summary, strictly construed, 299-302 ; faith 
 and credit to be given to those of the States, 56 J, 562, 562 (n). 
 
 JUDICIARY, their power to construe statutes, 18 ; their power to pronounce 
 statutes void, 406, 407 ; their power to determine whether a use is public, 
 443 (n), 444 (n) ; constitutional provisions respecting, 535-537 ; of the U. 
 S., their power to decide upon the U. S. Constitution, 555. 
 
 JURISDICTION of statutes, 56-69 ; in general, within the national territory, 
 59 ; by international comity, 59 ; among the States, 60-65. 
 
 JURY, composition of, 493 (n) ; of the county or vicinage, 493 (n) ; when 
 may be discharged, and the prisoner be tried the second time, 573 (n), 574 
 (n). (See " Jeopardy.") 
 
678 INDEX. 
 
 JURY TRIAL, 482-498, 482 (n)-495 (n) ; provisions of State constitutions, 
 criminal trials, 483 (n), 484 (n), civil trials, 484 (n)-486 (n) ; general im- 
 port of the guaranty, 483-495 ; may be regulated by statute, 496 ; in what 
 classes of cases secured, 496, 497 ; province of the court, 498 ; general 
 principles of construing the guaranty, 486 (n) ; in civil cases, 486 (n), 487 
 (n) ; in criminal cases, 487 (n),488 (n) ; classes of cases in which not neces- 
 sary, 488 (n), et seq. ; in equity cases, 488 (n), and equitable statutory pro- 
 ceedings, 488 (n), 489 (n) ; how far necessary in statutory proceedings, 489 
 (n), and in special proceedings, private, 490 (n), and in ditto, public, 490 ; 
 effect of enlarging jurisdiction of inferior courts, 490 (n), and of jury on 
 appeal, 491 (n) ; how far necessary in trials for minor offences, etc., 491 (n), 
 
 492 (n) ; and in preliminary proceedings, 492 (n) ; composition of the jury, 
 
 493 ; unanimity of the verdict, 493 (n) ; jury of the county or vicinage, 
 493 (n) ; miscellaneous incidents, 493 (n), 494 (n) ; waiver of, 494 (n), 
 495 (n) ; under U. S. Constitution, 577-579. 
 
 JUSTICE, the administration of, titles of laws regulating, 525 (n) ; fugitives 
 . from, 568, 569. 
 " JUSTIFIABLE cause," meaning of, 374. 
 
 " LABORER," meaning of, 372 (n). 
 
 LAND, grants or patents of, 387-392. (See " Grants of Land.") 
 
 LANDS, interfering with access to, whether a taking of property, 456 (n), 
 457 (n) ; flowing of, ditto, 455 (n). (See " Private Property, etc.") * 
 
 LANGUAGE of a statute, construction of, 219-230. (See " Construction of 
 Statutes") ; power of courts to disregard, discussed, 251-266. 
 
 LAST statute controls, 353. 
 
 LAW, of a foreign state, presumption as to its nature, 12, 13 (n) ; what sub- 
 jects can be embraced within, 134. 
 
 LAW OF THE LAND. (See Due Process of Law.") 
 
 LAWS, submission of to popular vote, 135-138, 135 (n) ; to take effect on a 
 contingency, 137 (n) ; -Titles and subjects of, 517-530, 518 (n)-530 (n). (See 
 ' Titles and Subjects ") ; Amendments of, (see "Amendments of Laws") ; 
 General, (see " General Laws ") ; Special, forbidden when general ones are 
 practicable, 535 (n), 536 (n) \Ex post facto, (see " Ex post facto Laws ") ; 
 Impairing the obligation of contracts, (see "Obligation of Contracts.") 
 
 LEASES of agricultural land, 541. 
 
 LEGISLATIVE CONSTRUCTION, effect of, 214, 227 (n). 
 
 LEGISLATIVE POWER, separation of, from the judicial, 119,e* seq.; over 
 bills of attainder in England, 121 ; independent of constitutional restric 
 tions, 123-132, 154-159 ; limitations on by State Constitutions, (see "Con- 
 stitutional Law ") ; of Congress, nature of, 549, 550. 
 
 LEGISLATORS, motives of, cannot be inquired into, 54 (n). 
 
 LEGISLATURE, supremacy of, 123-132, 154-159 ; referring a statute to a 
 popular vote, 135-138, 135 (n) ; has no power to pass judicial acts, 139- 
 146, 138 (n), 139 (n) ; examples, 145, 146, 138 (n), 139 (n) ;-may authorize 
 
INDEX. 079 
 
 courts to reopen a case, 139 (n) ; may pass certain quasi judicial acts, 
 139 (n); may pass private statutes in relation to persons not sui juris, 
 charities, etc., 140 (n), 141 (n), 147-151 ; power to pass curative statutes, 
 and their effect, 141 (n),-144(n), viz., on existing judgments, ib., and in 
 legalizing defective proceedings of municipal corporations, ib., or of married 
 women, ib., or of tax proceedings, ib., or of sales of infant's real estate, ib., 
 or of municipal subscriptions, ib., but cannot disturb vested rights, ib., 
 power to authorize sale of property of infants, married women, or by trus- 
 tees, 147-151 ; intention of to be ascertained and to govern, 195-197 ; no 
 power to decide finally whether a use is public, 443 (n), 444 (n); sole 
 power to decide as to the necessity of taking private property if the use is 
 public, 444, 444 (n) ; delegation of this power, 445 (n), 446 (n) ; no power 
 to take property for a private use, 446-451 ; may compel towns to con- 
 struct highways, 446 (n) ; grants by, 590-592, 594; power over corpora- 
 tions when right to repeal or amend has been reserved, 620 (n), 622 (n) ; 
 power over vested rights, see "Vested Rights ;" power to pass retrospect- 
 ive laws, see " Retrospective Laws." 
 
 " LESSEE " of a railroad, meaning of, 372 (n). 
 
 LIBERAL CONSTRUCTION, 308-316; general rule, 308-310 ; examples, 
 of, 308 (n), 311 (n), 312 (n), 312-315 ; equity of a statute, 311-315. 
 
 LICENSE LAWS, effect of repeal of, 109 (n); submission of to popular 
 vote, 136 (n) ; in general, 436 (n). (See " Police Powers.") 
 
 LICENSES, 5C3 (n), 504 (n). See " Taxation ;" not contracts, 584 (n), 
 585 (n). 
 
 LIBBER'S rules of construction, 246-248. 
 
 LIMITATIONS OF ACTIONS, statutes of, 83-86 ; effect of a repeal of, 109 
 (n) ; when retrospective, 161 (n), 162 (n) ; when valid and operative, 478 
 (n) ; effect of on obligations of contracts, 634-637, 613 (n). 
 
 LIMITING clause, construction of, 226 (n). 
 
 LIQUORS, laws prohibiting sale of, not ex post facto, 559 (n). 
 
 LITERAL meaning, when not to be followed, 255 (n). 
 
 LOCAL ASSESSMENTS, 426-434, 426 (n)-429 (n). 
 
 LOCAL LAWS, submission of, to popular vote, 135 (n), 136 (n). 
 
 LOCAL STATUTES, titles and subjects of, 528 (n), 529 (n). 
 
 LOCAL TAXATION, 429 (n)-432 (n); in aid of railroads, 429 (n)-43l 
 (n) ; in aid of educational institutions, 431 (n) ; for bounties to volunteers, 
 432 (n) ; for other local purposes, 431 (n), 432 (n). 
 
 LOCKE'S opinion on the power of legislatures, 123, 124. 
 
 " LOWEST bidder," meaning of, 372 (n). 
 
 MAJORITIES', required by the Constitution, 533, 534, 533 (n) ; how ascer- 
 tained and proved, 54, 55, 55 (n) ; of two-thirds, meaning of, 533 (n), 534 ; 
 "majority of electors," meaning of, 533 (n). (See "Constitutional Major- 
 ities.") 
 
 " MALICIOUSLY," meaning of, 375. 
 
680 INDEX. 
 
 MANDATORY statutes. (See " Directory and Mandatory Statutes.") 
 
 MARRIAGE, solemnized in violation of statute, 73 ; not a contract, 601-603, 
 581 (n), 582 (n). (See " Obligation of Contracts.") 
 
 MARRIED WOMEN, deeds of, power of Legislature to validate, 142 (n), 
 147-151 ; their separate property, statutes relating to, how construed, 268 
 (n), 269 (n), 271 (n). 
 
 MARTIAL, courts, of the militia, trial and punishment by, are " due process 
 of law," and valid, 476 (n). (See " Due Process of Law.") 
 
 MARYLAND, law as to taxation, 509 (n). 
 
 MASSACHUSETTS, colonial laws of, 34-37 ; law as to taxation, 510 (n). 
 
 MAY OR SHALL, may and shall, 375-377, 375 (n). 
 
 MEMBERS of the Legislature, motives of cannot be inquired into, 54 (n). 
 
 MICHIGAN, law as to taxation, 509 (n). 
 
 MILITIA courts martial, trial by, due process of law, 476 (tl). 
 
 MILLS, mill dams, etc., whether a public use, 447 (n). 
 
 MINOR offences, jury trial for, 491 (n), 492 (n). 
 
 MISCELLANEOUS constitutional provisions, 538-541, 538 (n)-540 (n). 
 
 MIS DESCRIPTION, effect of, 354. 
 
 MISSOURI, law as to taxation, 510 (n). 
 
 MISTAKE, effect of, 354 (n). 
 
 " MIXED STATUTES" of the civilians, 34. 
 
 MONOPOLIES, grants of, strictly construed, 291-296 ; in general, 540 (n). 
 
 MONTESQUIEU, his definition of law, 2. 
 
 "MONTH," meaning of, 358, 372 (n). 
 
 MOTIVES of legislators, not to be inquired into, 54 (n). 
 
 MUNICIPAL AID to railroads, etc., 429 (n)-431 (n). 
 
 MUNICIPAL CORPORATIONS, charters of, and laws affecting may be sub- 
 mitted to a popular vote, 135 (n) ; defective ordinances and proceedings of, 
 when may v be validated by the Legislature, 141 (n)-143 (n) ; titles of stat- 
 utes relating to, 522 (n)-525 (n) ; charters of, not contracts, 582 (n)-584 (n). 
 
 MUNICIPAL ORDINANCES, 392-403; local self-government, principle of, 
 392394; legislative power of municipal corporations, 395; to tax, 395, 
 396, for purposes of public safety, 396, over nuisances, 396, 397 ; con- 
 struction of, 397 ; authority to pass, to be strictly followed, 397-399 ; must 
 not conflict with the general law, 400, 401 ; mode of passage of, 402 ; 
 proof of, 403 ; not contracts, 600. 
 
 NATIONAL Taxation, 507 (n), 508 (n). (See " Taxation.") 
 
 " NAVIGATE," meaning of, 378. 
 
 NECESSITY or expediency of taking private property for public use to be 
 finally determined by the Legislature, 444, 444 (n), or by 'the persons to 
 whom the power is delegated, 445 (n), 446 (n). 
 
 NEGATIVE STATUTES, 31, 32 ; negative meaning when implied in affirma- 
 tive language, 31 (n) ; rule as to expressio unius, 31 (n). 
 
 NEGROES and mulattoes, citizens, 562 (n), 563 (n). 
 
INDEX. 681 
 
 NEW TRIAL, when not a twice putting in jeopardy, 573 (n), 574 (n), for 
 
 what may be granted, ib. 
 
 NEW YORK, banking system of, 379-383 ; law as to taxation, 509 (n). 
 " NEXT of kin," meaning of, 372 (n). 
 NON USER, repeal by, 96, 97. 
 " NOTICE," meaning of, 378. 
 
 NOTICE OF APPLICATION for the passage of private statutes, 52, 53. 
 NUISANCES, abating, 436 (n). (See Police Powers.") 
 
 OBJECT of statutes, limiting effect of on general words, 361 (n). 
 OBLIGATION OF CONTRACTS, 580-642 : 
 
 What is a contract within the meaning of the provision, 581-603, 581 (n)- 
 589 (n), all private contracts executory and executed, are, 581-590 ; 
 legislative grants to private persons are, 590-592, charters of 
 private corporations are, 592, 585 (n), 586 (n), collateral stipulations in 
 such charters are, 594, 586 (n), special privileges in a bank charter as to its 
 notes, 596, exemptions of the corporation from taxation, 597, 588 (n)-588 
 (n), but such exemption must be express, 599, stipulations restraining the 
 State's power of eminent domain, are, 596,, 588 (n), stipulations restraining 
 the State's police powers are not, 588 (n), charter of private corporations to 
 be strictly construed, 595, compacts between two States are, 595, 596, 
 statutes creating public offices are not, 600, 585 (n), municipal ordinances 
 are not, 600, marriage is not, 601-603, 581 (n), 583 (n), charters of mu- 
 nicipal corporations are not, 582 (n), 583 (n), how" far contracts made by 
 municipal corporations are protected, 584, 583 (n), statutory permission to 
 sue the State is not, 584 (n), licenses are not, 584 (n), 585 (n), miscellane- 
 ous cases, 588 (n) : what is included within the contract as forming a part 
 of it, 589 (n) : 
 
 " Obligation " of a contract defined, 603 (n), 604 (n) : 
 
 What State laws impair the obligation of contracts, 603-642, 605 (n)-622 
 (n) : statutes applying directly to the terms of a contract, 606-622, 606 (n) 
 -609 (n), State insolvent or bankrupt laws, 606-622, 606 (n), 607 (n), 
 laws affecting private corporations, 607 (n), such corporations are subject to 
 the powers of taxation, police, and eminent domain, 607 (n), 608 (n), police 
 powers over such corporations, 608 (n), ditto, taxing power, 608 (n), 609 
 (n), ditto, power of eminent domain, 638, 639, 609 (n) ; laws which oper - 
 ate directly on the remedy, 623-634, 609 (n)-617 (n), what is the remedy 
 and how it may be affected, 609 (n), 610 (n), stay laws, 611 (n), 612 (n), 
 exemption laws, 612 (n), homestead exemptions, 613 (n), arrest for debt, 
 
 613 (n), limitations of actions, 634-637, 613 (.1). recording acts, 614 (n), 
 administration of justice, courts, actions, pleadings, practice, evidence, etc. 
 
 614 (n), scaling laws, 615 i(n), redemption laws, 615 (n), 616 (n), ap- 
 praisement laws, 616 (n), miscellaneous laws, 616 (n), enlarging, improv- 
 ing, or modifying the remedy, 617 (n) : 
 
 Effect of changes in State constitutions, 637, 638 ; statutes affecting mu- 
 nicipal corporations, 618 (n) ; laws incidentally or indirectly affecting con- 
 tracts, 619 (n) ; who can complain, 620 (n) : 
 
682 INDEX. 
 
 Power of the Legislature when the right to amend or repeal charters has 
 been reserved, 620 (n)-622 (n). 
 
 OFFENCES created by statute, when joint and when several, 79; minor, 
 jury trial for, 491 (n), 492 (n). 
 
 OFFICERS, public, relief against their acts, 81, 82 ; construction of statutes 
 conferring authority upon, 329-331. 
 
 OFFICES, public, are not contracts, 600, 585 (n). 
 
 ONE TRIAL only for same offence, 572, 573,572 (n)-575 (n). (See "Jeo- 
 pardy.") 
 
 "OPERATIVE," 372 (n). 
 
 " OR" AND "AND," use of, 371 (n). 
 
 ORDINANCES, municipal, 392 403. (See " Municipal Ordinances.") 
 
 " OWNERS OR OCCUPIERS," meaning of, 372 (n). 
 
 "PAR," meaning of, 372 (n). 
 
 ' PARI MATERIA," statutes in, construction of, 209-212. (See " Construc- 
 tion, etc.") 
 
 PARKS and squares, a public use, 447 (n). 
 
 PARLIAMENT of Great Britain*, power of, 120, 121 ; ditto, to pass bills of 
 attainder, 121. 
 
 "PARTICULAR SERVICES," provision in regard to. in certain States, 512. 
 
 PARTICULAR WORDS, construction of, 371-379; effect of, in qualifying 
 general words. (See " General Words.") 
 
 PASSAGE of statutes, proof of, 55, 55 (n). 
 
 PATENTS of land, 387, 392. (See " Grants of Lands.") 
 
 PAUPER, settlement of, statutes relating to, when retrospective, 162 (n). 
 
 PENAL STATUTES, 32, 333-336 ; pleading in actions on, 89; to be 
 strictly construed, 279-287, ancient rule, 280-282, relaxed in modern 
 times, 282-287, examples, 279 (n), construction not to be so strict as to 
 defeat the plain intent, 279 (n), 280 (n) ; treble damages in, 334; number 
 of penalties, 336. 
 
 PENALTY, in a statute implies prohibition, 71 ; statutory, when the only 
 remedy, 76, 77, when election between it and common-law remedy, 75-77 ; 
 when single and when several, 79 ; effect of on contracts, 339 ; when ex- 
 clusive and when cumulative, 341-345 ; when statutes affecting are ex post 
 facto, 559 (n), 560 (n). 
 
 PEOPLE, submission of laws to vote of, 135-138, 135 (n)-137 (n). 
 
 " PERISHABLE," meaning of, 372 (n). 
 
 " PERSON," meaning of, 372 (n). 
 
 PERSONS NOT SUI JURIS, private statutes in relation to, 140 (n), 141 (n), 
 147-151. 
 
 < PERSONAL PROPERTY," meaning of, 372 (n). 
 
 "PERSONAL REPRESENTATIVE," meaning of, 372 (n). 
 
 PERSONAL STATUTES of the civilians, 33. 
 
 PETTY OFFENCES, 436 (n) (See "Police Powers") ; jury trial for, 491 
 (n), 492 (n). 
 
INDEX. 683 
 
 PHILLIMORE'S rules of construction, 248, 249. 
 
 PLACE of taxation, 508 (n), 509 (n). (See "Taxation.") 
 
 PLANK-KOADS, in highways, 4. 
 
 PLEADINGS, in actions founded on statutes, 89-93, forms of action on stat- 
 utes, 89, 90; when pleading should refer to the statute, 90, 91 ; indict- 
 ments, 91, 92; on a proviso or exception, 93. 
 
 POLICE POWERS, 435-441 ; nature of and examples, 435-440 ; over pub- 
 lic safety or health, 440, 437 (n) ; nature of, 435 (n) ; over stray animals, 
 
 435 (n) ; over nuisances, 436 (n), dog laws, 436 (ri), burial of the dead, 
 
 436 (n), intoxicating liquors and license laws, 436 (n), petty offences, 
 
 436 (n) ; U. S. has none in the States, 437 (n) ; other examples, 435 (n)- 
 
 437 (n) ; exercise of, not a taking of property for public use, 454 (n), 
 455 (n). 
 
 POLITICAL questions, U. S. Supreme Court will not pass upon, 159 (n). 
 
 POPULAR vote, submission of laws to, 135-138, 135 (n)-137 (n). 
 
 " POSSESSION," meaning of, 372 (n). 
 
 PREAMBLE of a statute, 42-44; not essential, 43 ; effect of in interpreting, 
 43, 44, 45 (n). 
 
 PRESUMPTION as to the law of of a foreign State, 12, 13 (n). 
 
 PRESUMPTIONS in construction, 228 (n). 
 
 PRIVATE CORPORATIONS, how far laws affecting impair obligation of con- 
 tracts. 607 (n)-609 (n). 
 
 PRIVATE PROPERTY taken for public use, 419-425, 442-474; provisions 
 in the State Constitutions, 420 (n)-423 (n) ; provision in U. S. Const, only 
 applies to the U. S. Government, 419 (n) ; powers of States over private 
 property, 422, 423, embrace powers of taxation, of police, and of eminent 
 domain, 423-424 : 
 
 Power of EMINENT DOMAIN, 442-474. 
 
 What may be taken, 442, 442 (n), examples, 442 (n), one railroad cross- 
 ing another, 443 (n). 
 
 Question whether the use is public is a judicial one, and cannot be finally 
 decided by the Legislature, 443 (n), 444 (n) : 
 
 Power of Legislature to decide as to the necessity of taking if the use is 
 public, 444, 444 (n) ; delegation of the power, 445 (n), 446 (n), 452-454, 452 
 (n), 453 (n), may be delegated to corporations, 453, 454, and to individu- 
 als, 454, 452 (n), may be exercised by the U. S. within the States, 453 (n) ; 
 power of Legislature to compel towns, etc., to construct highways, 446 (n). 
 What is a public use, See " PUBLIC USE." 
 
 What constitutes a "taking" of private property, 454463, 454 (n)-459 
 (n) ; there must be a physical interference, 456, 457, 455 (n) ; indirect and 
 consequential injuries are not a taking, 457, 458, 455 (n)-457 (n), such in- 
 juries caused by streets, etc., 459-461, 456 (n), railroads, 461, interfering 
 with access to lands, 456 (n), 457 (n), indirect injuries to turnpikes, toll 
 bridges, etc., 460, 455 (n), 456 (n), diversion of public waters, 455 (n), 
 this rule criticised, 462, 463 ; injuries done under exercise of police powers, 
 
684 INDEX. 
 
 when not a "taking." 454 (n), 455 (n) ; "injuriously affecting" in some 
 State constitutions, 457 (n) ; flowirg lands is a " taking," 455 (n) ; further 
 examples of taking, 457 (n), 458 (n), imposing additional easements, 458 
 (n), 459 (n), viz, turnpikes or plank-roads in highways, 458 (n), steam 
 railroads in ditto, 458 (n), horse railroads in ditto,, 458 (n), 459 (n). 
 
 Compensation for taking, 463-471, 463 (n)-467 (n). (See " Compensa* 
 tion.") 
 
 Estate taken, whether a fee or an easement, 472, 473, 472 (n). Provisions 
 in regard to eminent domain do not limit the power of taxation, 501. 
 
 PRIVATE SCHOOLS, local taxation for, 431 (n). 
 
 "PRIVATE STATUTES," must be pleaded, 27, what persons they bind, 
 27, whether they bind the States, 28 ; proof of, 94; relating to persons 
 not sui juris, charities, etc., 140 (n), 141 (n) ; titles and subjects of, 528 (n), 
 529 (n). (See " Titles, etc.") 
 
 PRIVATE USE, property cannot be taken for, 446-451. 
 
 PROCEDURE, statutes regulating, retrospective effect of, 163 (n) ; to be 
 strictly construed, 275-279; laws changing are not ex post facto, 560 (n), 
 561 (n). 
 
 " PROCEEDING," meaning of, 372 (n). 
 
 PROCEEDINGS, summary, statutes authorizing to be strictly construed, when 
 judicial, 299-302, ditto, when administrative, 302-306. 
 
 PROMULGATION of statutes, 67, 67 (n). 
 
 PROOF of statutes, of public, 93, private, 94, foreign, 94, 95, 362-364, 
 of ancient, 95. 
 
 PROOF OF THE PASSAGE OF STATUTES, by the statute book, 55, 
 by the engrossed bills on file, 55, 55 (n), by the journals, 55 (n). 
 
 " PROPERTY," meaning of, 373 (n). 
 
 PROPERTY, PRIVATE. (See " Private Property.") 
 
 PROSECUTIONS, pending, effect of repeal on, 111, 112, 109 (n), ditto, when 
 there is a saving clause, 111. 
 
 "PROVINCE of Jurisprudence Determined," by Austin, analysis of, 187-189. 
 
 PROVISOES in statutes, effect of, 49, 49 (n), how pleaded, 93. 
 
 " PROXIMA causa non remota spectatur" 355. 
 
 PROXIMATE cause, rule as to, 355, 356. 
 
 PUBLICATION of statutes, 55 (n), 540 (n). 
 
 PUBLIC OFFICERS, relief against their acts, 81, 82 ; statutes giving author- 
 ity to, construction of, 329-331. 
 
 PUBLIC PURPOSES, taking property for, see " Private Property." 
 
 PUBLIC SAFETY and health, laws protecting, 440, 437 (n). (See " Police 
 Powers.") 
 
 PUBLIC SCHOOLS, the Bible and religious instruction in, 513. 
 
 PUBLIC STATUTES, 24-27, taken judicial notice of, 26, proof of, 93. 
 
 PUBLIC USE, What is, and examples of, 446 (n)-450 (n), railroads and 
 all means of transport, 446 (n), gas companies, 446 (n), drainage and 
 other like measures for the public health, 446 (n), 447 (n), public schools, 
 
INDEX. 685 
 
 447 (n), U. S. forts, 447 (n), cemetery, 447 (n), public squares and 
 parks, 447 (n), depots, etc., for railroads, 447 (n), mills, mill dams, etc., in 
 some States, 447 (n), township roads, 448 (n), taking for the benefit of 
 the U. S., 448 (n) ; discussion of the principle and general rules, 448 (n)- 
 450 (n) ; power of the courts to decide whether the use is public or not, 
 443 (n), 444 (n) ; delegation of powers to take property for, 452^154, 452 
 (n), 453 (n) ; what constitutes a "taking" for, 454-463, 454 (n)-459 (n) ; 
 compensation for taking for, 463-471, 463 (n)-467 (n). (See "Private 
 Property, etc.") 
 
 PUBLIC WATERS, laws regulating, 440, 441. (See " Police Powers.") 
 
 PUNCTUATION, effect of in construction, 225 (n). 
 
 PUNISHMENTS, cruel, under U. S. Constitution, 580. 
 
 " PURCHASER," meaning of, 373 (n). 
 
 PURVIEW, or body, of a statute, 45. 
 
 QUORUM, what constitutes a, 331, 331 (n). 
 
 RAILROADS, municipal aid to, 429(n)-431 (n); power of one to cross 
 track of another, 443 (n), 473 ; a public use, 446 (n), also their depots, 
 shops, etc., 447 (n) ; power to take private property, 452-454, 452 (n) ; in 
 streets and highways, 453 (n), 459 (n). 
 
 READINGS of bills, three, 539 (n). 
 
 " REAL statutes " of the civilians, 33. 
 
 RECORDING acts, do not impair obligation of contracts, 614 (n). 
 
 REDEMPTION laws, effect of, on obligation of contracts, 615 (n), 616 (n). 
 
 RE-ENACTMENT, how far effects a repeal of the prior law, 95 (n), 96 (n). 
 
 REFERENCE statutes, construction of, 229 (n). 
 
 RELIEF against acts of public officers, 81,82 ; none in equity against a posi- 
 tive statute, 83. 
 
 RELIGIOUS freedom and toleration, 512-515, 512 (n); in public schools, 
 513; belief of witnesses, 514 ; provisions in Massachusetts and in Con- 
 necticut, 514, 515 ; observance of Sunday, 512 (n); under the U.S. Con- 
 stitution, 571. 
 
 REMEDIAL STATUTES, defined, 32; -when retrospective, 162(n),163(n); 
 construction of, 308-3 16, general rules, 308-310, 308 (n), examples, 308 (n), 
 partly remedial and partly penal, 310 ; equity of a statute, 311-315, 
 examples, 311 (n) ; liberal construction, examples of, 312-315,312 (n). 
 
 REMEDIES, for violation of statutes, 74-78, election between common 
 law and statutory , 75-77 ; when cumulative, 100 (n), 341-345, when ex- 
 clusive, 341 (n) ; pending, effect of a repeal on, 113-115, 109 (n); civil, 
 laws affecting not ex post facto, 561 (n). 
 
 REMEDY, the, what is and how maybe changed, 609 (n), 610 (n) ; when 
 laws affecting impair the obligation of contracts, 623-634, 609 (n)-617 (n). 
 (See " Obligation of Contracts.") 
 
 REPEAL OF CHARTER, power of Legislature over, when the right has 
 been reserved, 620 (n)-622 (n). 
 
686 INDEX. 
 
 REPEAL OF STATUTES, 95-1 16; -Mode of,-express, 95,96 (n),-by non- 
 user, 96, 97, by re-enactment or amendment, 95 (n), 96 (n) ; by implication. 
 (See " Repeal by Implication.") 
 
 Effect of, 108-116 ; general rule, 108-110 ; effect on pending judicial 
 proceedings, 111, 112, 109(n), of a saving clause, 111, repeal of a statute 
 making specified acts illegal, 112, on pending civil proceedings, 113, where 
 the statute modifies existing remedies, 114, 115, repeal of a repealing stat- 
 ute, 116, revival of old law, 108 (n), on individual rights, 108(n)-110 (n), 
 on vested rights, 108 (n), 109 (n), of repeal of statute of limitations, 
 
 109 (n), of a license law, 109 (n), of a single section, 96 (n); unconstitu- 
 tional repealing statute, effect of, 110(n); effect of amendatory statutes, 
 
 110 (n), 111 (n). 
 
 REPEAL BY IMPLICATION, 97-107 ;-general rule that subsequent statute 
 without negative words does not repeal unless clearly repugnant, 97-104 
 98 (n), 99 (n), when the subsequent statute does repeal without express re- 
 pealing words, 104, 105, 99 (n), 100 (n), the inconsistency must be complete, 
 98 (n), examples, 100 (n)-102 (n), such repeal not favored, 105, 106, 
 98 (n) ; additional remedies when cumulative, 100 (n) ; extent of the re- 
 peal, 102 (n), 103 (n) ; whether Legislature can prescribe a mode of repeal, 
 103 (n) ; conflict between parts of the same statute, 105 ; repeal by change 
 of State Constitution, 107. 
 
 REPEALING CLAUSE, effect of, 48. 
 
 REPEALING STATUTES, 32, 33. 
 
 REPRESENTATION as the basis of taxation, 506 (n). 
 
 RETROSPECTIVE STATUTES, 160- 173; -forbidden in some Constitutions, 
 160, 161 ; general rule of construction that the effect shall not be retro- 
 spective, 161-164, 161 (n); what are prohibited by the U.S. Constitution, 
 165 ; may be passed unless forbidden by State Constitution, but courts lean 
 strongly against such a construction, 166-173 ; intent must be certain, 167- 
 173, 161 (n) ; examples, 170-172 ; effect on vested rights, 161 (n) ; stat- 
 utes of limitation when retrospective, 161 (n), 162 (n), statutes relating to 
 dower, ditto, 162 (n), those relating to settlement of paupers, ditto, 162 (n); 
 amendatory statutes, ditto, 162 (n) ; remedial statutes, 162 (n), 163 (n) ; 
 relating to procedure, 163?(n). 
 
 RETROSPECTIVE EFFECT of laws, 346-353, 346 (n) ; where forbidden 
 by constitutions, 347, how far permitted, 347-353 ; how far may affect 
 vestei r ghts, 346 (n). 
 
 REVENUE LAWS, contracts in violation of, 72, 340 ; how construed, 288, 
 289, 332, liberally construed, 288 (n). 
 
 REVENUE BILLS, origin of, 539 (n). 
 
 REVISION of statutes, construction of, 229 (n) ; effect of, 365, 366, 365 (n). 
 
 RIGHTS, individual, effect of repeal on, 108 (n)-110 (n) ; vested, see " Vested 
 Rights." 
 
 ROADS, a public use, 446 (n). 
 
 ROMAN law, nature of, 17, 18. 
 
 RULES of construction, Mr. Sedgwick's, 325, 326. 
 
INDEX. 687 
 
 SAFETY, public. (See " Police Powers.") 
 
 " SALE," meaning of, 373 (n). 
 
 SALES, in violation of statutes, 339, 340. 
 
 SAVING clause, effect of, 47, 48, 47 (n), in repealing statutes, 111. 
 
 SCALING laws, effect of on obligation of contracts, 615 (n). 
 
 SCHEDULES, in statutes, 51. 
 
 SCHOOL fund, 539 (n). 
 
 SCHOOLS, PRIVATE, taxation in aid of, see " Educational Institutions." 
 
 SCHOOLS, PUBLIC, a public use, 447 (n) ; Bible, etc., in, 513. 
 
 SEARCHES and seizures, origin of the constitutional guaranty, 498 ; pro- 
 visions in State constitutions, 499 -effect of, 500, 500 (n) ; under the U. S. 
 Constitution, 571. 
 
 SECTION of a statute, repeal of, 96 (n). 
 
 SERVICE, by publication, when valid, 476 (n), 477 (u). 
 
 SERVICE, fugitives from, 569, 570. 
 
 SEVERAL penalties for the violation of statutes, 79. 
 
 SHALL or may, use of, 375-377, 375 (n). 
 
 " SOIL," meaning of, 373 (n). 
 
 SOURCES of the municipal law, 3-20. 
 
 SPECIAL laws, when forbidden, 535 (n), 536 (n), 539 (n). 
 
 SPECIFIC taxes, 507, 508. 
 
 SPEECH, freedom of, 571. 
 
 STAMP acts, strictly construed, 307. 
 
 STARE DECISIS, rule of in construction, 214, 215/227 (n). 
 
 STATE, construction of laws affecting the, 337 ; when bound, 337 (n) ; per- 
 mission to sue the, not a contract, 584 (n\. 
 
 STATES, effect of other State statutes within, 60-65 ; suits against, 537, 538. 
 
 STATUTES, of England adopted by the State constitutions, 10-12 ; classes 
 and divisions of, 21-34 ; public or general, 24-27 ; private or special, 24- 
 27 ; declaratory or innovating, 28, 29, affirmative, 29, 30 ; negative, 31, 32, 
 31 (n), remedial, 32, penal, 32, repealing, 32, 33. 
 
 Parts of, 38-51 ; the title, 39-41, subtitles, 39 (n), the commence- 
 ment, 41, 42, the preamble, 42-44, 45 (n), the purview or body, 45, 
 clauses of, 45-49, 47 (n), provisoes in, 49, 49 (n), exceptions, 50, sched- 
 ules, 51. 
 
 Attributes and incidents of, 52-118 ; mode of passage, 52-55, 55 (n), 56 
 (n), authority and jurisdiction, 56-69, time when they take effect, 65-68, 
 67 (n), contracts in violation of, 69-74, remedies for the violation of, 74- 
 78, limitations of actions on, 83-86, pleadings in actions on, 89-93, 
 proof of, 93-95, repeal of, 95-116, copyright in, 116-118. 
 Submission of to popular vote, 135-138, 135 (n)-137 (n). 
 Special kinds, those which are quasi judicial in their nature, 138-152 ; 
 retrospective or retroactive statutes, 160-173. 
 
 Construction of: power of the courts over, 174-179, and to decide upon 
 their constitutionality, 180-182 ; in part materia, construction of, 209-212 ; 
 
688 INDEX. 
 
 language of, how construed, 219-230; revision of, how construed, 229 
 (n) ; strict and liberal construction, 250-328 ; in derogation of the com- 
 mon law, 267-275 ; : remedial, construction of, 308-316 ; directory or 
 mandatory, 316-325; delegating authority to public officers, 329-331 ; 
 revenue, 332 ; penal, 333-336 ; their effect upon contracts in violation of 
 them, 337-341 ; their retroactive effect, 346-353 ; interpretation and proof 
 of foreign, 362-364 ; revision of, 365, 366 ; construction of by the U. S. 
 courts, 366-370. 
 
 Power of the courts to pronounce them unconstitutional, 406-414. 
 Titles and subjects of, 517-530; amendments of, 530-533. 
 STATUTORY FORFEITURE, 78. 
 
 STATUTORY PROVISIONS, waiver of, 86-88, 358, 359. 
 STATUTORY REMEDY, when must be followed, 76, 77. 
 STAY laws, effect of on obligation of contracts, 611 (n), 612 (n). 
 " STEAL," meaning of, 378. 
 
 STRAY animals, 435 (n). (See " Police Powers.") 
 STREETS, railroads in, 458 (n), 459 (n) ; injuries caused by alteration of, 459- 
 
 461,455 (n), 456 (n). 
 
 STRICT CONSTRUCTION, cases of, 266-308 ; viz., statutes conflicting with 
 a constitution, 266, 267, construction preferred which makes a statute con- 
 stitutional, 267 (n) ; 
 
 Statutes in derogation of the common law, 267-275, old rule, 267-272, 
 267 (n), 268 (n), original reason for the rule, 273, partially abandoned at 
 the present day, 273-275, 270 (n), 271 (n), how applied to certain statutes, 
 2t58 (n), 269 (n). 
 
 Statutes prescribing forms of procedure or modes of proof, 275-279. 
 Penal statutes, 279-287, ancient rule, 280-282, modified in modern 
 times, 282-287, examples of, 279 (n), plain intent should not be defeated, 
 279 (n), 280 (n). 
 
 Revenue laws, 288, 289, liberally construed, 288 (n). 
 Usury laws, 290; charters of corporations, 291-296; strictly construed 
 against the grantee, 291 (n), 292 (n). 
 
 Statutes authorizing exemptions or against common right, 296-298. ex- 
 amples of derogating from common right, 296 (n), exemptions from taxa- 
 tion, 297 (n). 
 
 Statutes authorizing summary proceedings, 299-306, summary judicial 
 proceedings, 299-302, administrative proceedings, 302-306, e. <?., tax 
 sales, 303-306, stamp acts, 307, statutes giving costs, 307. 
 SUBJECT-MATTER of statutes, 359. 
 SUBJECTS of laws. (See "Titles and Subjects.") 
 SUBSEQUENT clause, construction of, 229 (n). 
 " SUBSEQUENT purchasers," meaning of, 373 (n). 
 " SUCH," meaning of, 373 (n). 
 
 SUI JURIS, private statutes relating to persons not, 140 (n), 141 (n). 
 " SUIT," meaning of, 373 (n). 
 
INDEX. 689 
 
 SUITS against the State, 537, 538. 
 
 SUMMARY proceedings, strictly construed, viz., judicial, 299-302, adminis- 
 trative, 302-306 ; when valid, as being "due process of law," 477 (n). 
 SUNDAY, laws regulating, 14 (n), 512 (n) ; contracts in violation of, 341. 
 SURPLUSAGE, effect of, 354. 
 
 TAKING private property for public use ; the necessity of, to be determined 
 by the Legislature, 444, 444 (n), or by those to whom the power has been 
 delegated, 445 (n), 446 (n) ; who may take, 452-454, 452 (n), 453 (n) ; 
 taking for private use forbidden, 446-451. 
 
 What constitutes a "taking," 454-463, 454 (n)-459 (n) ; compensation 
 for, 463-471. (See " Compensation, etc." and " Private Property," etc.) 
 TAXATION, State power of, 425-434, 501-512; in general, 425, 425 (n), 
 426 (n). 
 
 Local assessments, principles and rules governing, 426-434, 426 (n)- 
 429 (n). 
 
 What- objects are public, so that local taxes may be laid in their support, 
 429 (n), et seq , e. g. municipal aid to railroads, 429 (n)-431 (n), to educa- 
 tional institutions, 431 (n), bounties to volunteers, 432 (n), other private 
 and local matters, 431 (n), 432 (n). 
 
 Limitations on the powers of, 501-512; not limited by the constitutional 
 provisions relating to the taking of private property, 501, is generally lim 
 ited by the State constitutions certain of such provisions, 502, 503. 
 
 " Equal and uniform" taxation, construction of provisions requiring, 504- 
 510, 503 (n)-506 (n), specific taxes not forbidden, 507, 508, application 
 of the rule of uniformity to licenses, 503 (n), 504 (n), to county taxation, 
 
 504 (n), to exemptions and commutations, 510-512, 504 (n), 505 (n), 
 what violates the requirement of uniformity, 505 (n), effect of omissions, 
 
 505 (n), what does not violate, 505 (n), 506 (n). 
 
 Taxation and representation, connection between, 506 (n). State and na- 
 tional taxation, 507 (n), 508 (n) ; double taxation and the place of laying 
 the tax, 508 (n), 509 (n) ; what may be sold for taxes, 509 (n), who may 
 complain, 509 (n). 
 
 Certain special restrictions in some States, 509 (n), 510 (n). 
 
 TAXES ON CORPORATIONS, when provisions exempting from, are con- 
 tracts, 597-599, 586 (n)-588 (n). 
 
 TAX PROCEEDINGS, irregular and defective, power of Legislature to validate 
 by a subsequent statute, 142 (n), 143 (n). 
 
 TAXING POWER of the States, over passengers passing into or out of the 
 State, 562 (n), over non-resident traders, 562 (n), or freight passing into 
 or out of the State, 563 (n), effect of on the obligation of contracts, 608 (n), 
 609 (n). 
 
 TECHNICAL words, construction of, 221-223, 224 (n), 225 (n). 
 
 TENURE of land from the Government, 387. 
 
 TERRITORIAL authority and effect of statutes, 59-65. 
 
 44 
 
690 INDEX. 
 
 TEST OATHS, when laws prescribing, are ex post facto, 557 (n), 558 (n). 
 
 THREE readings of bills, 539 (n). 
 
 TIME, when statutes take effect, 65-68, old English rule, 65, French rule, 
 66, rule in U. S., 66, 67, 67 (n), amendatory statutes relate back to the 
 time of tb,e original act, 68 ; computation of, 356-358. (See " Computa- 
 tion, etc.") 
 
 TITLE, the, of a statute, 39-41 ; old English rule in reference to, when may 
 be referred to as an aid in construction, 39, 39 (n), made important by the 
 provisions of some State constitutions, 39 (n), 40, 41, subtitles, 39 (n). 
 
 TITLES AND SUBJECTS OF STATUTES, 517-530, 518 (n)-530 (n) : 
 
 Constitutional provisions, 518 (n), evils they were designed to remove, 
 517-519. 
 
 Construction of these provisions, 520-530, held directory in Ohio and 
 California, 520 (n), nature of them, 519 (n), when the title sufficiently ex- 
 presses the subject, 520 (n), when is there one subject, 521 (n), in char- 
 ters of corporations, 521 (n), in statutes relating to municipal corporations, 
 522 (n)-525 (n), in tax laws, 525 (n), in laws regulating the administra- 
 tion of justice, 525 (n), in amendatory statutes, 526 (n), in miscellaneous 
 statutes, 527 (n), effect of non-conformity with the provisions, 528 (n) ; 
 local and private statutes in N. Y. and Wise., 528 (n), 529 (n) ; collection 
 ofcfises, 530 (n). 
 
 TOLERATION, religious, 512-515, 512 (n). 
 
 TOWNS, compellable by Legislature to construct highways, 446 (n). 
 
 TRANSPORTATION, means of, a public use, 446 (n), 
 
 TRAVEL, means of, a public use, 446 (n). 
 
 TREATIES, construction of, 384-387 ; supreme law of the land, 385, 556 (n), 
 power of U. S. Government to make, 385, effect of war on, 386. 
 
 TRIAL BY JURY, 482-498. (See "Jury Trial.") 
 
 TRUST funds, 541. 
 
 "TURNED loose," meaning of, 373 (n). 
 
 TURNPIKES in highways, 458 (n). 
 
 TWO-THIRDS, majority of, meaning of, 533 (n), 534. 
 
 UNANIMITY of verdict, 493 (n). 
 
 UNCONSTITUTIONAL repealing statute, effect of, 110 (n). 
 
 UNCONSTITUTIONAL STATUTES, 406-414 ; in part, 413 (n). 
 
 UNIFORM OPERATION of general laws, provisions of certain constitu- 
 tions, 534 (n), what are general laws, 534 (n), construction of the consti- 
 tutional requirements, 434 (n), 435 (n). 
 
 UNIFORMITY OF TAXATION, 504-510, 503 (n)-506 (n). (See "Taxa- 
 tion.") 
 
 UNITED STATES, no common law of, 13 ; courts of, their construction of 
 State statutes, 366-370, 367 (n) ; has no police powers within the States' 
 jurisdiction, 437 (n) ; erections, buildings, etc., of, wjien a public use, 448 
 (n), 453 (n) ; taxation by, 507 (n). 508 (n). 
 
INDEX. 691 
 
 UNITED STATES CONSTITUTION, provisions of which directly protect 
 private or personal rights, 545-548, these provisions not addressed to the 
 State governments, 547 (n), 548 (n) ; legislative power of Congress, nature 
 of, 549, 550. 
 
 Construction of, general rules of, 551-556, political rules, 551, uncon- 
 stitutional ity must be clear, 552, contemporaneous interpretation, 552, ex- 
 trinsic facts in aid of, 552, 553, words taken in their natural sense, 553, 
 transposition of clauses, 553, 554, reference to clauses stricken out, 554 ; 
 acts void in part, 554, effect of unconstitutionally, 554, power of the Fed- 
 eral judiciary, 555. 
 
 Treaties, force and effect of, under, 556 (n). (See "Treaties.") Habeas 
 corpus, 556 (see "Habeas Corpus") : bills of attainder, 557 (see " Bills of 
 Attainder") ; ex post facto laws, 557-560 (see " Ex post facto Laws") ; 
 judicial proceedings, faith and credit given to, 551, 562 (see "Judicial Pro- 
 ceedings"); citizenship, privileges and immunities of, 562-568, 562 (n)- 
 566 (n) (see ''Citizenship"); fugitives from justice, 568, 561), and from 
 service, 569, 470 (see " Fugitives," etc.) ; religious freedom, 571 ; search 
 warrants and seizures, 571 ; only one trial for same offence, 572, 573, 572 
 (n)-575 (n) (see " Jeopardy ") ; due process of law. 576, 577 ; jury trial, 
 577-579 ; excessive bail, etc., 5SO ; obligation of contracts, 580-642. (See 
 " Obligation of Contracts.") 
 
 UNREASONABLE conditions, when void, 478 (n). 
 
 USAGE, effect of on construction, 215-218, of a particular place, 216 (n). 
 
 USE, PRIVATE, property cannot be taken for, 446-451. (See " Private Prop- 
 erty, etc."). 
 
 USE, PUBLIC, how far a matter for courts to decide, 443 (n), 444 (n) ; what 
 is, and examples of, 446 (n)-450 (n). (See " Public Use" and "Private 
 Property, etc.") 
 
 USURY laws, how construed, 290, 291. 
 
 VATTEL'S rules of construction, 230-243. 
 
 VERDICT, unanimity of, 493 (n). 
 
 VESTED RIGHTS, effect of repeal on, 108 (n), 109 (n) ; Legislature cannot 
 interfere with, 138 (n)-l44 (n), 152; effect of retroactive statute on, 
 161 (n), 346 (n). , 
 
 General discussion of the doctrine, 643-662, 643 (n)-645 (n) ; general effect 
 of the constitutional guaranties over legislative power, 646-653 ; examples of 
 rights over which Legislature has power, 654-660, of judicial proceedings, 
 ditto, 655-660 ; statutes of limitation, 658, change in rules of evidence, 
 658, and in remedies generally, 659, 660 ; examples of rights which can- 
 not be affected by subsequent legislation, 643 (n) ; examples of rights and 
 interests which may be thus affected, 644 (n), 645 (n). 
 
 VIOLATION OF STATUTES, contracts in, 69-74 ; remedies for, 74-78 ; 
 penalties, 78, 79, not excused by good faith, 79, 80. 
 
 VOLUNTEERS, bounties to, 432 (n). 
 
 VOTERS, registration of, laws requiring not ex post facto, 559 (n). 
 
692 INDEX. 
 
 WAGERS, statutes in relation to, 361. 
 
 " WAGON," meaning of, 373 (n). 
 
 WAIVER, of statutory provisions, 86-88, 358, 359 ; of constitutional ditto, 
 88 ; of objection to the constitutionality of a statute, 88 (n) ; of jury trial, 
 495 (n). (See "Jury Trial.") 
 
 WATERS, grants of, 391,392; public, diversion of, not a taking of private 
 property, 455 (n), and see " Public Waters." 
 
 WITNESSES, religious belief of, 514 ; confronting of, provision in U.S. Con- 
 stitution relating to, construed, 548 (n). 
 
 WORDS, when to be taken in their ordinary sense, 220, 224 (n), 225 (n); 
 technical, construction of, 221-223, 224 (n), 225 (n) ; general, how qualified, 
 (see "General Words"); particular, construction of, 371-379. 
 
 " YEAR," meaning of, 358. 
 
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