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 II 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 LAW LIBRARY 

 
 / 
 


 
 I
 
 COMMENTARIES ON STATUTE 
 
 AND 
 
 CONSTITUTIONAL LAW.
 
 tf COMMENTARIES ** 
 
 STATUTE 
 
 AND 
 
 CONSTITUTIONAL LAW 
 
 AND 
 
 STATUTORY AND CONSTITUTIONAL CONSTRUCTION, 
 
 CONTAINING 
 
 AN EXAMINATION OF ADJUDGED CASES ON CONSTITUTIONAL LAW UNDER 
 
 THE CONSTITUTION OF THE UNITED STATES, AND THE CONSTITUTION 
 
 OF THE RESPECTIVE STATES CONCERNING LEGISLATIVE POWER, 
 
 AND ALSO THE CONSIDERATION OF THE RULES OF LAW 
 
 IN THE CONSTRUCTION OF STATUTES AND 
 
 CONSTITUTIONAL PROVISIONS. 
 
 By E. FITCH SMITH, 
 
 COUNSELLOR AT LAW. 
 
 " Ex antecedeniibus et consequentibus fit optima interpretation— 2 Inst. 317. 
 " Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda es 
 
 [Wing's 
 
 " Nova constitutio futuris formani imponere debet non praeleritis."— 2 Inst. 292- 
 
 ALBANY : 
 
 PUBLISHED BY GOULD, BANKS & GOULD, 
 
 LAW BOOKSELLERS, 104 STATE STREET ; 
 
 AND BY BANKS, GOULD & CO. 
 
 144 Nassau Street, New York. 
 
 1S48.
 
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 Entered according to the Act of Congress in the year eighteen hundred and 
 
 forty-eight, 
 
 BY GOULD, BANKS & GOULD, 
 
 in the Clerk's Office of the District Court of the Northern District of New York, 
 
 ALEXANDER B. GOULD, PRINTER, 
 
 No. Ml Nassau Street, New York.
 
 fr 
 
 
 PREFACE. 
 
 In presenting these Commentaries to the public, I have to 
 admit, that owing to circumstances beyond my control, they 
 are not as full, and complete as I could wished to have 
 made them. Many branches of constitutional law within the 
 appropriate range of my subject, remain untouched, and in 
 many instances, those that have been treated of, necesari- 
 ly have been but partially considered. It is to be regret- 
 ted, that a subject of so much importance at the present time, 
 had not received the consideration of an abler mind, or that 
 what has been done by me, had not been executed in a better 
 manner. I am conscious of defects in what I have done, 
 but the defects that do exist in this work, so far as constitu- 
 tional law is concerned, are supplied to a great extent, by 
 the previous able, and distinguished Commentaries of the late 
 Mr. Justice Story. With such a predecessor on any subject, 
 and especially that of constitutional law, the mind naturally 
 shrinks in distrust of its own powers, to travel even at a remote 
 distance, along the path which has been illuminated and ren- 
 dered brilliant by his refined and cultivated intellect. That 
 distrust is heightened, when it is considered, he had great 
 opportunities to acquire much learning on this subject ; hav- 
 ing for many years occupied a seat in the highest, and I hes- 
 itate not to say, the ablest judicial tribunal, which ever adorn- 
 ed the jurisprudence of any nation ; that too, at a period when 
 the constitutional law of a New World, was the theme of fo- 
 rensic discussion, and judicial determination, by a galaxy of 
 forensic and judicial talent, unsurpassed in point of brilliancy, 
 
 C69790
 
 \ 
 
 Vi PREFACE. 
 
 and deep legal acumen, in any era of the world's history. 
 None of those advantages have been enjoyed by me ; all that 
 has been acquired on the subject of constitutional law, has 
 been derived from other sources, in prosecuting the humbler 
 walks of a private professional life. 
 
 The difficulty of grasping, and at the same time conden- 
 sing this subject, presents to the mind, much intrinsic difficul- 
 ty, well calculated to embarrass and perplex an author. The 
 subject itself, is of such a nature, as not to be susceptible of 
 illustration and exemplification, like many common law rules, 
 by a few succinct, terse, elementary principles. Without ex- 
 emplification, and illustration, the elementary principles of 
 constitutional construction, can hardly be so stated as to be 
 clearly understood, or rendered intelligible. Any work on con- 
 stitutional law without this, would be a mere digest, and val- 
 uless to the profession, except as an index of cases. A con- 
 viction of this, has in many instances, induced me to insert 
 at some length, the reasons upon which a particular construc- 
 tion has been founded. This has been done to an extent, 
 which would be unwarranted in a commentary upon almost 
 any other juridical subject. In this country, there has, for a 
 long time, been evinced in our legislative bodies, a propensity 
 to legislate, so much so, that even unconstitutional legislation, 
 or at least, that of doubtful constitutionality, has been carried 
 to an alarming extent. An excess of legislation, is one of 
 the greatest evils which has engrafted itself upon our politi- 
 cal institutions. It has indeed become as a mildew, and 
 blighting curse upon the body politic, and the jurisprudence 
 of the present age. A deep conviction of this fact, has in- 
 duced me, in numerous instances, to interpose objections to par- 
 ticular acts of legislation, and to protest against their validity. 
 I have endeavored to support such objections by such argu- 
 ments and facts, as for the time being, lay within the range 
 of my intellectual powers. Whenever this has been done, 
 whatever views I may have expressed, as the convictions of my
 
 PREFACE. vii 
 
 own mind, I by no means expect such parts of these commenta- 
 ries will be regarded as authoritative, nor do I expect, or claim 
 for them, in this respect, any greater weight, or consideration, 
 than such arguments, as have been adduced in their support, 
 are justly entitled to, when considered by candid and unpreju- 
 diced minds. If my labor in this respect, shall in the least de- 
 gree tend to stay the progress of the political pestilence of exces- 
 sive and unconstitutional legislation, I shall ever regard it the 
 best service I can render to my country. I am frank to admit, 
 1 am an advocate for a strict construction of the constitution, and 
 opposed to any latitudinarian construction of such a solemn 
 instrument. This opposition may sometimes have led me to 
 advance sentiments, and adopt rules of construction, which 
 by some minds, may be regarded as savouring too much of 
 ultraism, or bordering upon impracticability. If so, my apol- 
 ogy is ; — infallability is not the boon of any man or body of 
 men, it pertains not, either to the church or state, to man as 
 man individually, or to men collectively. In short, to "err 
 is human." If in the particulars above stated, 1 have erred, 
 I think I may console myself with the reflection, that my er- 
 rors, to say the least of them, are on the safe side, and until 
 a change shall take place in the moral constitution of man- 
 kind, those errors will be less likely to be copied than they 
 would have been, if the sentiments I have advanced and ad- 
 vocated, had been in more perfect unison with a construction, 
 favorable to an aggression upon those private rights, around 
 which, it was the design of the framers of our fundamental laws 
 to throw the broad shield of the constitution. While on the 
 one hand, I have designed that these commentaries should 
 not be a mere compilation of constitutional law, nor a simple 
 digest of cases, on the other, I do not claim for them, much 
 originality. To be original upon such a subject, since the days 
 of a Marshall, and his illustrious compeers, would at least be 
 somewhat difficult for any mind, and would be a serious fault 
 in a commentator. Neither an aspiration for fame as an au-
 
 viii PREFACE. 
 
 thor, nor an estimate of my own powers, has as yet induced 
 a belief, that the attainment of such an end is possible for 
 me in this department of juridical science. No attempt there- 
 fore, has been made at such an acquisition, neither do I pos- 
 sess the gift, even if I had the inclination. If, so far as an- 
 notation is concerned, the meed of accuracy shall be awarded 
 to me, by my professional brethren, my highest aspirations as 
 an author will be fully satisfied. If in this respect I have 
 done any service to the legal profession, or to those clothed 
 with the sacred trust of legislative, or judicial authority, I shall 
 have attained the only reward I anticipated in the undertaking. 
 I entered upon this work, with much distrust, and many mis- 
 givings, anticipating at the outset, much difficulty in conden- 
 sation, to an extent, which would admit of confining myself 
 to a single volume. In every step of my progress, I have found 
 that difficulty increased, as every constitutional question opens 
 to the mind so many, and such varied trains of thought, sus- 
 ceptible of so many different views, each tending to a different 
 conclusion, each demanding a passing notice in the prosecution 
 of the subject. In many instances, questions have arisen, 
 which have elicited such and so great contrariety, as well as 
 conflict in opinion, as that a review of such opinions has been 
 deemed indispensable. 
 
 The first five chapters of this work, are confined to a suc- 
 cint review of the origin and history of legislation. In this 
 part of my undertaking, I have been unable to take but a very 
 limited view of a subject, which, in itself, affords an appropri- 
 ate theme for many volumes. The sixth chapter contains no- 
 thing either original or expository. It has been inserted sim- 
 ply for the purpose of reference. In the perusal of this work, 
 it may be entirely omitted, as it stands disconnected with the 
 train of thought pursued either in the previous, or in the sub- 
 sequent chapters. The seventh chapter is devoted to a con- 
 sideration of the question, as to the extent of legislative au- 
 thority, independent of any constitutional restriction upon legis-
 
 PREFACE. ix 
 
 Iative power, or in other words, a discussion of the doctrine 
 of the omnipotence of parliament, or of the legislature, when 
 applied to our legislative bodies, under our written constitu- 
 tions, and peculiar forms of government. I would here re- 
 mark, since that chapter was put to press, I have been fur- 
 nished with a manuscript copy of the opinion of Mr. Justice 
 Barculo, in the case of The People ex rel. Fountain et al. v. 
 The Board of Supervisors of Westchester County, which I 
 understand, is to be published in the next volume of Barbour's 
 Supreme Court Reports. The learned judge in that case, 
 fully sustains, and forcibly illustrates the doctrine, that under 
 our form of government, there are limits to legislative au- 
 thority, irrespective of any constitutional restrictions upon leg- 
 islative power. I would call the attention of the profession 
 to that case, in connection with the subject considered in this 
 seventh chapter. The two succeeding chapters, are devoted 
 to the consideration of constitutional restrictions upon legisla- 
 tive power contained in the federal and state constitutions, and 
 the construction which has been put upon such restrictive pro- 
 visions. Those restrictions have been considered in three dif- 
 ferent aspects. 1st. Those contained in the federal constitu- 
 tion, and which are applicable to the government created by 
 that instrument. 2d. Those contained in the same instru- 
 ment which are applicable to the state legislatures. 3d. Those 
 contained in the constitutions of the respective states, and 
 which are applicable only to the legislature of the. particular 
 state, by whom the constitution was adopted. The third sub- 
 division, so far as I am aware, has not as yet, been the dis- 
 tinct theme of any American commentator on constitutional 
 law. 1 have therefore devoted more time to the consideration 
 and discussion of that subject, than to any other branch of con- 
 stitutional law. In surveying, as 1 have done for the first time, 
 this new field as a commentator, I have taken greater liberty 
 in presenting my own views, and in reviewing those of others, 
 
 than I otherwise should have done. Some of the questions 
 
 B
 
 X PREFACE. 
 
 which have been discussed and reviewed by me, have nevei 
 as yet, been the subject of judicial determination, and there- 
 fore cannot be regarded as settled. Viewing them in that as- 
 pect, I have deemed it not inappropriate to present my views, 
 to the end, if the same questions shall hereafter, come up for 
 adjudication, they may be thrown into the scale in common 
 with the opinions of others. Whether they will stand the test 
 of the judicial crucible, I pretend not to affirm, nor can I, 
 with any degree of certainty, predict. In the consideration 
 of constitutional restrictions upon legislative power, under the 
 federal constitution, I have discussed the questions arising un- 
 der the following heads to wit : The constitutionality of laws 
 impairing the obligation of contracts; Expost facto laws; 
 laws which take private property for public use ; laws regu- 
 lating commerce ; laws affecting the right of trial by jury ; laws 
 imposing taxes; statutes of limitations which bar actions upon 
 past disseisins, and laws relating to imports and duties. The 
 same general heads have also been considered, whenever they 
 have arisen under any of the provisions contained in the respective 
 state constitutions. I have also considered and discussed, the 
 absolute, and qualified restrictions upon legislative power con- 
 tained in instruments of the latter class, as well, those which 
 relate to the mode of exercising legislative authority in given 
 cases, as those of an absolute character, affecting the right to an 
 exercise of legislative functions in given instances. Under this 
 head will also be found a consideration of the constitutional- 
 ity of laws, which are retrospective, having a retroactive ef- 
 fect, laws divesting antecedently vested rights, judicial acts 
 of legislation, also remedial acts curing defects in antecedent 
 transactions, or in conveyances defectively executed. The 
 remaining chapters are devoted to the consideration of the rules 
 for the construction of statutes. There is no American work 
 on this subject. I have not, except in a few instances, and 
 that for a short time only, had access to the English work of 
 Mr. Dwarris, on the same subject. Hence I have been unable
 
 PREFACE. xi 
 
 to make that my text book, or to refer to it as often as I 
 otherwise should have done. I have however, made frequent 
 extracts from it, as I have from time to time, found them in 
 other works, and in judicial decisions. I have to acknowledge 
 my indebtedness to that learned author, for all the reader will 
 find contained in my tenth chapter, on the subject of the boun- 
 daries of legislative and judicial construction. I have had to 
 mark out, and pursue my own order of arrangement, and have 
 endeavored to annotate and illustrate in most instances, Ameri- 
 can authorities, deeming them more advantageous to my rea- 
 ders, and as affording in themselves better and more satisfac- 
 tory illustration of the statute law of the American states. The 
 elementary rules of construction, are few and simple, yet not- 
 withstanding they are so, the application of those rules to given 
 cases, arising out of the complex provisions as well as variety 
 of statutory enactments, is not without much intrinsic difficul- 
 ty. I am aware, many minds regard the subject matter of this 
 branch of my work, too trivial to demand consideration ; too 
 plain to need elucidation. Not imfrequently have I had the re- 
 mark made to me, that this branch of my subject was unworthy 
 a moment's consideration, as it was perfectly familiar to every 
 tyro in the legal profession. Such remarks have fallen from 
 those for whom I have great respect, and ought perhaps, to 
 have deterred me from prosecuting my undertaking. I have 
 however assumed, that it does not necessarily follow, because 
 the elementary rules of any science, or of any body of laws are 
 few, that they are not, notwithstanding, involved in much that 
 is intricate, as well as difficult in their application. The com- 
 mon law affords a striking illustration of the truth of this re- 
 mark, and so too do the laws pertaining to the natural sciences. 
 The law of gravitation for instance, has but one single elemen- 
 tary rule, pervading the entire system of worlds, and extending 
 through the whole range of matter, yet it would be a work of 
 great intrinsic difficulty, to analyze and arrange, even that sin- 
 gle rule, and apply it to every complex and variegated combi-
 
 Xii PREFACE. 
 
 nation of material substances, so as, at once to discover the pre- 
 cise extent, or degree of its application, its consequences and 
 effects in a given case. Still more difficult would it be, to com- 
 bine in any one single proposition, or even in a class of general 
 propositions, an accurate and complete definition and illustration 
 of this rule ; so plain, simple, and manifest, as that any mind 
 of ordinary capacity, could at once, from such definition, grasp 
 all that pertains to that intricate, complicated, wonderful law of 
 the natural world. The same may be said of those rules, 
 which pertain to all other departments of human science. If a 
 single rule is involved in much which is intricate, certain it is, 
 that a multiplicity of rules, pervading an entire system of laws, 
 cannot, and ought not, to be regarded as undeserving of a criti- 
 cal and minute investigation and analysis. How far T have 
 succeeded in analyzing and illustrating the subject I have trea- 
 ted of, it does not become me to judge. I am deeply sensible 
 this work must stand or fall solely upon its own intrinsic mer- 
 its. It has no preconceived public sentiment in its favor. It 
 is unheralded by the public press, and is probably unexpected 
 by the great mass of the legal profession and its author to 
 a great extent unknown to them. It is submitted to the pro- 
 fession with much distrust as to its merits, and under a con- 
 sciousness of its numerous defects. 
 
 E. Fitch Smith. 
 New York, Oct. 1, 1848.
 
 TABLE OF CONTENTS, 
 
 CHAPTER I. 
 
 Origin and History of Legislation among the Ancient Govern- 
 ments, ...... 1 
 
 CHAPTER II. 
 
 Origin and History of Legislation in England, . . 22 
 
 CHAPTER III. 
 Origin and History of Legislation in the Colony of Virginia, . 45 
 
 CHAPTER IV. 
 
 Origin and History of Legislation in the Colonies of New Plymouth 
 
 and Massachusetts Bay, .... 55 
 
 CHAPTER V. 
 Origin and History of Legislation in the Connecticut Colony, . 80 
 
 CHAPTER VI. 
 
 The Legislative Power of the States, and the Bills of Rights of the 
 
 respective States, .... 107 
 
 CHAPTER VII. 
 
 Of Legislative Authority irrespective of any Constitutional Restric- 
 tions upon Legislative Power, and a consideration of the doctrine 
 of the Omnipotence of Parliament, . • • 236
 
 xiv TABLE OF CONTENTS. 
 
 CHAPTER VIII. 
 
 Constitutional restrictions upon Legislative Power, under the Con- 
 stitution of the United States: 1st. As applicable to the Federal 
 Government ; and, 2d. As applicable to State Governments ; 
 and the construction put upon such restrictive clauses, . 310 
 
 CHAPTER IX. 
 
 Constitutional restrictions upon Legislative Power under the Con. 
 stitutions of the respective States, and the construction of such 
 restrictive clauses, .... 417 
 
 CHAPTER X. 
 
 Of Legislative and Judicial Interpretation, . . 577 
 
 CHAPTER XL 
 Of the Division, Duration, Qualities, and Incidents of Statutes, . 594 
 
 CHAPTER XII. 
 
 Of Interpretation and Construction, including the question as to the 
 
 construction of particular words, . . . 600 
 
 CHAPTER XIII. 
 Of Contemporaneous Exposition, .... 739 
 
 CHAPTER XIV. 
 Of Statutes in Pari Materia, .... 751 
 
 CHAPTER XV. 
 
 Of Affirmative and Negative Statutes, . . . 771 
 
 CHAPTER XVI. 
 
 Of Equitable Construction of Statutes, . . . 814 
 
 CHAPTER XVII. 
 
 Of the Equitable Construction of Penal Statutes, . . 839 
 
 CHAPTER XVIII. 
 Of the Construction of Penal Statutes, . . '. 854
 
 TABLE OF CONTENTS. XV 
 
 CHAPTER XIX. 
 
 Of the Repeal of Statutes, .... 879 
 
 CHAPTER XX. 
 
 Of Public and Private Statutes, . .913 
 
 CHAPTER XXL 
 
 Of the proofs of the Existence of Statutes, . . . 935
 
 ERRATA. 
 
 Tn many instances the author has been prevented from revising the proof sheets ; 
 hence, owing to defects in manuscript, several important typographical errors, af- 
 fecting in some cases, the grammatical sense, and in others, substituting erroneous 
 words ; have found their way into this work. The reader is respectfully requested 
 to note them before the perusal. They will be found as follows, viz : 
 
 On page 38, in the 6th aud 7th lines from the bottom of the page, for the Latin 
 quotation from Cicero, read, " Turn enim magistratum non gerebat is, qui ceperat 
 si patres auctores non erant facti." 
 
 On page 258, for " truths" read truth; for "prevailing ," read pervading. 
 On page 302, in the 6th line from the bottom of the page, for " it," read are. 
 In the same line, and 5th line from bottom, for " in itself," read per se. 
 
 On page 306, in the 6th line of § 169, for "prospective," read retrospective ; 
 and in the 5th line of § 1 70, for "prospective," read retrospective. 
 
 On page 308, in thejipd line of § 172, for " prospective," read retrospective. 
 On page 446, in the 14th line from the bottom of the page, for " influences" 
 read influence. 
 
 On page 523, in the 8th line of § 362, after the word " legislature," insert the 
 word on. 
 
 On page 577, in the 9th line of § 404, for " constitutes," read constitute. 
 
 " 581, in the 5th line of § 412, for " dcfenda" read defend. In the 7th 
 line of the same section, for " que' il," read qu' il. 
 On page 588, in § 419, for " (a)," read (c.) 
 
 " 634, in the last line of § 490, for " materii," read materia. 
 " 651, in the 1 1th line of § 505, for " extum," read textum. In the 1st 
 line of § 506, for " demonstration on," read demonstrate non. 
 
 On page 666, in the 1st line of § 523, after the word " construed," strike out the 
 word " so." 
 
 On page 742, in the 3d line from the bottom of § 624, for " are themselves," read 
 is an ; and in the same line, for " interpretations," read interpretation. In the 2d 
 line from the bottom of the same section, for the word "might," read may. 
 On page 809, in 6th line from the top, for " trustee," read trustees. 
 
 " 813, in 3d " " for " inapplible," read inapplicable. 
 
 " 821, in 7th " " for "contract," read context. 
 
 " 821, in 6th line of § 703, for " interest," read intent. 
 
 " 864, in 12th line from bottom, for " could court not," read court could 
 
 not. 
 " 933, in 5th line of § 820, for " hereon," read thereon. In the 3d line 
 from the bottom of the same page, for " a contract," read contracts. 
 
 There are numerous errors in punctuation, not noted here, which the reader will 
 readily detect.
 
 STATUT E 
 
 CONSTITUTIONAL LAW, 
 
 CONSTRUCTION OF STATUTES. 
 
 CHAPTER I. 
 
 ORIGIN AND HISTORY OF LEGISLATIVE AUTHORITY. 
 
 § 1. Of all kind Sand degrees of authority which man 
 exercises over man that of legislation is the most august 
 and supreme. A power of legislation, that is, the autho- 
 rity of enacting not only temporary and occasional or- 
 dinances, but durable and general laws, is, in the hands 
 of a single person an alarming excess of dominion ; hence 
 in almost all modern governments, the sovereign power 
 is divided among different and co-ordinate departments 
 of government. 
 
 § 2. The author of Parliamentary History has said 
 that in all nations in the world hitherto known, and in 
 all ages, the laws they were governed by, were first made 
 by the advice and consent of general assemblies, and then 
 promulgated to the whole community. In this he is 
 probably mistaken ; for such was not the character of 
 the power exercised by the ancient Roman emperors in 
 their lex edictalis, though they avowedly claimed it by a 
 
 1
 
 2 ORIGIN AND HISTORY OF [c'HAI\ I. 
 
 grant from the people, conveyed in that instrument called 
 " Lex Rcgice" and containing a formal surrender of their 
 liberties, which had long before been extorted from them. 
 This Roman instance of a single power of enacting stable 
 and universal laws was the most absolute sovereignty 
 that can in -any country be actually traced. 
 
 § 3. Gibbon is of the opinion that the primitive gov- 
 ernment of Rome was composed of an elective king, a 
 council of nobles, and a general assembly of the people. 
 War and religion were administered by the supreme 
 magistrate, and he alone proposed the laws, which were 
 debated in the senate, and finally ratified or rejected by 
 a majority of the votes in the thirty curia, or parishes of 
 the city. From Augustus to Trajan the modest Caesars 
 were content to promulgate their edicts in the various 
 characters of a Roman magistrate, and in the decrees of 
 the senate. Hadrian appears to be the first who as- 
 sumed, (and without disguise,) the plenitude of legisla- 
 tive power. The same policy was embraced by suc- 
 ceeding monarchs, and, according to the harsh meta- 
 phor of Tertullian, "the gloomy and intricate forest of 
 ancient laws were cleared away by the axe of royal 
 mandates and constitutions." During four centuries, from 
 Hadrian to Justinian, the public and private jurispru- 
 dence was. moulded by the will of the sovereign. The 
 origin of imperial legislation was concealed by the dark- 
 ness of ages and the terrors of armed despotism ; and a 
 double fiction was propagated by the servility, or per- 
 haps the ignorance of the civilians who basked in the 
 sunshine of the Roman and Byzantine courts. To the 
 prayer of the ancient Csesars, the people or the senate 
 had sometimes granted a personal exemption from the 
 obligation and penalty of particular statutes ; and each 
 indulgence was an act of jurisdiction exercised by the 
 republic over the first of her citizens. This humble 
 privilege was at length transformed into the prerogative
 
 CHAP. I.] LEGISLATIVE AUTHORITY. 3 
 
 of a tyrant ; and the Latin expression of " released from 
 the laws," was supposed to exalt the emperor above all 
 human restraints, and to leave his conscience and reason 
 as the sacred measure of his conduct. A similar depen- 
 dence was implied in the decrees of the senate, which, 
 in every reign, defined the titles and powers of an elec- 
 tive magistrate. But it was not before the ideas, and 
 even the language, of the Romans had become corrupted, 
 that a royal law, and an irrevocable gift of the people 
 were created by the fancy of Ulpian, or more probably 
 Tribonian himself; and the origin of imperial power, 
 though false in fact, and slavish in its consequences, was 
 supported on a principle of freedom and justice. " The 
 pleasure of the emperor had the vigor and effect of law, 
 since the Roman people, by the royal law, had transfer- 
 red to their prince the full extent of their own power 
 and sovereignty. The will of a single man, of a child 
 perhaps, was allowed to prevail over the wisdom of ages, 
 and the inclinations of millions ; and the degenerate 
 Greeks were proud to declare, that in his hands alone 
 the arbitrary exercise of legislation could be safely depo- 
 sited. The rescripts of the emperor, his grants and de- 
 crees, his edicts and pragmatic sanctions, were subscribed 
 in purple ink, and transmitted to the provinces as gene- 
 ral or special laws, which the magistrates were bound to 
 execute, and the people to obey. But as their number 
 continually multiplied, the rule of obedience became each 
 day more doubtful and obscure till the will of the sove- 
 reign was fixed and ascertained in the Gregorian, the 
 Hermogenian, and the Theodosian codes. 
 
 § 4. In eastern countries, the ancient and established 
 seat of despotism, the laws, properly so called, seem for 
 the most part to have been immutable, by whatever 
 authority they were originally framed, and the decrees of 
 the monarch were chiefly perhaps of a temporary and 
 occasional kind ; and limited like modern royal proclama-
 
 4 ORIGIN AND HISTORY OF [ciIAP. I. 
 
 tions on some prior foundation, which gave them their 
 validity. It was to the fact of the immutability of the 
 decrees of Persian kings that the wicked enemies of the 
 pious Daniel appealed, when the impious Nebuchadnez- 
 zar would have eluded the force of that nefarious decree 
 against which Daniel so nobly dared to rebel. 
 
 § 5. The history of the ancients affords many models 
 of varied forms of government, as well as many sound 
 and enlightened views as to the nature and true design 
 of all human government. The government of Crete 
 was at first monarchical, of which Minos has left us a 
 perfect model. This enlightened statesman held, that 
 the king had a supreme power over the people, but the 
 laws supreme power over him. He had an absolute 
 power to do good, but his hands were tied up from doing 
 evil. That the laws entrust the people in his hand as 
 the most sacred of deposits, upon the condition that he 
 shall he a father to his subjects. That the same laws 
 require that a single man by his wisdom, and moderation 
 shall constitute the felicity of an infinite number of sub- 
 jects ; not that the subjects by their misery and abject 
 slavery shall be subservient to the gratification of the 
 pride and law passions of a single man. That it is not 
 for himself that God had made him king ; he is only so 
 for the service of the people. He owes to them his 
 whole time, care and affection, and is worthy of the 
 throne only so far as he forgets himself, and devotes him- 
 self to the good of the public. In Crete, however, the 
 authority of the king was of a very limited duration, and 
 in accordance with Minos's intentions it gave place to a 
 republican form of government. The senate, composed 
 of thirty senators, formed the public council. In that 
 assembly the public affairs were examined, and resolu- 
 tions taken, but they were of no force till the people had 
 given them their approbation and confirmed . them by 
 their suffrages. The magistrates, to the number of ten,
 
 GHAP. I.] LEGISLATIVE AUTHORITY. 5 
 
 established for the maintaining good order, and therefore 
 called " Cosmi" held the two other bodies of state in 
 check and preserved the balance between them. In time 
 of war the same persons commanded the army. They 
 were chosen by lot, but only out of certain families. 
 Their offices were for life, and they were not accountable 
 to any one for their administration. Out of this company 
 the senators were elected. 
 
 § 6. In most of the states of Greece, the primordial 
 ground of the government was that of a monarchy, that 
 being the most ancient, and the most generally received 
 plan, sanctioned and commended as it was by Plato, as 
 the most proper to maintain peace and concord, and the 
 most in accordance with the model of paternal authority. 
 The severity of the monarch, or those who usurped the 
 throne, the severity of masters, and the insurrections of 
 the people, produced revolutions in those states, and en- 
 kindled a violent desire of liberty, and brought about a 
 general change of government ; and the ancient monar- 
 chical power yielded to a more republican form of gov- 
 ernment, as diversified in its features as there were 
 different cities ; each moulding and adapting to the spirit 
 and genius of its own population. However there still 
 remained some remnant of a monarchal government; 
 enough to excite the ambition of those who loved seats 
 of honor and power, and to excite in them a desire to 
 become the masters of the people. In almost all the 
 states of Greece individuals without any pretence of 
 right to the throne, or fitness for the place, strove to ad- 
 vance themselves to it through intrigue, treachery, and 
 violence, without regard to their own merits, or the su- 
 premacy or respect due to the law, and irrespective of 
 the public good, seized upon and exercised the sovereign 
 authority with a despotic empire and arbitrary sway. 
 In order to keep up and sustain authority thus usurped 
 in the outset, in the midst of distrust and fear on their
 
 6 ORIGIN AND HISTORY OF' [ciIAP. I. 
 
 part of the populace, and on the other hand, on the part 
 of the people of the usurper, they were induced to sacri- 
 fice to their own security those whom merit, rank, wealth, 
 zeal for liberty, or love of their country rendered obnox- 
 ious to a suspicion of a tottering government, hated by all 
 and respected by none. These usurpations and acts of 
 cruelty gave to them, and justly too, the appellation of 
 tyrants, and furnished ample ground, and opened a wide 
 field for declamation by the orators of that age, and origi- 
 nated much of the tragical representations of the stage. 
 
 § 7. Among the cities of Greece, Lacedemon and 
 Athens were the most conspicuous ; these peculiarly dis- 
 tinguished themselves, and acquired and maintained 
 authority and superiority over other cities ; and their 
 genius, character, and government has excited the won- 
 der and admiration of patriots and statesmen, in all ages 
 since the record of their history has been the subject of 
 contemplation and the theme for philosophical specula- 
 tion. 
 
 § 8. The monarchical government of Sparta, anterior to 
 the age of Lycurgus, and at the time his sagacity, genius, 
 and philosophical mind remodeled it, had fallen into a 
 most distracted state. The authority both of the king 
 and laws were absolutely despised, contemned, and dis- 
 regarded, insomuch that it has been justly said, "No 
 curb was strong enough to restrain the audaciousness of 
 the people, which every day increased more and more." 
 At this juncture of its affairs Lycurgus devised a plan 
 for a reformation of their government. To qualify him- 
 self for the task, he acquainted himself with the different 
 manners of other nations, and consulted the most able 
 and experienced persons in the art of government. He 
 visited the island of Crete, whose laws were famous for 
 their harshness and severity, and studied the laws and 
 customs of Asia, and from thence visited Egypt, the 
 cradle of science, wisdom, and good counsels.
 
 CHAP. I.J LEGISLATIVE AUTHORITY. 7 
 
 The new form of government which Lycurgus in- 
 troduced into Sparta may be reduced to three principal 
 institutions. The first, greatest, and most considerable 
 was that of the senate, which is the only one I shall 
 mention, except as subsequently modified. This was 
 intended to temper and balance the too absolute power 
 of the king, by an authority of equal weight and influence 
 with theirs, and this became the principal support and 
 preserving power of the state. This was deemed ne- 
 cessary, on the ground that the former system was ever 
 unsteady and tended sometimes toward tyranny, by the 
 violent and oppressive proceedings of the kings, and at 
 other times towards democracy by the excessive and 
 undue power and influence of popular will. It was 
 thought that the senate would serve as a sort of coun- 
 terpoise to both, and would keep the state in a due equi- 
 librium, and preserve it in a firm and steady situation. 
 The twenty-eight senators in the accomplishment of this 
 end to secure such a result must have sided with the 
 king when the people were grasping at too much power, 
 and must have espoused the interest of the people when- 
 ever the kings attempted to carry their authority too far. 
 The council consisted of thirty persons including the 
 two kings. Lycurgus having thus tempered the govern- 
 ment, those that came after him thought the power of 
 the senate too strong and absolute, and as a check upon 
 it they devised the authority of the Ephori, which was 
 done in the reign of Theopompus, about 130 years after 
 Lycurgus. This was composed of five in number, chosen 
 annually out of the people, and in that respect resembled 
 the tribunes of the people among the Romans. The 
 authority of the Ephori extended to arresting and im- 
 prisoning of their kings ; thus it will be perceived that 
 the Spartan government was not purely a monarchal, 
 nor was it a democracy. The nobility had a great share 
 in it, yet the people were not entirely excluded. It has
 
 8 ORIGIN AND HISTORY OF [cHAP. I. 
 
 been said by a historian of great renown, " each part of 
 this body politic in proportion as it contributed to the 
 public good found in it their advantage, so that in spite 
 of the natural restlessness and inconstancy of man's 
 heart, which is always thirsting after novelty and change, 
 and is never cured of its disgust to uniformity, Lacede- 
 mon persevered for many ages in the strict observance 
 of her laws." 
 
 Plutarch, in his life of Lycurgus, says, that Plato, Dio- 
 genes, Zeno, and all those who have treated of the esta- 
 blishment of a political state of government, took their 
 plans from the republic of Lycurgus, with this difference, 
 that they confined themselves wholly to words and the- 
 ory, but Lycurgus, without dwelling upon ideas and 
 speculative projects, did really and effectually institute an 
 inimitable polity, and form a whole city of philosophers. 
 In order to succeed in this undertaking, and to establish 
 the most perfect form of a commonwealth that he could, 
 he melted down as it were and blended together what 
 he found best in every kind of government and most 
 conducive to the public good. Thus tempering one spe- 
 cies with another, and balancing the inconvenience to 
 which each of them in particular is subject, with the ad- 
 vantage which resulted from their being united together. 
 Sparta had something of the monarchal form of govern- 
 ment in the authority of her kings. The council of 
 thirty, otherwise called the senate, was a true aristocracy, 
 and the power vested in the people of nominating the 
 senators resembled a democratic government. The in- 
 stitution of the Ephori afterward served to rectify what 
 was amiss in those previous establishments, and to sup- 
 ply what was defective. Plato thought the institution 
 of the senate was advantageous both to the kings and to 
 the people, as by this means the law became the only 
 supreme mistress of the kings, and they never became 
 tyrants over the laws.
 
 CHAP. I. | LEGISLATIVE AUTHORITY. 9 
 
 § 9. The government of Athens was not as permanent 
 or uniform as that of Sparta, and often yielded to the 
 exigencies of the times. It was originally, and for a long 
 period, governed by kings, and afterward by archons, 
 assumed entire liberty, which gave place for some years 
 to the tyrannic power of the Pisistratida, but was subse- 
 quently re-established, and continued to subsist until the 
 defeat in Sicily and the conquest of the city by the La- 
 cedemonians. Its inhabitants were then subjected to 
 the thirty tyrants, whose usurpation and tyranny induced 
 the people soon to throw off the yoke and again to assert 
 and resume their liberty, and to maintain the same until 
 after many years of contest and struggle the Roman 
 arms subdued Greece and reduced it to a Roman province. 
 
 Solon laid the foundation of their popular government, 
 which consisted of the council or senate of five hundred, 
 the assemblies of the people, and the different tribunals for 
 the administration of justice. Solon was not however 
 the originator of this plan, for it was devised by Theseus 
 long before him, but the former adopted it and carried it 
 into execution. After the union of the twelve towns 
 into one city, he divided the inhabitants into three sepa- 
 rate bodies, the nobility, the laborers or husbandmen, 
 and the citizens. To the first he committed the religious 
 affairs and offices of the nation. The government did 
 not become a popular one until the establishment of the 
 nine archons, whose authority only lasted for one year, 
 having been reduced from that of ten. Solon's institu- 
 tions gave to the people great share and authority in the 
 government. Appeals might be brought to their tribunal 
 in all cases, and they decided upon the cancellation of 
 old laws and the enactment of new ones. Their histo- 
 rian thus succinctly describes their authority and form 
 of procedure in the enactment of those laws : " In order 
 that their determination should be made with more wis- 
 dom and maturity, Solon instituted a council composed of 
 
 2
 
 10 ORIGIN AND HISTORY OK [CHAI\ I. 
 
 four hundred senators, one hundred out of each tribe, which 
 were then four in number, and they proposed and diges- 
 ted the affairs which were to be laid before the people. 
 Clisthenes, about one hundred years after Solon, having 
 increased the number to ten tribes, augmented that of 
 the senators also to five hundred, and each tribe sup- 
 plying fifty. This was called the council or senate of 
 five hundred. They were chosen by lot, in which they 
 made use of white and black beans, which were mingled 
 and shaken in an urn, and each tribe gave in the names 
 of those who aspired to that trust, and had the revenue 
 required by the laws to qualify them for it. None could 
 be admitted under the age of thirty. After enquiry 
 made into the manners and conduct of the candidate, he 
 was made to take an oath, whereby he engaged to give 
 at all times the best counsel he could to the people, and 
 never to depart in the least from the tenor of the laws. 
 The senate assembled every day except upon days ap- 
 pointed for festivals. Each tribe in its turn furnished 
 those who were to preside in it, called Prytanes, and 
 this rank was decided by lot. This presiding continued 
 thirty -live days, which being reckoned ten times amounts 
 to the number of days except four of the lunar year, follow- 
 ed at Athens. This time of the presiding or prytanism, 
 was divided into five weeks, regard being had to the five 
 tens of the prytanes drawn by lot presided, each three 
 days, and denominated JI P oc\ P ol that is, President. He 
 who was so for three days, presided in the assembly of 
 the senators, and in that of the people. He was charged 
 with the public seal, and also with the keys of the cita- 
 del and treasury. The senators, before they assembled, 
 offered a sacrifice to Jupiter and Minerva, under the ad- 
 ditional appellation of givers of good counsels, to implore 
 from them the prudence and understanding necessary to 
 form wise deliberations. The president proposed the 
 business which was to be done in the assembly. Every
 
 CHAP. 
 
 I.] LEGISLATIVE AUTHORITY. 11 
 
 one gave his opinion in his turn, and always standing. 
 After a question had been settled it was drawn up in 
 writing, and read with a loud voice, and each senator 
 then gave his vote by scrutiny by putting a bean into the 
 urn. If the white beans carried it the question passed; 
 otherwise it was rejected. This sort of decree was in 
 the nature of a preparatory resolution, as yet not having 
 the force of a permanent law, and was called *^«j/«e 
 or TipojSovXevya It was afterward laid before the assem- 
 bly of the people where if it was received and ap- 
 proved, it had the force of a law — if not, its authority 
 subsisted only for one year. This shows with what 
 wisdom Solon established this council to inform and di- 
 rect the people, to fix their inconstancy, to check their 
 temerity, and to impart to their deliberations a prudence 
 and maturity not to be expected in a confused and tu- 
 multuous assembly, composed of a great number of citi- 
 zens, most of them without education, capacity, or much 
 zeal for the public good. The reciprocal dependency 
 and mutual concurrence of the two bodies of the state, 
 which were obliged to lend each other their authority, 
 and remained equally without force when without union, 
 and a good understanding were besides a method judi- 
 ciously contrived for supporting a wise balance between 
 the two bodies. The people not being able to enact 
 anything without it being first proposed and approved by 
 the senate, nor the senate to pass any decrees into a law 
 until it had been ratified by the people. The kings were 
 succeeded by the archons, and their authority rendered 
 democratic in their main features, prior to the wise le- 
 gislation of Solon, at the time he was chosen archon 
 and was constituted sole legislator and supreme arbiter, 
 with the unanimous consent of all parties ; Athens was 
 convulsed and distracted with as many different parties 
 as there were different sorts of inhabitants in Attica, 
 Those that inhabited the mountains were partial to a po-
 
 12 ORIGIN A\D HISTORY OP [CHAP. I. 
 
 pular government. Those of the low land desired an 
 oligarchy, whilst those that dwelt upon the sea-coast de- 
 sired a mixed government ; whilst a fourth party, consis- 
 ting of the poor, were determined to choose themselves 
 a chief who should deliver them from the oppression of 
 their rich creditors, whose debts they were unable to 
 discharge. His mind and genius had to mould the go- 
 vernment so as to meet the views, or reconcile the con- 
 flicting interests of all those varied factions. The suc- 
 cess that attended this effort of this master spirit of the 
 age, has excited the admiration, and elicited the eulogium 
 of all succeeding ages. After the rebuilding of Athens 
 in succeeding times under Aristides, the Athenians strove 
 to introduce an absolute democracy, and a decree was 
 then passed by which it was ordained that the offices of 
 government should be open to all the citizens, and that 
 the archons, who, as has been seen, were the chief ma- 
 gistrates of the commonwealth, and who had hitherto 
 been selected out of the richest of its members, should 
 for the future be elected indifferently from the general 
 body of the Athenians, without distinction. Of the as- 
 semblies of the people, these were of two sorts, the one 
 ordinary and fixed to certain days, for which no special 
 summons was given ; the other extraordinary or special, 
 according- to the different occasions that arose. In them 
 all citizens, the poor as well as the rich, had an equal 
 right of suffrage. All the great affairs of the republic 
 were discussed in these assemblies. In them new laws 
 were proposed and old ones amended or abrogated. All 
 that related to religion and the worship of the gods was 
 here examined ; magistrates, generals, and officers cho- 
 sen ; peace or war conducted, treaties and alliances con- 
 cluded, freedom of the city granted, rewards and honors 
 decreed to those deserving of them, punishments ordain- 
 ed to violators of the law, and in fine, justice admin is-
 
 CHAP. I.] LEGISLATIVE AUTHORITY. 13 
 
 tered, and judgment pronounced upon the most important 
 affairs. 
 
 § 10. Among all the nations of the earth none were 
 more renowned for wisdom and politics than the Egyp- 
 tians. This was the source from whence arts and science 
 were derived. To this fountain-head it was that the 
 most illustrious men of the ancient countries resorted in 
 quest of human knowledge, and for the purpose of study- 
 ing and copying its customs, manners, and laws, and 
 cultivated an acquaintance with its philosophy and arts. 
 Homer, Pythagoras, Plato, Mynoz, and even the great le- 
 gislators Lycurgus and Solon, travelled thence to complete 
 their studies, and draw from that fountain whatever was 
 most rare and valuable in every kind of learning. The 
 Egyptians were by nature grave, serious, and contempla- 
 tive ; and sought to study out the true ends of govern- 
 ment, and to make life easy, and their people happy. 
 The kingdom was hereditary, but according to Diodorus 
 the Egyptian princes conducted themselves in a manner 
 different from what is usually seen in other monarchies, 
 where the prince acknowledges no other rule than his 
 own arbitrary will, and pleasure. But their kings were 
 under greater restraints than their subjects. Each mon- 
 arch had certain laws enacted by predecessors, and di- 
 gested among what was denominated their sacred books. 
 The force of ancient customs w T as so strongly felt and 
 exerted such a controlling influence, and things flowed 
 so constantly in the same channel, that few new decrees 
 or laws were originated, insomuch that a new custom in 
 Egypt was a kind of miracle. Every thing was so well 
 and firmly settled by ancient custom, that they never 
 sought to live in a different way from their ancestors : 
 hence there was neither occasion or necessity for much 
 legislation. The principal dnty of the sovereign power 
 of the state was the administration of justice to their 
 subjects ; therefore the kings of Egypt cultivated more
 
 14 ORIGIN AND HISTORY OF [CHAP. I. 
 
 immediately this duty and sought the ease and comfort 
 of individual subjects and the prosperity and happiness 
 of the state; being deeply impressed with the belief 
 founded as it was in a philosophy no less sound than 
 sagacious, that without this, the state would be but a 
 herd of public robbers rather than a kingdom, should the 
 weak be unprotected, and the powerful enabled by their 
 riches and influence to commit crimes with impunity. 
 Thirty judges were selected out of their principal cities 
 which formed a body for dispensing justice through the 
 whole kingdom. The prince in filling these vacancies 
 chose such as were most renowned for their honesty, and 
 put at their head him who was most distinguished for 
 knowledge, and love of the laws, and was had in the 
 most universal esteem. 
 
 To guard against surprise affairs were transacted by 
 writing in the assemblies of the judges. The president 
 of this senate wore a collar of gold set with precious 
 stones, at which hung a figure represented blind ; this 
 being called the emblem of truth. When the president 
 put this collar on it was understood as a signal to enter up- 
 on business. He touched with it the party who was to 
 gain his cause, and this was the form of passing sentence. 
 At the death of Tharader, A. C. 705, the Egyptians being 
 unable to agree about the succession, were for two years 
 in a state of anarchy, when at length, twelve noblemen 
 conspiring together seized upon the government, and 
 divided it among themselves in so many parts, each 
 governing his own district, with equal power, and au- 
 thority, but no one was permitted to invade or seize the 
 dominion of the other. Thus they reigned harmoniously 
 for fifteen years when they were conquered by Psam- 
 metichus, A. C. 670, who and his successors continued a 
 regular line of kings for about one hundred and thirty-six 
 years ; when the history of that ancient kingdom became 
 blended with that of the Persians and the Greeks until
 
 CHAP. 1.1 LEGISLATIVE AUTHORITV. 15 
 
 after the death of Alexander ; when a new monarchy 
 arose in Egypt founded by Ptolemy the son of Sagus, 
 which continued to Cleopatra a period of about 300 
 years. 
 
 § 11. The Carthagenians derived their manners, cus- 
 toms and laws from the Tyrians, and their government 
 has been thought to have been founded upon principles 
 of the most consummate wisdom. Aristotle ranks it 
 among those which were held in great esteem among the 
 ancients. This opinion was founded upon the fact that 
 for upward of five hundred years from its foundation, 
 and until his day, no considerable sedition had disturbed 
 the peace, nor any tyrant oppressed the liberty of the 
 state. It united those different authorities which coun- 
 terpoised and gave mutual assistance to one another. 
 These authorities were that of the two supreme magis- 
 trates called Suffetes, — that of the senate and that of the 
 people. To this was subsequently added the tribunal of 
 one hundred, which had great credit and influence in the 
 republic. The power of the Suffetes Avas only annual, 
 and their authority in Carthage was similar to that of 
 the consuls at Rome. The manner of their election is 
 unknown. They had the power of convening the senate 
 over which they presided, and propounded subjects for 
 discussion, and received the votes. They also presided 
 in all important debates. Their authority was not li- 
 mited to the city, nor solely confined to civil affairs. It 
 extended to the command of armies also. On the expi- 
 ration of their employment as Suffetes, they were made 
 praetors, which also empowered them to propose and 
 enact new laws. The senate was composed of persons 
 venerable on acconnt of age, their experience, their 
 birth, their riches, and their merit, and it formed the 
 council of state. Its number is not exactly known : it 
 must have been large, as a hundred were selected from 
 it to form a separate assembly. In the senate all affairs
 
 16 ORIGIN AND HISTORY OF [CHAP. I. 
 
 of consequence were debated, letters from generals read, 
 ambassadors admitted, alliances formed, and peace or 
 war declared. The unanimous voice of the senate was 
 supreme, from which no appeal lay. But in case of their 
 disagreement, then the subject matter of such disagree- 
 ment was laid before the people, who had the power of 
 a decision of the question. To prevent the submission 
 of questions of disagreement in the senate to the people, 
 was not unfrequently an argument of great force in that 
 body, and not unfrequently a prevailing one, by which 
 the senate raised its authority to so great a heighth, and 
 laid the foundations for its great power. Polybius says 
 that while the senate had the administration of affairs, 
 the state was governed with great wisdom, and was suc- 
 cessful in all its enterprises ; and Aristotle was of the 
 opinion that the people spontaneously left the care of pub- 
 lic affairs and the chief administration of them to the 
 senate, and that it was attributable to this fact that the 
 republic became so powerful and renowned among the 
 ancients ; but that the people afterward grew insolent by 
 reason of their wealth, and forgetful of how much they 
 owed to the senate for the blessings which they enjoyed, 
 and hence became desirous of sharing more in the go- 
 vernment, and arrogated to themselves nearly the whole 
 power. This, according to the views of Polybius, was 
 the ultimate cause of the ruin of Carthage. 
 
 The tribunal of the hundred was composed of one 
 hundred and four persons, denominated, however, by 
 the name of the hundred. Aristotle considered this tri- 
 bunal the same as the Ephori in Sparta. There can be 
 no doubt that it was designed in its institution as a coun- 
 terbalance to the power of the nobles and the senate. 
 The main difference between the hundred and the 
 Ephori was, that the former was composed of a much 
 greater numerical force, and their office was perpetual ; 
 while the latter was annually elected. These centum
 
 CHAP. I.J LEGISLATIVE AUTHORITY. 17 
 
 viri are supposed to be the same as ihe one hundred 
 judges mentioned by Justin, who were selected from the 
 senate to inquire into the conduct of the generals. Iso- 
 crates says that in civil affairs the Carthagenian govern- 
 ment was aristocratical ; in military, royal ; and this was 
 probably the case in earliest times. The chief magis- 
 trates were called suffctes, which, in the Hebrew lan- 
 guage signifies judges. But it appears from Aristotle that 
 these judges or kings, who were two in number, were 
 nothing more than annual magistrates, who convoked 
 the senate and presided in that assembly. When the 
 suffetes and the senate were of one mind, the people had 
 no voice in public affairs, and only decided when they 
 were divided in opinion ; and he regards this as an im- 
 perfection in their constitution. In a commercial repub- 
 lic, where the people gradually become more rich, and 
 more licentious, such a regulation naturally tended to 
 throw too much power in their hands. During the cen- 
 tury which elapsed from Aristotle to Hannibal, the peo- 
 ple of Carthage became more powerful than the senate. 
 At Rome the reverse was the case ; for there, the senate 
 was more powerful than the people ; and to these cir- 
 cumstances chiefly the authors of antiquity ascribe the 
 very different fortunes of the two nations in the ever 
 memorable wars waged between them. 
 
 § 12. The monarchical or regal government was pre- 
 ferred above all others by the wisest among the ancients. 
 It met the approbation of Plato, Aristotle, Plutarch and 
 Herodotus. It was likewise the only form adopted among 
 the nations of the east. The Persians paid great honor 
 and respect to the prince on the throne, for the reason 
 that they regarded him as the vicegerent of God, and placed 
 on the throne by the hand of the supreme governor 
 of the world, and invested with his authority and power, 
 in order to be the minister of his providence, and the 
 dispenser of his goodness towards the people. Pagan- 
 
 3
 
 18 ORIGIN AND HISTORY OF |_C1IAI\ I. 
 
 ism sometimes carried this notion quite on the verge of 
 extremes ; yet Christianity has at all times fixed with 
 greater precision the true limit to this point. The an- 
 cient sages not unfrequently allude to what they under- 
 stand to be the true position. Thus. Tertulian has said, 
 " we honor the emperor but in such a manner as is lawful 
 for us and proper for him. That is, as a man who is 
 next after God in rank and authority, from whom he has 
 received all that he is and whatsoever he has, and who 
 knows no superior but God alone." For this reason he 
 calls the emperor in another place a " second majesty, in- 
 ferior to nothing but the first." The Persians not unfre- 
 quently styled their prince the great king, the king of 
 kings. It has been supposed that two reasons might 
 induce those princes to take those very ostentatious titles. 
 The one because the empire was formed of many con- 
 quered kingdoms, all united under one head. The 
 other, because they had several kings their vassals, either 
 in their court or dependent on them. The crown was 
 hereditary among them, descending from father to son, 
 and generally to the eldest. Absolute as the regal au- 
 thority was among the Persians ; yet it was in some 
 measure kept within bounds by the establishment of a 
 national council, appointed by the state, consisting of 
 seven of the princes or chief lords of the nation, no less 
 distinguished for their wisdom and abilities than by their 
 illustrious birth. We are told in the Scriptures, (Ezra, 
 vii. 14,) that Ezra was sent into Judea in the name and 
 by the authority of king Artaxerxes and his seven coun- 
 sellors. " Forasmuch as thou art sent of the king and of 
 his seven counsellors." These counsellors were well 
 versed in the laws, ancient customs and maxims of the 
 state. They al ways attended the prince who never trans- 
 acted any thing, or determined any affair of importance 
 without their advice. This council had no power to 
 control or interfere with the king's authority, having at
 
 CHAP. 1.] LEGISLATIVE AUTHORITY". 19 
 
 most a mere advisory power, yet sucli advice was usu- 
 ally so much respected as to be acquiesced in by the 
 prince. Although they were under the direction of the 
 sovereign and were dependent on him, yet they exerted 
 a great check upon arbitrary power, and contributed 
 much to the public order : and with them originated 
 many of the wise regulations relative to their internal 
 police, and external relations. To this council the king 
 transferred from himself many weighty cares with which 
 lie must otherwise have been overwhelmed ; and by them 
 he likewise executed whatever had been resolved oil 
 It was by this means that the great maxims of the state 
 were preserved, the knowledge of its true interests perpe- 
 tuated, its affairs carried on with harmony and order, and 
 innovations, errors and oversights prevented. 
 
 The Persians kept public registers of all the edicts and 
 ordinances of the prince, and all the privileges granted to 
 the people, and all the favors conferred upon particular 
 persons. They also kept the annals of the kingdom in 
 which all the events of former kings, all resolutions taken, 
 all regulations established, and service done by any par- 
 ticular person were exactly and circumstantially entered. 
 
 These annals were carefully preserved and frequently 
 perused both by the kings and the ministers in order to 
 acquaint themselves Avith time past, and that they might 
 have a clear idea of the state of the kingdom, avoid ar- 
 bitrary, unequal, and uncertain conduct, and maintain 
 uniformity in the management of affairs. Josephus in- 
 forms us that the kings of Persia used to administer justice 
 in their own persons ; and the Bible also affords us seve- 
 ral instances in which justice was thus directly adminis- 
 tered by the prince in his own person. To qualify them 
 for the due discharge of this duty, they were early and 
 publicly instructed in the laws of their country.
 
 20 ORIGIN AND HISTORY OP [CHAP. T. 
 
 With (he prince and his councillors was vested the le- 
 gislative authority of the nation. 
 
 § 13. The original government of the Jews was that 
 of a Theocracy. It has been supposed by some and in- 
 sisted that the government of God established among this 
 peculiar people, was that of a monarchy. This position, 
 however, has been most successfully refuted by other 
 writers and it certainly is not to be collected from the re- 
 cords of the word of God. In the opinion of Calvin this 
 government was aristocratical, instead of monarchal ; 
 and of the same opinion was Josephus, Philo and Moses 
 Mainonidaz and the most and best of both Jewish and 
 Christian authors. Josephus says that Saul's sin by 
 which he fell, was that he took away the aristocracy, 
 which could not have been done had it not previously 
 existed. Philo imputes the institution among them of a 
 kindly government to the fury of sinful people, rather 
 than to the ordinance of God, or the mandates of his 
 word. Aberland says, it proceeded from their delight in 
 idolatry to which their neighbors were addicted, and 
 which could be only upheld by a government in practice 
 and principle contrary to that which God had instituted. 
 Among the Hebrews, kings were not originally instituted 
 by God, but were subsequently permitted on account of 
 the sins of God's people. The precept in the laws (Deut. 
 17,) concerning kings is not in the nature of a command 
 to make them, but rather instructions what manner of 
 kings they should make, if they desired to have them. 
 Moses, Joshua, and the other judges, had neither the 
 name or pow T er of kings : they were not of the tribe to 
 which the sceptre was promised, nor did they transmit 
 the power they had to their children, nor was it continued 
 by any kind of regular succession, but it was transmitted 
 to those fitted by temper and habit to deliver the nation 
 out of their distress on given contingencies. 
 
 Hence we find that it was thus that Eliud, Gideon,
 
 CHAP. I.] LEGISLATIVE AUTHORITY*. 21 
 
 Jeptlia and others, were set up ; and on one occasion the 
 promise of authority was made, to whomsoever would 
 give battle to the children of Amnion should be head 
 over the inheritance of Gilead. Thus was Jeptha made 
 chief. Their government consisted of three parts : be- 
 sides the magistrates of the several tribes and cities, they 
 had a chief magistrate who was called judge or captain, 
 a council of seventy chosen men and the general assem- 
 bly of the people. The first was occasional, like the 
 dictators of Rome, as the Romans in times of danger fre- 
 quently chose such a man as was much esteemed for 
 valor and wisdom. God's peculiar people had a peculiar 
 regard to that wisdom and valor which was accompan- 
 ied with his presence. The second was known as the 
 great Sanhedrim, which was instituted by Moses by the 
 command of God, and the third was the assembly of the 
 people of which we find frequent instances in the Scrip- 
 tures. In Joshua 22d, we learn that when the tribes of 
 Reuben and Gad, and half of that of Manasseh had built 
 an altar, on the side of Jordan, the whole congregation of 
 the children of Israel gathered together at Shiloh, to go 
 up to war against them. Thus it Avill be perceived, that 
 this was the exerciseof the highest and most important act 
 which could concern the people, that even of war and 
 peace ; and that too with their own brethren while 
 Joshua was still alive. It is evident that this whole 
 transaction, was determined upon and settled by the as- 
 sembly of the people, for we are told they sent Phineas. 
 This embassy was not only thus democratically sent, but 
 it was also equally democratically received. It was di- 
 rected to all the children of Reuben, Gad and Manasseh, 
 and the answer was sent by them all. One of the last 
 eminent acts performed by Joshua himself, was the call- 
 ing a like assembly to Shechem, composed of elders, heads 
 of families, judges, officers, and all the people : and they 
 agreeing, made a covenant before the Lord.
 
 22 ORIGIN AND HISTORY OF [CHAP. T. 
 
 The like assembly was gathered together for the elec- 
 tion of Saul, and every man was there ; and though the 
 elders only, are said to have asked a king of Samuel, yet 
 they it seems were deputed from the whole congregation, 
 for God said " Hearken to the voice of the people." In 
 the same manner the tribe of Judah, and after that the 
 rest, chose and anointed David to be their king ; and 
 after the death of Solomon all Israel met together to 
 trial with Rehoboam, and ten of the tribes abrogated his 
 kingdom. It has been said if these actions were con- 
 sidered singly, the Hebrew government might have been 
 called a democracy, as well as that of Athens ; for with- 
 out doubt they evidently manifested the supreme power 
 to have been lodged in those general assemblies of the 
 people. But the government as to its outward order 
 consisting of those three parts, which comprehended 
 three simple species and no times having been appointed 
 nor occasion specified upon which judges should be cho- 
 sen, or these assemblies called, whereas the Sanhedrim 
 which was the aristocratical part was permanent, the 
 whole might rightly be called or considered as an aristo- 
 cracy.
 
 CHAP. II.] LEGISLATIVE AUTHORITY*. 23 
 
 CHAPTER II. 
 
 § 14. The Anglo Saxon legislation commenced under 
 Ethelbert, king of Kent ; who was the Bretwalda or su- 
 perior chief of the several Anglo Saxon kings, south of 
 the Humber. A code of laws was then compiled, of 
 which but an imperfect transcript has come down to our 
 days. The ancient German customs which had until 
 then been continued in use, were then reduced to a sys- 
 tem and promulgated in the form of laws. Bede consid- 
 ers the first act of legislation as having been done in im- 
 itation of the Romans. The king in the style of a 
 Roman Emperor, decreed or enacted; and his council 
 or Witans advised. Previous to their migration into 
 Britain and the adjoining continent, no chief, so far as has 
 been discovered, ever claimed or exercised any such 
 authority. This assumption of authority, was followed 
 throughout the whole of the Anglo Saxon and the Dan- 
 ish period of the history of Britain. Its remains are 
 plainly discoverable in the forms of enactment at a much 
 later day. The functions of the councils which were 
 held under the Anglo Saxon sovereigns were partly ju- 
 dicial, and partly legislative. Tacitus informs us that the 
 chiefs or leaders of the ancient German tribes decided on 
 affairs of smaller moment, but that the whole body of 
 the people deliberated in matters of weightier concern. 
 In the earlier history of each of the states which were 
 formed by their descendants, traces of this ancient cus- 
 tom may be discovered. It appears that the ancient form 
 of deliberations continued. The king or the optimates 
 proposed the suoject for debate and they alone joined in 
 the discussion. There are also some indications of the
 
 24 ORIGIN AND HISTORY OF [cHAP. II. 
 
 sense of those of the community who did attend, having 
 been still expressed in the ancient mode, and the remem- 
 brance of those customs doubtless influenced the lan- 
 guage of public acts even when the people had altogether 
 ceased directly to interfere. In later times as the pre- 
 dominant kingdoms extended their territories, and par- 
 ticularly as regards England, when the kingdoms of the 
 octarchy were united into one empire, the assembly of 
 the whole body of the thanes became impossible ; and 
 whatever were the functions which were originally ex- 
 ercised by the entire body, the whole naturally fell into 
 the hands of a few. As the functions of this tribunal par- 
 took both of judicial and legislative authority, to ascertain 
 precisely the boundaries of each, in the assemblies of the 
 Anglo-Saxons, after the union of the different states into 
 one kingdom, is a most difficult task. As it regards 
 legislation from the time of the conversion of the Anglo 
 Saxons to Christianity, the prerogative of the crown 
 seems to have been exercised with the advice of his 
 council. Two of these councils are plainly discernible 
 though not always to be distinguished. They formed 
 the basis of the great councils and select councils which 
 were held under the conqueror and his successors, and 
 the remains of which are to be discovered in the house 
 of Lords, and the privy council at the present day under 
 the English Constitution. The king's council of either 
 kind were constituted of the superior order of the king's 
 vassals, together with Archbishops and Bishops, and 
 Abbots of the principal monasteries. In some instances 
 such as the king especially summoned for the occasion, 
 even members of the clerical body of inferior rank, 
 eminent for their attainments, might be selected as mem- 
 bers of the king's council. The persons who acted as the 
 council of the king are usually designated in the Anglo 
 Saxon documents as Witan aldnncs ; or by some such 
 expressions ; sometimes as Edistan Witan. In the Latin
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 25 
 
 charters they are described by the names of Priticipes, 
 Senators, Conciliarii, Archontes, Pretors, but most com- 
 monly Proceres, or Optimates, a phrase which had been 
 applied to those Romans of senatorial rank as distinguish- 
 ed from the Plebs. It seems that no lay man could be 
 selected as one of the Optimates or council unless he were 
 in the enjoyment of forty hydes of land. It is seldom 
 that any public act of the Anglo Saxon kings is recorded 
 without its being stated to have been done with the con- 
 sent or the advice of the optimates, or proceres, or some 
 of them. As many, sometimes all of the optimates would 
 be present at the courts of the state, it was natural that 
 those assemblies should be made use of for the transac- 
 tion of such business, as the proceres or witan usually 
 advised upon, and such accordingly appears to have been 
 the fact. Doubtless many persons who were in attend- 
 dance at the courts of the state in virtue of their offices 
 not qualified as members of the councils attested the acts 
 as witnesses : indeed there are numerous instances of 
 that kind. As to the nature and constitution of the as- 
 semblies of the council which were convened for the dis- 
 patch of public business on other occasions, we are left 
 in much doubt: so much must have depended on 
 the urgency of the business, the state of times, the 
 character and influence of the sovereign, and many other 
 circumstances that in all probability, no uniform rule 
 prevailed. From the numerous charters granted by the 
 kings to the church and to their vassals, which are dated 
 from the different royal villas or manors in which they re- 
 sided in their progress through their dominions, it would 
 appear that there was always a certain number of the 
 optimates in attendance on the king to obey his sum- 
 mons, to act as his council when circumstances required 
 it. This may have been what afterwards appears as 
 the select council. Many acts of state emanated from 
 this council ; but more solemn assemblies of the opti-
 
 26 ORIGIN AND HISTORY OF [CHAP. II. 
 
 mates or Ge Witena gemotes were frequently called em- 
 bracing sometimes all, sometimes the most distinguished 
 of the optimates ; on some occasions the " best men" in 
 the land is the expression used. These more solemn 
 assemblies appear to have been held in the open air by 
 public notice, or by particular summons in or near some 
 city or populous town. These are the assemblies which 
 are called parliaments by the writers after the conquest. 
 It appears to have been the business of the select council 
 which usually attended the king, or the select council as 
 it may be called, to determine when those more solemn 
 councils should be held. On some occasions when the 
 throne was vacant these assemblies met on their own 
 authority for the purpose of choosing a sovereign. Laws 
 were framed and enacted at the councils assembled whe- 
 ther as courts of the state, or by special summons : but 
 as before stated the enactments were almost universally 
 in the name of the king, and this was continued by Wil- 
 liam the Conqueror and his successors. The Conqueror 
 indeed on these occasions asserted the kingly authority 
 in the most positive terms, " mando et regia authoritate 
 preecipio." After the laws had ceased to be enacted in 
 the presence of the assembled people, writs were sent 
 to the different earles or lieutenants of counties, in which 
 the laws were embodied, so that the ordinances made at 
 the councils might be known both to rich and to poor, 
 and this constituted the mode of publication in those 
 early days. 
 
 In the early period of the juridical history of England 
 their laws were ordinarily known by the name of assises 
 or constitutiones : the king usually provided and ordained 
 them. (a) 
 
 The laws or assism so called are in the laws of Eng- 
 land distinguished into those made before the time of 
 
 («) Dwarris, 625.
 
 CHAP. II."] LEGISLATIVE AUTHORITY. 27 
 
 memory, and those made since. The time of memory 
 was fixed in conformity to a provision made in the time 
 of Edward 1st for setting the limitation in the writ of 
 right, which was by statute 1st West. c. 39, fixed at the 
 beginning of the reign of Richard. 
 
 Although the limitation in a writ of right has been 
 long since altered, this period has been chosen as a dis~ 
 tanceof very high antiquity, at which has been fixed the 
 time of memory, as it is called, so that in England even 
 at this time every thing before that period is said to have 
 happened before the time of memory. 
 
 Those statutes which were made before this time, and 
 which have not been since repealed nor altered by con- 
 trary usage or by subsequent acts of parliament, are con- 
 sidered as part of the leges non scripts ; being consider- 
 ed now as in fact incorporated into and as having become 
 a part of the common law of England ; notwithstanding 
 copies of them may be found at the present time, their 
 provisions are usually considered that of the sovereign. 
 
 Several laws even as late as Henry the 2d and in the 
 reigns of Richard and John, vouch no other sanction but 
 "rex constituit v or il rex prcecepit" for everything they com- 
 mand or direct. Much of the early history of English 
 statutes is no doubt involved in obscurity from the great 
 difficulty of interpreting ancient records in which refer- 
 ence was not unfrequently made to antecedent docu- 
 ments written in language different from that of the ori- 
 ginals and in many instances even in different parts of 
 the same document a change of language occurs where 
 the same circumstances in fact were intended to be sta- 
 ted. These defects in ancient statutes originate to a cer- 
 tain extent from the habits of the age where much was 
 done without the formalities of any written record pre- 
 served, to which access is at this late age to be had, and 
 partly from the disturbed state of the country for some 
 time after the advent of William the first, and from the
 
 28 ORIGIN AND HISTORY OF [CHAP. IT. 
 
 disorders which prevailed in several subsequent reigns. 
 Perhaps there is no better way of accounting for the ex- 
 traordinary appearance of the old statutes than by sup- 
 posing that it remained with the king to supply the de- 
 fects which occasionally appeared in the course and or- 
 der of proceeding ; which being founded originally on 
 custom and usage, was, in its nature, more susceptible 
 of modification than any positive institution, that not as 
 acts of parliament but as immemorial usage and custom 
 from which there is no doubt much of the common law 
 of England is derived. 
 
 § 16. It has already been remarked that the laws were 
 termed sometimes " assisce" and sometimes " comtitutio- 
 nes" The most solemn and usual way of ordaining laws 
 was to get the concurrence of the commune concilium 
 regni 1 yet it seems that in these times the king took upon 
 himself to do many legislative acts, which when confor- 
 mable with the established order of things were easily 
 acquiesced in, and became the law of the land. The 
 very frame indeed of such laws as were sanctioned with 
 all possible formalities, carried in them the strongest ap- 
 pearances of regal acts : if a law passed concilio baronum 
 suorwn, it was still rex constituit. Of the laws of Wil- 
 liam the Conqueror, though in some parts they seem 
 to have the authority of the great council, statuhnus, 
 volumus, pr&cipimus, yet in others they speak in the per- 
 son of the king only, hoc quoque jwcecipio, et prohibeo. 
 The form of a charter, in which the king was considered 
 as a person granting, was a very common way of making 
 laws at this time, and carries with it evidence of the sen- 
 timents entertained in those ages concerning legislation. 
 It should be remarked that some of these charters, from 
 the solemnities attending the execution of them, might 
 be regarded as having all the solemnities of valid laws 
 as in some of them the barons of the realm seem to have 
 been parties. Others seem to have no authority but
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 29 
 
 could not be easily tampered with, without a manifest 
 discovery of the change. 
 
 § 17. In an unlettered age, it was convenient and ben- 
 eficial, that the king should exercise such a superinten- 
 dence over the laws as to declare, explain and direct 
 what his justices should do in particular cases ; such 
 directions were very readily received as positive laws, 
 always to be observed in future, and no doubt numbers of 
 such regulations were made of which at present there re- 
 main no traces. While this supreme authority was ex- 
 ercised only in furtherance of justice, by declaring the 
 law, or even altering it in instances which did not much 
 entrench upon the interest of the great men of the king- 
 dom, it was suffered to act at freedom. But no alteration 
 in the law which affected the persons or property of the 
 barons, could be attempted with safety, without their 
 concurrence in making it, as in deed it could not alwavs 
 be executed without the assistance of their support. 
 Thus it happened that when any important change was 
 meditated by the king a communi concilium was sum- 
 moned where the advice of the magistrates was taken, 
 and then the law if passed was mentioned to be past 
 with their concurrence. On the other hand, had the 
 nobles any point which they wanted to be authorized by 
 king's parliamentary concurrence a commune concilium 
 was called if the king could be prevailed to call one, and 
 if the matter was put into a law, the king here was men- 
 tioned to have commanded it at the prayer and request . 
 of his barons, so that one way or the other the king is 
 mentioned in all laws, as the creative power which gives 
 life and effect to the whole. 
 
 § 1 8. As laws made in the solemn form by a commune 
 concilium : were upon points of great importance, and 
 often the subjects of violent contests ; they were in the 
 nature of concords or compacts between the parties inter- 
 ested and were sometimes passed and executed with the
 
 30 ORIGIN AND HISTORY OF [CHAP. II. 
 
 ceremonies suitable to such a transaction. The constitu- 
 tions of Clarendon, (which too are called the ancient law 
 of the kingdom and therefore only to be declared and 
 recognized as such,) were passed in that way. 
 
 Becket and all the bishops took an oath to observe 
 those laws ; and all except Becket signed and put their 
 seals to them. The laws were drawn in three parts, one 
 counterpart or authentic copy was given to Becket, ano- 
 ther was delivered to the Archbishop of York, a third 
 was retained by the king to be enrolled among the royal 
 charters. 
 
 The Magna Charta of King John was executed with 
 similar solemnity and bore a similar appearance of a 
 compact between the king and his nobles. 
 
 It was not uncommon that the people as well as the 
 makers should be sworn to observe the laws. The as- 
 sises statulce el juratcp, are mentioned by Bracton as an 
 article of inquiry before the justices in Eyre in the reign 
 of Henry the third. (a) 
 
 § 19. It may not be amiss at this point to digress for a 
 moment and inquire into the origin of the British Parlia- 
 ment. Edward the first who has been justly denominated 
 " the English Justinian" was possessed of great natural 
 talents, and succeeding to a prince whose weakness and 
 injustice had rendered his reign unhappy, being sensible 
 that nothing but a strict administration of justice could, 
 on the one side curb a nobility whom the troubles of the 
 preceding reign had rendered turbulent ; and on the other 
 appease and reconciliate the people, by securing and 
 guarding the property of individuals. To this end he 
 made jurisprudence the principal object of his attention, 
 and insomuch did it improve under his care that the mode 
 of process became fixed and settled. It is during his 
 
 (a) Reeve's English Law, Vol. 1, p. 215,216, 217, 218; Steven's Eng. 
 Const. Vol. 1 p. 5.
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 31 
 
 reign in which we find the first instance of the admission 
 of deputies of towns and boroughs into Parliament. 
 
 Edward continually engaged in wars, either against 
 Scotland or on the continent, seeing his demesne consi- 
 derably diminished, was frequently reduced to the most 
 pressing necessities. But though in consequence of the 
 spirit of the times, he frequently indulged himself in par- 
 ticular acts of injustice, yet he perceived that it was im- 
 possible to extend a general operation on a body of nobles, 
 and a people who so well knew how to unite in a com- 
 mon cause. In order to raise subsidies, he was obliged 
 to employ a new method, and to endeavor to obtain 
 through the consent of the people, what his predecessors 
 had hitherto expected from their own power. The sher- 
 iffs were ordered to invite the towns and boroughs of the 
 different counties to send deputies to parliament, and it 
 is from this era that we are to date the origin of the 
 house of commons. No writs can be found to summons 
 knights and burgesses and citizens to parliament before 
 the year 1264, 49 Henry III. Knights of Shires were, 
 however, summoned under King John. In 1283, Ed- 
 ward I. held a parliament at Shrewsbury where the lords 
 sat in a castle and the commons in a barn. In 1337 the 
 lords and commons met at Eltham, in Kent, in the palace 
 of Edward II., the remains of which are still extant. It 
 is certainly a question when the commons first formed a 
 distinct assembly from the lords. Parliament or general 
 councils have existed from the earliest period of British his- 
 tory ; the word is derived from the French parkr, to speak, 
 because it is a deliberative assembly and means the great 
 council of the nation. They have existed in the early 
 ages under various names. The Saxons called these coun- 
 cils si/?ioth or micfiel synoth, the great council, or great 
 synoth, because they were of a religious character; also 
 mic/icl gemoth or gemote, the great assembly and icittcna 
 gemoth the assembly of wise men. After the conquest
 
 32 ORIGIN AND HISTORY OF [CHAP. II. 
 
 they were called by the latin names of commune consil- 
 ium rcgni, magnum consilium ?*egis, curia magna, con- 
 vcntus magnatum vel procerum, assisa generalis, and 
 sometimes communitas regni Anglim,(a) and finally par- 
 liamentum which was the name last adopted. Mr. Bar- 
 rington in his remarks upon the more ancient statutes(6) 
 observes in contradiction to lord Coke's Etymology of the 
 word " parliament, as being composed of the words par- 
 ley la ment, " to speak one's mind, that it was a compound 
 of two Celtic words, parley and ment or mend both of 
 which are to be found in Bullet's Celtic Dictionary pub- 
 lished at Besancon in 1754. He renders parley by the 
 French infinitive parler, and we use the word in the 
 English as a substantive viz., paHey and ment or mend 
 is rendered quantite abondance. And he concludes that 
 the word parliament, therefore, being resolved into its 
 constituent syllables may not be improperly said to signi- 
 fy what the Indians of North America call the great talk. 
 The word parliamentum, it is universally admitted was 
 not used in England, till the reign of Henry III., which 
 is contrary to the assertion of Lord Coke,(c) that the 
 word was in use before the conquest.(d) It is generally 
 supposed that the origin of the house of commons may 
 be dated from the 17th King John ; (1215) but the insti- 
 tution of parliament is involved in great obscurity. In 
 the first report of the lords' committees upon the peer- 
 age, will be found the result of their lordships' inquiries 
 as to the constitution of parliament, and for what pur- 
 pose it was originally summoned : but it is one of those 
 matters, to use the words of Blackstone, which " lie so 
 
 (a) Glanvil, liber 13, C. 32. L. 9, C. 10 ; 2d Inst. 256. 
 
 (b) Barr. p. 48. 
 
 (c) Co. 1 Inst. 110, a; Co. 2 Inst. 156 ; 1 Com. 147. 
 
 (d) Co. 4 Inst. 12 ; Prynne's An. 4 Inst. 2, Christian's note ; 1 Black- 
 stone's Com. 147; Taylor's Civil Law, 70.
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 33 
 
 far hidden in the dark ages of antiquity, that the tracing 
 of it out is a thing equally difficult and uncertain." 
 
 As an illustration of this ohscurity, the magna charta 
 of Henry III. omits the following clause which is in the 
 magna charta of King John. " That no scutage shall be 
 imposed on the people unless by the consent of the com- 
 mune consilium. 
 
 The first writ of summons to elect and send knights 
 and burgesses to parliament, was issued 49 Hen. III. It 
 must be confessed, however, that these deputies of the 
 people were not at first possessed of any considerable au- 
 thority : they were far from enjoying those extensive pri- 
 vileges which, in these days, constitute the house of com- 
 mons a collateral part of the government ; they were in 
 those times called up only to provide for the want of the 
 king, and approve of the resolutions taken by him, and 
 the assembly of the lords. But it was nevertheless a 
 great point gained to have obtained the right of uttering 
 their complaints, assembled in a body and in a legal 
 way ; to have acquired, instead of the dangerous resource 
 of insurrections, a lawful and regular means of influencing 
 the motions of the government, and thenceforth to have 
 become a part of it. Whatever disadvantage might at- 
 tend the station at first allotted to the representatives of 
 the people, it was soon to be compensated by the pre- 
 ponderance the people necessarily acquire when they 
 are enabled to act and move with method, and especial- 
 ly with concert. 
 
 And indeed this privilege of naming representatives, 
 insignificant as it might then appear, presently manifest- 
 ed itself by the most considerable effects. In spite of 
 his reluctance, and after many evasions unworthy so 
 great a king, Edward was obliged to confirm the great 
 charter ; he even confirmed it eleven times in the course 
 of his reign. It was moreover enacted, that whatever 
 should be done contrary to it should be null and void ; 
 
 5
 
 34 ORIGIN AND HISTORY OF [ellAP II. 
 
 that it should be read twice a year in the cathedrals ; 
 and that the penalty of excommunication should be de- 
 nounced against any who should presume to violate it. 
 At length he converted into an established law a privi- 
 lege of which the English had hitherto had only a pre- 
 carious enjoyment ; and in the statute de Tallagio non 
 concedcndo, he decreed that, no tax should be laid, nor 
 impost levied, without the joint consent of the lords and 
 commons ; a most important statute this, which in con- 
 junction with magna charta, forms the basis of the Eng- 
 lish constitution. If from the latter the English are to 
 date the origin of their liberty, from the former they are 
 to date the establishment of it ; and as the great charter 
 was the bulwark that protected the freedom of individ- 
 uals, so was the statute in question the engine which pro- 
 tected the charter itself, and by the help of which the 
 people were thenceforth to make legal conquests over the 
 authority of the crown. The representatives of the na- 
 tion, and of the whole nation, were now admitted into 
 parliament ; the great point, therefore, was gained that 
 was one day to procure them the influence which they 
 at present possess ; and the subsequent reigns afford con- 
 tinual instances. In the first report of the lords' commit- 
 tee upon the peerage, p. 252, the committee state, that the 
 first solemn act which they had discovered, by which the 
 constitution of the legislative assembly of the realm was 
 distinctly described, after the charter of king John, was 
 a statute passed in the 15th Edward II., where it is de- 
 clared " that the matters to be established for the estate 
 of the realm, and of the people, should be treated, estab- 
 lished, and accorded in parliament by the king, and by 
 the assent of the prelates, earls, and barons, and the 
 commonalty of the realm, according as had been before 
 accustomed." This committee also state, that the provi- 
 sions of the charter of king John, about summoning the 
 commune concilium, appears to have been abandoned, and
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 39 
 
 probably did not extend to all legislative purposes, but 
 only to that of granting aid. Under Edward II. the com- 
 mons began to annex petitions to the bills by which they 
 granted subsidies : this was the dawn of their legislative 
 authority. Under Edward III., they declared they would 
 not, in future, acknowledge any law to which they had 
 not expressly assented. Soon after this, they exerted a 
 privilege, in which consists, at this time, one of the great 
 balances of the Constitution : they impeached and pro- 
 cured to be condemned some of the first ministers of 
 state. Under Henry IV. they refused to grant subsidies 
 before an answer had been given to their petitions. In 
 a word, every event of any consecpience was attended 
 with an increase of the power of the commons ; increases, 
 indeed, but slow and gradual, but which were peaceably 
 and legally effected, and were the more fit to engage the 
 attention of the people, and coalesce with the ancient 
 principles of the Constitution. 
 
 Under Henry V. the nation was entirely taken up with 
 its wars against France ; and in the reign of Henry VI. 
 began the fatal contests between the houses of York and 
 Lancaster. The noise of arms alone was now to be 
 heard : during the silence of the laws already in being, 
 no thought was had of enacting new ones ; and, for thirty 
 years together, England presents a wide scene of slaugh- 
 ter and desolation. At length under Henry VII., avIio, 
 by intermarriage with the house of York, united the 
 pretensions of the two families, a general peace was 
 re-established, and the prospect of happier days seemed 
 to open on the nation. But the long and violent agita- 
 tion under which it had laboured, was to be followed 
 by a long and painful recovery. Henry assuming the 
 throne with sword in hand, and in a great measure as a 
 conqueror, had promises to fulfil, as well as injuries to 
 avenge. In the mean time, the people, wearied out by 
 the calamities they had undergone, and longing only for
 
 3G ORIGIN AND HISTORY OF [CHAP. II. 
 
 repose, abhorred even the idea of resistance ; so that the 
 remains of an almost exterminated nobility beheld them- 
 selves left defenceless, and abandoned to the mercy of 
 the sovereign. The commons, on the other hand, accus- 
 tomed to act only a second part in public affairs, and 
 finding themselves bereft of those who had hitherto been 
 their leaders, were more than afraid to form of them- 
 selves an opposition. Placed immediately, as well as 
 the lords, under the eye of the king, they exposed them- 
 selves to the same dangers. Like them, therefore, they 
 purchased their personal security at the expense of pub- 
 lic liberty ; and, in reading the history of the first two 
 kings of the house of Tudor, we imagine ourselves read- 
 ing the relation given by Tacitus of Tiberius and the 
 Roman Senate(«) — " Quanto quis illustriori tanto magis 
 falsi acfcslinantes." 
 
 § 20. The earliest statutes extant in the printed sta- 
 tutes of England, are those of Henry 111.(6) 
 
 The sources of information begin at this period to be 
 more authentic. We have in this reign some statutes 
 enacted by the legislature, besides the charter of liberties 
 and the charter of the forest. These statutes are either 
 to be found in the rolls in the tower, or in some memo- 
 rials which have delivered them down to us as acts of 
 parliament, and, therefore, their genuineness is not to be 
 questioned. Many parliaments were holden in this long 
 reign, and it has been thence inferred, that many acts of 
 course have passed which have not reached our time, 
 though it is remarkable that Bracton, except in four or 
 five instances, quotes no statutes but those which are 
 now extant. So destructive has the hand of time been, 
 that only two of those few we have, are to be found on 
 
 {a) De Lolme, 21 to 28 ; 33 to 35. 
 (J>) Dwarris, part 2. oh. 10, p. 626.
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 37 
 
 record. The only statutes of this reign to be found on 
 the statute roll, are magna charta and charta dc forcsta. 
 The rest are not on record, but only preserved in books 
 and memorials. Such are the statutes of Merton and 
 Marlbudge. This distinction of ancient documents has 
 given rise to the following position : that notwithstanding 
 the record itself be not extant, yet general statutes made 
 within the time of memory, that is, since the first Richard, 
 do not lose the force of statutes, if any authentic memo- 
 rials of there being such are to be found in books, se- 
 conded with a general received tradition attesting and 
 approving the same. In conformity, perhaps, to this 
 favourable presumption it has become a rule, that courts 
 are to take notice of general acts of parliament, without 
 pleading them ; for statutes are never to be put in issue 
 of nul tlel record, but are to be tried by the courts, and if 
 there be any difficulty or uncertainty, the Judges are to 
 make use of ancient copies, transcripts, books, pleadings, 
 or any other memorials, to inform themselves. In 8 Co. 
 R. 28, it was resolved, that against a general act of par- 
 liament, or such an act whereof the judges and officers 
 ought to take notice, the other party cannot plead nul 
 tiel record, for of such an act the judges ought to take 
 notice ; and in that case it was said, " God forbid if the 
 record of such act be lost, or consumed by fire or other 
 means, that it should tend to the general prejudice of the 
 commonwealth, but rather, although it be lost or con- 
 sumed, the judges, either by the printed copy or by the 
 record in which it is pleaded, or by some other means, 
 may inform themselves of it." 
 
 The statutes of this reign, which are now in being are 
 to be found in the common editions of the statutes. The 
 statutes from Magna Charta down to the end of Edward 
 II., including also some, which because their period is 
 not ascertained, are termed in certi temporis, are some- 
 times called the Vetera Statuti. Those from the begin-
 
 38 ORIGIN AND HISTORY OF [CHAP. II. 
 
 ning of the reign of Edward III. being contra-distin- 
 guished by the appellation of Nova Statutist) 
 
 § 21. In most of the ancient free states, the share of 
 the people in the business of legislation was to approve 
 or reject the propositions which were made to them, and 
 to give the final sanctions to the laws. The functions of 
 those persons, (or in general, those bodies,) who were 
 intrusted with the executive power, was to prepare and 
 frame the laws, and then to propose them to the people : 
 and in a word, they possessed that branch of the legisla- 
 tive power which may be called the initiative, that is the 
 prerogative of putting that power in action. 
 
 The initiative, or exclusive right of proposing in legis- 
 lative assemblies, attributed to the magistrates was in- 
 deed very useful, and perhaps even necessary, in ancient 
 republics, for giving a permanence to the laws as well as 
 for preventing the disorders and struggles for power 
 which have been mentioned before. This power of pre- 
 viously considering and approving such laws as were 
 afterwards to be propounded to the people, was, in the 
 first times of the Roman republic, constantly exercised 
 by the senate : laws were made, popidl jussu ex auctor 
 senatus. Even in cases of elections, the previous appro- 
 bation and auctoritas of the senate, with regard to those 
 persons who were offered to the suffrages of the people, 
 were required. " Tain enini non quebat is magistralam 
 qai caperat si patas aucto res non erantfacti."(b) 
 
 § 22. At Venice the senate also exercised powers of 
 the same kind, with regard to the grand council or as- 
 sembly of the nobles. In the canton of Berne, all propo- 
 sitions must be discussed in the little council which is 
 composed of twenty-seven members, before they are laid 
 
 (a) Reeves, vol. 2, p. 84. 
 <b) Cicero pro I'lancis.
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 30 
 
 before the council of two hundred, in whom resides the 
 sovereignty of the whole canton. And in Geneva the 
 law (was) " that nothing shall be treated in the general 
 council or assembly of the citizens which has not been 
 previously treated and approved in the council of the 
 two hundred : and that nothing shall be treated in the 
 two hundred which has not been previously treated and 
 approved in the council of the twenty-five. '(a) 
 
 In almost all the ancient states of Europe, the will of 
 the prince held the place of law, and custom so con- 
 founded this matter of right with the matter of fact, that 
 many writers represent the legislative authority as essen- 
 tially attached to the character of king, and the plenitude 
 of his power seemed in their estimation to flow from the 
 very definition of his title ;(6) and there are not wanting 
 instances in the history of England's kings, where even 
 kings themselves have arrogated to themselves this high 
 prerogative. James I. indeed, claimed that his preroga- 
 tive was absolute and unlimited ; that the concurrence of 
 parliament was not necessary in any of the acts of gov- 
 ernment, and that all the privileges of the people, were 
 mere voluntary concessions made by his ancestors, which 
 he might revoke at pleasure ; these were propositions 
 which he not only maintained, but which he would not 
 suffer to be questioned. " As to dispute," says he, " what 
 God may do, is blasphemy ; so it is seditious to dispute 
 what a king may do in the height of his power." Even 
 the judges, when called upon, in the execution of their 
 duty to decide between the king and the people, were 
 prohibited from canvassing the rights of the crown. 
 " Deal not," says his majesty, "in difficult questions be- 
 fore you consult with the king and council, for fear of 
 
 (a) Stev. Eng. Con. Vol. ii., ch. 4, pp. 827, 828. 
 
 (b) Stev. Eng. Con., fol. 2, ch. 1, p. 531.
 
 40 ORIGIN AND HISTORY OF [CHAP. II. 
 
 wounding the king through the sides of a private person. 
 The absolute prerogative of the crown, is no subject for 
 the tongue of a lawyer, nor is it lawful to be dis- 
 puted."^) 
 
 In modern times, however, it has been the aim of the 
 English government not to leave the laws at the disposal 
 of the king. The basis of the English Constitution, the 
 principle on which it depends is, that the legislative 
 power belongs to the parliament alone ; that is to say, the 
 power of establishing laws, and of abrogating, changing, 
 or explaining them. 
 
 § 23. The constituent parts of parliament are the 
 King, the House of Lords, and the House of Commons. (6) 
 But neither the king nor his privy council can make any 
 amendment in the bills preferred by the two houses, he 
 having merely the right to accept or reject such laws as 
 shall be passed by the parliament. In the beginning of 
 the existence of the house of commons, bills were pre- 
 sented to the king under the form of petitions. Those to 
 which the king assented were registered among the rolls 
 of parliament, with his answers to them, and at the end 
 of each parliament the judges framed them into statutes. 
 
 Several abuses having crept into this method of pro- 
 ceeding, it was afterward ordained that in future cases, 
 the judges should make the statutes before the end of 
 each session, to the end that parliament might detect, 
 and if need be, correct any errors occurring therein. In 
 process of time, it was found that even this was insuffi- 
 cient, and then the present method of framing bills was 
 established, so that now the practice is in England as in 
 this country, that both houses frame the statutes in the 
 
 (a) Miller's Eng. Gov., Vol. i., sec. 1, pp. 153, 154. 
 
 (b) Stev. Eng. Con., Vol. ii., p. 531.
 
 CHAP. II.] LEGISLATIVE AUTHORITY' 41 
 
 very form and words in which they are to stand when 
 they receive the royal assent. 
 
 It is the practice of the king, as it is of the executive 
 in this country, to send messages to either house. These 
 messages are very different now from what they were 
 anciently, heing generally expressed in very general 
 words ; instead of being directory, they are only made to 
 desire the house to take certain subjects into their con- 
 sideration. No particular clauses are expressed ; the 
 commons are not to declare at any stated time, their 
 acceptance or rejection of the proposition made by the 
 king, but they follow the same modes of proceeding as 
 are pursued in relation to petitions presented by private 
 individuals. Some member usually makes a .motion 
 upon the subject expressed in the king's message ; a bill 
 is framed in the usual way ; and such bill, like any other, 
 may be dropped at any stage of it : in short, it is treated 
 not as the proposal of the crown, but as the motion of 
 some of their own members, which the house discusses, 
 and finally accepts or rejects. (a) The bill when passed 
 both houses, is presented to the king for his royal assent : 
 those bills which he rejects remain without force, and 
 those to which he assents are incorporated into the sta- 
 tutes of the kingdom, and thereafter treated as the ex- 
 press will of the highest power acknowledged in England. 
 They have the same binding force as the edits en rcgis- 
 ties have in France, and as the populis-cita had in ancient 
 Rome. And although each of the constitutent parts of 
 parliament might, at the first, have prevented the exis- 
 tence of those laws, the united will of the three, when 
 once enacted, is necessary to repeal them. (6) 
 
 (a) Stev. Eng. Con., Vol. ii.,ch. 4, pp. 831, 832. 
 (!>) Stev. Eng. Con., \o\. ii., ch. 4, p. 537. 
 
 6
 
 42 ORIGIN AND HISTORY OF [_CHAP. II. 
 
 § 24. This much of the origin and history of statutes 
 in England was deemed proper to incorporate into this 
 treatise as a source of some degree of information to the 
 legal student ; a further prosecution of this branch of the 
 subject, is incompatible with the object and design of 
 this work. 
 
 It only remains to state in a few words what efficacy 
 is attached to statutes when thus framed in England. A 
 statute when clothed with all the solemnities of a law of 
 the kingdom, it is said hath power to bind every subject 
 of the realm to which legislative authority extends, and 
 under the forms of government there existing : it binds 
 the king if therein particularly named, although it is true 
 as a general rule, that the king is not to be restrained of 
 a liberty or right he before possessed by the general 
 words of an act of parliament, unless he is expressly 
 named in such act ; but if the statute be intended to give 
 a remedy against a wrong,(a) to punish frauds,(6) tortius 
 usurpations, or the decay of religion, the king, though 
 not named, shall be bound by it. So, too, although not 
 named expressly, he is bound by an act for the advance- 
 ment of religion or learning, or for providing for the 
 poor.(c) So also was an act of parliament for the con- 
 solidation of endowed rectories and vicarages, held to 
 bind the crown, though not named. (d) If an act spoke 
 of the king generally and indefinitely, being named in a 
 public capacity, it extended to all his successors, and to 
 a queen, if the crown descended to a female. (c) A sta- 
 tute being regarded as the highest authority that govern- 
 ment acknowledged on earth, (f) it has been held that 
 
 (a) 3 Inst. 018. 
 
 (b) 5 Rep. 14. 
 
 (c) Steph Elec. L., p. 11. 
 {d) 1 Strange, 516. 
 
 (e) 11 Report, 110. 
 
 (/) 1 Blacks. Com. 185.
 
 CHAP. II.] LEGISLATIVE AUTHORITY. 43 
 
 it could discharge a person from his allegiance, and re- 
 store him to a state of nature ; it could make his estate 
 to cease in the same manner as if the party possessing it 
 were dead :(«) it even has heen said, that it could do no 
 wrong ; yet Lord Holt has quaintly said, " That it may 
 do several things that look pretty odd :" it can make 
 Malta in Europe, and can make a woman a mayor, or a 
 justice of the peace ;(&) but it cannot change the laws of 
 nature so" as to make a woman a man, or a man a wo- 
 man. (c) It can dissolve a marriage and enable the adul- 
 teress to intermarry with her paramour ;(rf) it can enable 
 a man to have or be an heir, who could not otherwise 
 have or be an heir.(e) So an estate tail may be limited 
 by a statute, without a dower, and the validity of such a 
 limitation is not in such case to be measured by the rules 
 of common law, for the reason that a statute can control 
 those rules :(/) it can confirm conveyances defectively 
 executed, and statutes for that purpose must be carried 
 into effect. It may also, upon the request of parties, 
 owners of real property, limit and vest their estates as 
 they desire, or as they could do by deed, (.if) 
 
 § 25. But whenever a statute which limits an estate 
 in real property is inconsistent with the estate granted 
 by a prior deed, its effect is not merely to cure formali- 
 ties in its execution, but it must be held to create a new 
 estate. 
 
 The parliament of England can regulate or new model 
 the succession of the crown, as it did in the reign of 
 Henry the VIII. and William the III. It can alter the 
 
 (a) Midway's Case, 6 Rep. 48. 
 (£) 2 John, 12. 
 
 (c) Steph. Elec. I,., p. 110. 
 
 (d) 12 Mod. 88. 
 
 (e) 1 Lev. 75. 
 
 (/) 251 John, 105 ; Raym. 355 ; 2 Dwarris, 668. 
 
 (g) Lessees Delany and Wife v. Tilghman, 6 Gill. & J. 461.
 
 44 . ORIGIN AND HISTORY OF [CHAP. II. 
 
 established religion of the land, as was done in a variety 
 of instances in the reign of Henry the VIII. and his 
 three children ; it can change and create afresh, even the 
 constitution of the kingdom, and of parliament itself, as 
 was done by the act of the union, and the several sta- 
 tutes for biennial and septennial elections. In short, it 
 is even claimed that it can do every thing which is not 
 naturally impossible.(«) That it is clothed with all the 
 legal attributes of omnipotence in the scale of political 
 existence. 
 
 The extent and qualifications of this last assumption 
 will come under review in a succeeding chapter. 
 
 (a) Steph, Elect. L., Vol. i. p. 11.
 
 CHAP. III.] LEGISLATIVE AUTHORITY. 45 
 
 CHAPTER III. 
 
 § 26. Having thus adverted to the legislative power 
 of England, its origin, progress, and efficacy, it is 
 proper that we should advert to some of the prominent 
 facts connected with the origin of legislation in the 
 United States. In doing so, it will become necessary 
 to have recourse to the history of some of our early 
 colonial governments. In doing so, however, the design 
 of this treatise will necessarily restrict us to a conside- 
 ration of only so much of the colonial history as relates 
 to the subject of political power and legislation. Nor 
 shall we be able to trace the origin, rise and progress 
 of legislation in more than three of the colonies, to 
 wit : those of Virginia, Massachusetts and Connecticut. 
 
 The first in order is that of Virginia. Under the 
 charter of James the 1st, granting certain parts of the 
 country to two colonies, subsequently known as that of 
 Virginia and Plymouth, the political power of govern- 
 ment was vested in a local council appointed and re- 
 newable by the crown ; legislative as well as executive 
 power was vested in the president and council of the 
 colonies, subject to the restriction touching ordinances 
 as to life or limb, and that their enactments were to be 
 conformable to the laws of England, and to be con- 
 tinued in force until declared void by the crown or 
 council in England. 
 
 § 27. No legislative power whatever seems to 
 have been delegated to the colonists themselves. 
 In fact there was so great destitution of legislative 
 authority as to lead the American historian to con- 
 clude, that " by placing the legislative and execu- 
 tive powers in a council nominated by the crown and
 
 46 ORIGIN AND HISTORY OF [CHAP. III. 
 
 guided by its instruction, every person residing in 
 America seemed to be bereaved of the noblest privilege 
 of a freeman." He accounts for this from the fact, that 
 in the infancy of colonization and without the guidance 
 of observation or experience, the ideas of men, with 
 respect to the mode of forming new settlements, were 
 not fully unfolded or properly arranged. At this ear- 
 lier period, it was impossible for them to foresee the 
 future grandeur and importance of the communities 
 which they were about to call into existence ; and they 
 were but illy qualified to concoct the best plans for 
 their future government. The probabilities, however, 
 are, that this withholding of a right to legislate from 
 the colonists, originated in the spirit of the age, in the 
 character of a monarch accustomed to claim the high 
 prerogative of an arbitrary rule, and wiiose breast was 
 not animated with a single liberal sentiment, in relation 
 to the political rights of his subjects. (a) 
 
 § 28. In 1610, Lord DelaAvare, under his commission 
 being invested with the sole command of the colony of 
 Virginia, appointed a council of six persons to assist 
 him in the administration. A very essential change 
 seems at this time to have taken place in the form of 
 the ancient Virginia Constitution, for we find substi- 
 tuted in the place of the original aristocratic council in 
 England, the arbitrary rule of one man, over whose de- 
 liberations the people had no control. 
 
 § 20. In 1619, we find that the spirit of the colonies, 
 as they increased in numbers, partook of a more inde- 
 pendent character. Hitherto they had been subject to 
 the decision of martial law, which however, in all proba- 
 bility, was tempered by all the mildness with which the 
 
 (a) Robertson's History of America ; Book 9, Vol. i, p. 403.
 
 CHAP. III. J LEGISLATIVE AIT1I0KITV. 47 
 
 circumstances of the case would admit, nevertheless 
 they longed for the opportunity of exercising the exalted 
 privilege of prescribing rules for their own goverr.ment. 
 In compliance with the spirit which had then become 
 prevalent among the colonies, in June, 1619, Sir George 
 Yeardly called the lirst general assembly that was ever 
 held in Virginia, which is the commencement of the 
 history of the introduction of provincial legislatures. 
 The numbers of the people, though small, had become 
 so increased, their new settlements so dispersed, that 
 eleven corporations appeared by their representatives in 
 this convention, where they were permitted to assume 
 legislative authority, and to exercise this noblest func- 
 tion of freemen. They sat in the same house with the 
 governor and council, after the manner of the Scotch 
 Parliament, (a) 
 
 The laws enacted in it seem neither to have been 
 many, nor of great importance ; but the meeting was 
 highly acceptable to the people, as they beheld amongst 
 themselves the foundations of a national constitution. 
 In crder to make these rights more certain, the company 
 issued a charter of ordinance on the 24th of July, which 
 gave a legal and permanent form to the government of 
 the colony. (&) Thus w r as formed and established the 
 first representative legislature that ever sat in America, 
 and this example of a domestic parliament to regulate 
 all the internal concerns of the country, w r as never lost 
 sight of, but was ever afterwards cherished throughout 
 America as the dearest birthright of freemen. (c) 
 
 § 30. The supreme legislative authority in Virginia, 
 in imitation of that in Great Britain, w T as divided, and 
 
 (a) Holme's American Annals, Vol. i, pp. 169 to 195 ; Robertson's Amer., 
 Book 9, Vol. i. p. 412. 
 
 (b) Robt. Amer., Book 9, p. 412. 
 
 (c) Story on Cons., Vol. i. book 1, p. 26.
 
 48 ORIGIN AND HISTORY OF [CHAP. III. 
 
 lodged partly in the governor, who held the place of the 
 sovereign; partly in a council of state named by the 
 company, which possessed some of the distinctions and 
 exercised some of the functions belonging to the peerage ; 
 partly in a general council or assembly, composed of 
 the representatives of the people, in which were vested 
 powers and privileges similar to those of the house of 
 commons. In both those councils all questions were 
 to be determined by the majority of voices, and a nega- 
 tive was reserved to the governor ; but no law or ordi- 
 nance, though approved by all the three members of the 
 legislature, was to be of force until it was ratified in 
 England by a general court of the company, and re- 
 turned under its seal. The ordinance further required 
 the general assembly, as also the council of state, " to 
 imitate and follow the policy of the form of government, 
 laws, customs, and manner of trial, and other adminis- 
 tration of justice, used in the realms of England, as 
 near as may be." Thus the constitution of the colony 
 became fixed, and the members of it thenceforth, were 
 considered not merely as servants of a commercial com- 
 pany, dependent on the will and order of their superiors, 
 but as freemen and citizens. (a) 
 
 § 31. In May, 1623, King James, without regard to 
 the rights conveyed to the company by their charter, or 
 without the formality of judicial proceedings, appointed 
 certain commissioners, of whom Sir William Jones was 
 one, to examine into the transactions of the company, 
 and lay the result of their inquiry before him. (6) After 
 their departure a quo warranto was issued from the 
 King's Bench, which terminated, as was usual in that 
 
 {a) Story on Cons., Vol. i. Book 1, ch. 2, p. 26 ; Robt. Am., Vol. i. Book 
 0, p. 413 ; Holme's Amer. Annals, Vol. i. pp. 214, 215. 
 (b) Robt. Amer., Vol. i. Book 9, p. 416.
 
 CHAP. III.] LEGISLATIVE AUTHORITY. 49 
 
 reign, in a decision perfectly consonant to the wishes of 
 the monarch. The charter was declared forfeited, and 
 the company dissolved in June, 1624 ; and all the privi- 
 leges conferred upon it reverted to the king.(rt) James 
 then issued a new commission for the government of 
 Virginia, constituting Sir Francis Wyall governor, with 
 eleven assistants, or counsellors. The governor and 
 council were appointed during the pleasure of the king, 
 and no assembly was mentioned or allowed. (6) James 
 indeed purposed to provide and draw a form of govern- 
 ment, but before it was done, death put an end to his 
 career. Robertson conveys the impression, that on the 
 accession of Charles I., March 27, 1625, he declared the 
 colony as annexed to the crown, and immediately subor- 
 dinate to its jurisdiction. Under the administration of 
 Governor Yeardly, and a council of twelve and a secre- 
 tary, was delegated to them the exercise of supreme 
 authority, under an injunction from the king to conform 
 in every point to such instructions as should, from time 
 to time be received from him.(c) From the term of the 
 king's commission, as well as from the known spirit of 
 his policy, it seems manifest that it was his intention to 
 invest every power of government, both legislative and 
 executive, in the governor and council, without recourse 
 to the representatives of the people. During a great 
 part of this king's reign, the colonists knew no other 
 law than the will of the sovereign. Statutes were pub- 
 lished, and even taxes imposed, without once assembling 
 the representatives of the people to authorize or sanction 
 them. (7/) 
 
 (a) Robt. Amer., Vol. i., Book 9, p. 417 ; Holme's Amer. Annals, Vol. i., 
 p. 233. 
 
 (b) Holme's Annals, p. 234 ; Robt. America, p. 418. 
 
 (c) Robt. Am., 418. (d) Ibid. 
 
 7
 
 J30 ORIGIN AND HISTORY OF [CHAP. III. 
 
 § 32. During the period that intervened between the 
 appointment of Yeardly, and the appointment of Sir 
 William Berkley in 1659, under Yeardly and the tyranni- 
 cal and most odious Sir John Harvey, the colonists had 
 not only to submit to the degradation of being deprived 
 of the exercise of the dearest rights of the citizen, but 
 they were subjected to the most cruel and tyrannical 
 laws, by which not only the personal rights of the citi- 
 zens were(a) disregarded, but private property was 
 violently invaded. Robertson also asserts, that under 
 governors appointed by the commonwealth, or Cromwell 
 when he usurped the supreme power, Virginia remained 
 almost nine years in perfect tranquility ; that upon the 
 death of Mathews, the last governor named by Crom- 
 well, the sentiments and inclinations of the people, no 
 longer under the control of authority, burst out with 
 violence. They forced Sir William Berkley to quit 
 his retirement ; they unanimously elected him governor 
 of the colony, and, as he refused to act under usurped 
 authority, they boldly erected the royal standard, and 
 acknowledged Charles II. to be their lawful sovereign. 
 Mr. Hening, in his preface to the statutes at large of 
 Virginia, thus refutes the assertion of this great histo- 
 rian. He says : " There is not one word of truth in 
 any part of this relation. Not a single governor was 
 appointed either by the parliament or by Cromwell. But 
 they were elected by the House of Burgesses, in pur- 
 suance of the powers vested in them by the provisional 
 articles of government adopted at the surrender of the 
 country to the commissioners appointed in behalf of 
 the parliament. 
 
 So far were the assembly from erecting the royal 
 standard, and proclaiming Charles II. at the time when 
 
 (a) Robertson's America, p. 418.
 
 CHAP. III.] LEGISLATIVE AUTHORITY. 51 
 
 they elected Sir William Berkley governor, that by the 
 very first act of the same session, they expressly took 
 the powers of government into their own hands ; and 
 declared that all writs should issue in the name of the 
 Grand Assembly.(a) By the second act, they appointed 
 Sir William Berkley governor ; enforced it on him to 
 call an assembly once in two years at least, or oftener 
 if necessary ; gave him the power of making a secre- 
 tary and counsellor of state, with the approbation of 
 the assembly, and restrained him from dissolving the 
 assembly, without the consent of the major part of the 
 house. These acts passed at an assembly held in 
 March, J 659-60, between the resignation of Richard 
 Cromwell, (on 22d April, 1659,) and the restoration of 
 Charles II., (on 29th May, 1660,) at a time when, as 
 the assembly express themselves, ' There was no resident, 
 absolute, and general confessed power in EnglaruV "(b) 
 
 Mr. Hening is certainly sustained in these views by 
 the acts published in his edition of the statutes at 
 large. 
 
 § 33. It appears to be doubtful whether any assem- 
 bly was held during the year 1620 : one was held in 
 1621. From that period to 1629, the acts of the legis- 
 lature of Virginia are scarcely noticed in the minutes 
 of the company ; the proclamation of the governor sup- 
 plying, in almost every instance, the place of the legis- 
 lative act. But from 1629, with but little intermission 
 for a series of years, the acts of each session are accu- 
 rately epitomacised.(c) 
 
 It has been supposed by many — even by historians of 
 England and America — that during the administration of 
 
 (a) See act of March, 1659-60, p. 550, 1st Vol. Statutes. 
 
 (b) Preface to Hening's Stat, at Large, Vol. i. pp. 13, 14. 
 
 (c) 1 Hen. Stat, at Large, p. 119.
 
 52 ORIGIN AND HISTORY OP [CHAP. III. 
 
 Sir John Harvey, there was no attempt made to convene 
 the colonial assembly. It is evident, however, that from 
 1630 to 1642, the Virginians did enjoy the benefits of an 
 independent colonial legislature ; and, that through the 
 agency of their representatives, they levied and appro- 
 priated taxes, secured the free industry of their citizens, 
 and gave to their statutes the greatest possible publicity ; 
 and that as early as 1632, the defects and inconveniences 
 of an infant legislature were remedied by a revised code, 
 which was published by the approbation of the governor 
 and council, and in which all the privileges which the 
 assembly had ever claimed, were carefully confirmed. 
 Indeed, it seems they had never been questioned, for the 
 instructions to Sir William Berkley do not first order 
 assemblies, but speak of them as a thing established. 
 At the first session of Berkley's legislature, the assem- 
 bly declared its meeting as " exceeding customary limits 
 in this place used." This is a plain declaration that as- 
 semblies were the custom and usage of Virginia, at the 
 time of Berkley's arrival. By reference to the first 
 volume of Hening's Statutes at large, it will appear 
 most conclusive, that assemblies were convened for every 
 year, except 1631, from 1630 to 1642, inclusive.(«) 
 
 From this period down to that of the revolution, the 
 laws appear to have been enacted by the representa- 
 tives of the people, subject to the final assent of the 
 crown. The bill of rights was unanimously adopted 
 on 12th June, 1776. 
 
 § 34. The constitution of Virginia, adopted on the 
 29th of June, 1776, provided that the legislature should 
 be formed of two distinct branches, who together should 
 
 (a) Bancroft's History, vol. i. ch. 6, pp. 199, 200. 1 Hen. Stat, at Large, 
 pp. 147, 257, 153, 177, 178 to 202, 209, 222, 223, 227, 229, 230, 268, 259. 
 262, 2G7, 230, 269, 171, 172, 175, 177, 179.
 
 CHAP. III.] LEGISLATIVE AUTHORITY. 53 
 
 be a complete legislature. They were required to meet 
 once in each year, or oftener, under the name of the 
 general assembly of Virginia, composed of a house of 
 delegates and the senate. The laws of Virginia were 
 first revised in September, 1 632, although not so named 
 until March, 1642-3. In March, 1657-8, during the ex- 
 istence of the commonwealth, another revisal was made, 
 adapting the laws of the colony to the state of the church 
 and the republican institutions of that day. In March, 
 1661-2, after the restoration of Charles It., the laws were 
 again revised ; the object of this revision, as expressed 
 in the preamble of the act was, to repeal and expunge 
 all laws " which might keep in memory their forced de- 
 viation from their majesty's obedience.' 7 
 
 The next revisal Avas in 1705. No laws were printed 
 until the year 1733. The first edition, called Purvis's 
 edition, was published in London without date, and 
 only with the initials of the printer's name, as it was 
 supposed between the years 1684 and 1687, from the 
 fact that it was dedicated to Lord Howard, who was 
 governor of Virginia during that period. In 1722 an 
 abridgment of the laws of Virginia were also pub- 
 lished in London, and a second edition of it in 1728. 
 Purvis's edition seems to have been bound up with 
 blank leaves for the reception of subsequent laws, and 
 to have been distributed to the separate counties at dif- 
 ferent times. All these editions, except that of Purvis's 
 collection, exist to this day. The principal revisals 
 since Purvis's, are the editions of 1733, 1752, 1769, 
 1783, 1794, 1803, 1808, and 1819. 
 
 § 35. By an act of the general assembly of Virginia, 
 passed 28th December, 1792, it was ordained, that a 
 collection should be made of all such acts of the assem- 
 bly of a public and permanent nature as were then in 
 force. This compilation was not completed until the 
 close of the year 1794. Under the act of 5th Febru-
 
 54 ORIGIN AND HISTORY OF [CHAP. III. 
 
 ary, 1808, the statutes at large of Virginia were pub- 
 lished by Mr. Hening, comprising a collection of the 
 laws of Virginia from the first session of the legislature 
 in 1619. 
 
 Under an act of the 12th March, 1819, another re- 
 vised code of the laws of Virginia was published, which 
 contained a collection of all such acts of the general 
 assembly of a public and permanent nature as were then 
 in force, edited by Thomas Ritchie, aided by Messrs. 
 Hening and Mumford. From that period to the pre- 
 sent time, the laws of Virginia are published in separate 
 volumes containing the statutes of each year.
 
 CHAP. IV,] LEGISLATIVE AUTHORITY. O.J 
 
 CHAPTER IV. 
 
 § 36. Having detailed some of the prominent facts 
 connected with the history of the statutes of the colony 
 and state of Virginia, we shall next direct our attention 
 to the history of the statute laws of Massachusetts. The 
 immediate causes which led to the first settlement of the 
 colony of New Plymouth had their origin in one of those 
 mysterious dispensations of divine economy not unfre- 
 quently misunderstood by short sighted men, but which 
 form a part of that great consecutive plan, or link in the 
 great chain of events, by which the righteous sovereign 
 of the universe accomplishes his purposes in moulding 
 the destinies of a nation. A small but truly Spartan 
 band had, by their independence in religious sentiments, 
 rendered themselves obnoxious to an arrogant ecclesias- 
 tical hierarchy, sanctioned by the civil polity of England. 
 They, as offenders against the forms of religion, in the 
 exemplification of its spirit and power, were forced into 
 exile and banished from their native land, to the end that 
 they might be schooled in adversity, for the sacrifice of 
 kindred and country, to the demands of the great and 
 glorious cause of truth, thus to be fitted and trained to 
 the endurance of those privations, toils and hardships 
 necessarily to be encountered in the early settlement of 
 a new country ; here to lay the foundations broad and 
 deep of one of the greatest republics ever known in the 
 world's history ; here to plant those great civil and polit- 
 ical institutions which now so justly claim the admira- 
 tion and respect of the whole civilized world. 
 
 The history of colonial legislation in Massachusetts is 
 divided into three parts, each of which demand and will 
 receive a separate consideration. The one, embracing
 
 56 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 that of the colony of Plymouth from its earliest settle- 
 ment down to the period of its union with that of Mas- 
 sachusetts Bay in 1691. The second, that of the colony 
 of Massachusetts Bay from the period of its settlement to 
 the time of its union with Plymouth. The third, from 
 the union of the two colonies to the Revolution. We 
 shall first proceed to that of New Plymouth. For all 
 that we shall collate upon this branch of our subject, it 
 is proper that we premise with an acknowledgment that 
 we are exclusively indebted to the learned and laborious 
 as well as accurate researches of William Brigham, Esq., 
 in an article from his pen in a number of the North 
 American Review, from which all that we shall say is 
 derived, and much of it couched in his own succinct and 
 beautiful language. 
 
 § 37. The history of this colony extends through a 
 period of seventy-one years, from 1620 to 1691, when 
 it was united to Massachusetts, becoming a part of the 
 province of Massachusetts Bay. Its territory, comprising 
 most of the present counties of Plymouth, Barnstable, 
 and Bristol, together with a small tract of land now in- 
 cluded within the limits of Rhode Island, being about 
 one seventh part of the present commonwealth of Mas- 
 sachusetts. It was divided into three counties and 
 twenty townships and districts, and in 1691 it contained 
 a population of about 9000, now including upwards of 
 fifty townships and 140.000 inhabitants. As early as 
 1602 a number of persons in England, feeling themselves 
 aggrieved, began to converse upon the subject of remov- 
 ing from that country, but took no measures for that 
 purpose until 1602, when a .small number of puritans 
 settled at Leyden in Holland, where they remained until 
 July, 1620. Their first permanent settlement at Ply- 
 mouth was on the 22d December in that year. 
 
 § 38. On their arrival they found themselves with- 
 out government, — without any constituted authority by
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 57 
 
 which the members of their community could be re- 
 strained and its affairs managed. They acknowledged 
 themselves subjects of the King of England and knew 
 they were within his dominions. Yet they were too in- 
 significant and too remote to feel or fear his authority or 
 to expect any protection. No people had so fully ap- 
 preciated the value of the rights of each member of the 
 state, none had felt so deeply the great cause of humanity, 
 or entertained such cheering hopes of human improve- 
 ment. Yet such is the constitution of the human mind 
 and the nature of human attachment to the institutions 
 of ancestors, and the early associations of childhood, that 
 it was difficult for them at once to break loose from the 
 ties that bound them to their native land, or to model a 
 form of government in all respects unlike that under 
 which they had lived and suffered. No one can doubt 
 that the form and constitution of the government of Eng- 
 land was entirely unsuited to the condition of an infant 
 colony, and that the circumstances and condition of the 
 colonists demanded such a modification of their institu- 
 tions, as in many important features to change the very 
 nature and character of their political compact. 
 
 They had fled from a government which they believed 
 tyrannical, and it was not strange that they should have 
 used every precaution to resist in their new situation the 
 evils from which they had escaped. In their new situa- 
 tion they were free from all political restraints, and could 
 make in the establishment of their government and in- 
 stitutions a practical recognition of those political prin- 
 ciples upon which they believed the well being and hap- 
 piness of society rested. In this respect they had the 
 advantage over most of the other American colonies, for 
 which governments were formed previous to their settle- 
 ment by means of charters from the king. 
 
 § 39. The government of this colony dates its origin 
 from November 11th, 1620, when the Plymouth fathers 
 
 8
 
 58 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 met in a convention, in the cabin of the Mayflower, for 
 the purpose of forming a social compact. In which they 
 declared themselves the loyal subjects of King James, 
 and that their undertaking was for the advancement of 
 the Christian faith, and the honor of the king and coun- 
 try. They then enacted that l( they solemnly and mu- 
 tually, in presence of God and one another, consort and 
 combine into a civil body politic, for their better ordering 
 and preservation, and furtherance of the ends aforesaid ; 
 and by virtue thereof do enact, institute and frame, such 
 equal laws, ordinances, acts, constitutions and offices, 
 from time to time, as shall be thought most convenient 
 for the general good of the colony." To this compact 
 they all promised submission and obedience, thereby in- 
 vesting a majority with the whole political power, and 
 recognizing to the fullest extent the right of such a ma- 
 jority to govern. Unlike the Constitution of the United 
 and the several States, it made no division of political 
 powers, contained no checks, imposed no restraints on 
 the government, but left the whole to the rule and deci- 
 sion of a bare majority. 
 
 During the whole existence of the colony this form of 
 polity was continued ; and though at subsequent periods, 
 there was some division of political power, and some re- 
 strictions were imposed upon the government, yet this 
 was all done by mere acts of legislation which could, at 
 any moment, be annulled by legislative power. This 
 compact may properly be considered the only valid con- 
 stitution which the colony ever had, and to it they clung 
 with the greatest tenacity. 
 
 § 40. On the 3d of November, the king granted to the 
 Council of Plymouth the territory of New Plymouth, 
 with other lands. This rendered it necessary, to avoid 
 difficulties, for the colonists to acquire that right, which 
 was done in 1629 by a charter from the Council of Ply- 
 mouth to William Bradford and his associates. This
 
 ClIAP. IV.] LEGISLATIVE AUTHORITY. 59 
 
 charter was no more a charter of government than the 
 hundred conveyances from the natives, and so the colo- 
 nists considered it, for they spared no efforts to obtain the 
 sanction of the king to it, being aware that without this 
 they had no assurance that he would do them the favor 
 to let them alone. Their efforts were however una- 
 vailing. The king never gave his sanction, and from the 
 beginning of the colony to the end, its government can 
 properly be considered as resting on no other basis than 
 the will of the colonists themselves. For this reason, 
 we see that in every period of their history they exhibi- 
 ted a constant solicitude, not only as to the validity of 
 their government, but as to the extent of those powers 
 which they might exercise under it. 
 
 § 41. For the first sixteen years we have but a mea- 
 gre account of the legislation of the colony. There are 
 no records of the Plymouth Colony Laws till 1623 ; and 
 the first act established the trial by jury. From that 
 time a record was kept Anterior to the records of the 
 colony, the population being exceedingly small, notwith- 
 standing the community required many municipal 
 regulations, the necessity for a record was in a great mea- 
 sure obviated, from the fact that such regulations and 
 laws were adopted in general assembly of the people. 
 Their existence was thus made known to all ; and as 
 many of them partook rather of the nature of temporary 
 rules than permanent laws, there was the less necessity 
 for keeping records thereof. These laws were made at 
 first by the whole people in general assembly, but after- 
 wards by the governor, assistants, and representatives, 
 subject to the approval of the people in certain cases, 
 and then it was that records became the more necessary. 
 
 § 42. In 1636, a new era occurred in its legislation. 
 The circumstances as well as the number of the colo- 
 nists had so changed, it was found that their then sys- 
 tem was unsuited to their condition. They now found
 
 60 ORIGIN AND HISTORY OF [CHAP. IV, 
 
 it necessary to create new offices, define their powers, 
 establish fixed laws, and define more fully the authority 
 under which they acted. For this purpose, a general 
 court was called in October of that year, and a com- 
 mittee of fourteen appointed to revise the laws. Their 
 report was made, and a new code adopted within five 
 weeks, which constituted the first revision of their laws ; 
 and one copy in manuscript was made, and preserved by 
 the secretary. This code first gave form to the govern- 
 ment of the colony, and invested it with its most distin- 
 guished features. Its preamble recites the authority of 
 the colonists to make laws, and declares, that as free 
 born subjects of England, they were possessed of all the 
 rights of Englishmen ; and that as such, no law, impo- 
 sition or ordinance, should be made or imposed upon 
 them, but by their consent ; the very doctrine main- 
 tained by their descendants a century and a half after- 
 wards in the Declaration of American Independence. It 
 further provided, that an election should be held on the 
 first Tuesday of March annually, at which all their offi- 
 cers should be chosen, viz : A Governor, seven Assis- 
 tants, a Clerk, Treasurer, Coroner, Messenger, and 
 Constables. The duties and powers of those officers 
 were, to a considerable extent, defined. The governor 
 had authority to summon and dissolve the general court, 
 and was made a conservator of the public peace ; but in 
 other respects he had little more authority than any of 
 the other magistrates, except that he could cast a double 
 vote in the general court. The assistants composed his 
 council ; and both together were invested with extensive 
 judicial powers. The messenger was the chief executive 
 officer of the general court, and performed duties very 
 similar to those of a sheriff at the present day. 
 
 § 43. Until 1639 all the freemen in general court took 
 part in enacting laws, and this was not merely a privi- 
 lege but a duty enjoined under a penalty of ten shillings
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 01 
 
 sterling* This system was thus continued ; but at this 
 period the population had become so numerous and scat- 
 tered and it had become so burdensome that it was 
 abandoned. In September, 1638, the general court 
 enacted that each town in the colony, except Plymouth, 
 should choose two persons, and Plymouth four, .who 
 with the governor and assistants, should make all good 
 and wholesome laws, as Avould be for the benefit of the 
 colony, provided that all the laws so made should be 
 proposed at one general court and remain to be consid- 
 ered at the next. This provision was doubtless made 
 with a view to afford an opportunity to the representa- 
 tives of the people to consult their constituents in refer- 
 ence to the propriety and expediency of the adoption of 
 any proposed enactment. It was also further provided, 
 that if any law so enacted should be found prejudicial, 
 all the freemen assembled at the courffof election might 
 repeal it. This was the beginning of the representative 
 system of the colony, and from this time until its union 
 with Massachusetts Bay most of the laws were made 
 by the governor, assistants, and deputies, composing a 
 single body ; though at all times the freemen claimed, 
 and not unfrequently exercised, the right of assembling 
 and enacting laws for themselves. The election of de- 
 puties was regarded as a matter of convenience, and not 
 as precluding them from the rights of legislating for 
 themselves. In all cases of great importance, where the 
 representatives did not wish to take the responsibil- 
 ity, the freemen were called together, or their wishes 
 were otherwise ascertained. The representatives were 
 strictly the servants of the people, and their whole 
 power could be taken from them, even while they re- 
 mained in office. 
 
 In 1646 a law was made fixing the time of the meet- 
 ing of the general court. By this law that body was 
 required to meet in the summer at seven o'clock, in the
 
 62 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 winter at eight o'clock ; and to remain in session till 
 half past eleven, when an adjournment took place for 
 dinner. After dinner they were required to hold another 
 session, to such an hour in the evening as the governor 
 thought proper. And, in order to insure punctuality 
 and. constant attendance, each member was liable to a 
 fine of a sixpence for tardiness, and also for each hour's 
 absence during the session, thus setting an example of 
 devotion to their duties, worthy of, but little imitated 
 by modern legislators. 
 
 § 44. Anterior to 1658 no measures were adopted for 
 the publication of the laws. They w^ere kept by the 
 secretary, who had but a single copy, and who kept 
 them not in a volume by themselves, but in connection 
 with all other records he was required to make. In the 
 same manuscript volume are found the general laws, 
 judicial proceedings of the court of assistants, the re- 
 cord of deeds, wills, marriages, deaths, coroners' in- 
 quests, and accounts of special providences. Thus they 
 had grown so voluminous as to render it necessary to 
 adopt some measure for the ascertainment of those laws 
 then in force. The process of repealing and amending 
 law 7 s was to erase or expunge. Many of the laws had 
 been thus repealed or amended without any evidence 
 upon the face of the records as to the time when done. 
 At a general court held in 1656, a committee was ap- 
 pointed to " peruse the laws and reduce them to order." 
 They made a selection from the whole body of the laws, 
 suggested such amendments as they thought proper, and 
 arranged them in alphabetical order in one manuscript 
 volume. This volume was then submitted to the general 
 court and formally enacted. The general court in an 
 address to the people explanatory of these laws, remark, 
 "We have had an eye primarily and principally upon 
 the Jewish platform, and unto the right improvement of 
 the liberties granted unto us by our superiors the states
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 63 
 
 of England at the first beginning of this infant plantation, 
 which was to enact such laws as should most befit a 
 state in the non-age thereof, not rejecting or omitting to 
 observe such of the laws of our native country as would 
 conduce unto the good and growth of so weak a begin- 
 ning as ours in the wilderness." 
 
 The secretary was directed to and did prepare a 
 manuscript volume of these laws for each of the towns 
 in the colony, in whose meetings they were to be read 
 at least once in a year. It is believed that some copies 
 of these laws are still extant. There was one in the 
 town of Taunton in a good state of preservation, but 
 which was destroyed by a great fire which occurred in 
 that town, some years since. 
 
 § 45. In 1GTJ, another revision w r as made by a con- 
 vention of the general court. It was not. like the others, 
 a mere publication of the laws then in existence, but a 
 complete digest properly arranged. This was printe d 
 and is the first edition of the laws of the colony which 
 was printed. In 1684, another digest was made under 
 the direction of a committee of the general court, and 
 printed. No other edition of the laws of this colony was 
 printed till 183G, when they were again printed by an 
 order of the legislature of Massachusetts, under the su- 
 perintendence of William Brigham, Esq. ; to wdiose 
 kindness and research, as already remarked, we are 
 indebted for all the information possessed relative to 
 the facts above detailed, in reference to the legislative 
 history of this colony. 
 
 Any one desirous of more extensive information upon 
 this subject, will peruse with great pleasure as well as 
 profit, the learned article from the pen of Mr. Brigham, 
 in the April number of the North American Review for 
 1 840 ; from which w T e have in part made our extracts 
 -—and in part from a letter he had the kindness to write
 
 64 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 the author, in answer to one addressed to him for infor- 
 mation on this subject. 
 
 § 46. We shall, in the next place, direct our attention 
 to the colony of Massachusetts Bay. For a period 
 after the arrival of the colonists, they seem to have 
 been actuated by the spirit of that religion which they 
 professed, and in defence of which they too had suffered. 
 It formed the only restraint under which they lived. 
 The pure and elevated precepts which it inculcated, was 
 the only rule of civil government which was known or 
 brought into exercise in the government of the colony of 
 Massachusetts Bay. For a time at least, it seemed en- 
 tirely adequate to all the great ends of their limited 
 social compact. As the colony increased, it soon be- 
 came apparent that something more was needed to 
 strengthen the arm of civil authority, for the govern- 
 ment of a growing republic destined, as it was from its 
 position, to become a great commercial community, and 
 the inlet to a continent intrinsically inexhaustible in its 
 resources. 
 
 § 47. The first settlers in this colony had taken pos- 
 session under no other grant, except one which was 
 derived from a mere private corporation ; and which 
 necessarily could not, and did not confer any right to the 
 exercise of civil or political authority. Hence, it be- 
 came necessary and important to have their right of 
 property rest upon a more sure foundation, and that it 
 should flow to them from a source which could at the 
 same time, confer, the right of exercising some of the at- 
 tributes of sovereignty itself in founding their civil 
 institutions. In 1629, on the petition of the Massachu- 
 setts Company, seconded by the solicitations of Lord 
 Dorchester, Charles I. by charter confirmed the patent 
 of the Massachusetts colony. By this patent the com- 
 pany were incorporated by the name of " The Governor 
 and Company of the Massachusetts Bay in New Eng-
 
 CHAP* IV.] LEGISLATIVE AUTHORITY. 65 
 
 land," to have perpetual .succession forever : and it was 
 empowered to elect out of the freemen of the said com- 
 pany, a Governor, a Deputy Governor, and eighteen As- 
 sistants, to be chosen annually ; and to make laws not 
 repugnant to the laws of England.(a) 
 
 § 48. By the terms of the charter, full legislative 
 power and executive authority was conferred not on the 
 emigrants, but on the company, of which, from the very 
 fact of its location in England, the emigrants could not 
 be active members. The associates in London were to 
 establish ordinances, to settle the form of government, 
 to name all necessary officers, to prescribe their duties, 
 and to establish their criminal code. Thus it will be 
 perceived Massachusetts was not originally erected into 
 a province to be governed by laws of its own enactment. 
 It was reserved for the corporation to decide what de- 
 grees of civil rights its colonists should enjoy ; indeed, 
 the charter on which the freemen of Massachusetts suc- 
 ceeded in erecting a system of independent representa- 
 tive liberty did not secure to them a single privilege of 
 self government. They, like the Virginians, had been 
 left without one valuable franchise, entirely at the 
 mercy of a corporation without the colony, insomuch 
 that they too understood that a strict adherence to its 
 letter would reduce them to absolute slaves, (b) Nay 
 more, even the legislative power granted to the company 
 itself, was subject to the restriction of not being contrary 
 to the laws of England ; and its imposition of fines and 
 mulcts were to be " according to the course of other 
 corporations in England."(c) To surmount and rise 
 
 (a) 1 Holmes' An. 247-8; Hutch. Col. 123 ; 1 Chalm. An. 137; 1 Ban- 
 croft, 344, 345. 
 
 (6) 1 Bancroft, 344, 345. 
 
 (c) Hutch. Col. 1 to 23, 239 ; Chalm. An. 139. 
 
 9
 
 66 ORIGIN AND HISTORY OF [CHAP. TV, 
 
 above such obstacles as these, it required men just like 
 those whose minds had been animated with a spirit of 
 religious independence, and which hesitated not to ex- 
 emplify a spirit of innovation in civil as well as religious 
 policy. 
 
 The habits of mind they had acquired in casting off 
 the restraints of outward and senseless forms and exter- 
 nal rights in the one, fitted them to the work, and paved 
 the way for a kindred spirit of innovation in prosecution 
 of their natural and inherent civil rights as freemen. 
 
 § 49. Shortly after the consummation of the charter, a 
 court of the Massachusetts company was held in London 
 which settled a form of government for the new colony* 
 It ordained that eighteen persons, such as should be re- 
 puted the most wise, honest, expert, and discreet, resident 
 in the colonial plantations, should from time to time have 
 the sole management of the government and affairs of 
 the colony ; and they, to the best of their judgment, were 
 to endeavor to settle the same as might " make most to 
 the glory of God, the furtherance and advancement of 
 this hopeful plantation, the encouragement and future 
 benefit of the company, and of others, concerned in the 
 commencement and prosecution of the work." The per- 
 sons thus appointed to be entitled, "The Governor and 
 Council of London's Plantation in Massachusetts Bay in 
 New England." On the 29th of August, 1629, for the 
 purpose of promoting the determination of certain indi- 
 viduals of becoming members of the colony, and whose 
 sagacity led them to foresee the inconvenience of being 
 governed by laws made for them without their consent, 
 and whose judgment led them to the rational conclusion 
 that the colony should be governed by men resident 
 among them, rather than by those living three thousand 
 miles distant, with an intervening ocean, and over whom 
 they could have no control ; the governor and company 
 called a general court for the purpose of settling the
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 67 
 
 question, whether the government should be settled in 
 Old or New England ; and it was then determined, that 
 the government and patent of the plantation should be 
 transferred from London to Massachusetts Bay : and an 
 election was called for the purpose of electing such offi- 
 cers as should be willing to remove to the colony. John 
 Winthrop was thereupon elected governor, and a deputy 
 and assistant were also elected. («.) In this singular 
 transaction, to which there is no parallel in the history 
 of the English colonies, two circumstances merit particu- 
 lar attention : one is the power of the company to make 
 the transferance ; the other is, the silent acquiescence 
 with which the king permitted it to take place. That 
 acquiescence, however, is most satisfactorily accounted 
 for in the history of the subsequent struggle between the 
 crown and. the colony, down to the final overthrow of 
 the charter in 1684. If the validity of this determination 
 of the company be tried by the charter which constituted 
 it a body politic, and conveyed to it all the corporate 
 powers with which it was invested, it is evident that it 
 could neither exercise those powers in any mode diffe- 
 rent from what the charter prescribed, nor alienate them 
 in such a manner as to convert the jurisdiction of a tra- 
 ding corporation in England into a provincial govern- 
 ment in America ! It is quite evident that, on the one 
 hand, the king never intended this charter to operate as 
 a concession of any of his rights, or^to yield under it any 
 of his prerogatives to the colonists ; and that, on the 
 other hand, the patentees, from the first institution of the 
 company, did intend the moment they had taken pos- 
 session under it, to assume that they not only possessed 
 the natural right, but that they would exercise that right, 
 in the adoption of such form of government, and to enact 
 
 (a) Holmes' An. vol. i. pp. 247, 243.
 
 68 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 such laws as they might deem conducive to the general 
 welfare, and the growth and progress of civil, political, 
 and religious liberty in the land of their adoption.(ce) 
 
 § 50. The government of the colony, immediately after 
 the renewal of the charter, was changed in many of its 
 most important features, but its fundamental grant of 
 territory, power, and privileges, were always maintained. 
 They never ceased to recognize its obligatory force, yet 
 they at the same time, did assume to exercise political 
 powers beyond the express words of the grant. They 
 adhered to the charter as a shield against the demands 
 and prerogatives of royal authority ; but claimed that it 
 did not set any limits to the natural inherent right of 
 freemen to exercise legislative, executive, or judicial au- 
 thority. They did not view it as creating an English 
 corporation under the narrow construction of the common 
 law, but as affording the means of founding a broad po- 
 litical government, subject to the crown of England, yet 
 enjoying many exclusive privileges. (6) 
 
 § 51. The first court of assistants was held at Charles- 
 town on the 23d day of August, J 630, on board the ship 
 Arabella ; at which time the power of the administration 
 was considered, to the end that the liberties of the people 
 might be secured against the encroachments of their 
 rulers. The records of their proceedings show that these 
 colonists were men of great political sagacity as well as 
 religious zeal ; that they were not only well versed in 
 the science of politics, but that they also understood not 
 only the ethics of natural right and civil liberty, but also 
 had learned the corrupting influence which the exercise 
 of civil power exerts over the hearts of men ; for says 
 
 (a) Robt. Am. 436-7 ; 1 Story on Const. 50. 
 
 (b) 1 Hutch. His. 25, 36, 37, 410, 507, 529 ; 3 Hutch. Col. 199, 200, 203, 
 205, 207, 196, 329, 330 ; 1 Story on Const. 51.
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 69 
 
 one, " The waves of the sea do not more certainly wash the 
 shoi:e, than the minds of ambitious men arc led to invack 
 the liberties of their brcthrenJ\a) The frame of the gov- 
 ernment in the old colony, was of the utmost simplicity. 
 A governor was chosen by general suffrage, whose pow- 
 ers were subordinate to the general will. For more than 
 eighteen years, the whole body of the male inhabitants 
 constituted the legislature. The state was governed like 
 a strict democracy, and the people were frequently led 
 to decide on executive, not less than on judicial questions. 
 This, however, on the increase of population, and the 
 extension of the colony, led to the introduction of the 
 representative system ; and each town sent its represen- 
 tative to the general court. 
 
 § 52. By the terms of the charter, the fundamental 
 laws were to be enacted in the assembly of all the free- 
 men of the colony. For this purpose, the first general 
 court of the colony was held at Boston, on the 19th day 
 of October, 1630, at which many of the first planters at- 
 tended, and were made free of the colony. The very 
 first act of this assembly was to establish an elective 
 aristocracy, for it was then enacted, that the freemen 
 should in future have power to choose assistants when- 
 ever they were chosen ; and the assistants were empow- 
 ered to choose of their number, the governor and deputy 
 governor, who, with the assistants, were to make all 
 laws, and to appoint officers for the execution of them. 
 But the aristocratic spirit of this resolution was soon 
 detected, and as it did not accord with the ideas of 
 equality then prevalent among the people, it did not meet 
 with their approbation ; and the very next year, the 
 freemen, whose numbers in the mean time had been 
 greatly increased, resumed their former rights, and or- 
 
 (a) 1 Holmes' Annals, 255 ; 1 Ban. 359.
 
 70 ORIGIN AND HISTORY OP [CHAP. IV, 
 
 dained that the governor, deputy governor and assistants, 
 should thereafter be chosen by the freemen alone. It 
 was also ordained that, for time to come, no man should 
 be admitted to the freedom of the body politic but such 
 as was a member of some of the churches within the 
 limits of the same.(«) This latter ordinance has elicited 
 the most bitter invective of English, and the most cutting 
 sarcasm from the pen of American historians. 
 
 § 53. In the year 1635, they drew a general declara- 
 tion that the general court alone had the power to make 
 and establish laws, to elect officers, to raise money by 
 taxes, and to sell lands; and that every town might 
 choose representatives, not exceeding two, who should 
 have full power and the voice of the freemen, except in the 
 choice of certain officers and magistrates, wherein every 
 freeman should give his vote. Thus was established 
 the second house of representatives in any of the Ameri- 
 can colonies. 
 
 The colonists were induced to this important step by 
 the fact that their numbers had so increased, their popu- 
 lation so spread, that many of the freemen were too far 
 distant from the place where the general court was held 
 to admit of their personal attendance without great in- 
 convenience. The form of government in their native 
 country had rendered them familiar with a delegation of 
 rights, of committing the guardianship of their liberties 
 to representatives of their own choice ; and the expe- 
 rience of ages had taught them, that this sacred trust 
 must of necessity be lodged somewhere, and that it could 
 not with greater safety be delegated to other hands than 
 the immediate representatives of the people.(6) 
 
 § 54. In 1641 the general court established one hun- 
 
 (a) Robt. Am. 437 ; 1 Holmes' Ann. 262 ; 1 Ban. 360. 
 
 (b) 1 Holmes 1 Ann. 287 ; Robt. Am. 438.
 
 CHAP. IV.] LEGISLATIVE AUTHORITV. 71 
 
 dred laws, called the " body of liberties," which strongly 
 delineated the character of the people, the principles and 
 policy by which they were to be governed ; in which it 
 was, among other things, ordained that there should be 
 no monopolies, only of such new inventions as were pro- 
 fitable to the country, and those for a short time only. 
 Up to 1644 the entire legislative body sat in the same 
 room and deliberated together. A change then took 
 place in the government, by which the two houses were 
 divided, and from this time the two houses sat apart ; the 
 one composed of the magistrates, and the other of the 
 delegates ; whatever was passed by one was, thereafter, 
 sent to the other, and if both agreed to it, the act was 
 considered as passed. 
 
 This course of legislative proceeding continued until 
 the final dissolution of the charter. (a) The colonial le- 
 gislature in this colony, with the restrictions necessarily 
 arising from their dependence on Great Britain, were 
 sovereign within the limits of their colony ; all laws, 
 however, were required to receive the royal assent in 
 England, and the king possessed the power of abrogating 
 them, and they were never deemed final until they had 
 passed under his review. In respect to the mode of en- 
 acting laws, the council were chosen by the legislature, 
 and the governor had a negative on their choice. (b) 
 
 § 55. It appears, that as early as 1634 a consultation 
 had been had respecting a body of laws adapted to the 
 civil and religious state of Massachusetts, and that from 
 that period to 1648, a committee consisting of magistrates 
 and elders had been appointed almost every year to pre- 
 pare such a code for the colony. Meanwhile laws of the 
 greatest necessity had been successfully enacted. In the 
 latter year the whole of these statutes for the first time 
 
 (a) Holmes' An. 331. 
 
 (S) Story on Const, vol. i. p. 158, 159.
 
 72 ORIGIN AND HISTORY OP [CHAP. IV. 
 
 were collected together, received the ratification of the 
 general court, and were ordered to be published. (a) 
 This was the first revision of this colony's laws. Mr. 
 Brigham, in the letter addressed to me, heretofore alluded 
 to, says, " Although the general court in ordering this re- 
 vision to be made, also ordered it to be printed. I have 
 not however ever been able to ascertain that it was ever 
 printed." 
 
 § 56. In 1683 a quo warranto was issued against the 
 corporation of Massachusetts Bay. It was insisted that 
 the colonists had conformed so little to the terms of their 
 charter that they had forfeited their franchises ; and on 
 the 18th day of June their charter was conditionally ad- 
 judged to be forfeited, and the judgment was confirmed 
 on the first day of the then next Michaelmas term of the 
 court.(i) 
 
 After the judgment of forfeiture, when all the rights of 
 the corporation were deemed as restored to the crown, 
 Charles began to take measures for remodeling the polit- 
 ical frame of the colony, and vesting the offices of it in 
 other hands, but this plan was never carried into execu- 
 tion, as in every corner of his own dominions the storm 
 began to gather, which soon after burst out with such 
 fatal violence, so that during the remainder of his unfor- 
 tunate reign he was too much occupied with domestic 
 and more interesting cares and perplexities to bestow 
 any attention upon this remote and inconsiderable pro- 
 vince. In the mean time the colony remained for some 
 years in a very disturbed state, under the arbitrary power 
 of the crown.(c) 
 
 § 57. Whatever opinions might have been entertained 
 that the subjection of the colony depended on compact 
 
 (a) 1 Holmes' An. 344, 345. 
 (J) 1 Holmes' An. 460. 2 Ban. 127. 
 
 (c) 1 Holmes' An. 460, 475. 2. Ban. 127. 1 Rob. Am. 44. 1 Story on 
 Const. 54.
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 73 
 
 between it and the crown. They certainly were compel- 
 led to submit to superior power, and to such form of gov- 
 ernment as Charles II. and his successor James saw fit to 
 establish until 1689, when William and Mary were pro- 
 claimed successors to the throne of England. On the 
 arrival of the Prince of Orange they resumed their char- 
 ter, and strove hard to secure the establishment of it, but 
 without success, until 1691. This era in the history of 
 the colony brings us to the third period in its legislative 
 history. In the latter year a new charter was obtained, 
 which was received at Boston on the 14th day of May, 
 1692. The province now embraced within this new 
 charter the whole of the old colony, to which was added 
 New Plymouth, the provinces of Maine and Nova Scotia, 
 and all the country between Maine and Nova Scotia, 
 which necessarily led to the union of the two colonies of 
 Massachusetts Bay and New Plymouth. Under the 
 new charter there was to be an annual meeting of the 
 general court on a day therein designated, with authority 
 to the governor to call an assembly at any time he thought 
 proper, and to adjourn, prorogue, and dissolve at pleasure. 
 He had no vote in the legislature, nor ought he to interest 
 himself in matters of debate in either house ; but no act 
 of government was valid without his assent. He ap- 
 pointed all military and judicial officers, with consent of 
 the council ; all other civil officers were elected by the 
 two houses, the governor having a negative vote. Twen- 
 ty-eight councillors were annually chosen by the general 
 court or assembly. Mr. Justice Story says, " The first 
 charter of Massachusetts might be open to the objection 
 that it provided only for a civil corporation within the 
 realm, and did not justify the assumption of extensive 
 executive, legislative, and judicial powers which were 
 afterwards exercised upon the removal of that charter 
 to America; and a similar objection might be urged 
 against the Plymouth colony. But the charter of Wil- 
 
 10
 
 74 ORIGIN AND HISTORY OP [CHAP. IV. 
 
 liam and Mary of 1691, was obviously upon a broader 
 foundation, and was, in the strictest sense, a charter for 
 general political government, a constitution for a state 
 with sovereign powers and prerogatives, and not for a 
 mere municipality. By this last charter the organiza- 
 tion of the different departments of the government was 
 in some respects similar to that in the provincial govern- 
 ments. By the statute 7 and 8 Wm. III., chap. 22, § 6, 
 it was required that all governors appointed in charter 
 and proprietary governments, should be approved by the 
 crown before entering upon the duties of their office ; 
 but this statute was, if at all, ill observed, and seems to 
 have produced no essential change in the colonial policy." 
 1 Story on Const. 146, 147. 
 
 § 58. After the vacating of the colony laws under the 
 old charter by the publication of the new charter, there 
 was room to question what was the rule of law in civil 
 and criminal cases, and how far the common law and 
 what statutes were in force. The council appointed by 
 the charter were to continue until May, 1693, and hence 
 no provision was made for a general assembly in May, 
 1692. But writs issued immediately on the governor's 
 arrival, and the court met on the 8th day of June in 1692, 
 and an act passed declaring that all laws of the colony 
 of Massachusetts and the colony of New Plymouth not 
 inconsistent with the charter should be in force in the 
 respective colonies to the 10th of November, 1692, ex- 
 cept where other provisions should be made by act of 
 assembly; and all justices of the peace, (assistants, like 
 aldermen of London, were ex officio justices under the 
 old charter,) had the same powers given to them in the 
 execution of laws which magistrates used to have. (a) 
 It was proposed that the members of the general court 
 
 (a) Hutch. Hist. Mass. vol. ii. pp. 20, 21, 22.
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 75 
 
 should during the recess consider of such laws as were 
 necessary to be established ; for the act reviving the col- 
 ony laws as has been seen, was to continue in force no 
 longer than until the tenth day of November, 1692. 
 
 This was a work of great importance, and required the 
 wisest heads and the purest hearts, and should have 
 been committed to select persons, and devised under a 
 preconcerted plan, the whole of which each person should 
 have kept in view. But such was not the fact, and as is 
 usually the case, the want of this wise foresight has 
 caused the people of the province to experience many 
 inconveniences, for the construction of many laws have 
 been doubtful and varying, it being impossible to re- 
 concile the several parts of their colonial code with 
 each other, or with any general principles of law what- 
 ever ; besides being framed one after another as they 
 happened to be brought in, and sent to England lor 
 allowance. Some were disapproved ; others, which de- 
 pended upon, or had some connection with those which 
 were disapproved, were allowed ; whereas if one com- 
 plete code or system had been prepared and sent to 
 England, such alterations would have been proposed as 
 might finally have issued in a well digested and con- 
 sistent body of laws ; and a temporary provision might 
 have been made until a well digested perpetual rule 
 should have been devised and settled. 
 
 § 59. Seven years had passed, and four different acts 
 had been sent, one after another, to England, for estab- 
 lishing courts of justice, before the royal approbation 
 could be obtained. It seems to have been the practice 
 of the administration there (and that practice well enough 
 received in the province) to point out, either in the order 
 disallowing laws, or to the agent who presented them, 
 the particular exceptions, and to propose such altera- 
 tions as might render them acceptable, except in those 
 cases where the law in all its parts was disapproved.
 
 76 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 From the fact that the legislature, under the old charters, 
 was composed of the same men who held seats under 
 the new one, we find the same spirit pervading the new 
 laws which characterized the old. So striking was the 
 similarity in some instances, the same mind must have 
 indited the old as well as the new ones, or the latter 
 was chiefly a transcript from the former. The first act 
 was a sort of magna charta, asserting and setting forth 
 their general privileges, and this clause was among the 
 rest: "No aid tax, tallage, assessment, custom, loan, 
 benevolence, or imposition whatever shall be laid, as- 
 sessed, imposed, or levied, on any of their majestie's 
 subjects, or their estates, on any pretence whatsoever, 
 but by the act and consent of the governor, council 
 and representatives of the people assembled in general 
 court." 
 
 ' The other parts of the act were copied from magna 
 charta. This was soon disallowed : so was an act pun- 
 ishing capital offenders, amongst whom are ranked idola- 
 ters, blasphemers, and incestuous persons ; and what the 
 benignity of the common law makes manslaughter, was 
 by this act expressly declared to be wilful murder. This 
 law was framed from the judicial law of Moses. Divers 
 other acts which discovered the same spirit, met with a 
 sfmilar fate. The danger they had been in from Sir 
 Edward Andros calling their title in question, it is sup- 
 posed, must have occasioned an act for quieting possession, 
 declaring that three years' quiet possession should give 
 a title, with a usual saving clause as to infants, &c. 
 This was probably thought too short a time, and it was 
 disallowed, as was an act for the equal distribution of 
 insolvent estates. The "rule of law for paying debts 
 according to their nature and degree was thought prefer- 
 able, but the people having never been used to this, it 
 would have been very inconvenient ; and, upon further 
 trial, the act, or one to the same purpose, was allowed,
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 77 
 
 It was indeed difficult to assign a sufficient reason why 
 not only one set of creditors of a deceased insolvent 
 should be paid their full debts, to the exclusion of all 
 others. Not even an executor or administrator had it 
 in his power to pay himself, to the exclusion of others 
 whose debts were of the same nature. 
 
 § 60. Other acts were passed and approved, among 
 which was one for preventing of frauds and perjuries, 
 conformable to the statutes of Charles II. Others for 
 punishing criminal offences, in many points mitigating 
 the penalties at common law : for the observation of the 
 Lord's day ; solemnizing marriages by a minister, or a 
 justice of the peace ; settlement and support of ministers 
 and schoolmasters ; regulating towns and counties ; re- 
 quiring the oaths appointed, instead of the oaths of alle- 
 giance and supremacy ; also the oaths of officers ; estab- 
 lishing fees ; ascertaining the number and regulating the 
 house of representatives ; as well as divers other acts of 
 immediate necessity and general utility, which have been 
 in force ever since, except as partially modified, but 
 none of more universal influence than the act for the 
 settlement of the estates of persons dying intestate. In 
 a new country the length of time an estate has been in 
 a family, cannot be urged for the further continuance of 
 it ; where improvements in the social condition of so- 
 ciety are continually making, the personal estate is con- 
 tinually changing into real, which increases the natural 
 injustice of one child taking the real estate of the parent 
 to the exclusion of the other children : it was, therefore, 
 thought reasonable that the real as well as personal 
 estate of a parent should be equally distributed among 
 his or her children, saving to the eldest son, either from 
 the rules in the law of Moses, or the supposed just claim 
 from primogeniture, a double share. The act was there- 
 fore, in general planned upon the statutes of distribution, 
 but gave two shares to the eldest son, and undoubtedly,
 
 78 ORIGIN AND HISTORY OF [CHAP. IV. 
 
 in the distribution among the children of an intestate, 
 respected real estate in like manner with peisonal. 
 The widow had her third in the real estate for life only. 
 It is evident that the principal point in view was to make 
 real estate partible among the children of an intestate ; 
 and that they never considered the full operation of the 
 clause in the statute, and which was also brought into 
 the act, that where there were no children the whole 
 estate should go to the next of kin of the intestate. Ac- 
 cordingly, for more than thirty years after the framing of 
 this law, it was a prevailing practice, though perhaps 
 not universal, for real estate to descend and be distributed 
 by the court of probate as at common law, the instances 
 of children of intestates only excepted. At length, by 
 judgment of common law, first the half-blood, then the 
 father and the mother have been determined to be enti- 
 tled to the real, in like manner with the personal estate. 
 General entails were adjudged, notwithstanding, to be 
 partible. It has been supposed that upon this principle, 
 that by this act the common law was altered only in 
 respect to intestate estates, and takes place in devises as 
 if it had not been made. It was indeed, in express 
 terms declared in the law of the Plymouth colony, that 
 lands in fee simple should go to all the sons, the eldest a 
 double share, but that entails should go according to 
 the laws of England. (a) 
 
 § 61. In 1672, a new digest of the laws was made 
 and printed. There was no other edition published after 
 the union. In 1814, the colonial and provisional laws 
 were both published by order of the legislature, under 
 the supervision of Ashael Stearns and Lemuel Shaw. 
 No edition of this law has been published since. Under 
 the province there were numerous editions of the laws 
 
 (a) 2 Hutch. His. 63, 64, 65, 66.
 
 CHAP. IV.] LEGISLATIVE AUTHORITY. 79 
 
 published, but the names of the editors do not appear in 
 them. They were all published by order of the general 
 court, as follows : 
 
 In 1703, all the laws from June, 1692, to May, 1703. 
 
 In 1726, a new edition, containing all the laws from 
 1792 to that time. 
 
 In 1750, another edition was published containing all 
 the laws to May, 1750. 
 
 In 1755, another edition containing all previous laws 
 to May of that year. 
 
 In 1765, there was an edition of temporary acts and 
 laws from 1736 to 1765. 
 
 Mr. Brigham says there may have been some other 
 editions of the province laws published, but he has been 
 unable to find any until the one in 1814, before men- 
 tioned, which is the last. Under the State Constitution, 
 there have been published the following editions of the 
 state laws, viz : 
 
 In 1788, all laws from the adoption of the constitution 
 in 1780 to May session, 1788. 
 
 In 1796, laws from 1789 to 1796. 
 
 In 1801, laws from 1780 to 1801. 
 
 In 1816, laws from 1780 to 1816, in four vols. 
 
 In 1823, the general laws from 1780 to 1822, under 
 the supervision of Ashael Stearns, Lemuel Shaw and T. 
 Metcalf, Esqis., in two volumes. Also, the special laws 
 for the same period in five volumes. 
 
 In 1836, the Revised Statutes were published under 
 the supervision of T. Metcalf and Horace Mann, Esqrs. 
 In 1837, the special laws from 1822 to 1837, were pub- 
 lished under the supervision of Samuel B. Walcott, Esq. 
 These, it is believed, are all the editions of the state 
 laws which have been published, except such as have 
 been printed annually by the legislature.
 
 80 ORIGIN AND HISTORY OF [CHAP. V. 
 
 CHAPTER V. 
 
 § 62. Connecticut was originally founded under two 
 distinct and independent colonial governments. The 
 seat of government of the one was at Hartford, and that 
 of the other at New Haven. They remained as inde- 
 pendent governments until they were united under the 
 charter of Charles II. of 1662. The union was not 
 consummated until 1665. The colonists, who emigrated 
 from England, brought with them a knowledge of the 
 law and jurisprudence of that country. It cannot be 
 said that they were necessarily subject to them, as those 
 laws had no extra territorial authority, hence could not 
 bind their persons ; nor were they at all adapted to their 
 new condition in their new circumstances ; nor was it 
 possible they should be, for it has been justly said that 
 " The principles of their government, as it respected the 
 prerogatives of the crown, the estate, rights, and powers 
 of the lords, and the tenure of their lands, were derived 
 from the feudal system. The privilege of sending mem- 
 bers of parliament from the towns, cities and boroughs, 
 to compose one branch of the legislature, and an exemp- 
 tion from taxation only by their consent, was extorted 
 from the kings by the barons, and is confirmed by the 
 great charter of liberties as of his gift and grant. Their 
 other laws were calculated for a great commercial na- 
 tion. As to their criminal code, it was adapted to a 
 people grown old in the habits of vice — where the 
 grossest enormities and crimes were practiced.' In 
 every respect, therefore, their laws were unsuited to an 
 infant colony or state, where the government was in the 
 people, and which had virtue for its principle, and the
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 81 
 
 public good for its object and end — where the tenure of 
 their lands was free and absolute, the objects of trade 
 few, and the commission of crimes rare. Thus circum- 
 stanced, they very early established a constitution and 
 government by their own authority, which was adapted 
 to their situation, and enacted laws for the due and regu- 
 lar administration of justice. (a) 
 
 The colonial history of Connecticut is divided into 
 three subdivisions. The first, embracing the history of 
 the Connecticut colony from its first settlement in 1636, 
 down to the period of the union of the New Haven and 
 Connecticut colonies. The second, comprising the his- 
 tory of the colony of New Haven from 1637 to the same 
 period. The third, the history of the two colonies 
 united, from the union in 1665 to the period of the 
 American Revolution. 
 
 § 63. The emigrants to the colony of Connecticut 
 under the guidance and direction of Pynchean and Haines, 
 pitched their tents on the western banks of the river 
 Connecticut, near Hartford, in 1636 ; having first ob- 
 tained permission of the general court of Massachusetts. 
 It is difficult to discover what was the object of this 
 permission, unless it was under the assumption that the 
 citizen did not possess the right of expatriation from the 
 colony to which he had attached himself without its 
 consent; for the preamble to the commission itself 
 acknowledged that the lands which they intended to 
 take possession of, were without the commonwealth and 
 body of Massachusetts, and that certain noblemen in 
 England claimed jurisdiction there ; and, because their 
 minds were unknown, and there was a necessity of some 
 government there, without the least pretence of authori- 
 ty to do so, they appointed Roger Ludlow, Esq., and 
 
 (a) Robertson's Am. 3, 4. 
 11
 
 82 ORIGIN AND HISTORY OF [CHAP. V. 
 
 others therein named, with full power and authority to 
 hear and determine, in a judicial way, all matters in 
 difference between party and party, to inflict corporal 
 punishment, imprisonment and fines, and to make orders 
 and decrees for the present, as should be necessary 
 for the plantation relating to trading, planting, building, 
 military discipline, or defensive war, if need required, 
 and to convene the inhabitants in a general court : the 
 commission to terminate in one year, and might be re- 
 called if a form of government should sooner be agreed 
 on between the said nobles, the inhabitants, and Massa- 
 chusetts, (a) 
 
 Hutchinson supposes that there is no accounting for 
 this stretch of power, except upon the principle, at that 
 time generally received, and which was afterward de- 
 clared by the general court, That the oath of fidelity to 
 the commonwealth was binding even though the person 
 should no longer reside within the limits.(b) 
 
 § 64. In 1636, the inhabitants of this colony, then 
 resident in the three towns of Windsor, Hartford and 
 Wethersfield, entered into a voluntary association, chose 
 magistrates, made laws for themselves, and convened 
 the first general court of the colony on the 6th day of 
 April of that year. 
 
 The territory comprised within its limits in 1630 had 
 been granted by the council of Plymouth to Robert, the 
 Earl of Warwick, which was subsequently confirmed 
 by a patent from Charles I.(c) 
 
 In 1631, the Earl of Warwick, President of the 
 Council of Plymouth, granted unto the Hon. William 
 Viscount Say and Seal, and to others, their heirs, as- 
 signees and associates, forever, u All that part of New 
 
 (a) 1 Hutch. Hist. 96. 
 
 (b) Ibid. 96, 97. 
 
 (c) 1 Hoi. An. 260 ; 1 Chalm. Ann. 299.
 
 CHAP. V,] LEGISLATIVE AUTHORITY. 
 
 England, in America, which lies and extends itself* from 
 a river there, called Naragansett river, the space of forty 
 leagues upon a straight line near the sea shore, towards 
 the south-west, west and by south, or west as the coasts 
 lieth toward Virginia, accounting three English miles to 
 the league, and all and singular the lands and heredita- 
 ments lying and being within the limits aforesaid, north 
 and south in latitude, and in length and longitude of 
 and within all the breadth aforesaid from the northern 
 ocean and the south seas, &c."(«) 
 
 This was the original patent of Connecticut. The 
 settlers of the two colonies of Connecticut both claimed 
 as patentees under Viscount Lord Say and Seal, and his 
 associates.(6) 
 
 § 63. The Connecticut colonists continued to act 
 under their original voluntary association until January 
 14th, 1639, when all the free planters convened at Hart- 
 ford, and after mature deliberation, adopted a constitu- 
 tion of government which was admirably adapted to the 
 wants and necessities of the people. It guarded against 
 any encroachments upon the rights of the subjects. It 
 formed the basis of the most free and happy constitution 
 of civil government which was ever formed. It is not 
 a matter of surprise that it has received the admiration 
 of historians and statesmen in after ages, when, (as re- 
 marked by a historian,) " it is remembered that it origi- 
 nated at a period when the lights of civil liberty were 
 wholly extinguished in most parts of the earth, the 
 rights of men but little understood, and less regarded, 
 by the potentates of this world." Its introduction de- 
 clared, that for the establishment of order and of gov- 
 ernment, they associated and conjoined themselves to be 
 one public state or commonwealth, and did, for them- 
 
 (a) 1 Trurab. Hist. 27. {b) Ibid. 28.
 
 84 ORIGIN AND HISTORY OF [CHAP. V. 
 
 selves and successors, and such as should be at any time 
 joined to them, confederate together to maintai?i the 
 liberty and purity of the gospel which they professed, and 
 the discipline of the church according to its institu- 
 tions, and in all civil affairs to be governed according to 
 such laws as should be made according to the constitu- 
 tion which they were then about to adopt. 
 
 The constitution then ordained that there should be 
 annually two general courts or assemblies ; one on the 
 second Thursday in April, and the other on the second 
 Thursday in September : that the first should be a court 
 of elections, in which should be annually chosen at least 
 six magistrates, and all other public officers : that a gov- 
 ernor should be chosen distinct from the six magistrates, 
 for one year, and until another should be chosen and 
 sworn. The governor and magistrates should be sworn 
 to a faithful execution of the laws of the colony, and in 
 cases where there was no express law established, to 
 be governed by the Divine word. The choice of officers 
 was to be made by the whole body of the freemen con- 
 vened in general election. All persons who had been 
 received as members of the several towns by a majority 
 of the inhabitants, and had taken the oath of fidelity to 
 the commonwealth should be admitted freemen of the 
 colony. It required the governor and magistrates should 
 be elected by ballot ; the governor by the greatest num- 
 ber of votes, and magistrates by a majority. If at any 
 time it should happen that six should not have a majori- 
 ty, in that case those who had the greatest number of 
 suffrages should stand as duly elected for that year. 
 
 No person could be governor, unless a member of 
 some church, and had previously been a magistrate in 
 the colony ; nor could any man be elected to the office 
 more than once in ten years. No one could be chosen 
 unto the magistracy who was not a freeman of the colo- 
 ny, and had been nominated either by the freemen or
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 85 
 
 the general court. The assembly were authorized to 
 nominate in cases in which they judged it expedient. 
 Neither the goveftior nor magistrates might execute any 
 part of their office until they had been publicly sworn 
 in the face of the general assembly. The several towns 
 were required to send their respective deputies to the 
 election, and wlien it was finished, they should proceed 
 to any further service as at any other time, that of enact- 
 ing of laws, and any other public service. The governor 
 was authorized, either by himself or his acting secretary, 
 to issue his warrant for calling the assembly, one month 
 at least before the time - of their appointed meetings : 
 upon particular emergencies he might convene them in 
 seventeen days, or even upon shorter notice, stating his 
 reasons in the warrant. Upon the reception of the gov- 
 ernor's warrant, in April and September, the constables 
 of the respective towns w T ere obliged to warn all the 
 freemen to elect and send their deputies. Windsor, 
 Hartford and Wethersfield, were required to send four 
 deputies each to every general court, and the other towns 
 which should be added to the colony in the future, should 
 send such number as the court should determine propor- 
 tionate to the body of their freemen. The deputies were 
 declared to be vested with the whole power of the re- 
 spective towns which they represented. They had 
 authority to meet and determine their own election, and 
 to fine any person who should intrude himself upon 
 them, when he had not been duly chosen, or to fine any 
 of their members for disorderly conduct when they w T ere 
 assembled. Provision was made that in case the gover- 
 nor and the major part of the magistrates should, upon 
 any urgent occasion, neglect or refuse to call an assembly, 
 the freemen should petition them to summon one ; and 
 if, upon the petition of a major part of the freemen in the 
 colony, they still neglected or refused, then the consta- 
 bles of the several towns should, upon the petition of
 
 86 ORIGIN AND HISTORY OF [CHAP. V. 
 
 the major part of the freemen, convoke an assembly. 
 That when the assembly was thus convened, it should 
 have power to choose a moderator. "Vjflicii it was thus 
 formed, it should exercise all the powers of any other 
 general assembly. Particularly, it was authorized to 
 call any court, magistrate, or any other person before it ; 
 and to displace, or inflict penalties, according to the 
 nature of the offence. All general assemblies called by 
 the government, were to consist of the governor, four 
 magistrates, and the major part of the deputies. When 
 there was an equal vote, the governor had a casting- 
 vote. Provision was made, that no general court should 
 be adjourned or dissolved without the consent of the 
 major part of the members ; and that whenever a tax 
 was laid upon the inhabitants, the sum to be paid by 
 each town should be determined by a committee con- 
 sisting of an equal number from each of the respective 
 towns. The form of oaths to be administered to the 
 governor and magistrates was also adopted in the gene- 
 ral convention of the free planters. 
 
 § 6Q. Such in substance, was the original constitution 
 of Connecticut, of which a modern historian with great 
 propriety has said, " More than two centuries have 
 elapsed, the world has been made wiser by the most va- 
 rious experience, political institutions have become the 
 theme on which the most powerful and cultivated minds 
 have been employed, and so many constitutions have 
 been framed, or reformed, stifled or subverted, that 
 memory may despair of a complete catalogue ; but the 
 people have found no reason to deviate from the frame 
 of government established by their fathers. No juris- 
 diction in the English monarch was recognized : the 
 laws of honest justice were the basis of this common- 
 wealth, and therefore its foundations were lasting. 
 These humble emigrants invented an admirable system, 
 for they were near nature, listened willingly to her voice.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 87 
 
 and easily copied her forms. No ancient usages, no 
 hereditary differences of rank — no established interest, 
 impeded the application of the principles of justice. 
 Freedom springs spontaneously into life, the artificial 
 distinctions of society require centuries to ripen ! 
 
 History has ever celebrated the heroes who have won 
 laurels in scenes of carnage ; has it no place for the 
 founders of states ? the wise legislators who struck the 
 rock in the wilderness so that the waters of liberty 
 gushed forth in copious and perennial fountains? They 
 who judge of men by their services to the human race, 
 will never cease to honor the memory of Hooker and 
 Haines. "(a) 
 
 This constitution continued to be the fundamental 
 law of the colony during the whole period of its inde- 
 pendent existence, and its spirit was introduced into 
 the charter of 1 662, and its influence felt even down to 
 the year 1818, when many of its main features were in- 
 corporated into the present constitution of the state of 
 Connecticut. 
 
 Agreeably to its provision, the freemen of the colony 
 convened at Hartford, on the second Thursday of April, 
 and elected the officers of government. The general 
 assembly proceeded as they had leisure, and as occasion 
 required, to enact a system of laws. The laws at first 
 were few, and time was taken to consider and digest 
 them. The first statute in the Connecticut code is a 
 kind of declaration, or bill of rights. It ordains that 
 no man's life shall be taken away — no man's honor or 
 good name be stained — no man's person shall be ar- 
 rested, restrained, banished, dismembered, nor any wise 
 punished — that no man shall be deprived of his wife or 
 children ; no man's goods or estate shall be taken away 
 
 (a) Bancroft's History, vol. i. p. 402,
 
 88 ORIGIN AND HISTORY OF [CHAP. V. 
 
 from him, nor in any wise endangered, under color of 
 law, or constitutional authority, unless it should be some 
 express law of the colony warranting the same, estab- 
 lished by the general court and sufficiently published ; 
 or, in case of the defect of such law in any particular 
 case, by some clear and plain rule of the Word of God, 
 in which the whole court should concur. It was also 
 ordained that all persons in the colony, whether inhabi- 
 tants or not, should enjoy the same laws and justice, 
 without partiality or delay. Their general precepts bore 
 the same aspect, and breathed the same spirit of liberty 
 and safety, with respect to the subjects universally, 
 which is exhibited in the constitution. 
 
 In the 14th year of Charles II., (1662,) Connecticut, 
 being desirous of some more potent friend and ally, and 
 proposing to herself other advantages by a connection 
 with the crown of England, as a free trade with an old 
 manufacturing country ; also, the extinguishment of the 
 claims which the crown had upon the lands in right of 
 discovery, and her sister state, Massachusetts, having led 
 the way by forming a similar connection. They caused 
 a constitution of government to be drawn up in the form 
 of a charter, so as to include the colony of New Haven, 
 which Mr. Winthrop, their agent, agreeably to the prin- 
 ciples and spirit of their former government, presented 
 to the king and council. And he, aided by Lord Say 
 and Seal, obtained its confirmation in 1 662, which con- 
 veyed the most ample privileges under the great seal of 
 England. 
 
 By this charter they obtained from the crown a con- 
 firmation and guaranty of all their rights, prerogatives 
 and powers, which they had enjoyed and exercised 
 before as a sovereign and independent government. Also, 
 a grant and confirmation of their title to the lands de- 
 scribed in the charter, to hold in fee and common socage, 
 with all the islands, waters, rivers, shores, fisheries,
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 89 
 
 quarries, mines, minerals, &C, reserving one-fifth part of 
 the gold and silver, which might from time to time be 
 gotten there, in lieu of all service, duties and demands, 
 whatsoever : and also, all the rights and immunities of 
 natural born subjects of the crown of England, wilh the 
 privileges of free trade to all parts of the king's domin- 
 ions. It ordained that John Wintworth, Joh.i Mason, 
 and seventeen other persons therein named, and all such 
 others as there were, or should thereafter be admitted 
 and made free of the corporation, should forever after be 
 a body corporate and politic in fact, and in name of " The 
 Governor and Company of the English Colony of Con- 
 necticut, in New England in America." 
 
 § 67. It ordained, among other things, there should 
 be annually two general assemblies ; one holden on the 
 second Thursday of May, and the other on the second 
 Thursday of October. This was to consist of the gov- 
 ernor, deputy governor, and twelve assistants, with two 
 deputies from every town or city. John Winthrop was 
 appointed governor, and John Mason deputy governor, 
 and the other persons therein named magistrates, until a 
 new election should be made. By this the general as- 
 sembly, consisting of the governor and council, composed 
 of twelve assistants, seven of whom made a quorum, 
 and the representatives of the people, not exceeding two 
 from each town, were invested with supreme power of 
 legislation ; also of constituting courts, with final juris- 
 diction in all civil and criminal causes, of appointing 
 judges, and all other officers of government necessary for 
 the well ordering and governing the affairs of the colony, 
 with this reservation only, that they should make no 
 law repugnant to the laws of England, and this could 
 hardly be called a restraint upon legislative power. 
 
 The style of enacting statutes was as follows : " Be it 
 enacted by the governor and council and representatives, 
 
 12
 
 90 ORIGIN AND HISTORY OF [CHAP, V, 
 
 in general court assembled, and by the authority of the 
 same." Thus it will be perceived, that the colonists 
 although they became connected with, and subordinate 
 to the crown of England with the rights of subjects, 
 yet that they assumed and claimed that they were 
 under no obligation of obedience to the government and 
 laws of the kingdom. This, it has been said, was upon 
 three grounds : 1 st. They were the laws of the realm of 
 England, which could not extend to those who were out 
 of it. 2d. They were inapplicable to their situation 
 and circumstances in this country. 3d. Neither the 
 parliament nor the people of England had any authority 
 over them, to control their persons or to bind their pro- 
 perty, derived either from conquest, compact, or from 
 their being represented, actually or virtually, in the par- 
 liament of England, or from any other consideration 
 whatever.(«) 
 
 The charter of 1662, contained a very extensive grant 
 of political power. It authorized the company to have 
 a common seal, to appoint judicatures, make freemen, 
 constitute offices, establish laws, impose fines, assemble 
 the inhabitants in martial array for common defence, and 
 to exercise martial law in all cases in which it might be 
 necessary. It also ordained, that all the king's subjects 
 in the colony should enjoy all the privileges of free and 
 natural subjects within the realm of England, and that 
 the patent should always have the most favorable con- 
 struction for the benefit of the governor and company.(6) 
 This charter comprehended the colony of New Haven. 
 It, however, did not yield to the government of Connecti- 
 cut until after a most strenuous struggle and resistance 
 to a union, until 1665, at which time they finally as- 
 sented to it. 
 
 (a) Robt. Am. 6. (b) 1 Trumbull, 249.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 91 
 
 § 68. This leads us to the consideration of the second 
 subdivision of this historical sketck, to wit: the history 
 of the colony of New Haven, from its first settlement, 
 to the time of its union with that of Connecticut. 
 
 Shortly after the removal and settlement in the colony 
 of Connecticut, and while the settlers of that colony 
 were engaged in laying the foundation of their civil and 
 political institutions, a project was formed for the settle- 
 ment of another colony at a place known to the Indians 
 by the name of Q,uinipiack, afterwards called New 
 Haven. On the 26th July, 1637, John Davenport, 
 Samuel Eaton, and many others of character and for- 
 tune, arrived at Boston ; who, from their character, were 
 much pressed to settle in Massachusetts. Davenport, 
 who was a learned and pious divine, and his congrega- 
 tion who had come over with him, determined upon the 
 settlement of a distinct colony, and finally settled upon 
 New Haven as the place of their residence. On the 
 30th of March, 1638, they sailed £rom Boston, and ar- 
 rived at New Haven in about two weeks ; and, on the 
 18th of April, 1838, they spent their first sabbath under 
 a large and spreading oak, and listened to the oracles of 
 God from their pastor and leader. The motives which 
 influenced their principal men in undertaking this new 
 settlement, was undoubtedly a desire of being at the 
 head of a new government, modelled, both in civil and 
 religious matters, agreeably to their own peculiar tenets; 
 which led them to devise the formation of a civil and 
 religious constitution as near as possible to scripture 
 precepts and example. (a) 
 
 Soon after their arrival, after a day devoted to reli- 
 gious fasting and prayer, they entered into what they 
 termed a plantation covenant ; by which they bound 
 
 (a) 1 Trumb. 95.
 
 92 ORIGIN AND HISTORY OF [CHAP. V. 
 
 themselves, " That, as in matters that concern the 
 gathering and ordering of a church, so also in public 
 offices which concern civil order, as choice of magistrates 
 and officers, making and repealing laws, dividing allot- 
 ments of inheritance, and all things of a like nature, they 
 would all of them, be ordered by the rules which the 
 scripture held forth to them." 
 
 § 69. They continued to act under this agreement 
 until 1639, when, on the 4th of June, all the free plant- 
 ers met in a large barn ; and in a very formal and 
 solemn manner, proceeded to lay the foundation of their 
 civil and religious polity. Their spiritual head intro- 
 duced the business by preaching from these words — 
 " Wisdom hath builded her house, she hath hewn out 
 her seven pillars." The design of which was to show, 
 that the church, the house of God, should be formed of 
 seven pillars, or principal brethren, to whom all the 
 others should be added. He then proceeded to represent 
 to the planters, that they had met to consult respecting 
 the settlement of a civil government, according to the 
 will of God ; and for the nomination of persons, who, 
 by universal consent, were in all respects the best quali- 
 fied for the foundation of a church. They then proceeded 
 to the adoption of a fundamental law, which declared 
 " That the scriptures hold forth a perfect rule for the 
 direction and government of all men, in all duties which 
 they are to perform to God and man, as well in families 
 and commonwealths, as in matters of the church. That, 
 as in matters which concerned the gathering and order- 
 ing of a church, so likewise in all public offices which 
 concern civil order, as the choice of magistrates and offi- 
 cers, making and repealing laws, dividing allotments of 
 inheritance, and all things of like nature, they would all 
 be governed by those rules which the scriptures held 
 forth to them. That all those who desired to be re- 
 ceived as free planters, had settled in the plantation with
 
 CHAP. V.] * LEGISLATIVE AUTHORITY. 93 
 
 a purpose, resolution and desire, that they might be ad- 
 mitted unto church fellowship according to Christ* That 
 all the free planters held themselves bound to establish 
 such civil order, as might best conduce to the security of 
 the church and peace of the ordinances to them and their 
 posterity, according to God.' 3 
 
 A committee of twelve were thereupon chosen for the 
 purpose of selecting seven men qualified for the founda- 
 tion work of organizing the government. Eaton, Daven- 
 port and five others were selected as the " seven pillars" 
 for this new house of wisdom in the wilderness ; who in 
 August, 1639, assembled, possessing for a time the most 
 absolute power, having abrogated every previous exe- 
 cutive trust. They admitted to the court all church 
 members. («) 
 
 § 70. It was decreed by the freemen that there should 
 "he a general court annually in the plantation in the last 
 week of October. This was ordained a court of election, 
 in which all the officers of the colony were to be chosen 
 under the form of government here established. All go- 
 vernment was originally in the church, and the members 
 of the church elected the governor, magistrates, and all 
 the other officers. The magistrates seemed first to have 
 been no more than mere assistants to the governor, and 
 had no right to act in any sentence or determination of 
 the court. The general court consisted of the governor, 
 deputy governor, magistrates, and two deputies from 
 each plantation, and was declared to be " The snjweme 
 power under God of this independent dominion" and had 
 authority " to declare, forbid, and establish the laws of 
 God, the supreme Legislator, to make and enforce orders 
 for smaller matters, not particularly determined in Scrip- 
 ture, according to the general rules of righteousness. To 
 order all affairs of war and peace, and all matters rela- 
 
 (a) 1 Bancroft, 404.
 
 94 ORIGIN AND HISTORY OF *[CHAP. V. 
 
 tive to defending or fortifying the country. To receive 
 and determine all appeals, civil or criminal, from any 
 inferior court, in which they were to proceed according 
 to Scripture light and laws, and orders agreeing there- 
 with. A court of magistrates were to meet or he held 
 twice every year to determine all weighty causes, civil 
 or criminal, above those limited to plantation courts, and 
 to receive and try all appeals from plantation courts. 
 
 In this court, when the voices were equal, the gover- 
 nor, or in his absence the deputy governor, had a casting 
 voice. A court was established in each plantation, in 
 which there were to be one or more magistrates. The 
 freemen were to choose two, three, or four deputies to 
 assist the magistrates for the trial of civil causes not ex- 
 ceeding £20, and criminal where the penalty did not 
 exceed punishment in the stocks, whipping, or £5 fine. 
 Their laws were in many respects copied from those of 
 Massachusetts. But there was no such thing as a trial 
 by jury either in civil or criminal cases. All matters of 
 fact as well as of law were determined by the court. («) 
 
 § 71. No other laws were at first enacted except gen- 
 eral resolutions. As the plantation enlarged and new 
 towns were settled, new orders w T ere given, until at length 
 the General Court assumed a new form, and laws were 
 enacted, and the civil polity of the colony gradually ad- 
 vanced in the science of civil government, and moulded 
 its institution somewhat resembling that of Connect- 
 icut. (A) 
 
 Theophilus Eaton, the first governor of the colony, on 
 entering upon the duties of the office in accordance with 
 the religious sentiments of the colonists, received a charge 
 from their pastor, from 1 Deut. 16, 17, "And I charged 
 you Judges at that time, saying, Hear the causes between 
 your brethren, and judge righteously between every man 
 
 (a) 1 Hutch. 82, n. (£) 1 Trumb. 106, 7.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 95 
 
 and his brother, and the stranger that is with hifn ; Ye 
 shall not respect persons in judgment, but ye shall hear 
 the small as well as the great ; Ye shall not be afraid of 
 the face of man ; for the judgment is God's ; and the 
 cause that is too hard for you bring it to me I will hear 
 it." 
 
 If his Excellency lived up to the spirit of this charge, 
 and adopted the principles which are embraced in it, he 
 probably did that which should put modern political ru- 
 lers to the blush in view of the marked distinction in this 
 respect between ancient and modern rulers. In 16G5, 
 Governor Eaton had been requested to perfect a code of 
 laws for this colony. For his assistance in the compila- 
 tion, he was requested by the general court to consult the 
 Rev. Mr. Cotton's discourse on civil government in a new 
 plantation, and the laws of Massachusetts. Having com- 
 pleted the work, the laws having been examined and ap- 
 proved by the elders of the jurisdiction, they were pre- 
 sented to the general court, who ordered 500 copies to be 
 printed : this was done in England, and were distributed 
 to several towns in the colony. During this year, the 
 colony was united with that of Connecticut, a union 
 which was ever afterwards regarded by the colonists as 
 a happy event, as one that contributed much to the peace, 
 strength, welfare, and prosperity of both colonies. New 
 Haven certainly could not have enjoyed a more benig- 
 nant and republican form of government than that which 
 had been already perfected in Connecticut, which by this 
 act became its own. 
 
 Thus we have traced the history of the two colonies 
 during the period of their separate existence, which 
 brings us down to the period at which our third subdivi- 
 sion of the colonial history commences. 
 
 § 72. The first general election after the union was 
 held in May, 1665, at which John Winthrop was elected 
 as governor, a proportionable number of the magistrates
 
 96 ORIGIN AND HISTORY OF [CHAP. V. 
 
 were of the former colony of New Haven, all the towns 
 sent deputies, and the assembly was one of the greatest 
 harmony. They proceeded, and for the first time insti- 
 tuted county courts by name ; two were to be held an- 
 nually in New Haven, in June and November, to consist 
 of five judges, two magistrates, and three justices of the 
 quorum. A similar court was also appointed at New 
 London, and at the October session another at Hartford. 
 The county courts had cognizance of all cases except 
 those of life, limb, or banishment, and in all cases over 
 twenty shillings the law required that a jury should be 
 empanelled. («) A superior court of eight magistrates 
 was appointed to be holclen at Hartford, in May 
 and October, and was always to be attended with a 
 jury which had original jurisdiction for all capital actions 
 of life, limb, and banishment, and appellate jurisdiction 
 from the county courts. Until the year 1670, the great 
 body of the freemen convened annually at Hartford, for 
 the election of a governor, the magistrates, and civil offi- 
 cers appointed by the charter. At this time the freemen 
 had become so numerous as to render it very expensive 
 as well as inconvenient to continue this mode of election, 
 and a change was then made by which it was provided, 
 that thenceforth all the freemen without further summons 
 should or might on the 2d Thursday of May, annually in 
 person or in proxy attend at Hartford for the purpose of 
 such election. (6) 
 
 § 73. Prior to 1672, the colony had kept their laws in 
 manuscript, and had promulgated them, by sending co- 
 pies to be read publicly in every town. This year the 
 first code of Connecticut was published. It was com- 
 piled by Roger Ludlow, Esq., and printed at Cambridge, 
 Mass. It consisted of between seventy and eighty pages in 
 small folio printed and of nearly the same number of 
 
 (a) 1 Trumb. 316. (b) 1 Trumb. 318.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 97 
 
 blank pages. The preface was written in the most re- 
 ligious manner. It was thus introduced, ' : To our be- 
 loved brethren and neighbours, the inhabitants of Con- 
 necticut. The general court of the colony, with grace 
 and peace in our Lord Jesus." It recognized the de- 
 sign of the sub planters, " who" as the court expressed 
 it, " settled their foundations' 1 for the maintaining of " re- 
 ligion according to the gospel of our Lord Jesus," which 
 it declared, " ought to be the endeavour of all those that 
 shall succeede to uphold and encourage unto all genera- 
 tions." It was then enacted that every family should have 
 a law book. The subsequent laws of the colony from 
 1672 to 1699, were subsequently inserted on the blank 
 leaves of this book, when the book was filled up. 
 
 § 74. The last year of the reign of Charles II. had 
 been characterized by the most wanton violation of char- 
 tered rights and private property. To such an extent 
 had it been carried, that the colonists were naturally led 
 to the belief that nothing could be lost by a change of 
 sovereigns, and evidently expected that greater security 
 might be anticipated on his demise ; accordingly, in 1685, 
 on the accession of James II., the assembly addressed a 
 letter of condolence to his majesty, on account of the 
 demise of his brother, Charles II., and congratulated him 
 on his peaceful succession, gave him assurance of their 
 loyalty and attachment to the royal person and govern- 
 ment, and besought him to continue to them their civil 
 and religious privileges, and that he would preserve to 
 them the peaceable enjoyment of their property. If the 
 colonists entertained a hope that this righteous request 
 would be granted, that hope was soon dispelled by the 
 issuing of a quo icarranto against the colony. With a 
 return day, therein named, which it was well understood 
 it would be impossible for it to comply with the exigen- 
 cies of the writ, and under a penalty therein inserted 
 that all its chartered rights would be vacated in case of 
 
 13 

 
 98 ORIGIN AND HISTORY OF [CHAP. V, 
 
 its neglect to appear at the time named. This mode of 
 proceeding was in perfect keeping with the character of 
 James II., who was an obstinate and cruel tyrant as well 
 as a bigotted religionist, alike destitute of all principles 
 of honor, faith or humanity. Indeed it very soon became 
 too apparent that it was not to be expected that argu- 
 ments drawn from reason, humanity, justice, charters, 
 compacts, or any other consideration, would have 'the 
 least influence over a monarch who trampled on the 
 constitution, laws, and liberties of the English nation, and 
 whose ministers and officers shed the blood of his sub- 
 jects, and wreaked their vengeance on all who made 
 even a show of opposition to their piratical proceedings. 
 § 75. In October, 1687, Sir Edmund Andros, who had 
 assumed the government of Massachusetts the previous 
 year, arrived at Hartford, and in the name of the crown 
 demanded the surrender of their charter. After much 
 struggle and debate in the assembly and protests against 
 this demand, which was continued until the evening, when 
 the charter was produced and laid upon the table. After 
 it§ production, suddenly the lights were extinguished, 
 and Captain Wadsworth, in the most silent and secret 
 manner, carried it off and secreted it in a hollow tree ? 
 which thereafter received the name of the Charter Oak, 
 where it was kept secreted until the government was 
 resumed. Andros, however, proceeded to declare the 
 government dissolved, and held a brief and tyrannical do- 
 minion over the colony until the revolution in 1688, 
 when the government was resumed by the colonists by 
 their former magistrates, when the freemen voted, u they 
 would re-establish government as it was before, and at 
 the time Andros took it, and so have it proceede as it 
 did before according to charter — engaged themselves to 
 submit to it accordingly, until there should be a legal 
 establishment amongst them. The assembly having 
 formed and enacted, ordered and declared, that all the
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 99 
 
 laws of the colony made according to the charter, and 
 courts constituted for the administration of government 
 as they were before the late interruption, should be of 
 full force and virtue for the future, and until it see cause 
 to make further or other alterations, according to char- 
 ter."^) 
 
 The successors of the Stuarts silently suffered them 
 to retain it until the American revolution without any 
 struggle or resistance. 
 
 This charter continued to be maintained as the funda- 
 mental law of the state until the year 1818, when a new- 
 constitution of government was formed and adopted by 
 the people. (b) 
 
 Subsequent to the American revolution all connection 
 with the crown of England was broken off and dissolved. 
 But notwithstanding this the constitution of the state 
 until 1818 remained in all other respects the same unal- 
 tered basis of government, in its principles, regulations, 
 and efficient powers, which it ever had been from its 
 first formation and establishment. The legislature of 
 the state, upon the declaration of independence being 
 made on the 4th of July, 1776, made a declaration of 
 the rights and privileges of the people of the state, where- 
 in it was declared, " The people of this state, being by 
 the providence of God free and independent, have the 
 sole and exclusive right of governing themselves, as a 
 free, sovereign, and independent state ; and having from 
 their ancestors derived a free and excellent constitution 
 of government, whereby the legislature depends on the 
 free and annual election of the people ; they have (he 
 best security for the preservation of their civil and re- 
 ligious rights and liberties. And forasmuch as the free 
 fruition of such liberties and privileges, as humanity, 
 
 (a) 1 Trum. 377. (b) 1 Story, 76.
 
 100 ORIGIN AND HISTORY OF [cHAP. V, 
 
 civility, and Christianity call for, as is due to every man 
 in his place and proportion, without impeachment, and 
 infringement, hath been and ever will be of church and 
 commonwealth, and the denial thereof, the disturbance 
 if not the ruin of both. 
 
 Be it enacted and declared by, &c, that the ancient 
 form of civil government contained in the charter of 
 Charles II., King of England, and adopted by the people 
 of this state, shall be and remain the civil constitution of 
 this state, under the sole authority of the people thereof, 
 independent of any king or prince whatever. And that 
 this republic is and shall forever be and remain a free, 
 sovereign, and independent state, by the name of the 
 state of Connecticut." 
 
 At as late a period as 1798, a devout wish was uttered 
 by one of the ablest jurists of that state, that its citizens 
 might glory in that system of government and jurispru- 
 dence which at the first was the product of wisdom, 
 was perfected and matured by long experience, which 
 had carried it safe through many a storm, withstood 
 every attack for more than a century and a half, and 
 which had grown venerable by age, and the wisdom of 
 its regulations, and the rich profusion of blessings which 
 it conferred as the noblest birthright of themselves and 
 their children, and the highest interest and honor of the 
 state as an independent member of a great nation and 
 the rising empire of America. 
 
 § 76. Until the session in October, 1698, the assembly 
 consisted of but one house, and the magistrates and de- 
 puties acted together. At this session it was enacted 
 that the general assembly should consist of two houses ; 
 that the governor or, in his absence, the deputy governor, 
 and magistrates should compose the first, which should 
 be called the upper house ; that the other should consist 
 of the deputies, regularly returned from the several towns 
 in the colony, which should be called the lower house.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 101 
 
 The lower house were authorized to choose a speaker to 
 preside, and when formed, to make such officers and 
 rules as they should judge necessary for their regulation. 
 It was further enacted that no act should be passed into 
 a law, nor any law already enacted be repealed, nor any 
 other act proper to the general assembly be passed ex- 
 cept by the consent of both houses. They also ordained 
 at this session that the county courts should consist of 
 one chief justice and two justices of the quorum. («) The 
 two houses did not, however, form separately until the 
 session on 11th May, 1699. 
 
 Until 1708 the law required the governor to be chosen 
 from among the magistrates. The democratic spirit of 
 the age became dissatisfied with this provision, and at 
 the May session, 1808, (13th May,) this law was repealed, 
 and provision was made by which the freemen were at 
 liberty to elect the governor from among themselves at 
 large, and thus practically asserted the fundamental 
 creed of all democratic institutions, that it is not place 
 but merit which should entitle the citizen to places of 
 power and trust. 
 
 § 77. The subjects of legislation were generally such 
 as the wants and necessities of an infant colony seemed 
 to demand, and up to this period the semi-annual 
 sessions of the assembly were usually very short, not 
 exceeding ten or twelve days, and the expenses of ad- 
 ministering the government very small — the whole not 
 exceeding about £800. At the October session the su- 
 perior court was made a circuit court, and was required 
 to hold two terms annually in the respective counties of 
 Hartford, New Haven, Fairfield, and New London.(7>) 
 It consisted of a chief justice and four other judges, three 
 of whom made a quorum. The fees of the former were 
 
 (a) 1 Tramb. 399. (b) Ibid. 452.
 
 102 ORIGIN AND HISTORY OF [CHAP. V. 
 
 10s. per day while in the public service ; the other 
 judges were allowed the fees by law payable to the 
 Bench. (a) All testamentary affairs were managed by a 
 court of probate, in each county, of one judge and clerk, 
 from which an appeal lay to the county court.(^) 
 
 The character of the laws of this colony bear so stri- 
 king a resemblance to those of Massachusetts, that it is 
 not deemed advisable to devote time to a separate con- 
 sideration of them. Its criminal code declared those 
 offences criminal which were so declared in the Holy 
 Scriptures : those were idolatry, blasphemy of Father, 
 Son, or Holy Ghost, witchcraft, murders, murder through 
 guile by poisoning or other devilish practices, bestiality, 
 sodomy, rape, man stealing, false witness, conspiracy 
 against the colony, arson, children cursing or smiting 
 father or mother, being a stubborn or rebellious son, and 
 treason, (c) 
 
 The descent and distribution of real estate was among 
 all the children, the eldest son to receive a double share. 
 Fraudulent conveyances against creditors were declared 
 void: lands were subject to claims of judgment credi- 
 tors, to be set off on execution by the appraisal of three 
 appraisers, (d) 
 
 Process in courts of justice were in the name of the 
 king. Insolvents without any estate, might be relieved 
 from imprisonment by two assistants, but if required by 
 the creditor, must satisfy the debt by service. Bills and 
 bonds were made assignable, and assignees might main- 
 tain suits in their own name. 
 
 Magistrates, justices of the peace, and ministers were 
 
 (a) 1 Trumbull, 453. 
 
 (b) Ibid. 453. 
 
 (c) Green's Colony Laws, ed. 1715, 1718, fol. New London, p. 12. 
 
 (d) Ibid. 33, 61, 164.
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 103 
 
 authorized to many persons ; and divorces a vinculo 
 allowed for adultery, fraudulent contract, or desertion 
 for three years. A maritime code was enacted regula- 
 ting the rights and duties and authorities of ship owners, 
 seamen, and others concerned in navigation. («) 
 
 Bancroft says, " Connecticut from the first possessed 
 unmixed popular liberty ; the government was in hon- 
 est and upright hands, and the little strifes of rivalry 
 never became heated. The magistrates were sometimes 
 persons of no ordinary endowments : but though gifts of 
 learning and genius were valued, the state was content 
 with virtue and single mindedness, and the public wel- 
 fare never suffered at the hands of plain men. Education 
 was cherished ; religious knowledge was carried to the 
 highest degree of refinement, alike in its application to 
 moral duties, and to the mysterious questions on the 
 nature of God, of liberty, and of the soul. Forestalling 
 was successfully resisted. Education was always es- 
 teemed of deepest interest, and there were common 
 schools from the first. But the political education of 
 the people was due to the happy organization of the 
 towns which here, as indeed in all New England, consti- 
 tuted each separate settlement a little democracy of 
 itself. In Connecticut citizenship was acquired by in- 
 habitancy, was lost by removal. Each town meeting 
 was a little legislature ; and all its inhabitants, the 
 affluent and more needy, the wise and the foolish, were 
 invested with equal franchises. There the taxes of the 
 town were discussed and levied : there the village officers 
 were chosen : there roads were laid out, and bridges 
 voted : there the minister was elected, the representa- 
 tives to the assembly were instructed. For more than 
 a century peace was within its borders ; and with tran- 
 
 (a) 1 Story, 79, 80.
 
 104 ORIGIN AND HISTORY OF [CHAP. V. 
 
 sient interruptions, its democratic institutions unharmed. 
 For a century, with short exceptions, its history is the 
 picture of colonial happiness. To describe its condition 
 is but to enumerate the blessings of self-government as 
 exercised by a community of farmers, who have leisure 
 to reflect, who cherish education, and who have neither 
 a nobility nor a populace." 
 
 Indeed, so enchanting is the picture drawn by this 
 master mind, that one can hardly suppress the deep 
 emotion which is excited by his concluding reflection, 
 that " Those days will never return. Time, as it ad- 
 vances, never produces an old piece, but unfolds new 
 scenes in the grand drama of human existence ; scenes 
 of more glory, of more wealth, of more action, but not 
 of more tranquility and purity." 
 
 A distinguished writer and jurist, in speaking of the 
 statute laws of Connecticut as securing and confirming 
 the rights of the citizen, has said : 
 
 " Government and laws, have been erroneously con- 
 sidered, as originating in the prince or potentate, and the 
 liberties and privileges enjoyed by their subjects as 
 flowing from their free benignity and good will ; for this 
 cause the subjects exist only for their king ; their lives, 
 liberty and property are all devoted to his honor, plea- 
 sure and aggrandizement ; whereas, the truth in fact is, 
 that civil government is ordained of God, for the good of 
 the people, and the constitution they adopt, and the per- 
 sons they appoint to bear rule over them, to make and 
 to execute the laws, the Almighty recognizes to be his 
 ministers, acting under his authority, for the advance- 
 ment of order, peace and happiness in society, by pro- 
 tecting its members in the quiet enjoyment of their 
 natural, civil and religious rights and liberties. It is the 
 office and duty of the supreme power of a state, to enact 
 and in some proper manner promulgate to its citizens
 
 CHAP. V.] LEGISLATIVE AUTHORITY. 105 
 
 and subjects the will of the state, which is the law re- 
 specting their rights, and their duties, that they may 
 know how to preserve and enjoy the former, and comply 
 with and perform the latter ; also, the punishments an- 
 nexed to the various infractions of the public will, thus 
 declared and comprised in the laws. 
 
 "In republican governments, justice ought to be the 
 principle, the public good the object, and reason and 
 virtue the life and spirit of their laws. Statutes are 
 made either in affirmance of natural rights and duties 
 and declarative of them, or are positive regulations for 
 political reasons, respecting certain matters and things, 
 in themselves indifferent. 
 
 u The great end of civil government is social happi- 
 ness ; to induce us to respect the rights, interests, and 
 feelings of others as our own, conformable to that great 
 command in the law, which is the foundation of all rela- 
 tive duties from man to man ; to love our neighbour as 
 ourselves, and to do to all as we would they should do 
 to us ; knowing that the rights and enjoyments of others 
 are the same to them as ours are to us, and that all men 
 are brethren, have one father, who is God, created in 
 his image, and connected in one great family under the 
 government of their illustrious head the Prince of Peace, 
 and of the potentates and powers of the earth. A prac- 
 tice universally adopted agreeable to these principles 
 and rules, would, without the intervention of penal laws, 
 render the security of individuals perfect, and advance 
 the harmony, beauty, and happiness of society, beyond 
 the power of language to describe. 
 
 " The legislatures of Connecticut, sensible of the im- 
 portance of these objects, have calculated their laws in 
 direct subserviency thereto ; and to compel their refrac- 
 tory citizens to do through fear of punishment what they 
 ought to do from principles of obedience. The first law 
 in the book of statutes in order of time and in point of 
 
 14
 
 106 ORIGIN AND HISTORY OF [CHAP. V. 
 
 importance, is ' that no man's life shall be taken away : 
 no man's honor or good name shall be stained : no man's 
 person shall be arrested, restrained, banished, dismembe- 
 red, nor any ways punished : no man shall be deprived of 
 his wife or children : no man's goods or estate shall be 
 taken away from him, or any ways endamaged under the 
 color of law or countenance of authority, unless clearly 
 warranted by the laws of the state.' 
 
 " These great essential rights are derived from a source 
 above all that is human ; are holden by a tenure supe- 
 rior to what any power on earth can create or give ; it 
 is the Magna Charta of the Deity, the supreme ruler and 
 governor, which grants and confirms these rights to man ; 
 they are therefore justly called natural rights, and the 
 violation of them a crime against the law of nature, and 
 what in law language is denominated malum in se. 
 
 " The legislature has laid this as the foundation on 
 which to rear a system of laws and jurisprudence calcu- 
 lated to secure and advance in the best possible manner 
 the good of individuals, and the public peace and 
 safety."
 
 CHAP. VI.] OF LEGISLATIVE POWER, *C. 107 
 
 CHAPTER VI. 
 
 OF LEGISLATIVE POWER UNDER STATE CONSTITUTIONS. 
 
 § 78. We have in the preceding chapters considered 
 the history of legislation among the ancients, and under 
 the government of three of the American colonies. We 
 shall in the next place consider the legislative power 
 under the respective state constitutions. The bill of 
 rights contained in the respective state constitutions, it 
 is true, fixes limitations as well upon the power of civil 
 magistrates as upon the legislative department of the 
 governments, they at the same time are intended to secure 
 the civil and political rights and liberty of the subject, 
 and thus incidentally have an important and controlling 
 influence upon the question of legislative authority, and 
 must be taken into view in considering this branch of 
 our subject. 
 
 The constitution of Maine contains the following ex- 
 plicit declaration of the object, design, and fundamental 
 principles upon which the civil compact is founded. 
 
 16 We, the people of Maine, in order to establish justice, 
 ensure tranquillity, provide for our natural defence, pro- 
 mote our common welfare, and secure to ourselves and 
 our posterity the blessings of liberty, acknowledging, 
 with grateful hearts, the goodness of the Sovereign Ruler 
 of the Universe in affording us an opportunity so favor- 
 able to the design ; and imploring his aid and direction 
 in its accomplishment, do agree to form ourselves into a 
 free and independent state, by the style and title of the 
 State of Maine, and do ordain and establish the follow- 
 ing Constitution for the government of the same : 
 
 " All men are born equally free and independent, and
 
 108 OF LEGISLATIVE POWER [CHAP. VI. 
 
 have certain natural, inherent, and unalienable rights, 
 among which are those of enjoying and defending life 
 and liberty, acquiring, possessing, and protecting pro- 
 perty, and of pursuing and obtaining safety and happi- 
 ness. All power is inherent in the people ; all free 
 governments are founded in their authority, and instituted 
 for their benefit : they have, therefore, an unalienable 
 and indefeasible right to institute government, and to 
 alter, reform, or totally change the same, when their 
 safety and happiness require it. All men have a natural 
 and unalienable right to worship Almighty God accord- 
 ing to the dictates of their own consciences, and no one 
 shall be hurt, molested, or restrained in his person, lib- 
 erty, or estate, for worshipping God in the manner and 
 season most agreeable to the dictates of his own con- 
 science, nor for his religious professions or sentiments, 
 provided he does not disturb the public peace, nor ob- 
 struct others in their religious worship; — and all persons 
 demeaning themselves peaceably, as good members of 
 the state, shall be equally under the protection of the 
 laws, and no subordination nor preference, of any one 
 sect or denomination to another, shall ever be established 
 by law, nor shall any religious test be required as a qual- 
 ification for any office or trust under this state ; and all 
 religious societies in this state, whether incorporate, or 
 unincorporate, shall at all times have the exclusive right 
 of electing their public teachers, and contracting with 
 them for their support and maintenance. Every citizen 
 may freely speak, write, and publish his sentiments on 
 any subject, being responsible for the abuse of this lib- 
 erty. No laws shall be passed regulating or restraining 
 the freedom of the press ; and, in prosecutions for any 
 publication respecting the official conduct of men in pub- 
 lic capacity, or the qualifications of those who are can- 
 didates for the suffrages of the people, or where the 
 matter pulished is proper for public information, the
 
 CHAP. VI»] UNDER STATE CONSTITUTIONS. 109 
 
 truth thereof may be given in evidence ; and in all in- 
 dictments for libels, the jury, after having received the 
 direction of the court, shall have a right to determine, at 
 their discretion, the law and the fact. The people shall 
 be secure in their persons, houses, papers, and posses- 
 sions from unreasonable searches and seizures ; and 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. 
 In all criminal prosecutions, the accused shall have a 
 right to be heard by himself and his counsel, or either, 
 at his election : to demand the nature and cause of the 
 accusation, and have a copy thereof : to be confronted 
 by the witnesses against him : to have compulsory pro- 
 cess for obtaining witnesses in his favor : to have a 
 speedy, public, and impartial trial ; and, except in trials 
 by martial law or impeachment, by a jury of the vicinity. 
 He shall not be compelled to furnish or give evidence 
 against himself, nor be deprived of his life, liberty, pro- 
 perty, or privileges, but by judgment of his peers, or 
 the law of the land. No person shall be held to an- 
 swer for a capital or infamous crime, unless on a pre- 
 sentment or indictment of a grand jury, except in cases 
 of impeachment, or in such cases of offences as are usu- 
 ally cognizable by a justice of the peace, or in cases 
 arising in the army or navy, or in the militia when in 
 actual service, in time of war or public danger. The 
 legislature shall provide by law a suitable and impartial 
 mode of selecting juries ; and their usual number and 
 unanimity, in indictments and convictions, shall be held 
 indispensable. No person for the same offence shall be 
 twice put in jeopardy of life or limb. Sanguinary laws 
 shall not be passed ; all penalties and punishments shall 
 be proportioned to the offence ; excessive bail shall not 
 be required nor excessive lines imposed, nor cruel nor
 
 110 OF LEGISLATIVE POWER [CHAP. VI. 
 
 unusual punishments inflicted. All persons, before con- 
 viction, shall be bailable except for capital offences, 
 where the proof is evident, or the presumption great ; 
 and the privilege of the writ of habeas corpus shall not 
 be suspended, unless when in cases of rebellion or inva- 
 sion the public safety may require it. The legislature 
 shall pass no bill of attainder, ex jjost facto law, nor law 
 impairing the obligation of contracts, and no attainder 
 shall work corruption of blood nor forfeiture of estate. 
 Treason against this state shall consist only in levying 
 war against it, adhering to its 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 confession in open court. The laws shall 
 not be suspended, but by the legislature or its authority. 
 No person shall be subject to corporal punishment under 
 military law, except such as are employed in the army 
 or navy, or in the militia when in actual service, in time 
 of war, or public danger. The people have a right, at 
 all times, in an orderly and peaceable manner, to as- 
 semble and consult upon the common good, to give in- 
 structions to their representatives, and to request of 
 either department of the government, by petition or re- 
 monstrance, redress of their wrongs and grievances. 
 Every citizen has a right to keep and bear arms for the 
 common defence ; and this right shall never be ques- 
 tioned. No standing army shall be kept up in time of 
 peace, without the consent of the legislature ; and the 
 military shall, in all cases, and in all times, be in strict 
 subordination to the civil power. No soldier shall, in 
 time of peace, be quartered in any house, without the 
 consent of the owner or occupant, nor in time of war, 
 but in a manner to be prescribed by law. Every person 
 for an injury done him in his person, reputation, property, 
 or immunities, shall have remedy by due course of law ; 
 and right and justice shall be administered freely and
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. Ill 
 
 without sale, completely and without denial, promptly 
 and without delay. In all civil suits, and in all contro- 
 versies concerning property, the parties shall have a right 
 to a trial hy jury, except in cases where it has heretofore 
 been otherwise practised : the party claiming the right 
 may be heard by himself and his counsel, or either, at 
 his election. Private property shall not be taken for 
 public uses without just compensation ; nor unless the 
 public exigencies require it. No tax or duty shall be 
 imposed without the consent of the people or their rep- 
 resentatives in the legislature. No title of nobility or 
 hereditary distinction, privilege, honor, or emolument, 
 shall ever be granted or confirmed ; nor shall any office 
 be created, the appointment to which shall be for a 
 longer time than during good behavior. The enumera- 
 tion of certain rights shall not impair nor deny others 
 retained by the people." 
 
 § 79. By the constitution of this state, all the legislative 
 power is vested in two distinct branches, a House of Re- 
 presentatives, and a Senate, each to have a negative on the 
 other, and both to be styled the Legislature of Maine ; and 
 the style of their acts and laws shall be, " Be it enacted by 
 the Senate and House of Representatives in Legislature 
 assembled." The House of Representatives consists of not 
 less than one hundred nor more than two hundred mem- 
 bers, elected by qualified electors. The House of Rep- 
 resentatives has the sole power of impeachment. The 
 Senate consists of not less than twenty, nor more than 
 thirty-one members, elected by qualified electors. The 
 Senate has the sole power to try all impeachments ; and 
 when sitting for that purpose, are to be on oath or affir- 
 mation. Each body has the right to elect its own offi- 
 cers. Each house is the judge of the election or quali- 
 fications of its own members. A majority to constitute 
 a quorum, and a smaller number may adjourn from day to 
 day, and compel the absent members to attend, in such
 
 112 OF LEGISLATIVE POWER [CHAP. VI. 
 
 manner and under such penalties as each house provides. 
 Each house may expel or punish a member for disor- 
 derly conduct. 
 
 The legislature is required to convene on the first 
 Wednesday of January, annually ; and has full power 
 to make and establish all reasonable laws and regula- 
 tions for the defence and benefit of the people of the 
 state, not repugnant to the state constitution or the con- 
 stitution of the United States. Every bill or resolution 
 having the force of law, to which the concurrence of 
 both houses is necessary, except on questions of adjourn- 
 ment, which shall have passed both houses, must be 
 presented to the governor, and if he approve it, he must 
 sign it ; if not, he must return it with his objections to 
 the house in which it shall have originated, which must 
 enter his objections at large on the journals, and pro- 
 ceed to re-consider it. If it shall then be passed by 
 two-thirds of both houses, it becomes a law, and has 
 the same effect as if it had been signed by the governor. 
 But in such cases, the vote must be taken by yeas and 
 nays, and the names of the persons voting for and against 
 the bill or resolution must be entered on the journal of 
 both houses respectively. If not returned by the gov- 
 ernor in five days after it has been presented to him, 
 Sundays excepted, it has the same effect as if signed by 
 him — unless the legislature by an adjournment prevent 
 a return, in which event it has the same force and effect, 
 unless returned within three days after their next session. 
 
 § 80. The preamble to the constitution of Massa- 
 chusetts declares, 
 
 " The end of the institution, maintenance, and admin- 
 istration of government, is to secure the existence of the 
 body politic, to protect it, and to furnish the individuals 
 who compose it with the power of enjoying, in safety 
 and tranquillity, their natural rights and the blessings of 
 life : and whenever these great objects are not obtained,
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 113 
 
 the people have a right to alter the government, and to 
 take measures necessary lor their safety, prosperity, and 
 happiness. 
 
 " The body politic is formed by a voluntary associa- 
 tion of individuals. It is a social compact, by which 
 the whole people covenants with each citizen, and each 
 citizen with the whole people, that all shall be governed 
 by certain laws for the common good. It is the duty of 
 the people, therefore, in framing a constitution of go- 
 vernment, to provide for an equitable mode of making 
 laws, as well as for an impartial interpretation and a 
 faithful execution of them ; that every man may, at all 
 times, find his security in them. 
 
 " We, therefore, the people of Massachusetts, acknow- 
 ledging, with grateful hearts, the goodness of the Great 
 Legislator of the Universe, in affording us, in the course 
 of His Providence, an opportunity, deliberately and 
 peaceably, without fraud, violence, or surprise, of en- 
 tering into an original, explicit, and solemn compact with 
 each other ; and of forming a new constitution of civil 
 government, for ourselves and posterity ; and devoutly 
 imploring his direction in so interesting a design, do 
 agree upon, ordain, and establish, the following declara- 
 tion of rights and frame of government, as the constitu- 
 tion of the commonwealth of Massachusetts." 
 
 Then follows a declaration of rights of the inhabitants 
 of the commonwealth of Massachusetts, which declares, 
 
 " All men are born free and equal, and have certain 
 natural, essential, and unalienable rights : among which 
 may be reckoned the right of enjoying and defending 
 their lives and liberties ; that of acquiring, possessing, 
 and protecting property ; in fine, that of seeking and 
 obtaining their safety and happiness. 
 
 ''• It is the right, as well as the duty, of all men in so- 
 ciety, publicly, and at stated seasons, to worship the 
 Supreme Being, the Great Creator and Preserver of the 
 
 15
 
 114 OF LEGISLATIVE POWER [CHAP. VI. 
 
 Universe. And no subject shall be hurt, molested, or 
 restrained in his person, liberty, or estate, for worshiping 
 God iu the manner and seasons most agreeable to the 
 dictates of his own conscience ; or for his religious pro- 
 fession or sentiments ; provided he doth not disturb the 
 public peace, or obstruct others in their religious worship. 
 " As the happiness of a people, and the good order 
 and preservation of civil government, essentially depend 
 upon piety, religion, and morality ; and as these cannot 
 be generally diffused throughout the community, but by 
 the institution of a public worship of God, and of public 
 institutions in piety, religion, and morality ; therefore, to 
 promote their happiness, and to secure the good order 
 and preservation of their government, the people of this 
 commonwealth have a right to invest their legislature 
 with power to authorize and require, and the legislature 
 shall, from time to time, authorize and require, the seve- 
 ral towns, parishes, precincts, and other bodies politic, 
 or religious societies, to make suitable provision, at their 
 own expense, 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 volun- 
 tarily. 
 
 " All the people of the commonwealth have also a right 
 to, and do, invest their legislature with authority to en- 
 join upon all the subjects an attendance upon the 
 instructions of the public teachers, as aforesaid, at stated 
 times and seasons, if there be any one whose instruc- 
 tions they can conscientiously and conveniently attend : 
 
 " Provided, notwithstanding, that the several towns, 
 parishes, precincts, and other bodies politic, or religious 
 societies, shall, at all times, have the exclusive right of 
 electing their public teachers, and of contracting with 
 them for their support and maintenance. 
 
 "All moneys paid by the subject to the support of
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. ] 15 
 
 public worship, and of the public teachers aforesaid, 
 shall, if he require it, be uniformly applied to the sup- 
 port of the public teacher or teachers of his own reli- 
 gious sect or denomination, provided there be any, on 
 whose instruction he attends ; otherwise it may be paid 
 towards the support of the teacher or teachers of the 
 parish or precinct in which the said moneys are raised. 
 
 "And every denomination of Christians, demeaning 
 themselves peaceably, and as good subjects of the com- 
 monwealth, shall be equally under the protection of the 
 law ; and no subordination of any sect or denomination 
 to another shall ever be established by law. 
 
 " The people of this commonwealth have the sole and 
 exclusive right of governing themselves, as a free, sove- 
 reign, and independent state : and do, and forever here- 
 after shall, exercise and enjoy every power, jurisdiction, 
 and right, which is not, or may not hereafter be by them 
 expressly delegated to the United States of America, in 
 congress assembled. 
 
 " All power residing originally in the people, and 
 being derived from them, the several magistrates and 
 officers of government vested with authority, whether 
 legislative, executive, or judicial, are their substitutes and 
 agents, and are at all times accountable to them. 
 
 " No man, or corporation, or association of men, have 
 any other title to obtain advantages, or particular and 
 exclusive privileges, distinct from those of the commu- 
 nity, than what arises from the consideration of services 
 rendered to the public. And this title being, in nature, 
 neither hereditary nor transmissible to children or de- 
 scendants, or relations of blood, the idea of a man born 
 a magistrate, lawgiver, or judge, is absurd and un- 
 natural 
 
 " Government is instituted for the common good : for 
 the protection, safety, prosperity and happiness of the 
 people : and not for the profit, honour, or private interest
 
 116 OF LEGISLATIVE POWER [CHAP. VI. 
 
 of any one man, family, or any one class of men. 
 Therefore, the people alone have an incontestable, una- 
 lienable, and indefeasible right to institute government, 
 and to reform, alter, or totally change the same, when 
 their protection, safety, prosperity, and happiness re- 
 quire it. 
 
 " In order to prevent those who are vested with au- 
 thority from becoming oppressors, the people have a 
 right, at such periods and in such manner as they shall 
 establish by the frame of government, to cause their 
 public officers to return to private life, and to fill up 
 vacant places by certain and regular elections and ap- 
 pointments. 
 
 " All elections ought to be free : and all the inhabi- 
 tants of this commonwealth, having such qualifications 
 as they shall establish by their frame of government, 
 have an equal right to elect officers, and to be elected 
 for public employments. 
 
 " Each individual of the society has a right to be pro- 
 tected dj it, in the enjoyment of his life, liberty, and 
 property, according to the standing laws. He is obliged 
 consequently, to contribute his share to the expense of 
 this protection ; to give his personal service, or an 
 equivalent, when necessary. But no part of the property 
 of any individual can, with justice, be taken from him, 
 or applied to the public use, without his own consent, or 
 that of the representative body of the people. In fine, 
 the people of this commonwealth are not controllable by 
 any other laws than those to which their constitutional 
 representative body have given their consent. 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. 
 
 " Every subject of the commonwealth ought to find a 
 certain remedy, by having recourse to the laws, for all 
 injuries or wrongs which he may receive, in his person.
 
 CHAP. VI.] I XDER STATE CONSTITUTIONS. 117 
 
 property, or character. He ought to obtain right and 
 justice freely, and without being obliged to purchase it — 
 completely, and without any denial — promptly, and with- 
 out delay — conformably to the laws. 
 
 " No person shall be held to answer for any crime or 
 offence, until the same is fully and plainly, substantially 
 and formally, described to him ; or be compelled to 
 accuse or furnish evidence against himself. And every 
 person shall have a right to produce all proofs that may 
 be favourable to him ; to meet the witnesses against 
 him, face to face, and be fully heard in his defence, by 
 himself, or his counsel, at his election. And no person 
 shall be arrested, imprisoned, or despoiled or deprived of 
 his property, immunities, or privileges, put out of the 
 protection of the law, exiled, or deprived of his life, lib- 
 erty, or estate, but by the judgment of his peers, or the 
 law of the land. 
 
 4< And the legislature shall not make any law that 
 shall subject any person to a capital or infamous punish- 
 ment (excepting for the government of the army and 
 navy) without trial by jury. 
 
 " In criminal prosecutions the verification of facts, in 
 the vicinity where they happen, is one of the greatest 
 securities of the life, liberty, and property of the citizen. 
 
 " Every person has a right to be secure from all un- 
 reasonable searches and seizures of his person, his house, 
 his papers, and all his possessions. All warrants, there- 
 fore, are contrary to this right, if the cause or foundation 
 of them be not previously supported by oath or affirma- 
 tion ; 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 per- 
 sons, 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.
 
 118 OF LEGISLATIVE POWER [CHAP. VI, 
 
 " In all controversies concerning property, and in all 
 suits between two or more persons, (except in cases in 
 which it has heretofore been otherwise used and prac- 
 tised,) the parties have a right to a trial by jury ; and 
 this method of procedure shall be held sacred, — unless, 
 in cases arising on the high seas, and such as relate to 
 mariner's wages, the legislature shall hereafter find it 
 necessary to alter it. 
 
 " The liberty of the press is essential to security of 
 freedom in a state ; it ought not, therefore, to be re- 
 strained in this commonwealth. 
 
 " The people have a right to keep and to bear arms 
 for the common defence. And as, in time of peace, 
 armies are dangerous to liberty, they ought not to be 
 maintained, without the consent of the legislature : and 
 the military power shall always be held in exact subor- 
 dination to the civil authority, and be governed by it. 
 
 " A frequent recurrence to the fundamental principles 
 of the constitution, and a constant adherence to those of 
 piety, justice, moderation, temperance, industry, and fru- 
 gality, are absolutely necessary to preserve the advanta- 
 ges of liberty, and to maintain a free government. The 
 people ought, consequently, to have a particular atten- 
 tion to all those principles, in the choice of their officers 
 and representatives, and they have a right to require of 
 their lawgivers and magistrates, an exact and constant 
 observance of them, in the formation and execution of 
 all laws necessary for the good administration of the 
 commonwealth. 
 
 " The people have a right, in an orderly and peaceable 
 manner, to assemble to consult upon the common good ; 
 give instruction to their representatives ; and to request 
 of the legislative body, by the way of addresses, peti- 
 tions, or remonstrances, redress of the wrongs done them, 
 and of the grievances they suffer. 
 
 " The power of suspending the laws, or the execution
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 119 
 
 of the laws, ought never to be exercised but by the 
 legislature ; or by authority derived from it, to be exer- 
 cised in such particular cases only as the legislature shall 
 expressly provide for. 
 
 " The freedom of deliberation, speech, and debate, in 
 either house of the legislature, is so essential to the 
 rights of the people, that it cannot be the foundation of 
 any accusation or prosecution, action or complaint, in 
 any other court or place whatsoever. 
 
 16 The legislature ought frequently to assemble, for the 
 redress of grievances, for correcting, strengthening, and 
 confirming the laws, and for making new laws, as the 
 common good may require. 
 
 " No subsidy, charge, tax, impost, or duties, ought to 
 be established, fixed, laid, or levied, under any pretext 
 whatever, without the consent of the people, or their 
 representatives in the legislature. 
 
 " Laws made to punish for actions done before the 
 existence of such laws, and which have not been de- 
 clared crimes by preceding laws, are unjust, oppressive, 
 and inconsistent with the fundamental principles of a 
 free government. 
 
 " No person ought, in any case, or in any time, to be 
 declared guilty of treason or felony by the legislature. 
 
 " No magistrate, or court of law, shall demand exces- 
 sive bail or sureties, impose excessive fines, or inflict 
 cruel or unusual punishments. 
 
 " In time of peace, no soldier ought to be quartered in 
 any house, without the consent of the owner; and in 
 time of war, such quarters ought not to be made, but by 
 the civil magistrates, in manner ordained by the legis- 
 lature. 
 
 " No person can, in any case, be subjected to law 
 martial, or to any penalties or pains by virtue of that 
 law, (except those employed in the army or navy, and
 
 120 OF LEGISLATIVE POWER [CHAP. VI. 
 
 except the militia in actual service,) but by the authority 
 of the legislature. 
 
 " It is essential to the preservation of the rights of 
 every individual, his life, liberty, property and character, 
 that there be an impartial interpretation of the laws, and 
 administration of justice. It is the right of every citizen 
 to be tried by judges as free, impartial, and independent, 
 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, and of every citizen, that the judges of the 
 supreme judicial court should hold their offices as long as 
 they behave themselves well ; and that they should have 
 honorable salaries, ascertained and established by stand- 
 ing laws. 
 
 " In the government of this commonwealth, the legis- 
 lative department shall never exercise the executive and 
 judicial powers, or either of them : the executive shall 
 never exercise the legislative and judicial 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." 
 
 § 81. By the constitution of this state, the legislative 
 department is formed of two branches, a Senate and 
 House of Representatives, each having a negative on the 
 other. They assemble every year, and are styled " The 
 General Court of Massachusetts ." They have full power 
 and authority to erect and constitute judicatures and 
 courts of record, or other courts, to be held in the name 
 of the commonwealth to hear, try and determine, all 
 causes. They have full power and authority to make, 
 ordain and establish, all manner of wholesome and rea- 
 sonable orders, laws, statutes and ordinances, directions, 
 or instructions, either with or without penalties, either 
 for civil or military purposes ; to impose and levy taxes, 
 duties and excises ; to set forth the powers and duties of
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 1 2 1 
 
 the civil and military officers, and to provide for the de- 
 fence and support of government. The Senate consists 
 of forty persons, to be annually elected by the freeholders 
 and other inhabitants of the commonwealth, for the dis- 
 tricts set apart for them by the General Court. The 
 Senate is the first branch of the legislature : it has full 
 power to determine its own proceedings, choose its own 
 officers, and to be a court, with full authority to hear and 
 determine all impeachments made by the House of Rep- 
 resentatives against any officer or officers of the com- 
 monwealth ; not less than sixteen members to constitute 
 a quorum. 
 
 The House of Representatives is a representation of the 
 people annually elected, and founded upon the principles 
 of equality ; elected according to the number of ratable 
 poll i to which each town is entitled. They have power 
 to impose fines upon towns as shall neglect to choose 
 and return members to represent the same. The House 
 of Representatives is the grand inquest of the common- 
 wealth, and all impeachments are to be made by them 
 and tried by the senate. 
 
 They have power to make all money bills with the 
 consent of the senate, the bills to originate with the 
 house. Not less than sixty members to constitute a 
 quorum. It judges of the return and election of its own 
 members, elects its own officers, punishes its members 
 for any misconduct towards themselves, or for a breach 
 of the public peace. No member can be arrested or held 
 to bail while in the assembly, or in going to or returning 
 from it. 
 
 The senate has the same powers in like cases. 
 
 The senate and house together try all cases where 
 their rights and privileges are concerned, or their own 
 members. 
 
 No bill or resolve of the senate or house of represen- 
 
 16
 
 122 OF LEGISLATIVE POWER [CHAP. VI. 
 
 tatives can become a law, or have force as such, until it 
 lias been laid before the governor for his revisal, who, if 
 he approve it, must sign it : but if not, he must return it 
 with his objections in writing to the house in which it 
 originated, which must enter his objections at large on 
 their records, and re-consider it ; and if passed with the 
 concurrence of two-thirds of each house, it then has the 
 force of a law. But in such cases, the vote must be by 
 yeas and nays, and the names of those voting for or 
 against it entered on the record. By an amendment to 
 the constitution it is provided, " If any bill or resolve 
 shall be objected to, and not approved of by the gover- 
 nor ; and if the general court shall adjourn within five 
 days after the same shall have been laid before the 
 governor for his approbation, and thereby prevent his 
 returning it with his objections, as provided by the 
 constitution ; such bill or resolve shall not become a law, 
 nor have force as such." 
 
 § 82. The constitution of New Hampshire, as altered and 
 amended on the second Wednesday of February, 1792, 
 contains a bill of rights, as follows : 
 
 " All men are born equally free and independent : 
 Therefore, all government, of right, originates from the 
 people, is founded in consent, and instituted for the 
 general good. 
 
 " All men have certain natural, essential, and inherent 
 rights — among which are, the enjoying and defending 
 life and liberty, acquiring, possessing, and protecting 
 property; and, in a word, of seeking and obtaining 
 happiness. 
 
 " When men enter into a state of society, they sur- 
 render up vsome of their natural rights to that society, in 
 order to ensure the protection of others ; and without 
 such an equivalent the surrender is void. 
 
 " Among the natural rights, some are in their very 
 nature unalienable, because no equivalent can be given
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 123 
 
 or received for them. Of this kind are the rights of 
 conscience. 
 
 " Every individual has a natural and unalienable right 
 to worship God according to the dictates of his own 
 conscience and reason ; and no person shall be hurt, 
 molested, or restrained in his person, liberty, or estate, 
 for worshiping God in the manner most agreeable to the 
 dictates of his own conscience, or for his religious pro- 
 fession, sentiments, or persuasion ; provided he doth not 
 disturb the public peace, or disturb others in their reli- 
 gious worship. 
 
 " As morality and piety, rightly grounded on evangeli- 
 cal principles, will give the best and greatest security to 
 government, and will lay, in the hearts of men, the 
 strongest obligations to due subjection ; and as the know- 
 ledge of these is most likely to be propagated through a 
 society by the institution of the public worship of the 
 Deity, and of public instruction in morality and religion ; 
 therefore, to promote these important purposes, the 
 people of this state have a right to empower, and do 
 hereby fully empower, the legislature, to authorize, from 
 time to time, the several towns, parishes, bodies corpo- 
 rate, or religious societies, within this state, to make 
 adequate provision, at their own expense, for the support » 
 and maintenance of public protestant teachers of piety, 
 religion, and morality : 
 
 "Provided, notwithstanding, That the several towns, 
 parishes, bodies corporate, or religious societies, shall at 
 all times have the exclusive right of electing their own 
 public teachers, and of contracting with them for their 
 support and maintenance : And no person of any one 
 particular religious sect or denomination, shall ever be 
 compelled to pay towards the support of the teacher or 
 teachers of another persuasion, sect, or denomination. 
 
 "And every denomination of Christians, demeaning 
 themselves quietly, and as good citizens of the state,
 
 124 OF LEGISLATIVE POWER [CHAP. VI. 
 
 shall be equally under the protection of the law ; and 
 no subordination of any one sect or denomination to 
 another, shall ever be established by law. 
 
 " And nothing herein shall be understood to affect any 
 former contracts made for the support of the ministry ; 
 but all such contracts shall remain, and be in the same 
 state, as if this constitution had not been made. 
 
 " The people of this state have the sole and exclusive 
 right of governing themselves as a free, sovereign, and 
 independent state ; and do, and forever hereafter shall, 
 exercise and enjoy every power, jurisdiction, and right, 
 pertaining thereto, which is not, or may not hereafter be, 
 by them expressly delegated to the United States of 
 America, in congress assembled. 
 
 " All power residing originally in, and being derived 
 from the people, all the magistrates and officers of go- 
 vernment are their substitutes and agents, and at all 
 times accountable to them. 
 
 " No officer or place whatsoever, in government, shall 
 be hereditary — the ability and integrity requisite in all 
 not being transmissible to posterity or relations. 
 
 11 Government being instituted for the common benefit, 
 protection, and security of the whole community, and not 
 for the private interest or emolument of any one man, 
 family, or class of men ; therefore, whenever the ends of 
 the government are perverted, or public liberty mani- 
 festly endangered, and all other means of redress are 
 ineffectual, the people may, and of right ought to, reform 
 the old, or establish a new government. The doctrine 
 of non-resistance against arbitrary power and oppression, 
 is absurd, slavish, and destructive of the good and happi- 
 ness of mankind. 
 
 " All elections ought to be free, and every inhabitant 
 of the state, having the proper qualifications, has an equal 
 right to elect, and be elected, into office. 
 
 " Every member of the community has a right to be
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 125 
 
 protected by it, in the enjoyment of his life, liberty, and 
 property ; he is therefore bound to contribute his share 
 to the expense of such protection, and to yield his per- 
 sonal service when necessary, or an equivalent. 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. Nor are the 
 inhabitants of this state controllable by any other laws 
 than those to which they, or their representative body, 
 have given their consent. 
 
 " No person who is conscientiously scrupulous about 
 the lawfulness of bearing arms, shall be compelled 
 thereto, provided he will pay an equivalent. 
 
 " Every citizen of this state is entitled to a certain 
 remedy, by having recourse to the laws, for all injuries 
 he may receive in his person, property, or character ; to 
 obtain right and justice freely, without being obliged to 
 purchase it ; completely, and without denial ; promptly, 
 and without delay, conformable to the laws. 
 
 " No person shall be held to answer for any crime or 
 offence, until the same is fully and plainly, substantially, 
 and formally, described to him : nor be compelled to 
 accusa or furnish evidence against himself. And every 
 person shall have a right to produce all proofs that may 
 be favourable to himself; to meet the witnesses against 
 him face to face; and to be fully heard in his defence, by 
 himself and counsel. And no person shall be arrested, 
 imprisoned, despoiled, or deprived of his property, im- 
 munities, or privileges, put out of the protection of the 
 law, exiled, or deprived of his life, liberty, or estate, but 
 by the judgment of his peers, or the law of the land. 
 
 " No person shall be liable to be tried, after an ac- 
 quittal, for the same crime or offence. Nor shall the 
 legislature make any law that shall subject any person 
 to a capital punishment, (excepting for the government
 
 126 OF LEGISLATIVE POWER [CHAP. VI. 
 
 of the army and navy, and the militia in actual service,) 
 without trial by jury. 
 
 " In criminal prosecutions, the trial of facts, in the vi- 
 cinity where they happen, is so essential to the security 
 of the life, liberty, and estate, of the citizens, that no 
 crime or offence ought to be tried in any other county 
 than that in which it is committed, except in cases of 
 general insurrection in any particular county, when it 
 shall appear to the judges of the superior courts that an 
 impartial trial cannot be had in the county where the 
 offence may be committed, and upon their report the 
 legislature shall think proper to direct the trial in the 
 nearest county in which an impartial trial can be 
 obtained. 
 
 u All penalties ought to be proportioned to the nature 
 of the offence. No wise legislature will affix the same 
 punishment to the crimes of theft, forgery, and the like, 
 which they do to those of murder and treason. Where 
 the same undistinguished severity is exerted against all 
 offences, the people are led to forget the real distinction 
 in the crimes themselves, and to commit the most fla- 
 grant with as little compunction as they do the lightest 
 offences. For the same reason, a multitude of sangui- 
 nary laws is both impolitic and unjust. The true design 
 of all punishments being to reform, not to exterminate, 
 mankind. 
 
 " Every person hath a right to be secure from all un- 
 reasonable searches and seizures of his person, his 
 houses, his papers, and all his possessions. Therefore, 
 all warrants to search suspected places, or arrest a per- 
 son for examination or trial, in prosecution for criminal 
 matters, are contrary to this right, if the cause or foun- 
 dation of them be not previously supported by oath or 
 affirmation ; and if the order in a warrant of a civil 
 officer, to make search in suspected places, or to arrest 
 one or more suspected persons, or to seize their property,
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 127 
 
 be not accompanied with a special designation of the 
 persons or objects of search, arrest, or seizure; and n<> 
 warrant ought to be issued, but in cases, and with the 
 formalities, prescribed by law. 
 
 " In all controversies concerning property, and in all 
 suits between two or more persons, excepting in cases 
 wherein it hath been heretofore otherwise used and 
 practised, the parties have a right to a trial by jury ; and 
 this right shall be deemed sacred and inviolable ; but the 
 legislature may, by the constitution, be empowered to 
 make such regulations as will prevent parties from 
 having as many trials by jury, in the same suit or action, 
 as hath been heretofore allowed and practised, and to 
 extend the civil jurisdiction of justices of the peace to 
 the trials of suits where the sum demanded in damages 
 doth not exceed four pounds, saving the right of appeal 
 to either party. But no such regulations shall take away 
 the right of trial by jury, in any case not in this article 
 before excepted, unless in cases respecting mariners' 
 wages. 
 
 " In order to reap the fullest advantage of the ines- 
 timable privilege of the trial by jury, great care ought to 
 be taken that none but qualified persons should be ap- 
 pointed to serve ; and such ought to be fully compen- 
 sated for their travel, time, and attendance. 
 
 " The liberty of the joress is essential to the security of 
 freedom in a state ; it ought, therefore, to be inviolably 
 preserved. 
 
 " Retrospective laws are highly injurious, oppressive, 
 and unjust. No such laws, therefore, should be made, 
 either for the decision of civil causes, or the punishment 
 of offences. 
 
 " A well regulated militia is the proper, natural, and 
 sure defence of a state. 
 
 " Standing armies are dangerous to liberty, and ought
 
 128 OF LEGISLATIVE POWER [CHAP. VI. 
 
 not to be raised or kept up, without the consent of the 
 legislature. 
 
 16 In all cases, and at all times, the military ought to 
 be under strict subordination to, and governed by the 
 civil power. 
 
 " No soldier, in time of peace, shall be quartered in 
 any house, without the consent of the owner ; and in 
 time of war, such quarters ought not to be made but by 
 the civil magistrate, in a manner ordained by the legis- 
 lature. 
 
 H No subsidy, charge, tax, impost, or duty, shall be 
 established, fixed, laid, or levied, under any pretext 
 whatsoever, without the consent of the people, or their 
 representatives in the legislature, or authority derived 
 from that body. 
 
 " The power of suspending the laws, or the execution 
 of them, ought never to be exercised but by the legisla- 
 ture, or by authority derived therefrom, to be exercised 
 in such particular cases only as the legislature shall ex- 
 pressly provide for. 
 
 " The freedom of deliberation, speech, and debate, in 
 either house of the legislature, is so essential to the rights 
 of the people, that it cannot be the foundation of any 
 action, complaint, or prosecution, in any other court or 
 place whatsoever. 
 
 " The legislature shall assemble for the redress of 
 public grievances, and for making such laws as the 
 public good may require. 
 
 " The people have a right, in an orderly and peaceable 
 manner, to assemble and consult upon the public good, 
 give instructions to their representatives, and to request 
 of the legislative body, by way of petition or remon- 
 strance, redress of the wrongs done them, and of the 
 grievances they suffer. 
 
 u No magistrate or court of law shall demand excessive
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 129 
 
 bail or sureties, impose excessive fines, or inflict cruel or 
 unusual punishments. 
 
 " No person can, in any case, be subjected to law 
 martial, or to any pains or penalties by virtue of that 
 law, except those employed in the army or navy, and 
 except the militia in actual service, but by authority of 
 the legislature. 
 
 " It is essential to the preservation of the rights of 
 every individual, his life, liberty, property, and character, 
 that there be an impartial interpretation 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 limitations, on account of age, as may be provided 
 by the constitution of the state ; and that they should 
 have honourable salaries, ascertained and established by 
 standing laws. 
 
 " Economy being a most essential virtue in all states, 
 especially in a young one, no pension shall be granted 
 but in consideration of actual services ; and such pen- 
 sions ought to be granted with great caution by the 
 legislature, and never for more than one year at a 
 time. 
 
 " In the government of this state, the three essential 
 powers thereof, to wit : the legislative, executive, and 
 judicial, ought to be kept as separate from, and inde- 
 pendent of, each other, as the nature of a free govern- 
 ment will admit, or as is consistent with that chain of 
 connexion that binds the whole fabric of the constitution 
 in one indissoluble bond of unity and amity. 
 
 4 ' A frequent recurrence to the fundamental principles 
 of the constitution, and a constant adherence to justice, 
 
 17
 
 130 OF LEGISLATIVE POWER [CHAP. VI. 
 
 moderation, temperance, industry, frugality, and all the 
 social virtues, are indispensably necessary to preserve 
 the blessings of liberty and good government ; the peo- 
 ple ought, therefore, to have a particular regard to all 
 those principles in the choice of their officers and repre- 
 sentatives ; and they have a right to require of their 
 lawgivers and magistrates an exact and constant ob- 
 servance of them in the formation and execution of the 
 laws necessary for the good administration of the go- 
 vernment." 
 
 § 83. The legislative power of this state is vested by 
 the constitution in a Senate and House of Representatives, 
 each having a negative on the other ; and are styled 
 " The General Court of New Hampshire." This court 
 has full power and authority to erect and constitute all 
 courts, to hear, try and determine all causes, whether 
 civil or criminal, of whatever kind, soever ; and also, to 
 make, ordain, and establish, all manner of wholesome 
 and reasonable orders, laws, statutes, ordinances, direc- 
 tions, and instructions, with or without penalties, not 
 repugnant to the constitution, as they may judge for the 
 benefit and welfare of the state, and for the governing 
 and ordering thereof, and of the citizens of the same, for 
 the necessary support and defence of the government of 
 the state ; and to name and settle annually, or provide 
 by fixed laws, the naming and settling of all civil officers 
 within the state ; such officers excepted whose election 
 or appointment is otherwise provided for ; and to pre- 
 scribe the duties, powers, and limits, to all the civil and 
 military officers ; and also to impose and levy fines, 
 duties, imposts, taxes, and assessments, upon the inhabi- 
 tants of the state for the support of government. 
 
 The Senate consists of twelve members, elected annu- 
 ally : it is the first branch of the legislature. The Senate 
 has full power to elect its own officers, judge of the re- 
 turns and election of its members, to hear and try all
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 131 
 
 impeachments against the officers of the state, to issue 
 summons, and compel the attendance of witnesses, with 
 all the powers necessary to a court of trials. 
 
 The House of Rcpi'csentativcs is composed of members 
 annually elected, and is founded upon principles of 
 equality ; elected according to the number of ratable 
 votes in each town. This branch of the legislature is 
 the grand inquest of the state, and all impeachments 
 originate with them, but are tried by the senate. All 
 money bills must originate in the house of representa- 
 tives ; but the senate may propose or concur with 
 amendments, as on other bills. A majority constitutes 
 a quorum ; but when less than two-thirds of the house 
 of representatives elected shall be present, the assent of 
 two-thirds of those members is necessary to render their 
 acts and proceedings valid. They have power to choose 
 their own officers, and are the judges of the elections and 
 qualifications of their members ; and to punish their 
 members for contempt, or a breach of the peace. 
 
 The journal of the proceedings, and all the public 
 acts of both houses must be printed immediately after 
 every adjournment or prorogation. Every bill and re- 
 solve which shall have passed both houses must, before 
 it becomes a law, be presented to the governor; and, if 
 be approves it, he must sign it ; and the same course of 
 proceeding is required in case of his disapproval, as 
 under the constitution of Massachusetts, before cited. 
 
 § 84. The constitution of Vermont contains the fol- 
 lowing declaration of rights : 
 
 •' That all men are born equally free and independent, 
 and have certain natural, inherent, and unalienable 
 rights, amongst which are the enjoying and defending 
 life and liberty, acquiring, possessing, and protecting 
 property, and pursuing and obtaining happiness and 
 safety ; therefore, no male person, born in this country, 
 or brought from over sea, ought to be holden by law to
 
 132 OP LEGISLATIVE POWER [ciIAP. VI. 
 
 serve any person as a servant, slave, or apprentice, after 
 he arrives to the age of twenty-one years ; nor female, 
 in like manner, after she arrives to the age of eighteen 
 years, unless they are bound by their own consent, after 
 they arrive to such age, or bound by the law for the 
 payment of debts, damages, fines, costs, or the like. 
 
 " That private property ought to be subservient to 
 public uses when necessity requires it; nevertheless, 
 when any person's property is taken for the use of the 
 public, the owner ought to receive an equivalent in 
 money. 
 
 " That all men have a natural and unalienable right 
 to worship Almighty God according to the dictates of 
 their own consciences and understandings, as in their 
 opinion shall be regulated by the word of God : and that 
 no man ought to, or of right can, be compelled to attend 
 any religious worship, or erect or support any place of 
 worship, or maintain any minister, contrary to the dic- 
 tates of his conscience ; nor can any man be justly 
 deprived or abridged of any civil right as a citizen, on 
 account of his religious sentiments or peculiar mode of 
 religious worship ; and that no authority can or ought to 
 be vested in, or assumed by, any power whatever, that 
 shall in any case interfere with, or in any manner con- 
 trol, the rights of conscience in the free exercise of 
 religious worship. Nevertheless, every sect or denomi- 
 nation of Christians ought to observe the Sabbath, or 
 Lord's day, and keep up some sort of religious worship, 
 which to them shall seem most agreeable to the revealed 
 will of God. 
 
 " Every person within this state ought to find a certain 
 remedy, by having recourse to the laws, for all injuries 
 or wrongs which he may receive in his person, property, 
 or character : he ought to obtain right and justice freely, 
 and without being obliged to purchase it ; completely,
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 133 
 
 and without any denial ; promptly, and without delay ; 
 conformably to the law. 
 
 " That the people of this state, by their legal repre- 
 sentatives, have the sole, inherent, and exclusive rigid 
 of governing and regulating the internal police of the 
 same. 
 
 '* That all power being originally inherent in, and con- 
 sequently derived from, the people ; therefore, all officers 
 of government, whether legislative or executive, are 
 their trustees and servants, and at all times, in a legal 
 way, accountable to them. 
 
 " That government is, or ought to be, instituted for 
 the common benefit, protection, and security of the 
 people, nation, or community, and not for the particular 
 emolument or advantage of any single man, family, or 
 set of men, who are a part only of that community ; and 
 that the community hath an indubitable, unalienable, and 
 indefeasible right to reform or alter government, in such 
 manner as shall be, by that community, judged most 
 conducive to the public weal. 
 
 " That all elections ought to be free and without cor- 
 ruption, and that all freemen, having a sufficient evi- 
 dence, common interest with, and attachment to the 
 community, have a right to elect officers, and be elected 
 into office, agreeably to the regulations made in this 
 constitution. 
 
 " That every member of society hath a right to be 
 protected in the enjoyment of life, liberty, and property, 
 and therefore is bound to contribute his proportion to- 
 wards the expense of that protection, and yield his 
 personal service, when necessary, or an equivalent 
 thereto ; but no part of any person's property can be 
 justly taken from him, or applied to public uses, without 
 his consent, or that of the representative body of free- 
 men ; nor can any man, who is conscientiously scrupu- 
 lous of bearing arms, be justly compelled thereto, if he
 
 134 OF LEGISLATIVE POWER [CHAP. VI. 
 
 will pay such equivalent ; nor are the people bound by 
 any law but such as they have in like manner assented 
 to, for their common good ; and previous to any law 
 being made to raise a tax, the purpose for which it is to 
 be raised ought to appear evident to the legislature to 
 be of more service to the community than the money 
 would be if not collected. 
 
 " That, in all prosecutions for criminal offences, a 
 person hath a right to be heard by himself and his 
 counsel ; to demand the cause and nature of his accu- 
 sation ; to be confronted with the witnesses ; to call for 
 evidence in his favor, and a speedy public trial, by an 
 impartial jury of his country ; without the unanimous 
 consent of which jury, he cannot be found guilty; nor 
 can he be compelled to give evidence against himself; 
 nor can any person be justly deprived of his liberty, 
 except by the laws of the land, or the judgment of his 
 peers. 
 
 " 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 any officer or messenger may be 
 commanded or required to search suspected places ; or 
 to seize any person or persons, his, her, or their property, 
 not particularly described, are contrary to that right, and 
 ought not to be granted. 
 
 " That when an issue in fact, proper for the cogni- 
 zance 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. 
 
 c * That the people have a right to a freedom of speech, 
 and of writing and publishing their sentiments, concern- 
 ing the transactions of government, and therefore the 
 freedom of the press ought not to be restrained. 
 
 " The freedom of deliberation, speech, and debate, in
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 135 
 
 the legislature, is so essential to the rights of the people, 
 that it cannot be the foundation of any accusation or 
 prosecution, action or complaint, in any other court or 
 place whatsoever. 
 
 u The power of suspending laws, or the execution of 
 laws, ought never to be exercised but by the legislature, 
 or by authority derived from it, to be exercised in such 
 particular cases as this constitution, or the legislature, 
 shall provide for. 
 
 " That the people have a right to bear arms for the 
 defence of themselves and the state ; and, as standing 
 armies in time of peace are dangerous to liberty, they 
 ought not to be kept up ; and that the military should 
 be kept under strict subordination to, and governed by, 
 the civil power. 
 
 " That no person in this state can, in any case, be 
 subjected to law martial, or to any penalties or pains 
 by virtue of that law, except those employed in the 
 army, and the militia in actual service. 
 
 " The frequent recurrence to fundamental principles, 
 and firm adherence to justice, moderation, temperance, 
 industry, and frugality, are absolutely necessary to pre- 
 serve the blessings of liberty, and keep government free ; 
 the people ought, therefore, to pay particular attention 
 to these points, in the choice of officers and representa- 
 tives, and have a right, in a legal way, to exact a due 
 and constant regard to them, from their legislators and 
 magistrates, in making and executing such laws as are 
 necessary for the good government of the state. 
 
 " That all people have a natural and inherent right to 
 emigrate from one state to another that will receive 
 them. 
 
 *' That the people have a right to assemble together 
 to consult for their common good : to instruct their re- 
 presentatives : and apply to the legislature for redress 
 of grievances by address, petition, or remonstrance.
 
 136 OP LEGISLATIVE POWER [cHAP. VI. 
 
 '.' That no person shall be liable to be transported out 
 of this state for trial of any offence committed within 
 the same." 
 
 § 85. The legislature of the commonwealth of Ver- 
 mont, according to its constitution, is vested in a House 
 of Representatives, and consists of persons most noted for 
 wisdom and virtue, chosen by ballot annually. They 
 have power to elect their own officers, prepare bills and 
 enact them into laws, judge of the election and qualifica- 
 tions of their own members, expel or punish them for 
 misdemeanors, impeacli state criminals, grant charters of 
 incorporations, constitute towns, cities and counties, and 
 elect judges, sheriffs, and justices; and together with the 
 council, elect all military officers, and have all power 
 necessary for the legislature of a free state. The style 
 of the laws passed is, " It is hereby enacted by the 
 General Assembly of the state of Vermont." 
 
 By sec. 16 of chapter 2, it is provided, " To the end 
 that laws, before they are enacted, may be more ma- 
 turely considered, and the inconvenience of hasty deter- 
 minations, as much as possible, prevented, all bills which 
 originate in the assembly shall be laid before the gover- 
 nor and council for their revision and concurrence, or 
 proposals of amendment ; who shall return the same to 
 the assembly, with their proposals of amendment, if any, 
 in writing ; and if the same are not agreed to by the 
 assembly, it shall be in the power of the governor and 
 council to suspend the passing of such bill until the next 
 session of the legislature : Provided, that if the governor 
 and council shall neglect or refuse to return any such 
 bill to the assembly, with written proposals of amend- 
 ment, within five days, or before the rising of the legis- 
 lature, the same shall become a law." 
 
 § 86. The Constitution of Connecticut contains the 
 following preamble and declaration of rights : 
 
 »* The people of Connecticut, acknowledging, with
 
 CHAP. VI.] INDKK STATE CONSTITUTIONS. 137 
 
 gratitude, the good providence of God, in having per- 
 mitted them to enjoy a free government, do, in order 
 more effectually to define, secure, and perpetuate the 
 liberties, rights, and privileges which they have derived 
 from their ancestors, hereby, after a careful consideration 
 and revision, ordain and establish the following constitu- 
 tion and form of civil government. 
 
 " That the great and essential principles of liberty 
 and free government may be recognized and established, 
 we declare : 
 
 " That all men, when they form a social compact, are 
 equal in rights : and that no man, or set of men, are 
 entitled to exclusive public emoluments or privileges 
 from the community. 
 
 '•'That all political power is inherent in the people, 
 and all free governments are founded on their authority, 
 and instituted for their benefit ; and that they have at 
 all times an undeniable and indefeasible right to alter 
 their form of government in such manner as they may 
 think expedient. 
 
 " The exercise and enjoyment of religious profession and 
 worship, without discrimination, shall for ever be free to 
 all persons in this state, provided that the right hereby 
 declared and established shall not be so construed as to 
 excuse acts of licentiousness, or to justify practices in- 
 consistent with the peace and safety of the state. 
 
 " No preference shall be given by law to any Christian 
 sect, or mode of worship. 
 
 " Every citizen may freely speak, write, and publish 
 his sentiments on all subjects, being responsible for the 
 abuse of that liberty. 
 
 " No law shall ever be passed to curtail or restrain the 
 liberty of speech or of the press. 
 
 " In all prosecutions or indictments for libels, the truth 
 may be given in evidence, and the jury shall have a right 
 
 18
 
 138 OF LEGISLATIVE POWER [ciIAP. VI. 
 
 to determine the law and the facts, under the direction 
 of the court. 
 
 " 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 descri- 
 bing them as nearly as may be, nor without probable 
 cause, supported by oath or affirmation. 
 
 "In all criminal prosecutions, the accused shall have 
 a right to be heard, by himself and by counsel : to de- 
 mand the nature and cause of the accusation ; to be 
 confronted by the witnesses against him ; to have com- 
 pulsory process to obtain witnesses in his favor ; and in 
 all prosecutions by indictment or information, a speedy 
 public trial by an impartial jury. He shall not be com- 
 pelled to give evidence against himself, nor be deprived 
 of life, liberty, or property, but by due course of law. 
 And no person shall be holden to answer for any crime, 
 the punishment of which may be death or imprisonment 
 for life, unless on a presentment or an indictment of a 
 grand jury ; except in the land or naval forces, or in the 
 militia, when in actual service, in time of war or public 
 danger. 
 
 " No person shall be arrested, detained, or punished, 
 except in cases clearly warranted by law. 
 
 " The property of no person shall be taken for public 
 use, without just compensation therefor. 
 
 " All courts shall be open ; and every person, for an 
 injury done him, in his person, property, or reputation, 
 shall have remedy by due course of law, and right and 
 justice administered without sale, denial, or delay. 
 
 " Excessive bail shall not be required, nor excessive 
 fines imposed. 
 
 " All prisoners shall, before conviction, be bailable by 
 sufficient sureties, except for capital offences, where the 
 proof is evident, or the presumption great; and the
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 139 
 
 privileges of the writ of habeas corpus shall not be sus- 
 pended, unless when in case of rebellion or invasion the 
 public safety may require it ; nor in any case, but by the 
 legislature. 
 
 " No person shall be attainted of treason or felony by 
 the legislature. 
 
 " The citizens have a right, in a peaceable manner, to 
 assemble for their common good, and to apply to those 
 invested with the powers of government for redress of 
 grievances, or other proper purposes, by petition, ad- 
 dress, or remonstrance. 
 
 " Every citizen has a right to bear arms in defence of 
 himself and the state. 
 
 " The military shall, in all cases, and at all times, be 
 in strict subordination to the civil power. 
 
 " 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. 
 
 " No hereditary emoluments, privileges, or honours 
 shall ever be granted or conferred in this state. 
 
 " The right of trial by jury shall remain inviolate." 
 
 § 87. The Constitution of this state declares all the 
 legislative power of that state to be vested in two dis- 
 tinct branches ; the one is styled the Senate, and the 
 other the House of Representatives, and both together are 
 called u Tke General Assembly. " The style of the laws 
 is " Be it enacted by the senate and house of represen- 
 tatives in general assembly convened." 
 
 The Senate consists of twelve members, annually 
 elected. The House of Representatives consists of elect- 
 ors residing in towns from which they are elected, and 
 are proportionate to the inhabitants. The senate has 
 power to elect their own officers, except the president. 
 The house to elect all its officers, and a majority in 
 each branch constitutes a quorum. Each house deter-
 
 140 OF LEGISLATIVE POWER [CHAP. VI. 
 
 mines the rule of its proceedings, punishes its members, 
 and have all the powers necessary for a legislature. 
 
 The debates of each house are required to be public, 
 except on such occasions as, in the opinion of the house, 
 may require secresy ; and each house must keep a jour- 
 nal of its proceedings, and publish the same in case 
 one-fifth of its members shall require it, except such 
 parts as a majority shall deem to require secresy. 
 
 Every bill which shall have passed both houses, must 
 be presented to the governor, and if he approve it, he 
 must sign it ; and if not, return it to the house in which 
 it originated, with his objections, within three clays, 
 Sundays excepted. When returned, his objections must, 
 be entered on the journal ; and if the legislature, upon 
 re-consideration, shall pass it, it becomes a law. If the 
 legislature by its adjournment, prevent its return within 
 the time prescribed, it does not become a law. 
 
 § 88. The first Constitution of New York was adopted 
 in the year 1777: it was afterwards amended in 1801. 
 In the year 1821, a new constitution was adopted which 
 was in force up to the year 1846, when the constitution 
 was again re-modelled, and which is now in force. 
 
 This constitution contains a bill of rights ; the first 
 sixteen sections of Avhich contain the following pro- 
 visions : 
 
 "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. 
 
 " 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. 
 
 " The free exercise and enjoyment of religious profes- 
 sion and worship, without discrimination or preference, 
 shall forever be allowed in this state to all mankind ; and
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. Ml 
 
 no person shall bo rendered incompetent to be a witness 
 on account of his opinions on matters of religious belief; 
 but the liberty of conscience hereby secured shall not be 
 so construed as to excuse acts of licentiousness, or jus- 
 tify practices inconsistent with the peace or safety of this 
 state. 
 
 " The privilege of the writ of habeas corpus shall not 
 be suspended, unless when, in cases of rebellion or inva- 
 sion, the public safety may require its suspension. 
 
 "Excessive bail shall not be required, nor excessive 
 fines imposed, nor shall cruel and unusual punishments 
 be inflicted, nor shall witnesses be unreasonably de- 
 tained. 
 
 " No person shall be held to answer for a capital or 
 otherwise infamous crime, (except in cases of impeach- 
 ment, and in cases of the militia, when in actual service ; 
 and the land and naval forces in time of war, or which 
 this state may keep with the consent of congress in lime 
 of peace ; and in cases of petit larceny, under the regula- 
 tion of the legislature,) unless on presentment or indict- 
 ment of a grand jury ; and in any trial in any court 
 whatsoever, the party accused shall be allowed to appear 
 and defend in person and with counsel, as in civil actions. 
 No person shall be subject to be twice put in jeopardy 
 for the same offence ; nor shall he be compelled in any 
 criminal case, to be a witness against himself; nor be 
 deprived of life, liberty, or property, without due pro- 
 cess of law ; nor shall private property be taken for 
 public use without just compensation. 
 
 " When private property shall be taken for any public 
 use, the compensation to be made therefor, when such 
 compensation is not made by the state, shall be ascer- 
 tained by a jury, or by not less than three commission- 
 ers appointed by a court of record, as shall be prescribed 
 by law. Private roads may be opened in the manner to 
 be prescribed by law ; but in every case the necessity of
 
 142 OP LEGISLATIVE POWER [CHAP. VI. 
 
 the road, and the amount of all damage 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 proceeding, shall be paid by the person 
 to be benefitted. 
 
 " Every citizen may freely speak, write, and publish 
 his sentiments on all subjects, being responsible for the 
 abuse of that right ; and no law shall be passed to re- 
 strain or abridge the liberty of speech or of the press. 
 In all criminal prosecutions or indictments, for libels, the 
 truth maybe given in evidence to the jury; and if it 
 shall appear to the jury that the matter charged as libel- 
 lous is true, and was published with good motives and 
 for justifiable ends, the party shall be acquitted, and the 
 jury shall have the right to determine the law and the 
 fact. 
 
 " 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. 
 
 " No law shall be passed, abridging the right of the 
 people peaceably to assemble, and to petition the govern- 
 ment, or any department thereof; nor shall any divorce 
 be granted, otherwise than by due judicial proceedings ; 
 nor shall any lottery hereafter be authorized, or any sale 
 of lottery tickets allowed, within this state. 
 
 " The people of this state, in their right of sovereignty, 
 are deemed to possess the original and ultimate property 
 in and to all lands within the jurisdiction of the state; 
 and all lands, the title to which shall fail, from a defect 
 of heirs, shall revert or escheat to the people. 
 
 " All feudal tenures of every description, with all their 
 incidents, are declared to be abolished ; saving, however, 
 all rents and services certain which at any time hereto- 
 fore have been lawfully created or reserved. 
 
 " All lands within this state are declared to be allodial,
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 143 
 
 so that, subject only to the liability to escheat, the entire 
 and absolute property is vested in the owners according 
 to the nature of their respective estates. 
 
 " No lease or grant of agricultural land for a longer 
 period than twelve years, hereafter made, in which shall 
 be reserved any rent or service of any kind, shall be 
 valid. 
 
 " All fines, quarter sales, or other like restraints upon 
 alienation reserved, in any grant of land hereafter to be 
 made, shall be void. 
 
 M No purchase or contract for the sale of lands in this 
 state, made since the fourteenth day of October, one 
 thousand seven hundred and seventy-five ; or which may 
 hereafter be made, of, or with the Indians, shall be valid, 
 unless made under the authority and with the consent of 
 the legislature." • 
 
 § 89. By this last constitution, the legislative power is 
 vested in a Senate and Assembly. The Senate consists 
 of thirty-two members, and are chosen every two years. 
 The Assembly consists of one hundred and twenty-eight 
 members, annually elected. The former branch is 
 elected from the districts into which the state is divided, 
 each district being entitled to one member. The mem- 
 bers of the assembly are apportioned among the several 
 counties, according to the number of its inhabitants. A 
 majority of each house constitutes a quorum, and each 
 house determines the rules of its proceedings, judges the 
 elections, returns and qualifications of its own members, 
 and chooses its own officers, except the president of the 
 senate. Any bill may originate in either house, and all 
 bills passed by one house, maybe amended by the other. 
 The enacting clause of all bills is, " The People of the 
 State of New York, represented in Senate and Assem- 
 bly, do enact as follows." The legislature lias power to 
 alter and regulate the proceedings and jurisdiction in 
 law and equity; they may establish local courts of civil
 
 144 OF LEGISLATIVE POWER [CHAP. VI. 
 
 and criminal jurisdiction, and provide for the election of 
 local officers ; to provide by law for the registry of bills 
 and notes issued as money ; provide for the organization 
 of cities and villages, restrict their power of taxation, as- 
 sessments, contracting debts, and borrowing money ; may 
 provide for filling up vacancies in office, or declaring 
 offices to be vacant ; and have such other and further 
 powers as are necessary for the legislature of a free and 
 enlightened people. 
 
 No bill can be passed unless by the assent of a ma- 
 jority of all the members elected to each branch of the 
 legislature ; and the question upon the final passage 
 must be taken immediately upon its last reading, and the 
 yeas and nays entered on the journal. No private or 
 local bill, which may be passed by the legislature, can 
 embrace more than one subject, and that must be ex- 
 pressed in the title. 
 
 The legislature has power to delegate to the board of 
 supervisors of the several counties of the state, such 
 further powers of local legislation and administration, as 
 it shall from time to time prescribe. Every bill which 
 passes the senate and assembly must, before it becomes 
 a law, be presented to the governor : if he approves, he 
 must sign it ; but if not, he must return it with his ob- 
 jections, to that house in which it originated, which must 
 enter such objections at large on the journal, and proceed 
 to re-consider it. If, after such re-consideration, two- 
 thirds of the members present shall pass the bill, it must 
 be sent to the other house, by which it must be re-con- 
 sidered ; and if approved by all the members present, it 
 becomes a law, notwithstanding the objections of the 
 governor. But in such cases, the vote of both houses 
 must be determined by yeas and nays, and entered on 
 their respective journals. If the bill is not returned by. 
 the governor within ten days, Sundays excepted, after it 
 shall be presented to him, it becomes a law in the same 

 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 145 
 
 manner as if he had signed it, unless the legislature shall, 
 by their adjournment, prevent its return, in which case 
 it does not become a law. 
 
 There is quite an anomaly in the provisions respecting 
 the passage of those bills which the governor returns 
 with his objections. No bill, it will be perceived, can be 
 passed under one provision of the constitution, unless it 
 receive the assent of a majority of all the members 
 elected to each branch of the legislature ; the total num- 
 ber of both branches is one hundred and sixty ; there- 
 fore, eighty -one constitutes a majority that must vote for 
 the bill originally. A majority of each house, by another 
 provision, constitutes a quorum to do business ; hence, 
 sixty-five is a majority of the house, and seventeen a 
 majority of the senate ; making the total number to con- 
 stitute a quorum for both houses eighty-two. In the 
 event that all the residue of each branch should see fit 
 to absent themselves from the house on a final passage 
 of a bill vetoed by the governor, two-thirds of sixty-five 
 may pass the bill in the house, and two-thirds of seventeen 
 may pass it, under such circumstances, in the senate : that 
 is, twelve may pass it in the senate, and thirty-three in 
 the house ; so that, in the event of a veto to a bill, it 
 may, notwithstanding, become a law by the final vote of 
 forty-five members of the legislature ; whereas, if it had 
 not been objected to by the governor, it must, in order 
 to have become a law, have received the vote of at least 
 eighty-one members of the legislature. 
 
 The clause relative to those bills returned with the 
 dissent of the governor, is found in a section of the con- 
 stitution posterior to the other provisions above referred 
 to, in the same instrument. 
 
 § 90. The constitution of Pennsylvania declares, that 
 the legislative powers shall be vested in a General As- 
 sembly, consisting of a Senate and House of Representa- 
 tives. 
 
 19
 
 146 OF LEGISLATIVE POWER [CHAP. VI. 
 
 It also contains the following provisions : 
 
 " The general assembly shall meet on the first Tues- 
 day of December in every year, unless sooner convened 
 by the governor. 
 
 " Each house shall choose its speaker and other offi- 
 cers ; and the senate shall also choose a speaker pro 
 tempore, when the speaker shall exercise the office of 
 governor. 
 
 "Each house shall judge of the qualifications of its 
 members. Contested elections shall be determined by a 
 committee, to be selected, formed, and regulated in such 
 manner as shall be directed by law. A majority of each 
 house shall constitute a quorum to do business ; but a 
 smaller number may adjourn from day to day, and may 
 be authorized, by law, to compel the attendance of ab- 
 sent members, in such manner, and under such penalties 
 as may be provided. 
 
 " Each house may determine the rules of its proceed- 
 ings, punish its members for disorderly behavior, and, 
 with the concurrence of two-thirds, expel a member, but 
 not a second time for the same cause ; and shall have 
 all other powers necessary for a branch of the legislature 
 of a free state. 
 
 " Each Jiouse shall keep a journal of its proceedings, 
 and publish them weekly, except such parts as may re- 
 quire secrecy. And the yeas and nays of the members 
 on any question shall, at the desire of any two of them, 
 be entered on the journals. 
 
 " The doors of each house and of committees of the 
 whole shall be open, unless when the business shall be 
 such as ought to be kept secret. 
 
 " Neither house shall, without the consent of the other, 
 adjourn for more than three days, nor to any other place 
 than that in which the two houses shall be sitting. 
 "All bills for raising revenue shall originate in the
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 147 
 
 house of representatives ; but the senate may propose 
 amendments, as in other bills. 
 
 "Every bill, which shall have passed both houses, 
 shall be presented to the governor. If he approve, he 
 shall sign it ; but if he shall not approve, he shall return 
 it, with his objections, to the house in which it shall 
 have originated, who shall enter the objections at large 
 upon their journals, and proceed to reconsider it. If, 
 after such reconsideration, two-thirds of that house shall 
 agree to pass the bill, it shall be sent, with ihe objections, 
 to the other house, by which likewise it shall be recon- 
 sidered ; and if approved by two-thirds of that house, it 
 shall be a law r . But in such cases the votes of both 
 houses shall be determined by yeas and nays, and the 
 names of the persons voting for or against the bill shall 
 be entered on the journals of each house respectively. 
 If any bill shall not be returned by the governor within 
 ten days (Sundays excepted) after it shall have been 
 presented to him, it shall be a law, in like manner as if 
 he had signed it, unless the general assembly, by their 
 adjournment, prevent its return : in which case it shall 
 be a law, unless sent back within three days after their 
 next meeting. 
 
 " Every order, resolution or vote, to which the con- 
 currence of both houses may be necessary, (except on a 
 question of adjournment) shall be presented to the gov- 
 ernor, and, before it shall take effect, be approved by 
 him, or being disapproved, shall be repassed by two- 
 thirds of both houses, according to the rules and limita- 
 tions prescribed in case of a bill. 
 
 " The house of representatives shall have the sole 
 power of impeaching. 
 
 " All impeachments shall be tried by the Senate : 
 When sitting for that purpose, the senators shall be 
 upon oath or affirmation. No person shall be convicted
 
 148 OP LEGISLATIVE POWER [CHAP. VI. 
 
 without the concurrence of two-thirds of the members 
 present." 
 
 It also contains the following declaration of rights : 
 
 " That the general, great, and. essential principles of 
 liberty and free government may be recognized and un- 
 alterably established, We declare That, 
 
 " All men are born equally free and independent, and 
 have certain inherent and indefeasible rights, among 
 which are those of enjoying and defending life and lib- 
 erty, of acquiring, possessing and protecting property and 
 reputation, and of pursuing their own happiness. 
 
 "All power is inherent in the people, and all free 
 governments are founded on their authority, and instituted 
 for their peace, safety and happiness : For the advance- 
 ment of these ends, they have at all times, an unalienable 
 and indefeasible right to alter, reform, or abolish their 
 government, in such manner as they may think proper. 
 
 " All men have a natural and indefeasible right to 
 worship Almighty God according to the dictates of their 
 own consciences : no man can, of right, be compelled to 
 attend, erect or support any place of worship, or to 
 maintain any ministry against his consent: no human 
 authority can, in any case whatever, control or interfere 
 with the rights of conscience : and no preference shall 
 ever be given, by law, to any religious establishment or 
 modes of worship. 
 
 " No person who acknowledges the being of a God, 
 and a future state of rewards and punishments, shall, on 
 account of his religious sentiments, be disqualified to 
 hold any office or place of trust or profit under this com- 
 monwealth. 
 
 " Elections shall be free and equal. 
 
 " Trial by jury shall be as heretofore, and the right 
 thereof remain inviolate. 
 
 " The printing presses shall be free to every person 
 who undertakes to examine the proceedings of the legis-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 149 
 
 lature, or any branch of government : And no law shall 
 ever be made to restrain the right thereof. The free 
 communication of thoughts and opinions is one of the 
 invaluable rights of man ; and every citizen may freely 
 speak, write and print on any subject, being responsible 
 for the abuse of that liberty. In prosecutions for the 
 publication of papers investigating the official conduct of 
 officers, or men in a public capacity, or where the matter 
 published is proper for public information, the truth 
 thereof may be given in evidence : And in all indict- 
 ments for libels, the jury shall have a right to determine 
 the law and the facts, under the direction of the court as 
 in other cases. 
 
 " The people shall be secure in their persons, houses, 
 papers and possessions, from unreasonable searches and 
 seizures : And no warrant to search any place, or to 
 seize any person or things, shall issue, without descri- 
 bing them as nearly as may be, nor without probable 
 cause supported by oath or affirmation. 
 
 " In all criminal prosecutions, the accused hath a right 
 to be heard by himself and his counsel, to demand the 
 nature and cause of the accusation against him ; to meet 
 the witnesses face to face ; to have compulsory process 
 for obtaining witnesses in his favor, and, in prosecutions 
 by indictment or information, a speedy public trial, by 
 an impartial jury of the vicinage; he cannot be com- 
 pelled to give evidence against himself, nor can he be 
 deprived of his life, liberty, or property, unless by the 
 judgment of his peers, or the law of the land. 
 
 " No person shall, for any indictable offence, be pro- 
 ceeded against criminally by information, except in cases 
 arising in the land or naval forces, or in the militia when 
 in actual service in time of war or public danger, or, by 
 leave of the court, for oppression and misdemeanor in 
 office. No person shall for the same offence, be twice 
 put in jeopardy of life or limb ; nor shall any man's
 
 150 OF LEGISLATIVE POWER [CHAP. VI. 
 
 property be taken or applied to public use, without the 
 consent of his representatives, and without just compen- 
 sation being made. 
 
 " All courts shall be open, and every man, for an in- 
 jury done him in his lands, goods, person or reputation, 
 shall have remedy by the due course of law, and right 
 and justice administered, without sale, denial or delay. 
 Suits may be brought against the commonwealth in such 
 manner, in such courts, and in such cases, as the legisla- 
 ture may by law direct. 
 
 "No power of suspending laws shall be exercised, 
 unless by the legislature, or its authority. 
 
 " Excessive bail shall not be required, nor excessive 
 lines imposed, nor cruel punishments inflicted. 
 
 " All prisoners shall be bailable by sufficient sureties, 
 unless for capital offences, when the proof is evident or 
 presumption great; and the privilege of the writ of 
 habeas corpus shall not be suspended, unless when, in 
 cases of rebellion, or invasion, the public safety may re- 
 quire it. 
 
 " No commission of Oyer and Terminer or gaol de- 
 livery shall be issued. 
 
 " The person of a debtor, where there is not strong 
 presumption of fraud, shall not be continued in prison, 
 after delivering up his estate for the benefit of his credi- 
 tors, in such a manner as shall be prescribed by law. 
 
 " No ex post facto law, nor any law impairing con- 
 tracts shall be made. 
 
 " No person shall be attainted of treason or felony by 
 the legislature. 
 
 " No attainder shall work corruption of blood, nor, 
 except during the life of the offender, forfeiture of estate 
 to the commonwealth : the estates of such persons as 
 shall destroy their own lives, shall descend or vest as in 
 case of natural death ; and if any person shall be killed
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 151 
 
 by casualty, there shall be no forfeiture by reason 
 thereof. 
 
 u The citizens have a right, in a peaceable manner, to 
 assemble together, for their common good, and to apply 
 to those invested with the powers of government for re- 
 dress of grievances, or other proper purposes, by petition, 
 address, or remonstrance. 
 
 " The right of citizens to bear arms, in defence of 
 themselves and the state, shall not be questioned. 
 
 " No standing army shall, in time of peace, be kept up 
 without the consent of the legislature ; and the military 
 shall, in all cases, and at all times, be in strict subordi- 
 nation to the civil power. 
 
 " 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. 
 
 " The legislature shall not grant any title of nobility, 
 or hereditary distinction, nor create any office the ap- 
 pointment of which shall be for a longer term than 
 during good behaviour. 
 
 " Emigration from the state shall not be prohibited. 
 
 " 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 for ever remain inviolate." 
 
 § 91. On the 2d day of July, 1776, in a provincial 
 congress, held at Burlington, New Jersey, a charter of 
 rights, in the form of a constitution, was adopted, which 
 was slightly amended by an act of 20th September, 
 1777, and remained the fundamental law of that state, 
 until the adoption of a new constitution in 1844. The 
 constitution then adopted contained the following provi- 
 sions : 
 
 " All men are by nature free and independent, and 
 have certain natural and unalienable rights, among which 
 are those of enjoying and defending life and liberty, ac-
 
 152 OF LEGISLATIVE POWER [cHAP. VI. 
 
 quiring, possessing, and protecting property, and of pur- 
 suing and obtaining safety and happiness. 
 
 " All political power is inherent in the people. 
 
 " Government is instituted for the protection, security, 
 and benefit of the people, and they have the right at all 
 times to alter or reform the same, whenever the public 
 good may require it. 
 
 " No person shall be deprived of the inestimable privi- 
 lege of worshiping Almighty God in a manner agreeable 
 to the dictates of his own conscience ; nor under any 
 pretence whatever, be compelled to attend any place of 
 worship contrary to his faith and judgment ; nor shall 
 any person be obliged to pay tithes, taxes, or other rates, 
 for building or repairing any church or churches, place 
 or places of worship, or for the maintenance of any 
 minister or ministry contrary to what he believes to be 
 right, or has deliberately and voluntarily engaged to 
 perform. 
 
 " There shall be no establishment of one religious sect 
 in preference to another. No religious test shall be re- 
 quired as a qualification for any office or public trust ; 
 and no person shall be denied the enjoyment of any civil 
 right merely on account of his religious principles. 
 
 " Every person may freely speak, write, and publish 
 his sentiments on all subjects, being responsible for the 
 abuse of that right. No law shall be passed to restrain 
 or abridge the liberty of speech or of the press. In all 
 prosecutions or indictments for libel, the truth may be 
 given in evidence to the jury ; and if it shall appear to 
 the jury that the matter charged as libellous is true, and 
 was published with good motives and for justifiable ends, 
 the party shall be acquitted ; and the jury shall have the 
 right to determine the law and the fact. 
 
 " 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 warrant shall
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 153 
 
 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. 
 
 " The right of trial by jury shall remain inviolate ; 
 but the legislature may authorize the trial of civil suits, 
 when the matter in dispute does not exceed fifty dollars, 
 by a jury of six men. 
 
 " In all criminal prosecutions, the accused shall have 
 the right to a speedy and public trial by an impartial 
 jury; to be informed of the nature and cause of the ac- 
 cusation ; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining witnesses 
 in his favor, and to have the assistance of counsel in his 
 defence. 
 
 " No person shall be held to answer for a criminal 
 offence, unless on the presentment or indictment of a 
 grand jury, except in cases of impeachment, or in cases 
 cognizable by justices of the peace, or arising in the 
 army or navy, or in the militia, when in actual service 
 in time of war or public danger. 
 
 " No person shall, after acquittal, be tried for the same 
 offence. All persons shall, before conviction, be bailable 
 by sufficient sureties, except for capital offences, when 
 the proof is evident or presumption great. 
 
 " The privilege of the writ of habeas corpus shall not 
 be suspended, unless, in case of rebellion or invasion, 
 the public safety may require it. 
 
 " The military shall be in strict subordination to the 
 civil power. 
 
 " No soldier shall, in time of peace, be quartered in 
 any house without the consent of the owner ; nor in 
 time of war, except in a manner prescribed by law. 
 
 " Treason against the state shall consist only in levy- 
 ing war against it, or in adhering to its enemies, giving 
 them aid and comfort. No person shall be convicted of 
 
 20
 
 154 OF LEGISLATIVE POWER [CHAP. VI, 
 
 treason, unless on the testimony of two witnesses to the 
 same overt act, or on confession in open court, 
 
 " Excessive bail shall not be required, excessive lines 
 shall not be imposed, and cruel and unusual punishments 
 shall not be inflicted. 
 
 " 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. 
 
 " No person shall be imprisoned for debt in any action, 
 or on any judgment founded upon contract, unless in cases 
 of fraud ; nor shall any person be imprisoned for a mili- 
 tia fine in time of peace. 
 
 " The people have the right freely to assemble together, 
 to consult for the common good, to make known their 
 opinions to their representatives, and to petition for re- 
 dress of grievances. 
 
 " This enumeration of rights and privileges shall not 
 be construed to impair or deny others retained by the 
 people." 
 
 § 92. It also provided : 
 
 " The powers of the government shall be divided into 
 three distinct departments — the legislative, executive, 
 and judicial ; and no person or persons belonging to, or 
 constituting one of these departments, shall exercise any 
 of the powers properly belonging to either of the others, 
 except as herein expressly provided. 
 
 " The legislative power shall be vested in a Senate 
 and General Assembly. 
 
 " The senate shall be composed of one senator from 
 each county in the state, elected by the legal voters of 
 the counties, respectively, for three years. 
 
 "The general assembly shall be composed of mem- 
 bers annually elected by the legal voters of the counties, 
 respectively, who shall be apportioned among the said
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 155 
 
 counties as nearly as may be, according to the number 
 of their inhabitants. 
 
 " Each house shall be the judge of the elections, re- 
 turns, and qualifications of its own members, and a 
 majority of each shall constitute a quorum to do busi- 
 ness ; but a smaller number may adjourn from day to 
 day, and may be authorized to compel the attendance 
 of absent members, in such manner and under such 
 penalties as each house may provide. 
 
 " Each house shall choose its own officers, determine 
 the rules of its proceedings, punish its members for dis- 
 orderly behaviour, and, with the concurrence of two- 
 thirds, may expel a member. 
 
 " Each house shall keep a journal of its proceedings, 
 and from time to time publish the same ; and the yeas 
 and nays of the members of either house, on any ques- 
 tion, shall, at the desire of one-fifth of those present, be 
 entered on the journal. 
 
 " Neither house, during the session of the legislature, 
 shall, without the consent of the other, adjourn for more 
 than three days, nor to any other place than that in 
 which the two houses shall be sitting. 
 
 " All bills and joint resolutions shall be read three 
 times in each house, before the final passage thereof; 
 and no bill or joint resolution shall pass, unless there be 
 a majority of all the members of each body personally 
 present and agreeing thereto : and the yeas and nays of 
 members voting on such final passage shall be entered 
 on the journal. 
 
 "All bills for raising revenue shall originate in the 
 house of assembly ; but the senate may propose or con- 
 cur with amendments, as on other bills. 
 
 " No money shall be drawn from the treasury, but for 
 appropriations made by law. 
 
 " The credit of the state shall not be directly or indi- 
 rectly loaned in any case.
 
 156 OF LEGISLATIVE POWER [CHAP. VI. 
 
 " The legislature shall not, in any manner, create any 
 debt or debts, liability or liabilities, of the state, which 
 shall singly, or in the aggregate with any previous debts 
 or liabilities, at any time exceed one hundred thousand 
 dollars, except for purposes of war or to repel invasion, 
 or to suppress insurrection, unless the same shall be au- 
 thorized by a law for some single object or work, to be 
 distinctly specified therein ; which law shall provide the 
 ways and means, exclusive of loans, to pay the interest 
 of such debt or liability as it falls due, and also, to pay 
 and discharge the principal of such debt or liability 
 within thirty-five years from the time of the contracting 
 thereof, and shall be irrepealable until such debt or lia- 
 bility, and the interest thereon, are fully paid and dis- 
 charged : and no such law shall take effect until it shall, 
 at a general election, have been submitted to the people, 
 and have received the sanction of a majority of all the 
 votes cast for and against it at such election : and all 
 money to be raised by the authority of such law shall 
 be applied only to the specific object stated therein, and 
 to the payment of the debt thereby created. This sec- 
 tion shall not be construed to refer to any money that 
 has been, or may be deposited with this state by the 
 government of the United States. 
 
 " No divorce shall be granted by the legislature. 
 " No lottery shall be authorized by this state ; and no 
 ticket in any lottery not authorized by a law of this 
 state, shall be bought or sold within the state. 
 
 M 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 enfor- 
 cing a contract which existed when the contract was 
 made, 
 
 " 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
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 157 
 
 embrace but one object, and that shall be expressed in 
 the title. 
 
 " The laws of this state shall begin in the following 
 style, ' Be it enacted by the Senate and General Assem- 
 bly of the state of New Jersey.' 
 
 " The fund for the support of free schools, and all 
 money, stock and other property, which may hereafter 
 be appropriated for that purpose, or received into the 
 treasury under the provision of any law heretofore passed 
 to augment the said fund, shall be securely invested, and 
 remain a perpetual fund ; and the income thereof, 
 except so much as it may be judged expedient to apply 
 to an increase of the capital, shall be annually appropri- 
 ated to the support of public schools, for the equal 
 benefit of all the people of the state ; and it shall not be 
 competent for the legislature to borrow, appropriate, or 
 use the said fund, or any part thereof, for any other 
 purpose, under any pretence whatever. 
 
 " No private or special law shall be passed authori- 
 zing the sale of any lands belonging in whole or in part 
 to a minor or minors, or other persons who may at the 
 time be under any legal disability to act for themselves. 
 
 <; The assent of three-fifths of the members elected to 
 each house shall be requisite to the passage of every 
 law for granting, continuing, altering, amending, or re- 
 newing charters for banks or money corporations ; and 
 all such charters shall be limited to a term not exceed- 
 ing twenty years. 
 
 " Individuals or private corporations shall not be au- 
 thorized to take private property for public use, without 
 just compensation first made to the owners. 
 
 " The legislature may vest in the circuit courts or 
 courts of common pleas, within the several counties of 
 this state, chancery powers, so far as relates to the fore- 
 closure of mortgages and sale of mortgaged premises. 
 " Every bill which shall have passed both houses
 
 158 OP LEGISLATIVE POWER [CHAP. VI. 
 
 shall be presented to the governor : if he approve, he 
 shall sign it ; but if not, he shall return it, with his ob- 
 jections, to the house in which it shall have originated, 
 who shall enter the objections at large on their journal, 
 and proceed to reconsider it ; if, after such reconsidera- 
 tion, a majority of the whole number of that house shall 
 agree to pass the bill, it shall be sent, together with the 
 objections, to the other house, by which it shall likewise 
 be reconsidered, and if approved of by a majority of the 
 whole number of that house, it shall become a law ; but 
 in neither house shall the vote be taken on the same day 
 on which the bill shall be returned to it : and in all such 
 cases the votes of both houses shall be determined by 
 yeas and nays, and the names of the persons voting for 
 and against the bill shall be entered on the journal of 
 each house respectively. If any bill shall not be re- 
 turned by the governor, within five days (Sunday ex- 
 cepted) after it shall have been presented to him, the 
 same shall be a law, in like manner as if he had signed 
 it, unless the legislature, by their adjournment, prevent 
 its return, in which case it shall not be a law. 
 
 " The house of assembly shall have the sole power of 
 impeaching, by a vote of a majority of all the members; 
 and all impeachments shall be tried by the senate : the 
 members, when sitting for that purpose, to be on oath or 
 affirmation * Truly and impartially to try and determine 
 the charge in question according to evidence :' and no 
 person shall be convicted without the concurrence of 
 two-thirds of all the members of the senate." 
 
 § 93. The constitution of the state of Delaware vests 
 the legislative power in a general assembly, consisting 
 of a Senate and House of Representatives. 
 
 The representatives are chosen for two years by the 
 citizens of the respective counties. 
 
 The senators are elected for four years in the same 
 manner.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS;. 139 
 
 Each house elects its speaker and other officers ; and 
 also each house whose speaker acts as governor elects a 
 speaker p?-o tcm. 
 
 Each house also arc judges of the elections, returns, 
 and qualifications of their own members, and a majority 
 constitutes a quorum ; they may compel the attendance 
 of their members, determine their own rules of proceed- 
 ings, punish their own members for disorderly behavior, 
 and has all the powers necessary for a legislature of a 
 free state. 
 
 The house of representatives has the sole power of 
 impeachment, but these cases must be tried by the sen- 
 ate. It is also declared : 
 
 " All bills for raising revenue shall originate in the 
 house of representatives ; but the senate may propose 
 alterations as in other bills ; and no bill; from the opera- 
 tions of which, w r hen passed into a law, revenue may 
 incidentally arise, shall be accounted a bill for raising 
 revenue ; nor shall any matter or clause whatever, not 
 immediately relating to and necessary for raising reve- 
 nues be in any manner blended with or annexed to a 
 bill for raising revenue. (a) 
 
 " No act of incorporation, except for the renewal of 
 existing corporations, shall be hereafter enacted without 
 the concurrence of two thirds of each branch of the le- 
 gislature, and with a reserved power of revocation by 
 the legislature ; and no act of incorporation which may 
 be hereafter enacted shall continue in force for a longer 
 period than twenty years, without the re-enactment of 
 the legislature, unless it be an incorporation for public 
 improvement." 
 
 § 94. The constitution of Maryland contains the fol- 
 lowing declaration of rights : 
 
 ■ The parliament of Great Britain, by a declaratory 
 
 {a) Art. 2, § 14.
 
 160 OF LEGISLATIVE POWER [CHAP. VI. 
 
 act, having assumed a right to make laws to bind the 
 colonies in all cases whatsoever, and, in pursuance of 
 such claim, endeavored, by force of arms, to subjugate 
 the united colonies to an unconditional submission to 
 their will and power, and having at length constrained 
 them to declare themselves independent states, and to 
 assume a government under the authority of the people : 
 Therefore, 
 
 " We, the delegates of Maryland, in free and full con- 
 vention assembled, taking into our most serious conside- 
 ration the best means of establishing a good constitution 
 in this state, for the sure foundation and more perma- 
 nent security thereof, declare : 
 
 u That all government of right originates from the 
 people, is founded in compact only, and instituted solely 
 for the good of the whole. 
 
 " That the people of this state ought to have the sole 
 and exclusive right of regulating the internal government 
 and police thereof. 
 
 " That the inhabitants of Maryland are entitled to the 
 common law of England, and the trial by jury, accord- 
 ing to the course of that law, and to the benefit of such 
 of the English statutes, as existed at the time of their 
 first emigration ; and which, by experience, have been 
 found applicable to their local and other circumstances, 
 and of such others as have been since made in England, 
 and Great Britain, and have been introduced, used, and 
 practised by the courts of law or equity : and also to all 
 acts of assembly, in force on the first of June, seventeen 
 hundred and seventy-four, except such as may have 
 since expired, or have been, or may be, altered by acts 
 of convention, or this declaration of rights — subject, nev- 
 ertheless, to the revision of, and amendment or repeal 
 by, the legislature of this state ; and the inhabitants of 
 Maryland are also entitled to all property derived ta
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 161 
 
 them from or under the charter granted by his majesty 
 Charles I., to Caecilius Calvert, B:iron of Baltimore. 
 
 That all persons invested with the legislative or 
 executive powers of government are the trustees of the 
 public, and, as such, accountable for their conduct ; 
 wherefore, whenever the ends of government are per- 
 verted j and the public liberty manifestly endangered, and 
 all other means of redress are ineffectual, the people may, 
 and of right ought to do, reform the old, or establish a 
 new government. The doctrine of non-resistance against 
 arbitrary power and oppression is absurd, slavish, and 
 destructive of the good and happiness of mankind. 
 
 " That the right, in the people, to participate in the 
 legislature, is the best security of liberty, and the foun- 
 dation of all free government ; for this purpose elections 
 ought to be free and frequent; and every man having 
 property in> a common interest with, and an attachment 
 to; the community, ought to have a right of suffrage. 
 
 "That the legislative, executive, and judicial powers 
 of government ought to be for ever separate and distinct 
 from each other. 
 
 " That no power of suspending laws, or the execution 
 of laws, unless by, or derived from, the legislature, ought 
 to be exercised or allowed. 
 
 " That freedom of speech and debate, or proceedings, 
 in the legislature, ought not be impeached in any other 
 court of judicature. 
 
 " That a place for the meeting of the legislature ought 
 to be fixed, the most convenient to the members thereof, 
 and to the depository of public records ; and the legisla- 
 ture ought not to be convened or held at any other place, 
 but from evident necessity. 
 
 " That, for redress of grievances, and for amending, 
 strengthening, and preserving the laws, the legislature 
 ought to be frequently convened. 
 
 " That every man hath a right to petition the legisla- 
 
 21
 
 162 OF LEGISLATIVE POWER [CHAP. VI, 
 
 ture, for the redress of grievances, in a peaceable and 
 orderly manner. 
 
 " That no aid, charge, tax, burthen, fee or fees, ought 
 to be set, rated, or levied, under any pretence, without 
 consent of the legislature. 
 
 " That the levying of taxes by the poll is grievous and 
 oppressive, and ought to be abolished ; that paupers 
 ought not to be assessed for the support of government ; 
 but every other person in the state ought to contribute 
 his proportion of public taxes, for the support of govern- 
 ment, according to his actual worth, in real or personal 
 property, within the state ; yet fines, duties, or taxes 
 may properly and justly b^ imposed or laid, with politi- 
 cal view, for the good government and benefit of the 
 community. 
 
 " That sanguinary laws ought to be avoided, as far as 
 is consistent with the safety of the state ; and no law to 
 inflict cruel and unusual pains and penalties ought to be 
 made in any case, or at any time hereafter. 
 
 " That retrospective laws, punishing facts committed 
 before the existence of such laws, and by them only de- 
 clared criminal, are oppressive, unjust, and incompatible 
 with liberty ; wherefore, no ex post facto law ought to 
 be made. 
 
 " That no law to attaint particular persons of treason 
 or felony, ought to be made in any case, or any time 
 hereafter. 
 
 " That every freeman, for any injury done him in his 
 person or property, ought to have remedy, by the course 
 of the law of the land, and ought to have justice and 
 right, freely, without sale, fully, without any denial, and 
 speedily, without delay, according to the law of the 
 land. 
 
 " That the trial of facts where they arise is one of the 
 greatest securities of the lives, liberties, and estates of 
 the people.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 163 
 
 " That, in all criminal prosecutions, every man hath a 
 right to be informed of the accusation against him ; to 
 have a copy of the indictment or charge in due time (if 
 required) to prepare for his defence ; to be allowed 
 counsel ; to be confronted with the witnesses against 
 him ; to have process for his witnesses ; to examine the 
 witnesses for and against him, on oath ; and to a speedy 
 trial by an impartial jury, without whose unanimous 
 consent he ought not to be found guilty. 
 
 " That no man ought to be compelled to give evidence 
 against himself, in a court of common law, or in any 
 other court, but in such cases as have been usually 
 practised in this state,, or may hereafter be directed by 
 the legislature. 
 
 " That no freeman ought to 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 judg- 
 ment of his peers, or by the law of the land. 
 
 " That excessive bail ought not to be required, nor 
 excessive fines imposed, nor cruel or unusual punish- 
 ments inflicted by the courts of law. 
 
 " That all warrants, without oath or affirmation, to 
 search suspected places, or to seize any person or pro- 
 perty, are grievous and oppressive ; and all general war- 
 rants to search suspected places, or to apprehend sus- 
 pected persons, without naming or describing the place 
 or the person in special, are illegal, and ought not to be 
 granted. 
 
 " That there ought to be no forfeiture of any part of 
 the estate of any person, for any crime except murder, 
 or treason against the state, and then only on conviction 
 and attainder. 
 
 " That a well regulated militia is the proper and natu- 
 ral defence of a free government. 
 
 u That standing armies are dangerous to liberty, and
 
 164 OF LEGISLATIVE POWER [CHAP. VL 
 
 ought not to be raised or kept up without consent of the 
 legislature. 
 
 " That, in all cases and at all times, the military ought 
 to be under strict subordination to, and control of, the 
 civil power. 
 
 " That no soldier ought to be quartered in any house 
 in time of peace, without the consent of the owner ; and 
 in time of war, in such manner only as the legislature 
 shall direct. 
 
 <{ That no person, except regular soldiers, mariners, 
 and marines in the service of this state, or militia when 
 in actual service, ought in any case to be subject to, or 
 punishable by, martial law. 
 
 " That the independency and uprightness of judges 
 are essential to the impartial administration of justice, 
 and a great security to the rights and liberties of the 
 people ; wherefore, the chancellor and judges ought to 
 hold commissions during good behaviour ; and the said 
 chancellor and judges shall be removed for misbehaviour, 
 on conviction in a court of law, and may be removed by 
 the governor, upon the address of the general assembly ; 
 provided, that two-thirds of all the members of each 
 house concur in such address. That salaries, liberal, 
 but not profuse, ought to be secured to the chancellor 
 and the judges during the continuance of their commisr 
 sions, in such manner, and at such times, as the legisla- 
 ture shall hereafter direct, upon consideration of the 
 circumstances of this state. No chancellor or judge 
 ought to hold any other office, civil or military, or receive 
 fees or perquisites of any kind. 
 
 " That a long continuance in the first executive de^- 
 partment of power or trust, is dangerous to liberty ; a 
 rotation, therefore, in those departments, is one of the 
 best securities of permanent freedom. 
 
 " That no person ought to hold, at the same time, 
 more than one office of profit, nor ought any person in
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 165 
 
 public trust to receive any present from any foreign 
 prince or state, or from the United States, or any of 
 them, without the approbation of this state. 
 
 "That, as it is the duty of every man to worship God 
 in such manner as he thinks most acceptable to him, all 
 persons professing the Christian religion are equally en- 
 titled to protection in their religious liberty ; wherefore, 
 no person ought by any law to be molested in his person 
 or estate, on account of his religious persuasion or pro- 
 fession, or for his religious practice ; unless, under color 
 of religion, any man shall disturb the good order, peace, 
 or safety of the state, or shall infringe the laws of mo- 
 rality, or injure others in their natural, civil, or religious 
 rights : nor ought any person to be compelled to frequent, 
 or maintain, or contribute, unless on contract, to main- 
 tain any particular place of worship or any particular 
 ministry ; (yet the legislature may, in their discretion, 
 lay a general and equal tax for the support of the Chris- 
 tian religion ; leaving to each individual the power of 
 appointing the payment over of the money, collected from 
 him, to the support of any particular place of worship or 
 minister, or for the benefit of the poor of his own de- 
 nomination, or the poor in general of any particular 
 county ;) but the churches, chapels, glebes, and all other 
 property, now belonging to the church of England, 
 ought to remain to the church of England forever. And 
 all acts of assembly lately passed, for collecting moneys 
 for building or repairing particular churches or chapels 
 of ease, shall continue in force, and be executed, unless 
 the legislature shall, by act, supersede or repeal the same : 
 but no county court shall assess any quantity of tobacco, 
 or. sum of money, hereafter, on the application of any 
 vestry-men or church-wardens ; and every incumbent of 
 the church of England, who hath remained in his parish, 
 and performed his duty, shall be entitled to receive the 
 provision and support established by the act entitled
 
 16G OP LEGISLATIVE POWER [CHAP. VI. 
 
 " an act for the support of the clergy of the church of 
 England in this province," till the November court of 
 this present year, to be held for the county in which his 
 parish shall lie, or partly lie, or for such time as he hath 
 remained in his parish, and performed his duty. 
 
 " That every gift, sale, or devise of lands, to any min- 
 ister, public teacher, or preacher of the gospel, as such, 
 or to any religious sect, order, or denomination, or to or 
 for the support, use, or benefit of, or in trust for, any min- 
 ister, public teacher, or preacher of the gospel, as such, 
 or any religious sect, order, or denomination ; and every 
 gift or sale of goods or chattels, to go in succession, or to 
 take place after the death of the seller, or donor, to or 
 for such support, use, or benefit, and also every devise of 
 goods or chattels to or for the support, use, or benefit of 
 any minister, public teacher, or preacher of the gospel, 
 as such, or any religious sect, order, or denomination, 
 without the leave of the legislature, shall be void, except 
 always any sale, gift, lease, or devise of any quantity of 
 land not exceeding two acres, for a church, meeting, or 
 other house of worship, and for a burying ground, which 
 shall be improved, enjoyed, or used only for such pur- 
 pose, or such sale, gift, lease, or devise, shall be void. 
 
 " That no other test or qualification ought to be re- 
 quired, on admission to any office of trust or profit, than 
 such oath of support and fidelity to this state, and such 
 oath of office, as shall be directed by this convention or 
 the legislature of this state, and a declaration of a belief 
 in the Christian religion. 
 
 " That the manner of administering an oath to any 
 person, ought to be such as those of the religious per- 
 suasion, profession, or denomination, of which such 
 person is one, generally esteem the most effectual con- 
 firmation by the attestation of the divine Being ; and that 
 the people called Quakers, those called Tunkers, and 
 those called Menonists, holding it unlawful to take an
 
 CHAP. VI.] UNDER STATE CONSTITUTIONSt 107 
 
 oath on any occasion, ought to be allowed to make their 
 solemn affirmation in the manner that (Quakers have 
 been heretofore allowed to affirm ; and to be of the same 
 avail as an oath in all such cases as the affirmation of 
 Quakers hath been allowed and accepted within this 
 state instead of an oath. And further, on such affirma- 
 tion, warrants to search for stolen goods, or the appre- 
 hension or commitment of offenders, ought to be granted, 
 or security for the peace awarded, and Quakers, Tunk- 
 ers, or Menonists ought also, on their solemn affirmation 
 aforesaid, to be admitted as witnesses in all criminal 
 cases, (not capital.) 
 
 " That the city of Annapolis ought to have all its 
 rights, privileges, and benefits, agreeable to its charter 
 and the acts of assembly confirming and regulating the 
 same, subject, nevertheless, to such alterations as may 
 be made by this convention or any future legislature. 
 
 " That the liberty of the press ought to be inviolably 
 preserved. 
 
 " That monopolies are odious, contrary to the spirit 
 of a free government, and the principles of commerce, 
 and ought not to be suffered. 
 
 " That no title of nobility, or hereditary honors, ought 
 to be granted in this state. 
 
 " That the subsisting resolves of this and the several 
 conventions held for this colony, ought to be in force as 
 laws, unless altered by this convention, or the legislature 
 of this state. 
 
 " That this declaration of rights, or the form of govern- 
 ment to be established by this convention, or any part 
 of either of them, ought not to be altered, changed, or 
 abolished by the legislature of this state, but in such 
 manner as this convention shall prescribe and direct." 
 
 § 95. The constitution of Maryland ordains and fixes 
 the legislative power in two distinct branches, a Senate 
 and a House of Delegates, called together " The General
 
 108 Of legislative power [chap. vi. 
 
 Assembly of Maryland." The delegates are chosen viva 
 voce by the people. They are the judges of the returns, 
 elections and qualifications, of their own members, elect 
 their own officers, originate all money bills, propose bills 
 to the senate, inquire on the oath of witnesses into all 
 complaints, grievances and offences, as the grand inquest 
 of the state, and may commit any person for any crime 
 to the public jail, there to remain till he be discharged 
 by due course of law ; may expel any member for mis- 
 demeanors, pass and examine all accounts of the state 
 relating to revenue ; may call for public and official 
 papers and records, and send for persons whom they 
 may deem necessary in the course of their inquiries. 
 The house of delegates may punish by imprisonment 
 any person for contempt or disorderly conduct towards 
 their members, or by arresting and assaulting them, and 
 the senate exercises the same power. 
 
 The Senate is elected every fifth year by the people 
 viva voce, in the same manner as the house of delegates, 
 and exercises the same power over their members and 
 officers as the house. They have full power to exercise 
 their judgment in passing laws, and may amend any 
 bill from the house, before passing upon it ; they may 
 originate any other except money bills. The style of 
 the laws is, " Be it enacted by the General Assembly of 
 Maryland." Every bill passed by the general assembly 
 when engrossed, must be presented by the speaker of 
 the house of delegates, in the senate, to the governor for 
 the time being, who must sign the same, and thereto 
 affix the great seal in the presence of the members of 
 both houses ; and must be recorded in the general court 
 office of the western shore, and in due time printed, pub- 
 lished, and certified, under the great seal, to the several 
 county courts. 
 
 It is declared, " That it shall not be lawful for the 
 general assembly of this state to lay an equal and
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 169 
 
 general tax, or any other tax on the people of this state, 
 for the support of any religion.' '(a) 
 
 § 96. On the 12th June, 177G, the representatives of 
 the people of Virginia, assembled in convention, adopted 
 a bill of rights, as follows : 
 
 u That all men are by nature equally free and inde- 
 pendent, and have certain inherent rights, of which, 
 when they enter into a state of society, they cannot, by 
 any compact, deprive or divest their posterity ; namely, 
 the enjoyment of life and liberty, with the means of ac- 
 quiring and possessing property, and pursuing and ob- 
 taining happiness and safety. 
 
 " That all power is vested in, and consequently derived 
 from, the people ; that magistrates are their trustees and 
 servants, and at all times amenable to them. 
 
 " That government is, or ought to be, instituted for 
 t» e common benefit, protection, and security of the peo- 
 ple, nation, or community : of all the various modes and 
 forms of government, that is best, which is capable of 
 producing the greatest degree of happiness and safetv, 
 and is most effectually secured against the danger of 
 maladministration; and that, when any government shall 
 be found inadequate or contrary to these purposes, a 
 majority of the community hath an indubitable, unalien- 
 able, and indefeasible right to reform, alter, or abolish it, 
 in such manner as shall be judged most conducive to the 
 public weal. 
 
 " That no man or set of men, are entitled to exclusive 
 or separate emoluments or privileges from the commu- 
 nity, but in consideration of public services ; which not 
 being descendible, neither ought the offices of magistrate, 
 legislator, or judge to be hereditary. 
 
 (a) Sect. 13, Art. 1, of amendments. 
 
 22
 
 170 OF LEGISLATIVE POWER [CHAP. VI. 
 
 " That the legislative and executive powers of the 
 state should be separate and distinct from the judiciary ; 
 and that the members of the two first may be restrained 
 from oppression, by feeling and participating the bur- 
 thens of the people, they should, at fixed periods, be 
 reduced to a private station, return into that body from 
 which they were originally taken, and the vacancies be 
 supplied by frequent, certain, and regular elections, in 
 which all, or any part of the former members, to be 
 again eligible, or ineligible as the laws shall direct. 
 
 " That elections of members to serve as representa- 
 tives of the people, in assembly, ought to be free ; and 
 that all men having sufficient evidence of permanent 
 common interest with, and attachment to, the commu- 
 nity, have the right of suffrage, and cannot be taxed or 
 deprived of their property for public uses, without their 
 own consent, or that of their representatives so elected;, 
 nor bound by any law to which they have not, in like 
 manner, assented, for the public good. 
 
 " That all power of suspending laws, or the execution 
 of laws, by any authority, without consent of the repre- 
 sentatives of the people, is injurious to their rights, and 
 ought not to be exercised. 
 
 " That, in all capital or criminal prosecutions, a man 
 hath a right to demand the cause and nature of his accu- 
 sation, to be confronted with the accusers and witnesses, 
 to call for evidence in his favor, and to a speedy trial by 
 an impartial jury of his vicinage, without whose unani- 
 mous consent he cannot be found guilty j nor can he be 
 compelled to give evidence against himself; that no man 
 be deprived of his liberty except by the law of the land, 
 or the judgment of his peers. 
 
 "That excessive bail ought not to be required, nor 
 excessive fines imposed, nor cruel and unusual punish- 
 ments inflicted. 
 
 " That general warrants, whereby an officer or mes-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS! 171 
 
 senger may be commanded to search suspected places 
 without evidence of a fact committed, or to seize any 
 person or persons not named, or whose offence is not 
 particularly described and supported by evidence, are 
 grievous and oppressive, and ought not to be granted. 
 
 " That, in controversies respecting property, and in 
 suits between man and man, the ancient trial by jury is 
 preferable to any other, and ought to be held sacred. 
 
 " That the freedom of the press is one of the great 
 bulwarks of liberty, and can never be restrained but by 
 despotic governments. 
 
 u That a well regulated militia, composed of the body 
 of the people, trained to arms, is the proper, natural, and 
 safe defence of a free state ; that standing armies, in time 
 of peace, should be avoided, as dangerous to liberty ; and 
 that, in all cases, the military should be under strict 
 subordination to, and governed by, the civil power. 
 
 " That the people have a right to uniform government ; 
 and, therefore, that no government separate from, or in- 
 dependent of, the government of Virginia, ought to be 
 erected or established within the limits thereof. 
 
 " That no free government, or the blessing of liberty, 
 can be preserved to any people, but by a firm adherence 
 to justice, moderation, temperance, frugality, and virtue, 
 and by frequent recurrence to fundamental principles. 
 
 " That religion, or the duty which we owe to our 
 Creator, and the manner of discharging it, can be di- 
 rected only by reason and conviction, not by force or 
 violence ; and therefore all men are equally entitled to 
 the free exercise of religion, according to the dictates of 
 conscience ; and that it is the mutual duty of all to prac- 
 tise Christian forbearance, love, and charity towards 
 each other." 
 
 By Article 1st of the amended constitution of this 
 state, adopted 14th January, 1830, it is declared, ' : The 
 declaration of rights made on the 12th June, 1776, by
 
 172 OF LEGISLATIVE POWER [CHAP. VI. 
 
 the representatives of the good people of Virginia, as- 
 sembled in full and free convention, which pertained to 
 them and their posterity, as the basis and foundation of 
 government ; requiring in the opinion of this convention 
 no amendment, shall be prefixed to this constitution, 
 and have the same relation thereto as it had to the 
 former constitution of this commonwealth." 
 
 § 97. In the state of Virginia, the legislative power, 
 by the constitution of that state, is vested in two distinct 
 branches, called together the General Assembly of Vir- 
 ginia. One of these branches is called the house of 
 delegates, and consists of one hundred and thirty-four 
 members, chosen annually by the several counties. The 
 other branch is the senate, consisting of thirty-two mem- 
 bers, chosen by districts. Each house appoints its own 
 officers, and judges the elections of its own members. 
 They have power to divest all persons, civil, military, 
 executive or otherwise, from ail power, office, or emolu- 
 ment from the state, who have fought a duel or been 
 engaged in a duel in any manner. All cases of impeach- 
 ments arise in the house of delegates, but are tried by 
 the senate. 
 
 The legislature is required to meet at least once every 
 year ; and neither house during the session, without the 
 consent of the other, can adjourn for more than three 
 days, nor to any other place than that in which the two 
 houses shall be sitting. A majority of each house con- 
 stitutes a quorum, but a smaller number may adjourn 
 from day to day. All law r s must originate in the house 
 of delegates, to be approved or rejected by the senate, or 
 to be amended with the consent of the house of de- 
 legates. 
 
 Sec. 11 of art. 3, contains a limitation upon legislative 
 power. It declares, " The privilege of the writ of habeas 
 corpus shall not in any case be suspended. The legis- 
 lature shall not pass any bill of attainder ; or any ex jwst
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 173 
 
 faclohwx] or any law impairing the obligation of con- 
 tracts; or any law, whereby private propertj shall be 
 taken for public uses, without just compensation ; or any 
 law abridging the freedom of speech, or of the press. 
 No man shall be compelled to frequent or support any 
 religious worship, place, or ministry whatsoever ; nor 
 shall any man be enforced, restrained, molested, or bur- 
 thened in his body or goods, or otherwise suffer, on ac- 
 count of his religious opinions or belief, but all men shall 
 be free to profess, and by argument to maintain, their 
 opinions in matters of religion, and: the same shall in no 
 wise affect, diminish, or enlarge their civil capacities, 
 and the legislature shall not prescribe any religious test 
 whatever; nor confer any peculiar privileges or advan- 
 tages on any one sect or denomination ; nor pass any law 
 requiring or authorizing any religious society, or the 
 people of any district within this commonwealth to levy 
 on themselves or others any tax for the erection or re- 
 pair of any house for public worship, or for the support 
 of any church or ministry ; but it shall be left free to 
 every person to select his religious instructor, and make 
 for his support such private contract as he shall please." 
 
 § 98. The declaration of rights of North Carolina, 
 adopted on 18th December, 1776, provided : 
 
 " That all political power is vested in, and derived 
 from, the people only. 
 
 " That the people of this state ought to have the sole 
 and exclusive right of regulating the internal government 
 and police thereof. 
 
 " That no men, or set of men, are entitled to exclusive 
 or separate emoluments or privileges from the commu- 
 nity, but in consideration of public services. 
 
 "That the legislative, executive, and supreme judicial 
 powers of government, ought to be forever separate and 
 distinct from each other. 
 
 " That all powers of suspending laws, or the execution
 
 174 OF LEGISLATIVE POWER [CHAP. VI. 
 
 of laws, by any authority, without the consent of the re- 
 presentatives of the people, is injurious to their rights, 
 and ought not to be exercised. 
 
 " That elections of members to serve as representa- 
 tives in general assembly ought to be free. 
 
 " That in all criminal prosecutions, every man has a 
 right to be informed of the accusation against him, and 
 to confront the accusers and witnesses with other testi- 
 mony, and shall not be compelled to give evidence 
 against himself. 
 
 " That no freeman shall be put to answer any crimi- 
 nal charge, but by indictment, presentment or impeach- 
 ment. 
 
 " That no freeman shall be convicted of any crime, but 
 by the unanimous verdict of a jury of good and lawful 
 men, in open court, as heretofore used. 
 
 " That excessive bail should not be required, nor ex- 
 cessive fines imposed, nor cruel nor unusual punishments 
 inflicted. 
 
 " That general warrants, whereby any officer or mes- 
 senger may be commanded to search suspected places, 
 without evidence of the fact committed, or to seize any 
 person or persons, not named, whose offences are not 
 particularly described, and supported by evidence, are 
 dangerous to liberty, and ought not to be granted. 
 
 " That no freeman ought to be taken, imprisoned, or 
 disseized of his freehold, liberties, or privileges, or out- 
 lawed or exiled, or in any manner destroyed, or deprived 
 of his life, liberty, or property, but by the law of the 
 land. 
 
 " That every freeman restrained of his liberty is en- 
 titled to a remedy, to inquire into the lawfulness thereof, 
 and to remove the same, if unlawful ; and that such rem- 
 edy ought not to be denied or delayed. 
 
 " That in all controversies at law, respecting property, 
 the ancient mode of trial by jury is one of the best secu-
 
 CHAP. VI.] 1 \m;u STATE CONSTITUTIONS. 173 
 
 rities of the rights of the people, and ought to remain 
 sacred and inviolable. 
 
 " That the freedom of the press is one of the great 
 bulwarks ofliberty ; and therefore ought never to be re- 
 strained. 
 
 " That the people of this state ought not to be taxed, 
 or made subject to the payment of any impost, or duty, 
 without the consent of themselves, or their representa- 
 tives in general assembly freely given. 
 
 " That the people have a right to bear arms, for the 
 defence of the state; and as standing armies, in time of 
 peace, are dangerous to liberty, they ought not to be 
 kept up ; and that the military should be kept under 
 strict subordination to, and governed by, the civil power. 
 
 " That the people have a right to assemble together, 
 to consult for the common good, to instruct their repre- 
 sentatives, and to apply to the legislature for redress of 
 grievances. 
 
 " That all men have a natural and unalienable right 
 to worship Almighty God according to the dictates of 
 -their own conscience. 
 
 " That, for redress of grievances, and for amending 
 and strengthening the laws, elections ought to be often 
 held. 
 
 " That a frequent recurrence to fundamental prin- 
 ciples is absolutely necessary to preserve the blessings 
 of liberty. 
 
 " That no hereditary emoluments, privileges, or honors 
 ought to be granted or conferred in this state. 
 
 " That perpetuities and monopolies are contrary to 
 the genius of a free state, and ought not to be allowed. 
 
 " That retrospective laws, punishing facts committed 
 before the existence of such laws, and by them only de- 
 clared criminal, are oppressive, unjust, and incompatible 
 with liberty ; wherefore, no ex 'post facto law ought to be 
 made."
 
 176 OF LEGISLATIVE POWER [CHAP. VI. 
 
 Section thirty-four of the constitution provides : 
 
 " That there shall be no establishment of any one re- 
 ligious church or denomination in this state, in preference 
 to any other ; neither shall any person, on any pretence 
 whatsoever, be compelled to attend any place of worship 
 contrary to his own faith or judgment, nor be obliged to 
 pay for the purchase of any glebe, or the building of any 
 house of worship, or for the maintenance of any minister 
 or ministry, contrary to what he believes right, or has 
 voluntarily and personally engaged to perform ; but all 
 persons shall be at liberty to exercise their own mode of 
 worship. Provided, that nothing herein contained shall 
 be construed to exempt preachers of treasonable or se- 
 ditious discourses, from legal trial and punishment." 
 
 Sec. 4 of the amendments to the constitution, made 
 June 4, 1835, and ratified by the people 9th November, 
 1833, and which took effect January 1, 1836, contains 
 the following restrictions upon the legislature : 
 
 " The general assmbly shall have power to pass gene- 
 ral laws regulating divorce and alimony, but shall not 
 have power to grant a divorce or secure alimony in any 
 individual case. 
 
 " The general assembly shall not have power to pass 
 any private law, to alter the name of any person, or to 
 legitimate any persons not born in lawful wedlock, or 
 to restore to the rights of citizenship any person con- 
 victed of an infamous crime ; but shall have power to 
 pass general laws regulating the same. 
 
 " 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." 
 
 § 99. The constitution of North Carolina, as adopted 
 in 1776 and amended in 1836, provides that the legisla- 
 tive authority is vested in two distinct branches, a Senate
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 177 
 
 and House of Commons, the former composed of fifty 
 representatives, chosen biennially by ballot, and elected 
 by districts ; the house of commons consists of one hun- 
 dred and twenty representatives, biennially chosen by 
 ballot, and denominated together the General Assembly. 
 Each house choose their own officers, judge the elections, 
 &c, of their members, prepare bills to be passed into 
 laws, and appoint judges of the courts of law and equity, 
 judges of admiralty, and attorney general, and all field 
 and general officers of the militia and of the regular 
 army. The general assembly has power to pass laws 
 regulating militia officers, and general laws in divorce 
 and alimony, but not as pertains to individuals." 
 
 All bills must be read three times in each house before 
 passed into laws, and be signed by the speaker of each 
 house. 
 
 § 100. By the Constitution of South Carolina the le- 
 gislative authority of that state is vested in a General 
 Assembly, which consists of a Senate and House of 
 Representatives. 
 
 The house of representatives is composed of members 
 chosen by ballot biennially, by the citizens of the state ; 
 and the members are proportioned among the several 
 counties. 
 
 The senate is chosen for four years, and consists of 
 members elected by the counties of the state, as they are 
 proportioned. 
 
 Each house judges of the elections, returns, &c, of 
 their members, and a majority constitutes a quorum ; 
 they choose their own officers, determine their rules of 
 proceeding, and punish their members for misconduct, 
 by imprisonment or fine ; and also may punish in like 
 manner, any person not a member, for assaulting, arrest 
 ing, or otherwise disturbing the peace, towards a mem- 
 ber of the assembly. Bills for raising revenue originate 
 
 23
 
 178 OP LEGISLATIVE POWER [CHAP. VI, 
 
 in the house of representatives, but may be altered, 
 amended or rejected, by the senate. All other bills 
 originate in either house. The house of representatives 
 have the sole power of impeachment, but to be tried by 
 the senate. 
 
 No bill or ordinance can have the force of law, until 
 it shall have been read three times, and on three several 
 days in each house, and has the great seal affixed to it, 
 and been signed in the senate by the president, and by 
 the speaker of the house of representatives. Neither 
 house can, during its session, adjourn without the con- 
 sent of the other for more than three days ; nor to any 
 other place than that in which the two houses are 
 sitting. No bill or ordinance which shall have been 
 rejected by either house, can be brought in again during 
 the sitting without leave of the house, and notice of six 
 days being previously given. 
 
 Articles 8 and 9 contain the following provisions : 
 
 " The free exercise and enjoyment of religious pro- 
 fession and worship, without discrimination or preference, 
 shall, forever hereafter, be allowed within this state to 
 all mankind: provided, that the liberty of conscience 
 thereby declared, shall not be so construed as to excuse 
 acts of licentiousness, or justify practices inconsistent 
 with the peace or safety of this state. 
 
 " The rights, privileges, immunities, and estates of 
 both civil and religious societies and of corp orated bo- 
 dies, shall remain as if the constitution of this state had 
 not been altered or amended. 
 
 " All power is originally vested in the people ; and all 
 free governments are founded on their authority, and are 
 instituted for their peace, safety, and happiness. 
 
 " No freeman of this state shall be taken, or impris- 
 oned, or disseized of his freehold, liberties, or privileges, 
 or outlawed, or exiled, or in any manner destroyed, or 
 deprived of his life, liberty, or property, but by the
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 179 
 
 judgment of his peers, or by the law of the land : nor 
 shall any bill of attainder, ex jyost facto law, or law im- 
 pairing the obligation of contracts, ever be passed by the 
 legislature of this state. 
 
 " The military shall be subordinate to the civil power. 
 
 " Excessive bail shall not be required, nor excessive 
 lines imposed, nor cruel punishments inflicted. 
 
 " The legislature shall not grant any title of nobility 
 or hereditary distinction, nor create any office, the ap- 
 pointment to which shall be for any longer time than 
 during good behavior. 
 
 " The trial by jury, as heretofore used in this state, 
 and the liberty of the press, shall be forever inviolably 
 preserved." 
 
 § 101. The legislative power of Georgia is vested in 
 two separate and distinct branches, a Senate and House 
 of Representatives, and are styled " The General As- 
 sembly." 
 
 The senate is elected annually, and is composed of 
 one member from each county, elected by ballot. They 
 elect their own officers, and have the sole power to try 
 all impeachments. 
 
 The house of representatives is composed of members 
 from all the counties, according to their inhabitants by 
 enumeration. 
 
 They choose their own officers, and have the sole 
 power of impeachment. 
 
 Each house judges of the elections &c. of its own mem- 
 bers, has power to expel or punish them by fine or im- 
 prisonment, for misdemeanors. All revenue bills origi- 
 nate in the house, and are passed upon by the senate. 
 
 The general assembly has power to make all laws 
 and ordinances, not repugnant to the constitution, for 
 the welfare of the state, to alter boundaries of coun- 
 ties, and lay out new ones. 
 
 All bills for raising revenue, must originate hi the
 
 180 OF LEGISLATIVE POWER [CHAP. VI 
 
 house of representatives, with power in the senate to 
 propose or concur in amendments. Each bill is re- 
 quired to be read three times on three separate days, in 
 each branch of the general assembly, before it can pass, 
 unless in cases of actual invasion or insurrection. No 
 law or ordinance can pass containing any matter different 
 from what is expressed in the title thereof; and all must 
 be signed by the president in the senate and speaker in 
 the house of representatives. No bill or ordinance which 
 has been rejected by either house, can be brought in 
 again during the same session under the same, or any 
 other title, without the consent of two-thirds of each 
 branch. 
 
 Neither house can adjourn for more than three days, 
 without the consent of the other, nor to any other place 
 than that at which the two branches are sitting ; and in 
 case of disagreement of the two houses relative to an 
 adjournment, the governor may adjourn them. 
 
 Section 22 of Article I. declares, " The general as- 
 sembly shall have power to make all laws and ordi- 
 nances which they shall deem necessary and proper for 
 the good of the state, which shall not be repugnant to 
 this constitution." 
 
 By section 24, no vote, resolution, law, or order, shall 
 pass the general assembly, granting a donation or gra- 
 tuity, in favor of any person whatever, but by concur- 
 rence of two-thirds of the general assembly. 
 
 The governor has the revision of all bills passed by 
 both houses, before the same can become a law. But 
 two-thirds of both houses may pass a law notwith- 
 standing his dissent, and if any bill is not returned by 
 the governor within five days after it is presented to 
 him, the same becomes a law, unless the legislature, by 
 adjournment, prevent a return ; and the same rule ob- 
 tains in reference to every vote, resolution, or order, in
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 181 
 
 which the concurrence of both houses shall be neces- 
 sary, except on a question of adjournment. 
 
 Freedom of the press, and trial by jury, as theretofore 
 used, it is declared shall remain inviolate. It is also 
 provided, that no ex post facto law shall be passed : no 
 person who theretofore hath been, or thereafter may be, 
 a collector, or holder of public moneys, shall be eligible 
 to any office in the state, until such person shall have 
 accounted for, and paid into the treasury, all sums for 
 which he may be accountable or liable. The person of 
 a debtor, where there is not a strong presumption of 
 fraud, shall not be detained in prison after delivering up 
 bona fide all his estate, real and personal, for the use of 
 his creditors, in such manner as shall thereafter be regu- 
 lated by law. The writ of habeas corpus shall not be 
 suspended, unless when in case of rebellion or invasion, 
 the public safety may require it. No person within the 
 state shall, upon any pretence, be deprived of the privi- 
 lege of worshipping God in a manner agreeable to his 
 own conscience, nor be compelled to attend any place of 
 worship contrary to his own faith and judgment: nor 
 shall he ever be obliged to pay tithes, taxes, or any other 
 rate, for the building or repairing any place of worship, 
 or for the maintenance of any minister or ministry, con- 
 trary to what he believes to be right, or hath voluntarily 
 engaged to do. No one religious society shall ever be 
 established in this state, in preference to any other ; nor 
 shall any person be denied the enjoyment of any civil 
 right, merely on account of his religious principles. 
 There shall be no future importation of slaves into this 
 state, from Africa or any foreign place, after the first day 
 of October next. The legislature shall have no power 
 to pass laws for the emancipation of slaves, without the 
 consent of each of their respective owners, previous to 
 such emancipation. They shall have no power to pre- 
 vent emigrants, from either of the United States to this
 
 182 OF LEGISLATIVE POWER [CHAP. VI. 
 
 state, from bringing with them such persons as may be 
 deemed slaves by the laws of any one of the United States. 
 
 § 102. The powers of the legislative department of the 
 state of Kentucky are vested in two branches, a House 
 of Representatives and a Senate, and together are styled 
 " The General Assembly of the commonwealth of Ken- 
 tucky." 
 
 The house of representatives is composed of members 
 chosen annually by electors. 
 
 They choose their officers, and originate all bills of 
 revenue. 
 
 The senate is chosen for four years, and elect their 
 own officers — consists of twenty-four members at least ; 
 and for every three members, over fifty-eight, added to 
 the house, one member is added to the senate. 
 
 Each house judges the elections, &c, of its own 
 members, and punishes them for misdemeanors. 
 
 The house of representatives has the sole power of 
 impeachment, but those cases are tried by the senate. 
 
 The general assembly has power to regulate by law 
 the duties, offices, and salaries of public officers, and in 
 what manner suits may be brought against the common- 
 wealth : they have full power to permit owners of slaves 
 to emancipate them, to prevent the importation of slaves, 
 to oblige owners to treat them with humanity, and pro- 
 vide for them the necessaries of life, and keep them 
 comfortable, and to abstain from injuring them in life or 
 limb. 
 
 Not less than a majority of the members of each 
 house constitutes a quorum; but a smaller number may 
 adjourn from day to day. Neither house during the 
 session can, without the consent of the other, adjourn for 
 more than three days, nor to any other place than that 
 in which they are sitting. No bill has the force of a 
 law, until on three several days, it be read over in each 
 house ; and free discussion allowed thereon ; unless, in
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 183 
 
 cases of urgency, four-fifths of the house, where the bill 
 shall be depending, may deem it expedient to dispense 
 with this rule. All bills for raising revenue must origi- 
 nate in the house of representatives ; but the senate may 
 propose amendments as in other hills : Provided, they do 
 not introduce any new matter, under the color of an 
 amendment, which does not relate to raising a revenue. 
 
 Every bill which shall have passed both houses, must 
 be presented to the governor, which, if he approves, he 
 must sign it ; but if not, he must return it, with his ob- 
 jections, to the house in which it shall have originated, 
 which is required to enter his objections at large upon 
 the journal, and proceed to reconsider it ; and if, after 
 such reconsideration, a majority of all the members 
 elected to that house shall agree to pass it, it must be 
 sent, with the objections, to the other house, by which 
 it must be likewise considered ; and, if approved by a 
 majority of all the members of that house, it becomes a 
 law. The vote in such cases, must be by yeas and 
 nays, and the names of those voting for or against it, 
 entered on the journal. If the governor does not return 
 the bill in ten days after being presented to him, it be- 
 comes a law, unless the general assembly adjourn ; and 
 in that event, it becomes a law, unless returned within 
 three days after the next meeting of the general assem- 
 bly. Every order, resolution, or vote, to which the 
 concurrence of both houses is necessary, except on a 
 question of adjournment, must be also presented to the 
 governor, and before it can take effect, must be approved 
 by him ; or, if it is disapproved by him, it must be 
 passed by a majority of all the members elected to both 
 houses, according to the rules and limitations prescribed 
 in cases of bills. 
 
 Article X. declares : 
 
 " That the general, great, and essential principles of
 
 184 OF LEGISLATIVE POWER [CHAP. VI. 
 
 liberty and free government may be recognized and es- 
 tablished, we declare : 
 
 " That all free men, when they form a social compact, 
 are equal ; and that no man or set of men are entitled to 
 exclusive, separate, public emoluments or privileges, from 
 the community, but in consideration of public services. 
 
 " That all power is inherent in the people, and all free 
 governments are founded on their authority, and insti- 
 tuted for their peace, safety, and happiness : For the 
 advancement of these ends, they have at all times an 
 unalienable and indefeasible right to alter, reform, or 
 abolish their government, in such manner as they may 
 think proper. 
 
 " That all men have a natural and indefeasible right 
 to worship Almighty God, according to the dictates of 
 their own consciences ; that no man shall be compelled 
 to attend, erect, or support any place of worship, or to 
 maintain any ministry against his consent ; that no hu- 
 man authority ought, in any case whatever, to control or 
 interfere with the rights of conscience ; and that no 
 preference shall ever be given by law to any religious 
 societies or modes of worship. 
 
 " That the civil rights, privileges, or capacities of any 
 citizen, shall in no wise be diminished or enlarged on 
 account of his religion. 
 
 " That all elections shall be free and equal. 
 
 " That the ancient mode of trial by jury shall be held 
 sacred, and the right thereof remain inviolate. 
 
 " That printing presses shall be free to every person 
 who undertakes to examine the proceedings of the legis- 
 lature or any branch of government , and no law shall 
 ever be made to restrain the right thereof. The free 
 communication of thoughts and opinions is one of the 
 invaluable rights of man, and every citizen may freely 
 speak, write, and print, on any subject, being responsible 
 for the abuse of that liberty.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 185 
 
 " In prosecutions for the publication of papers investi- 
 gating the official conduct of officers, or men in a public 
 capacity) or where the matter published is proper for 
 public information, the truth thereof may be given in 
 evidence ; and in all indictments for libels, the jury shall 
 have a right to determine the law and the facts, under 
 the direction of the court, as in other cases. 
 
 " That the people shall be secure in their persons, 
 houses, papers, and possessions, from unreasonable sei- 
 zures and searches ; and that no warrant to search any 
 place, or to seize any person or thing, shall issue without 
 describing them as nearly as may be, nor without proba- 
 ble cause, supported by oath or affirmation. 
 
 " That in all criminal prosecutions, the accused hath a 
 right to be heard by himself and counsel ; to demand the 
 nature and cause of the accusation against him ; to meet 
 the witnesses face to face ; to have compulsory process 
 for obtaining witnesses in his favor ; and, in prosecutions 
 by indictment or information, a speedy public trial by an 
 impartial jury of the vicinage ; that he cannot be com- 
 pelled to give evidence against himself; nor can he be 
 deprived of his life, liberty, or property, unless by the 
 judgment of his peers, or the law of the land. 
 
 " That no person shall, for any indictable offence, be 
 proceeded against criminally by information, except in 
 cases arising in the land or naval forces, or the militia, 
 when in actual service, in time of war or public danger, 
 by leave^of the court, for oppression or misdemeanor in 
 office. 
 
 " No person shall, for the same offence, be twice put 
 in jeopardy of his life or limb, nor shall any man's pro- 
 perty be taken or applied to public use without the 
 consent of his representatives, and without just compen- 
 sation being previously made to him. 
 
 " That all courts shall be open, and every person for 
 
 24
 
 186 OF LEGISLATIVE POWER [CHAP. VI. 
 
 an injury done him in his lands, goods, person, or repu- 
 tation, shall have remedy by the due course of law ; and 
 right and justice administered without sale, denial, or 
 delay. 
 
 " That no power of suspending laws shall be exercised 
 unless by the legislature, or its authority. 
 
 " That excessive bail shall not be required, nor ex- 
 cessive fines imposed, nor cruel punishments inflicted. 
 
 " That all prisoners shall be bailable by sufficient se- 
 curities, unless for capital offences, when the proof is 
 evident, or presumption great : and 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. 
 
 " That the person of a debtor, where there is not strong 
 presumption of fraud, shall not be continued in prison, 
 after delivering up his estate for the benefit of his credi- 
 tors, in such manner as shall be prescribed by law. 
 
 " That no ex post facto law, nor any law impairing 
 contracts shall be made. 
 
 " That no person shall be attainted of treason or felo- 
 ny by the legislature. 
 
 " That no attainder shall work corruption of blood, 
 nor, except during the life of the offender, forfeiture of 
 estate to the commonwealth. 
 
 " That the estates of such persons as shall destroy 
 their own lives, shall descend or vest as in case of natu- 
 ral death ; and if any person shall be killed by casual ty, 
 there shall be no forfeiture by reason thereof. 
 
 " That the citizens have a right in a peaceable manner 
 to assemble together for their common good, and to 
 apply to those invested with the powers of government 
 for redress of grievances, or other proper purposes, by 
 petition, address, or remonstrance. 
 
 " That the rights of the citizens to bear arms in de-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 187 
 
 fence of themselves and the state, shall not be ques- 
 tioned. 
 
 " That no standing army shall, in time of peace, be 
 kept up without the consent of the legislature ; and the 
 military shall, in all cases and at all times, be in strict 
 subordination to the civil power. 
 
 " That 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. 
 
 " That the legislature shall not grant any title of no- 
 bility or hereditary distinction, nor create any office, the 
 appointment to which shall be for a longer term than 
 during good behavior. 
 
 " That emigration from this state shall not be pro- 
 hibited. 
 
 " 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 ; and that 
 all laws contrary thereto, or contrary to this constitution, 
 shall be void." 
 
 § 103. The legislative authority of Tennessee is vested 
 in a General Assembly, consisting of a Senate and a 
 House of Representatives. 
 
 The house of representatives consists of members ap- 
 portioned among the several counties, and are elected 
 biennially. 
 
 The senate consists of members apportioned and elect- 
 ed in like manner. 
 
 Each house is the judge of the elections and returns 
 of its own members, choose its officers, punish or ex- 
 pel its members for disorderly behavior, and issue writs 
 of elections to fill up vacancies. Bills may originate 
 in either house, and be altered, rejected, or amended 
 by the other.
 
 188 OP LEGISLATIVE POWER [CHAP. VI. 
 
 The style of the laws are, " Be it enacted by the Gen- 
 eral Assembly of the State of Tennessee." 
 
 The general assembly have power to tax all taxable 
 lands in a uniform manner, and to authorize and incor- 
 porate towns and counties and impose taxes for county 
 and corporation purposes respectively. They may pass 
 laws excluding the right of suffrage for infamous crimes. 
 
 The house of representatives have the sole power of 
 impeachment, but all cases are tried by the senate. 
 
 The legislature have the power to repeal, amend, or 
 alter any existing law, and fix the rate of interest. 
 
 It is expressly provided that the legislature shall have 
 no power to grant divorces, but may authorize the courts 
 of justice to grant them for such causes as shall be spe- 
 cified by law. Provided such laws be general and uni- 
 form in their operation throughout the state. It shall 
 have no power to authorize lotteries for any purpose, 
 and is required to pass laws to prohibit the sale of lottery 
 tickets in the state. It has no power to suspend any 
 general law for the benefit of any particular individual 
 inconsistent with the general law of the land ; nor to 
 pass any law granting to any individual or individuals, 
 rights, privileges, immunities, or exemptions, other than 
 such as may be by the same law extended to any mem- 
 ber of the community, who may be able to bring himself 
 within the provisions of such law. But that the legis- 
 lature have power to grant such charters of corporations 
 as they may deem expedient for the public good. (a) 
 
 The constitution of this state also contains the follow- 
 ing declaration of rights. 
 
 " That all power is inherent in the people, and all free 
 governments are founded on their authority, and instil 
 tuted for their peace, safety, and happiness ; for the ad- 
 
 (a) Art. 3,
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 189 
 
 vancemcnt of those ends, they have, at all times, an 
 unalienable and indefeasible right to alter, reform or 
 abolish the government in such manner as they may 
 think proper. 
 
 " That government being instituted for the common 
 benefit, the docrine of non-resistance against arbitrary 
 power and oppression, is absurd, slavish and. destructive 
 to the good and happiness of mankind. 
 
 " That all men have a natural and indefeasible right 
 to worship Almighty God according to the dictates of 
 their own conscience ; that no man can, of right, be 
 compelled to attend, erect, or support any place of wor- 
 ship, or to maintain any minister against his consent ; 
 that no human authority can, in any case whatever, con- 
 trol or interfere with the rights of conscience ; and that 
 no preference shall ev r er be given, by law, to any reli- 
 gious establishment or mode of worship. 
 
 " That no religious test shall ever be required as a 
 qualification to any office or public trust under this 
 state. 
 
 " That elections shall be free and equal. 
 
 " That the right of trial by jury shall remain inviolate. 
 
 " That the people shall be secure in their persons, 
 houses, papers, and possessions, from unreasonable 
 searches and seizures ; and that general warrants, where- 
 by an officer may be commanded to search suspected 
 places, without evidence of the fact committed, or to seize 
 any person or persons not named, whose offences are not 
 particularly described and supported by evidence, are dan- 
 gerous to liberty, and ought not to be granted. 
 
 " That no free man shall be taken or imprisoned, or 
 disseized of his freehold, liberties, or privileges, or out- 
 lawed, or exiled, or in any manner destroyed or deprived 
 of his life, liberty, or property, but by the judgment of 
 his peers, or the law of the land. 
 
 " That in all criminal prosecutions, the accused hath
 
 190 OP LEGISLATIVE POWER [CHAP. VI. 
 
 a right to be heard by himself and his counsel ; to de- 
 mand the nature and cause of the accusation against 
 him, and to have a copy thereof; to meet the witnesses 
 face to face ; to have compulsory process for obtaining 
 witnesses in his favor; and in prosecutions by indict- 
 ment or presentment, a speedy public trial, by an impar- 
 tial jury of the county or district in which the crime shall 
 have been committed ; and shall not be compelled to give 
 evidence against himself. 
 
 " That no person shall, for the same offence, be twice 
 put in jeopardy of life or limb. 
 
 " That laws made for the punishment of facts com- 
 mitted previous to the existence of such laws, and by 
 them only declared criminal, are contrary to the princi- 
 ples of a free government ; wherefore no ex post facto law 
 shall be made. 
 
 " That no conviction shall work corruption of blood 
 or forfeiture of estate. The estate of such persons as 
 shall destroy their own lives shall descend or vest as in 
 case of natural death. If any person be killed by casu- 
 alty, there shall be no forfeiture in consequence thereof. 
 
 " That no person arrested or confined in jail, shall be 
 treated with unnecessary rigor. 
 
 " That no freeman shall be put to answer any criminal 
 charge but by presentment, indictment, or impeachment. 
 
 "That all prisoners shall be bailable by sufficient 
 sureties, except for capital offences when the proof is 
 evident or the presumption great. And the privilege of 
 the writ of habeas corpus shall not be suspended, unless 
 when in case of rebellion or invasion the public safety 
 may require it. 
 
 " That excessive bail shall not be required, nor ex- 
 cessive fines imposed, nor cruel and unusual punishments 
 inflicted. 
 
 " That all courts shall be open ; and every man for 
 an injury done him in his lands, goods, person, or repu- 
 
 I
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 101 
 
 tation, shall have remedy by due course of law, and right 
 and justice administered without sale, denial, or delay. 
 Suits may he brought against the state in such manner, 
 and in such courts, as the legislature may by law direct. 
 
 " That the person of a debtor, where there is not strong 
 presumption of fraud, shall not be continued in prison 
 after delivering up his estate for the benefit of his credi- 
 tor or creditors, in such manner as shall be prescribed 
 by law. 
 
 " That the printing presses shall be free to every per- 
 son who undertakes to examine the proceedings of the 
 legislature, or of any branch or officer of government; 
 and no law shall ever be made to restrain the right there- 
 of. The free communication of thoughts and opinions 
 is one of the invaluable rights of man, and every citizen 
 may freely speak, write, and print on any subject, 
 being responsible for the abuse of that liberty. But in 
 prosecutions for the publication of papers investigating 
 the official conduct of officers or men in public capacity, 
 the truth thereof may be given in evidence ; and in all 
 indictments for libels, the jury shall have a right to de- 
 termine the law and the facts, under the direction of the 
 court, as in other criminal cases. 
 
 " That no retrospective law, or law impairing the ob- 
 ligation of contracts, shall be made. 
 
 " 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 compen- 
 sation being made therefor. 
 
 " That perpetuities and monopolies are contrary to 
 the genius of a free state, and shall not be allowed. 
 
 " That the citizens have a right, in a peaceable man- 
 ner, to assemble together, for their common good, to 
 instruct their representatives, and to apply to those in- 
 vested with the powers of government for redress of
 
 192 OF LEGISLATIVE POWER [CHAP. VI. 
 
 grievances or other proper purposes, by address or re- 
 monstrance. 
 
 " That the sure and certain defence of a free people 
 is a well regulated militia : and, as standing armies in 
 time of peace are dangerous to freedom, they ought to 
 be avoided, as far as the circumstances and safety of 
 the community will admit ; and that in all cases the 
 military shall be kept in strict subordination to the civil 
 authority. 
 
 " That no citizen of this state, except such as are em- 
 ployed in the army of the United States, or militia in 
 actual service, shall be subjected to corporeal punish- 
 ment under the martial law. 
 
 " That the free white men of this state have a right to 
 keep and to bear arms for their common defence. 
 
 " That 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 prescribed by law. 
 
 " That no citizen of this state shall be compelled to 
 bear arms, provided he will pay an equivalent, to be as- 
 certained by law. 
 
 " That an equal participation of the free navigation of 
 the Mississippi, is one of the inherent rights of the citi- 
 zens of this state : it cannot, therefore, be conceded to 
 any prince, potentate, power, person or persons what- 
 ever. 
 
 " That no hereditary emoluments, privileges, or hon- 
 ors shall ever be granted or conferred in this state." 
 
 § 104. The legislative authority of the state of Ohio is 
 vested in a General Assembly, consisting of a Senate and a 
 House of Representatives. 
 
 The representatives are chosen annually by the cit- 
 izens of each county respectively, and the number never 
 is less than thirty-six, nor exceeds seventy-two. 
 
 The senators are elected biennially, by qualified vo- 
 ters for representatives ; and are divided by lot into two
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 193 
 
 classes. They are limited to not less than one-third nor 
 to more than one-half of the number of representatives. 
 Each house keeps a journal of its proceedings, elects 
 its own officers, determines its own rules of proceeding, 
 punishes its members for disorderly behavior, and ex- 
 pels a member with a two-third vote. They may issue 
 writs of election to fill vacancies when they occur in 
 their bodies. They are privileged from arrest except in 
 cases of treason, felony, or breach of the peace ; they 
 may punish any person for disorderly conduct or disre- 
 spect towards the house, by imprisonment, not to exceed 
 twenty-four hours. Bills may originate in either house, 
 but may be altered, amended, or rejected by the other. 
 The style of the laws are, " Be it enacted by the General 
 Assembly of the state of Ohio." 
 
 The representatives have the sole power of impeach- 
 ment, to be tried by the senate. All bills are signed by 
 the speakers of both houses. 
 
 Every bill must be read on three different days in 
 each house, unless in case of emergency three fourths of 
 the house where the bill is so pending shall deem it ex- 
 pedient to dispense with this rule. And every bill hav- 
 ing passed both houses, must be signed by the speakers 
 of the respective houses. 
 Article 8 declares : 
 
 " That the general, great, and essential principles of 
 liberty and free government may be recognized, and for 
 ever unalterably established, we declare, 
 
 " That all men are born equally free and independent, 
 and have certain natural, inherent, and unalienable rights, 
 amongst which are the enjoying and defending life and 
 liberty, acquiring, possessing, and protecting property, 
 and pursuing and obtaining happiness and safety ; and 
 every free republican government, being founded on their 
 sole authority, and organized for the purpose of protect- 
 ing their liberties, and securing their independence — to 
 
 25
 
 194 OF LEGISLATIVE POWER [CHAP. VI. 
 
 effect these ends they have at all times a complete power 
 to alter, reform, or abolish their government, whenever 
 they may deem it necessary. 
 
 " There shall be neither slavery nor involuntary ser- 
 vitude in this state, otherwise than for the punishment 
 of crimes, whereof the party shall have been duly con- 
 victed ; nor shall any male person, arrived at the age of 
 twenty-one years, nor female person, arrived at the age 
 of eighteen years, be held to serve any person as a ser- 
 vant under pretence of indenture, or otherwise, unless 
 such person shall enter into such indenture while in a 
 state of perfect freedom, and on condition of a bona fide 
 consideration, received or to be received for their service, 
 except as before excepted. Nor shall any indenture of 
 any negro or mulatto hereafter made and executed, out 
 of this state, or, if made in the state, where the term of 
 service exceeds one year, be of the least validity, except 
 those given in the case of apprenticeships. 
 
 " That all men have a natural and indefeasible right 
 to worship Almighty God according to the dictates of 
 their own consciences ; that no human authority can in 
 any case whatever control or interfere with the rights of 
 conscience ; that no man shall be compelled to attend, 
 erect, or support any place of worship, or to maintain 
 any ministry, against his consent ; and that no preference 
 shall ever be given by law to any religious society or 
 mode of worship : and no religious test shall be required 
 as a qualification to any office of trust or profit. But 
 religion, morality, and knowledge, being essentially ne- 
 cessary to the government and the happiness of mankind, 
 schools, and the means of instruction, shall forever be 
 encouraged by legislative provision, not inconsistent with 
 the rights q£ conscience. 
 
 " Private property ought, and shall ever be held invio- 
 late, but always subservient to the public welfare, pro- 
 vided a compensation in money be made to the owner.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 193 
 
 "That the people shall be secure in their persons, 
 houses, papers, and possessions, from all unwarrantable 
 searches and seizures ; and that general warrants, where- 
 by an officer may be commanded to search suspected 
 places, without probable evidence of the fact committed, 
 or to seize any person or persons not named, whose 
 offences are not particularly described, and without oath 
 or affirmation, are dangerous to liberty, and shall not be 
 granted. 
 
 " That the printing presses shall be open and free to 
 every citizen who wishes to examine the proceedings of 
 any branch of government, or the conduct of any public 
 officer ; and no law shall ever restrain the right thereof. 
 Every citizen has an indisputable right to speak, write, 
 or print upon any subject as he thinks proper, being 
 liable for the abuse of that liberty. In prosecutions for 
 any publication respecting the official conduct of men in 
 a public capacity, or where the matter published is 
 proper for public information, the truth thereof may 
 always be given in evidence ; and in all indictments for 
 libels, the jury shall have a right to determine the law 
 and the facts, under the direction of the court, as in other 
 cases. 
 
 " That all courts shall be open, and every person for 
 any injury done him in his lands, goods, person, or repu- 
 tation, shall have remedy by the due course of law ; and 
 right and justice administered without denial or delay. 
 
 " That the right of trial by jury shall be inviolate. 
 
 " That no power of suspending the laws shall be 
 exercised, unless by the legislature. 
 
 " That no person arrested or confined in jail shall be 
 treated with unnecessary rigor, or be put to answer any 
 criminal charge, but by presentment, indictment, or im- 
 peachment. 
 
 " That in all criminal prosecutions, the accused hath 
 a right to be heard by himself and his counsel ; to de-
 
 196 OF LEGISLATIVE POWER [CHAP. VI. 
 
 mand the nature and cause of the accusation against 
 him, and to have a copy thereof; to meet the witnesses 
 face to face ; to have compulsory process for obtaining 
 witnesses in his favour ; and, in prosecutions by indict- 
 ment or presentment, a speedy public trial by an impar- 
 tial jury of the county or district in which the offence 
 shall have been committed, and shall not be compelled 
 to give evidence against himself — nor shall he be twice 
 put in jeopardy for the same offence. 
 
 " That all persons shall be bailable by sufficient sure- 
 ties, unless for capital offences, where the proof is evi- 
 dent, or the presumption great ; and 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. 
 
 " Excessive bail shall not be required, excessive fines 
 shall not be imposed, nor cruel and unusual punishments 
 inflicted. 
 
 " All penalties shall be proportioned to the nature of 
 the offence. No wise legislature will affix the same 
 punishments to the crimes of theft, forgery, and the like, 
 which they do to those of murder and treason. When 
 the same undistinguished severity is exerted against all 
 offences, the people are led to forget the real distinction 
 in the crimes themselves, and to commit the most fla- 
 grant with as little compunction as they do the lighest 
 offences. For the same reasons, a multitude of sangui- 
 nary laws are both impolitic and unjust ; the true design 
 of all punishments being to reform, not to exterminate 
 mankind. 
 
 " The person of a debtor, where there is not strong 
 presumption of fraud, shall not be continued in prison 
 after delivering up his estate for the benefit of his credi- 
 tor or creditors, in such manner as shall be prescribed by 
 law. 
 
 " No ex post facto law, nor any law impairing the va-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 197 
 
 lidity of contracts, shall ever be made ; and no conviction 
 shall work corruption of blood, or forfeiture of estate. 
 
 " That no person shall be liable to be transported out 
 of this state, for any offence committed within the state. 
 
 " That a frequent recurrence to the fundamental prin- 
 ciples of civil government is absolutely necessary to 
 preserve the blessings of liberty. 
 
 u That the people have a right to assemble together, 
 in a peaceable manner, to consult for their common good* 
 to instruct their representatives, and to apply to the 
 legislature for redress of grievances. 
 
 " That the people have a right to bear arms for the 
 defence of themselves and the state ; and, as standing 
 armies in time of peace are dangerous to liberty, they 
 shall not be kept up, and that the military shall be kept 
 under strict subordination to the civil power. 
 
 " That no person in this state, except such as are em- 
 ployed in the army or navy of the United States, or 
 militia in actual service, shall be subject to corporeal 
 punishment under the military law. 
 
 " That no soldier, in time of peace, be quartered in 
 any house without the consent of the owner, nor in time 
 , of war, but in the manner prescribed by law. 
 
 " That the levying taxes by the poll is grievous and 
 oppressive ; therefore, the legislature shall never levy a 
 poll tax for county or state purposes. 
 
 " That no hereditary emoluments, privileges, or hon- 
 ours shall ever be granted or conferred by this state. 
 
 " That no law shall be passed to prevent the poor in 
 the several counties and townships within this state, 
 from an equal participation in the schools, academies, 
 colleges, and universities within this state, which are 
 endowed, in whole or in part, from the revenue arising 
 from the donations made by the United States for the 
 support of schools and colleges ; and the doors of the 
 said schools, academies, and universities shall be open
 
 198 OF LEGISLATIVE POWER [CHAP. VI. 
 
 for the reception of scholars, students, and teachers of 
 every grade, without any distinction or preference what- 
 ever, contrary to the intent for which the said donations 
 were made. 
 
 " That laws shall be passed by the legislature which 
 shall secure to each and every denomination of religious 
 societies, in each surveyed township, which now is, or 
 may hereafter be, formed in the state, an equal partici- 
 pation, according to their number of adherents, of the 
 profits arising from the land granted by congress for the 
 support of religion, agreeably to the ordinance or act of 
 congress making the appropriation. 
 
 " That every association of persons, when regularly 
 formed within this state, and having given themselves a 
 name, may, on application to the legislature, be entitled 
 to receive letters of incorporation, to enable them to hold 
 estates, real and personal, for the support of their schools, 
 academies, colleges, universities, and other purposes. 
 
 " To guard against the transgression of the high pow- 
 ers which we have delegated, we declare, that all powers 
 not hereby delegated remain with the people." 
 
 § 105. The legislative authority of Indiana is vested 
 in a General Assembly, which consists of a Senate and a 
 House of Representatives. 
 
 The representatives are chosen annually by electors 
 of the respective counties ; they consist of not less than 
 thirty-six, nor more than one hundred. 
 
 The senators are chosen for three years in the same 
 manner as the representatives, and consist of not less 
 than one-third nor more than one-half of the number of 
 representatives. 
 
 Each house chooses its own officers, except the presi- 
 dent of the senate ; is judge of the election, quali- 
 fication, and returns of its own members, keeps a 
 journal of proceedings, determines its own rules, punishes
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 199 
 
 its members for disorderly conduct, and expels them 
 with a two-thirds vote. 
 
 Bills originate in either house, except bills for raising 
 revenue, which must originate in the house of represen- 
 tatives, but may be amended or rejected by the senate. 
 All bills must be signed by the president and speaker of 
 the respective houses. Every bill must be read on three 
 different days in each house, unless in case of urgency, 
 two-thirds of the house where such bill may be depend- 
 ing shall deem it expedient to dispense with this rule. 
 
 The style of the laws is " Be it enacted by the general 
 assembly of the state of Indiana." 
 
 The house of representatives have the sole power of 
 impeachment, but all cases of that kind are tried by the 
 senate. 
 
 Every bill which passes both houses is submitted to 
 the governor for approval and signature before it becomes 
 a law. If the governor disapproves of a bill, he must 
 return it, with his objections, to the house in which it 
 originated, which must enter the objections at large upon 
 its journal, and proceed to reconsider it; if, after such 
 reconsideration, a majority of all the members elected to 
 that house shall pass it, then it must, with the objections 
 of the governor, be sent to the other house to be reconsid- 
 ered; and, if approved by a majority of all the members 
 elected to that house, it becomes a law. But in such 
 cases, the vote must be taken by yeas and nays, and the 
 names of the persons voting for or against the bill, must 
 be entered on the journals of each house. The return 
 of the bill must be made by the governor within five 
 days, (Sunday excepted,) or it becomes a law in like 
 manner as if he had signed it, unless the, general assem- 
 bly, by its adjournment, prevent its return, in which 
 case it becomes a law, unless sent back within three 
 days after their next meeting. And the same rule ob-
 
 200 OF LEGISLATIVE POWER [CHAP. VI. 
 
 tains in reference to every resolution which requires the 
 concurrence of both houses. 
 
 The general assembly have full power to exclude from 
 electing, or being elected, any person guilty of any in- 
 famous crime ; they may fix by law the method of divi- 
 ding the militia; provide for a general system of educa- 
 tion ; form a penal code ; provide asylums for the 
 unfortunate and infirm; and lay off new counties or 
 towns at discretion, without reducing the old counties to 
 less than 400 square miles. 
 
 It is expressly declared by Article X., Sec. 1, " There 
 shall not be established or incorporated in this state any 
 bank or banking company, or moneyed institution, for 
 the purpose of issuing bills of credit, or bills payable to 
 order or bearer : Provided, that nothing herein contained 
 shall be so construed as to prevent the general assembly 
 from establishing a state bank, and branches, not ex- 
 ceeding one branch for any three counties, to be estab- 
 lished at such place within such counties as the directors 
 of the state bank may select ; provided there be sub- 
 scribed and paid in specie, on the part of the individuals, 
 a sum equal to thirty thousand dollars : Provided also, 
 that the bank at Vincennes, and the Farmers and Me- 
 chanics Bank of Indiana, at Madison, shall be considered 
 as incorporated banks, according to the true tenor of the 
 charters granted to said banks by the legislature of the 
 Indiana territory ; Provided, that nothing herein con- 
 tained shall be so construed as to prevent the general 
 assembly from adopting either of the aforesaid banks, as 
 the state bank; and in case either of them shall be 
 adopted as the state bank, the other may become a 
 
 branch, under the rules and regulations herein before 
 
 * 
 prescribed." 
 
 Sections 7 and 8 of Article XI. provide : 
 " There shall be neither slavery nor involuntary ser- 
 vitude in this state, otherwise than for the punishment
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 201 
 
 ol' crimes, whereof the party shall have been duly con- 
 victed. Nor shall any indenture of any negro or mulatto, 
 hereafter made and executed out of the bounds of this 
 state, be of any validity within the state. 
 
 " No act of the general assembly shall be in force until 
 it shall have been published in print, unless in cases of 
 emergency." 
 
 § 106. The legislative power of the state of Louisiana 
 is vested in two branches, a House of Representatives 
 and a Senate. 
 
 The representatives are elected biennially, by qualified 
 electors, and consist of not less than twenty-five, nor 
 more than fifty members. They choose their own offi- 
 cers, and the members are privileged from arrest, except 
 in cases of treason, felony, or breach of the peace. 
 
 The senators are chosen for four years, by districts, 
 and choose their own officers annually. 
 
 Each house judges the elections, qualifications, and 
 returns of its own members, determines the rules of its 
 proceedings, punishes and expels its members for disor- 
 derly behaviour. 
 
 The general assembly have power to regulate by law 
 all writs of election, and establish inferior courts. 
 
 The house of representatives have the sole power of 
 impeachment; but they are tried by the senate. All 
 bills, orders, or resolutions, are signed by the governor 
 previous to their becoming laws. 
 
 It is provided : " No bill shall have the force of a law 
 until, on three several days, it be read over in each house 
 of the general assembly, and free discussion allowed 
 thereon : unless, in case of urgency, four-fifths of the 
 house, where the bill shall be depending, may deem it 
 expedient to dispense with this rule. 
 
 " All bills for raising revenue shall originate in the 
 house of representatives, but the senate may propose 
 
 26
 
 202 OF LEGISLATIVE POWER [CHAP. VI. 
 
 amendments as in other bills ; provided, that they shall 
 not introduce any new matter, under the color of 
 amendment, which does not relate to raising a revenue." 
 Every bill, order, resolution, or vote, to which the 
 concurrence of both houses shall be necessary, except 
 on questions of adjournment, must be presented to the 
 governor for approval. If he return it under objections, 
 it may, notwithstanding such objections, be passed by a 
 two-third vote of each house. If not returned within 
 ten days, (Sundays excepted,) it becomes a law, unless 
 prevented by an adjournment of the legislature, in which 
 event it becomes a law, unless returned within three 
 days after their next meeting. 
 
 It is also provided, " All laws that may be passed by 
 the legislature of the state, and the judicial and legisla- 
 tive proceedings of the same, shall be promulgated, pre- 
 served, and conducted, in the language in which the 
 constitution of the United States is written. No power 
 of suspending the laws of the state shall be exercised, 
 unless by the legislature, or its authority. In all crimi- 
 nal prosecutions the accused shall have the right of 
 being heard by himself, or counsel ; of demanding the 
 nature and cause of the accusation against him ; of 
 meeting the witnesses face to face ; of having compulsory 
 process for obtaining witnesses in his favor ; and, in pro- 
 secutions by indictment or information, a speedy public 
 trial by an impartial jury of the vicinage ; nor shall he 
 be compelled to give evidence against himself. All priso- 
 ners shall be bailable by sufficient securities, unless for 
 capital offences, where the proof is evident or presump- 
 tion great ; and 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. No ex post 
 facto law, nor any law impairing the obligation of con- 
 tracts, shall be passed. Printing presses shall be free to 
 every person who undertakes to examine tiie proceedings
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 203 
 
 of the legislature, or any branch of the government, 
 and no law shall ever be made to restrain the right 
 thereof. The free communication of thoughts and opin- 
 ions is one of the invaluable rights of man, and every 
 citizen may freely speak, write, and print on any subject, 
 being responsible for the abuse of that liberty." 
 
 Emigration from that state shall not be prohibited. 
 
 § 107. The Constitution of Mississippi contains the 
 following declaration of rights : 
 
 " That the general, great and essential principles of 
 liberty and free government may be recognized and es- 
 tablished, we declare — 
 
 " That all freemen, when they form a social compact, 
 are equal in rights ; and that no man, or set of men, are 
 entitled to exclusive, separate public emoluments or 
 privileges from the community, but in consideration of 
 public services. 
 
 " That all political power is inherent in the people, 
 and all free governments are founded on their authority 
 and established for their benefit; and, therefore, they 
 have at all times an inalienable and indefeasible right to 
 alter or abolish their form of government, in such man- 
 ner as they may think expedient. 
 
 " The exercise and enjoyment of religious profession 
 and worship, without discrimination, shall forever be 
 free to all persons in this state : Provided, that the right 
 hereby declared and established shall not be so con- 
 strued as to excuse acts of licentiousness, or justify 
 practices inconsistent with the peace and safety of the 
 state. 
 
 " No preference shall ever be given by law to any re- 
 ligious sect, or mode of worship. 
 
 " That no person shall be molested for his opinions 
 on any subject whatever, nor suffer any civil or political 
 incapacity, or acquire any civil or political advantage 3
 
 204 OP LEGISLATIVE POWER [CHAP. VI. 
 
 in consequence of such opinions, except in cases provi- 
 ded for in this constitution. 
 
 " Every citizen may freely speak, write and publish 
 his sentiments on all subjects ; being responsible for the 
 abuse of that liberty. 
 
 " No law shall ever be passed to curtail or restrain 
 the liberty of speech, or of the press. 
 
 " In all prosecutions or indictments for libel, the truth 
 may be given in evidence ; and if it shall appear to the 
 jury that the matter charged as libellous is true, and was 
 published with good motives and for justifiable ends, the 
 party shall be acquitted ; and the jury shall have the 
 risrht to determine the law and the facts. 
 
 " That the people shall be secure in their persons., 
 houses, papers, and possessions, from unreasonable 
 seizures and searches ; and that no warrant to search 
 any place, or to seize any person or thing, shall issue 
 without describing the place to be searched, and the 
 person or thing to be seized, as nearly as may be, nor 
 without probable cause, supported by oath or affir- 
 mation. 
 
 " That in all criminal prosecutions, the accused hath a 
 right to be heard by himself or counsel, or both ; to de- 
 mand the nature and cause of the accusation ; to be 
 confronted by the witnesses against him ; to have com- 
 pulsory process for obtaining witnesses in his favor ; and 
 in all prosecutions by indictment or information, a speedy 
 and public trial by an impartial jury of the county where 
 the offence was committed: that he cannot be com- 
 pelled to give evidence against himself ; nor can he be 
 deprived of his life, liberty, or property, but by due 
 course of law. 
 
 " No person shall be accused, arrested or detained, 
 except in cases ascertained by law, and according to the 
 form which the same has prescribed; and no person
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 205 
 
 shall be punished but in virtue of a law established and 
 promulgated prior to the offence, and legally applied. 
 
 " That no person shall, for any indictable offence, be 
 proceeded against criminally by information, except in 
 cases arising in the land or naval forces, or in the militia, 
 when in actual service, or by leave of the court, for mis- 
 demeanor in office. 
 
 " No person shall, for the same offence, be twice put 
 in jeopardy of life or limb, nor shall any person's pro- 
 perty be taken or applied to public use without the 
 consent of the legislature, and without just compensation 
 being first made therefor. 
 
 " That all courts shall be open, and every person for 
 an injury done him in his lands, goods, person, or repu- 
 tation, shall have remedy by due course of law ; and 
 right and justice administered without sale, denial, or 
 delay. 
 
 " That no power of suspending laws shall be exercised 
 except by the legislature, or its authority. 
 
 " That excessive bail shall not be required, nor ex- 
 cessive fines imposed, nor cruel punishments inflicted. 
 
 " That all prisoners shall before conviction be bailable 
 by sufficient securities, except for capital offences, where 
 the proof is evident, or the presumption great : and the 
 privilege of the writ of habeas corpus shall not be sus- 
 pended, unless, when in case of rebellion or invasion, 
 the public safety may require it. 
 
 " That the person of a debtor, when there is not strong 
 presumption of fraud, shall not be detained in prison, 
 after delivering up his estate for the benefit of his credi- 
 tors, in such manner as shall be prescribed by law. 
 
 " No conviction for any offence shall work corruption 
 of blood or forfeiture of estate : The legislature shall 
 pass no bill of attainder, ex post facto law, nor law im- 
 pairing the obligation of contracts. 
 
 u No property qualification for eligibility to office, or
 
 206 OP LEGISLATIVE POWER [CHAP. VI. 
 
 for the right of suffrage, shall ever be required by law in 
 this state. 
 
 " That the estates of suicides shall descend or vest as 
 in cases of natural death ; and if any person shall be 
 killed by casualty, there shall be no forfeiture by reason 
 thereof. 
 
 " That the citizens have a right in a peaceable manner 
 to assemble together for their common good, and to 
 apply to those vested with the powers of government 
 for redress of grievances, or other proper purposes, by 
 petition, address, or remonstrance. 
 
 " Every citizen has a right to bear arms in defence of 
 himself and of the state. 
 
 " No standing army shall be kept up without the con- 
 sent of the legislature ; and the military shall, in all 
 cases, and at all times, be in strict subordination to 
 the civil power. 
 
 " That 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 manner to be prescribed by law. 
 
 " That no hereditary emoluments, privileges, or hon- 
 ors shall ever be granted or conferred in this state. 
 
 " Emigration from this state shall not be prohibited, 
 nor shall any free white citizen of this state ever be 
 exiled under any pretence whatever. 
 
 " The right of trial by jury shall remain inviolate. 
 
 " No person shall be debarred from prosecuting or 
 defending any civil cause for or against him or herself 
 before any tribunal in this state, by him or herself, or 
 counsel or both. 
 
 " 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." 
 
 § 108. The legislative department of Mississippi is 
 
 I
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 207 
 
 vested in two branches, a Senate and House of Repre- 
 sentatives, styled " The Legislature of the State of Mis- 
 sissippi ;" and the style of the laws is, (< Be it enacted 
 by the Legislature of the State of Mississippi." 
 
 The representatives are elected biennially by qualified 
 electors of their respective counties, and are privileged 
 from arrest, except in cases of treason, felony, or breach 
 of the peace. They consist of not less than thirty-six 
 nor more than one hundred. 
 
 The Senators are chosen by qualified electors for four 
 years, consisting of never less than one-fourth nor more 
 than one-half of the whole number of representatives. 
 
 Each house elects its own officers, judges of the elec- 
 tion and qualification of its members, determines its own 
 rule of proceedings, and punishes and expels its mem- 
 bers for disorderly behavior. 
 
 Bills may originate in either house, and be amended, 
 altered, or refused by the other, and all bills passed by 
 both houses must be signed by the speaker and president 
 of the respective houses before becoming laws. But all 
 revenue bills must originate in the house of representa- 
 tives, but the senate may alter, amend, or reject them. 
 
 The house of representatives have the sole power of 
 impeachment, to be tried by the senate. 
 
 A majority of each house constitutes a quorum to do 
 business, but a smaller number may adjourn from day 
 to day. 
 
 Every bill, order, resolution, or vote to which the 
 concurrence of both houses shall be necessary, except 
 on questions of adjournment, must be presented to and 
 signed by the governor or be returned by him with his 
 objections within six days, Sundays excepted, after pre- 
 sented to him, unless prevented by the adjournment of 
 the legislature. It may, however, upon reconsideration, 
 be passed by a vote of two-thirds of each house, not- 
 withstanding such objections. If a return of a bill with
 
 208 OF LEGISLATIVE POWER [CHAP. VI. 
 
 objections within the time prescribed is prevented by an 
 adjournment of the legislature it becomes a law. 
 
 The constitution also contains the following restric- 
 tions upon legislative power. 
 
 " No law of a general nature, unless otherwise pro- 
 vided for, shall be enforced until sixty days after the 
 passage thereof. 
 
 " No law shall ever be passed to raise a loan of money 
 upon the credit of the state, or to pledge the faith of the 
 state for the payment or redemption of any loan or debt, 
 unless such law be proposed in the senate or house of 
 representatives, and be agreed to by a majority of the 
 members of each house, and entered on their journals 
 with the yeas and nays taken thereon, and be referred 
 to the next succeeding legislature, and published for three 
 months previous to the next regular election, in three 
 newspapers of the state ; and unless a majority of each 
 branch of the legislature, so elected, after such publica- 
 tion, shall agree to, and pass such law ; and in such case 
 the yeas and nays shall be taken, and entered on the 
 journals of each house : Provided, that nothing in this 
 section shall be so construed as to prevent the legislature 
 from negotiating a further loan of one and a half million 
 of dollars, and vesting the same in stock reserved to the 
 state by the charter of the Planters' Bank of the state of 
 Mississippi. 
 
 " Divorces from the bonds of matrimony shall not be 
 granted, but in cases provided for by law, by suit in 
 chancery." 
 
 " The legislature shall have no power to pass laws for 
 the emancipation of slaves without the consent of their 
 owners, unless where the slave shall have rendered to 
 the state some distinguished service ; in which case the 
 owner shall be paid a full equivalent for the slave so 
 emancipated. They shall have no power to prevent 
 emigrants to this state from bringing with them such
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 209 
 
 persons as are deemed slaves by the laws of any one of 
 the United States, so long as any person of the same 
 age or description shall be continued in slavery by the 
 laws of this state : Provided, that such person or slave 
 be the bona fide property of such emigrants ; and pro- 
 vided, also, that laws may be passed to prohibit the in- 
 troduction injtp this state of slaves who may have com- 
 mitted high crimes in other states. They shall have 
 power to pass laws to permit the owners of slaves to 
 emancipate them, saving the rights of creditors, and pre- 
 venting them from becoming a public charge. They 
 shall have full power to oblige the owners of slaves to 
 treat them with humanity; to provide for them necessary 
 clothing and provisions; to abstain from all injuries to 
 them, extending to life or limb; and in case of their 
 neglect or refusal to comply with the directions of such 
 laws, to have such slave or slaves sold for the benefit of 
 the owner or owners. 
 
 " The introduction of slaves into this state as mer- 
 chandise, or for sale, shall be prohibited from and after 
 the first day of May, eighteen hundred and thirty-three : 
 Provided, that the actual settler or settlers shall not be 
 prohibited from purchasing slaves in any state in this 
 Union, and bringing them into this state for their own 
 individual use, until the year eighteen hundred and 
 forty-five." 
 
 § 109. Art. 8 of the constitution of Illinois contains a 
 declaration of rights as follows: 
 
 " That the general, great, and essential principles of 
 liberty and free government may be recognized and un- 
 alterably established, we declare : 
 
 " That all men are born equally free and independent, 
 and have certain inherent and indefeasible rights ; among 
 which are those of enjoying and defending life and lib- 
 erty, and of acquiring, possessing, and protecting pro- 
 
 ' 27
 
 210 OF LEGISLATIVE POWER [CHAP. VI. 
 
 perty and reputation, and of pursuing their own happi- 
 ness. 
 
 " That all power is inherent in the people, and all free 
 governments are founded on their authority, and insti- 
 tuted for their peace, safety, and happiness. 
 
 11 That all men have a natural and indefeasible right 
 to worship Almighty God, according to the dictates of 
 their own consciences ; that no man can of right be com- 
 pelled to attend, erect, or support any place of worship, 
 or to maintain any ministry against his consent ; that no 
 human authority can, in any case whatever, control or 
 interfere with the rights of conscience; and that no 
 preference shall ever be given by law to any religious 
 establishments or modes of worship. 
 
 " That no religious test shall ever be required as a 
 qualification to any office or public trust under this 
 state. 
 
 " That elections shall be free and equal. 
 
 " That the right of the trial by jury shall remain in- 
 violate. 
 
 " That the people shall be secure in their persons, 
 houses, papers, and possessions, from unreasonable 
 searches and seizures ; and that general warrants, 
 whereby an officer may be commanded to search sus-- 
 pected places without evidence of the fact committed, or 
 to seize any person or persons not named, whose offences 
 are not particularly described, and supported by evi- 
 dence, are dangerous to liberty, and ought not to be 
 granted. 
 
 " That no freeman shall be imprisoned or disseized 
 of his freehold, liberties, or privileges, or outlawed, or 
 exiled, or in any manner deprived of his life, liberty, or 
 property, but by the judgment of his peers, or the law 
 of the land. And all lands which have been granted as 
 a common to the inhabitants of any town, hamlet, vil- 
 lage, or corporation, by any person, body politic or cor-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 211 
 
 porate, or by any government having power to make 
 such grant, shall for ever remain common to the inhabi- 
 tants of such town, hamlet, village, or corporation : and 
 the said commons shall not be leased, sold, or divided, 
 under any pretence whatever : Provided, however, that 
 nothing in this section shall be so construed as to affect 
 the commons of Cahokia or Prairie Dupont: Provided, 
 also, that the general assembly shall have power and 
 authority to grant the same privilege to the inhabitants 
 of the said villages of Cahokia and Prairie Dupont as 
 are hereby granted to the inhabitants of other towns, 
 hamlets, and villages. 
 
 " That in all criminal prosecutions, the accused hath 
 a right to be heard by himself and counsel ; to de- 
 mand the nature and cause of the accusation against 
 him ; to meet the witnesses face to face; to have com- 
 pulsory process to compel the attendance of witnesses in 
 his favor ; and in prosecutions by indictment or informa- 
 tion, a speedy public trial, by an impartial jury of the 
 vicinage : and that he shall not be compelled to give evi- 
 dence against himself. 
 
 " That no person shall, for any indictable offence, be 
 proceeded against criminally, by information, except in 
 cases arising in the land or naval forces, or the militia 
 when in actual service, in time of war or public danger, 
 by leave of the courts, for oppression or misdemeanor in 
 office. 
 
 "No person shall, for the same offence, be twice put 
 in jeopardy of his life or limb ; nor shall any man's pro- 
 perty be taken or applied to public use without the con- 
 sent of his representatives in the general assembly, nor 
 without just compensation being made to him. 
 
 " Every person within this state ought to find a cer- 
 tain remedy in the laws, for all injuries or wrongs which 
 he may receive in his person, property, or character: he 
 ought to obtain right and justice freely, and without being
 
 212 OF LEGISLATIVE POWER [CHAP. VI. 
 
 obliged to purchase it ; completely, and without denial ; 
 promptly and without delay, conformably to the laws. 
 
 " That all persons shall be bailable by sufficient sure- 
 ties> unless for capital offences, where the proof is evi- 
 dent or the presumption great ; and 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. 
 
 " All penalties shall be proportioned to the nature of 
 the offence ; the true design of all punishments being to 
 reform, and not to exterminate mankind. 
 
 " No person shall be imprisoned for debt, unless upon 
 refusal to deliver up his estate for the benefit of his cre- 
 ditors, in such manner as shall be prescribed by law, or 
 in cases where there is strong presumption of fraud. 
 
 " No ex post facto law, nor any law impairing the 
 validity of contracts shall ever be made ; and no con- 
 viction shall work corruption of blood or forfeiture of 
 estate. 
 
 " That no person shall be liable to be transported out 
 of this state for any offence committed within the same. 
 
 " That a frequent recurrence to the fundamental prin- 
 ciples of civil government is absolutely necessary to pre- 
 serve the blessings of liberty. 
 
 " That the people have a right to assemble together 
 in a peaceable manner, to consult for their common good, 
 to instruct their representatives, and to apply to the gene- 
 ral assembly for redress of grievances. 
 
 " That the mode of levying a tax shall be by valua- 
 tion ; so that every person shall pay a tax in proportion 
 to the value of the property he or she has in his or her 
 possession. 
 
 " That there shall be no other banks or moneyed in- 
 stitutions in this state but those already provided by law, 
 except a state bank and its branches, which may be es-
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 213 
 
 tablished and regulated by the general assembly of the 
 state, as they may think proper. 
 
 " That printing presses shall be free to every person 
 who .undertakes to examine the proceedings of the gene- 
 ral assembly, or of any branch of government ; and no law 
 shall ever be made to restrain the right thereof. The free 
 communication of thoughts and opinions is one of the 
 invaluable rights of man, and every citizen may freely 
 speak, write, or print, on any subject, being responsible 
 for the abuse of that liberty. 
 
 " In prosecutions for the publication of papers investi- 
 gating the official conduct of officers, or men acting in a 
 political capacity, or where the matter published is pro- 
 per for public information, the truth thereof may be given 
 in evidence ; and in all indictments for libels, the jury 
 shall have the right of determining both the law and the 
 fact, under the direction of the court, as in other cases. 
 
 § 110. The constitution of the state of Illinois pro- 
 vides the legislative power shall be vested in a general 
 assembly, consisting of a senate and a house of represen- 
 tatives, elected by the people. 
 
 The representatives are elected for two years by 
 qualified electors, and are apportioned among the several 
 counties. 
 
 The senators are elected for four years, and are di- 
 vided into two classes, each holding the seats two years. 
 
 The number of representatives is never less than 
 twenty-seven nor more than thirty-six, and the number 
 of the senators never less than one-third or more than 
 one-half the number of representatives. 
 
 Each house elects its own officers, except the speaker 
 of the senate, and judges of the election and qualifica- 
 tions of its own members. 
 
 Each house keeps a journal of proceedings, determines 
 its own rules, punishes its members for disorderly beha- 
 vior, and, with the consent of two-thirds, expels a member.
 
 214 OP LEGISLATIVE POWER [CHAP. VI* 
 
 Senators and representatives are privileged from ar- 
 rest, except in cases of treason, felony, or breach of the 
 peace. 
 
 Bills may originate in either house, but may be altered, 
 amended, or rejected by the other. Except revenue 
 bills, must originate in the house of representatives, sub- 
 ject to amendment or rejection by the senate. Every 
 bill must be read on three different days in each house, 
 unless in case of urgency three-fourths of the house 
 where it is pending shall see fit to dispense with this 
 rule. 
 
 The style of the laws is, " Be it enacted by the people 
 of the State of Illinois, represented in the General As- 
 sembly." 
 
 The house of representatives has the sole power of im- 
 peachment, to be tried by the senate. 
 
 Every bill which has passed both houses must be 
 signed by the speakers of the respective houses. 
 
 By section 19 of article 3, page 323, it is provided : 
 
 " The governor, for the time being, and the judges of 
 the supreme court, or a major part of them, together 
 with the governor, shall be and are hereby constituted a 
 council to revise all bills about to be passed into laws 
 by the general assembly ; and for that purpose shall as- 
 semble themselves from time to time when the general 
 assembly shall be convened ; for which, nevertheless, they 
 shall not receive any salary or consideration, under any 
 pretence whatever ; and all bills which have passed the 
 senate and house of representatives, shall, before they 
 become laws, be presented to the said council for their 
 revisal and consideration ; and if upon such revisal and 
 consideration, it should appear improper to the said 
 council, or a majority of them, that the bill should be- 
 come a law of this state, they shall return the same, 
 together with their objections thereto, in writing, to the 
 senate or house of representatives, (in whichsoever the
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 215 
 
 same shall have originated,) who shall enter the objec- 
 tions set down by the council, at large, in their minutes, 
 and proceed to reconsider the said bill. But if, after 
 such reconsideration, the said senate or house of repre- 
 sentatives shall, notwithstanding the said objections, 
 agree to pass the same, by a majority of the whole num- 
 ber of members elected, it shall, together with the said 
 objections, be sent to the other branch of the general 
 assembly, where it shall also be reconsidered ; and if 
 approved by a majority of all the members elected, it 
 shall become a law. If any bill shall not be returned 
 within ten days after it shall have been presented, the 
 same shall be law ; unless the general assembly shall, by 
 their adjournment, render a return of the said bill, in ten 
 days, impracticable ; in which case the said bill shall be 
 returned on the first day of the meeting of the general 
 assembly after the expiration of the said ten days, or be 
 a law." {) 
 
 Section 1 of article 6 provides : 
 
 " Neither slavery nor involuntary servitude shall here- 
 after be introduced into this state, otherwise than for the 
 punishment of crimes whereof the party shall have been 
 duly convicted; nor shall any male person, arrived at 
 the age of twenty-one years, nor female person arrived 
 at the age of eighteen years, be held to serve any person 
 as a servant, under any indenture hereafter made, unless 
 such person shall enter into such indenture while in a 
 state of perfect freedom, and on condition of a bona Jide 
 consideration, received, or to be received, for their ser- 
 vice. Nor shall any indenture of any negro or mulatto 
 hereafter made and executed out of this state, or, if made 
 in this state, where the term of service exceeds one year, 
 be of the least validity, except those given in cases of 
 apprenticeship." 
 
 § 111. Art. 1 of the constitution of Alabama contains 
 a declaration of rights, as follows :
 
 216 OF LEGISLATIVE POWER [CHAP. VI. 
 
 " That the general, great and essential principles of 
 liberty and free government may be recognized and es- 
 tablished, we declare — 
 
 " That all freemen, when they form a social compact, 
 are equal in rights ; and that no man, or set of men, are 
 entitled to exclusive, separate public emoluments or 
 privileges, but in consideration of public services. 
 
 " All political power is inherent in the people, and 
 all free governments are founded on their authority 
 and instituted for their benefit ; and, therefore, they 
 have at all times an unalienable and indefeasible right to 
 alter, reform, or abolish their form of government, in such 
 manner as they may think expedient. 
 
 " No person within this state shall, upon any pretence, 
 be deprived of the inestimable privilege of worshipping 
 God in the manner most agreeable to his own conscience ; 
 nor be compelled to attend any place of worship ; nor 
 siiall any one ever be obliged to pay any tithes, taxes, 
 or other rate, for the building or repairing any place of 
 worship, or for the maintenance of any minister or min- 
 istry. 
 
 " No human authority ought, in any case whatever, to 
 control or interfere with the rights of conscience. 
 
 " No person shall be hurt, molested, or restrained, in 
 his religious profession, sentiments, or persuasions, pro- 
 vided he does not disturb others in their religious wor- 
 ship. 
 
 " The civil rights, privileges, or capacities of any citi- 
 zen, shall in no way be diminished, or enlarged, on 
 account of his religious principles. 
 
 " There shall be no establishment of religion by law ; 
 no preference shall ever be given by law to any religious 
 sect, society, denomination, or mode of worship : and no 
 religious test shall ever be required as a qualification to 
 any office or public trust under this state. 
 
 " Every citizen may freely speak, write and publish
 
 CHAP. VI.] UNDER STATH CONSTITUTIONS. 217 
 
 his sentiments on all subjects ; being responsible for tbe 
 abuse of that liberty. 
 
 "The people shall be secure in their persons, houses, 
 papers, and possessions, from unreasonable seizures or 
 searches ; and no warrant to search any place, or to seize 
 any person or thing, shall issue without describing them 
 as nearly as may be, nor without probable cause, sup- 
 ported by oath or affirmation. 
 
 " In all criminal prosecutions, the accused has a right 
 to be heard by himself and counsel ; to demand the 
 nature and cause of the accusation, and have a copy 
 thereof: to be confronted by the witnesses against him: 
 to have compulsory process for obtaining witnesses in 
 his favor ; and in all prosecutions, by indictment or in- 
 formation, a speedy public trial by an impartial jury of 
 the county or district in which the offence shall have 
 been committed : he shall not be compelled to give evi- 
 dence against himself, nor shall he be deprived of his life, 
 liberty, or property, but by due course of law. 
 
 " No person shall be accused, 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 in virtue of a law established and 
 promulgated prior to the offence, and legally applied. 
 
 " No person shall, for any indictable offence, be pro- 
 ceeded against criminally by information, except in cases 
 arising in the land and naval forces, or the militia, 
 when in actual service, or by leave of the court, for op- 
 pression or misdemeanor in office. 
 
 11 No person shall, for the same offence, be twice put 
 in jeopardy of life or limb, nor shall any person's pro- 
 perty be taken or applied to public use unless just com- 
 pensation be made therefor. 
 
 " All courts shall be open, and every person for an 
 injury done him in his lands, goods, person, or repu- 
 
 28
 
 218 OF LEGISLATIVE POWER [CHAP. VI. 
 
 tation, shall have remedy by due course of law ; and 
 right and justice administered without sale, denial, or 
 delay. 
 
 " No power of suspending laws shall be exercised 
 except by the general assembly or its authority. 
 
 " Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel punishments inflicted. 
 
 " All persons shall, before conviction, be bailable by 
 sufficient securities, except for capital offences, when the 
 proof is evident, or the presumption great ; and the privi- 
 lege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion the public 
 safety may require it. 
 
 " The person of a debtor, where there is not strong 
 presumption of fraud, shall not be detained in prison 
 after delivering up his estate for the benefit of his credi- 
 tors, in such manner as shall be prescribed by law. 
 
 " No ex post facto law, nor law impairing the ob- 
 ligation of contracts, shall be made. 
 
 " No person shall be attainted of treason or felony by 
 the general assembly. No attainder shall work corrup- 
 tion of blood, nor forfeiture of estate. 
 
 " The estates of suicides shall descend or vest as in 
 cases of natural death ; if any person shall be killed by 
 casualty there shall be no forfeiture by reason thereof. 
 " The citizens have a right, in a peaceable manner, to 
 assemble together for their common good, and to apply 
 to those invested with the powers of government for re- 
 dress of grievances, or other proper purposes, by petition, 
 address, or remonstrance. 
 
 " Every citizen has a right to bear arms in defence of 
 himself and the state. 
 
 " No standing army shall be kept up without the con- 
 sent of the general assembly ; and, in that case, no ap- 
 propriation of money for its support shall be for a longer
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 219 
 
 term than one year; and the military shall, in all cases, 
 and at all times, be in strict subordination to the civil 
 power. 
 
 " 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. 
 
 "No title of nobility, or hereditary distinction, privi- 
 lege, honor, or emolument, shall ever be granted or con- 
 ferred in this state ; nor shall any office be created, the 
 appointment of which shall be for a longer term than 
 during good behavior. 
 
 "Emigration from this state shall not be prohibited, 
 nor shall any citizen be exiled. 
 
 " The right of trial by jury shall remain inviolate. 
 
 " No person shall be debarred from prosecuting or 
 defending any civil cause for or against him or herself 
 before any tribunal in this state, by him or herself, or 
 counsel. 
 
 " This enumeration of certain rights shall not be con- 
 strued to deny or disparage others retained by the 
 people : and to guard against any encroachments on the 
 rights herein retained, or any transgression of any of the 
 high powers herein delegated, we declare, that every 
 thing in this article is excepted out of the general powers 
 of government, and shall for ever remain inviolate; and 
 that all laws contrary thereto, or to the following pro- 
 visions, shall be void. 
 
 § 112. The legislative power of the state of Alabama 
 is vested in two branches, a senate and a house of rep- 
 resentatives, styled together the General Assembly of 
 the state of Alabama. The style of laws is, " Be it en- 
 acted by the Senate and House of Representatives of 
 the state of Alabama, in General Assembly convened." 
 
 The representatives are chosen annually by qualified 
 electors, and are apportioned among the several counties, 
 and consist of not less than forty-four nor more than
 
 220 OP LEGISLATIVE POWER [CHAP. VI. 
 
 sixty members, until the inhabitants amount to 100,000, 
 and after that they are never less than sixty, nor more 
 than one hundred. 
 
 The senators are chosen by qualified electors from the 
 several districts, for the term of three years, and consist 
 of not less than one-fourth nor more than one-third of 
 the number of representatives. 
 
 Each house chooses its own officers, judges of the 
 elections, qualifications, and returns of its members, 
 punishes or expels them for disorderly conduct, and has 
 all other powers necessary for a branch of the legislature 
 of a free and independent state. 
 
 Senators and representatives are privileged from ar- 
 rest except in cases of treason, felony, or breach of the 
 peace. 
 
 Bills may originate in either house, and be amended, 
 altered, or rejected by the other ; but no bill shall have 
 the force of a law until, on three several days, it be read 
 in each house, and free discussion be allowed thereon, 
 unless, in cases of urgency, four-fifths of the house in 
 which the bill shall be depending may deem it expedient 
 to dispense with this rule. And every bill, having passed 
 both houses, shall be signed by the speaker and president 
 of the respective houses ; provided, that all bills for 
 raising revenue shall originate in the house of represen- 
 tatives, but the senate may amend or reject them as 
 other bills. 
 
 Every bill which shall have passed both houses must be 
 presented to the governor for his approval, if he approves 
 it he must sign it, if not he must return it with his objec- 
 tions ; it may, however, notwithstanding the objections 
 of the governor, upon reconsideration, be passed by a 
 majority of the whole number elected by each branch of 
 the legislature, if not returned with objections in five 
 days, Sunday excepted, it becomes a law, unless the 
 legislature by adjournment prevent its return, in which
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 221 
 
 case it does not become a law. The same rule obtains 
 in reference to every order, resolution, or vote, to which 
 the concurrence of both houses may be necessary ; except 
 on questions of adjournment. 
 
 The house of representatives has the sole power of 
 impeachment, but all cases of this nature are tried by 
 the senate. 
 
 The general assembly have full power to pass laws ex- 
 cluding from office, suffrages, or serving as jurors, all per- 
 sons convicted of infamous crimes or misdemeanors, direct 
 by law how or in what manner suits are to be brought 
 against the state, to regulate by law the duties and sala- 
 ries of public officers, fix boundaries to counties, pass 
 laws to decide differences by arbitrators, form a penal 
 code, and make provision for obtaining correct informa- 
 tion for the improvement of navigation and roads of the 
 state. 
 
 The constitution also contains the following restric- 
 tions upon legislative power. Divorces from bonds of 
 matrimony shall not be granted but in cases provided 
 for by law, by suit in chancery ; and no decree for 
 such divorce shall have effect until the same shall be 
 sanctioned by two-thirds of both houses of the general 
 assembly.(ft) 
 
 The general assembly shall have no power to pass 
 laws for the emancipation of slaves without the consent 
 of their ow T ners, or without paying their owners, previous 
 to such emancipation, a full equivalent in money for the 
 slaves so emancipated. They shall have no power to 
 prevent emigrants to this state from bringing with them 
 such persons as are deemed slaves by the laws of any 
 one of the United States, so long as any person of the 
 same age or description shall be continued in slavery by 
 
 (a) Art. 6, § 13.
 
 222 OF LEGISLATIVE POWER [CHAP. VI, 
 
 the laws of this state : Provided, that such person or 
 slave be the bona fide property of such emigrants : And 
 provided, also, that laws may be passed to prohibit the 
 introduction into this state of slaves who have committed 
 high crimes in other states or territories. 
 
 § 113. Art. 13 of the constitution of Missouri contains 
 a declaration of rights, as follows : 
 
 " That the general, great, and essential principles of 
 liberty and free government may be recognized and es- 
 tablished, we declare : 
 
 " That all political power is vested in, and derived 
 from the people. 
 
 " That the people of this state have the inherent, sole, 
 and exclusive right of regulating the internal government 
 and police thereof ; and of altering or abolishing their 
 constitution and form of government, whenever it may 
 be necessary to their safety and happiness. 
 
 u That the people have the right peaceably to assemble 
 for their common good, and to apply to those vested 
 with the powers of government for redress of grievances,* 
 by petition or remonstrance ; and that their right to bear 
 arms in defence of themselves and of the state cannot 
 be questioned. 
 
 " That all men have a natural and indefeasible right 
 to worship Almighty God according to the dictates of 
 their own consciences ; that no man can be compelled 
 to erect, support, or attend any place of worship, or to 
 maintain any minister of the gospel or teacher of religion ; 
 that no human authority can control or interfere with 
 the rights of conscience ; that no person can ever be 
 hurt, molested, or restrained in his religious profession, 
 or sentiments, if he do not disturb others in their reli- 
 gious worship. 
 
 " That no person, on account of his religious opinions, 
 can be rendered ineligible to any office of trust or profit 
 under this state ; that no preference can ever be given
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 223 
 
 by law to any sect or mode of worship; and that no 
 religious corporation can ever he established in this 
 state. 
 
 " That all elections shall be free and equal. 
 
 " That courts of justice ought to be open to every per- 
 son, and certain remedy afforded for every injury to 
 person, property, or character ; and that right and justice 
 ought to be administered without sale, denial, or delay ; 
 and that no private property ought to be taken or applied 
 to public use without just compensation. 
 
 " That the right of trial by jury shall remain inviolate. 
 
 " That in all criminal prosecutions, the accused has 
 the right to be heard by himself and his counsel ; to de- 
 mand the nature and cause of accusations ; to have com- 
 pulsory process for witnesses in his favor ; to meet the 
 witnesses against him face to face ; and, in prosecutions 
 on presentment or indictment, to a speedy trial, by an 
 impartial jury of the vicinage ; that the accused cannot 
 be compelled to give evidence against himself; nor be 
 deprived of life, liberty, or property, but by the judgment 
 of his peers, or the law of the land. 
 
 " That no person, after having been once acquitted by 
 a jury, can, for the same offence be again put in jeopardy 
 of life or limb ; but if in any criminal prosecution the 
 jury be divided in opinion at the end of the term, the 
 court before which the trial shall be had, may, in its 
 discretion, discharge the jury, and commit or bail the 
 accused for trial at the next term of such court. 
 
 " That all persons shall be bailable by sufficient 
 sureties, except for capital offences when the proof is 
 evident or the presumption great. And the privilege of 
 the writ of habeas corpus cannot be suspended, unless 
 when in cases of rebellion or invasion the public safety 
 may require it. 
 
 " That excessive bail shall not be required, nor ex-
 
 224 OF LEGISLATIVE POWER [CHAP. VL 
 
 cessive fines imposed, nor cruel and unusual punishments 
 inflicted. 
 
 " That the people ought to be secure in their persons, 
 papers, houses, and effects, from unreasonable searches 
 and seizures ; and no warrant to search any place, or 
 to seize any person or thing, can issue without describ- 
 ing the place to be searched, or the person or thing to be 
 seized, as nearly as may be, nor without probable cause, 
 supported by oath or affirmation. 
 
 " That no person can, for an indictable offence, be pro- 
 ceeded against criminally, by information, except in cases 
 arising in the land or naval forces, or in the militia when 
 in actual service, in time of war or public danger, or 
 by leave of the court, for oppression or misdemeanor in 
 office. 
 
 " That treason against the state can consist only in 
 levying war against it, or in adhering to its enemies, 
 giving them aid and comfort : that no person can be con- 
 victed of treason unless on the testimony of two witnesses 
 to the same overt act, or on his own confession in open 
 court ; that no person can be attainted of treason or 
 felony by the general assembly ; that no conviction can 
 work corruption of blood, or forfeiture of estate ; that 
 the estates of such persons as may destroy their own 
 lives shall descend or vest as in cases of natural death ; 
 and when any person shall be killed by casualty, there 
 ought to be no forfeiture by reason thereof. 
 
 " That the free communication of thoughts and opin- 
 ions is one of the invaluable rights of man, and that 
 every person may freely speak, write, and print on any 
 subject, being responsible for the abuse of that liberty ; 
 that in all prosecutions for libels, the truth thereof may 
 be given in evidence, and the jury may determine the 
 law and the facts, under the direction of the court. 
 
 " That no ex jiost facto law, nor law impairing the ob- 
 ligation of contracts, or retrospective in its operations. 
 
 J
 
 chap, vi.] under state constitutions. 225 
 
 can be passed ; nor can the person of a debtor be im- 
 prisoned for debt after he shall have surrendered his 
 property for the benefit of his creditors in such manner 
 as may be prescribed by law. 
 
 " That no person who is religiously scrupulous of bear- 
 ing arms can be compelled to do so, but may be com- 
 pelled to pay an equivalent for military service, in such 
 manner as shall be prescribed by law ; and that no priest* 
 preacher of the gospel, or teacher of any religious per- 
 suasion or sect, regularly ordained as such, be subject to 
 militia duty, or compelled to bear arms. 
 
 " That all property, subject to taxation in this state, 
 shall be taxed in proportion to its value. 
 
 " That no title of nobility, hereditary emolument, pri- 
 vilege, or distinction, shall be granted; nor any office 
 created, the duration of which shall be longer than the 
 good behavior of the officer appointed to fill the same. 
 
 iL That emigration from this state cannot be pro- 
 hibited. 
 
 " That the military is, and in all cases, and at all 
 times, shall be in strict subordination to the civil power ; 
 that no soldier can, in time of peace, be quartered in 
 any house, without the consent of the owner, nor in 
 time of war but in such manner as may be prescribed 
 by law ; nor can any appropriation for the support of 
 any army be made for a longer period than two years. 1 ' 
 
 § 1 14. The legislative power of this state is vested in 
 a general assembly, consisting of a senate and house of 
 representatives. A majority of each house constitutes a 
 quorum to do business ; and have pow T er to determine 
 rules of proceedings, punish members, &c. Bills may 
 originate in either house and may be altered, amended, 
 or rejected by the other. Every bill must be read on 
 three different days in each house, unless two-thirds of 
 the house in which it shall be pending shall dispense 
 
 29
 
 226 OF LEGISLATIVE POWER [CHAP. VI. 
 
 with this rule. Every bill which passes both houses 
 must be signed by the speaker of the house of represen- 
 tatives and by the president of the senate, and before it 
 becomes a law must be presented to the governor for 
 approval. If he disapproves of it he must return it with 
 objections, and, in that event, notwithstanding such ob- 
 jections, it may, upon reconsideration, be passed by a 
 majority of all the members elected to each house. If 
 not returned with objections within ten days, Sundays 
 excepted, it becomes a law, unless its return is prevented 
 by an adjournment of the general assembly, in which 
 event it does not become a law. The same rule obtains 
 in reference to every resolution to which the concurrence 
 of both houses is necessary ; except on questions of ad- 
 journment. 
 
 The constitution also contains the following restric- 
 tions upon legislative power : The general assembly 
 shall not have power to pass laws for the emancipation 
 of slaves, without the consent of their owners, or with- 
 out paying them, before such emancipation, a full equi- 
 valent for such slaves, so emancipated ; and, to prevent 
 bona fide emigrants to this state, or actual settlers there- 
 in, from bringing from any of the United States, or from 
 any of their territories, such persons as may there be 
 deemed to be slaves, so long as any persons of the same 
 description are allowed to be held as slaves by the laws 
 of this state, (a) 
 
 The general assembly of this state shall never inter- 
 fere with the primary disposal of the soil of the United 
 States, nor with any regulation congress may find ne- 
 cessary for securing the title in such soil to the bona fide 
 purchasers. No tax shall be imposed on lands the pro- 
 perty of the United States, nor shall lands belonging to 
 persons residing out of the limits of this state ever be 
 
 (a) Art. 3, sec. 26.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 227 
 
 taxed higher than the lands belonging to persons residing 
 within this state. (a) 
 
 § 115. The constitution of the state <>f Michigan con- 
 tains the following declaration of rights : 
 
 " All political power is inherent in the people. 
 
 " Government is instituted for the protection, security, 
 and benefit of the people ; and they have the right at all 
 times to alter or reform the same, and to abolish one tbrm 
 of government and establish another, whenever the pub- 
 lic good requires it. 
 
 " No man or set of men are entitled to exclusive or 
 separate privileges. 
 
 "Every person has a right to worship Almighty God 
 according to the dictates of his own conscience ; and no 
 person can of right be compelled to attend, erect, or sup- 
 port, against his will, any place of religious worship, or 
 pay any tithes, taxes, or other rates for the support of 
 any minister of the gospel or teacher of religion. 
 
 "No money shall be drawn from the treasury for the 
 benefit of religious societies, or theological or religious 
 seminaries. 
 
 " The civil and political rights, privileges, and capaci- 
 ties of no individual shall be diminished or enlarged on 
 account of his opinions or belief concerning matters of 
 religion. 
 
 "Every person may freely speak, write, and publish 
 his sentiments on all subjects, being responsible for the 
 abuse of that right ; and no laws shall be passed to re- 
 strain or abridge the liberty of speech or of the press. 
 In all prosecutions or indictments for libels, the truth 
 may be given in evidence to the jury ; and if it shall ap- 
 pear to the jury, that the matter charged as libellous is 
 true, and was published with good motives and for justi- 
 
 (a) Art. 10, sec. 1.
 
 228 OF LEGISLATIVE POWER [CHAP. VI. 
 
 fiable ends, the party shall be acquitted ; and the jury 
 shall have the right to determine the law and the fact. 
 
 " The person, houses, papers, and possessions of every 
 individual shall be secure from unreasonable searches 
 and seizures ; and no warrant to search any place, or to 
 seize any person or things, shall issue without describing 
 them, nor without probable cause, supported by oath or 
 affirmation. 
 
 " The right of trial by jury shall remain inviolate. 
 
 " In all criminal prosecutions, the accused shall have 
 the right to a speedy and public trial by an impartial ju- 
 ry of the vicinage ; to be confronted with the witnesses 
 against him ; to have compulsory process for obtaining 
 witnesses in his favor ; to have the assistance of coun- 
 sel for his defence ; and in all civil cases, in which per- 
 sonal liberty may be involved, the trial by jury shall not 
 be refused. 
 
 " No person shall be held to answer for a criminal of- 
 fence, unless on the presentment or indictment of a 
 grand jury, except in cases of impeachment or in cases 
 cognizable by justices of the peace, or arising in the ar- 
 my or militia when in actual service in time of war or 
 public danger. 
 
 " No person for the same offence shall be twice put in 
 jeopardy of punishment ; all persons shall, before con- 
 viction, be bailable by sufficient sureties, except for capi- 
 tal offences, when the proof is evident or the presump- 
 tion great ; and the privilege of the writ of habeas cor- 
 pus shall not be suspended, unless when, in case of rebel- 
 lion or invasion the public safety may recpiire it. 
 
 11 Every person has a right to bear arms for the de- 
 fence of himself and the State. 
 
 u The military shall, in cases and at all times, be in 
 strict subordination to the civil power. 
 
 " No soldier shall, in time of peace, be quartered in
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 229 
 
 any house without the consent of the owner, nor in time 
 of war but in a manner prescribed by law. 
 
 " Treason against the State shall consist only in levy- 
 ing war against it, or in adhering to its 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. 
 
 " No bill of attainder, ex post facto law, or law im- 
 pairing the obligation of contracts, shall be passed. 
 
 " Excessive bail shall not be required ; excessive fines 
 shall not be imposed; and cruel and unjust punishments 
 shall not be inflicted. 
 
 " The property of no person shall be taken for public 
 use, without just compensation therefor. 
 
 " The people shall have the right freely to assemble 
 together, to consult for the common good, to instruct their 
 representatives, and to petition the legislature for redress 
 of grievances. 
 
 " All acts of the legislature, contrary to this or any 
 other article of this constitution, shall be void. 
 
 § 116. The legislative power of this state is vested in a 
 senate and house of representatives. The house to con- 
 sist of not less than 48, nor more than 100 members. 
 The senate to be equal to one third of the house. A 
 majority constitutes a quorum to do business. Any bill 
 may originate in either house of the legislature. 
 
 Every bill must be presented to the Governor, for ap- 
 proval. If not approved must be returned with objec- 
 tions, and upon reconsideration, may be passed by a vote 
 of two-thirds of each house. If not returned in ten 
 days, Sundays excepted, it becomes a law* unless the le- 
 gislature prevent its return by adjournment, in which 
 case it does not become a law. The same rule applies to 
 all concurrent resolutions, except on questions of adjourn- 
 ment.
 
 230 OF LEGISLATIVE POWER [CHAP. VI. 
 
 The constitution of this state also contains the fol- 
 lowing restrictions upon legislative power. 
 
 Neither slavery nor involuntary servitude shall ever 
 be introduced into this state, except for the punishment 
 of crimes of which the party shall have been duly con- 
 victed. The legislature shall pass no act of incorpora- 
 tion, unless with the assent of at least two-thirds of each 
 house. Divorces shall not be granted by the legislature, 
 but the legislature may by law authorize the higher 
 courts to grant them, under such restrictions as they 
 may deem expedient. No lottery shall be authorized 
 by this state, nor shall the sale of lottery tickets be al- 
 lowed. 
 
 § 117. The declaration of rights contained inthe con- 
 stitution of Arkansas provides : 
 
 "That the great and essential principles of liberty and 
 free government may be recognized and unalterably es- 
 tablished, we declare : 
 
 " That all freemen, when they form a social compact, 
 are equal, and have certain inherent and indefeasible 
 rights, among which are those of enjoying and defending 
 life and liberty ; of acquiring, possessing, and protecting 
 property and reputation ; and of pursuing their own 
 happiness. 
 
 " That all power is inherent in the people ; and all free 
 governments are founded on their authority, and institu- 
 ted for their peace, safety, and happiness. For the ad- 
 vancement of these ends, they have, at all times, an un- 
 qualified right to alter, reform, or abolish their govern- 
 ment, in such manner as they may think proper. 
 
 " That all men have a natural and indefeasible right 
 to worship Almighty God according to the dictates of 
 their own consciences ; and no man can of right be com- 
 pelled to attend, erect, or support any place of worship, 
 or to maintain any ministry, against his consent. That 
 no human authority can, in any case whatever, interfere 
 
 
 J
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 231 
 
 with the rights of conscience ; and that no preference 
 shall ever be given to any religious establishment or 
 mode of worship. 
 
 " That the civil rights, privileges, or capacities of any 
 citizen, shall in nowise be diminished or enlarged, on ac- 
 count of his religion. 
 
 " That all elections shall be free and equal. 
 
 " That the right of trial by jury shall remain invio- 
 late. 
 
 " That printing presses shall be free to every person ; 
 and no law shall ever be made to restrain the rights 
 thereof. The free communication of thoughts and opin- 
 ions is one of the invaluable rights of man, and every 
 citizen may freely speak, write, and print, on any sub- 
 ject, being responsible for the abuse of that liberty. 
 
 " In prosecutions for the publication of papers investi- 
 gating the official conduct of officers or men in public ca- 
 pacity, or where the matter published is proper for pub- 
 lic information, the truth thereof may be given in evi- 
 dence ; and in all indictments for libels the jury may have 
 the right to determine the law and the facts. 
 
 " That the people shall be secure in their persons, hou- 
 ses, papers, and possessions, from unreasonable searches 
 and seizures ; and that general warrants, whereby any 
 officer may be commanded to search suspected places, 
 without evidence of the fact committed, or to seize any 
 person or persons not named, whose offences are not par- 
 ticularly described, and supported by evidence, are dan- 
 gerous to liberty, and shall not be granted. 
 
 " That no freeman shall be taken or imprisoned, or 
 disseized of his freehold, liberties, or privileges, or out- 
 lawed, or exiled, or in any manner destroyed or deprived 
 of his life, liberty, or property, but by the judgment of 
 his peers, or the law of the land. 
 
 " That in all criminal prosecutions, the accused hath a
 
 232 OF LEGISLATIVE POWER [CHAP. VI. 
 
 right to be heard by himself and counsel, to demand the 
 nature and cause oi" the accusation against him, and to 
 have a copy thereof; to meet the witnesses face to face; 
 to have compulsory process for obtaining witnesses in 
 his favor; and in prosecutions by indictment or pre- 
 sentment, a speedy public trial by an impartial jury of 
 the county or district in which the crime shall have been 
 committed; and shall not be compelled to give evidence 
 against himself. 
 
 " That no person shall, for the same offence, be twice 
 put in jeopardy of life or limb. 
 
 " That all penalties shall be reasonable, and propor- 
 tioned to the nature of the offence. 
 
 " That no man shall be put to answer any criminal 
 charge, but by presentment, indictment, or impeach- 
 ment. 
 
 " That no conviction shall work corruption of blood, 
 or forfeiture of estate. 
 
 " That all prisoners shall be bailable by sufficient se- 
 curities, unless in capital offences, where the proof is 
 evident, or the presumption great : and the privilege of 
 the writ of habeas corpus shall not be suspended, un- 
 less, where in case of rebellion or invasion, the public 
 safety may require it. 
 
 " That excessive bail shall in no case be required, nor 
 excessive fines imposed. 
 
 " That no ex post facto law, nor any law impairing the 
 obligation of contracts, shall ever be made. 
 
 " That perpetuities and monopolies are contrary to 
 the genius of a republic, and shall not be allowed ; nor 
 shall any hereditary emoluments, privileges, or honors 
 ever be granted or conferred in this state. 
 
 " That the citizens have a right in a peaceable manner 
 to assemble together for their common good, to instruct 
 their representatives, and apply to those invested with 
 
 j
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 233 
 
 the power of government for redress of grievances, or 
 other proper purposes, by address, or remonstrance. 
 
 "That the free white men of this state shall have a 
 right to keep and to bear arms for their common de- 
 fence. 
 
 " That 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 manner prescribed by law. 
 
 11 The military shall be kept in strict subordination to 
 the civil power. 
 
 11 This enumeration of rights shall not be construed to 
 deny or disparage others retained by the people ; and, to 
 guard against any encroachments on the rights herein 
 retained, or any transgression of any of the higher pow- 
 ers herein delegated, we declare, that everything in this 
 article is excepted out of the general powers of govern- 
 ment, and shall forever remain inviolate ; and that all 
 laws contrary thereto, or to the other provisions herein 
 contained, shall be void." 
 
 § US. The legislative power of this state is vested in 
 a general assembly, which consists of a senate and house 
 of assembly. Two-thirds of each house constitutes a 
 quorum. Bills may originate in either house, and be 
 amended or rejected in the other. Every bill must be 
 read on three different days in each house, unless two- 
 thirds of the house in which it shall be pending shall 
 dispense with the rule. Every bill, having passed each 
 house, shall be signed by the president of the senate and 
 the speaker of the house. 
 
 The style of the laws is, " Be it enacted by the Gene- 
 ral Assembly of the State of Arkansas." 
 
 Every bill, when passed both houses, must be present- 
 ed to the governor for approval. If not approved it 
 must be returned with his objections ; when, upon re- 
 consideration, it may be passed by- a vote of a majority 
 
 30
 
 234 OF LEGISLATIVE POWER [CHAP. VI. 
 
 of the whole number elected to each house. If not re- 
 turned within three days it becomes a law, unless pre- 
 vented by an adjournment ; in which case it does not 
 become a law. The same rule obtains in reference to 
 concurrent orders and resolutions, except on questions 
 of adjournment. 
 
 The constitution of this state also contains the follow- 
 ing restrictions upon legislative power : 
 
 The general assembly shall have no power to pass 
 laws for the emancipation of slaves, without the consent 
 of the owners. They shall have no power to prevent 
 emigrants to this state from bringing with them such 
 persons as are deemed slaves by the laws of any one of 
 the United States. (a) 
 
 No lottery shall be authorized by this state, nor shall 
 the sale of lottery tickets be allowed.(^) 
 
 The person of a debtor, except where there is a 
 strong presumption of fraud, shall neither be imprisoned 
 nor continued in prison, after delivering up his estate for 
 the benefit of his creditors, in such manner as may be 
 prescribed by law.(c) 
 
 All revenue shall be raised by taxation, to be fixed by 
 law. All property subject to taxation shall be taxed 
 according to its value, and that value to be ascertained 
 in such manner as the general assembly shall direct, 
 making the same equal and uniform throughout the state. 
 No one species of property from which a tax may be 
 collected, shall be taxed higher, than another species of 
 property of equal value : Provided, the general assembly 
 shall have power to tax merchants, bankers, pedlers, 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, 
 
 (a) Art. 9, sec. 81. (b) Art. 9, sec. 6. 
 
 (c) Art. 9. sec. 11.
 
 CHAP. VI.] UNDER STATE CONSTITUTIONS. 23j 
 
 than required for the necessary expenses of government, 
 unless by a concurrence 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 expenses of inspection.
 
 23(5 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 CHAPTER VII. 
 
 OF LEGISLATIVE POWER IRRESPECTIVE OF CONSTITUTIONAL 
 RESTRICTIONS. 
 
 § 119. In the preceding chapter we have stated gene- 
 rally the provisions contained in the respective state con- 
 stitutions, relating to the power of the respective state 
 legislatures. In subsequent chapters we shall take occa- 
 sion to consider the restrictive clauses, and the construc- 
 tion which such restrictive clauses have received. In the 
 present chapter we shall proceed to a consideration of 
 the extent of legislative authority, irrespective of any 
 constitutional restrictions upon legislative power. 
 
 The law making power in almost all modern civilized 
 governments, is vested in the representatives of the 
 people, selected in the manner prescribed by the funda- 
 mental law or municipal regulations of each particular 
 government. ; whose powers are regulated either by an 
 express written compact, or limited only by what is 
 tacitly reserved to the people, on whose consent their 
 right of government is founded. In the legislative de- 
 partment of government in this respect is usually vested 
 the sovereign power of the state. By sovereignty is 
 commonly understood supremacy, supreme power, un- 
 limited and uncontrolled. The word sovereignty, how- 
 ever, is used in different senses, and is susceptible of 
 various applications. When applied to states and na- 
 tions in relation to each other, it means nothing more 
 than independence. A sovereign state in a political 
 sense, is a state or nation in the free and uncontrolled 
 possession of self-government. In this application of the 
 term there is no idea of supremacy but simply that of
 
 CHAP. VII.] OK LEGISLATIVE POWER. 237 
 
 national independence. But when applied to the internal 
 government of a state, it is made to signify a power some- 
 where vested, competent to regulate, control, and direct 
 the will of the whole and of every subordinate member of 
 the community. To this end it is by some supposed to 
 be absolute, unlimited, and incapable of being controlled. 
 As to the extent of sovereign power, in whatever de- 
 partment of the government it may be lodged, and whe- 
 ther it is to be considered as absolute and beyond control, 
 where there is no written fundamental law setting limits 
 to such power, tliere is great diversity of opinion among 
 ethical and judicial writers. Among the former, Paley 
 considers it a well settled principle, that the sovereign 
 power is necessarily lodged in some department where 
 it is absolute and uncontrolled. His reasonings on this 
 point are, " as a series of appeals must be finite, there 
 necessarily exists in every government, a power from 
 which the constitution has provided no appeal, and 
 which power for that reason may be termed absolute, 
 uncontrollable, arbitrary, despotic, and is alike in all 
 countries. The person in whom this power resides is 
 called the sovereign, or supreme power of the state, and 
 since to the same power, universally pertains the office 
 of establishing public laws ; it is called also the legisla- 
 tive power of the state.'(a) 
 
 § J 20. Burlamaqui contends, "That the first charac- 
 teristic of this sovereign power, and that from which all 
 the others flow, is its being a supreme and independent 
 power ; that is, a power that judges in the last resort of 
 whatever is susceptible of human direction, which re- 
 lates to the welfare and advantage of society, insomuch 
 that this power acknowledges no other superior on earth." 
 When he says the civil power is, of its own nature, 
 supreme and independent, he does not thereby mean 
 
 (a) Mor. Phi. 2 pt. 185.
 
 238 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 that it does not depend for its origin on the human will ; 
 all that he contends for is, when once this power is 
 established, it acknowledges no other upon earth supe- 
 rior or equal to it ; and consequently, whatever it or- 
 dains, in the plenitude of its power, cannot be reversed 
 by any other human will as superior to it. That in 
 every government there should be a supreme power, is 
 a point absolutely necessary, the very nature of the thing 
 requiring it, otherwise it would be impossible for it to 
 subsist. 
 
 For, since power cannot be multiplied to infinity, we 
 must of necessity stop at some degree of authority supe- 
 rior to all. Let the form of government be what it may, 
 there must always be a submission to a supreme deci- 
 sion, and it would be a contradiction to say, that there 
 is any power above him who holds the highest rank in 
 the same order of beings. (a) 
 
 § 121. Wooddesson, speaking of the extent of legis- 
 lative power, regards it as certain, that no human au- 
 thority can rightfully infringe, or abrogate the smallest 
 particle of natural or divine law. Yet he adds, a Brit- 
 ish judge of highly deserved estimation, seems in some 
 measure unguarded, in asserting from the bench, that an 
 act of parliament, made against natural equity, as to 
 make a man judge in his own case, is void of itself; for 
 jura natura sunt imfnutabilia, and they are leges legum. 
 Wooddesson admits that this principle is infallibly true, 
 but the application of it, and the conclusions dangerous ; 
 that we should distinguish between right and power ; 
 between moral fitness and political author it ij. We cannot 
 expect that all acts of legislators will be, or can be en- 
 tirely good, ethically perfect, but if their proceedings are 
 to be decided upon by their subjects, government and 
 
 (a) Prin. Pol. Law, tit. 2, ch. 7.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 23i> 
 
 subordination ceases. He thinks with Palcy, if the 
 magistrate should enjoin any thing by his authority, that 
 appears unlawful to the conscience of a private person, 
 that such private person is to abstain from the action, 
 that he judges unlawful, and to undergo the punishment 
 which it is not unlawful for him to bear. In like man- 
 ner, when the supreme power decrees any thing injurious 
 to one, or a few only of its subjects, it is their duty ac- 
 cording to the principles inculcated in the decalogue of 
 Plato, entitled Crito, to acquiesce, and not to disturb the 
 peace of society, nor attempt to subvert the constitution 
 of their country, or diminish the veneration for its laws, 
 which would be bringing a greater evil upon the whole 
 community. (a) 
 
 § 122. The judicious Hooker insists, with that quaint- 
 ness of thought which characterizes all his writings, that 
 law politic, ordained for external order and regimen 
 among men, unless they provide so to frame their out- 
 ward actions that they be no hindrance to the common 
 good for which societies are instituted, they are not per- 
 fect. That human laws are measures in respect of men ; 
 whose actions they must direct ; howbeit, such measures 
 they are, as have also their higher rules to be measured 
 by ; which rules are two : the law of God, and the law of 
 nature. So that human laws must be made according to 
 the general laws of nature, and without contradiction to 
 any positive law of scripture, otherwise they are illy 
 made.(b) 
 
 § 123. The opinions of almost all the ancient writers 
 on political sovereignty, based the doctrine of the ab- 
 solute and sacred character of sovereignty upon the 
 false assumption that princes bear rule by divine right, 
 and not by virtue of the tacit or expressed consent of the 
 
 (a) 1 Wodd. L. 3, p. 41. 
 
 (b) Hook. Eccl. Pol. b. 1, sec. 10. B. 3, sec. 9,
 
 240 OF LEGISLATIVE POWER. [c'HAP. VII. 
 
 governed. Upon Ibis assumption, that God, 03- his imme- 
 diate act, conferred the sovereignty upon princes, has ori- 
 ginated much of the fallacious reasoning of ethical and 
 political writers, who have construed the permission of 
 Deity that princes should bear rule, into an absolutely 
 delegated authority as the vicegerents of Deity on earth. 
 Grotius and Puffendorf first called in question the doc- 
 trine of sovereignty by divine right, and derived it from 
 civil compact ; although the latter when speaking of the 
 civil compact, calls it a covenant, which afforded a full 
 and easy title, by which it appeared that sovereignty 
 was not established by violence, but by voluntary con- 
 sent and subjection of the respective members, from 
 which cause it resulted ; still, he did not wholly aban- 
 don the doctrine of divine right. For he says — " Yet, 
 to secure to the supreme command an especial efficacy, 
 and sacred respect, there is need of another additional 
 principle besides the submission of the subject; and, 
 therefore, he who affirms sovereignty to result immedi- 
 ately from compact, dolh not in the least detract from 
 the sacred character of civil government, or maintain 
 that princes bear rule by human right, and not by di- 
 vine." Indeed, he argues in favor of this divine right, 
 that the establishment of civil government is necessary 
 for the peace and safety of men ; that the law of nature 
 dictated such establishment. That, in pursuance of 
 those laws, which could not otherwise among great mul- 
 titudes be carried into effect, civil government had been 
 founded. That God, who imposed the law of nature on 
 the human race, thereby commanded the establishment 
 of civil societies, so far as they serve as instruments and 
 means of improving and enforcing these laws." Grotius 
 too, who was a citizen of the United Provinces of the 
 Netherlands, and who lived in the enjoyment of a re- 
 publican government, although he considered all govern- 
 ments in their formation as human institutions, he also
 
 CHAP. VII.] OP LEGISLATIVE POWER. 241 
 
 on the other hand, maintained the opinion that the di- 
 vine right of sovereignty, and the sacred character of 
 government, were necessary to give it efficacy. 
 
 § 124. Domat seems not to have questioned the doc- 
 trine of sovereignty by divine right, although he builds 
 upon this foundation a very strong argument in favor of 
 the doctrine, that there are of necessity certain limits 
 within which the sovereign power should be exercised. 
 In treating of government he says : " Although every 
 state hath its peculiar manner of government, and there 
 be in all states, some laws or usages, which distinguish 
 the names, the number, and the power of those who are 
 placed in the highest stations, yet there is this common 
 to them all, that the general order is maintained in them 
 by a supreme and sovereign power, whether it resides in 
 one or many persons,(a) since the rights of sovereigns 
 are derived to them by a consequence of the power 
 which they hold of God, they can have no other rights 
 but such as have in them nothing contrary to the use 
 which God requires them to make of the said powers ; 
 and it is for this reason that he enjoins them to study 
 his law, that they may learn both their power and their 
 duty, of which the spirit of this divine law ought to be 
 the rule. (6) He then defines the nature and objects of 
 the exercise of this sovereignty : " That this sovereign 
 power or authority, is the power of administering the 
 government with the use of the authority and forces in 
 which this power consists, by employing it for the sup- 
 port of justice, and the maintaining the public tranquility 
 in the dominions committed to the sovereign care." Ac- 
 cording to this doctrine of Domat, the sovereign is to 
 exercise the sovereign power with respect to the end to 
 
 (a) Domat's Pub. Law, b. 1, tit. I. 
 
 (b) Ibid. b. 1, sec. 2. 
 
 31
 
 242 OF LEGISLATIVE POWER. [CHAP. V1L 
 
 be obtained, and that end is, the protection and ]>rescrva- 
 tion of the lives, rights and "property of the citizens, and 
 not to be exercised for the destruction of either : that is, 
 the sovereign is to be a minister of God for good, and 
 not for evil. The divine law which high authority pro- 
 nounces wise, just and good, is to be the rule of his 
 conduct, and prescribes the circle within which human 
 sovereignty must move ; that law being the embodiment 
 of all perfection and justice, its spirit, as well as letter, 
 denies the right of man to do an unjust act, or to infringe 
 upon natural rights ; sovereignty when exercised within 
 these limits, cannot deserve the names of arbitrary, abso- 
 lute or despotic, nor can it be justly considered as such. 
 
 If sovereigns only claimed to exercise their sovereign 
 power in accordance with the principles of the divine 
 law, instead of by ■• divine right," there would be less 
 disposition to controvert the right, and less reason for 
 complaint for the manner in which it is exercised. 
 
 § 125. It has been justly said, that both Puffendorf 
 and Grotius being deeply imbued with the metaphysics 
 of the schools, considered sovereignty as an entity, not a 
 physical but a moral entity, capable of supporting attri- 
 butes, and of subsisting in any government ; but what- 
 ever the form of government, it was to be considered a 
 unity. (a) Although the doctrine of sovereignty by di- 
 vine right, may now be ranked among theories that once 
 were ; although none of the princes of modern Europe 
 would now venture to rest their authority on this ground 
 — and although the doctrine of abstract entities and their 
 unities, has long since fallen to the ground and became 
 obsolete ; yet many of the terms which had their origin 
 from these sources, are still in use. These terms have 
 not unfrequently, for want of proper definitions, led to 
 
 (a) Chipman, 140. 

 
 CHAP. VII.] OF LEGISLATIVE POWER. 243 
 
 erroneous conclusions ; and, upon an erroneous applica- 
 tion of them, it is more than probable that many, if not 
 most of English writers have been under their influence, 
 led to assign to, and vest in the Parliament of England 
 the attributes of omnipotence in the scale of political ex- 
 istence. It has been supposed by most of them, that it 
 is a settled principle of the law of England, that an act 
 of parliament, delivered in clear and intelligible terms, 
 cannot be questioned, or its authority controlled by any 
 power on earth. 
 
 Sir William Blackstone says : " It is the exercise of 
 the highest authority that the kingdom acknowledges 
 upon earth." The doctrine has been laid down in sev- 
 eral English authorities, that if a statute be against com- 
 mon right or reason, or repugnant, or impossible to be 
 performed, the common law shall control it, and pro- 
 nounce it void.(a) Although it is said that judges will 
 not hold a statute void unless it be clearly contrary to 
 natural equity. Chancellor Kent, however, says — 
 " Where it is said that a statute contrary to natural 
 equity, or reason, or repugnant, or impossible to be per- 
 formed, the cases are understood to mean, that the court 
 is to give them a reasonable construction. They will 
 not readily presume, out of respect and duty to the law 
 giver, that every unjust or absurd consequence was 
 within the contemplation of the law ; but if it should 
 happen to be too palpable to meet with but one con- 
 struction, there is no doubt in the English law of the 
 binding efficacy of the statute. "(6) In this view he is 
 sustained by the weight of authority in England. 
 
 § 126. Christian maintains the doctrine, that if an act 
 of parliament is clearly and unequivocally expressed, 
 
 (a) 8 Co. 118 ; 2 Inst. 527; Finch, 74; Hob. 87; 10 Mod. 115; II Co, 
 63 ; Bacon Ab. Stat. A. 
 
 (b) 1 Com. 408.
 
 244 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 that it will be neither void in its direct or collateral con- 
 sequences, however absurd or unreasonable they may 
 appear. 
 
 If the expression will admit of a doubt, it will not 
 then be presumed that the construction can be agreeable 
 to the intention of the legislature, the consequences of 
 which are unreasonable, but when the signification is 
 manifest, no authority less than the parliament can re- 
 strain its operation." He admits, however, the omnipo- 
 tence of parliament signifies nothing more than the 
 supreme power of the state, or the power of action un- 
 controlled by any superior. In this sense, the king in 
 the exercise of his prerogative, and the house of lords 
 in the interpretation of laws, are also equally omnipo- 
 tent ; that is, free from the control of any superior pro- 
 vided by the constitution. (a) 
 
 Chipman, an American author, is of the opinion that 
 neither the parliament, the house of lords, nor the king, 
 are possessed of sovereign power ; nor is it any where 
 to be found but in a state of absolute despotism, in which 
 all the powers of government are concentrated in a sole 
 organ ; and hence it merits all the epithets so fondly 
 lavished upon it of — absolute, uncontrollable, arbitrarij, 
 despotic.^) 
 
 § 127. The power and jurisdiction of parliament, says 
 Sir Edward Coke, is so transcendental and absolute that 
 it cannot be controlled or confined, either for causes or 
 persons, within any bounds. It has sovereign and un- 
 controllable authority in the making, confirming, en- 
 larging, restricting, abrogating, repealing, renewing, and 
 expounding all laws concerning matters of all possible 
 denominations, ecclesiastical or temporal, civil, military, 
 maritime, or criminal ; this being the place where that 
 
 (a) 1 Com. 161. (b) Chip. 142.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 215 
 
 absolute, despotic power, which must in all countries 
 reside somewhere, is entrusted by the constitution of 
 these kingdoms ; all mischiefs and grievances, operations 
 and remedies, that transcend the ordinary course of the 
 laws, are within the reach of this extraordinary tribunal, 
 so that what the parliament doth, no authority on earth 
 can undo. "(a) 
 
 Another English author maintains the doctrine that 
 the statutes of the realm, unless they are repugnant to 
 the laws of God, all subjects are bound to obey. Crea- 
 ted by an exercise of the highest authority which the 
 constitution of the country acknowledges, they cannot 
 be dispensed with, altered, amended, suspended, or re- 
 pealed, but by the same authority of parliament by 
 which they were made. For it is a maxim of the law, 
 convenie?is naturali equitate unum quodcwnque dissolvi 
 eo ligamine quo ligatum est.(b) 
 
 § 128. Other writers maintain on the other hand, that 
 there are boundaries set to the exercise even of the su- 
 preme sovereign power of the state ; that it is limited in 
 its exercise by the great and fundamental principles of 
 the social compact, which is founded in consent, ex- 
 pressed or implied ; that it shall be called into exercise 
 only for the attainment of the great ends which that 
 compact was designed to secure ; and hence it cannot 
 be converted into such an unlimited power as to defeat 
 the end which mankind had in view when they entered 
 into the social compact. Among this number are Vattel, 
 and the celebrated John Locke. The former considers 
 this question incidentally, in treating upon the extent of 
 the power and sovereign authority of the prince. He 
 maintains, that this power is derived from the nation, 
 and is exactly equal to what they have entrusted him 
 
 (a) 1 Bl. Com. 160. 
 
 (b) Steph. Elec. Law, vol. i, p. 11.
 
 * 
 
 246 OP LEGISLATIVE POWER. [CHAP. VII. 
 
 with. If the nation have simply and strictly invested 
 him with the sovereignty without limitation or division, 
 he is supposed to be invested with all the prerogatives 
 without which the sovereign command or authority 
 could not be exerted in the manner most conducive to 
 the public good. But that the sovereign power is limi- 
 ted and regulated by the fundamental law of the state, 
 which show the extent and bounds of this power and 
 the manner in which it ought to be exercised. The 
 fundamental law being the plan by which the nation re- 
 solved to endeavor to obtain happiness, he is entrusted 
 with the execution of it, and must religiously follow this 
 plan, and regard it as an inviolable and sacred rule. The 
 moment he departs from it, his commands are unjust, 
 and become a criminal abuse of power from which no 
 obligation to obedience can arise. (a) 
 
 In answer to the arguments of those who maintain, 
 that if the prince is invested with the supreme command 
 in a full and absolute manner, nobody has a right to 
 resist him ; that then the nation have no recourse left, 
 but to suffer and obey with patience ; that an absolute 
 sovereign possesses completely, all the political authority 
 of the society, no one can oppose him ; if he abuses it, 
 he does ill, and wounds his own conscience ; yet, that 
 his commands are not the less obligatory, as being founded 
 in a lawful right to command ; the nation by giving a 
 lawful right to command, had reserved nothing to itself 
 but to submit to his discretion : he replies, " Let us re- 
 member the essential ends of civil society. Is it not to 
 labour in concert for the common happiness of all ? Is 
 it not with this view that every citizen strips himself of 
 his rights, and resigns his liberty 1 Was it in the power 
 of the society to make such use of its authority as to 
 
 (c) Vattel, b. 4, sec. 45, 46. 

 
 CHAP. VII.] OF LEGISLATIVE POWER. 247 
 
 deliver up itself and all its members without relief to the 
 discretion of a cruel tyrant? No, certainly not; since it 
 had no right itself, if it was so disposed, to oppress a 
 part of the citizens. When it therefore conferred the 
 supreme and absolute government without an express 
 reserve, it was necessarily with the tacit reserve that it 
 should be used for the safety of the people, and not for 
 their ruin. "(a) 
 
 § 129. Locke contends that the great end of man's 
 entering into society being the enjoyment of property in 
 peace and safety, and the great instrument and means of 
 that, being the laws established in that society ; the first 
 and fundamental positive law is the establishing of the 
 legislative power ; the first and fundamental natural 
 law, which is to govern the legislature itself, is thep-e- 
 servatioh of the society, and so far as consistent with the 
 public good, every person in it. While, on the one 
 hand, he concedes the doctrine that the legislative power 
 is not only the supreme power of the commonwealth, 
 but sacred and unalterable in the hands where the com- 
 munity have placed it, the edict of any, in what form 
 soever conceived, or by what power soever backed, can 
 not have the force and obligation of a law without the 
 sanction of the legislature which the public has chosen 
 and appointed, and in whom the legislative power is 
 invested by the consent of those for whom they are to 
 legislate; on the other hand, he contends that though 
 the legislative be the supreme power, it cannot possibly 
 be absolutely arbitrary over the lives and fortunes of the 
 people. For, it being but the joint power of every mem- 
 ber of the society, given up to that person or assembly 
 which is the legislative, it can be no more than those 
 persons had in a state of nature before they entered into 
 
 (a) Vattel, b. 1, ch. 4, sec. 51.
 
 248 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 society and gave up their natural rights to the commu- 
 nity; for nobody can transfer to another more power 
 than he has in himself, and nobody has an absolute, ar- 
 bitrary power over himself, or over any other, to destroy 
 his own life, or to take away the life or property of 
 another. A man cannot subject himself to the arbitrary 
 power of another, and having in the state of nature no 
 arbitrary power over the life, liberty, or possession of 
 another ; but only so much as the law of nature gave 
 him for the preservation of himself and the rest of man- 
 kind. This is all that he doth or can give to the com- 
 monwealth, and by it to the legislative power ; so that 
 the legislature can have no more than this. Their 
 power, in the utmost bounds of it, is limited to the pub- 
 lic good of the society. It is a power that hath no other 
 end but preservation, and therefore can never have right 
 to destroy, enslave, or designedly to impoverish the sub- 
 ject. Thus, the law of nature stands as an eternal rule 
 to all men, binding upon legislatures as well as others. 
 The fundamental law of nature being the preservation of 
 mankind, no human sanction can be valid or good against 
 it. That the legislative or supreme authority cannot 
 assume to itself a power to rule by temporary arbitrary 
 decrees ; but is bound to dispense justice, and to decide 
 the rights of the subject, by promulgated standing laws, 
 and known authorized judges. To avoid the inconve- 
 niences which disorder men's property in a state of 
 nature, they unite in societies. The object of this union 
 is, that they may have the united strength of the whole 
 to secure and defend their property, and may have standing 
 rules to bound it, by which every one may know what 
 is his. It is to this end men give up their natural 
 powers to society which puts the legislative powers into 
 such hands as they think fit, with this trust, that they 
 shall be governed by declared laws. Absolute arbitrary 
 powers, or governing without settled standing laws, can
 
 CHAP. VII.] OF LEGISLATIVE POWER. 249 
 
 neither of them, consist with the ends of society and 
 government; and men would not quit the freedom of a 
 state of nature, and tie themselves up under a govern- 
 ment, were it not to preserve their lives, liberty, and for- 
 tunes, bv stated rules of right and property. It cannot 
 be supposed that they should intend, had they the power 
 to do so, to give any one or more an absolute, arbitrary 
 power over their persons and estates ! For this was to 
 put themselves in a worse condition than a state of na- 
 ture, wherein they had a liberty to defend their rights 
 against the injuries of others, and were upon equal 
 terms. 
 
 Whereas, by supposing they have given up them- 
 selves to the absolute, arbitrary power of the legislator, 
 they have disarmed themselves, and armed him to make 
 a prey of them when he pleases. That the supreme 
 power cannot take from any man his property without 
 his own consent. For the preservation of property 
 being the end of government, and that for which men 
 enter into society, it necessarily supposes and requires, 
 that the people should have property and be protected 
 in it, without which they must be supposed to lose, by 
 entering into society, the very thing which was the end 
 and design of the social compact to secure, and for the 
 attainment of which they entered into it. If this posi- 
 *j tion be true, it was fallacious to think that the supreme 
 or legislative power of any commonwealth can do what 
 it will, irrespective of the principles of natural justice, or 
 dispose of the estates of the subjects arbitrarily, or divest 
 vested rights at pleasure. (a) 
 
 § 130. Robert Hall, speaking of the extent of the 
 rights which mankind surrender up to government upon 
 entering into civil society, says : 7 1*+* *£+&& ♦# 
 
 - - ;c s * <u+*£$ ±* v^vu^c -» & *> ^ ^l <* ^ 
 
 (a) Locke's Works, vol. v., ch. 11, p. 416. 
 
 '•«
 
 250 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 " That there are natural rights, or in other words a 
 certain liberty which men may exercise, independent of 
 permission from society, can scarcely be doubted by 
 those who comprehend the meaning of the terms. Every 
 man must have a natural right to use his limbs in what 
 manner he pleases that is not injurious to another. In 
 like manner he must have a right to worship God after 
 the mode he thinks acceptable; or in other words, he 
 ought not to be compelled to consult any thing but his 
 own conscience. These are a specimen of those rights 
 which may properly be termed natural ; for, as philoso- 
 phers speak of the primary qualities of matter, they can- 
 not be increased or diminished. We cannot conceive 
 the right of using our limbs to be created by society, or 
 to be rendered more complete by any human agreement 
 or compact. 
 
 " But there still remains a question, whether this natu- 
 ral liberty must not be considered as entirely relin- 
 quished when we become members of societyj It is 
 pretended, that the moment we quit a state of nature, as 
 we have given up the control of our actions in return 
 for the superior advantages of law and government, we 
 can never appeal again to any original principles, but 
 must rest content with the advantages that are secured 
 by the terms of the society. These are the views which 
 distinguish the political writings of Mr. Burke, an author 
 whose splendid and unequalled powers have given a 
 vogue and fashion to certain tenets which from any other 
 pen would have appeared abject and contemptible. In 
 the field of reason the encounter would not be difficult, 
 but who can withstand the fascination and magic of his 
 eloquence 1 The excursions of his genius are immense. 
 His imperial fancy has laid all nature under tribute, and 
 has collected riches from every scene of the creation and 
 every walk of art. His eulogium on the Queen of 
 France is a masterpiece of pathetic composition ; so
 
 CHAP. VII.] OF LEGISLATIVE POWER. 251 
 
 elect are its images, so fraught with tenderness, and so 
 rich with colours " dipt in heaven," that he who can 
 read it without rapture may have merit as a reas nier, 
 but must resign all pretensions to taste and sensibility. 
 His imagination is, in trutii, only too prolific ; a world of 
 itself, where he dwells in the midst of chimerical alarms, 
 is the dupe of his own enchantments, and starts, like 
 Prospero, at the spectres of his own creation. 
 
 " His intellectual views in general, however, are wide 
 and variegated, rather than distinct; and the light he 
 has let in on the British constitution in particular, re- 
 sembles the coloured effulgence of a painted medium, a 
 kind of mimic twilight, solemn and soothing to the senses, 
 but better fitted for ornament than use. 
 
 '(As government implies restraint, it is plain a portion <i^Uv ^ 
 of our freedom is given up by entering into it); the only 
 question can then be, how far this resignation extends, 
 — whether to a part, or to the whole ? This point may, uSM*"* 
 perhaps, be determined by the following reflections : 
 
 " The advantages that civil power can procure to a ,. 
 community are partial. A small part, in comparison of 
 the condition of man, can fall within its influence. Al- 
 lowing it to be a rational institution, it must have that 
 end in view which a reasonable man would propose by 
 appointing it ; nor can it imply any greater sacrifice than 
 is strictly necessary to its attainment. But on what ac- 
 count is it requisite to unite in political society '? Plainly 
 to guard against the injury of others ; for, were there no 
 injustice among mankind, no protection would be 
 needed ; no public force, necessary ; every man might be 
 left without restraint or control. The attainment of all 
 possible good, then, is not the purpose of laws, but to 
 secure us from external injury and violence; and as the 
 means must be proportioned to the end,, it is absurd to 
 suppose that, by submitting to civil power, with a view 
 to some particular benefits, we should be understood to
 
 252 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 hold all our advantages dependent upon that authority. 
 Civil restraints imply nothing more than a surrender of 
 our liberty in some points, in order to maintain it undis- 
 turbed in others of more importance. Thus we give up 
 the liberty by repelling force by force, in return for a 
 more equal administration of justice than private resent- 
 ment would permit. But there are some rights which 
 cannot with any propriety be yielded up to human au- 
 thority, because they are perfectly consistent with every 
 benefit its appointment can procure. The free use of 
 our faculties in distinguishing truth from falsehood, the 
 exertion of corporeal powers without injury to others, 
 the choice of a religion and worship, are branches of 
 natural freedom which no government can justly alter or 
 diminish, because their restraint cannot conduce to that 
 security which is its proper object. Government, like 
 every other contrivance, lias a specific end ; it implies the 
 resignation of just as much liberty as is needful to attain 
 it ; whatever is demanded more is superfluous, a species 
 of tyranny which ought to be corrected by withdrawing 
 it. The relation of master and servant, of pupil and in- 
 structor, of the respective members of a family to their 
 head, all include some restraint, some abridgment of 
 natural liberty. But in these cases, it is not pretended 
 that the surrender is total ; and why should this be sup- 
 posed to take place in political society, which is one of 
 the relations of human life ? this would be to render the 
 foundation infinitely broader than the superstructure. 
 
 "From the notion that political society precludes 
 an appeal to natural rights, the greatest absurdities 
 must ensue. If that idea be just, it is improper to 
 say of any administration that it is despotic or oppres- 
 sive, unless it has receded from its first form and model. 
 Civil power can never exceed its limits, until it deviates 
 into a new track. For, if every portion of natural free- 
 dom be given up by yielding to civil authority, we can
 
 CHAP. VII.] OF LEGISLATIVE POWER. 253 
 
 never claim any other liberties than those precise ones 
 which were ascertained in its first formation. The vas- 
 sals of despotism may complain, perhaps, of the hard- 
 ships which they suffer, but, unless it appear they are of 
 a new kind, no injury is done them, for no right is viola- 
 ted. Rights are either natural or artificial ; the first 
 cannot be pleaded after they are relinquished, and the 
 second cannot be impaired but by a departure from 
 ancient precedents. If a man should be unfortunate 
 eDough to live under the dominion of a prince, who, like 
 the monarchs of Persia, could murder his subjects at 
 will, he may be unhappy, but cannot complain ; for, on 
 Mr. Hey's theory, he never had any rights but what 
 were created by society, and on Mr. Burke's he has for 
 ever relinquished them. The claims of nature being set 
 aside, and the constitution of the government despotic 
 from the beginning, his misery involves no injustice, and 
 admits of no remedy. It requires little discernment to 
 see that this theory rivets the chains of despotism, and 
 shuts out from the political world the smallest glimpse 
 of emancipation or improvement. Its language is, he 
 that is a slave, let him be a slave still. 
 
 " It is incumbent on Mr. Burke and his followers 
 to ascertain the lime when natural rights are relinquished. 
 Mr. Hey is content with tracing their existence to soci- 
 ety, while Mr. Burke, the more moderate of the two, 
 admitting their foundation in nature, only contends that 
 regular government absorbs and swallows them up, be- 
 stowing artificial advantages in exchange. But at what 
 period, it may be inquired, shall we date this wonderful 
 revolution in the social condition of man ? If we say it 
 /was as early as the first dawn of society, natural liberty 
 / had never any existence at all, since there are no traces "", , 
 % even in tradition, of a period when men were utterly un- 
 connected with each other. If we say this complete t - 
 surrender took place with the first rudiments of law and
 
 254 OP LEGISLATIVE POWER. [CHAP. VII. 
 
 government in every particular community on what prin- 
 ciple were subsequent improvements introduced ) Mr. 
 Burke is fond of resting our liberties on Magna Cbarta 
 and the Bill of Rights ; but he ought to remember that 
 as they do not carry us to the commencement of our 
 government, which was established ages before, our 
 forefathers had long ago resigned their natural liberty. 
 If those famous stipulations only recognized such privi- 
 leges as were in force before, they have no claim to be 
 considered as the foundations of our constitution ; but if 
 they formed an cera in the annals of freedom, they must 
 have been erected on the basis of those natural rights 
 which Mr. Burke ridicules and explodes. When our 
 ancestors made those demands, it is evident they did not 
 suppose an appeal to the rights of nature precluded. 
 Every step a civilized nation can take towards a more 
 equal administration, is either an assertion of its natural 
 liberty, or a criminal encroachment on just authority. 
 The influence of government on the stock of natural 
 rights may be compared to that of a manufactory on the 
 rude produce ; it adds nothing to its quantity, but only 
 qualifies and fits it for use. Political arrangement is 
 more or less perfect in proportion as it enables us to 
 exert our natural liberty to the greatest advantage ; if it 
 is diverted to any other purpose, it is made the instru- 
 ment of gratifying the passions of a few, or imposes 
 greater restraint than its object prescribes ; it degenerates 
 into tyranny and oppression. 
 
 " The confused mixture of liberty and oppression, 
 which ran through the feudal system prevented the 
 theory of government from being closely inspected : par- 
 ticular rights were secured ; but the relation of the peo- 
 ple to their rulers was never explained on its just prin- 
 ciples, till the transfer of superstition to civil power 
 shocked the common sense of mankind, and awakened 
 their inquiries. They drew aside the veil, and where
 
 CHAP. VII.] OF LEGISLATIVE POWER. 255 
 
 they were taught to expect a mystery they discerned a 
 fraud. There is, however, no room to apprehend any 
 evil from political investigation, that will not be greatly 
 overbalanced by its advantages. For, besides that truth 
 is always beneficial, tame submission to usurped power 
 has hitherto been the malady of human nature. The 
 dispersed situation of mankind, their indolence and inat- 
 tention, and the opposition of their passions and inte- 
 rests, are circumstances which render it extremely 
 difficult for them to combine in resisting tyranny with 
 success. In the field of government, as in that of the 
 world, the tares of despotism were sowji ichUe men slept 1 
 The necessity of regular government, under some form or 
 other, is so pressing, that the evil of anarchy is of short 
 duration. Rapid, violent, destructive in its course, it is 
 an inundation which, fed by no constant spring, soon 
 dries up and disappears. The misfortune on these oc- 
 casions is, that the people for want of understanding the 
 principles of liberty, seldom reach the true source of 
 their misery; but, after committing a thousand barbari- 
 ties, only change their masters, when they should change 
 their system." 
 
 § 131. It is undoubtedly true, that the Parliament of 
 England, notwithstanding the doctrine of its omnipo- 
 tence, certainly in modern times has been greatly re- 
 strained by the force of public opinion from interfering 
 with or divesting vested rights. It has not, in fact, dis- 
 solved in an arbitrary manner any corporation, since the 
 instance of the suppression of the order of Knight Tem- 
 plars in the time of Edward II., which was in the early 
 part of the 14th century ; and of the religious houses in 
 the reign of Henry VIII. ; so that the doctrine that the 
 power of the parliament is omnipotent, may at this time 
 
 be considered as resting mainly on theory. {a) When 
 
 •_ 
 
 (a) 9 Gill. & John. 409.
 
 256 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 in 1783, a bill was introduced into parliament by Mr. 
 Fox, for the purpose of* annulling the charter of the East 
 India Company, it was successfully resisted by Mr. Pitt, 
 Lord Thurlow and others, as being subversive of the 
 law and constitution of the country ; mainly on the 
 ground that the act was a tyrannical one, which broke 
 through every rule of British justice; being an attack 
 upon a most solemn charter, affirmed and confirmed by 
 the sacred faith of parliament. It broke through all 
 those ties which bind man to man ; was fraught with the 
 most pointed mischief against national honor and legis- 
 lative integrity, and its passage would take away all 
 security to individuals that private property would not 
 be destroyed by legislative tyranny. 
 
 Mr. Burke, although he advocated the passage of the 
 bill, conceded the rights of man, that is to say, the natu- 
 ral rights of mankind, were indeed sacred things, and if 
 any public measure was proved mischievously to affect 
 them, the objection ought to be fatal to that measure, 
 even if no charter at all could be set up against them. 
 If these natural rights were further affirmed and declared 
 by express covenant; if they are clearly denned and se- 
 cured against chicane, against power and authority, by 
 written instruments and positive engagements, they were 
 in still better condition ; they partook not only of the 
 sanctity of the object so secured, but of that solemn pub- 
 lic faith itself which secures an object of such impor- 
 tance. Such a formal recognition by the sovereign 
 power of an original right in the subject, could never be 
 subverted but by rooting up the radical principles of go- 
 vernment, and even of society itself. He conceded that 
 the great charters of King John and Henry III., were in- 
 stances of this nature ; things secured by these instru- 
 ments might be called the chartered rights of men. He 
 however drew this distinction between magna charta 
 and the charter of this company; the former was to
 
 CHAP. VII.] OF LEGISLATIVE POWER. 257 
 
 restrain power and to destroy monopoly; the latter to 
 establish monopoly and create power. That political power 
 and commercial monopoly were not the rights of men ; it 
 was fallacious to call them such ; for their effect was to 
 suspend the natural rights of men. 
 
 He attempted to obviate the objection by drawing a 
 distinction between a grant of mere political power, to be 
 exercised for public purposes, which were wholly artificial 
 and in derogation of the natural equality of mankind, 
 and the natural inherent right of the subject which, from 
 its nature, was sacred and inviolable, because they were 
 self-derived rights, vested in men for the benefit of them- 
 selves, whereas political power was not self-derived, nor 
 were they granted for the benefit of the holder, but were 
 to be exercised for the benefit of the body politic, and 
 were, in the strictest sense, a trust to be rendered ac- 
 countable to the government, and even totally to cease 
 when substantially varied from the purposes for which 
 alone they could have ever had a lawful existence. (a) 
 
 § 132. The necessity for a resort to this specious ar- 
 gument by this master spirit of his age, to obviate the 
 objections to this bill, shows, that parliament itself dare 
 not now exercise its sovereignty irrespective of the fun- 
 damental principles of natural justice, or in contravention 
 of the great ends of the civil compact. Although \\\e J ^ c *"*' 
 check of public opinion arising from the nature of the * 
 English constitution is, at most, a mere moral one, yet 
 it is one which acts, not only on the legislative, but also *"* A 
 upon every department of the goverment with a force * 
 which is at all times felt, and not unfrequently, as in/.. 
 this instance, becomes an irresistible one. Who can fail, 
 from this fact, to discover the potency of public opinion, 
 the importance of having that opinion deeply embued 
 
 (a) Pari. Hist. vol. xxxiii. 315. 
 
 33
 
 
 258 
 
 OP LEGISLATIVE POWER. 
 
 [CHAP. VII. 
 
 ^ 
 
 m 
 
 with religious and moral truth?;, with a prevailing sense 
 of natural justice. For there is a power in moral 
 principle which, is more energetic and influential in re- 
 straining legislative tyranny, than all the restraints which 
 are derived from restrictions contained in a written con- 
 stitution. For without moral principle going pari passu 
 with such written restrictions, or even in advance of 
 them, such restrictions would too often prove a mere 
 cobweb barrier against legislative aggression upon pri- 
 vate rights and public property. Indeed it is very much 
 doubted whether any written restrictions contained in 
 the fundamental law of a nation, however imperative in 
 their nature or comprehensive and explicit in their terms, 
 or however sacred might be the rights which it was 
 their design to protect, would have any potency or afford 
 any protection against legislative usurpation under a 
 government where the influence of moral principles were 
 unfelt, or amid a population whose minds and hearts 
 heeded not the dictates of a pure and ennobling system 
 of morality. That, aided and fostered by religion and 
 the light of revelation, is well calculated to instil rever- 
 ence for private right, and constitutes the only sure basis 
 upon which the fundamental law of a nation can safely 
 rest, and is more potent and effective to secure and ren- 
 der sacred rights of property and of person than even the 
 mandates of a fundamental law of a nation. 
 
 § 133. Thus far we have, in the prosecution of the 
 inquiry as to the extent of legislative power, and of the 
 controlling force of statutes, been confined almost exclu- 
 sively to the reasonings and opinions of ethical and judi- 
 cial writers in Europe. It remains to be considered 
 what are the opinions upon these questions entertained 
 by the judicial tribunals of our own country. Whether 
 the weight of authority in this country sustains the En- 
 glish doctrine will be most satisfactorily ascertained by 
 a minute reference to the discussions and opinions which 

 
 CHAP. VII.] (W LEGISLATIVE POWER. 259 
 
 have been elicited whenever this question has inciden- 
 tally come under consideration in courts of justice. 'Ij^ (Z>ac 
 Certain it is there are those in this country who hold to 
 the English doctrine, that legislation, being the exercise 
 of sovereign authority, high and important duties are 
 necessarily vested in the legislative body, whose acts, 
 under a government which has no written constitution 
 restricting it in the exercise of its functions, are irresis- 
 tible and subject to no control, believing as they do that • ' 
 such is the weight of authority in England. («) 
 
 § 134. There are other authorities which, though they 
 admit the doctrine of the English law, that an act of par- 
 liament is transcendental in its character, however unrea- 
 sonable, but declare in favor of the opinion that this doc- 
 trine is not admissible in this country to the same extent 
 to which it has been carried in England. That under yCc 
 our improved system of government the legislative power 
 is limited by constitutional restrictions, but that in all 
 other respects it must be considered as the sovereign and 
 absolute power of the state, which can only be controlled 
 by an impossibility. If the legislature, acting on a sub- 
 ject within its limits, should, through misrepresentation 
 or other cause, do injustice to an individual there is no 
 court that can apply a remedy or administer relief.(^) 
 
 The case of Bennet v. Boggs } (c) w r as one involving an 
 act of the legislature of New Jersey, regulating the fish- 
 eries in the Delaware River. Mr. Justice Baldwin held 
 that the court, in determining what is the law of New 
 Jersey, must first look at the constitution, which was the 
 supreme law, binding on the legislature itself; if that 
 contained any restraint on the legislative power over 
 fisheries, its obligations were paramount, but if it con- 
 tained none, the law which must govern their decisions 
 
 (a) 2 Dallas, 304. (b) See 1 Nott & M'Cord's Rep. 401. 
 
 (c) 1 Baldwin's Rep, 74.
 
 260 OF LEGISLATIVE POWER* [CHAP. VII. 
 
 exists only in the acts of the government organized by 
 the people under their constitution. That they found 
 its powers plenary and unrestrained which embraced the 
 case submitted. He said, " We may think the power 
 conferred by the constitution of this state too great or 
 dangerous to the rights of the people, and that limitations 
 are necessary, but we cannot affix them or act in cases 
 arising under state laws, as if limitations had been affixed 
 by the constitution previously. We cannot declare a 
 legislative act void because it conflicts with our opinion 
 of policy, expediency or justice. We are not guardians 
 of the rights of the people of the state, unless they are 
 secured by some constitutional provision which comes 
 within our judicial cognizance." The difficulty in the 
 mind of Mr. Justice Baldwin, as above expressed, would 
 seem to arise rather from the nature of the judicial 
 powers of the United States Court, when passing upon 
 questions arising under state laws, which, doubtless, in 
 his mind, would be viewed in a far different -light were 
 he sitting as judge in a state court. Yet it would seem 
 from his subsequent remarks, that he must have enter- 
 tained doubts whether any judicial tribunal, however 
 constituted, could apply a remedy for unjust and oppres- 
 sive legislation, for he says : " The remedy for unwise or 
 oppressive legislation within constitutional bounds is by 
 an appeal to the justice and patriotism of the represen- 
 tatives of the people. If these fail, the people in their 
 sovereign capacity can correct the evil, but courts cannot 
 assume their rights. There is no paramount and su- 
 preme law which defines the laws 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 in the constitution. 
 
 If it is once admitted that there exists in this court a 
 power to declare a state law void, which conflicts with 
 no constitutional provision ; if we assume the right to
 
 CHAP. VII.] OF LEGISLATIVE POWER. 2G1 
 
 annul them for their supposed injustice, or oppressive 
 operation, we become the makers and not the expounders 
 of the constitution. Our opinions would not be a judg- 
 ment on what was the pre-existing law of the case, but 
 upon what it is after we have so amended or modified it 
 as to meet our ideas of justice, policy and wise legislation, 
 by a direct usurpation of legislative power and a flagrant 
 violation of the duty enjoined upon us by the judiciary 
 act. 
 
 In Braddc v. Bramficld^a) Huston, Justice, held, there 
 was high authority for saying there is in every govern- 
 ment, somewhere, an absolute and despotic power. The 
 exceptions to this are only such as are expressly specified 
 in the written constitution, subject to this (the constitution) 
 and only to this or some provisions of the constitution of 
 the United States, the powers of the legislature of the 
 state seem not to be limited, that is the power to enact 
 laws. 
 
 In Harvey v. Tkomas.(J)) Gibson, Chief Justice, after 
 stating that the most material point in this case was that 
 which involves the constitutionality of the statute in re- 
 lation to private roads, on which the defendant's right 
 was founded and that the argument of the defendant 
 was that the legislature had not the power to authorize 
 the application of another's property to a private purpose", 
 even on compensation made, uses the following language : 
 " But who can point out any express constitutional dis- 
 firmance of it? The clause by which it is declared that 
 no man's property shall be taken or applied to public 
 use without the consent of the representative and with- 
 out just compensation made, is a disabling and not an 
 enabling one, and would have existed in full force with- 
 out, (c) 
 
 (a) 2 Serjr. & Watts' Rep. 285. 
 
 (b) 10 Watts' Rep. 66. 
 
 (c) See also 2 Watts & Serg. Rep. 323.
 
 262 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 Whether this power was only partially restrained for 
 a reason similar to that which induced an ancient law- 
 giver to annex no penalty to parricide, or whether it was 
 thought that there would be no temptation to the act of 
 taking the property of one individual for another's use, 
 it seems clear there is nothing in the constitution to pre- 
 vent it, and the practice of the legislature has been in 
 accordance with the principle here stated ; of which the 
 application of another's land for the purpose of a private 
 way is a frequent proof. Chancellor Kent(«) says, the 
 principle in the English government that the parliament 
 is omnipotent does not prevail in the United States, 
 though if there is no constitutional objection to a statute 
 it is with us as absolute and uncontrollable as laws 
 flowing from the sovereign power under any form of 
 government. 
 
 In the case of Cochran v. Van Surlay,(b) this question 
 was considered by Senator Verplank. He controverted 
 the position, " that acts of legislature contrary to first 
 principles of right," are void, and denied the power of 
 courts to annul an act of the legislature, by declaring it 
 void on the assumed ground of its being contrary to 
 natural equity. He insisted that such power could only 
 
 be properly exercised when clearly derived from express 
 constitutional provisions, (and those strictly construed,) 
 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. 
 
 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 autho- 
 rity. There are indeed many dicta, and some great 
 
 (a) 1 Kent's Com. 488. 
 (6) 20 Wen. 381.
 
 CHAr. VII.] OF LEGISLATIVE POWER. 2G3 
 
 authorities, holding that acts contrary to the first prin-' 
 ciples of right are void. The principle is unquestionably 
 sound, as the governing rule of a legislature, in relation/ 
 to its own acts, or even those of a preceding legislature. 
 It also affords a safe rule of construction for courts, in 
 the interpretation of laws admitting of any doubtful con- 
 struction, 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 legisla- 
 tive language, if it he susceptible of any other, more con- 
 formable 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 constitutional provisions, limiting 
 legislative power and controlling the temporary will of 
 a majority, by a permanent and paramount law, settled 
 by the deliberate wisdom of the nation, that I can find 
 a safe and solid ground for the authority of courts of 
 justice to declare void any legislative enactment. Any 
 assumption of authority beyond this, would be to place 
 in the hands of a judiciary, powers too great and too un- 
 defined, either for its own security or the protection of 
 private rights. It is, therefore, a most gratifying cir- 
 cumstance to the friends of regulated liberty, that in 
 every change in their constitutional polity, which has yet 
 taken place here, whilst political power has been more 
 widely diffused among the people, stronger and better 
 defined guards have been given to the rights of property. 
 Thus in the constitution of the United States, the states 
 have been inhibited from passing any law impairing the 
 obligation of contracts, a power boldly, rashly and wan- 
 tonly exercised under the old confederation. So again, 
 in the constitution of our own state adopted in 1822, in 
 addition to the general provision of the old constitution 
 already quoted, " that no one shall be deprived of any of 
 the rights or privileges secured to any citizen thereof,
 
 264 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 unless by the law of the land or the judgment of his 
 peers," farther protection is given to property, by adding 
 a prohibition against u the taking private property for 
 public use without just compensation," and also another 
 against " the depriving any one of life, liberty or pro- 
 perty, without due process of law ;" i. e. by mere arbi- 
 trary legislation, under whatever pretext of private or of 
 public good. • 
 
 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 direction, I cannot 
 bring myself to approve of the power of courts to annul 
 any law solemnly passed, either on an assumed ground 
 of its being contrary to natural equity, or from a broad, 
 loose and vague interpretation of a constitutional pro- 
 vision, beyond its natural and obvious sense. There is 
 no provision of the old state constitution, that, in my un- 
 derstanding 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 unconstitutional enactment." 
 
 § 135. This question was discussed by the Supreme 
 Court of the United States in the case of Calder v. 
 Bull,(a) when the learned judges of that court were not 
 agreed in their opinions on this point. 
 
 On the one hand, Mr. Justice Chase avowed, that he 
 could not submit to the omnipotence of the state legisla- 
 ture, or that it was absolute or without control, although 
 its authority should not be expressly restrained by the 
 constitution or fundamental law of the state. He held 
 that the people of the United States erected their consti- u^^° 
 tution and form of government to establish justice, to 
 promote the general welfare, to secure the blessings of 
 liberty, and to protect their persons and property from 
 
 (a) 3 Dallas R. 386.
 
 CHAP. VII. "J OF LEGISLATIVE I'OWER. 265 
 
 violence. The purposes for which men enter into so- 
 ciety determines the nature and terms of the- social com- 
 pact; as they are the foundation of legislative poweri, 
 they will decide what are the proper objects of it. The 
 nature and extent of legislative power will limit the ex- 
 ercise of it. 
 
 This fundamental principle flows from the very nature 
 of our free republican government, that no man shall be 
 compelled to do what the law does not require, nor to 
 refrain from acts which the law permits. There are 
 acts which the state legislature cannot do without ex- 
 ceeding their authority. There are certain vital prin- 
 ciples in our free republican government which will 
 determine and overrule any apparent and flagrant abuse 
 of legislative power ; such, for instance, as authorized 
 manifest injustice, or took away that security for personal 
 liberty or private property, for the protection of which 
 government was established. An act of the legislature, 
 contrary to the great principles of the social compact 
 could not be converted into a rightful exercise of legisla- 
 tive authority. The obligations of a government, esta- 
 blished on express compact, and upon republican prin- 
 ciples, must be determined by the nature of the powers 
 on which it is founded. A law that punishes a citizen 
 for an innocent action, or for an act which when done 
 was in violation of no existing law, or one that impairs, 
 or destroys lawful private contracts of citizens, or which >£ 
 makes a man judge in his own cause, or that takes the 
 property of A and gives it to B, it is against all reason 
 and justice for a people to intrust the legislature with 
 such powers, therefore it cannot be presumed that they 
 have done it. The genius — the nature, and the spirit of 
 our state governments, amounts to a prohibition of such z_^ 
 acts of legislation, and the general principles of law and 
 reason forbid them. The legislature may enjoy, forbid, 
 
 34 

 
 
 266 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 and punish, they may declare new crimes, establish 
 rules of conduct for all their citizens in future cases, 
 they may command what is right, forbid what is wrong, 
 hut they cannot change innocence into guilt, or punish 
 innocence as a crime, or violate the rights of lawful an- 
 tecedent contract, or the right of private property ; to 
 maintain that our state or federal legislatures possess 
 such a power, if they had not been expressly restrained, 
 would be a political heresy, altogether inadmissible in a 
 free republican government. 
 
 Mr. Justice Patterson held, that if a government, com- 
 posed of legislative, executive, and judicial departments, 
 were established by a constitution which imposed no 
 limits on the legislative power, the consequence would 
 inevitably be, that whatever the legislative power chose 
 to enact, would be lawfully enacted, and the judicial 
 power could not interfere to pronounce it void. That 
 it was true that some speculative spirit had held that a 
 legislative act against natural justice must in itself be 
 void, but that he could not think that under such a gov- 
 ernment any court of justice would possess the power to 
 declare it so. 
 
 Mr. Justice Iredell was of the same opinion, and cited 
 the strong case put by Sir William Blackstone, of an act 
 of parliament which should authorize a man to try his 
 own cause as judge, that even in that case there is no 
 court that has the power to defeat the intent of the legis- 
 lature when couched in such evident and express words 
 as to leave no doubt whether it was the intention of the 
 legislature, or no. In order to guard against so great an 
 evil, it had been the policy of the American states, which 
 had individually formed their state constitutions since 
 the revolution, and of the people of the United States 
 when they formed the federal constitution, to define with 
 precision the object of legislative power, and to restrain 
 its exercise into marked and settled boundaries. That 

 
 CHAP. VII.] OF LEGISLATIVE POWER. 267 
 
 if the legislature of the Union, or the legislature of any 
 member of the Union should pass a law within the gen- 
 eral scope of their constitutional powers, the court could 
 not pronounce it void merely because it w r as, in their 
 judgment, contrary to the principles of natural justice. 
 The ideas of natural justice were regulated by no fixed 
 standard ; the ablest and purest men have differed upon 
 the subject. 
 
 All that the court could properly say in such an event 
 would be, that the legislature (possessed of an equal 
 right of opinion) had passed a law, which in the opinion 
 of the judges was inconsistent with the abstract princi- 
 ples of natural justice. If the legislature pursue the 
 authority delegated to them their acts are valid ; if they 
 transcend the bounds of that authority, their acts are in- 
 valid. In the former case, they exercise the discretion 
 vested in them by the people, to whom they are respon- 
 sible for the faithful discharge of their trust ; but in the 
 other case they violated the fundamental law which 
 must be our guide whenever we are called upon as 
 judges to determine the validity of legislative acts. 
 
 § 136. It is with great deference suggested, unless 
 we are to assume that at the time of the adoption of the 
 federal and state constitutions, it w r as the universal law 
 of the civilized world, recognized as such, that the legis- 
 lative power was omnipotent, unlimited and supreme ; 
 and from hence infer, that it must be presumed the 
 people entered into the national and state compacts in 
 reference to such universal rule, or in reference to 
 the doctrine as it was then understood to be settled 
 by the common law of England, and that they then un- 
 derstood that the legislature would be without limitation 
 and beyond control, under a government founded in ex- 
 press written compact, and that there would be no re- 
 striction unless it was embodied in the fundamental law, 
 — does not the argument of Mr. Justice Iredell assume
 
 268 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 what should be first otherwise established, that under 
 our form of government, absolute power, except in so far 
 as it was expressly restricted, was delegated by the 
 people to the legislature, irrespective of the object and 
 design of the social compact. For, unless it be as- 
 sumed that the design and object of the social compact 
 was to do that which is against reason and natural jus- - 
 tice, it can hardly be presumed such an act is legitimately 
 within the scope of the authority delegated to the legis- 
 lative department. It would be assuming too much to 
 suppose, that the people intended to delegate any power 
 to be exercised irrespective of the original purpose of the 
 social compact, or in a way which would be subversive 
 of its object and design. The reasonable presumption 
 would seem to be, that the authority delegated must from 
 necessity, arising from the nature of that design, be lim- 
 ited in its exercise to such acts, and .such only, as are 
 calculated to effectuate the original purpose of the people 
 when the government was founded. Whenever the 
 legislature transcends the bounds of this original autho- 
 rity, or so far disregards the sacred trust committed to 
 it, as to pass an act subversive of natural right, ought not 
 such an act to be regarded as exceeding the authority 
 delegated '7 and if so, must not the want of authority 
 render such an act invalid, divest it of the attributes of 
 an imperative authority ? and would not the spirit and 
 genius of our institutions under the press of such circum- 
 stances call for and justify the application of a more 
 speedy remedy than the one open to them through the 
 medium of the ballot boxes. 
 
 In Fletcher v. Peck, 6 Cranch, 87, Marshall, Chief 
 Justice, adverted to this interesting and important ques- 
 tion ; although in that case it did not become necessary 
 to pass upon it, as the act then under consideration was 
 declared void on the ground of its conflict with the con- 
 stitution of the United States. It divested estates vested
 
 CHAP. VII.] OF LEGISLATIVE POWER. 269 
 
 under a prior act, and hence impaired the obligation of 
 a contract. In the consideration of that question lie 
 says : " Is the power of the legislature competent to the 
 annihilation of such title, and to a usurpation of the pro- 
 perty thus held? The principle asserted is, that one 
 legislature is competent to repeal any act which a former 
 legislature was competent to pass ; and that one legisla- 
 ture cannot abridge the powers of a succeeding legis- 
 lature. The correctness of this principle, so far as re- 
 spects general legislation can never be controverted. 
 But, if an act be done under a law, a succeeding legisla- 
 ture cannot undo it. The past cannot be recalled by 
 the most absolute power. Conveyances have been made ; 
 those conveyances have vested legal estates ; and, if those 
 estates may be seized by the sovereign authority, still, 
 that they originally vested is a fact, and cannot cease to 
 be a fact. 
 
 " When, then, a law is in its nature a contract ; when 
 absolute rights have vested under that contract ; a repeal 
 of the law cannot divest those rights ; and the act of an- 
 nulling them, if legitimate, is rendered so by a power 
 applicable to the case of every individual in the com- 
 munity. 
 
 " It may well be doubted whether the nature of society 
 and of government does not prescribe some limits to the 
 legislative power ; and, if any be prescribed, where are 
 they to be found, if the property of an individual, fairly 
 and honestly acquired, may be seized without compen- 
 sation 1 
 
 u To the legislature all legislative power is granted ; 
 but the question, whether the act of transferring the 
 property of an individual to the public, be in the nature + 
 of the legislative power, is well worthy of serious re- 
 flection." 
 
 Mr. Justice Patterson also, in another case, in which 
 this precise question, it is true, does not arise, as the
 
 270 OF LEGISLATIVE POWER.' [CHAP. VII, 
 
 case was decided on a constitutional question, makes the 
 following remarks : 
 
 " Men have a sense of property ; property is necessary 
 • to their subsistence, and correspondent to their natural 
 wants and desires ; its security was one of the objects 
 that induced them to unite in society. No man would 
 become a member of a community in which he could not 
 enjoy the fruits of his honest labor and industry. The 
 preservation of property then is a primary object of the 
 social compact, and, by the late constitution of Pennsyl- 
 vania, was made a fundamental law. Every person 
 ought to contribute his proportion for public purposes 
 and public exigencies ; but no one can be called upon to 
 surrender or sacrifice his whole property, real and per- 
 sonal, for the good of the community, without receiving 
 a recompense in value. This would be laying a burden 
 upon an individual, which ought to be sustained by the 
 society at large. The Knglish history does not furnish 
 an instance of the kind ; the parliament, with all their 
 boasted omnipotence, never committed such an outrage 
 on private property; and if they had, it would have 
 served only to display the dangerous nature of unlimited 
 authority; it would have been an exercise of power and 
 not of right. Such an act would be a monster in legis- 
 lation, and shock all mankind. The legislature, there- 
 fore, had no authority to make an act divesting one citi- 
 zen of his freehold, and vesting it in another, without a 
 just compensation. It is inconsistent with the principles 
 of reason, justice, and moral rectitude; it is incompatible 
 with the comfort, peace, and happiness of mankind ; it is 
 contrary to the principles of social alliance in every free 
 government ; and lastly, it is contrary both to the letter 
 and spirit of the constitution. In short, it is what every 
 one would think unreasonable and unjust in his own 
 X case. The next step in the line of progression is, 
 whether the legislature had authority to make an act,
 
 CHAP. VII.] OF LEGISLATIVE POWER. 271 
 
 divesting one citizen of bis freehold and resting it in an- 
 other, even with compensation. That the legislature. 
 on certain emergencies, had authority to exercise this 
 high power, has been urged from the nature of the social 
 compact, and from the words of the constitution, which 
 says, that the house of representatives shall have all 
 other powers necessary for the legislature of a free state 
 or commonwealth ; but they shall have no power to add 
 to, alter, abolish, or infringe any part of this constitution. 
 The course of reasoning, on the part of the defendant, 
 may be comprised in a few words. The despotic power, 
 as it is aptly called by some writers, of taking private 
 property, when state necessity requires, exists in every 
 government ; the existence of such power is necessary ; 
 government could not subsist without it ; and if this be the 
 case, it cannot be lodged any where with so much safety 
 as with the legislature. The presumption is, that thev 
 will not call it into exercise except in urgent cases, or 
 cases of the first necessity. There is force in this rea- 
 soning. It is, however, difficult to form a case, in which 
 the necessity of a state can be of such a nature, as to 
 authorize or excuse the seizing of landed property be- 
 longing to one citizen, and giving it to another citizen. 
 It is immaterial to the state, in which of its citizens the 
 land is vested ; but it is of primary importance, that, 
 when vested, it should be secured, and the proprietor 
 protected in the enjoyment of it." 
 
 Again, (on page 314,) he exclaims : " Shame to Ame- 
 rican legislation ! That in England, a limited monarchy, 
 where there is no written constitution, where the parlia- 
 ment is omnipotent, and can mould the constitution at 
 pleasure, a more sacred regard should have been paid to 
 property, than in America, surrounded as we are with a 
 blaze of political illumination ; where the legislatures are 
 limited; where we have republican governments, and
 
 272 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 written constitutions, by which the protection and en- 
 joyment of property are rendered inviolable." 
 
 In another part of the same decision he adds : " Om- 
 nipotence in legislation is despotism. According to this 
 doctrine, we have nothing that we can call our own, or 
 are sure of for a moment ; we are all tenants at will, and 
 hold our landed property at the mere pleasure of the 
 legislature. Wretched situation, precarious tenure ! And 
 yet we boast of property and its security, of laws, of 
 courts, of constitutions, and call ourselves free!" 
 
 In the case of the University of Maryland v. Williams, 
 which was a case involving the question, whether an 
 act of the legislature of Maryland, which took away the 
 vested rights of the regents, was void as being in conflict 
 with the constitution of the United States; Chief Justice 
 Buchanan, after deciding that it was, adds, " but the ob- 
 jection to the validity of the act of 1825 does not rest 
 alone for support upon the construction of the constitu- 
 tion of the United States. 
 
 Independent of that instrument, and of any express 
 restrictions in the constitution of the state, there is a fun- 
 damental principle of right and justice, inherent in the 
 nature and spirit of the social compact, (in this country 
 at least,) the character and genius of our government, the 
 causes from which they spring, and the purposes for 
 which they were established, that rises above and re- 
 strains, and sets bounds to the powers of legislation, 
 which the legislature cannot pass ivithout exceeding its 
 rightful authority. It is that principle which protects 
 the life, liberty, and property of the citizen from violation 
 in the unjust exercise of legislative power. To say that 
 the legislature possesses the power to pass capriciously, 
 or at pleasure, a valid act, taking from one his property 
 and giving it to another, would be in this age, and in 
 this state, a startling proposition to which the assent of 
 none could be yielded.
 
 
 CHAP. VII.] OF LEGISLATIVE POWER. 273 
 
 § 137. In Taylor v. Porter^a) which was a case in- 
 volving the constitutionality of the provisions of the Re- 
 vised Statutes 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 compensa- 
 tion therefor, held ; there was no provision in the consti- 
 tution that just compensation should be made to the 
 owner when his property is taken for private purposes. 
 If the power exists to Like the property of one man and 
 transfer it to another, it may be exercised without any 
 reference to compensation. The power of making bar- 
 gains 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 consideration. This view of the ques- 
 tion was sufficient to put them on enquiring where can 
 the power be found to pass such a law, as that under 
 which the defendant attempted to justify? It is not to 
 be presumed that such a power exists, and those who 
 set it up should tell us where it may be found. Under 
 our form of government, the legislature is not supreme. 
 It is only one of the organs of that absolute sovereignty 
 which resides in the whole body of the people ; like 
 other departments of 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 
 
 
 
 (a) 4 Hill's N. Y. Rep. 146. 
 
 35
 
 274 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 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." He admitted that the two houses, sub- 
 ject only to the qualified negative of the Governor, pos- 
 sessed all " the legislative power of the state/' but the 
 question immediately presents itself, what is " legislative 
 power," and how far does it extend ? Does it reach the 
 life, liberty, or property of the citizen who is not charged 
 with a transgression of the laws ; and where 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 es- 
 tablished. If there was not one word of qualification in 
 the whole instrument, he should feel great difficulty in 
 bringing his mind to the conclusion, that the clause under 
 consideration had clothed the legislature with despotic 
 power ; such is the extent of their authority, if they can 
 take the property of A., either with or without compen- 
 sation, and give it to B. " The legislative power of the 
 state does not reach to such an unwarrantable extent 
 — neither life, liberty, nor property, except when for- 
 feited by crime, or when the latter is taken for public 
 use, falls within the scope of this power." 
 
 § 138. Tracy, Senator, in Bloodgood v. r Uw Mo- 
 hawk and Hudson JR. R. Cb.,(a) says : — " It has never 
 been allowed to be a rightful attribute of sovereignty in 
 any government professing to be founded upon fixed 
 laws, however despotic the form of the government 
 
 (a) 18 Wend. 56. 
 
 i
 
 CHAP. VII.] OF LEGISLATIVE POWER. 275 
 
 might be, to take the property of one individual or sub- 
 ject, and bestow it upon another. The possession andw 
 exertion of such a power would be incompatible with 
 the nature and object of all government ; for it being ad- 
 mitted that a chief end for which government is insti- 
 tuted is, that every man may enjoy his own, it follows ^ 
 i necessarily that the rightful exertion of a power by the 
 government of taking arbitrarily from any man what is , 
 his own, for the purpose of giving it to another, would 
 subvert the foundation principle upon which the govern- 
 ment w T as organized, and resolve the political community^ 
 into its original chaotic elements. This power, there- 
 fore, instead of being acknowledged, was expressly repu- 
 diated by the Roman law at the height of imperial 
 despotism ; so that even when the lives of subjects were 
 wantonly sacrificed by thousands at the remorseless bid- 
 ding of cruel and capricious tyrants, no idea seems to 
 have been entertained that they could, except by the 
 interposition of legal forms, transfer the property of one 
 subject to another. Even Hobbes, the most ingenious of 
 all advocates for the absolute powers of government, does 
 not go further with his doctrine on this point than to 
 say, that the property which a subject has in his goods, 
 consists not in a right to exclude the sovereign from the 
 use of them, but consists in a right to exclude all other sub- 
 jects from the use of them. But no approved writer on pub- 
 lic law will be found to go as far as Hobbes in vindicating 
 the unqualified right of the sovereign, to assume at will the 
 property of the subject. Every other writer is disposed 
 to recognize a distinction between right and power as 
 applied to sovereign and subject, and to acknowledge 
 that a rightful government must be founded on some 
 other principle than that of mere force. Hence an ori- 
 ginal compact, founded in the mutual necessities of the 
 individuals about to constitute a political community, is 
 implied in all cases, and the respective rights of sove-
 
 276 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 reign and subject are referred to this supposed compact 
 for their ascertainment. It follows, of course, that as 
 the terms of this compact are capable of being shown 
 only argumentatively, differences of opinion will exist in 
 regard to them. To avoid this difficulty, is one great 
 purpose of written constitutions. But though differences 
 of opinion exist as to the extent of the • principle of the 
 inviolability of private property, the secure possession 
 and undisturbed enjoyment of property by individuals, is 
 universally admitted to be the great cement of the social 
 compact, and every publicist therefore feels the necessity 
 of prescribing some safe guards for it against the en- 
 croachments of the sovereign power." 
 
 § 139. Chancellor Walworth has said, that the right 
 of eminent domain, did not imply a right in the sove- 
 reign power to take the property of one citizen and 
 transfer it to another when the public interest would be 
 in no way promoted thereby, even if a full compensation 
 for such property w 7 as awarded to the owner thereof. 
 In the case of Varick v. Smith,(a) he says, " The prin- 
 ciple upon which forced sales of private property were 
 compelled by the civil law, for the public good, were 
 certainly as extended as any government 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 con- 
 cerned in such transfer. Perhaps in England, where the 
 parliament is said to be omnipotent, so far as the exer- 
 cise 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 the three estates of the realm. But in 
 
 («) 5 Paige R. 159.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 271 
 
 a state which is governed by a written constitution 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 another, where there was no 
 foundation for a pretence that the public was to be bene-^ 
 fited thereby/ ; I should not hesitate to declare such an 
 abuse of the right of eminent domain was an infringe- 
 ment of the spirit of the constitution, and therefore not 
 within the general powers delegated by the people to 
 the legislature." 
 
 § 140. While the learned chancellor denied to the 
 legislative power the right thus to take private pro- 
 perty for the mere purpose of transferring it to an- 
 other, he admitted that the two branches of the lesris- 
 lature, subject only to the qualified veto of the exec- 
 utive, are the sole judges as to the expediency of making 
 police regulations, interfering with the natural rights of 
 our citizens, but which regulations are not prohibited by 
 the constitution ; and also as to the expediency of exer- 
 cising the right of eminent domain, for the purpose of 
 making public improvements, either for the benefit of 
 the inhabitants of the state or any particular section 
 thereof. 
 
 § 141. This last sentence of the learned chancellor is a 
 most unguarded one. A We cannot assent to the doctrine 
 here laid down ; for, if it were to be admitted without 
 qualification, we see no bounds which can be set to legis- 
 lative tyranny and usurpation under such a rule as this, 
 for while, on the one hand, it concedes that there is such 
 a limit, yet, on the other, it permits the legislature to be 
 the judge as to the expediency of the power quoad hoc 
 which it shall exercise, and thus by such legislative de- 
 termination elude any restriction upon that power. What 
 is it but in effect to say to the legislature thus far shalt 
 thou go and no farther, but you are to be the sole judges 
 as to how far it is expedient that you should go ; if,
 
 278 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 therefore, you should determine that it is expedient to 
 go farther, as you are the sole judges of that expediency, 
 you may, with impunity, go just as far as you shall deem 
 expedient; provided, nevertheless, you shall decide a 
 given purpose to be public, and then shall act in refer- 
 ence to that purpose, although the purpose be one which 
 relates to a fraction, however small, of the aggregate body 
 politic. 
 
 § 142. In thus dissenting from this part of the chan- 
 cellor's reasoning we are fully sustained by the strong and 
 forcible reasoning of Senator Tracy. (a) He there says : 
 " The remark of an eminent jurist,(&) that ' it must 
 undoubtedly rest in the wisdom of the legislature to 
 determine when public uses require the assumption of 
 private property ; and if they should take it for a purpose 
 not of a public nature, as if the legislature should take 
 the property of A and give it to B, the law would be 
 unconstitutional and void,' is correct, if intended to con- 
 cede to the legislature merely the power of determining 
 what property in a particular case shall be taken for 
 the public use, but it cannot be correct, if intended to 
 concede to the legislature the power of determining what 
 constitutes a public use of private property ; and there- 
 fore I must dissent from the position taken by the 
 chancellor in Beekman v. Saratoga and Schenectady Bail 
 Road Company, where he says: ' If the public interest 
 can be in any way promoted by the taking of private 
 property, it must rest in the wisdom of the legislature to 
 determine whether the benefit to the public will be of 
 sufficient importance to render it expedient to exercise 
 the right of eminent domain, and to authorize an inter- 
 ference with the private rights of individuals.' This 
 position, it will be seen, disregards the distinction be- 
 
 (a) 18 Wend. 161. (b) 2 Kent's Com. 340.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 279 
 
 tween a public use and a public interest in a particular 
 use of private properly, and confers on the legislature 
 the right of determining, first, that the public interest 
 will be promoted by the particular use of private pro- 
 perty; and next, because the public interest will be pro- 
 moted by such use, that therefore it is a public use ; and 
 finally, it being a public use, it becomes a mere question 
 of expediency with the legislature whether they shall 
 authorize private property to be taken to subserve it or 
 not. It seems to me that such a construction of legisla- 
 tive power is inconsistent with the secure possession and 
 enjoyment of private property, and repugnant to the 
 language and object of the constitutional provision. In- 
 deed it concedes to legislative discretion a wider range 
 than I think could be maintained for it on the principles 
 of natural law, if we had no written constitution. 
 
 " It is not denied that the legislature is the most ap- 
 propriate organ of the sovereignty of the state for exer- 
 cising the right of eminent domain, but they can only 
 exercise the right or power in subordination to the con- 
 stitutional authority ; which authority they cannot en- 
 large or modify. The condition that the property must 
 be taken for public use is as much above their reach 
 and control as it is above the reach and control of the 
 lowest functionary of the government, who, like them 
 may have occasion to invoke this attribute of sovereignty 
 in an emergency of some humble department of the pub- 
 lic service, with which he may have been charged. The 
 legislature may fitly determine when and under what 
 circumstances — as to the mode of taking — private pro- 
 perty shall be taken for the public use. But it by no 
 means follows, as seems to have been supposed, that the 
 legislature can determine that a particular use is a public 
 use of private property, within the meaning of the con- 
 stitution. The nature of the use to which the legislature 
 may dedicate the property of a citizen, is not established
 
 280 OK LEGISLATIVE POWER. [("HAP. VII. 
 
 by the name which they give to it, but is an inherent 
 and inseparable quality or characteristic which cannot 
 be changed, however it be denominated. Much less are 
 we to confound the notion of legislative discretion with 
 that of sovereign power. The legislature is not the 
 sovereignty of the state, but only one of the organs of the 
 sovereignty, and a restricted organ in regard to all mat- 
 ters prescribed by the constitution, and necessarily, 
 therefore, cannot exercise any power which by the fun- 
 damental compact is prohibited to the sovereignty. It 
 is prohibited to the government of the state, even in its 
 sovereign capacity, to take private property except for 
 public use ; consequently it is not in the power of the 
 legislature to authorise private property to be taken for 
 any other purpose. Nor can this restriction, which is 
 upon both the government, as a sovereignty, and upon 
 the legislature, as its organ, be evaded, or the power 
 which it limits be extended, under whatever form or by 
 whatever name it may be attempted. If it be called the 
 right of eminent domain, or of supereminent dominion, 
 it comes to the same result, for these are only other 
 names for sovereign power, and are equally included and 
 controlled by the constitutional restriction. Therefore, 
 to insist that the determination or expression by the 
 legislature that it is for the public interest and expedient 
 in a particular case to exert the right of eminent domain, 
 or the power of sovereignty, ipso facto, establishes that 
 the power of sovereignty is rightfully exerted, is in effect 
 to insist that the power of the legislature is above the 
 power of the constitution, and to prove that instead of 
 possessing a government of denned and limited powers, 
 we have one with powers more extensive and irrespon- 
 sible than those of the regal governments of Europe. 
 But happily for us, this is not so, the legislature is not 
 the creator or judge of its own powers ; but is the crea- 
 ture of the constitution, and all its acts must be in sub- 
 
 J
 
 CHAP. VII.] OF LEGISLATIVE POWER. 281 
 
 ordination to it. In the examination, therefore, of a 
 
 question involving the construction of constitutional 
 powers, courts are to be guided by the constitution itself, 
 and are not to be controlled by the acts of the legislature, 
 or to be further influenced by them than a due respect 
 for the apparent opinions of a co-ordinate branch of the 
 government may demand. Conceding freely to the legis- ' 
 lature the right of appropriating private property to the ; 
 public use, but denying confidently to it the power of * 
 making that a public use which in its nature is not." 
 
 § 143. In the case of Goshen v. StoningtQn,(a) llos- 
 mer, J., dissented from the opinion of those who as- 
 sert the omnipotence of the legislature in all cases, 
 where the constitution has not imposed an explicit re- 
 straint. 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 vindication, 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 
 deprive a person of his property, or to subject him to 
 imprisonment, who would not question its legality, or 
 who would carry it into effect 1 7*+ $ * - L 
 
 § 144. The case of Wilkinson v. JLcland, in the U. S. 
 Court, (6) was an action of ejectment by the heirs at 
 law of Cynthia Jenks, to whom her father by his will in 
 1787 devised the premises in question in fee, subject to 
 a life estate then in being, but which expired in 1791. 
 The testator appointed his wife Cynthia his executrix. 
 He died in New Hampshire, and his widow proved his 
 will in the court of probates in that state, and took letters 
 of administration. The estate being represented as in- 
 solvent, the executrix in 1790 obtained an order from the 
 
 (c) 4 Conn. R. 225. {b) 2 Peters' Rep. 651. 
 
 36
 
 282 OF LEGISLATIVE POWKK. [CHAP. VII. 
 
 judge of probates in New Hampshire to sell so much of 
 the real estate of the testator as should, with the personal 
 estate, be sufficient to pay his debts. The premises in 
 question were situate in the state of Rhode Island ; the 
 will was never proved in that state nor administration 
 taken out there. In 1791 the executrix sold the premises 
 to certain persons under whom the defendant claimed by 
 a deed which recited her authority to sell, and in which 
 she purported to act as executrix in the sale. She entered 
 into a covenant with the purchaser to procure an act of 
 the legislature of Rhode Island ratifying and confirming 
 the title granted. She accordingly made an application 
 to the legislature of Rhode Island for that purpose, stating 
 these facts in her petition, and thereupon an act was 
 passed by the legislature in June, 1792, granting the 
 prayer of the petition, and ratifying the title. 
 
 The validity and effect of this act was the main ques- 
 tion in this cause. Mr. Webster, as counsel, on the 
 argument contended that it was of no importance to the 
 question before the court, whether there were any re- 
 strictions or limitations to the power of the legislature of 
 Rhode Island imposed by the constitution ; for, if at this 
 period there was not a general restraint on legislative 
 power, there was an end of private property. He in- 
 sisted though there were no prohibitions in the constitu- 
 tion, the legislature were restrained from committing 
 flagrant acts, from acts subverting the great principles of 
 republican liberty and of the social compact, such as 
 giving the property of A. to B. Mr. Justice Story, who 
 delivered the opinion of the court, stated that the objec- 
 tions taken by the defendant's counsel to this act are, in 
 the first place, that it is void as an act of legislation, 
 because it transcends the authority which the legislature 
 of Rhode Island can rightfully exercise. 
 
 He admitted that the objection must be decided not 
 upon principles of public policy, but of power, precisely 
 
 I
 
 
 CHAP. VII.] OF LEGISLATIVE POWER. 283 
 
 as the state of Rhode Island ought to decide it. lie 
 then stated that Rhode Island was the only state in the 
 Union which had not a written constitution of govern- 
 ment, containing its fundamental laws and institutions. 
 Until the revolution in 1776, it was governed hy the 
 charter granted by Charles II., in the fifteenth year of 
 his reign, (1664.) This charter had ever since con- 
 tinued, in its general provisions, to regulate the exercise 
 and the distribution of the powers of government. It 
 had never been formally abrogated by the people ; and 
 except so far as it had heen modified to meet the exi- 
 gencies of the Revolution, it might be considered now as 
 a fundamental law. By this charter, the power to make 
 laws was granted to the general assembly, in the most 
 ample manner. What was the extent of the power thus 
 granted, must be opened to explanation as well by usage, 
 as hy the construction of the terms in which it is given. 
 He held that in a government professing to regard the 
 great rights of personal liberty and of property, and 
 which, like this, was required to legislate in subordina- 
 tion to the general laws of England, it would not slightly 
 be presumed that the general principles of magna charta 
 were to be disregarded, or that the estates of its subjects 
 were to be taken away without trial, without notice, and 
 without offence; even if such authority could be deemed 
 to have been confided by the charter to the general as- 
 sembly of Rhode Island, as an exercise of transcendental 
 sovereignty before the Revolution, it could scarcely be 
 imagined that that great event could have left the peo- 
 ple of that state subject to its uncontrolled and arbitrary 
 exercise. He was of the opinion that government could 
 scarcely be deemed free, where the rights of property V 
 were left solely dependent upon the will of the legisla- 
 tive body, without any restraint. The fundamental 
 maxims of a free government, seemed to require that the 
 rights of personal liberty and private property should be 
 
 \
 
 284 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 held sacred ; at least that no court of justice in tins 
 country could be warranted in assuming, that the power 
 to violate and disregard them — a power so repugnant 
 to the common principles of justice and civil liberty — 
 larked under any general grant of legislative authority, or 
 ought to be implied 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 and well 
 being, without very .strong and direct expressions of inten- 
 tions. That in Terrctt v. Taylor ^a) it had been held by 
 the court, that a grant or title to lands once made 
 by the legislature to any person or corporation was ir- 
 revocable, and could not be resumed by any subsequent 
 legislative act ; that a different doctrine would be utterly 
 inconsistent with the great principles of a republican 
 government, and with the rights of the citizens to the 
 free enjoyment of their property lawfully acquired. He 
 then adds : — " We know of no case in which a legislative 
 
 .J^ act to transfer the property of A. to B. without his con- 
 sent, has ever been held a constitutional exercise of 
 legislative power in any state in the Union. On the 
 contrary, it has been constantly resisted as inconsistent 
 
 ~\ with just principles, by any political tribunal in which it 
 has been attempted to be enforced. We are not pre- 
 v, pared, therefore, to admit that the people of Rhode 
 Island have ever delegated to their legislature the powder 
 to divest the vested rights of property, and transfer them 
 without the assent of the parties." 
 
 § 145. The Supreme Court of South Carolina, 
 in Bowman v. Middlcton,(b) set aside an act of the 
 colony legislature, as being against common right and 
 the principles of magna charta, on the ground that it 
 took away the freehold of one man and vested it in 
 
 (o) 9 Cranch, 43. {b) 1 Bay's R. 252. 
 
 I
 
 CSAP. VII.] OF LEGISLATIVE POWER. 285 
 
 another, without any compensation, or any previous at- 
 tempt to determine the right. They declared the act to 
 be ipso facto void ; and in another case they held that 
 a statute, framed against common right and common 
 reason, was so far void as it was calculated to operate 
 against those principles ; but said, that the court would 
 not do the legislature the injustice to say that such was 
 their intention, and would therefore give it such a con- 
 struction as would be consistent with natural justice and 
 the dictates of natural reason, though such construction 
 might be contrary to the letter of the statute. 
 
 § 146. In the case of Bonaparte v. The Camden and 
 Amboy Rail Road Company, («) Baldwin, Justice, held -^ 
 that the legislature had not the power to take the pro- 
 perty of a man for private purposes, without his consent. -{- 
 That if a law w r as clearly open to that objection, it would . 
 be a fatal one, as it was opposed to every constitutional 
 principle whicfl protects the right of property. 
 
 § J47. In 1844, the then attorney general of this state, 
 in a case referred to him by the senate,(&) says : " Even 
 were it assumed that the act then under consideration 
 would not be in direct conflict with any constitutional in- 
 hibition upon legislative authority, inasmuch as the gran- 
 tor has never yielded his assent thereto, in this country at 
 least, where the legislative authority, independent of the 
 constitution, cannot be regarded as omnipotent, it is not 
 competent for the legislature to invade the sanctuary of 
 private right, for purposes no w r ay connected with the pub- 
 lic exigencies or to transfer the property of one citizen to 
 another without his assent, either with or without just 
 compensation, and he held it at least questionable, whe- 
 ther the legislature, irrespective of the constitution, could 
 by legislative enactment clothe trustees charged with a 
 
 (a) 1 Baldw. C. C R. 223. (b) Senate Document No. 115.
 
 286 OP LEGISLATIVE POWER. [CHAP. Vlf. 
 
 trust under a deed with power to convey the premises de- f . 
 scribed therein, discharged of the trust created by and con- * 
 lained in the deed of their grantor." In Assembly Doeu- >^3 , 
 ment, No. 48, he says: "The legislature, independent of ' 
 any constitutional restriction, are undoubtedly vested \j 
 with all the legislative power possessed by the people N 
 themselves, and may exercise the same in any manner " ; 
 consistent with the principles of natural jimir< as amply 
 as the same could be exercised by those from whom this J ^ » 
 power itself is derived." It is evident that he was of the ^ ^ 
 opinion that the legislature were to confine their action ^'j i 
 within the principles of natural justice. 
 
 § 148. We have thus far endeavored to bring together 
 the cases and opinions in England and America which - 
 have fallen under our observation on a very limited 
 research, which have a bearing upon this most im-£}' 
 portant and interesting question ; in view of which, vs . 
 we are justified in the remark, that in this country the^ , 
 weight of authority seems to preponderate the scale inj4 S^J 
 favor of the doctrine that there are restrictions upon the-^1 
 legislative power, growing out of the^ajjurjLQfJthejayiP 
 compact, and the natural rights of men, independent of 
 any written constitutional restrictions and certain limits 
 fixed, beyond which that power cannot be lawfully called 
 into exercise. In a case where it should be manifest 
 that these limits had been passed, that a legislative act 
 if sanctioned and carried into effect would subvert the 
 very foundations of the civil compact, and natural right, 
 would take away without cause and for no oflTence the 
 liberty of the ^subject, that our courts would not aid in 
 carrying such an act of the legislature into effect, but 
 would declare it to be void. Still the question must be 
 regarded as an unsettled one, about which, it has been 
 shown, there is great conflict of opinion among learned 
 judges as well as ethical writers. Doubtless, a law in 
 direct conflict with the dictates of natural justice, which 
 
 I
 
 CHAP. VII.] OF I.KUISl.ATIVK POWKK. 287 
 
 should take the land or vested estate of one and give it 
 to another, either with or without compensation, where 
 the government was in no way interested in the transfer, 
 should be regarded as in conllict with the spirit of the 
 federal constitution, which inhibits the state legislatures 
 from passing any law impairing the obligation of con- 
 tracts. As this prohibition extends to executed as well 
 as executory contracts, (a) such an act seems to be em- 
 braced within its spirit. The question as to the right 
 oi courts to declare an act void, as against reason, 
 is certainly attended with more difficulty, and doubt- 
 less they would hesitate much in regard to their right 
 to declare an act void solely on this ground, where 
 there was no conllict with any constitutional prohibition. 
 When the legislature have deliberately passed an act 
 and clothed it with all the solemnities and authority of 
 a law, there might be great delicacy in any court assum- 
 ing to array its own reason against that of the legislative 
 body, acting as the legally constituted delegates of the 
 supreme power of the state, in the exercise of their con- 
 stitutional functions, and whose peculiar province it is 
 to pass upon the reasonableness or unreasonableness as 
 well as necessity of all law 7 s. 
 
 § 149. If this power and right of determination must of 
 necessity be vested in some department of the government 
 whose decision must be final and conclusive, where the 
 validity of an act depends merely upon a question of 
 reason, it may well be doubted whether this right of de- 
 termination can be lodged with greater security to the 
 citizen, in any other than the hands of their representa- 
 tives, who are immediately accountable to their consti- 
 
 (a) 3 Story on Const. § 1385, p. 256, 7. Fletcher v. Peck, 6 Cranch, 87, 
 135. 1 Kent's Com. 388. New Jersey v. Wilson, 7 Cranch, 164. Terrett 
 v. Taylor, 9 Cranch, 535. 1 Kent's Com. 38.
 
 288 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 tuents for all legislative acts, who are constantly subject 
 to a severe rebuke, and liable to a speedy removal from 
 the right to exercise this most sacred trust, should they 
 be .so regardless of moral principle, or of the consequences 
 which must result to themselves, should they dare to 
 abuse their trust by trampling under foot the sacred in- 
 herent rights of man. Higher considerations, and a 
 more imperious duty, would press upon the minds of 
 our judicial tribunals, should the legislative department 
 so far forget its obligations as to violate its trust, by the 
 passage of an act which would be subversive of the 
 great fundamental principles of the social compact, at 
 war with the spirit, object and design of that compact. 
 If called upon to pass upon such an act, the natural 
 delicacy of the judiciary would, doubtless, yield to the 
 more imperious necessity of vindicating natural right, 
 sustaining natural justice, protecting the social compact, 
 so that there would be less reluctance or delicacy in the 
 exercise of their judicial functions, in the discharge of 
 their duty to society and their country, as well as in 
 view of their accountability to a higher and more august 
 tribunal, to declare such an act as not within the 
 powers delegated to the legislature and therefore null 
 and void. However this question may be regarded, it 
 affords consolation to the American patriot to indulge in 
 the reflection, that it is undoubtedly true under our form 
 of government, owing to the immediate accountability of 
 the representative to his constituents, the deep and per- 
 vading sense of duty as well as of justice, the prevalence 
 of moral and religious principles in the community, there 
 is less reason to apprehend an occasion which shall call 
 for a judicial determination of this point in this country 
 than there is under any other form of government. Our 
 representatives being selected by all classes of society 
 from among the people themselves, each entitled to a
 
 CHAP. VII.] OF LEGISLATIVE POWER* 289 
 
 voice ill that selection, and every man rendered eligible 
 to this exalted station of trust and power, a sacred re- 
 gard for individual right of property, and the security 
 of civil liberty, is the natural production of republican 
 institutions. Property too, in this country, being more 
 equally divided than in most any other, all classes 
 in society being more or less in the enjoyment of it, 
 and sharing equally in the fruits of our republican insti- 
 tutions, most of our citizens are doubtless deeply im- 
 pressed with the importance and necessity of its protec- 
 tion. This high regard for the elementary principles of 
 natural justice; for the fundamental principles of our 
 state and national constitutions, has become so indelibly 
 impressed upon the minds of the great masses in society, 
 there is less danger of these principles being forgotten, 
 disregarded, or trampled under foot by our representa- 
 tives than under any other form of government. 
 
 The genius and spirit of our institutions, the nature 
 and character of our civil and social relations, the funda- 
 mental principles of our social compact, are so accurate!/ 
 denned by means of our written constitutions as not 
 readily to be misapprehended ; hence there is less dan- 
 ger to be apprehended of a flagrant abuse of trust or a 
 disregard of duty by the constituted representatives of a 
 spirited, chivalrous, free, and enlightened constituency.. 
 
 § 149. Under this head it may be well to consider the 
 power of the legislature, independent of any constitutional 
 restrictions to pass retrospective laws which shall have 
 a retroactive effect. At this point the question arises, 
 what is a retrospective law in thesense which in this 
 connection we use the term ? Retrospective laws are 
 not confined to such as are enacted to take effect at a 
 time anterior to their passage ; but this term embraces 
 all statutes which, though operating only from their pas- 
 sage, affect vested rights and past transactions. It 
 
 3?
 
 290 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 would be a construction utterly subversive of all the 
 objects of an implied inhibition upon legislative power 
 in this respect, to confine it to statutes which were to 
 take effect anterior to their passage. It would enable 
 the legislature to accomplish that indirectly, which we are 
 now contending it cannot do directly. Upon principle, 
 every statute which, as to the citizen, takes away or im- 
 pairs vested rights acquired under existing laws, or creates 
 a new obligation, or imposes a new duty, or attaches a 
 new disability in respect to transactions or considera- 
 tions already past, must be deemed retrospective. {a) 
 
 § 150. Having defined the term " retrospective law" 
 the question arises, can the legislature, in the exercise of 
 its inherent power, lawfully enact such a law, or would 
 such a law if enacted bind the citizen 1 In the conside- 
 ration of this question we shall assume, that all the 
 legislative power of the people of a state is vested in the 
 legislature, as their legally constituted representatives. 
 For the constitution of a state is not, as is the federal 
 constitution, a mere delegation of power to the legislature, 
 but a restriction upon the otherwise inherent power of 
 this department of government. It is undoubtedly true, 
 that a state legislature is vested with all the law making 
 power of the state. But does the law making power 
 give to the legislature the power to make a retrospective 
 law, to have a retroactive effect ; that is a law to regu- 
 late transactions past, or to fix and prescribe a rule of 
 civil conduct for times and events past? 
 
 § 151. The answer to this question involves the in- 
 quiry, what is legislative power ? This may be defined, 
 the power to enact rules which must be observed in the 
 civil conduct of men ; or in other words, the legislative 
 power in this respect is synonymous with law making 
 authority, or a power to enact laws. The legislature 
 
 (a) The Society, <ffc. } v. Wheller, 2 Gallis. 139.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 291 
 
 then, under its general power of law making, can enact 
 laws; and under tliis inherent power-; it can do no- 
 thing more. What then is a law? It is a rule of civil 
 conduct, and as such prescribed for, and attaching itself 
 to, the future actions of men. It must from its very 
 nature be prospective, otherwise it cannot be a rule of 
 civil conduct. It cannot attach itself to conduct ante- 
 cedent to the rule itself. It is impossible to form the 
 idea of a rule of civil conduct applicable to acts done 
 antecedent to the rule itself; for at the time the particu- 
 lar past transaction took place, a law subsequently 
 passed was not, and could not from the very nature of 
 the case, be then an existing rule governing such conduct. 
 The conduct of the past must stand acquitted or con- 
 demned, be lawful or unlawful, when judged by those 
 rules, and those only, which had an existence at the time 
 the transaction took place. The future alone can be 
 called upon to observe the dictates of every new rule. 
 It has been very justly said — " To establish a rule by 
 which a person should be required to shape his past 
 conduct, would be to legislate an absurdity ; to enact 
 what would be an utter impossibility." 
 
 Chancellor Kent says : " The very essence of a new 
 law is a rule for future cases." "JVova constitutio fataris 
 for mam imponere debet et non pr&teritis" is the language 
 of Bracton.(a) 
 
 § 152. The construction put upon legislative power 
 at a very early period accords with this view. English 
 courts as early as 1667, decided that a statute could not 
 operate retrospectively. When, therefore, the term le- 
 gislative power is used in a state constitution, this term 
 must be deemed to be used in accordance with this com- 
 mon acceptation of the term, as defined by the common 
 
 (a) Liber iv. p. 228.
 
 292 OP LEGISLATIVE POWER. [cHAP. VII. 
 
 law of England antecedent to the existence of any of 
 our state constitutions. Unless such are the limits to 
 legislative authority, no man can know what his rights 
 are, or the law by which they are to be ascertained, or 
 what property is his or another's. A law or rule of 
 civil conduct looking before and after is certainly incon- 
 sistent with all ideas of a law in its settled, deiinite, tech- 
 nical sense. 
 
 § 153. Retrospective laws are not only inconsistent 
 with the idea of a law, as a rule of civil conduct, but 
 they are in many instances only the exercise of powers 
 which are in their nature strictly judicial, instead of 
 legislative. Such laws, when only such, look not to the 
 future, but upon the past ; or, in other words, pronounce 
 judgment upon acts done antecedent to their adoption ; 
 and, in this respect, they assume a judicial power, as 
 contradistinguished from what is strictly legislative power. 
 They assume to give character to facts which they did 
 not possess at the time they took place, and then to judge 
 of them in the new character thus legislatively created 
 for them; to settle, in some instances, old rights depend- 
 ing on laws as they existed before the act was passed, 
 by new principles created and applied by the retrospec- 
 tive act having no existence antecedent to the time of its 
 passage, which then, and not till then, sprang into being. 
 
 § 154. Such acts have frequently been considered as 
 unconstitutional: that question, however, does not arise 
 under our present inquiry. We shall consider it, as 
 well as the question as to what acts are deemed retro- 
 spective, in a subsequent chapter. What we have said 
 in this connection we think clearly indicates that legisla- 
 tive omnipotence with all of its creative energies, must be 
 regarded as possessing no power under its inherent law 
 making power to create or prescribe a rule of civil con- 
 duct, applicable to the past, affecting vested rights. 
 Every attempt of that kind, from the very nature of the
 
 CItAP. VII.] OF LEGISLATIVE POWER. 293 
 
 case, must be regarded as ineffectual to attain such an 
 end if designed ; and whenever attempted to do so, it 
 should be treated as an abortive act. 
 
 § 155. In the remarks here made, we do not intend to 
 be understood as maintaining the proposition,. that the 
 legislature cannot under any circumstances pass a mere 
 remedial act. which in its effect by way of definition, may 
 have a retroactive operation, by way of relation to past 
 events. Such acts of legislation, when limited within 
 their appropriate sphere, may undoubtedly be within 
 legislative power, and such acts have often received a 
 judicial sanction. But the legislature under a pretence 
 of a remedial law, cannot engraft upon such law provi- 
 sions invading the sanctuary of vested rights, or prescribe 
 rules of action to be observed in reference to acts past, 
 impairing such rights or condemning such conduct, so as 
 to make acts previously done which were lawful in their 
 inception, unlawful ah initio. The constitution it is true, 
 has thrown around vested rights its broad shield, but 
 under the view we have taken, such rights would be 
 protected from acts of legislative aggression in the form 
 of retrospective laws, were the constitution entirely silent 
 upon this subject. 
 
 § 156. An eminent jurist has justly said : " Acts of 
 the legislature which look back upon interest already 
 settled, or events which have already happened, are re- 
 trospective, and our constitution has in direct terms pro- 
 hibited them, because ' highly injurious, oppressive, and 
 unjust.\d) But perhaps their invalidity results no more 
 from this express prohibition, than from the circumstance 
 that in their nature and effect, they arc not within the le- 
 gitimatt '■ exercise of legislative power. For, though under 
 the name of * ex post facto ' laws, when ' made for the 
 
 (a) BUI of Rights of N. 11. Ante $ 82, p. 127.
 
 294 OK LEGISLATIVE POWER. [ciIAP. VII. 
 
 punishment of offences' they have long been seriously 
 reprobated because more common in times of commotion, 
 and because they endanger the character and person, as 
 well as property ; yet laws for the decision of civil causes 
 made after the facts upon which they operate ex jure 
 post facto, are alike retrospective, and rest on reasons 
 alike fallacious." He, however, wished it distinctly un- 
 derstood that acts of the legislature were not within the 
 above prohibition, unless they operate upon the interest 
 of individuals, or of private corporations. Nor were 
 they within them when, in any implied or express man- 
 ner, the parties affected had consented to their passage ; 
 as all public officers impliedly consent to alterations of 
 the institutions in which they officiate, provided the 
 public deem it expedient to introduce a change, so all 
 citizens consent to the passage of acts which the consti- 
 tution in express terms has enabled the legislature to 
 make, though those acts might otherwise be unjustifiable, 
 because all either aided to form, or by living under it, 
 are presumed to adopt the constitution. Nor could acts 
 of the legislature be opposed to these fundamental axioms 
 of legislation before particularized, unless they impair 
 rights which are vested, because most civil rights are 
 derived from public laws ; and if before the right became 
 vested in particular individuals, the convenience of the 
 state produces amendments or repeals those laws, those 
 individuals have no cause of complaint. The power 
 that authorizes or proposes to give, may always revoke 
 before an interest is perfected in the donee. («) 
 
 § 157. Under a statute of Massachusetts, which took 
 effect on the first day of June, 1818, and which provided 
 in substance, that the inhabitants of a town who might 
 have incurred expense for the support of any pauper, 
 might recover the same against such person by an action 
 
 (a) Woodbury, J., Merrill v. Sherburn, 1 N. H. Rep. 213.
 
 CHAP. VII ] OF LEGISLATIVE POWER. 295 
 
 of assumpsit, this question arose incidentally in an action 
 of assumpsit. (a) In that case a question was raised 
 whether, under this act, a recovery could be had against 
 a pauper for money advanced by a town in such expenses 
 before the act took effect. Chief Justice Parker, in de- 
 ciding that the act must be construed as prospective and 
 not retroactive, said, " It is objected to the recovery that, 
 as by law, no debt or promise was created by the per- 
 formance of the charitable duty imposed on the inhabit- 
 ants of towns and districts towards persons who might 
 fall into distress within their limits, it was not within 
 the constitutional power of the legislature to create a 
 new obligation, founded upon supplies which had been 
 enjoined by law before the passing of the statute. If it 
 be true, that this statute, instead of providing a remedy 
 for an existing contract, must be construed to create a 
 debt or obligation, on a consideration which had past, 
 and which was not of itself a legal foundation for a pro- 
 mise, it would seem very clear that the statute was en- 
 acted improvidently, and that it could not have the in- 
 tended operation. It must be presumed to have been 
 known to the legislature that an action could not be 
 maintained by the inhabitants of a town, for a reimburse- 
 ment of expenses incurred for the support of one, who 
 was actually a pauper when the supplies w r ere furnished, 
 and therefore it was less probable that it was intended 
 that this statute should have a retroactive effect. For 
 no legislator could have entertained the opinion that a citi- 
 zen, free of debt by the laws of the land, could be made a 
 debtor merely by a legislative act declaring him one. 
 
 § 158. Under the constitution of Massachusetts there 
 is no inhibition upon legislative power in this respect, 
 nor is there any in the federal constitution, as that is 
 only directed at ex jmst facto and not at retrospective 
 
 (a) The Inhabitants of Med ford v. Learned, 16 Mass. R. 215.
 
 296 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 Jaws. Hence, the power of the legislature above con- 
 sidered by Chief Justice Parker, was its power in this 
 respect irrespective of any constitutional restriction. It 
 is true, he placed the decision of the cause upon another 
 ground, and did not necessarily decide the precise point, 
 in question. Yet the above remarks clearly indicate 
 that on the point under consideration, his mind coincided 
 with the views we are endeavoring to establish on this 
 question. Mr. Justice Aikens, in the case of Bales v. 
 Kimball,(a) after adverting to Blackstone's definition of 
 law 7 , that is, " a rule of civil ctmduct prescribed '-" &c, and 
 " that all laws should be made to commence infuluro" says : 
 The court would not be understood to say that no statute 
 law can be valid which relates to a transaction antece- 
 dent to its enactment ; as, for instance, a statute of pardon. 
 The principle meant to be laid down is, that an act not ex- 
 pressh) permitted by the constitution., which impairs or lakes 
 away rights vested under jwe-ezisling laws is unjust, un- 
 authorized, and void. 
 
 § 159. We have been unable to find any case in our 
 courts where this precise point has received an authori- 
 tative judicial sanction, as in all cases which have come 
 under our observation where retrospective laws have 
 been declared void, it has been for the reason that such 
 laws were in conflict with some vested right, secured by 
 some constitutional guarantee, the difficulty surround- 
 ing this question has, in most cases, induced our courts 
 to elude the cmestion by a decision, that particular acts 
 were not to be construed as having a retroactive opera- 
 tion. We are aware that the view we have taken upon 
 the question of legislative power to pass retrospective 
 laws, having a retroactive effect, has been, in some in- 
 stances, denied, in others, questioned. A contrary opin- 
 ion has been attempted to be sustained and fortified by 
 
 (a) 2 Chip. R. 89.
 
 CHAP. VII.] OK LEGISLATIVE POWER. 297 
 
 arguments derived from the civil law, legislative prece- 
 dents, and judicial decisions. 
 
 § 160. The argument derived from the civil law is 
 that inferred from the language of the code : " Laws are 
 made with reference to cases that shall happen for the fu- 
 ture only, and must not comprehend actions that are passed 
 before their establishment, unless it is enacted that they shall 
 comprehend a past action." " Leges et constitntiones futu- 
 ris certain est dare formamncgot lis, non ad facta prr Oder ita 
 revocari ; nisi noniinatim et de praterito tempore et adhac 
 p&ndcntibws negotiis cautum sit. v (a) Domat states the 
 rule, with this exception, " unless for particular reasons 
 the new laws indicate expressly that their provisions are 
 to apply to the past, or unless without such indication 
 they must serve as a rule for past things," &c. It has 
 been supposed that the above cited provision in the code 
 inferentially sanctioned the making of retrospective laws. 
 That the civil law is the basis of the different codes on 
 the continent of Europe, and that the same general rule 
 was incorporated into the English law. To this we an- 
 swer, that, under this clause of the code, the question 
 determined by it is not one of power, but one of construc- 
 tion merely. But if it were, it by no means follows that 
 such a power under the despotic government of the Ro- 
 man emperors, if exercised by them, affords even a per- 
 suasive argument, much less a conclusive one, in favor 
 of the proposition that it remains inherent in the legis- 
 lature under our more enlightened system of government, 
 the spirit, genius, and whole theory of which is at 
 war with every principle of despotism or legislative ag- 
 gression or tyranny. May it not be reasonably inferred, 
 that during the more than thirteen centuries which have 
 elapsed since the code came forth(6) that some progress 
 
 (a) Wood's Civil L. 95. Chap. i. 24, 7. 
 
 (b) The code of Justinian was published A. D. 534, and tha Digest and 
 Pandects A. D. 533. 
 
 38
 
 298 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 has been made in the science of legislation, and especially 
 that some of the powers exercised under that ancient 
 system of government may be regarded as having long 
 since ceased to exist, or that they never received the 
 sanction of the people of our government, without which 
 they never could have crept into our political system, 
 which is practically and emphatically founded on the 
 assent of the people themselves. Certainly they cannot 
 be presumed to lurk under any general grant of legisla- 
 tive power, nor can they be said to result from any im- 
 plication. 
 
 § 161. We apprehend, however, that the doctrine that 
 retrospective laws having a retroactive effect may be 
 passed by the law makers, has but little countenance 
 in the doctrines of the civil law, excepting so far as they 
 are purely remedial in their character. A civil law wri- 
 ter lays down these rules on this subject : " Law is a 
 direction of manners, prescribing what is to be avoided ; 
 but they are things in future only that can possibly come 
 under that description, i. e. can be avoided or not. It is 
 a lesson or rule of conduct, wherein each man is told 
 what is expected of him for the future ; but it is alto- 
 gether unconcerned as to the part in which that man 
 has acted before. And how could it be otherwise 1 For 
 as positive law is only a declaration of will, and is gene- 
 rally concerned in prohibiting something which before 
 was not prohibited, how great would be the absurdity 
 to punish a transgression before it was declared to be so, 
 and restrain an evil which, ex hypothesi, is no evil at all. 
 
 " Quid enim antiquitas peccamt quce jircesentis legis in- 
 scia prisfmam secuta est juris observantiam.(a) In lege 
 voconia non est, fecit, fecerit ; neque in ulla prcetcritum 
 tenipus reprehenditur. De jure civili siquis novi quid in- 
 stituis, is omnia, que ante acta sunt, rata esse non patitur ? 
 
 (a) C. Vi. 23, 29.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 299 
 
 Cedo mihi Leges At'uuas, Furios, ipsam ut divi, voconiam, 
 omncs pratterca de jure civili; hoc peperiei in omnibus sta- 
 tui jus, quo post earn legem populus utatur.(a) But then 
 this regards only the actions of such as are subject to 
 law, not the disposition of such as have the power of form- 
 ing it. And therein consists the distinction of the two 
 principles which I have laid down. For no previous in- 
 stituted law of man can prejudice or invalidate any future 
 constitution ; so no future constitution can operate to the 
 prejudice of any past action. It is an equal absurdity, 
 that law in the one case should valere ad ventura, or in 
 the other ad prceterita.(l>) The writer then delineates 
 the line which limits the bounds of legislative authority 
 in this respect. He says : " What I have said of the 
 prevalence of law in futurum only, will have its use in 
 the following considerations. I have said that no law 
 giver was tied down to his own resolutions, but either 
 he himself or those that come after him, upon proper 
 emergencies and upon proper suggestions, might alter 
 them for the public advantage. It must, however, be 
 understood with this restriction, " that Iw cannot alter 
 his mind to another marts disadvantage ,"(c) or amend a 
 law which to another has " created, a right" And even 
 this restriction wants to be restrained itself; for, " as to 
 that man he is bound, as to others not." The whole of 
 this is best seen by instances. As it is a matter of in^ 
 difference whether the state permits a man to dispose of 
 his effects, or directs them in a channel of nature to the 
 heirs at law. I can suppose one of the directions altered 
 on a sudden, and wills, for instance, to be declared of no 
 force hereafter. Here many things will meet my readers' 
 observation, which I have been discussing upon, to wit : 
 1st. As either way of succession vel ex testamento, vel 
 
 (a) Cic. III. Verrin, 42. (c) D. 50, 17, 75. 
 
 (b) Taylor's Civil Law, 168.
 
 300 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 ab intcstatio, is indifferent, the law may direct either 
 course indifferently, and change its mind uncontrolably. 
 
 2nd. Those who were in possession of property be- 
 fore, under the operations of a will, were in possession 
 of a right, which no power can defeat by the alteration 
 of judgment. 
 
 3d. For if an alteration of judgment in the legislator 
 could defeat a right created before, then a law can valere 
 in prateritura, which we have seen to be absurd. 
 
 4th. However, a right thus created to Tituis (for in- 
 stance) hinders not the law giver from prescribing other 
 regulations to Sempronius. He is not tied down fatally 
 to his own conclusions, nor those of others. 
 
 5th. But as there cannot be two laws for two several 
 people, since law, as we have seen, must speak a general 
 language, the effects only of the former law live in 
 Tituis; but Tituis, as well as Sempronius, is concluded 
 by the new law for future events, which was all this 
 new law could engage for, in the person of Sempronius, 
 as well as in the person of Tituis" Hence it will be 
 perceived that this civil law writer actually fixes the 
 limitations upon legislative power in strict accordance 
 with the rule for which we have been contending and 
 does not by any means give countenance to a contrary 
 doctrine. 
 
 § 162. The argument derived from legislative prece- 
 dent, unless that precedent has been of such uniform and 
 frequent occurrence as to raise the presumption that it 
 has received the tacit assent of the people, upon a ques- 
 tion of legislative power, is not by any means decisive of 
 this question, nor do we regard it, standing alone, as en- 
 titled to much weight in the decision of this point. The 
 degree of weight to which it is justly entitled will be 
 considered in another place. 
 
 § 163. It has also been insisted that this exception in 
 reference to retrospective laws has been, and is, recog-
 
 CHAP. VII.] OF LEGISLATIVE POWER. 301 
 
 nized in England. In support of this position, it has 
 been urged that in England it was for a long time a 
 settled rule of construction, that an act of parliament 
 which was to take effect from and after its passage, 
 should operate from the first day of the session, let the 
 act be passed on what day it might during the session ; 
 and that it had been held that this rule had been so long 
 settled it could not be shaken, and that even the life of a 
 person had been affected by the operation of it. That 
 if one of our state legislatures by accident or any other 
 cause, pass an act without date, the court must be go- 
 verned by the same rigorous rule. In answer to this 
 we have only to say, this rule originally was founded in 
 a theory false in fact, to wit: that laws being enacted 
 by the representatives of the people, every man in the 
 eye of the law was supposed to be present in the legis- 
 lature. An eminent divine, speaking of this presumption 
 has facetiously remarked, " It would be an improvement 
 on this delegated knowledge of the law, if the penalty 
 was also delegated and the criminal punished by repre- 
 sentation. "(a) This doctrine, that nought but parliament 
 could change the rule in England, rests on the basis that 
 the British parliament is omnipotent in the scale of po- 
 litical existence ; a doctrine which we have in this 
 chapter endeavoured to show^ ought not, and does not, 
 obtain under our govern ment. That" basis bein^ re- 
 moved, the rule itself must necessarily cease to exist. 
 Even in England it has on account of its hardship and 
 injustice, been changed by the statute of 33 Geo. 3, c. 
 13 ; and it ever has been the policy of our legislature to 
 prevent such absurdity and injustice; and it has by 
 express enactment uniformly provided, that statutes 
 should not take effect until a certain number of days after 
 their passage, except in instances in which no serious 
 
 (a) Robert Hall.
 
 302 OP LEGISLATIVE POWER. [cHAP. VII. 
 
 consequence could result to the citizen by the act taking 
 effect immediately. 
 
 § 164. It has been supposed that because the federal 
 constitution, as well as some of the state constitutions, 
 had prohibited " ex post facto" laws, that as every ex 
 post facto law was retrospective, but all retrospective laws 
 are not ex post facto according to the technical definition 
 of the latter term, the including the one, and excluding 
 the other ; precluded the idea that retrospective laws, as 
 contradistinguished from ex post facto laws, were intended 
 to be prohibited ; that this amounted to a tacit recogni- 
 tion of the validity of retrospective laws. This position 
 assumes what we are not prepared to admit, that but 
 for a constitutional restriction ex post facto laws might 
 lawfully be passed. We cannot admit that the restric- 
 tion necessarily implies the existence of the right ; but 
 we regarded it simply as a provision inserted for super- 
 abundant caution, under a supposition or apprehension 
 that the legislature might, in times of great political ex- 
 citement, be guilty of acts of usurpation and tyranny, 
 not legitimate legislation, in passing ex post facto laws. 
 Repeated instances of such usurpation have found place, 
 and stood as foul blots upon the legislative history of 
 • nations. If the restriction upon acts of usurpation does 
 not imply the existence of the right, then the argument 
 is fallacious and unsound. We apprehend that an inhi- 
 bition of murder under the statutes of a state, and the 
 omission of any provision against robbery \ would not ne- 
 cessarily imply a right in the citizen to rob his fellow 
 men. True, that is an instance of an act "malum in se;" 
 but is usurpation and tyranny any the less criminal in 
 iiself, especially if enacted against the life and liberty of 
 the citizen? 
 
 § 165. In support of such acts of legislation, much 
 stress has often been placed upon the dictum of Judge 
 Chase, that " Every law that takes away rights vested
 
 CHAP. VII.] OF LEGISLATIVE POWER. 303 
 
 agreeable to existing laws is retrospective, and is gene- 
 rally unjust and may be oppressive, and it is a general 
 rule that they should have no retrospect. But there are 
 cases in which laws may justly, and for the benefit of 
 the community, and also of individuals, relate to times 
 antecedent to their commencement, as statutes of oblivion 
 or pardon. They are certainly retrospective, and lite- 
 rally both concerning and after the facts committed. 
 Every law that is to have an operation before the making 
 thereof, as to commence at an antecedent time, or to save 
 from statutes of limitation, or to excuse acts which are 
 unlawful and before committed, and the like, is retro- 
 spective. But such laws may be proper or necessary, as 
 the case may be." 
 
 § 166. None of the instances cited by Judge Chase, 
 with a single exception, come within our definition of 
 the term retrospective laws, in the sense in which we use 
 the term ; and in the excepted instance, to wit : " Laws 
 to commence at an antecedent time" the nature of the law 
 thus referred to, is not stated. Acts of " oblivion' " and 
 u pardon^ are not rules prescribing or ordaining what 
 conduct shall be observed by the citizen as a rule to 
 him ; they only operate upon the government itself, and 
 even as to it, as a rule of conduct, they are in effect 
 prospective. The same may be said of acts, excusing 
 acts which have been before unlawfully committed. 
 The commandment given in such instances does not 
 direct how the individual citizen who may have sinned 
 shall in future conduct himself, or regulate his conduct, 
 but how the government in its future action, shall regard 
 and treat the sinner. Thus such acts, so far as the same 
 are mandatory or directory, are purely prospective. It 
 is true such statutes, as a future rule to be observed by 
 the government in defining to what particular acts its 
 action shall in that respect be confined, do by way of 
 definition refer to past events, but it is only by way of
 
 304 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 definition such reference is had. Statutes of limitation, 
 as rules of conduct, may he placed on the same ground. 
 They are directory to the judiciary, one department of 
 the government, as to the rule it should observe in all 
 future cases coming before it ; hence, to it as a rule, they 
 are in effect prospective. The legislature enact that no 
 action shall be maintained, unless commenced within a 
 given time. That is purely a commandment to the ju- 
 diciary, not to give a remedy. So long as that com- 
 mandment stands, it is true, as to it, it is a rule ; but it is 
 one which is wholly prospective. It is only to be a rule 
 for the judiciary, until that department of government 
 whose right it is in this respect to ordain, shall see fit to 
 revoke it, and when revoked it ceases to be a rule, even 
 to that department upon which it was enjoined, and is 
 only prospective in either event. Its operation as to 
 those to whom the commandment as such is given, is 
 not even retroactive. Such acts are not construed as 
 extending to actions previously instituted. Although in 
 the observance of this command as an effect proceeding 
 from this cause, the citizens of the government may incur 
 the loss of a particular remedy, which in its inception 
 originated in a mere permission of government. 
 
 § 167. The difficulty which has arisen in the minds 
 of many on this subject, and which has induced them to 
 imbibe the idea, that statutes of limitation were retro- 
 spective laws, has originated in a misconception of the 
 true nature and extent of the commandment in such acts 
 contained, and to whom as a rule of conduct such acts 
 are directed. Instead of viewing them as to the citizen 
 merely as permissive, provided their conditions were on 
 his part complied with, they have regarded them as 
 mandatory to him, whereas in truth and in fact, they are 
 merely mandatory as an imperative rule to the govern- 
 ment, and to it, as such, prospective merely. It is in this 
 way, and from this misconception, many have reared a
 
 CHAP. VII.] OF LEGISLATIVE POWER. 305 
 
 superstructure upon a false and baseless foundation, for 
 the purpose of demolishing our position by arguments 
 which are necessarily fallacious, and which lose their 
 force the instant the foundations upon which they rest 
 arc consumed by the torch light of truth. 
 
 § 168. Such statutes, it may also be claimed, do not 
 create the remedy, but are simply restrictions upon that 
 which before existed by mere tacit acquiescence on the 
 part of the government, not resting on the foundation of 
 any positive enactment ; hence whenever the government 
 deems it expedient to refuse further to yield its assent to 
 such a remedy in future actions, such refusal docs not in 
 any respect interfere with any vested right ; for a right to 
 a remedy, when not expressly created by positive enact- 
 ment, partakes rather of the nature of a right at will, 
 subject to be terminated at any moment when the go- 
 vernment shall see fit to change its mind in this respect ; 
 and which, when changed, only affects by way of defini- 
 tion, contracts antecedently made, when the same shall 
 thereafter come up for adjudication by that depart- 
 ment of the government to which such acts, in all future 
 cases, are a law or commandment. They do not even then 
 touch any essential element in the constitution of the 
 contract itself, but leave all its vital principles unim- 
 paired. To such a change of mind on the part of the 
 government, before any absolute right becomes vested 
 in the citizen, he may be deemed as having yielded an 
 implied assent. There seems no principle essential for 
 protection, that demands any inhibition of such acts. 
 The people when they founded the government, only 
 needed to secure rights of property and of person ; that 
 being done, they, in making provisions for a redress of 
 grievances, saw fit to and have founded a compact or 
 body politic, as the common arbiter between them, to 
 whose decision as to the mode of redress, they must be 
 deemed to have tacitly yielded their assent, subject to 
 
 39
 
 306 OF LEGISLATIVE TOWER. [CHAP. VII. 
 
 tins qualification only — that under a pretext of a remedy, 
 the government should not give a death-going stroke to 
 contracts between the parties, or vested rights of pro- 
 perty, or to personal rights. 
 
 § 169. If the view which we have presented is a cor- 
 rect one, then it seems to us, that instead of such statutes 
 being, as they have by some been understood to be, in- 
 fringements upon or exceptions to the rule, that the le- 
 gislature should not .pass retrospective laws, they are in 
 no sense as a rule ' prospective ; and are not either an 
 encroachment upon the rule, nor are they in fact excep- 
 tions to it ; but on the contrary, when properly under- 
 stood, are in perfect harmony with the position, that 
 laws ought not to be either retrospective in their enact- 
 ment, nor retroactive in their effect. Hence, the /act 
 that such laws have received judicial sanction, is not 
 conclusive as an argument in favor of the position that 
 the enactment of laws clearly retroactive is within the 
 legitimate powers of the legislature. 
 
 § 170. Is it asked what we have gained by establish- 
 ing the point, that statutes of limitation are not excep- 
 tions to the rule, that retrospective laws cannot be passed 
 by the legislature, as they are not, in any proper sense, 
 to be regarded as perspective. We answer, that in al- 
 most every instance in which the right to pass such 
 laws has been attempted to be vindicated, and this power 
 in the legislature sustained, such statutes constitute the 
 great chain of precedent, by which it is attempted to 
 bind down the intellects of men to a forced concession of 
 such power; nay more, they, and other statutes of the 
 same nature and standing upon the same basis, constitute 
 the only links in the chain of evidence, or arguments de- 
 duced on this subject. If we have successfully destroyed 
 that chain of precedent — if we have shown that such 
 statutes are not precedents in support of this right, or 
 instances of the exercise of such power by the legislature.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 307 
 
 then we have effectually annihilated the strongest for- 
 tress which the human intellect, and the most subtle 
 sophistry, has as yet been able to rear in defence of the 
 absurd position, that the legislature have a legitimate 
 right to pass laws retrospective in their nature, and retro- 
 active in their effects. 
 
 § 171. A learned and eminent counsellor, as well as 
 highly respected author, has, in our opinion, fallen into 
 an error as to the real nature and effect of such acts of 
 legislation, and thus been led to entertain an opinion 
 opposite to the one w r e have expressed. He has en- 
 deavored to support it on the authority of such acts hav- 
 ing been held valid acts of legislation. In view of various 
 cases of this character, in which such acts have been 
 sanctioned, he remarks : " From the preceding review of 
 the opinion of eminent jurists, and of adjudged cases, 
 it manifestly appears that there are by the law of all 
 states many cases in which the sovereign power may 
 enact laws which, theoretically speaking, are retrospec- 
 tive. And whence, it may be asked, does this arise ? 
 From the necessary imperfections in human society. If 
 society were so perfect, as never to be in need of occa- 
 sional remedial and equitable regulations, by means of 
 retrospective laws, it would perhaps hardly need any 
 laws. But, we shall be asked, perhaps, if there is no 
 limitation to this power of enacting retrospective laws ? 
 Unquestionably there is, in all communities, by that 
 tacit consent, which has been before mentioned ; and to 
 what particular such consent is given must be learned 
 from the habits and principles of the particular people 
 who compose any such community. When, therefore, 
 it is once admitted, that there are certain limitations of 
 the absolute rights of men, it becomes a mere question 
 of expediency with the sovereign power of the state, to 
 what extent such limitation shall be carried, subject only 
 to this restriction, that the retrospective provisions of
 
 308 OF LEGISLATIVE POWER. [CHAP. VII. 
 
 a law shall be reasonable, as it respects the whole com- 
 munity. 
 
 § 172. This argument assumes that such laws are an 
 infringement upon the rule that laws should not be retro- 
 spective. It seeks to make them exceptions, recognized 
 by the people, and resting solely on the basis of such tacit 
 acquiescence in them. Our previous position is a suffi- 
 cient refutation of this specious argument. He adds, 
 however, in connection with the above remarks, a pro- 
 position perfectly coincident with our views upon this 
 question. He says : " One settled distinction, however, 
 in regard to retrospective laws, appears to have been 
 universally recognized by courts of justice, that the legis- 
 lature may enact retrospective laws affecting the ?~emedy, 
 but not the rights of parties, as they are usually called. 
 It may indeed be difficult, in many cases, to determine 
 whether a law affects the one or the other, because every 
 remedy is, in a certain sense, a right. But when the 
 court shall have once arrived at the conclusion that a 
 law does, unequivocally, belong to the one or the other, 
 of these descriptions, they feel no hesitation in the opinion 
 that they ought to pronounce." In Dash v. VanKleek,(a) 
 it is laid down as a principle of universal jurisprudence, 
 that law, civil and criminal, must be prospective and 
 cannot have a retroactive effect, and an act of the legis- 
 lature was not to be construed to operate retrospectively, 
 so as to take away a vested right. 
 
 § 1 73. The exception to the rule that laws should not 
 have a retrospect, is thus laid down by the civil law 
 writer we have above referred to : " However, it is not 
 to be doubted, but that laws may, in some sense, and in 
 some particular considerations, have a retrospect. If a 
 law be introduced to explain or interpret an old one, 
 ctiam secundum posuimus legem, eadem valcrc sancientes — 
 
 {a) 7 J. R. 477.
 
 CHAP. VII.] OF LEGISLATIVE POWER. 309 
 
 et in heme quorpie secundum nostrum const'Uutionem simil- 
 iter udjecimus, oporlcre ejus legislutionem, et ad seniora re- 
 ferri tempera, e.rreptis Mis cuusis, (puis out judicialis, sen- 
 tcittiu, aut trunsactlo ten ulnar it. (a) If it be enacted de 
 rebus ad/ tue pendent ibus — if it be declarative of common 
 law — if it sliould be introductive of an exception or a 
 release, as, for example, if the legal interest of money 
 should be lowered by a new law, it is plain, that a for- 
 mer act (namely, the obligation of rendering a larger in- 
 terest,) is dissolved by this law and a new one con- 
 tracted.^) 
 
 § 174. We have only to say in conclusion, that our 
 remarks on this somewhat intricate question are sub- 
 mitted with much distrust and diffidence, as the results 
 of our own reflections. We have not given them to the 
 profession with an expectation that they will receive the 
 concurrence of other minds; nor do we desire to have it 
 understood, that they are in any respect authoritative ; 
 being assured that they will be coincided in only so far 
 as they are fortified by the reasoning and arguments we 
 have been able to adduce, upon a question of conceded 
 intrinsic difficulty and doubt. 
 
 («) Nov. 19, pr. (b) Taylor's Civil Law, IG9.
 
 310 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 CHAPTER VIII. 
 
 OP CONSTITUTIONAL RESTRICTION UPON LEGISLATIVE 
 
 POWER. 
 
 § 175. In a preceding chapter we considered the na- 
 ture and extent of legislative power, independent of any 
 restriction contained in the written fundamental law of 
 a state. First, under the form of government in England, 
 where the fundamental law has never been reduced to 
 the form of a written constitution ; and secondly, under 
 the forms of government of the states of this Union. 
 
 § 176. The subject next in order demanding conside- 
 ration is, what is the nature and the extent of restraints 
 upon the exercise of legislative power under our 
 own written constitutions ? They are of a two-fold cha- 
 racter : first, those imposed by the constitution of the 
 United States government ; and secondly, those imposed 
 upon the legislature of each state under the respective 
 state constitutions. In regard to the restrictions upon 
 the legislative powers contained in the federal constitu- 
 tion, it should be observed, that those restrictions have a 
 two- fold application, some being directed solely to the 
 powers of the congress of the United States, while others 
 are intended to act upon the legislative power of the re- 
 spective states. 
 
 § 177. I shall, in the first place, advert to those which 
 apply only to the congress of the United States. It may 
 be laid down as a general rule, that the limitations on 
 power contained in the United States constitution, when 
 expressed in general terms ; they are naturally and ne- 
 cessarily applicable to the government created by that 
 instrument, and have no application to the legislative
 
 CHAP. VIII.] UPON LEGISLATIVE POWBR. 311 
 
 power of the state governments. This rule was settled 
 by the Supreme Court of the United States in the case 
 of Barron v. The Mayor and City Council of Baltimore.(a) 
 In this case it was held, that the provisions in the 5th 
 amendment of the constitution of the United States, 
 which declared that " private property shall not be taken 
 for public use without just compensation/' was intended 
 solely as a limitation on the exercise of power by the 
 government of the United States, and was not applicable 
 to the legislatures of the states.(6) The reason for this 
 opinion was, that the constitution was ordained and 
 established by the people of the United States of America 
 for themselves, for their own government, and not for 
 the government of the individual states. That each 
 state established a constitution for itself, and in that 
 constitution provided such limitations and restrictions on 
 the power of its particular government as its judgment 
 dictated. That the people of the United States framed 
 such a government for the United States, as they sup- 
 posed best adapted to their situation, and best calculated 
 to promote their interests. The powers conferred on 
 their government were to be exercised by itself, and the 
 limitations on power, if expressed in general terms, were 
 naturally and necessarily applicable to that government 
 created by that instrument. They are limitations upon 
 the powers granted in the instrument itself, and not of 
 distinct governments framed by different persons, under 
 different instruments, and for different purposes. 
 
 § 178. In accordance with this principle, it has also 
 been held, that the seventh amendment of the constitu- 
 tion of the United States, which declares that, " in actions 
 at common law T , where the value in controversy shall 
 exceed twenty dollars the right of trial by jury shall be 
 
 (a) 7 Peters' Rep. 243. 
 
 (b) See also Livingston v. Mayor of New York, 8 "Wen. 85.
 
 
 312 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 preserved," does not apply to the state governments, but 
 restricts only the government and officers of the United 
 States, and proceedings in the federal courts, (a) So 
 too the same construction has been given to the sixth 
 amendment of the federal constitution, which secures to 
 the accused a trial by a jury in all criminal prosecu- 
 tions, (b) it has also, upon the same principle, been 
 held, that the provision in the constitution of the United 
 States, " That cruel and inhuman punishment shall not 
 be inflicted," does not extend to the state governments, 
 but was intended only for the legislature and judiciary of 
 the United States, (c) The same has also been held 
 in relation to the fourth amendment of that constitution, 
 securing persons, houses, &c, against unreasonable 
 searches and seizures, and requiring a particular de- 
 scription in warrant of the place to be searched or things 
 to be seized. (d) 
 
 § 179. It is proper before proceeding to the considera- 
 tion of the limitations upon the powers of the national 
 legislature, that we should also allude to a palpable dis- 
 tinction between the powers of congress, and those pos- 
 sessed by the legislatures of the respective states. On 
 the one hand, the legislature of the respective states, in- 
 dependent of any constitutional restriction, are undoubt- 
 edly vested with all the legislative powers possessed by 
 the people themselves in their individual capacity, and 
 may exercise the same in any manner consistent with 
 the great principles of natural justice, and as amply as 
 the same could be exercised by those from whom this 
 
 (a) Livingston v. The Mayor, <5fC.,of New York, 8 Wend. 100. Colt v. 
 Eves, 12 Conn. R. 243. 
 
 {b) Murphy v. The People, 2 Cowen, 815. Jackson v. Wood, 2 Cowen, 
 819. 
 
 (c) James v. The Co7nmonweallh, 12 Serg. & Rawle, 220. Barker v. The 
 People, 3 Cow. R. 087. 
 
 (d) Reed v. Rice, 2 J. J. Marsh. 45.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 313 
 
 power is derived, were tliey living under a purely demo- 
 cratic government. Unless there is sonic constitutional 
 restriction. 
 
 § 180. It should be observed, a constitution of a state 
 is a form of government instituted by the people in their 
 sovereign capacity, in which just principles and funda- 
 mental law is established. It is the supreme will of the 
 people, permanent, and fixed, in their original, unlimited, 
 and sovereign capacity ; and in it are determined the 
 conditions, rights, and duties of every individual of the 
 community. From the decrees of the constitution there 
 is no appeal, for it emanates from the highest source of 
 power, the sovereign people. Whatever condition is as- 
 signed to any portion of the people, by the constitution, 
 must necessarily be inevitably fixed, however unjust in 
 principle it may be, until revoked by the same sovereign 
 power. A legislative act is the will of the legislature ; 
 and it has been said, that the constitution is their com- 
 mission, and they must act within the pale of their 
 authority. But, however, it must be remembered, that 
 although the constitution of a state is a limitation upon 
 the powers of the legislative department, still that depart- 
 ment, unless restricted by the constitution, possesses 
 every power not delegated to some other department of 
 government, although, as to other departments, it is in 
 the nature of a general grant of powers.(«) 
 
 § 181. On the other hand, as the government of the 
 United States is a derivative one, it can claim no powers 
 which are not granted to it by the constitution, either in 
 express terms or by necessary implication. All powers 
 not delegated to it, or not inhibited to the states, are re- 
 served to them or the people. The powers bestowed 
 by the constitution upon the government of the United 
 States, are limited in their extent, and are not in- 
 
 (<z) Field v. The People, 2 Scamm. 81. 
 
 40
 
 314 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 tended to be, nor are they to be construed with other 
 powers before vested in the state governments. (a) As 
 the state governments retained the right to make all such 
 laws as they might think proper within the ordinary func- 
 tions of the legislature, if not inconsistent with the pow- 
 ers vested exclusively in the federal government, they 
 onlv look to that instrument for restrictions upon, and 
 not for grants of legislative authority, whilst the national 
 legislature are dependent entirely upon the provisions of 
 the federal constitution for all the powers which it pos- 
 sesses, and, like the government under which it exists, 
 it can exercise no powers except those expressly granted 
 or arising by necessary implication. 
 
 § 182. In order to arrive at an accurate and compre- 
 hensive view of the powers of, and restrictions upon 
 congress, it will be necessary in the first place to ad- 
 vert to the terms of the grant itself, and to the judicial 
 construction which it has received since its adoption. 
 In doing so, we shall take up each clause of the grant, 
 and then in connection with it allude to the construction 
 it has received, without any attempt on our part either 
 to discuss the question of the accuracy or inaccuracy of 
 such construction, or to review the conflict of opinion 
 between the judiciary and those master spirits of the age 
 of its adoption, who have reflected so much light upon 
 this intricate and most important question of interest to the 
 American nation. We shall confine ourselves to the text 
 of the constitution and to judicial construction, and stu- 
 diously avoid adopting the opinion either of political 
 writers or commentators upon this branch of American 
 jurisprudence. 
 
 § 183. The express, delegated powers of Congress are 
 define^ in the 8th section of Article I. of the Constitution 
 
 (a) 3 Wash. C. C. 313.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 315 
 
 of the United States, which declares that Congress shall 
 have power — 1st. To lay and collect duties, taxes, im- 
 posts and excises, to pay the debts and provide for the 
 common defence and general welfare of the United 
 States ; but all duties, imposts and excises, shall be uni- 
 form throughout the United States. 
 
 § 184. IwHylton v. The United States.(a) the question 
 involved in the case was, whether the law of congress of 
 5th June, 1794, entitled "An act to lay duties upon car- 
 riages for the conveyance of persons," was unconstitu- 
 tional and void. It was claimed that it was ; for that 
 the tax was direct, and should have been laid accordinii 
 to the census ; that it was not laid by that rule of appor- 
 tionment, but by the rule of uniformity prescribed in the 
 case of duties, imposts, &c. By the second section of 
 the first article of the constitution, direct taxes were to be 
 apportioned among the several states according to their 
 numbers. By section 9, no capitation or other direct 
 tax, was to be laid unless in proportion to the census. It 
 was held, that the great object of the constitution was to 
 give congress a power to lay taxes adequate to the exi- 
 gences of the government, but they were to observe two 
 rules in imposing them, to wit; uniformity when they 
 laid duties,, imposts and excises, and apportionment ac- 
 cording to the census when they laid a direct tax. 
 Other species of taxes, not direct, and not included in 
 the words duties, imposts and txcises, might be laid by 
 the rule of uniformity or not, as congress thought proper. 
 That if only these four species of taxes were meant, the 
 general power to lay taxes was unnecessary. If it had 
 been intended that congress only should lay those four 
 taxes, &e., the language would have been, " Congress 
 shall have power to lay and collect direct taxes and 
 
 (a) 3 Dallas, 171.
 
 316 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 duties, imposts and excises. The first shall be laid ac- 
 cording to the census, and the last three shall be uniform 
 throughout the United States." The power in this 8th 
 section to lay and collect taxes, includes a power to lay- 
 direct taxes whether capitation or any other. And also 
 duties, imposts and excises, and every other species and 
 kind of tax whatever, and called by any other name. 
 Duties, imposts and excises, were enumerated after the 
 general and comprehensive term, taxes, only for the pur- 
 pose of declaring that they were to be laid by the rules 
 of uniformity. A general power was given to collect 
 taxes of every kind or nature without any restraint, ex- 
 cept only on exports ; and two rules are prescribed for 
 their government, uniformity and apportionment. Three 
 kinds of taxes, to wit: duties, imposts and excises, by 
 the first rule, and capitation or other direct taxes by the 
 second rule. That some taxes might be direct and in- 
 direct at the same time, but no taxes were contemplated 
 as direct taxes, but only such as congress should lay in 
 proportion to the census. The rule of apportionment 
 was only to be adopted in such cases where it could 
 reasonably apply, and the subject taxed must determine 
 the application of the rule. It was conceded that if this 
 was a direct tax it would be unconstitutional, because it 
 had been laid pursuant to the rule of uniformity, and not 
 to the rule of apportionment. On the one hand it was 
 contended, that as a tax on carriages did not come 
 within the words duties, imposts or excises, it was a 
 direct tax; and on the other hand, that as this tax is 
 not a direct tax, it must be a duty or excise. Patterson, 
 Justice, held the term taxes was generical, and was 
 made use of to vest in congress plenary authority in all 
 cases of taxation. The general division of taxes was 
 into direct and indirect ; indirect stands opposed to direct. 
 There might be an indirect tax on a particular article, 
 that could not be comprehended within the description
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 317 
 
 of duties, imposts and excises. In such cases it was 
 comprehended under the general denomination of taxes. 
 The term tax was a. genus, and included, 1. Direct taxes. 
 2. Duties, imposts, and excises. 3. All other classes of 
 an indirect tax, and not within any of the classifications 
 enumerated ahove. 
 
 § 185. Iredell, J., held, that congress possessed the 
 power of taxing all taxable objects without limitation, 
 with the particular exception of a duty on exports. 
 There were only two restrictions on the exercise of this 
 authority : 
 
 1. All direct taxes must be apportioned. 
 
 2. All duties, imposts or excises, must be uniform. 
 That this tax could not be considered within the 
 
 meaning of the constitution, a direct tax, nor was it 
 comprehended within the terms duties, imposts or exci- 
 ses ; hence, there was no provision in the constitution 
 one way or the other, so that it was left to such an ope- 
 ration of the powers as if the authority to lay taxes had 
 been general in all instances, without saying any thing 
 about uniformity or apportionment. As all direct taxes 
 must be apportioned, the constitution contemplated none 
 as direct but such as could be apportioned. That this 
 could not be apportioned, and therefore was not a direct 
 tax. 
 
 § 186. It may not be amiss in this connection to re- 
 mark, that it has been questioned whether in cases 
 where this power of taxation vested in congress, it was 
 not to be exercised alone by it exclusive of the state 
 sovereignties. The principle now seems well settled 
 that in consequence of the supremacy of the laws of 
 congress, and the necessary consequence of that su- 
 premacy, its instruments employed in the execution of 
 its powers, are exempt from taxation by the state go- 
 vernments. These decisions rest upon the principle, 
 that although the sovereignty of the state extends to
 
 318 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 every thing which exists by its own authority, or is in- 
 troduced by its permision ; it does not extend to those 
 means which are employed by congress to carry into 
 execution powers conferred upon that body by the peo- 
 ple of the United States.(rc) 
 
 § 187. In the case of Loughborough v. Blake^b) it be- 
 came a question whether, under this section of the consti- 
 tution, congress had the power to levy a direct tax on the 
 District of Columbia. It was held that it had ; that the 
 grant was general, without limitation as to place ; that it 
 consequently extended to all places over which the go- 
 vernment extends. If there could have been a doubt of 
 this, it would be removed by the subsequent words 
 which modified the grant. These were — " Bat all du- 
 ties, imposts and excises, shall be uniform throughout the 
 United States" It could not be contended, that the 
 modification of the power conferred extends to places to 
 which the power itself did not extend. That this power 
 thus modified, must be exercised throughout the United 
 States. The District of Columbia, or the territory west 
 of the Missouri, was not less within the United States 
 than New York or Pennsylvania, and it was not less 
 necessary on the principle of the constitution, that this 
 uniformity should be observed in the one, than in the 
 other. Since the power to lay and collect taxes, which 
 includes direct taxes, is co-extensive with the power to 
 lay and collect duties, &c, and since this extends 
 throughout the whole United States, the power to im- 
 pose direct taxes also extends throughout the whole 
 United States. 
 
 § 188. The second grant of power to congress is — to 
 
 BORROW MONEY ON THE CREDIT OF THE UNITED STATES. 
 
 (a) 4 Pet. R. 564 ; 4 Wheat. 316 ; 4 Cond. 468 ; 9 Wheat. 738 ; 5 Cond. 
 742. 
 
 (b) 5 Wheat. 317 ; 4 Cond. 660.
 
 CHAP. VTTI.] UPON LEGISLATIVE POWER. 310 
 
 It has been held, that this power to borrow money thus 
 conferred on the congress of the United States, amounts 
 to an inhibition against the state legislatures passing 
 any act which may in its effect operate as a restraint or 
 control over the exercise of this power, and hence that 
 no tax can be imposed by authority of state laws upon 
 stock issued by the United States for loans made to it. 
 It has been asked if the states and corporations through- 
 out the Union possess the power to tax a contract for 
 the loan of money, what shall arrest the principle in its 
 application to every other contract? What measure can 
 government adopt which will not be exposed to its in- 
 fluences '] No power has been conferred by the Ameri- 
 can people on their government, the free and unrestrained 
 exercise of which more deeply affects every member of 
 the republic. It was when the honor, the safety, the 
 independence of the nation were to be defended, when 
 all its resources were to be strained to the utmost, credit 
 must be brought in aid of taxation. And the abundant 
 revenue of peace and property must be anticipated to 
 supply the exigences, the urgent demand of the moment. 
 The people, for objects the most important which can 
 occur in the progress of nations, have empowered their 
 government to make the anticipation " to borrow money 
 on the credit of the United States." Could any thing be 
 more dangerous or more ignominious, than the admission 
 of a principle which authorizes every state and every 
 corporation in the Union, which possesses the right of 
 taxation, to burthen the exercise of the power at their dis- 
 cretion 1 If the right to impose the tax exists, it is a right 
 which in its nature acknowledges no limits. It may be 
 carried to any extent within the jurisdiction of the state 
 or corporation which imposes it, which the will of each 
 state and corporation may prescribe. A power which 
 is given by the whole American people for their common
 
 320 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 good, which is to be exercised at the most critical periods 
 for the most important purposes, on the free exercise of 
 which the interests certainly, perhaps the liberty of the 
 whole, may depend, may be burthened, impeded, if not 
 arrested, by any of the organized parts of the confede- 
 racy. That the power of taxation was one of the most 
 essential to a state, and one of the most extensive in its 
 operation. The attempt to maintain a rule which should 
 limit its exercise, was undoubtedly among the most deli- 
 cate and difficult duties which could devolve on those 
 whose province it is to expound the supreme law of the 
 land in its application to the cases of individuals. In 
 the performance of it, courts have considered it as a 
 necessary consequence from the supremacy of the go- 
 vernment of the whole, that the general government in 
 its action in the exercise of its legitimate powers, should 
 be free and unembarrassed by any conflicting powers in 
 the possession of its parts ; that the powers of a state 
 could not rightfully be so exercised as to impede and 
 obstruct the free course of those measures which the 
 government of the states united may rightfully adopt. 
 
 § 189. It was admitted that the power of a govern- 
 ment to borrow money cannot be directly opposed, and 
 that any law directly obstructing its operation would be 
 void ; but a distinction was taken between direct oppo- 
 sition, and those measures which might consequently 
 affect it; that is, that a law prohibiting loans to the 
 United States would be void, but a tax on them to any 
 amount was allowable. This distinction was not up- 
 held by the court. It held it was not the want of original 
 power in an independent sovereign state, to prohibit 
 loans to a foreign government, which restrains the legis- 
 lature from direct opposition to those made by the United 
 States. The restraint was imposed by our constitution. 
 The American people had conferred the power of bor- 
 rowing money on their government, and by making that
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 321 
 
 government supreme, had shielded its action in the exer- 
 cise of this power, from the action of the local govern- 
 ments. The grant of the power was incompatible with 
 a restraining or controlling power, and the declaration of 
 supremacy is a declaration that no such restraining or 
 controlling power should be exercised. The right to 
 tax the contract to any extent when made, must operate 
 upon the power to borrow before it is exercised, and 
 have a sensible influence on the contract. The extent 
 of this influence depends on the will of a distinct go- 
 vernment. To any extent, however inconsiderable, it is 
 a burthen on the operations of government. It may be 
 carried to an extent which shall arrest them entirely. (a) 
 The case last cited reversed the same case decided in 
 the court of South Carolina.(6) 
 
 § 190. It has also been held, that the states have no 
 right to tax any of the constitutional means employed by 
 the government of the United States to execute its 
 constitutional powers. That the states had no power 
 by taxation or otherwise, to retard, impede, burthen, or 
 in any manner control the operation of the constitutional 
 laws enacted by congress to carry into effect the powers 
 vested in the national government. That a law impo- 
 sing a tax upon all banks or branches thereof in the 
 state of Maryland not chartered by the legislature, was 
 unconstitutional so far as it taxed the capital of the bank 
 of the United States situate in that state. Although it 
 was admitted that this principle did not extend to a tax 
 paid by the real property of the bank of the United 
 States, in common with other real property in a particu- 
 lar state ; nor to a tax imposed on the proprietory inte- 
 
 (a) Weston el al. v. The City Council of Charleston, 2 Pet. R. 465. 
 
 (6) Harper, 310. See also, The Commonwealth v. Morrison, 2 Marsh. 75. 
 
 41
 
 322 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 rest which the citizens of that state might hold in the 
 institution, in common with other property of the same 
 description throughout the state.(a) 
 
 § 191. It was admitted in that case, that the power 
 of taxation was one of vital importance ; that it was re- 
 tained by the states ; that it was not abridged by a grant 
 of a similar power to the government of the Union, and 
 that it was to be concurrently exercised by the two govern- 
 ments ; but that such was the paramount character of 
 the constitution, that it had capacity to withdraw any 
 subject even from the action of this power. That the 
 states were expressly forbidden to lay any duties on 
 imports or exports, except what might be absolutely 
 necessary for executing their inspection laws. 
 
 § 192. If the obligation of this prohibition must be 
 conceded — if it might restrain a state from the exercise 
 of its taxing power on imports and exports, the same 
 paramount character would seem to restrain, and cer- 
 tainly might restrain, a state from such other exercise of 
 this pow 7 er as was in its nature incompatible with and 
 repugnant to the constitutional laws of the Union. It 
 was admitted that there was no express provision for 
 this case ; but that the claim was sustained on a princi- 
 ple which so entirely pervaded the constitution, was so 
 intermixed with the materials which composed it, so in- 
 terwoven with its web, so blended with its texture, as to 
 be incapable of being separated from it without rending 
 it into shreds. This great principle was, that" the con- 
 stitution and the laws made under it, were supreme, that 
 they controlled the constitutions of the respective states. 
 That a power to create implied a power to preserve ; 
 that a power to destroy, if wielded by different hands, 
 was hostile to, and incompatible with these powers to 
 
 (a) McCulloch v. Stale of Maryland, 4 Wheat. 316.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 323 
 
 create and preserve. That where this repugnancy exists 
 that authority which was supreme must control, and not 
 yield to that over which it was supreme. That a power 
 to create a bank had been established in this case ; that 
 the power of taxing it by the state might be exercised 
 so as to destroy it, was too obvious to be denied. It 
 was admitted that the power of taxing the people and 
 their property was essential to the very existence of go- 
 vernment, and might be legitimately exercised on the 
 objects to which it was applicable, to the utmost extent 
 to which the government might choose to carry it. That 
 the only security against the abuse of this power was 
 found in the structure of the government itself. In im- 
 posing a law, the legislature acts upon its constituents. 
 That this was, as a general thing, a sufficient security 
 against onerous and oppressive taxation. That the 
 people of the state therefore give the government a right 
 to tax them and their property, as the exigences of go- 
 vernment cannot be limited, they prescribe no limits to 
 the exercise of this right, resting confidently on the in- 
 terest of the legislature, and on the influence of the 
 constituents over the representatives to guard against its 
 abuse. But the means employed by the government ot 
 the Union had no such security. That the power to 
 tax involved the power to destroy.; the power to de- 
 stroy might render useless the power to create. There 
 was a plain repugnance in conferring on one govern- 
 ment a power to control the constitutional measures of 
 another, which other with respect to these very mea- 
 sures was declared to be supreme over that which 
 exerted a control. If the states might tax one instrument 
 employed by the government in the execution of its 
 powers, they might tax any and every other instrument ; 
 the mail, the mint, patent rights, papers of the custom 
 house, laws, and judicial powers, and all the means em- 
 ployed by the government, to an excess which would de-
 
 324 OP CONSTITUTIONAL RESTRICTION [cHAP. VIII. 
 
 feat the ends of government. It however was determined, 
 that this principle did not extend to a tax paid by the real 
 property of the bank of the United States, in common with 
 the other real property in a particular state, nor to a tax 
 imposed on the proprietory interest which the citizen of 
 the state might hold in this institution, in common with 
 other property of the same description throughout the 
 state. 
 
 § 193. It has also been held that a captain of a United 
 States revenue cutter on a station in the state of Penn- 
 sylvania was not liable to be rated and assessed for 
 county taxes, as an officer of the United States, for his 
 office. In this case, it was admitted that taxation was 
 a sacred right, essential to government — an incident of 
 sovereignty. That the right of legislation was co-exten- 
 sive with the incident, to attach it upon all persons and 
 property within the jurisdiction of a state ; but that in 
 our system, there were limitations upon that right. 
 There was a concurrent right of legislation in the states 
 and the United States, except as both are restrained by 
 the constitution of the United States. Both were re- 
 strained upon this subject by express prohibitions in the 
 constitution. And the states, by such as are necessarily 
 implied where the exercise of the right by a state con- 
 flicts with the perfect execution of another sovereign 
 power of the United States. That occurred whenever 
 taxation by a state acted upon the instruments, emolu- 
 ments and persons which the United States might use 
 and employ, as necessary and proper means to execute 
 their sovereign powers. The government of the United 
 States was supreme in its sphere of action. The means 
 proper to carry into effect the powers of the constitution 
 were in congress. Taxation was a sovereign power in 
 a state, but the collection of revenue by impost upon im- 
 ported goods, and the regulation of commerce, were also 
 sovereign powers in the United States. That congress
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 323 
 
 bad power to lay taxes, duties, imposts, &c., and to re- 
 gulate commerce ; neither could be done without legis- 
 lalion. A complicated machinery of form, instruments, 
 and powers must be established, and the better to secure 
 the collection of duties revenue cutters, and officers to 
 command them, were necessary. They were the means 
 necessary to an allowed end ; the end the great object 
 which the constitution was intended to secure to the states 
 in their character of a nation. That such officers were no 
 less the means to carry into effect those great objects 
 than the vessels or other instruments, neither of which 
 could be taxed. To allow such a right of taxation to be 
 in the states, would also, in effect, give to the states a 
 revenue out of the revenue of the United States, to which 
 they were not constitutionally entitled, either directly or 
 indirectly. That the constitutionality of such taxation 
 by a state, might be put upon its interference with the 
 constitutional means which have been legislated by the 
 government of the United States to carry into effect its 
 powers, to lay and collect taxes, duties, imposts, &ca 
 But that there was another ground upon which it might 
 be put, that the power of the national government could 
 only be executed by officers whose services must be 
 compensated by congress. The allowance was in its 
 discretion. The presumption was, that the compensa- 
 tion given by law was no more than the services w r ere 
 worth, and only such an amount as would secure from 
 the officers the. diligent performance of their duties. 
 " The officers execute their offices for the public good. 
 This implies their right of reaping from hence the recoup 
 pense the services they rendered deserved, without that 
 recompense being in any way lessened, except by the 
 sovereign power from whom an officer derives his ap- 
 pointment, or by another sovereign power to whom the 
 first has delegated the right of taxation over all the ob- 
 jects of taxation, in common with itself, for the benefit of
 
 320 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 both. And no diminution in the recompense of an officer 
 is just and lawful unless it be prospective or by way of 
 taxation by the sovereignty who have a power to impose 
 it, and which was intended to bear equally with all, ac- 
 cording to their estate. The compensation of an officer 
 of the United States was fixed by a law made by con- 
 gress. It was its exclusive discretion to determine what 
 should be given. It exercised the discretion and fixed the 
 amount, and conferred upon the officer the right to receive 
 it when it was earned. That a tax by a state upon the 
 office diminished the recompense and conflicted with 
 the law of the United States, which secured to the offi- 
 cer its entireness. It had such an effect, and hence 
 such a law could not be constitutional. (a) 
 
 § 194. The third power granted to congress is: To 
 regulate commerce with foreign nations and among the 
 several stales and witlt the Indian tribes. This clause of 
 the constitution has been frequently under consideration. 
 In Gibbon v. Ogden,(b) the question arose, whether an 
 act of the legislature of the state of New York, granting 
 unto certain persons the exclusive right of navigating the 
 waters of that state with steamboats, was in collision 
 with the act of congress regulating the coasting trade, 
 made pursuant to the constitution. It was held, that it 
 was, and as the laws of congress thus made were su- 
 preme, the state laws must yield to that supremacy, 
 although enacted in pursuance of powers acknowledged 
 to remain in the state. 
 
 § 195. It was held that the w T ord " commerce" was 
 not limited to traffic, to buying and selling, or the inter- 
 change of commodities. That it also comprehended 
 navigation. That commerce was traffic, but it was also 
 something more, it was intercourse. It was descriptive 
 
 (a) Dohbin v. Lake Erie Co. 16 Peters, 435. 
 (/,) 9 Wheat. 1.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 327 
 
 of commercial intercourse between nations and parts of 
 nations, in all its branches, and was regulated by pre- 
 scribing rules for carrying on that intercourse. That the 
 mind could scarcely conceive a system for regulating 
 commerce which should include all laws concerning 
 navigation, which should be silent on the admission of 
 the vessels of one nation into another. That unless 
 commerce included navigation the government of the 
 Union had no direct power over that subject, and could 
 make no laws prescribing what should constitute Ameri- 
 can vessels, or requiring them to be navigated by Ame- 
 rican seamen. This had been done and had been under- 
 stood to be a commercial regulation. All America un- 
 derstood commerce to include navigation. It was so 
 understood when the constitution was framed. The 
 convention must have understood the word in that sense. 
 This view was confirmed by the instrument itself. It 
 was a rule of construction, that exceptions from a power 
 mark its extent, as it would be absurd to except from a 
 created power what was not granted. There were in 
 the constitution plain exceptions from the power over 
 navigation, plain inhibitions to the exercise of that power 
 in a particular w 7 ay, which w 7 as evidence that those w 7 ho 
 made these exceptions understood the power to which 
 they applied were granted. The constitution declared, 
 " no preference shall be given by any regulation of com- 
 merce or revenue to the ports of one state over another." 
 This clause was expressly applied to commercial regu- 
 lations. The most obvious preference which could be 
 given to one port over another in regulating commerce, 
 related to navigation. Another clause, still more explicit, 
 was: "Nor shall vessels bound to or from one state be 
 obliged to enter, clear, or pay duties in another." This 
 power extended to commerce itself with foreign nations 
 and among the several states, and with the Indian tribes. 
 These words comprehend every species of commercial
 
 328 OF CONSTITUTIONAL RESTRICTION [CHAP. V1I1. 
 
 intercourse between the United States and foreign na- 
 tions ; no trade could be carried on between them to 
 which the trade did not extend. That commerce, as 
 the word was used in the constitution, was a unit. If 
 this was so in its application to foreign nations, it must 
 be so throughout the whole sentence, unless there was 
 some plain intelligible clause which altered it. 
 
 § 196. The words, " among the several states," meant 
 intermingled ivitJt, hence commerce among the states did 
 not stop at the external boundary line, but might be in- 
 troduced into the interior ; not that the words compre- 
 hend that commerce which is completely internal, which 
 is carried on between man and man, or between different 
 parts of the same states, not extending to or affecting 
 other states. The word among, though comprehensive, 
 might properly be restricted to that commerce which 
 concerns states more than one. The latter, congress had 
 the power to regulate, whilst the completely internal 
 commerce may be considered as reserved to the states. 
 
 § 197. In the regulation of commerce with foreign 
 nations, the power of congress did not stop at the juris- 
 dictional lines of the several states. The commerce of 
 the United States with foreign states was that of the 
 whole Union. The power to regulate must be exercised 
 wherever the subject exists. If it exists within the 
 states, if foreign voyages may commence and terminate 
 at a point within the state, then the power of congress 
 might be exercised within a state. 
 
 § 198. The power granted was a power to regulate, 
 to prescribe the rule by which commerce is to be gov- 
 erned. This power, like all others vested in congress, 
 was complete in itself, might be exercised to its utmost 
 extent, acknowledges no limitation other than that pre- 
 scribed in the constitution. The sovereignty of congress, 
 though limited to specified objects, was plenary as to 
 those objects. The power over commerce with foreign
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 329 
 
 nations and among the several states was vested in con- 
 gress as absolutely as it would be in a specific govern- 
 ment, having in its constitution the same restrictions in 
 its exercise of power as are found in the constitutions of 
 the United States. This power comprehends navigation 
 within the limits of every state in the Union, so far as 
 that navigation may be in any manner connected with 
 " commerce with foreign nations, or among the several 
 states, or with the Indian tribes." It might pass the 
 jurisdictional line of New York, and act upon the very 
 waters to which the prohibition in this act applies. In- 
 deed, it was by no means certain, but that the words 
 " to regulate," imply, in their nature, full power over the 
 thing to be regulated, and excludes, necessarily, the ac- 
 tion of all others that would perform the same operation 
 upon the same thing. That regulation is designed for 
 the entire result, applying to those parts which remain 
 as they were in the states as well as those which are 
 altered. A state law which comes in collision with an 
 act of congress, which deprives a citizen of a right which 
 such act entitles him to, whether such law was passed 
 in virtue of a concurrent power M to regulate commerce 
 with foreign nations and among the several states," or 
 in virtue of a power to regulate their domestic trade or 
 policy ; in such case the state law must yield to the law 
 of congress. 
 
 § 199. The law of New York which was under con- 
 sideration in this case, was held to conflict with the law 
 of congress in relation to the license and enrolment of 
 vessels, which declared that vessels enrolled as described 
 in the act, and having a license in force, " and no others, 
 shall be deemed ships or vessels of the United States, 
 entitled to the privilege of ships or vessels employed in 
 the coasting trade." The form of the license for carry- 
 ing on the coasting trade given to the steamboat, as pre- 
 
 42
 
 330 OF CONSTITUTIONAL RESTRICTION [CHAP. VII!. 
 
 scribed by the law of congress, is, " license is hereby 
 granted for the said steamboat (Bellona) to be employed 
 in carrying on the coasting trade for one year from the 
 date hereof." These were the words of the legislature, 
 and conveyed an implied authority in the act, intended 
 to give and operate as effectually as if they had been in- 
 serted in any other part of the act than in the license. 
 The word " license" means permission or authority to 
 do any thing ; and if granted by one having power or 
 authority to render it, transfers to the grantee the right 
 to do it. The privilege thus granted could not be sepa- 
 rated from the trade, nor could be enjoyed unless the 
 trade might be prosecuted. The grant of the privilege 
 would be an idle empty form, conveying nothing unless 
 it conveyed the right to which the privilege is attached, 
 and in the exercise of which its whole value consisted. 
 Any other consideration of the word would be an appa- 
 rent disregard of the intent of the act. As congress had 
 the power to render the grant of this privilege and had 
 exercised it, no state law could impair the right thus 
 secured. 
 
 § 200. This power of regulating commerce extends to 
 navigation carried on by vessels exclusively employed 
 in the transportation of passengers. This general grant 
 of power comprehends all vessels. If none are excluded 
 by the language none should be excluded by construc- 
 tion. The duty act applies to such vessels, and they 
 are governed by the general law of navigation. This 
 power also extends to vessels propelled by steam as well 
 as those navigated by the instrumentality of wind and 
 sails. The enrolment and license act authorized steam- 
 boats to be enrolled and licensed, when employed or 
 intended to be employed only in a river or bay of the 
 United States. This act demonstrates that they might 
 be enrolled and licensed in common with vessels using 
 sails.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 331 
 
 § 201. It was held, in this case, that state inspection 
 laws, health laws, and laws for regulating the internal 
 commerce of a state, and those which respect turnpike 
 roads, and ferries, &c, are not within the powers granted 
 to congress. Although inspection laws have a remote 
 and considerable influence on commerce, the right to pass 
 them was not denied from the power to regulate com- 
 merce. They act upon the subject before it becomes an 
 article of foreign commerce, or of commerce among the 
 state. They form a portion of that immense mass of 
 legislation which embraces everything within the boun- 
 dary of the state not surrendered to the general govern- 
 ment; hence inspection laws, quarantine laws, and 
 health laws of every description, as well as laws regu- 
 lating the internal commerce of the state, and those 
 which respect turnpike roads and ferries, and may be 
 exercised by the state. That no direct general power 
 over these objects was granted to congress ; and, conse- 
 quently, they remain subject to state legislation. If the 
 legislative power of the Union can reach them, it must 
 be for national purposes ; it must be where the power is 
 expressly given for a special purpose, or is clearly inci- 
 dental to some power which is expressly given. It is 
 obvious, that the government of the Union, in the exer- 
 cise of its express powers, that, for example, of regu- 
 lating commerce with foreign nations and among the 
 states, may use means that may also be employed by a 
 state in the exercise of its acknowledged powers, that, 
 for example, of regulating commerce within the state. 
 If congress license vessels to sail from one port to aiir 
 other, in the same state, the act is supposed to be neces- 
 sarily incidental to the power expressly granted to con^ 
 gress, and implies no claim of a direct power to regulate 
 the purely internal commerce of a state, or to act directly 
 on its system of policy. So, if a state, on passing laws 
 on subjects acknowledged to be within its control, and
 
 332 OF CONSTITUTIONAL RESTRICTION [CHAP. VH1. 
 
 with a view to those subjects, should adopt a measure of 
 the same character with one which congress might adopt, 
 it does not derive its authority from the particular power 
 which has been granted, but from some other, which 
 remains with the state, and may be executed with the 
 same means. All experience shows, that the same 
 measure, or measures scarcely distinguishable from each 
 other, may flow from distinct powers ; but this does not 
 prove that the powers themselves are identical, although 
 the means used in their execution may sometimes ap- 
 proach each other so nearly as to be confounded, there 
 are other situations in which they are sufficiently dis- 
 tinct to establish their individuality. 
 
 § 202. In our complex system, presenting the rare 
 and difficult scheme of one general government, whose 
 action extends over the whole, but which possesses only 
 certain enumerated powers ; and of numerous state go- 
 vernments, which retain and exercise all powers not 
 delegated to the Union — contests respecting powers must 
 arise. Were it even otherwise, the measures taken by 
 the respective governments to execute their acknow- 
 ledged powers, would often be of the same description, 
 and might sometimes interfere. This, however, does 
 not prove that the one is exercising, or has a right to 
 exercise, the powers of the other. The acts of congress 
 passed in 1796 and 1799,(rt) empowering and directing 
 the officers of the general government to conform to, and 
 assist in the execution of the cpiarantine and health laws 
 of a state, proceed, it is said, upon the idea that these 
 laws are constitutional. It is undoubtedly true that they 
 do proceed upon that idea, and the constitutionality of 
 such laws has never, so far as we are informed, been 
 denied. But they do not imply an acknowledgment that 
 a state may rightfully regulate commerce with foreign 
 
 (a) 2 U. S. Laws, 345 ; 3 U. S. Laws, 12G.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 333 
 
 nations, or among states ; for they do not imply that 
 such laws are an exercise of that power, or enacted with 
 a view to it. On the contrary, they arc treated as quar- 
 antine and health laws, are so denominated in the acts 
 of congress, and are considered as flowing from the 
 acknowledged power of a state, to provide for the health 
 of its citizens. But as it was apparent that some of the 
 provisions made for this purpose, and in virtue of this 
 power, might interfere with and be affected by the laws 
 of the United States, made for the regulation of com- 
 merce, congress, in that spirit of harmony and concilia- 
 tion, which ought always to characterize the conduct of 
 governments standing in the relation which that of the 
 Union and those of the states bear to each other, has 
 directed its officers to aid in the execution of these laws ; 
 and has, in some measure, adapted its own legislation to 
 this object, by making provisions in aid of those of the 
 states. But, in making those provisions, the opinion is 
 unequivocally manifested, that congress may control the 
 state laws, so far as it may be necessary to control them, 
 for the regulation of commerce. 
 
 § 203. Chief Justice Marshall on the subject says : — 
 " It seems to be settled that a statute health law which 
 may, in its consequences, impair or impede the naviga- 
 tion of a stream which previously had been navigable, is 
 not within the restriction contained in this clause of the 
 constitution, unless congress shall have enacted some 
 law regulating the navigating of such stream."' This 
 principle was settled in the case of Wilson and others v. 
 The Black Bird Creek Marsh Company. (a) This com- 
 pany, incorporated in Delaware in 1822, were authorized 
 and empowered to construct a dam across said creek. 
 They proceeded to erect such dam, by which the navi- 
 gation of the creek, which before was navigable, was 
 
 (a) 2 Peter's R. 245.
 
 334 Or CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 impeded. The constitutionality of this act was involved 
 in the case. It was contended on the one hand that the 
 constitutional powers of congress to regulate commerce 
 included navigation, and that the states were by this 
 provision deprived of the power of obstructing a naviga- 
 ble river. On the other, it was contended that the 
 power to regulate commerce, did not interfere with the 
 rights of the state over the property within its bounda- 
 ries. That while the waters of the United States be- 
 longed to the whole people of the nation, this creek 
 continued subject to the power of the state. That it 
 was one of those sluggish, reptile streams which de- 
 stroyed the health of the inhabitants ; and that the nature 
 of the dam was to draw off the pollution. That as con- 
 gress had not legislated upon the subject of this stream, 
 the power given to it to regulate commerce did not ex- 
 tend to such a case. It was held, that the act of assem- 
 bly by which the plaintiffs were authorized to construct 
 their dam, showed plainly that this is one of those many 
 creeks, passing through a deep, level marsh adjoining the 
 Delaware, up which the tide flows for some distance. 
 The value of the property on its banks must be enhanced 
 by excluding the water from the marsh, and the health 
 of the inhabitants probably improved. Measures calcu- 
 lated to produce these objects, provided they do not 
 come into collision with the powers of the general 
 government, were undoubtedly within those which are 
 reserved to the states. But, it was said, the measure 
 authorized by this act stops a navigable creek, and must 
 be supposed to abridge the rights of those who have 
 been accustomed to use it. To this it was replied, but 
 this abridgment, unless it comes in conflict with the 
 constitution, or a law of the United States, Was an affair 
 between the government of Delaware and its citizens, of 
 which the court could take no cognizance. The counsel 
 for the plaintiffs in error insisted that it comes in conflict
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 3J5 
 
 with the power of the United States, " To regulate com- 
 merce with foreign nations, and among the several states. 1 ' 
 It was admitted that if congress had passed any act 
 which bore upon the case; any act in execution of the 
 power to regulate commerce, the object of which was to 
 control state legislation over those small navigable creeks 
 into which the tide flows, and which abound throughout 
 the low r er country of the Middle and Southern states ; 
 the court would feel not much difficulty in saying that a 
 state law coining in conflict with such act, would be 
 void. But congress has passed no such act. The re- 
 pugnancy of the law of Delaware to the constitution 
 was placed entirely on its repugnancy to the power to 
 regulate commerce with foreign nations and among the 
 several states ; a power which has not been so exercised 
 as to affect the question. 
 
 § 204. The following case has been held to be within 
 this constitutional restriction : An act of the legislature 
 of Maryland was passed requiring all importers of foreign 
 goods by the bale, and package, &c, and all other per- 
 sons selling the same by wholesale, bale or package, &c, 
 to take out a license, for which they should pay fifty 
 dollars, and in case of neglect or refusal to take out such 
 license, subjecting them to certain forfeitures and penal- 
 ties. In Brown v. The State of Maryland, {a) the consti- 
 tutionality of this law 7 came before the federal court, and it 
 was insisted that it w 7 as repugnant to the provision of the 
 constitution of the United States, in which it w 7 as de- 
 clared, that " no state shall, without the consent of con- 
 gress, lay any impost, or duty on imports or exports, ex- 
 cept what shall be necessary for executing its inspection 
 laws ;" and also to that in which it w 7 as declared, that con- 
 gress shall have power " to regulate commerce with for- 
 eign nations, among the several states, and with the In- 
 to) 12 Wheat. R. 419.
 
 335 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 dian tribes." It was held, that imports or duties was a 
 custom or tax levied on articles brought into the country, 
 and was most usually secured before the importer was 
 allowed to exercise his right of ownership over them. 
 That it would not be less an impost or duty on the ar- 
 ticles if it were levied on them after they were landed. 
 That the policy and consequent practice of levying or 
 securing a duty before or on entering the port, did not 
 limit the power to that state of things, nor, consequently, 
 the prohibition, unless the true meaning of the clause so 
 confined it. " Imports" are things " imported ;" they are 
 the articles themselves which are brought into the coun- 
 try. The words taken in their literal sense were not 
 confined to a duty levied while the article was entering 
 the country, but they extended to a duty levied after it 
 had entered the country. 
 
 § 205. We had occasion in another capacity, in 
 the case of The People v. Huntington.(a) to consider 
 this question. We then took occasion to examine 
 the question somewhat minutely, and then arrived 
 at the conclusion, and remarked, that, " Antecedent to 
 the establishment of the federal government, the col- 
 onies had full power, with the assent of the mother 
 country, to legislate fully respecting their internal affairs, 
 and of course to prescribe the mode and manner in which 
 trade should be carried on in their respective territories, 
 and to adopt such police regulations as each might deem 
 expedient. Under the articles of confederation, this 
 power to regulate internal trade and commerce and to 
 establish police regulations, remained unimpaired with 
 the several states. There was nothing in those articles 
 at variance or in conflict with such state legislation over 
 matters having reference to the internal trade of the 
 states. Indeed the only qualification of the right of 
 the states to lay imposts or duties was they should not 
 
 (a) 4 New York Legal Observer, p. 187.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 337 
 
 lay any such as should interfere with any stipulations in 
 treaties entered into hy the United States, in pursuance 
 of any treaties already proposed by congress to the courts 
 of France and Spain. Thus it will be perceived, under 
 the articles of confederation, there is no doubt of the 
 power of the states down to the adoption of the federal 
 constitution, to regulate the internal commerce of the 
 states. It is also equally clear, that unless the power 
 to regulate the trade of a .state which is purely internal, 
 and to establish police regulations, having relation to 
 and bearing upon such trade, is vested in the federal 
 government under this general power to regulate com- 
 merce, as that government is one of the delegated powers, 
 it does not possess it, unless it is one necessarily incident 
 to the due execution of the powers expressly given. 
 Has this power under the general grant of power to con- 
 gress been taken away from the states 1 In the consid- 
 eration of this question we shall briefly allude to the 
 defects existing under the articles of confederation, and. 
 the reasons which induced the framers of the constitution 
 to clothe congress with the power to regulate commerce. 
 Under the articles of confederation each state had power 
 to pursue a system of commercial polity peculiar to itself, 
 and. such an one as occasioned destructive preferences 
 and exclusions, which begat great discontent among the 
 several states. Those states which were peculiarly 
 favorably situated in reference to the commerce of the 
 nation, in some instances endeavored to secure exclusive 
 benefits to their own citizens by regulations, the infrac- 
 tions of which on the one side, and the efforts to repel 
 and prevent them on the other, it was thought might 
 lead to outrage, reprisals, and wars among the several 
 states. It was believed that the opportunity which .some 
 states would have in rendering others tributary to them 
 by commercial regulations, would be impatiently sub- 
 
 43
 
 338 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 milled to by tributary states. A very material and 
 essential object of this power was the relief of those 
 states which, from their peculiar geographical position, 
 must import and export through other states, from the 
 improper contributions which might be levied upon them 
 by the latter. Were the several states at liberty to re- 
 gulate the trade between state and state, means might 
 be resorted to to load the articles of import and export 
 during their passage through their jurisdictions, with 
 duties which would fall with peculiar severity on the 
 citizens of the interior states, which would be a constant 
 source of uneasiness, discontent and animosity, which 
 would seriously interrupt the public tranquility, as it 
 would naturally stimulate the injured parties to a spirit 
 of resentment and retaliation which might divert the 
 commerce of the country from the ordinary and natural 
 channels, so as seriously to affect the commercial inte- 
 rest of all the states of the confederacy. The experience 
 of the American states, during the confederacy, had 
 evinced that such arrangements could and would be 
 made, under the stimulating influence of local interest 
 and the desire of undue gain. Instead of acting as a 
 nation in regard to foreign powers, the states individually 
 commenced a system of restraint upon each other to such 
 an extent that the interest of foreign powers was pro- 
 moted at their expense. Whenever one state imposed 
 high duties on the goods of a foreign power, to counter- 
 vail the regulation of such powers, the next adjoining- 
 state imposed lower duties to invite these articles into 
 their ports, that they might be transmitted thence into 
 other states, securing the duties to themselves. This 
 contracted policy in some of the states was soon counter- 
 acted by others. Restraints were immediately laid on 
 such commerce by the suffering states, and thus a state 
 of affairs, disorderly and unnatural, grew up, the neces- 
 sary tendency of which was to destroy the Union itself.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 339 
 
 It had also been found that without this power to regu- 
 late commerce among the states, the power of regulating 
 foreign commerce would b*e incomplete and ineffectual. 
 For if the respective states were left free to regulate 
 commerce, the laws of the Union in regard to this sub- 
 ject, whether for revenue, for restriction, for relation, or 
 for encouragement of domestic products, might be evaded 
 at pleasure, or rendered impotent. These, among other 
 reasons, induced the convention to vest in congress the 
 power to regulate commerce among the several states. 
 The past experience of the nation under the articles of 
 confederation, had demonstrated the necessity of vesting 
 in the federal government also, the power to regulate 
 and to exert a general superintendence over foreign com- 
 merce. The want of such a power in that government 
 had operated as a bar to the formation of beneficial trea- 
 ties with foreign powers, and had also given occasion of 
 dissatisfaction between the states. Foreign powers ac- 
 quainted with our institutions, had declined to enter 
 into stipulations with the federal government, by which 
 they should concede on their part, important commercial 
 privileges, knowing as they did, that the engagements 
 on the part of the Union, might at any moment be vio- 
 lated by any member of the confederacy. Even the 
 government of England, with which this country, from 
 its position and productions, must ever sustain most in- 
 timate and important commercial relations, would only 
 make provisions for a temporary intercourse with this 
 country, on the ground that such had been found to an- 
 swer every purpose essential to the commerce of Great 
 Britain, and had intimated an adherence to that policy, 
 until the federal government should acquire a greater 
 consistency. Although several states had endeavored 
 by separate prohibitions, restrictions, and exclusions, to 
 influence the conduct of other nations in this particular, 
 it had failed for the want of concert, arising from the
 
 340 OP CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 want of general authority, and from clashing and dissim- 
 ilar views in the several states. To overcome these 
 barriers to the commercial felations of the country, it 
 was deemed indispensable to place the power over fo- 
 reign commerce under the exclusive and general super- 
 vision of the federal Union. («) Our only object in thus 
 alluding to the difficulties arising under the confedera- 
 tion, has been, if possible, to discover and deduce there- 
 from the spirit, scope and design of these clauses of the 
 federal constitution, to the end of giving to those clauses 
 under consideration such a construction as will secure 
 the end designed to be attained by those constitutional 
 provisions and effectuate the spirit of that sacred instru- 
 ment. The object of the powers conferred on the gov- 
 ernment of the Union, and the nature of the conflicting 
 powers which remain in the states, should always be 
 taken into view in aid of an exposition of those particu- 
 lar clauses of the constitution. Courts in construing 
 that instrument upon sound principles of construction, 
 ought not to carry the words of the prohibition beyond 
 the object which the constitution is intended to secure. 
 That object is best ascertained by an inquiry into the 
 causes which conspired to lead to this constitutional de- 
 legation of power to congress. He bids fairest to a just 
 interpretation, who keeps constantly in view the mischief 
 and inconveniences which existed under the old confed- 
 eration, and which were designed to be obviated by these 
 constitutional provisions. From this succinct review, 
 we think we may fairly infer, that the object of the con- 
 stitution will be attained if we give to the federal govern- 
 ment the exclusive power to regulate the external com- 
 merce of the nation and of the respective states, to de- 
 termine the terms and conditions upon which, and to 
 
 (a) Federalist, Nos. 7, 11, 23, 42. Story's Commentaries on the Consti- 
 tution of the United States, vol. ii. 511, 512.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 311 
 
 prescribe the regulations l>y which the commodities and 
 products of one state should be permitted to be intro- 
 duced into another, or exports should be made from 
 state to state, or through the several territorial sovereign- 
 ties composing the confederacy, or the commodities of 
 foreign nations introduced into the country, and to con- 
 trol and regulate such external commerce during the 
 entire period in which the process of importation or ex- 
 portation and introduction and incorporation among the 
 great mass of property of the respective states is going 
 on ; and if it is held that such control should cease when- 
 ever the act of such importation, introduction and incor- 
 poration had been fully accomplished, and if we deny to 
 the state sovereignties all interference, either by impost, 
 duties, or other restrictions, or regulations with such 
 commerce, while these processes of importation, intro- 
 duction, and incorporation, is going forward. The lan- 
 guage is " commerce among the several states" It has 
 been held that the word " anions:" means intermingled 
 with the several states — that commerce among the states 
 may, and does not stop at the external boundary line of 
 a state, but may be introduced into the interior, so long 
 as these processes are going on, and until fully completed, 
 and down to the time of its incorporation with the great 
 mass of the property of the state. But the moment the 
 ends of importation or exportation cease, then it ceases to 
 be commerce among the several states, and becomes the 
 commerce of a state. It then assumes a character which 
 is purely internal between man and man in a single state, 
 or between different parts of the same state, and not ex- 
 tending to or in any way affecting other states. Its 
 regulation by state legislation after thus introduced and 
 incorporated, never had been either the cause of conflict 
 or complaint, nor was its regulation under such circum- 
 stances one of the evils which it was the object of the 
 constitution to guard against, or one of the defects under
 
 343 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 the articles of confederation which it was designed to 
 remedy by this constitutional provision. The distinction 
 above alluded to, and -such a line of demarcation lias, we 
 think, been recognized in all the cases where this question 
 has come under the consideration either of our state or 
 the federal courts." " But it is said that if excise laws 
 are held to be constitutional, we must admit the power of 
 the state to impose duties on articles of foreign importa- 
 tion, and that such duties may be imposed to such an 
 extent as to prevent all sales of the commodity imported 
 — which in effect would be equivalent to an express pro- 
 hibition upon importations, as it would defeat the object 
 of importations, for without sales the right of importation 
 would be worse than useless — and that if the states may 
 regulate the sale of one article of commerce, they may do 
 the same as to all others ; which would in effect defeat 
 these constitutional provisions. This does not, as we 
 can discover, necessarily follow — but if it did, an answer 
 to this argument is, that the states have never delegated 
 to congress the power to undertake that any commodity 
 introduced into the country shall meet with a sale; nor 
 are they under any obligation to secure a market for the 
 article when introduced. Congress has delegated, to it 
 the power to prescribe the subjects of importation, and 
 the mode, manner and means of introduction, and when 
 that is done, the commodities thus introduced must take 
 their chance with all other property of the state, in find- 
 ing a market. The states may regulate such sales unless 
 expressly or impliedly restricted. If we are right in the 
 position that when that introduction is consummated, 
 the power of congress over the subject is spent, and the 
 article then loses its character as an import — then any 
 duty or tax imposed upon it when thus incorporated into 
 the mass of the property of a state, is not an impost or 
 duly on imports or exports. Nor under such circum- 
 stances are the powers of the state limited by the con-
 
 CHAP. Vlll.'J UPON LEGISLATIVE POWER. 313 
 
 stitution. It also should be borne in mind that a state 
 law should not be considered as subject to a constitu- 
 tional objection because it may in its operation inci- 
 dentally or remotely have some influence upon a subject 
 matter over which power is delegated to congress. For 
 such a construction Avould include state legislation in 
 reference to almost all subjects of internal police which 
 have uniformly been conceded as within the powers re- 
 served to state sovereignties. For most internal police 
 regulations have a remote bearing on the commerce of 
 the nation. It is not enough to bring an act within the 
 circle of this constitutional prohibition that it may in its 
 effects lessen the extent of sales in the country of a par- 
 ticular commodity. But to render such an act uncon- 
 stitutional, there must be some direct conflict or repug- 
 nancy or incompatibility with the power granted to 
 congress. In the language of Chief Justice Parker, " It 
 must either in its actual exercise, or in its nature, be of 
 a character to control, defeat, limit or impair some power 
 of the general government, or interfere with its action, 
 so that if admitted, that power could no longer be effica- 
 cious and adequate to accomplish the object for which it 
 was given. If it merely operates upon the subject 
 matter, but not in such a manner to show a plain incom- 
 patibility, a direct repugnancy, or an extreme practical 
 inconvenience, it is not unconstitutional, because there 
 may be a possible or potential inconvenience." The 
 power attempted to be exercised under this statute, is 
 not one resorted to for the purpose of revenue, but has 
 always been regarded in the light of a mere police regu- 
 lation, having for its aim the welfare, health, and morals 
 of our citizens, limiting and controlling the manner and 
 circumstances, under which, a traffic which has ever 
 been productive of a deep and wide-spread moral pesti- 
 lence shall be regulated, and designating the individuals 
 to whose hands shall be committed the right to vend a
 
 344 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 commodity, which ever has been, and it is to be feared, 
 ever will be, a most pestilential and blighting curse — de- 
 structive of the peace, happiness and prosperity of the 
 citizens of the state ; a power which congress never has, 
 and never can exert, without trampling upon state sove- 
 reignties, and resorting to an act of the most daring and 
 gross usurpation. That statutes of this character have 
 at all times been regarded simply in the light of mere 
 police regulations, is evident from the whole history of 
 legislation upon this subject in this country, and would 
 be most apparent, should we examine all such statutes 
 in detail, which have been enacted and continued in 
 force in almost all the original states of the Union, as 
 well before as since the adoption of the federal constitu- 
 tion. It would take too much space to refer to them at 
 this time. Suffice it to say, that we find as early as 23d 
 March, 1660, a similar statute was passed in the colony 
 of Virginia, which evidently was regarded in that light, 
 for its preamble declares it to be, "For preventing of 
 many disorders and riots in ordinances and other places 
 where drink is retailed" So long as the sovereignty of a 
 state, in the exercise of this power, keeps strictly within 
 what is a mere police regulation, without any attempt to 
 prohibit imports, or to affect such articles during the act 
 of importation and introduction into the mass of the pro- 
 perty, and then only undertakes to regulate the manner 
 of conducting the sale, so long we think they are with- 
 out the constitutional circle of prohibition. But should 
 a state attempt to prohibit the sale of imported articles 
 within its limits, or tax articles the produce of another 
 state, beyond the rates of similar articles produced within 
 its own borders, then we agree with Chief Justice Par- 
 ker, that it would be readily seen that such legislation 
 was not a regulation of internal police merely, but that 
 its design and effect would be the regulation of foreign 
 commerce and commerce among the states ; and under
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 34«5 
 
 whatever name or pretence it might be passed, it must 
 be regarded as a fraudulent attempt to over-ride the con- 
 stitution, and hence could not be sustained." " As this 
 statute (relating to excise) is not within either the spirit, 
 scope or design, of those constitutional restrictions, or 
 within the mischiefs at which they were aimed, in our 
 opinion the law is constitutional. Similar laws have 
 been established in almost all the several states of the 
 Union, and have been acquiesced in, both by the state 
 and national governments, since the period of the federal 
 constitution, and tacitly, until within a very recent period. 
 In fact, this affords a strong practical construction, which 
 forms an unbroken chain commensurate with the adop- 
 tion of the constitution, and acquiesced in, and acted 
 upon, since that time, until within the last year. In 
 three states of the Union, New Hampshire, Massachu- 
 setts and Indiana, similar laws have received the sanction 
 of the highest judicial tribunals of those states, and have 
 been supported by an array of talent and sound logical 
 reasoning, alike creditable to their authors and the courts 
 over which they have the honor to preside." 
 
 § 206. In the case last cited, we arrived at the con- 
 clusion, that our excise laws were not repugnant to the 
 constitution, either as it respects the clause now under 
 consideration, or the second clause of sec. 10 of art. I. 
 That the power of congress to regulate commerce ex- 
 tended only to the purely external commerce of the 
 states, and had no application to commerce which was 
 purely internal commerce of a single state. That the 
 power of congress over commerce was confined to the 
 period of time during which the act of importation, in- 
 troduction and incorporation of a foreign commodity into 
 the mass of the property of the state was going on. 
 That when the act of importation, introduction and in- 
 corporation into the mass of the property of a state was 
 
 4-1
 
 346 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 fully accomplished, the object of the constitution was 
 attained, the power of congress over such foreign article 
 was spent, and that the article then, like all other pro- 
 perty in a state, was subject to the regulating control of 
 the state sovereignties where situate. The power of 
 state legislatures to pass such kind of police regulations 
 has, after much agitation, been authoritatively settled by 
 the supreme court of the United States in several cases 
 which are found reported in 5 Howard's U. S. R. 504. 
 In the cases there reported it was held, that a law of 
 Massachusetts providing that no person shall presume 
 to be a retailer or seller of wine, brandy, rum, or other 
 spiritous liquors, in a less quantity than twenty-eight 
 gallons, and delivered and carried away at one time, 
 unless he is first licensed as a retailer of wine and spi- 
 rits ; and that nothing in the law should be so construed 
 as to require the county commissioners to grant any 
 license when in their opinion the public good did not 
 require them to be granted. And that a law of Rhode 
 Island forbidding the sale of rum, gin, brandy, &c, in 
 a less quantity than ten gallons, although in this case 
 the brandy which was sold, was duly imported from 
 France into the United States, and purchased by the 
 party indicted from the original importer. And the law 
 of New Hampshire, imposing similar restrictions to the 
 foregoing upon licenses, although in this case the article 
 sold was a barrel of American gin, purchased in Boston, 
 and carried coast-wise to the landing at Piseataqua 
 bridge, and there sold in the same barrel, — were none of 
 them inconsistent with this clause of the federal consti- 
 tution ;(«) and they were all sustained as valid acts of 
 state legislation by the federal court. Thus in regard to 
 such laws there now can remain no question of their 
 
 (a) See also, Wynne v. Wright, 1 Dev. & Bat. Law R. 19.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 347 
 
 constitutionality, or of the power of the state legislatures 
 to legislate upon such subjects. 
 
 § 207. The following acts have been held not to be 
 in conflict with this clause in the federal constitution. 
 A state statute imposing a penalty on masters of vessels 
 who should suffer alien passengers to land without giving 
 bonds, when required by the Mayor of New York, to 
 indemnify the corporation of New York from all ex- 
 pense and charge incurred for the maintenance and sup- 
 port of the person so imported; in case such person 
 should within two years become chargeable to the cor- 
 poration. («) An act of the legislature requiring the 
 master of every vessel arriving in New York from any 
 foreign port, or from any port of any of the states of the 
 United States other than New York, under a penalty 
 prescribed in the law, to make a report in writing con- 
 taining the names, ages, and last legal settlement of 
 every person whom he shall have received on board the 
 vessel commanded by him during the voyage — was held 
 not to be a regulation of commerce, but of police ; and 
 being so, it was passed in the exercise of the constitu- 
 tional powers of the state. (6) 
 
 § 208. In the case last cited, it was held that the state 
 of New York possessed the power to pass such a law, 
 anterior to the federal constitution. In support of this 
 proposition the court cited the language of Vattel:(c) 
 " The sovereign may forbid the entrance of his territory 
 either to foreigners in general, or in particular cases, or 
 to certain persons, or for certain particular purposes, 
 according as he may think it advantageous to the state." 
 " Since the lord of the territory may whenever he thinks 
 
 (a) New York v. Staples, 6 Cowen's R. 169. 
 
 (b) The Mayor, Jje. of N. Y. v. Mdn, 11 Pot. R. 102. 
 
 (c) Book 2, ch. 7, sec. 94.
 
 343 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 proper, forbid its being entered, he has no doubt a power 
 to annex what condition he pleases to the permission to 
 enter."(a) The act was intended to prevent the state 
 being burthened by an influx of foreigners, and to pre- 
 vent their becoming paupers. Such an object was 
 within the constitutional powers of the state, although a 
 portion of its powers had been surrendered to the ge- 
 neral government. That both the ends and the means 
 used were within the competency of the state. 
 
 § 209. This case was distinguished from that of 
 Brown v. The State of Maryland, as persons are not the 
 subject of commerce, and not being imported goods, they 
 did not fall within the reasoning in that case founded 
 upon the construction of a power given to congress to 
 regulate commerce, and the prohibition to the states 
 from imposing a duty on imported goods. The court 
 placed their decision upon the ground " That a state 
 has the same undeniable and unlimited jurisdiction over 
 all persons and things, within its territorial limits, as any 
 foreign nation, where that jurisdiction is not surrendered 
 or restrained by the constitution of the United States. 
 That by virtue of this, it is not only the right, but the 
 bounden and solemn duty of a state, to advance the 
 safety, happiness, and prosperity of its people, and to 
 provide for its general welfare, by any and every act of 
 legislation which it may deem to be conducive to these 
 ends, where the power over the particular subject, or 
 the manner of its exercise, is not surrendered or re- 
 strained in the manner just stated. That all those pow- 
 ers which relate to merely municipal legislation, or what 
 may perhaps more properly be called internal police, arc 
 not thus surrendered or restrained, and that consequently, 
 in relation to those, the authority of a state is complete, 
 unqualified, and exclusive." 
 
 (a) Book 2, ch. 8, sec. 100.
 
 CITAP. VIII.] UPON LEGISLATIVE POWER. 349 
 
 § 210. The court said, that if it were to attempt to 
 define statutes which came within tins description, they 
 should say, " that every law came within this description 
 which concerned the welfare of the whole people of a 
 slate, or any individual within it, whether it related to 
 their rights or their duties, whether it respected them as 
 men or as citizens of the state, whether in their public 
 or private relations, whether it related to rights of per- 
 son or of property, of the whole people of the state or 
 any individual within it, and whose operation was within 
 the territorial limits of the state, and upon the persons 
 and things within its jurisdiction. But that the mean- 
 ing could be better illustrated by exemplification, than 
 by definition. 
 
 § 211. It has also been held, that a statute of Ken- 
 tucky of 1824 and 1828, which forbid slaves from being- 
 carried away as passengers in boats on the Ohio river, 
 which is the boundary line of the state, did not conflict 
 with the concurrent jurisdiction of other states, nor with 
 the free and common use of that river, nor with the 
 power of congress to regulate commerce. («) 
 
 § 212. In Coxa v. The State. (b) it was held, that an 
 act of the legislature making it a penal offence to erect 
 or continue any obstruction in certain navigable streams, 
 did not come within this constitutional power secured to 
 congress to regulate commerce. It was, in the case last 
 cited,- held, that the several states in the Union were 
 confederated together for national purposes, yet they 
 were, in all other respects, independent sovereignties. 
 They retain their individual sovereignty, and with re- 
 spect to their municipal regulations are sovereign in 
 every sense of the word, and independent of each other 
 and of the federal government, except so far as those 
 
 (<i) Church v. Chambers, 3 Dana's Rep. 
 (?>) 3 Blackford's Indiana Rep. 19.
 
 350 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 sovereign rights rfhd powers may have been surrendered 
 or abridged by the federal constitution, and by compact. 
 They are not excluded from the exercise of any power 
 belonging to free and independent sovereignty, except 
 in three cases: 1st, where a power is granted in exclu- 
 sive terms to the general government ; 2d, where the 
 states were expressly prohibited from the exercise of 
 any power ; and 3d, where a power is granted to the 
 general government, the contemporaneous exercise of 
 which by the states would be incompatible. That this 
 statute did not fall under either of these heads. That it 
 did not conflict with the power of congress to regulate 
 commerce. That congress had passed no act controling 
 state legislation over those streams, and it was enough 
 that no such act had been passed. That so long as the 
 exercise of that power by congress lay dormant, and 
 was not so exerted, it could not control or restrain state 
 legislation ; and even if the United States had so exerted 
 this power, it would only control and restrain such state 
 legislation as should conflict with the congressional sta- 
 tutes. To oust the state of its sovereign right to legis- 
 late for the protection of those streams, by punishing per- 
 sons obstructing them, and removing obstructions when 
 necessary, it must be expressly shown that that power 
 had been expressly surrendered by treaty, grant, or com- 
 pact, or that it was in conflict with some prohibitory 
 provision of the constitution of the United States, or that 
 its exercise was incompatible with some jurisdiction of 
 the United States, which they were in the immediate 
 exercise of, and which had been granted to that govern- 
 ment. 
 
 § 213. In Blddlcv. The Commonwealth. [a) it was held, 
 that an act of the legislature which imposed a duty on 
 
 («) 13 Serg. & Rawle, 405.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 351 
 
 articles of foreign merchandise was not in conflicf with 
 this clause of the constitution. That the act in question 
 did not, in any manner, relate to commerce between the 
 several states. 
 
 § 214. The next power expressly conferred upon con- 
 gress is, to establish an uniform rule of naturalization, 
 and uniform laws on the subject of bankruptcy through- 
 out the United States. A question has frequently been 
 raised, whether the power of congress, under the latter 
 clause, was vested exclusively in congress, and that too, 
 whether congress exerted the power or not. The doc- 
 trine that has finally obtained on this subject is, that this 
 power is not necessarily in all cases exclusive in con- 
 gress. That until congress exerts the power, the states 
 are at liberty to exercise it in its full extent, with the 
 qualification, however, that they cannot pass insolvent 
 or bankrupt laws which shall discharge the obligation of 
 antecedent contracts, or to discharge contracts made with 
 a citizen of another state, nor any contracts made in an- 
 other state. But when congress has exerted the power, 
 and acted upon the subject to the extent of the national 
 legislation, the power of the states is controlled and lim- 
 ited, (a) The doctrine has been fully established, that 
 the right of the states to pass a bankrupt law is not taken 
 away by the mere grant of this power to congress ; it is 
 not extinguished ; it is only suspended by the enactment 
 of a general bankrupt law. The repeal of such a law 
 of congress does not confer this power on the states ; but 
 it removes a disability to its exercise, which was created 
 by congress enacting such a law. (6) Just as soon as a 
 bankrupt act is passed by congress, and goes into effect, 
 
 (a) Ogdenv. Saunders, 12 Wheat. 213, ct seq. Slurgcs v. Crowningshicld, 
 4 Wheat. 122. Boyle v. Zacharie, 6 Peters, 348. Story on the Constitu- 
 tion, vol. iii. p. 14, ^ 1109, 1110. 
 
 (b) Sturges v. Croivningshield, 4 Wheat. 122.
 
 352 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 it ipsh facto suspends all action in future cases arising 
 under state insolvent laws, where the insolvent persons 
 arc within the purview of the bankrupt act.(a) But this 
 rule applies only to future cases, that is, to cases where 
 no proceedings under any state insolvent law had been 
 instituted before the act of congress took effect. Differ- 
 ent considerations would prevail where proceedings under 
 state insolvent laws had actually been commenced before 
 an act of congress on this subject should have gone into 
 effect. The rule itself is founded upon the idea that 
 both systems cannot be in operation or apply at the same 
 time to the same persons. And where the state and 
 national legislation upon the same subject and the. same 
 persons come in conflict, the supremacy of the national 
 law must prevail and suspend the operation of the state 
 laws. (b) In the case last cited, Mr. Justice Story says : 
 " In the case of Sturges v. Crowningshield, Mr. Justice 
 Washington and myself were of opinion, that the power 
 to pass a bankrupt law was exclusively vested in con- 
 gress by the constitution of the United States ; and that 
 no state could pass a bankrupt law, or an insolvent law 
 having the effect of a bankrupt law, where it discharged 
 the debtor from the obligation of his prior contracts. 
 Mr. Justice Todd was absent, from indisposition, and 
 therefore did not act in the case. The other four mem- 
 bers of the court (constituting a majority) concurred in 
 the decision, which was pronounced by Chief Justice 
 Marshall. But all the court were agreed, that when 
 congress did pass a bankrupt act it was supreme, and 
 that the states must yield to it, and could no longer ope- 
 rate upon persons or cases within the purview of such 
 act. The enactment of such an act suspended the state 
 laws on the same subject, and created a disability in the 
 
 (a) Ex parte Earner, 2 Story's R. 325. (/>) lb.
 
 CHAP, V11I.] UPON LEGISLATIVE TOWER. 353 
 
 states to exercise powers of the like nature. Tlic court 
 went further, and asserted that the bankrupt act of 1800, 
 ch. 19, had that very operation, except s<> far as the 
 sixty-lirst section of the act modified or allowed the ex- 
 ercise of the power by the states. The case of Ogden v. 
 Saundcrs,(a) fully recognized and has always been un- 
 derstood to confirm and settle the same principle. 
 
 § 215. The next power of congress is to coin money, 
 regulate the value thereof and of foreign coin, and fix the 
 standard of weights and measures. This power under 
 the federal constitution, as to currency, &c., is exclusive 
 in congress, and not only so under this clause, but, as 
 will be seen, there is an express prohibition to the states 
 under another clause in the constitution. A state cannot 
 do that which the federal constitution declares it shall 
 not do. It cannot " coin money," nor can it incorporate 
 any number of individuals and authorize them to coin 
 money. Such an act would be as much a violation of 
 the constitution as if money were coined by an officer of 
 the state, under its authority. The act being prohibited 
 it cannot be done directly or indirectly.(6) But as it 
 regards the latter clause, that relating to weights and 
 measures, congress has not as yet ever exercised the 
 power, and it has been supposed that the state legisla- 
 tures possess the power to fix their own weights and 
 measures. (c) 
 
 § "216. Another of the express powers of congress is, 
 to provide for the punishment of counterfeiting the secu- 
 rities and current coin of the United States. Mr. Justice 
 Story thinks this power also one exclusive of the states, 
 on the ground that it is one of the appropriate means to 
 
 (a) 12 Wheat. R. 213, 264, 269, 273, 276, 278, 296, 311, 314. 
 {/>) Briscoe v. The Bank of the Commonwealth of Kentucky, 1 1 Peters, 
 257 ; sec also Fox v. The State of Ohio, 5 Howard, 410. 
 (c) Story, $ 1117. 
 
 45
 
 354 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 carry into effect other delegated powers. («) We are not 
 aware that this question has been judicially determined. 
 It has been held that the power conferred upon congress 
 by the fifth and sixth clauses of the eighth section, to 
 wit, " to coin money, regulate the value thereof and of 
 foreign coin, and fix the standard of weights and mea- 
 sures," to provide for the punishment of counterfeiting 
 the securities and current coin of the United States, 
 does not prevent a state from passing a law to punish 
 the offence of circulating counterfeit coin of the United 
 States. That the two offences of counterfeiting the coin 
 and passing counterfeit money were essentially different 
 in their character. That the former was an offence 
 directly against the government, by which individuals 
 might be affected ; the latter was a private wrong by 
 which the government might be remotely, if in any de- 
 gree, reached. (6) 
 
 § 217. In the case last cited it was contended, for the 
 plaintiff, that such a statute of Ohio was repugnant to 
 the fifth and sixth articles of the constitution, which in- 
 vests congress with the power to coin money, regulate 
 the value thereof and of foreign coin, and to provide for 
 the punishment of counterfeiting the current coin of the 
 United States ; that these clauses embrace not only 
 what their language directly import, and all other of- 
 fences which may be denominated offences against 
 the coin itself, such as counterfeiting, scaling or chip- 
 ping it, or debasing it in any mode, but that they 
 embrace other offences, such as frauds, cheats, or impo- 
 sitions between man and man, by intentionally circulat- 
 ing or putting upon any person a base or simulated coin. 
 On behalf of the state of Ohio, it was insisted, that this 
 was not the correct construction to be placed upon the 
 
 (a) Story, § 1118. 
 
 (b) Fox v. The State of Ohio, 5 Howard, 410.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 355 
 
 clauses of the constitution in question, cither by a natural 
 and philological interpretation of their language, or by 
 any real necessity for the attainment of their objects ; 
 and that if any act of congress should be construed as 
 asserting- this meaning* in the constitution, and as claim- 
 ing from it the power contended for, it would not be a 
 law passed in pursuance of the constitution, nor one de- 
 riving its authority regularly from that instrument. The 
 court held, it was manifest that the language of the con- 
 stitution, by its proper signification, was limited to the 
 facts, or to the faculty in congress of coining and of 
 stamping the standard of value upon what the govern- 
 ment creates or shall adopt, and of punishing the offence 
 of producing a false representation of what may have 
 been so created or adopted. The imposture of passing 
 a false coin, creates, produces, or alters nothing ; it leaves 
 the legal coin as it was ; it affects its intrinsic value in 
 no wise whatever. The criminality of the act consists 
 in obtaining for a false representative of the true coin 
 that for which the true coin alone is the equivalent. 
 There exists an obvious difference not only in the de- 
 scription of these offences, but also in character. The 
 former is an offence directly against the government, bv 
 which individuals may be affected. The other is a pri- 
 vate wrong, by which the government may be remotely, 
 if in any degree, reached. A material distinction had 
 been recognized between the offences of counterfeiting 
 the coin and of passing base coin, by a government 
 which may be deemed sufficiently jealous of its autho- 
 rity, sufficiently vigorous too in its penal code. Thus in 
 England, the counterfeiting of the coin is made high trea- 
 son, whether it be uttered or not, but those who barely 
 utter false money are neither guilty of treason nor of mis- 
 prision for treason. If A counterfeit the gold or silver 
 coin, and, by agreement before such counterfeiting, B is 
 to receive and vend the monev, he is an aider and abet-
 
 353 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 tor to the act itself of counterfeiting, and consequently a 
 principal traitor within the law. It would follow from 
 these views, that if Within the power conferred by the 
 clauses of the constitution above quoted, could be drawn 
 the power to punish a private cheat effected by the 
 means of a base dollar, that power certainly could not be 
 deduced from either the common sense or the adjudi- 
 cated meaning of the language used in the constitution, 
 or from any apparent or probable conflict which might 
 arise between the federal and state authorities, operating 
 each upon these distinct characters of offence. If any 
 such conflict could be apprehended, it must be from some 
 remote, and obscure, and scarcely comprehensible possi- 
 bility, which can never constitute an objection to a just 
 and necessary state power. The punishment of a cheat 
 or misdemeanor practised within the state, and against 
 those whom she is bound to protect, was peculiarly and 
 appropriately within her functions and duties, and it was 
 difficult to imagine an interference with those duties and 
 functions which would be regular or justifiable. («) 
 
 § 218. The next grant of power is, "To establish 
 post offices and post roads." There has not as yet, as we 
 are aware, been any decision upon the question as to 
 whether this power is exclusive in congress, or concur- 
 rent in the states. Some deem it concurrent, and that 
 upon the ground that there is nothing in the constitution, 
 or in the nature of the thing itself, which may not be 
 exercised by both governments at the same time, without 
 prejudice or interference. But Mr. Rawle is of the 
 opinion that this power is exclusive in congress, so far 
 as it relates to the conveyance of letters. Mr. Justice 
 Story deems it a question of but little importance, as it 
 
 (a) See also Chess v. State, 1 Blackf. 198. State v. Antonio, 3 Wheeler 
 C. C. 508. State v. Tutt, 2 Bailey, 44. White v. Commonwealth, 4 Bin. 
 418.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 357 
 
 is admitted on all sides, that it can bo exercised only in 
 subordination to the power of congress even if it be eon- 
 current in the states ; and that is highly improbable that 
 any state will attempt any exercise of the power, con- 
 sidering the difficulty of carrying it into effect without 
 the co-operation of congrcss.(a) . 
 
 § 219. The next power of congress is, "To promote 
 the progress of science, and the useful arts, by securing 
 for limited times, to authors and inventors the exclusive 
 right to their respective writings and discoveries." It 
 has not yet been judicially determined whether this 
 power is exclusive or concurrent; but it has been sup- 
 posed that states may legislate upon this subject, provi- 
 ded their acts do not contravene the acts of congress on 
 the same subject, and there is but little doubt that, ex- 
 clusive of authors and inventors, states have power to 
 grant exclusive rights to the possessor or introducer of 
 an art or invention not claimed under a right as inventor, 
 but introduced from abroad. (i) 
 
 § 220. The next power of congress is, " To constitute 
 tribunals inferior to the supreme court." This poWer, 
 from its very nature, must of necessity be exclusive, as 
 no one but the federal legislature, acting as the only 
 legally constituted legislative body of the Union can con- 
 stitutionally create a judicial tribunal for the federal 
 government, of which it is the only legally constituted 
 representative, so far as its creative pow r er is concerned. 
 
 § 221. The next powers granted to congress are: 
 " To define and punish piracies and felonies committed 
 on the high seas, and offences against the law of nations." 
 Whether this powder is exclusive or concurrent, is not 
 yet determined. " To declare w r ar, grant letters of 
 
 (n) Story on Constitution, sec. 1145. 
 
 (6) See Livingston v. Van I/igen, 9 J. R. 507.
 
 358 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 marque and reprisal, and make rules concerning cap- 
 ures on land and water." This power must be regarded 
 as exclusive in congress, and so far as declaring war 
 and granting letters of marque and reprisal, the states 
 are expressly prohibited by another clause in the con- 
 stitution. tl To provide and maintain a navy." This 
 clause has received no judicial construction. " To make 
 rules for the government and regulation of the land and 
 naval forces." This, as well as the former, probably 
 may be regarded as exclusive. 
 
 " To provide for calling forth the militia to execute 
 the laws of the Union, suppress insurrections, and repel 
 invasions." JNo judicial construction has been put on 
 this clause, as we are aware of. 
 
 § 222. The next grant of power is, " To provide for 
 organizing, arming, and disciplining the militia, and for 
 governing such part of them as may be employed in the 
 service of the United States, reserving to the states re- 
 spectively the appointment of the officers, and the au- 
 thority of training the militia according to the discipline 
 prescribed by congress." It is supposed that where 
 congress does not exercise this power by acting under 
 it, the power is concurrent in the states ; and that under 
 such circumstances they might act to the utmost extent 
 of sovereignty. But the governing the militia when in 
 the actual service of the United States, must be construed 
 as exclusive. State courts-martial may inflict, but can- 
 not add to or diminish the punishment inflicted by acts 
 of congress upon military delinquents. (a) 
 
 § 223. The next grant of power is, " To exercise 
 exclusive legislation in all cases whatsoever, over such 
 district, (not exceeding ten miles square,) as may by 
 cession of particular states, and the acceptance of con- 
 
 («) Houston v. Moore, 5 Wheat. 1 ; Story on Const, sec. 1209, and cases 
 there cited.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 359 
 
 gress, become the seat of government of the United 
 States, and to exercise like authority over all places 
 purchased, by the consent of the legislature of the state 
 in which the same shall be, for the erection of forts, 
 magazines, arsenals, dock yards, and other needful 
 buildings." Under this clause, after an act of cession to 
 the United States, the jurisdiction of the states over such 
 territory ceases ; and the inhabitants of those places 
 thus ceded, cease to be inhabitants of the state, and can 
 do longer exercise any civil or political rights under the 
 laws of the state. In accordance with this principle, in 
 the case of The Commonwealth v. Clary, (a) it was held, 
 that the courts of the commonwealth could not take 
 cognizance of offences committed upon lands in the town 
 of Springfield, which had been purchased by the United 
 States for the purpose of erecting arsenals, &e., to which 
 the consent of the commonwealth was granted by the 
 statute of 1798. The court in that case held, that 
 although the consent of the commonwealth to the pur- 
 chase of this territory by the United States had a con- 
 dition annexed to it, that civil and criminal process 
 might be served therein by officers of the commonwealth, 
 that this condition was made with a view to prevent the 
 territory from becoming a sanctuary for debtors and 
 criminals ; and that from the subsequent assent of the 
 United States to this condition, evidenced by their ma- 
 king the purchase, it resulted that the officers of the 
 commonwealth, in executing such powers, act under the 
 authority of the United States : that no offences, com- 
 mitted within that territory, were committed against the 
 laws of that commonwealth, nor could such offences be 
 punished by the courts of the commonwealth, unless 
 congress should give them jurisdiction : that the laws of 
 
 (n) 8 Mass. R. 72.
 
 360 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 the commonwealth had no force within such territory, 
 and that the inhabitants thereof could not exercise any 
 civil or political privileges under the laws of Massachu- 
 setts. That such a consequence necessarily followed, 
 but that no hardship was thereby imposed on those in- 
 habitants, because they were not interested in any 
 elections made within the state ; nor were they held to 
 pay any taxes imposed by its authority, nor bound by 
 any of its laws. (a) 
 
 § 224. In the case of The United States v. Cornell.^)) 
 Mr. Justice Story, in discussing the question of state 
 jurisdiction being ousted, says: — "The constitution of 
 the United States declares, that congress shall have 
 power to exercise exclusive legislation, in all cases what- 
 soever, over all places purchased by the consent of the 
 legislature of the state in which the same shall be, for the 
 erection of forts, &c. When, therefore, a purchase of 
 lands for any of these purposes is made by the national 
 government, and the state legislature has given its con- 
 sent to the purchase, the lands so purchased by the very 
 terms of the constitution, ipso facto, fall within the ex- 
 clusive legislation of congress, and the state jurisdiction 
 is completely ousted." He held that this was the ne- 
 cessary result, for exclusive jurisdiction was attendant 
 upon exclusive legislation ; and the consent of the state 
 legislature was, by the very terms of the constitution, by 
 which all the states were bound, and to which all were 
 parties, a virtual surrender and cession of its sovereignty 
 over the place. That it was under the like terms in the 
 same clause of the constitution, that exclusive jurisdic- 
 tion was now exercised by congress in the District of 
 Columbia : that if exclusive jurisdiction and exclusive 
 legislation did not imply the same thing, the state could 
 
 (a) See also, 1 Hall's Journal of Jurisprudence, 53. 
 {b) 2 Mason's R. 03.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 361 
 
 not cede, nor the United States accept for the purposes 
 enumerated in the clause, any exclusive jurisdiction. 
 But if there has been no cession by the state of the 
 place, although it has been constantly occupied and used 
 under purchase or otherwise by the United States for a 
 fort, or arsenal, or other constitutional purpose, the state 
 jurisdiction remains complete and perfect. This rule 
 was held in the case of The People v. Godfrcy,(a) and 
 in the case cited from Pennsylvania.^) In the case of 
 Godfrey, the court held that it had jurisdiction of a 
 murder committed by one soldier upon another within 
 Niagara fort. 
 
 § 225. A question has been made as to what was the 
 effect of the proviso or reservation usually annexed to 
 the consent of the state, that all civil and criminal pro- 
 cess, issued under the authority of the state, might be 
 executed on the lands so ceded in like manner as if the 
 cession had not been made. This question, it will be 
 perceived, was collaterally considered in the case above 
 cited from Massachusetts.(c) It also came under conside- 
 ration in the case of T/lc United States v. Cornell(d) 
 In that case it was contended, that the state retained a 
 concurrent jurisdiction over the place. The court under 
 this point proceeded to consider the true intent and 
 effect of such a proviso. It held, that in its terms it did 
 not contain any reservation of concurrent jurisdiction or 
 legislation. That it provided only that civil and criminal 
 process, issued under the authority of the state, which 
 must of course be for acts done within and cognizable 
 by the state, might be executed within the ceded lands, 
 notwithstanding the cession : that not a word was said 
 from which it could be inferred that it was intended that 
 
 (a) 17 J. R. 225. (c) 8 Mass. R. 72. 
 
 (b) I Hall's Jour. 53. (d) 2 Mason's R. 65. 
 
 46
 
 362 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 the states should have a right to punish for acts done 
 within the ceded lands : that the whole apparent object 
 was answered by considering the clause as meant to pre- 
 vent these lands from becoming a sanctuary for fugitives 
 from justice, for acts done within the acknowledged ju- 
 risdiction of the state : that there was nothing incom- 
 patible in this with the exclusive sovereignty or juris- 
 diction of one state, that it should permit another state 
 in such cases to execute its processes within its limits : 
 that a cession, or exclusive jurisdiction, might well be 
 made with a reservation of a right of this nature, which 
 operated only as a condition annexed to the cession, and 
 as an agreement of a new sovereign to permit its free 
 exercise as quoad hoc, his own process : that this was the 
 light in which it had been viewed in the case of Clary,(«) 
 and that in the judgment of the court, that view of the 
 clause comported entirely with the apparent intention of 
 the parties, and gave effect to acts which might other- 
 wise be construed as entirely nugatory : that it might be 
 well doubted whether congress was by the terms of the 
 constitution at liberty to purchase lands for forts, &c, 
 with the consent of the state legislature where such 
 consent was so qualified, that it would not justify the 
 exclusive legislation of congress there : that it had not 
 the least doubt that the true interpretation of the proviso 
 left the sole and exclusive jurisdiction of the lands thus 
 ceded in the United States. 
 
 § 226. Chancellor Kent says, congress, in exercising 
 powers of exclusive legislation over a ceded place or dis- 
 trict, unite the powers of general with those of local 
 legislation. The power of local legislation comes with it, 
 as an incident to the right, to make that power effectual. 
 Congress exercises that particular local power, like all 
 
 (a) 8 Mass. It. 72.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 363 
 
 its other powers, in its high character as the legislature 
 of the Union, and its general power may come in aid of 
 these local powers. It is therefore competent for con- 
 gress to try and punish an offender for art offence com- 
 mitted within one of these local districts, in a place not 
 within such jurisdiction, and to provide for the pursuit 
 and arrest of a criminal escaping from one of those dis- 
 tricts after committing a felony there, or to punish a 
 person for concealing out of the district a felony commit- 
 ted within it.(a) 
 
 § 227. The next power granted to congress is, " To 
 make all laws which shall be necessary and proper for 
 carrying into execution the foregoing powers, and all 
 other powers vested by this constitution in the govern- 
 ment of the United States, or in any department or offi- 
 cer thereof." In the case of Me Culloch v. The State of 
 Maryland,(b) it was decided, that under this clause of 
 the constitution congress had power to incorporate a 
 bank. That the power of establishing a corporation 
 was not a distinct sovereign power or end of the govern- 
 ment, but only the means of carrying into effect other 
 powers which are sovereign. Whenever it becomes an 
 appropriate means of exercising any of the powers given 
 by the constitution to the government of the Union, it 
 may be exercised by that government. That, if a cer- 
 tain means to carry into effect any of the powers ex- 
 pressly given by the constitution to the government of 
 the Union, be an appropriate measure, not prohibited by 
 the constitution, the degree of its necessity is a question 
 of legislative discretion, not of judicial cognizance. In 
 the case of The United States v. Fiske,(c) it was held, 
 that the power of congress to give the priority to debts 
 
 (a) 1 Kent's Com. 430. (c) 2 Cranch, 358. 
 
 (b) 4 Wheat. 310.
 
 364 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 due to the United States, is claimed under the authority 
 to make all laws which shall be necessary and proper 
 to carry into execution the powers vested by the consti- 
 tution in the government of the United States or in any 
 department thereof. " Congress must possess the choice 
 of means and must be empowered to use any means 
 which are in fact conducive to the exercise of a power 
 granted by the constitution. It is under the same im- 
 plied authority, that the United States have any right 
 even to sue in their own courts ; for an express power 
 is no where given in the constitution, though it is clearly 
 implied in that part respecting the judicial power. And 
 congress may not only authorize suits to be brought in 
 the name of the United States, but in the name of any 
 artificial person (such as the post-master general) or na- 
 tural person for their benefit. Indeed, all the usual 
 benefits appertaining to a personal sovereign in relation 
 to contracts, and suing and enforcing rights, so far as 
 they are within the scope of the powers of the govern- 
 ment, belong to the United States, as they do to other 
 sovereignties. The right of making contracts and insti- 
 tuting suits is an incident to the general rights of sove- 
 reignty ; and the United States being a body politic, may, 
 within the sphere of the constitutional powers confided 
 to it, and through the instrumentality of the proper de- 
 partment to which those powers are confided, enter into 
 contracts not prohibited by law, and appropriate to the 
 just exercise of those powers, and enforce the observance 
 of them by suits and judicial process." 
 
 § 228. We have thus far considered the clauses of the 
 federal constitution containing express grants of powers 
 to congress, and the judicial decisions under them, and 
 incidentally the limitations upon the state sovereignties 
 arising out of those grants. We are in the next place 
 to consider the restrictions laid upon the legislative 
 power of the Union, under express prohibitions found in
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 305 
 
 the same instrument. It is provided that c< the immigra- 
 tion or importation of such persons as any of the stales 
 shall think proper to admit shall not be prohibited by 
 the congress, prior to the year one thousand eight hun- 
 dred and eight ; but a tax or duty may be imposed on 
 such importation, not exceeding ten dollars for each per- 
 son." This limitation of the powers of congress lias now 
 expired by its own limitation, hence no question will be 
 likely to arise under it. 
 
 § 229. " The writ of habeas corpus shall not be 
 suspended unless when, in cases of rebellion or invasion, 
 the public safety may require it." This clause was in- 
 troduced into the constitution as one essential to personal 
 liberty of the citizen. The necessity and importance of 
 such a writ has been clearly and beautifully expressed 
 by the learned commentator on English law, who says : 
 " to bereave a man of life, or by violence to confiscate 
 his estate without accusation or trial, would be so gross 
 and notorious an act of despotism as must at once con- 
 vey the alarm of tyranny throughout the kingdom. But 
 confinement of the person by secretly hurrying him to 
 the jail, where his sufferings are unknown and forgotten 
 is a less public, a less striking, and therefore a more 
 dangerous engine of arbitrary force. The writ which it 
 was the design of this clause to secure is that known to 
 the common law as the writ of habeas corpus ad subjici- 
 endum, which is directed to one detaining another, com- 
 manding the production of the person detained, and the 
 cause of such caption and detention, ad ftciendam, subji- 
 ciendum, et recipiendum, to do, submit, and receive what- 
 ever the court or officer awarding such writ should con- 
 sider in that behalf. 
 
 § 230. " No bill of attainder, or ex post facto law 
 shall be passed." The first question which arises under 
 this clause is, what is to be considered as a bill of attain- 
 der within the meaning of this clause. A bill of attain^
 
 3G6 OF CONSTITUTIONAL RESTRICTION [ciTAP. VTIT. 
 
 der, as understood in England, is a special act of parlia- 
 ment which inflicts capital punishment upon persons 
 supposed to be guilty of high crimes, and that without 
 any conviction by the ordinary judicial tribunals. Wood- 
 deson says " such acts of the supreme power are with us 
 called bills of attainder which are capital sentences, 
 and bills of pains and penalties which inflict a milder 
 degree of punishment. In these instances the legislature 
 assume judicial magistracy, weighing the enormity of 
 the charge and the proof in support of it, and then de- 
 ciding the political necessity and moral fitness of the 
 penal judgment. "(a) Thus it will be perceived, that in 
 J England a distinction was made between bills of attain- 
 der and bills called bills of pains and penalties. The 
 former inflicting capital punishment, the other a milder 
 one than death. But the word as used in this clause oi 
 the constitution has been held to include not only a bill 
 of attainder as understood in England, but also all bills 
 which there, would be regarded as bills of pains and pen- 
 alties. In Fletcher v. Peck,(b) the court say : " A bill of 
 attainder may affect the life of an individual or may con- 
 fiscate his property, or may do both. In this form the 
 power of the legislature over the lives and fortunes of 
 individuals is expressly restrained. 
 
 § 231. The second question which arises for con- 
 sideration under this clause is, what is an " ex post 
 facto" law, within the meaning of the constitution? 
 The meaning to be given to this in a literal sense would 
 be, a law passed after the act is done. In a compre- 
 hensive sense, the term " ex post facto law" embraces 
 all retrospective laws, or laws governing or controll- 
 ing past transactions, whether they are of a civil or crim- 
 inal nature. Laws, however, which mitigate the charac- 
 ter or punishment of a crime already committed may not 
 
 (a) 2 Woodd. 1. 41, p. 371. (i) 6 Cranch, 138.
 
 CHAP, viil] upon legislative power. 307 
 
 fall within the prohibition contained in this clause, for 
 they are in favor of the citizen. Ex pott facto laws relate 
 only to penal and criminal proceedings, which impose 
 punishments or forfeitures, and not to civil proceedings, 
 which affect private rights retrospectively. In the case 
 of Fletcher v. Pcck,(a) Chief Justice Marshall, in deliver- 
 ing the opinion of the court, says ; " An ex post facto 
 law is one which renders an .act punishable in a manner 
 in which it was not punishable when it was committed." 
 In the case of Colder v. Bull,(U) Chase, Justice, in de- 
 livering the opinion, defines ex post facto laws to be, 1st, 
 Every law that makes an action done before the passing 
 of the law, and wiiich was innocent when done, crimi- 
 nal, and punishes the action. 2. Every law that aggra- 
 vates a crime, or makes it greater than it was when 
 committed. 3. Every law that changes the punishment 
 and inflicts a greater punishment than the law annexed 
 to the crime when committed. 4. Every law that alters 
 the legal rules of evidence, and receives less or different 
 testimony than the law required at the time of the com- 
 mission of the offence, in order to convict the offender. 
 § 232. It is true, Mr. Justice Johnson, in a note to 2 
 Peters, 681, in the exposition of this phrase in the con- 
 stitution, in reviewing this case, attempts to show that ex 
 post facto laws include not only those which relate to 
 criminal or penal statutes, but also to statutes affecting 
 civil rights, he says : " The case of a legislature declar- 
 ing a void deed to be a valid deed, is a striking one to 
 show, both that the prohibition to pass laws violating 
 the obligation of contracts is not a sufficient protection 
 to private rights, and that the policy and reason of the 
 prohibition to pass laws violating the obligation of con- 
 tracts, is not a sufficient protection to private rights, and 
 
 (a) 6 Cranch, 87 ; 2 Peter's Con. Rep. 308. 
 (A) 3 Dallas, 386.
 
 368 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 that the policy and reason of the prohibition to pass an 
 ex jiost facto law, does extend to civil as well as criminal 
 cases, the restriction not to pass ex post facto laws could 
 not be limited to criminal statutes without restricting the 
 protection of the constitution to bounds, that would im- 
 port a positive absurdity." " Many statutes have a retro- 
 spective operation, which cannot be supposed to be 
 included in this constitutional prohibition. Of this de- 
 scription are all acts legalizing past proceedings ; all 
 acts of relief, or pardon, or indemnity ; all acts which 
 mitigate the malignity of an offence, or mollify the rigor 
 of the criminal law 7 , and many others which might be 
 enumerated. These are all retrospective, but are not in 
 the constitutional sense ex jwst facto. The words, " ex 
 post facto" have a definite, technical signification. The 
 plain and obvious meaning of this prohibition is, that the 
 legislature shall not pass any law, after a fact, done by 
 any citizen, which shall have relation to that fact, so as 
 to punish that which was innocent when done, or to add 
 to the punishment of that which was criminal, or to 
 increase the malignity of a crime, or to retrench the 
 rules of evidence, so as to make conviction more easy. 
 This definition of an ex ^>ost facto law is sanctioned by 
 long usage. The words had acquired an established, 
 definite, technical signification, long before British juris- 
 prudence was known, or the English language spoken 
 in America. In this sense the w 7 ords have been used 
 and understood by the most celebrated statesmen and 
 jurists, both here and in England." 
 
 § 233. His view, however, as regards civil rights, 
 is overruled by the w T hole current of decisions on 
 this subject. Judge Chase in the case above cited, 
 says : — " If the prohibition against making ' ex ])ost 
 facto 1 laws was intended to secure personal rights 
 from being affected or injured by such laws, and 
 the prohibition is sufficiently extensive for that ob-
 
 CHAP. V11I.] I l'o.\ LEGISLATlVffi POWER. 369 
 
 ject, the other restraints enumerated were unnece88ary 9 
 and therefore improper, for both are retrospective." 
 
 Judge Iredell also says: "The policy, the reason and 
 humanity of the prohibition docs not extend to civil 
 cases, to cases that merely affect the private property of 
 citizens." The courts of New York have held that the 
 term ex post facto law, in this clause of the constitution, 
 applies only to criminal cases. (a) The same doctrine 
 seems to have been recognized in the case of Clark v. 
 CUtrk.(b) Speaking of a law relating to divorce, the 
 court say : " If the proceedings for a divorce were to be 
 regarded as part of a criminal code, and the divorce itself 
 a punishment, a retrospective law for that purpose would 
 be an ex jwst facto law, and thus clearly void.'' In the 
 case of Strong v. The State,(c) it was held, that the 
 term " ex post facto law" literally means any law which 
 relates to and operates upon a fact which existed prior 
 to its enactment. This sense of the words is too large 
 and indefinite to be received as the sense in which they 
 were used and understood by the framers of our consti- 
 tution. That the objection of ex post facto law, applies 
 oidy to laws respecting crimes, has been repeatedly held 
 in Massachusetts. (rf) In one case, Chief Justice Parker 
 speaking of such laws says : " It is contrary to the fun- 
 damental principles of a free government, that a law 
 should operate retrospectively, so as to make an act 
 criminal which, at the time when it was done, was inno- 
 cent ; and if the legislature should pass such a law, the 
 court might, perhaps, decide that it was passed by mis- 
 take, even if we had no constitution prohibiting the enact- 
 ment o$ ex post facto laws. But there is a clause in the 
 constitution of the United States which is of paramount 
 
 (a) Dash v. Van Kleefc, 7 J. R. 177. (r) I Blackf. 193. 
 
 (6) 10 N. II. 380. {d) Lock v. Dane, 9 Mass. R. 36; 
 
 47
 
 370 OF CONSTITUTIONAL RESTRICTION [CHAP. Vtll. 
 
 authority to prevent any state from passing such laws, so 
 that without resorting to fundamental principles, it would 
 be the duty of the court to say that the statute in ques- 
 tion, if it is ex post facto, is not law." The general 
 nature of ex post facto laws is to make acts criminal which, 
 at the time when they were done, were innocent, and 
 which had not been made an offence by any previous 
 
 law.(«) 
 
 § 234. It is unnecessary to multiply authorities upon 
 this point, as we apprehend that the authorities cited 
 fully establish the position that ex post facto laws are to 
 be considered only such as relate to criminal proceed- 
 ings. Indeed, Mr. Justice Johnson cites no authority in 
 this country directly decisive of a different view of this 
 rule, but seeks mainly to show that the cases relied 
 upon in support of a different rule have not necessarily 
 determined this question, and that the phrase a ex jwst 
 facto" is not confined in its ordinary signification to 
 criminal law or criminal statutes, admits of positive de- 
 monstration. His argument of this question is certainly 
 one of great force, and logical, well worthy perusal and 
 consideration. We are not aware, however, that it has 
 ever been judicially adopted in such a manner as to 
 make it authoritative, so as to change the construction 
 already adverted to. There are numerous cases in the 
 books where the distinction between retrospective and 
 ex post facto laws are clearly recognized. We shall, in 
 this connection, advert to several decisions of courts 
 which have held certain laws of state legislatures not to 
 be ex post facto laws, within the meaning of the con- 
 stitution prohibiting such laws. 
 
 § 235. It has been held, that the legislature may pass 
 laws altering, modifying, or taking away remedies for 
 the recovery of debts, without incurring a violation of 
 
 (a) Ross' Case, 2 Pick. 169.
 
 CHAP. VIII.] UrON LEGISLATIVE POWER. 371 
 
 the provision of the constitution which forbids the pas- 
 sage of ex post facto laws, (a) In Strong v. The State0) 
 it was held, that under the statute of Indiana which 
 changed the punishment for perjury from whipping to 
 confinement in the penitentiary, a person guilty of per- 
 jury when the former punishment w r as inflicted might 
 be convicted after the statute took effect, and be pun- 
 ished by the latter punishment ; and that the statute 
 making the change in the nature of the punishment was 
 not ex post facto, according to the meaning of the words 
 in the constitution. The court in that case say : " Can 
 a man be sentenced to a punishment different from that 
 which existed at the time the offence was committed ? 
 It is insisted he cannot. And why cannot this be done ? 
 The legislature has power to enact laws prescribing 
 when and where, and in what manner crimes shall be 
 punished. The legislature has made the statute under 
 consideration. It has said that it shall take effect from 
 a certain time ; and that from and after that time, all 
 persons convicted of crimes which, under the then exist- 
 ing law r s, would subject them to the punishment of 
 stripes, shall, in lieu of stripes, be confined in the state 
 prison. The business of a judicial tribunal is not to 
 make or alter the law, but to declare what the law is ; 
 and w T e cannot justify ourselves in saying, that the cir- 
 cuit court has committed an error in deciding agreeably 
 to legislative authority, unless it is evident beyond all 
 doubt, that the legislature has transcended its constitu- 
 tional powers. To the constitution alone we are to 
 look for a limit to legislative authority. The parliament 
 of Great Britain, whence we have derived our first ideas 
 of legislative as well as of judicial authority, has claimed 
 
 (a) Evans v. Montgomery, 4 Watts & Serg. 218. 
 (l>) 1 Blackf. 193.
 
 372 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 and in many instances has exercised the power of enact- 
 ing laws calculated to entrap the subject, and expose 
 him to capital or other punishment for actions which, 
 at the time of their performance, were perfectly innocent, 
 or to inflict greater punishments for acts already criminal, 
 than were by law annexed to such offences at the time 
 they were committed. By the enactment of such sta- 
 tutes, the most faithful subjects of that kingdom have 
 been sacrificed, and in times of internal commotion and 
 political persecution, the blood of innocent victims has 
 been made to smoke on the altar, as an oblation to the 
 malignant passions of men in power. The framers of 
 our constitution knowing these facts, wisely provided a 
 limit to legislative power. In the 18th section of the 
 first article of the constitution it is provided that no " ex 
 post facto law shall be made." If the statute under con- 
 sideration is not prohibited by this clause of our consti- 
 tution, it is nowhere prohibited in that instrument. 
 Many statutes have a retrospective operation, which can- 
 not be supposed to be included in this constitutional 
 prohibition. Of this description are all acts legalizing 
 past proceedings; all acts of relief, of pardon or indem- 
 nity ; all acts which mitigate the malignity of an offence, 
 or mollify the rigor of the criminal law, and many others 
 which might be enumerated. These are all retrospec- 
 tive, but are not in the constitutional sense, ' : ex post 
 factoT It held that the statute was not ex post facto, for 
 the reasons that it did not create a new offence, did not 
 increase the malignity of that which before was an of- 
 fence, did not change the rules of evidence, so as to ren- 
 der conviction more easy, did not increase the punish- 
 ment of that which was criminal before its enactment. 
 
 § 236. In the case of Boss. (a) it was held, that if a 
 statute add a new punishment, or increase an old one, 
 
 (a) 2 Pick. 169
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 373 
 
 for an offence committed before its passage, such an act 
 would be ex post Jhcto. That a party ought to know at 
 the time of committing the offence the whole extent of 
 the punishment, for it might sometimes be a matter of 
 calculation, whether he will commit the offence in view 
 of the severity of the punishment. In this case it was 
 held, l - The provision in the act of 1817, c. 176, § 13, that 
 where a person has been convicted of a crime punisha- 
 ble by confinement to hard labor, he shall upon convic- 
 tion of another offence punishable in like manner, be 
 sentenced to a punishment in addition to the one pre- 
 scribed by law for this last offence, was not ex post facto, 
 when applied to a case in which the second offence was 
 committed, after the passing of the statute. It might be 
 otherwise, however, if applied where the second offence 
 was committed before the statute was passed. The 
 court say, "if this is an additional punishment to an offence 
 committed after the passing of the statute, to be inflicted 
 by the court upon coming to the knowledge of certain 
 facts, the statute is not ex post facto. As if a law was 
 made, that a person under a certain age committing a 
 crime should receive a mild punishment, and that a per- 
 son over that age, committing a crime, should be pun- 
 ished severely ; and further, that if it should be found, 
 after the mild punishment had been awarded, that the 
 culprit was over the age prescribed, the severe punish- 
 ment should be inflicted, this would not be ex post facto, 
 because the extent of punishment was declared before 
 the offence was committed. The statute might perhaps 
 have been intended to operate on criminals already in 
 prison, and some informations were accordingly filed in 
 cases of that sort. But this objection was made, and 
 two judges, at nisi prius, were of opinion that the sta- 
 tute could not be construed to apply to such cases. On 
 recurring to St. 1804, c. 143, § 3, it will be found to con- 
 tain a provision similar in effect to the statute in ques-
 
 374 OP CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 lion ; and its being acquiesced in for twenty years fur- 
 nishes strong evidence of its being correct in principle. 
 The statute alluded to provides, that if any person hav- 
 ing been before convicted of larceny, shall afterwards 
 commit another larceny, he shall be punished more se- 
 verely than if he had not previously committed the like 
 offence. The punishment is enhanced from the charac- 
 ter of the culprit. So the same statute provides, that if 
 the same person shall be convicted at the same term of 
 three distinct offences, he shall receive a more severe 
 punishment. The same objection would apply in these 
 cases, as much as in the one under consideration ; that 
 the culprit was punished because he committed prior 
 offences, and that he was punished anew for those 
 offences. But in our view the punishment is for the 
 last offence committed, and it is rendered more severe 
 in consequence of the situation into which the party had 
 previously brought himself." It has also been held, that 
 a statute creating a new court, or conferring a new juris- 
 diction, or enlarging or diminishing the powers of an 
 existing court, is not an ex f)ost facto law.(«) These de- 
 cisions proceed upon the ground that such courts have 
 no vested constitutional rights which cannot be limited 
 or defined by the legislative power. That hence the 
 legislature has the right to mould the jurisdiction of all 
 courts at its will, provided it does not invade the sanc- 
 tuary of any other constitutional provision ; hence may 
 enlarge or diminish the power and duty of courts and 
 magistrates. That all this authority, if not expressly 
 given, would necessarily result from the very nature of 
 the legislative power. All public officers impliedly con- 
 sent to alterations in the institutions in which they offi- 
 
 • (a) Wales v. Belcher, 3 Pick. 508. Commonwealth v. Philips, 11 
 Pick. 28.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER.- 375 
 
 date, provided the public deem it expedient to introduce 
 a change. («) 
 
 § 237. The next restriction upon the power of congress 
 is, " No capitation or other direct tax shall be laid unless 
 in proportion to the census or enumeration herein before 
 directed to be taken." The questions arising under this 
 clause have already been considered, as well as those 
 arising under the next, which is as follows : " No tax or 
 duty shall be laid on articles exported 'from any state. 
 No preference shall be given by any regulation of com- 
 merce or revenue to the ports of one state over another, 
 nor shall vessels bound to or from one state be obliged 
 to enter, clear, or pay duties in another." 
 
 § 238. The remaining clause in this article of the con- 
 stitution has not, as we are aware, ever received any judi- 
 cial construction ; it is as follows : " No money shall be 
 drawn from the treasury but in consequence of appro- 
 priations made by law ; and a regular statement and ac- 
 count of the receipts and expenditures of all public money 
 shall be published from time to time." 
 
 § 239. The next restriction upon the power of con- 
 gress is as follows : " Congress shall make no law re- 
 specting an establishment of religion, or prohibiting the 
 free exercise thereof, or abridging the freedom of speech 
 or of the press, or the right of the people peaceably to 
 assemble, and to petition the government for a redress 
 of grievances." 
 
 § 240. There are also certain constitutional restric- 
 tions upon the powers of congress arising by implication, 
 owing to the repugnance of particular acts to other 
 clauses in the constitution. It has been held, that con- 
 gress cannot vest any portion of the judicial powers of 
 the United States, except in courts ordained and esta- 
 blished by itself; and that no part of the criminal juris- 
 
 (c) Mend v. Shcrbun, 1 N. II. 213.
 
 376 OK CONSTITUTIONAL HESTHICTION [CHAP. VIII. 
 
 diction of the United States can, consistently with the 
 constitution, be delegated to the state tribunals. The 
 reason for this decision seems to be, that the state courts 
 were not ordained or established by congress, and were 
 not amenable to that body. That the judiciary of a 
 state is a constituent part of another and independent 
 sovereignty, from which they receive their authority and 
 support, whose laws they are bound to execute. But 
 they are under no such obligation to the United States, 
 whose laws they are bound to obey as citizens, but not 
 to execute as magistrates. («) And that the constitution 
 declares that, "the judicial power of the United States 
 shall be vested in one supreme court and in such inferior 
 courts as congress may, from time to time, ordain or 
 establish. 
 
 § 241. We have thus far confined ourselves to the ques- 
 tion of the powers of congress, and the limitations on those 
 powers contained in the federal constitution. In the next 
 place we shall proceed to consider the restrictions laid 
 upon the legislatures of the respective states under the 
 federal constitution. It will be borne in mind, in the out- 
 set, that under the tenth article of the amendments to the 
 constitution it is expressly provided, that " 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. By the 10th sec- 
 tion of article 1, of the constitution it is expressly de- 
 clared, " No state shall enter into any treaty, alliance or 
 confederation, grant letters of marque and reprisal, coin 
 money, emit bills of credit, make any thing but gold and 
 silver coin a tender in payment of debts, pass any attain- 
 der or ex post facto law, or law impairing the obligation 
 of contracts, or grant any title of nobility/' Thus far the 
 
 (a) Ely v. Peck, 7 Day R. 213. Martin v. Hunter's Lessees, 1 Wheat. 
 R. 301, 330.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 377 
 
 prohibition upon the states is absolute and unquali- 
 fied. 
 
 § 242. We have already considered, incidentally, 
 under the head of the powers of congress, the decisions 
 as it regards the coining of money and the passing of 
 bills of attainder and ex post facto laws, and the nature 
 of those laws, which is all that is necessary to be 
 said in regard to those restrictions. There has not, as 
 we are aware, been any judicial construction in re- 
 gard to that part of this section which relates to treaties, 
 alliances or confederations, or letters of marque, repri- 
 sals, &c. A treaty is, in its nature, a contract between 
 two nations, and not a legislative act, strictly speaking ; 
 yet it does not generally effect itself, the object to be ac- 
 complished, especially so far as its object is infra terri- 
 torial, but is carried into effect by the sovereign power 
 of the parties to the instrument, where either of the 
 parties engage to perform a particular act, the treaty 
 addresses itself to the political power of the state, and it 
 must be executed through the legislative department of 
 the government. 
 
 § 243. The only class of restrictions contained in this 
 section to which it is necessary to advert under this 
 head, are those which relate to emitting bills of credit, 
 making any thing but gold and silver coin a tender in pay- 
 ment of debts, and acts impairing the obligation of con- 
 tracts. 1st, what are bills of credit, within the meaning 
 of this clause of the constitution '] In its enlarged and 
 perhaps liberal sense, the term " bills of credit," may 
 comprehend any instrument by which a state engages to 
 pay money at a future day ; thus including a certificate 
 given for money borrowed. But the language of the 
 constitution itself, and the mischief to be prevented, 
 equally limit the interpretation of the term. The word 
 " emit," is never employed in describing those contracts 
 by which a state binds itself to pay monev at a future 
 
 48
 
 378 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 day, for services actually received, or for money borrowed 
 for present use. Nor are instruments executed for such 
 purposes, in common language, denominated " bills of 
 credit." " To emit bills of credit," conveys to the mind 
 the idea of issuing paper intended to circulate through 
 the community, for its ordinary purposes, as money ; 
 which paper is redeemable at a future day. This is the 
 sense in which the terms have always been under- 
 stood.^) The term, "bills of credit," in its mercan- 
 tile sense, comprehend a great variety of evidences of 
 debt, which circulate in a commercial community.* In 
 the early history of banks, it seems their notes were gen- 
 erally denominated " bills of credit;" but in modern times 
 they have lost that designation, and are either called 
 " bank bills," or " bank notes." But the inhibition of 
 the constitution applies to bills of credit, in a limited 
 sense. (&) The definition of a bill of credit, which in- 
 cludes all classes of bills of credit emitted by the colo- 
 nies or states, is a paper issued by the sovereign power, 
 containing a pledge of its faith, and designing to circulate 
 as money. (c) 
 
 § 244. To constitute a bill of credit within the consti- 
 tution, it must be issued by a state, on the faith of a 
 state, and designed to circulate as money. It must be a 
 paper which circulates on the credit of the state, and so 
 received and used in the ordinary business of life. The 
 individuals or committees who issue it must have power 
 to bind the state ; they must act as agents, and, of course, 
 not incur any personal responsibility, nor impart as in- 
 dividuals, any credit to the paper. These are the lead- 
 ing characteristics of a bill of credit, which a state cannot 
 
 (a) Craig et al. v. The State of Missouri, 4 Peters, 431. 
 
 (b) Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters, 
 558. 
 
 (0 ibid.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 379 
 
 emit.(a) The constitution considers the emission of hills 
 of credit, and the enactment of tender laws, as distinct 
 operations, independent of each other, which may he 
 separately performed. Both are forbidden. To sustain 
 the one because it is not also the other; to say that bills 
 of credit may be emitted, if they be not made a tender 
 in payment of debts ; would be, in effect, to expunge that 
 distinct, independent prohibition, and to read the clause 
 as if it had been entirely omitted. (/>) 
 
 § 245. On the 27th day of June, 1821, the legislature 
 of the state of Missouri passed an act entitled " an act 
 for the establishment of loan offices ;" by the third sec- 
 tion of which, the officers of the treasury of the state, 
 under the direction of the governor, were required to 
 issue certificates to the amount of two hundred thousand 
 dollars, of denomination not exceeding ten dollars, nor 
 less than fifty cents, in the following form : " This 
 certificate shall be receivable at the treasury of any 
 of the loan offices in the state of Missouri, in dis- 
 charge of taxes or debts due to the state, for the sum 
 of dollars, with interest for the same, at the 
 
 rate of two per cent per annum, from this date." These 
 certificates were to be receivable at the treasury and 
 by tax gatherers and other public officers, in payment of 
 taxes, or moneys due or to become due to the state, or 
 to any town or county therein, and by all officers, civil 
 and military, in the state, in discharge of salaries and 
 fees of office ; and in payment for all salt made at the 
 salt springs owned by the state, and to be afterwards 
 leased by the authority of the legislature. The twenty- 
 third section of the act pledged certain property of the 
 state for the redemption of those certificates ; and the 
 
 (a) Briscoe v. The Bank of the Commonwealth of Kentucky, 1 1 Peters, 
 258. 
 
 (b) Craig v. The Slate of Missouri, 4 Peters, 131.
 
 3S0 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 law authorized the governor to negotiate a loan of silver 
 or gold for the same purpose. A provision was made in 
 the law, for the gradual withdrawal of the certificates 
 from circulation ; and all the certificates have since been 
 redeemed. The commissioners of the loan office were 
 authorized to make loans of the certificates to citizens of 
 the state, assigning to each district a proportion of the 
 amount of the certificates, to be secured by mortgage or 
 personal security ; the loans to bear interest not exceed- 
 ing six per cent per annum, and the loans on personal 
 property to be for less than two hundred dollars. It 
 was held, that the certificates issued under the authority 
 of the law of Missouri, were " bills of credit," and that 
 their emission was prohibited by the constitution of the 
 United States, which declares that no state shall emit 
 u bills of credit."(a) A state cannot emit bills of credit, 
 or, in other words, it cannot issue that description .of 
 paper, to answer the purpose of currency, which was 
 denominated, before the adoption of the constitution, 
 " bills of credit." But a state may grant acts of incorpo- 
 ration for the attainment of those objects which are es- 
 sential to the interests of the society. This power is 
 incident to sovereignty, and there is no limitation on its 
 exercise by the state in the constitution, in respect to 
 the incorporation of banks. (/>) When a state emits bills 
 of credit, the amount to be issued is fixed by law, as 
 also the fund out of which they are to be paid, if any 
 fund be pledged for their redemption, and they are issued 
 on the credit of the state ; which, in some form, appears 
 on the face of the notes, or by the signature of the person 
 who issues them.(c) 
 
 (a) Craig v. The State of Missouri, 4 Peters, 431. See also Linn v. State 
 Bank of Illinois, 1 Scam. 87. 
 
 (b) Briscoe, <5fc. v. The Bank of Kentucky, 1 1 Peters, 258. 
 
 (c) Ibid.
 
 CHAP. V11I.] UPON LEGISLATIVE POWER. 381 
 
 § 246. It has been held that a bank note issued by the 
 bank, the act of the incorporation of which declared that 
 it should be established in the name of the COmmOH- 
 wealth of Kentucky, under the direction of president 
 and directors chosen by the legislature, and declared to 
 be exclusively the property of the state, authorizing the 
 issuing of notes, with a capital of $2,000,000, to be paid 
 out of money thereafter to be paid into the treasury of 
 the state for vacant lands, were not bills of credit within 
 this clause of the constitution, notwithstanding the divi- 
 dends of the bank were to be paid into the treasury. 
 The decision in this case was placed upon the ground 
 that there was with others, one quality which distin- 
 guished the notes of this bank from bills of credit. That 
 every holder could look to the bank as w 7 ell as to its 
 funds, and had in his power the means of enforcing his 
 claim against the corporation. That as at the time of the 
 adoption of the constitution, the Bank of North America 
 and the Massachusetts Bank, and some others, w^ere in 
 operation, it could not be supposed that the notes of 
 those banks were intended to be inhibited by the con- 
 stitution, or that they were considered as bills of credit 
 within the meaning of that instrument. That upon a 
 fair construction of the terms " bills of credit" as used in 
 the constitution, they did not include ordinary bank 
 notes, (a) 
 
 § 247. The clause in the constitution prohibiting the 
 making any thing but gold and silver coin a tender in 
 payment of debts, is founded upon the same general po- 
 licy and upon the same general considerations as those 
 relating to bills of credit, and the coining of money. It 
 has been held, that this prohibition applies to all future 
 laws on the subject of tender, and consequently, that no 
 
 (a) Briscoe v. The Bank of the Commonwealth of Kentucky, 1 1 Peters, 
 259. 

 
 382 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 stale legislature can provide, that future pecuniary con- 
 tracts may be discharged by any thing but gold and sil- 
 ver coin, (a) 
 
 § 248. We are in the next place to consider what 
 laws are within the prohibition against impairing the 
 obligation of a contract. It should be remarked, in the 
 first place, that the objection to a law on the ground of 
 its impairing the obligation of a contract, does not de- 
 pend on the extent of the change which the law may 
 make in it : that any deviation from its terms, by post- 
 poning or accelerating the period of performance which 
 it prescribes, or imposing conditions not expressed in the 
 contract, or dispensing with the performance of those 
 which are, however minute or apparently immaterial in 
 their effect upon the contract of the parties, impairs its 
 obligation, and is within this constitutional prohibition. 
 
 § 249. The language in this clause is general, and 
 applies to all contracts which respect property or some 
 object of value, and confer rights which may be asserted 
 in a court of justice. When the constitution was framed 
 the term " contract" had a known legal meaning, as defi- 
 nite and as well understood as a bill of attainder or an 
 ex post facto law. This meaning was adopted, and 
 became a part of the instrument as fully as if it had 
 been expressed in words. The common law had denned 
 the term. It had declared a contract to be a compact 
 between two or more parties ; and whether it related to 
 real or personal estate, or was executed or executory, or 
 rested in parol or was under seal, the constitution pre- 
 served it inviolate from the action of a state legislature, 
 so far as it created rights or contained obligations binding 
 on the parties in law or equity. The character of the 
 parties to the compact, was not intended to prevent the 
 
 (a) Ogden v. Saunders, 12 Weeat. 265-339. Story on the Constitution, 
 $ 136G.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 383 
 
 general application of the -prohibition. Whether a slate, 
 a minor municipal corporation, or an individual is a 
 party, is immaterial. All are embraced in the same pro- 
 vision. The rights and duties of the contracting par- 
 ties, whoever they may be, are determined by the con- 
 tract, and are protected from legislative interference and 
 control. 
 
 § 250. The constitution docs not, however, give va- 
 lidity to contracts which confer no right ; nor does it 
 add to those which they do confer. It prohibits a state 
 from impairing the obligation of the contract, that is, the 
 rights and duties which arise from it. It does not de- 
 clare that every contract contained an obligation, or that 
 it should be enforced ; but it does declare, that what- 
 ever obligations are created or rights secured, shall 
 not be impaired by the act of the legislature ; thus 
 leaving the questions as to the nature, form, extent, con- 
 struction, and validity of the contract, and the manner 
 of enforcing it, to be determined by the judicial depart- 
 ment of the government, and only prohibiting the legis- 
 lature from passing a law which shall impair the obliga- 
 tions or rights created by it. 
 
 § 251. It is obvious, therefore, that in every case 
 where the prohibition is attempted to be applied, the 
 first inquiry is, whether the case be one in which the 
 subject matter is a contract relating to property or some 
 object of value, and which imposes an obligation capa- 
 ble, in legal contemplation, of being impaired 1 If it be 
 such a contract, the remaining inquiry is, whether the 
 act of the legislature impairs that obligation? Hence, it 
 is a proper subject of examination whether the contract 
 be executed, or executory 1 And if the latter, whether 
 it be upon sufficient consideration, proved or presumed ? 
 If it be an act of the legislature which constitutes the 
 contract, is it executed'? Has the object of the contract 
 been performed'? or, is it a mere executory contract, re-
 
 384 OF CONSTITUTIONAL RESTRICTION [CHAP. VIM. 
 
 quiring the further action of the legislature or its agents, 
 to complete its execution 1 And if the latter, is it vol- 
 untary, or upon sufficient consideration 1 If the contract 
 be one which the legislature has the constitutional power 
 to make, and it be executed, and no further act remains 
 to be done, by the state or its agents — as if a grant of 
 money be made, and the money be delivered, or of land, 
 and the legislative act is itself the conveyance, not re- 
 quiring the execution and delivery of a deed or other 
 instrument, nor any other act to be done to complete it 
 — the contract has passed to the form of a grant ; it has 
 become a contract executed, and the law in which it 
 originates, cannot be repealed. But if the contract be 
 executory, as if it be a gift of money or land unexecuted, 
 requiring some further act to its completion, as the de- 
 livery of the money, or the execution of an instrument 
 of conveyance, and is without consideration in fact or 
 presumed, then before its completion, and the existence 
 of any consideration, it may be repudiated : the gift may 
 be withheld, and the party who made the promise may 
 revoke it. In this respect, the state and an individual 
 are subject to the same rule. It is essential to the va- 
 lidity of a gift, that there be a delivery of the thing 
 given, or that which is equivalent to it. Donatio jyerji- 
 citur, posscssionc accipicntls. A mere promise to give, is 
 no gift ; and such a promise is equally nugatory, whether 
 made by a state or individual. 
 
 § 252. The true meaning of this clause of the consti- 
 tution may be stated as follows : The body upon which 
 the prohibition rests, is the legislative department of the 
 state. The subject of the prohibition is every contract 
 relating to property or some object of value, and which 
 confers rights which may be asserted in a court of jus- 
 tice. It is immaterial whether the contract be one be- 
 tween a state and an individual, or between individuals 
 only ; the contracting parties, whoever they may be,
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 385 
 
 stand, in this respect, upon the same ground. The obli- 
 gations imposed, and the rights acquired by virtue of the 
 contract, cannot be impaired by a legislative act. A 
 law which discharges these obligations, or abrogates 
 these rights, impairs them. A constitutional act of le- 
 gislation, which is equivalent to a contract, and is per- 
 fected, requiring nothing further to be done in order to 
 its entire completion and perfection, is a contract exe- 
 cuted ; and whatever rights are thereby created, a subse- 
 quent legislature cannot impair. The obligation created 
 by a constitutional law, which is in the nature of an 
 executory contract, and is supported by a sufficient con- 
 sideration, cannot be annulled at the pleasure of the le- 
 gislature. A statute enacted by a legislative body, 
 having authority under the constitution to enact it, which 
 implies a contract executory, depending upon the further 
 action of the legislature or its agents for its execution, 
 and which is without any consideration in fact or law, 
 may, before its execution and the existence of any con- 
 sideration, be repealed, such a contract not creating any 
 rights or duties which, in legal contemplation, can be 
 impaired. Such it has been held, was the true meaning 
 of this clause of the constitution ; and such is the inter- 
 pretation which has been given it in the cases where it 
 has been under the consideration of courts of justice.(a) 
 § 253. It has also been settled, that a contract entered 
 into between a state and an individual, or between a 
 state and a corporation, is as fully protected by this pro- 
 
 (a) Trustees of the Bishop's Fund v. Rider, 13 Day's R. 87. See also, 
 Fletcher v. Peck, 6 Cranch, 87 ; New Jersey v. Wilson, 7 Cranch, 1G4 ; 
 Terrett v. Taylor, 9 id. 43 ; Sturgess v. Croicningshield, 4 Wheat. R. 122 ; 
 Dartmouth College v. Woodward, 4 Wheat. R. 518 ; Green v. Biddle, 8 
 Wheat. R. 1 ; Atwaler v. Woodbridge, 6 Conn. R. 223 ; Osborne v. Hum- 
 phrey, 7 Conn. R. 336 ; The Derby Turnpike Co. v. Parks, 10 Conn. R. 522 ; 
 London v. Litchfield, 11 id. 251 ; The Peop'c v. Piatt, 17 Johns. R. 195. 
 
 49
 
 386 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 hibition, as a contract between two individuals : and 
 also to contracts executed or executory, between private 
 individuals, or a state and individuals or corporations, or 
 between two states.(a) This prohibition does not, how- 
 ever, extend to paper money, or tender laws, for the 
 reason that those subjects are expressly provided for ; 
 nor is it to be limited to instalment and suspension 
 laws, because the terms of the prohibition are general 
 and comprehensive, and establish the principle of the 
 inviolability of contracts in every mode. (6) A law in 
 force when the contract is made cannot be said to be 
 one which impairs its obligation, and that for the reason 
 that existing laws are to be regarded as entering into 
 and forming part of every contract or stipulation be- 
 tween the parties. (c) It is upon this principle that the 
 supreme court of the United States in the case of Ogden 
 v. Saunders ^{d) held, that a bankrupt or insolvent law 
 of any state, which discharged both the person of the 
 debtor and his future acquisitions of property, was not " a 
 law impairing the obligation of contracts," so far as 
 respects debts contracted subsequent to the passage of 
 such law, in those cases where the contract was made 
 between citizens of the state under whose laws the dis- 
 charge was obtained, and in whose courts the discharge 
 might be pleaded. But a law made after the existence of 
 a contract which alters the terms of it, by rendering it 
 less beneficial to the creditor, or by defeating any of the 
 terms upon which the parties had agreed, impairs ils 
 obligation within the meaning of this clause of the con- 
 
 (a) Providence Bank v. Billings el al., 4 Pet. 514 ; Dartmouth College v. 
 Woodward, 4 Wheat. R. 518. 
 
 (b) Slurgess v. Crowningshield, 4 Wheat. 122. 
 
 (c) Blanchard v. Russell, 13 Mass. R. 116; Bronson v. Kensie, 1 How. 
 R. 315. 
 
 (d) 12 Wheat. 213.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 387 
 
 stitution.(a) Upon these principles it has been held, 
 that a bankrupt law made to affect contracts which ex- 
 isted previous to the passage of the law, directly impairs 
 the obligation of sucli contract. (/>) And it was upon 
 this principle that the supreme court of the United 
 States held the act of the legislature of the state of New 
 York, passed on the 3d of April, 1811, (which not only 
 liberated the person of the debtor, but discharged him 
 from all liability for any debt contracted previous to his 
 discharge, on his surrendering his property in the man- 
 ner it prescribed,) so far as it attempted to discharge the 
 contract, was a law impairing the obligations of contracts, 
 within the meaning of the constitution of the United 
 States.(6*) And upon the same principle it has been 
 held, that such a law may be constitutionally passed 
 when it only provides for the discharge of the debtor 
 from liability for debts contracted subsequent to the 
 passage of the law.(f/) 
 
 § 254. A state may, however, regulate at pleasure the 
 modes of proceeding in its courts in relation to past con- 
 tracts, as well as future. It may shorten the period of 
 time in which claims shall be bound by statutes of limi- 
 tation. It may direct that the necessary implements ot 
 agriculture, or tools of a mechanic, or articles of neces- 
 sity in household furniture, or w T earing apparel, shall not 
 be liable to execution on judgment. These have always 
 been properly considered as belonging to the remedy, to 
 be exercised or not by every sovereignty, according to 
 its own views of policy and humanity. This right must 
 
 (a) Blanchard v. Russell, 13 Mass. 1 ; King v. Dtdham Bank, 15 
 Mass. 447 ; Call v. Hagger, 8 Mass. 423. 
 
 (b) Blanchard v. Russell, 13 Mass. R. 1 ; Kimberly v. Ely, 6 Pick. 
 440, 451 ; Belts v. Bayley, 12 Pick. 572. 
 
 (c) Sturgess v. Crowningshield, 4 Wheat. R. 122. 
 
 (J) Walsh v. Fonard, 13 Mass. R. 19 ; Baker v. Wheaton, 5 id. 509. 
 
 V
 
 V 
 
 388 OP CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 reside in every state to enable it to secure its citizens 
 from unjust and harrassing litigation, and to protect them 
 in those pursuits which are necessary to the existence 
 and well being of every community. And, although a 
 new remedy may be deemed less convenient tl\an 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 prohibited by the constitution. 
 
 § 255. This subject came before the supreme court of 
 the United States in the case of Green v. Biddle,{a) de- 
 cided in 1823. It appears to have been twice elaborately 
 argued by counsel on both sides, and deliberately con- 
 sidered by the court. On the part of the demandant in 
 that case, it was insisted that the laws of Kentucky, 
 passed in 1797 and 1812, concerning occupying claim- 
 ants of land, impaired the obligation of the contract made 
 with Virginia in 1789. On the other hand, it was con- 
 tended that these laws only regulated the remedy, and 
 did not operate on the right to the lands. In deciding 
 the point the court say : u It is no answer that the acts 
 of Kentucky now in question, are regulations of the 
 remedy, and not of the right to the lands. If these acts 
 so change the nature and extent of existing remedies as 
 materially to impair the rights and interest of the owner, 
 they are just as much a violation of the compact as if 
 they directly overturned his rights and interests." And 
 in the opinion delivered by the court after the second 
 
 (a) 8 Wheat. Rep. 1. 

 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 389 
 
 argument, the same rule is reiterated in Language .equally 
 strong. Nothing, in short, can be more clear, upon the 
 principles of law and reason, than that a law which 
 denies to the owner of land a remedy to recover tin- 
 possession of it when withheld by any person, however 
 innocently he may have obtained it ; or to recover the 
 profits received from it by the occupant ; or which clogs 
 his recovery of such possession and profits, by conditions 
 and restrictions tending to diminish the value and amount 
 of the thing recovered, impairs his right to, and interest 
 in, the property. If there be no remedy to recover the 
 possession, the law necessarily presumes a w T ant of right 
 to it. If the remedy afforded be qualified and restrained 
 by conditions of any kind, the right of the owner may 
 indeed subsist and be acknowledged, but it is impaired 
 and rendered insecure, according to the nature and ex- 
 tent of such restrictions. (a) 
 
 § 256. This question again came under consideration 
 in the case of Branson v. Klnsic(b) In that case it was 
 held, that a state law passed subsequently to the execu- 
 tion of a mortgage, which declared that the equitable estate 
 of the mortsfaoor should not be extinguished for twelve 
 months after a sale under a decree in chancery, and pre- 
 vented any sale unless two thirds of the amount at v.hich 
 the property had been valued by appraisers should be 
 bid therefor, was within this clause of the constitution, 
 and therefore void. The court, in that case, after citing 
 the cases above quoted from 8 Wheaton's Reports, say, 
 " we concur entirely in the correctness of the rule above 
 stated. It is difficult, perhaps, to draw a line that would 
 be applicable in all cases between the legitimate altera- 
 tions of the remedy and provisions which, in the form of 
 remedy, impair the right. But it is manifest that the 
 
 (a) 8 Wheat. R. 75. (b) 1 Howard, 311.
 
 890 OF CONSTITUTIONAL RESTRICTION [ciIAP. VIII. 
 
 obligation of the contract, and the right of a party under 
 it, may, in effect, be destroyed by denying a remedy al- 
 together, or may be seriously impaired by burthening 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 
 difference between a retrospective law declaring a par- 
 ticular contract or class of contracts to be abrogated and 
 void, and one which took away all remedy to enforce 
 them, or encumbered it with conditions that rendered it 
 useless or impracticable to pursue it." 
 
 § 257. The decision in the case last cited by us was 
 placed upon the ground, that according to the long settled 
 rules of law and equity, the legal title to the mortgaged 
 premises vested in the complainant on the forfeiture of 
 the condition ; and at law he had a right to sue for and 
 recover the land itself. But, in equity, this legal title 
 was regarded as a trust estate, to secure the payment of 
 the money, and, therefore, when the debt was discharged, 
 there was a resulting trust for the mortgagor.(a) It was 
 upon this construction of the contract, that courts of 
 equity lend their aid either to the mortgagor or mortga- 
 gee, in order to enforce their respective rights. The 
 court would, upon the application of the mortgagor, direct 
 the reconveyance of the property to him, upon the pay- 
 ment of the money ; and, upon the application of the 
 mortgagee, it will order a sale of the property to dis- 
 charge the debt. But, as courts of equity follow the 
 law, they acknowledge the legal title of the mortgagee, 
 and never deprived him of his right at law until his debt 
 was paid ; and he was entitled to the aid of the court to 
 extinguish the equitable title of the mortgagor, in order 
 that he might obtain the benefit of his security. For 
 
 (a) Conrad v. The Atlantic Insurance Co., 1 Peters, 441.
 
 CHAP. VIII."] UPON LEGISLATIVE POWER. 391 
 
 this purpose it was his absolute and undoubted right, 
 under an ordinary mortgage deed, if the money was not 
 paid at the appointed day, to go into the court of chance- 
 ry, and obtain an order for the sale of the whole of the 
 mortgaged property, (if the whole was necessary,) free and 
 discharged from the equitable interest of the mortgagor ; 
 this was his right by the law of the contract, and it was 
 the duty of the court to maintain and enforce it without 
 any unreasonable delay. When this contract was made 
 no statute had been passed by the state changing the 
 rules of law or equity in relation to a contract of this 
 kind. None such, at least, had been brought to the no- 
 tice of the court ; and it must, therefore, be governed, 
 and the rights of the parties under it measured, by the 
 rules above stated. They were the laws of Illinois at 
 the time ; and, therefore, entered into the contract, and 
 formed a part of it, without any express stipulation to 
 that effect in the deed. Thus, for example, there was 
 no covenant in the instrument giving the mortgagor the 
 right to redeem, by paying the money after the day lim- 
 ited in the deed, and before he was foreclosed by the 
 decree of the court of chancery. But this was his right 
 and remedy ; for this right and this remedy by the law 
 of the state then in force, w 7 as a part of the law of the 
 contract, without any express agreement ; and the rights 
 of the mortgagee required no express stipulation to define 
 or secure them. They were annexed to the contract 
 at the time it was made, and formed a part of it ; and 
 any subsequent law impairing the rights thus acquired, 
 impaired the obligations which the contract imposed. 
 That the act of 19th February, 1841, under consideia- 
 tion, acted not merely on the remedy, but, indirectly, on 
 the contract itself, and engrafted upon it new conditions 
 injurious and unjust to the mortgagee. It declared, that 
 although the mortgaged premises should be sold under 
 the decree of the court of chancery, yet that the equitable
 
 392 OF CONSTITUTIONAL RESTRICTION [ciIAP. VIII. 
 
 estate of the mortgagor should not be extinguished, but 
 should continue for twelve months after the sale ; and 
 gave, moreover, a new estate which before had no ex- 
 istence, to judgment creditors, to continue for fifteen 
 months. That if such rights might be added to the ori- 
 ginal contract by subsequent legislation it would be diffi- 
 cult to say at what point they should stop. That any 
 such modification of a contract by subsequent legislation, 
 against the consent of one of the parties, impaired its ob- 
 ligation, and was prohibited by the constitution. 
 
 § 258. In a subsequent case,(a) it was held, by the 
 same court, that a law of Illinois, providing that a sale 
 should not be made of property levied on under an exe- 
 cution unless it would bring two-thirds of its valuation, 
 according to the opinion of three householders, was with- 
 in this clause of the constitution, and that such a law 
 impaired the obligation of a contract. The court held, 
 that the obligation of a contract consisted in its binding 
 force on the party who made it. This depended on the 
 laws in existence when made. Those laws were neces- 
 sarily referred to in all contracts, and formed a part of 
 them, as the measure of the obligation to perform them, 
 by the one party, and the right acquired by the other. 
 That there could be no other standard by which to as- 
 certain the extent of either, than that which the terms 
 of the contract indicated, according to the settled legal 
 meaning. That when it becomes consummated, the law 
 defines the duty and the right, compelled one party to 
 perform the thing contracted for, and gave to the other 
 the right to enforce the performance by the remedies 
 then in force. That if any subsequent law had the effect 
 to diminish the duty, 01 to impair the right, it necessarily 
 bore on the obligation of the contract, in favor of one 
 
 (a) McCruchen v. Hayivard, 2 Howard, 608.
 
 CHAP. VIII.] UPON LEGISLATIVE TOWER. 393 
 
 party to the injury of the other, and hence that any law, 
 which in its operation amounts to a denial or obstruction 
 of the right accruing hy a contract, though professing to 
 acton (he remedy, only impaired the obligation of the 
 contract, and was within this clause of the constitution-, 
 That the ohligation of the contract between the parties, 
 in tli is case, was to perform the promises and obligations 
 contained therein ; the right of the plaintiff was to dam- 
 ages for the breach thereof, to bring suit and obtain a 
 judgment, to take out and prosecute an execution against 
 the defendant until the judgment was satisfied, pursuant 
 to the existing laws of Illinois. These laws, giving these 
 rights, were as perfectly binding on the defendant, and 
 as much a part of the contract, as if they had been set 
 forth in its stipulations in the very words of the law re- 
 lating to judgments and executions. If the defendant 
 had made such an agreement as to authorize a sale of 
 his property, which should be levied on by the sheriff, 
 for such price as should be bid for it at a fair public sale 
 after reasonable notice, it would have conferred a right 
 on the plaintiff which the constitution made inviolable ; 
 and it could make no difference whether such right is 
 conferred by the terms or the law of the contract. Any 
 subsequent law which denies, obstructs, or impairs this 
 right, by superadding that there shall be no sale for any 
 sum less than the value of the property levied on, to be 
 ascertained by appraisement, or any other mode of valu- 
 ation than a public sale, affected the obligation of the con- 
 tract as much in the one case as in the other, for it could 
 be enforced only by a sale of the defendant's property, 
 and the prevention of such sale was a denial of the right. 
 The same power in a state legislature might be carried 
 to any extent, if it exists at all; it might prohibit a sale 
 for less than the whole appraised value, or for three- 
 fourths, or nine- tenths, as well as for tw r o-thirds ; for, if 
 the power could be exercised to any extent, its exercise 
 
 50
 
 394 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 must be a matter of uncontrollable discretion, in passing 
 laws relating to the remedy which are regardless of the 
 effect on the right of the plaintiff. 
 
 § 259. In the case of Nelson v. Allen and I/arris } (a) 
 an act of the legislature of Tennessee, which gave to 
 a defendant the value of his improvements made upon 
 the land, in an action of ejectment or by suit for 
 the same, was held to be in conflict with this clause 
 of the constitution. The decision in this case as well as 
 in the case of Bristoc v Evans and M' 'Campbell, decided 
 previously in the same court, was put upon the ground, 
 that the bill of rights had declared, " that no laic impairing 
 the obligation of contracts shall be made" A grant from the 
 state was a contract between the state and the grantee. 
 It was a contract executed, and it contained binding obli- 
 gations on the parties. Any legislative act which impair- 
 ed the obligation arising from the grant, that the grantee 
 should have the exclusive use and enjoyment of the pro- 
 perty granted, subject to such taxes and burdens as had 
 been customary, for the good of society, before the for- 
 mation of the constitution was unconstitutional and void. 
 The act in question could not bear the test of this prin- 
 ciple. The idea that the state authorized a man to 
 make an entry in the surveyor's books for the land of 
 another, to make extensive improvements on the land, 
 and under such circumstances, sustain an action for the 
 value of the improvements, would be subversive of the 
 clearest principles of natural right in relation to property, 
 and consequently in violation of the constitution, which 
 guarantied to every man the exclusive use of his own 
 property. The same principle was applied in a case in 
 the same court decided in 1813.(6) In that case the 
 court said: "the idea of property, so dear to freemen, 
 would be at once lost, if it can be controlled by others 
 
 (a) I Yerger, 3G0. (/>) Townsend v. Ship's Heirs.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 395 
 
 without the owner's approbation. Therefore, at com- 
 mon law, a person who cleared or improved another's 
 land, without his consent or request, was not only en- 
 titled to no compensation, but was liable to an action of 
 trespass; though, it is believed, that on the principles 
 governing a court of equity, that court would directly 
 sustain an action for the value of improvements. At 
 this day it would be time mis-spent to descant at length 
 upon the principles of the constitution under which we 
 live. Let it suffice to observe, that they secure to the 
 honest and industrious the exclusive enjoyment of the 
 fruits of that honesty and industry ; and, in other words, 
 the undisturbed use of their property. No man can be 
 deprived of it but by his own consent, unless for the 
 public use; and not then, without jusj, compensation. 
 These principles, being inseparably interwoven in the 
 frame and texture of our constitution, cannot be de^ 
 stroyed by a legislative act." It was upon analogous 
 principles that the supreme court of this state, in 
 the case of Quackenbush v. Danks^a) held, that the 
 act of 1842, exempting certain property from distress 
 for rent and sale on execution, did not affect execu- 
 tions for debts contracted before its passage. That if 
 it extended to such debts it would be in conflict with 
 this clause of the federal constitution. Under these 
 cases it has at length become definitely settled, that a 
 state law which impairs the obligations of a contract, 
 whether that contract be found in the express terms and 
 conditions of the written contract between the parties, or 
 is engrafted upon the contract by the law of the land, as 
 it existed at the time the contract was made, is within 
 this prohibitory clause of the federal constitution, as well 
 also as all laws aimed or nominally directed to the rem- 
 
 (a) I Denio, 128. 
 
 I
 
 396 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 ecly, when they so affect the remedy as to impair the 
 right itself, or engraft upon such right, terms and condi- 
 tions inconsistent with the original contract itself, and 
 thus affecting or impairing its obligation. The principle 
 has universally obtained, that no act of the legislature 
 can alter the nature and legal effect of an existing con- 
 tract, to the prejudice of either party. The difficulty 
 that has arisen in all the cases upon this subject has 
 been in defining and ascertaining the line of demarcation, 
 between acts which affect tire contract so as to impair 
 its obligation, and acts relating to the subject matter of 
 the contract, but affecting only the remedy.(a) 
 
 § 260. There is another class of cases which have 
 arisen in our courts, which have been upheld as not 
 within this cla*ise of the constitution, and which pro- 
 ceed upon the ground, that they effect the remedy merely, 
 and leave the contract untouched and unimpaired. The 
 remedy of imprisoning the debtor may be taken away, 
 and has been so taken away ; and such laws have been 
 held as not impairing the obligation of the contract. 
 This distinction was clearly recognized in the case of 
 Starges v. Croioningshield,(b) and it was upon this dis- 
 tinction that the supreme court of Massachusetts, in the 
 case of Blgelow v. Pritckard^c) held, that the insolvent 
 law of 1838, which provided that an assignment should 
 vest the debtor's property in the assignee, although the 
 same might then be attached on mesne process, and 
 should dissolve such attachment, applied to an attach- 
 ment made after the statute went into operation, for the 
 purpose of securing a debt incurred before its enactment, 
 was not one impairing the obligation of the contract, but 
 
 (a) See King v. Dedham, 15 Mass. R. 447. Foster v. Essex Bank, 16 
 Mass. R. 245. 
 
 (b) 4 Wheat. 122. 
 
 (c) 21 Pick. 169.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 307 
 
 only a fleeted the remedy. The court held, that the cre- 
 ditor had no vested right in the mere remedy, unless he 
 had exercised it by the commencement of legal prooeee 
 under it, before the law making an alteration concern- 
 ing it should have gone into operation, and that in that 
 case the attachment had not been made until after the 
 act was passed. 
 
 §201. This constitutional restriction also prohibits 
 any state passing a law divesting a vested right, whether 
 that right be acquired under or by virtue of an express 
 contract, or acquired under or by virtue of a charter 
 granted by the government itself, either to individuals or 
 to a corporation, or held under a government charter an- 
 tecedent to American independence. It was held, in the 
 case of The Trustees of Dartmouth College v. Wood- 
 ?0arrf,(«)that the charter granted by the British crown to 
 the trustees of Dartmouth College in New Hampshire, in 
 1769, was a contract within the meaning of this clause 
 of the constitution of the United States, and that the 
 charter was not dissolved by the Revolution. 
 
 § 262. In the case last cited the constitutionality of 
 acts of the legislature of N. H., amending and altering the 
 charter of Dartmouth College came in question. Among 
 other alterations the act in question increased the num- 
 ber of trustees, and gave the appointment of" additional 
 members to the executive of the state, and created a 
 board of overseers, with power to inspect and control 
 the most important acts of the trustees. In this case, 
 Chief Justice Marshall said : " It has been argued, that 
 the word ' contract,' in its broadest sense, would com- 
 prehend the political relations between the government 
 and its citizens, would extend to offices held within 
 a state for state purposes, and to many of those laws 
 
 (a) 4 Wheat. 518.
 
 398 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 concerning civil institutions, which must change with 
 circumstances, and be modified by ordinary legislation ; 
 which deeply concern the public, and which, to preserve 
 good government, the public judgment must control. 
 That even marriage is a contract, and its obligations are 
 affected by the laws respecting divorces. That the 
 clause in the constitution, if construed in its greatest 
 latitude, would prohibit these laws. Taken in its broad 
 unlimited sense, the clause would be an unprofitable and 
 vexatious interference with the internal concerns of a 
 state, would unnecessarily and unwisely embarrass its 
 legislation, and render immutable those civil institutions, 
 which are established for purposes of internal govern- 
 ment, and which, to subserve those purposes, ought to 
 vary with varying circumstances. That as the framers 
 of the constitution could never have intended to insert 
 in that instrument a provision so unnecessary, so mis- 
 chievous, and so repugnant to its general spirit, the term 
 ' contract,' must be understood in a more limited sense. 
 That it must be understood as intended to guard against 
 a power of at least doubtful utility, the abuse of which 
 had been extensively felt ; and to restrain the legislature 
 in future from violating the right of property. That an- 
 terior to the formation of the constitution, a course of 
 legislation had prevailed in many, if not in all, of the 
 states, which weakened the confidence of man in man, 
 and embarrassed all transactions between individuals, by 
 dispensing with a faithful performance of engagements. 
 To correct this mischief, by restraining the power which 
 produced it, the state legislatures were forbidden ' to pass 
 any law impairing the obligation of contracts,' that is, 
 of contracts respecting property, under which some in- 
 dividual could claim a right to something beneficial to 
 himself; and that since the clause in the constitution 
 must in construction receive some limitation, it may be 
 confined, and ought to be confined, to cases of this de-
 
 CHAP. VIII.1 UPON LEGISLATIVE POWER. 390 
 
 vscription ; to cases within the mischief it was intended 
 to remedy. The general correctness of these obscrva- 
 tions cannot he controverted. That the fraraers of the 
 constitution did not intend to restrain the states in the 
 regulation of their civil institutions, adopted for internal 
 government, and that the instrument they have given us, 
 is not to he so construed, may be admitted. The pro- 
 vision of the constitution never lias been understood to 
 embrace other contracts, than those which respect pro- 
 perty, or some object of value, and confer rights which 
 may be asserted in a court of justice. It never has been 
 understood to restrict the general right of the legislature 
 to legislate on the subject of divorces. Those acts enable 
 some tribunal, not to impair a marriage contract, but to 
 liberate one of the parties because it has been broken 
 by the other. When any state legislature shall pass an 
 act annulling all marriage contracts, or allowing either 
 party to annul it without the consent of the other, it will 
 be time enough to inquire, whether such an act be consti- 
 tutional." "If the act of incorporation be a grant of political 
 pow T er, if it create a civil institution to be employed in the 
 administration of the government, or if the funds of the 
 college be public property, or if the state of New Hamp- 
 shire, as a government, be alone interested in its trans- 
 actions, the subject is one in which the legislature of the 
 state may act according to its own judgment, unrestrained 
 by any limitation of its power imposed by the constitu- 
 tion of the United States. But if this be a private elee- 
 mosynary institution, endowed with a capacity to take 
 property for objects unconnected with government, 
 whose funds are bestowed by individuals on the faith of 
 the charter ; if the donors have stipulated for the future 
 disposition and management of those funds in the man- 
 ner prescribed by themselves; there may be more dilli- 
 culty in the case, although neither the persons who have
 
 400 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 made these stipulations, nor those for whose benefit they 
 were made, should be parties to the cause. Those who 
 are no longer interested in the property, may yet retain 
 such an interest in the preservation of their own arrange- 
 ments, as to have a right to insist, that those arrange- 
 ments shall be held sacred. Or, if they have themselves 
 disappeared, it becomes a subject of serious and anxious 
 inquiry, whether those whom they have legally em- 
 powered to represent them forever, may not assert all 
 the rights which they possessed, while in being ; whether, 
 if they be without personal representatives who may 
 feel injured by a violation of the compact, the trustees 
 be not so completely their representatives in the eye of 
 the law, as to stand in their place, not only as respects 
 the government of the college, but also as respects the 
 maintenance of the college charter." At page 548 he 
 said : " This is plainly a contract to which the donors, 
 the trustees and the crown, (to whose rights and obli- 
 gations New Hampshire succeeds,) were the original 
 parties. It is a contract made on a valuable considera- 
 tion. It is a contract for the security and disposition of 
 property. It is a contract, on the faith of which, real 
 and personal estate has been conveyed to the corpora- 
 tion. It is then a contract within the letter of the con- 
 stitution, and within its spirit also, unless the fact, that 
 the property is invested by the donors in trustees for the 
 promotion of religion and education, for the benefit of 
 persons who are perpetually changing, though the ob- 
 jects remain the same, shall create a particular excep- 
 tion, taking this case out of the prohibition contained in 
 the constitution. It is more than possible, that the pre- 
 servation of rights of this description was not particularly 
 in the view of the framers of the constitution, when the 
 clause under consideration was introduced into that in- 
 strument. It is probable, that interferences of more 
 frequent recurrence, to which the temptation was stronger
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 401 
 
 and of which the mischief was more extensive, consti- 
 tuted the great motive for imposing this restriction on 
 the state legislatures. But although a particular and a 
 rare case may not, in itself, be of sufficient magnitude to 
 induce a rule, yet it must be governed by the rule, when 
 established, unless some plain and strong reason for ex- 
 cluding it can be given. It is not enough to say, that 
 this particular case was not in the mind of the conven- 
 tion, when the article was framed, nor of the American 
 people, when it was adopted. It is necessary to go 
 farther, and .to say that, had this particular case been 
 suggested, the language would have been so varied, as to 
 exclude it, or it would have been made a special excep- 
 tion. The case being within the words of the rule, must 
 be within its operation likewise, unless there be some- 
 thing in the literal construction so obviously absurd, or 
 mischievous, or repugnant to the general spirit of the 
 instrument, as to justify those who expound the consti- 
 tution in making it an exception. On what safe and 
 intelligible ground can this exception stand ? There is 
 no expression in the constitution, no sentiment delivered 
 by its contemporaneous expounders, which would justify 
 us in making it. In the absence of all authority of this 
 kind, is there, in the nature and reason of the case itself, 
 that which would sustain a construction of the constitu- 
 tion, not warranted by its words 7 Are contracts of this 
 description of a character to excite so little interest, that 
 we must exclude them from the provisions of the con- 
 stitution, as being unworthy of the attention of those 
 who framed the instrument? Or does public policy so 
 imperiously demand their remaining exposed to legisla- 
 tive alteration, as to compel us, or rather permit us to 
 say, that these words, which were introduced to give 
 stability to contracts, and which in their plain import 
 comprehend this contract, must yet be so construed, as 
 
 51
 
 402 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 to exclude it? Almost all eleemosynary corporations, 
 those which are created for the promotion of religion, of 
 charity, or of education, are of the same character. 
 The law of this case is the law of all. In every literary 
 or charitable institution, unless the objects of the bounty 
 be themselves incorporated, the whole legal interest is 
 in trustees, and can be asserted only by them. The 
 donors, or claimants of the bounty, if they can appear in 
 court at all, can appear only to complain of the trustees. 
 In all other situations, they are identified with, and per- 
 sonated by, the trustees ; and their rights are to be de- 
 fended and maintained by them. Religion, charity, and 
 education, are, in the law of England, legatees or donees, 
 capable of receiving bequests or donations in this form. 
 They appear in court, and claim or defend by the cor- 
 poration. Are they of so little estimation in the United 
 States, that contracts for their benefit must be excluded 
 from the protection of words, which in their natural im- 
 port include them ? Or do such contracts so necessarily 
 require new modelling by the authority of the legisla- 
 ture, that the ordinary rules of construction must be 
 disregarded in order to leave them exposed to legislative 
 alteration? All feel, that these objects are not deemed 
 unimportant in the United States. The interest which 
 this case has excited, proves that they are not. The 
 framers of the constitution did not deem them unworthy 
 of its care and protection. They have, though in a dif- 
 ferent mode, manifested their respect for science, by re- 
 serving to the government of the Union the power ' to 
 promote the progress of science and useful arts, by secu- 
 ring for limited times, to authors and inventors, the 
 exclusive right to their respective writings and discove- 
 ries.' They have so far withdrawn science, and the 
 useful arts, from the action of the state governments. 
 Why then should they be supposed so regardless of con- 
 tracts made for the advancement of literature, as to
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. I 11 > 
 
 intend to exclude them from provisions, made for the 
 security of ordinary contracts between man and man ? 
 No reason for making this supposition is perceived. If 
 the insignificance of the object does not require that we 
 should exclude contracts respecting it from the protec- 
 tion of the constitution ; neither, as we conceive, is the 
 policy of leaving them subject to legislative alteration 
 so apparent, as to require a forced construction of that 
 instrument in order to effect it. These eleemosynary 
 institutions do not (ill the place, which would otherwise 
 be occupied by government, but that which would other- 
 wise remain vacant. They are complete acquisitions to 
 literature. They are donations to education ; donations 
 which any government must be disposed rather to en- 
 courage than to discountenance. It requires no very 
 critical examination of the human mind to enable us to 
 determine, that one great inducement to these gifts is the 
 conviction felt by the giver, that the disposition he makes 
 of them is immutable. It is probable, that no man ever 
 was, and that no man ever will be, the founder of a col- 
 lege, believing at the time, that an act of incorporation 
 constitutes no security for the institution ; believing, that 
 it is immediately to be deemed a public institution, 
 whose funds are to be governed and applied, not by the 
 will of the donor, but by the will of the legislature. All 
 such gifts are made in the pleasing, perhaps delusive 
 hope, that the charity will flow forever in the channel 
 which the givers have marked out for it. If every man 
 finds in his own bosom strong evidence of the univer- 
 sality of this sentiment, there can be but little reason to 
 imagine that the framers of our constitution were stran- 
 gers to it, and that, feeling the necessity and policy of 
 giving permanence and security to contracts, of with- 
 drawing them from the influence of legislative bodies, 
 whose fluctuating policy, and repeated interferences, 
 produced the most perplexing and injurious embarrass-
 
 404 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 ments, they still deemed it necessary to leave these eon- 
 tracts subject to those interferences." 
 
 § 263. It has also been held, that an act of the legis- 
 lature declaring that certain lands which had been pur- 
 chased for the Indians, should not thereafter be subject 
 to any tax, constituted a contract within this clause of 
 the federal constitution which could not be rescinded by 
 a subsequent legislative act, so as to admit of taxing 
 such land when held by grantees deriving title from the 
 Indians. Marshall, Ch. J., held, that every requisite to 
 the formation of a contract was found in the proceedings 
 between the then colony of New Jersey and the Indians. 
 The subject was a purchase on the part of the govern- 
 ment, of extensive claims of the Indians, the extinguish- 
 ment of which would quiet the title to a large portion 
 of the province. A proposition to this effect was made, 
 the terms stipulated, the consideration agreed upon, and 
 in consideration of which the Indians executed a deed of 
 cession. That this was a contract clothed in forms of 
 unusual solemnity; The privilege, though for the benefit 
 of the Indians, was annexed by the terms which created 
 it to the land itself, and not to the person. That the 
 contract had been impaired by a law which annulled an 
 executed part of the rights secured by this contract.(a) 
 The same principle was also adopted and applied in the 
 case of Osborne v. Humphrey ;(&) and also in the case 
 of Atwaicr v. Woodbridge.(c) In the last case it was 
 said, that property given under the statute, so long as it 
 is applied to the uses designated, must forever retain the 
 rights and privileges attached to it, at the time of the 
 grant: that the government made a contract with all 
 
 " """" 
 
 (a) New Jersey v. Wilson, 7 Cranch, 164. 
 (J) 7 Days' R. 335. 
 (c) 6 Con. R. 228.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 405 
 
 such persons as might be disposed to give their property 
 to those religious purposes and charitable uses, that it 
 should forever be exempted from taxation : that a right 
 in the grantees, donees, devisees or legatees, became 
 vested, which no subsequent legislature could divest. 
 They had a right, at all times, to prescribe the terms on 
 which any future grants or donations should be made or 
 given ; but they had no constitutional right or power, 
 either directly or indirectly, to impair former grants, 
 or to lessen their natural productiveness. Taxation 
 might be a worm at the root, which, in its consequen- 
 ces, might destroy both root and branch. 
 
 § 264. The legislature of Georgia authorized the sale 
 of a tract of wild land belonging to the state, and a grant 
 thereof was made by letters patent, in pursuance of that 
 authority, to the Georgia Company. A succeeding le- 
 gislature declared the act to be void. It was held, that 
 the former grant was an executed contract, and that the 
 former act could not be repealed, so as to rescind a sale 
 under it, without impairing the obligation of an executed 
 contract. (a) Upon the same principle, the supreme 
 court of North Carolina declared an act to be unconsti- 
 tutional and void, which repealed a statute granting land 
 to the University in that state. (/>) Where a town, that 
 held lands by grant for the use of schools therein, de- 
 cided to sell the lands, and procured an act incorpora- 
 ting certain persons as trustees, and authorizing them to 
 sell the lands and put the proceeds at use, applying the 
 interest to the support of schools, and empowering them 
 to fill vacancies in their own board : this was held to 
 constitute a contract, and that a subsequent statute au- 
 thorizing the town to choose new trustees, and directing 
 
 (a) Fletcher v. Peck, G C ranch. 87. 
 
 (b) University v. Foy, 2 Hayw. 310 ; Drew v. Foy, 1 Murphy, 58.
 
 7 
 
 406 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 the former trustees to deliver the property, was within 
 this clause of the constitution, and therefore void. (a) It 
 lias been held, that this constitutional restriction extends 
 to all rights arising under all contracts, whether written 
 or parol, whether expressed or implied, whether arising 
 from the stipulation of parties, or accruing by the opera- 
 tion of law ; and that this restriction must be considered 
 as rendering void any statute which is retrospective, pro- 
 vided it destroys a vested right of action arising ex con- 
 tractu. It was upon this ground, that in the case of 
 Lewis v. Brackenbridge^b) it was held, that when bail 
 was absolutely fixed, and had no further time, the right 
 of the judgment creditor to his debt from the bail was a 
 vested right, arising ex contractu, of which right no sub- 
 sequent legislative act could deprive him. Upon the 
 same principle an act of the legislature of Vermont, 
 which released the body of a debtor from imprisonment, 
 and also directed that the bond which he had given to 
 the sheriff for the prison liberties, and which the sheriff 
 had assigned to the creditor, should be discharged, was 
 within this constitutional prohibition. (c) So too, where 
 by a patent, a tract of land was granted to A, including 
 a river not navigable, without any reservation, or any 
 restriction in the use of the river — it was held, that a 
 subsequent statute which required A to alter his dam on 
 the river, so as to let salmon pass up, impaired the obli- 
 gation of the contract contained in the patent, and was 
 therefore void.(rf) 
 
 § 265. The question has several times been under 
 consideration, whether statutes of limitation to take 
 
 (a) Trustees, <5fc. v. Bradbury, 2 Fairfield, 118 ; Norris v. Trustees of Ad- 
 ingtnn Academy, 7 Gill & John. 7. 
 
 (b) 1 Blackf. R. 220. 
 
 (c) Starr v. Robinson, 1 Chip. 257. 
 (</) People v. Piatt, 17 J. R. 195.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 407 
 
 effect instanlcr, and affecting antecedent existing rights, 
 were in conflict with the constitution as impairing (lie 
 obligation of contracts? Although ordinary statutes of 
 limitations to actions are not within this clause, yet if 
 such a statute should be passed which does not allow a 
 reasonable time after the passing thereof, for the com- 
 mencement of suits on existing causes of action, such 
 an act would be unconstitutional. (a) The authority of 
 the legislature to pass statutes of limitation, in the form 
 in which they are usually enacted, is not to be denied. 
 Such statutes have been considered salutary in their 
 consequences. With respect to personal actions, they 
 serve to render people attentive to the early adjustment 
 of demands, and prevent the disturbance of settlements 
 whicli have been made, but of which the proof may 
 have been lost. But in all such cases the legislature 
 have allowed a certain time after the passage of the law, 
 and before its operation should commence, within which 
 the creditors might institute legal process for the reco- 
 very of the debts due them, if they should incline so to 
 do. And it is very clear that if no such interval is al- 
 lowed, but the act is permitted to take effect instaiitcr, 
 thereby depriving creditors at once of all legal remedy 
 for the recovery of those demands which it purports to 
 bar, it unquestionably violates the constitution, by "im- 
 pairing the obligation of contracts," and the courts would 
 be bound to consider it void.(6) In Call v. HaggerJe) 
 an objection was taken to a statute of limitation, on the 
 ground of its being unconstitutional. The court observe 
 — " To extend this principle to acts for the limitation of 
 
 (a) Call v. Hagger, 8 Mass. R. 430 ; Proprietors of Kennebcck Purchase 
 v. Laboree, 2 Greenleaf, 294 ; Society v. Wheeler, 2 Gall. 141 ; 3 Peters' 
 R. 290 ; Blackfoot v. Peltier, 1 Black. 36. 
 
 (b) Proprietors of the Kennebeck Purchase v. Laboree, 2 Greenleaf, 20#. 
 
 (c) 8 Mass. R. 430.
 
 108 OF CONSTITUTIONAL RESTRICTION [CHAP. VIM, 
 
 suits at law, which when enacted with discretion, and 
 a reasonable time allowed for the commencement of suits 
 on existing demands, are wholesome and useful regula- 
 tions, would be extravagant." But in that case, the 
 court did not allow the limitation to extend to actions 
 on bonds where the escape had taken place before the 
 passing of the act, and a right of action had vested in 
 the creditor. Mr. Justice Story says : " If the legislature 
 were to pass an act of limitations, by which all actions 
 upon past disseizins were to be barred, without any al- 
 lowance of time for the commencement thereof infutura, 
 it would be difficult to support its constitutionality, for 
 it would be completely retrospective in its operation on 
 vested rights."(«) Chief Justice Marshall has said — 
 " If in a state where six years may be pleaded in bar to 
 an action of assumpsit, a law should pass declaring that 
 contracts already in existence, not barred by the statute, 
 should be construed to be within it, there could be little 
 doubt of its unconstitutionality. So if a law should de- 
 clare that contracts entered into, and reserving legal 
 interest, should be usurious and void, either in whole or 
 in part, it would impair the obligation of the contract, 
 and would be clearly unconstitutional. "(6) 
 
 § 266. The following cases have been held not to 
 come within this constitutional restriction : — 1st. It has 
 been held, that a state law may be retrospective in its 
 character, and may even divest vested rights, without 
 violating this clause of the constitution, provided it does 
 not impair the obligation of a contract. Thus it was 
 held in the case of The Proprietors of the Charles River 
 Bridge v. The Proprietors of the Warren Bridge,(c) that 
 
 (a) Society, $c. v. Wheeler, 2 Gall. 194. 
 
 J^b) Sturgess v. Croivningshield, 4 Wheat. R. 122. 
 
 (c) 11 Pet. R. 420.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER, 409 
 
 where the legislature granted to Harvard College the 
 liberty and power to dispose of a ferry from Charlestown 
 over Charles River to Boston, and to receive rent for 
 the same, and afterwards incorporated a company to 
 erect a bridge over the same river in the same place 
 where the ferry had been used, the company paying an- 
 nually to the college £200, the charter of the latter com- 
 pany giving it the right to take tolls for forty years, 
 which was subsequently extended to seventy years; that 
 the legislature might before the expiration of the forty 
 years, authorize the erection of another bridge from 
 Boston to Charlestown over Charles River, and in such 
 proximity to the former bridge as to injuriously affect the 
 tolls of the first bridge company. The decision of this 
 case was based upon the ground that the charter to the 
 company did not create a contract on the part of the 
 state with that company, that no other company should 
 be incorporated with like privileges, if the convenience 
 of the public demanded, or the legislature thought fit to 
 grant it, and hence there was no contract existing, the 
 obligation of which was violated by this act. (ft) 
 
 § 267. The legislature may constitutionally enact 
 laws to render valid and legal the doings of public offi- 
 cers who have exceeded their authority, although by 
 such laws individuals may be deprived of rights pre- 
 viously vested ; and the objection that they impair the 
 obligation of contracts does not apply to them, (6) The 
 legislature may also make provision by statute curing or 
 obviating defective forms of acknowledgment of deeds to 
 pass real estate, and give to such acknowledgments the 
 
 (a) But see Ward v. Barnard, 1 Aik. R. 121 ; Lyman v. Mower, 2 Ver- 
 mont Rep. 517 ; Kendall v. Dodge, 3 id. 360. 
 
 {/>) Walter v. Bacon, 8 Mass. R. 468, 472 ; Lock v. Dane, 9 id. 360, 363 ; 
 Patterson v. Philhart, 9 id. 151, 153. 
 
 52 
 

 
 410 OF CONSTITUTIONAL RESTRICTION [CHAP. VIII. 
 
 same efficacy as if they had originally been taken in the 
 proper form ; and such acts although they extend retro- 
 spectively to deeds acknowledged previous to their 
 passage, do not impair the obligation of a contract, and 
 that for the reason that they do not touch any title ac- 
 quired under the deed. They assume the title to be 
 good, and prevent the contract from being impaired by 
 reason of a defective acknowledgment ; or in other words, 
 their legal operation goes to confirm', and not to impair 
 the contract.(a) 
 
 . § 268. It has also been held, that a statute providing 
 under certain circumstances, for the suspension of the pro- 
 ceedings of a bank, by an injunction from the supreme 
 court, was not unconstitutional on the ground that such 
 suspension diminished the period for which the bank was, 
 by its charter, empowered to act as a corporation. (6) 
 In this case it w r as conceded by the court, that an act of 
 incorporation was to be construed to be a contract be- 
 tween the government, on the one side, and those who 
 accept and become a corporation and their successors, on 
 the other ; and could not be revoked or annulled by an 
 after act of legislation, unless a power had been reserved 
 for that purpose, or with the consent of the corporation. 
 But in applying this rule practically, it was necessary to 
 consider, how far and to what subjects this contract ex- 
 tended. It was clearly a stipulation on the part of the 
 government, that the corporation should be and continue 
 a corporation for an indefinite time, or for the term lim- 
 ited in the act, unless sooner forfeited for some cause 
 recognized by existing laws as a case of forfeiture; that 
 their constitution, organization, and mode of action, as 
 prescribed by their charter, should not be annulled or 
 
 (a) Watson v. Mercer, 8 Pet. 88. 
 
 (b) Commonwealth v. Farmers'' and Mechanics' 1 Dank, 21 Pick. 542.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 411 
 
 changed by the legislature ; that members should not be 
 added or removed, that modes of election, expulsion, and 
 suspension of members, should not be altered; that what- 
 ever belonged to their organic constitution and action, 
 as bodies politic, should continue and be determined by 
 the terms of the charter. In addition to which, the 
 powers specially granted to them, were not to be with- 
 drawn or diminished. But such immunities and privi- 
 leges did not exempt corporations from the operation of 
 those laws made for the general regulation and govern- 
 ment of the citizens. In answer to the objection taken 
 to this act, " that it diminished the rights of corporations 
 as such, and thereby impaired the obligation of contracts, 
 that it diminished the time for which, by charter, they 
 were empowered to act as such corporation, to wit, all 
 the time until 1851 ; that granting an injunction, before 
 a hearing, might diminish this term of unrestricted 
 action, because the injunction might go to the entire 
 suspension of their corporate functions, did diminish the 
 time for which they were expressly authorized to act ;" 
 it was held, that the suspension was not an arbitrary 
 diminution of the period of their organic existence as a 
 corporation. They were incorporated on many condi- 
 tions, some express, and some implied by law. The 
 most obvious one was, that they should comply with the 
 terms of their charter ; one of which was, that they 
 should conduct their business according to banking prin- 
 ciples, and the rules of law. As they might violate the 
 provisions of their charter, and incur a suspension or 
 forfeiture, there must be some mode prescribed for a 
 judicial inquiry into the fact, whether they had so vio- 
 lated the terms of their charter, and for providing redress 
 for those who might have suffered from such violation. 
 The violation might be of such a nature, as more directly 
 to affect the rights of individuals, who might have their 
 remedies by suits at law or in equity, as the case re-
 
 412 OF CONSTITUTIONAL ftESTRlCTION [ciIAP. VIII. 
 
 quired ; and they might obtain security for their violated 
 rights by attachment, sequestration, or such other process 
 as the law furnished, either before or after obtaining 
 judgment. But the violation might be of such a nature, 
 as to affect the rights of great numbers, so that it might 
 be considered a^ an injury to the community at large, 
 in which case, it was more consistent wiMi public safety 
 and convenience, and entirely consonant to the whole 
 course of the administration of justice, to institute a pro- 
 cess in the name and under the authority of the govern- 
 ment, bound as it was to provide security for its citizens, 
 When, therefore, the law provided for the commence- 
 ment of such a process, upon such probable grounds as 
 should be deemed sufficient to justify a well founded ap- 
 prehension of misconduct, it was not an arbitrary sus* 
 pension of the corporate powers of the bank, but a spe- 
 cies of compulsory process, analogous to the constant 
 course of action in similar cases, designed to take the 
 subject of controversy into the custody of the law, during 
 the inquiry, to prevent further progress in a course thus 
 probably shown to be mischievous and dangerous, and 
 to secure the means of affording redress to the sufferers, 
 in case the misdemeanors alleged should be found to 
 exist. 
 ■^4- § 269. It has been held, in several cases in Massachu- 
 setts, that statutes changing estates of joint-tenancy into 
 a tenancy in common, although it extended to past grants 
 and devises, was not within this clause of the constitu- 
 tion, as their operation was not to impair any vested right, 
 but rather to render the tenure more beneficial. (a) In 
 the first case cited, Parsons, Chief Justice, placed the de» 
 cision on the ground, that the legislature might alter the 
 tenure by the substitution of one more beneficial. In the 
 
 (a) Holbrook v. Finney, 4 Mass. R. 5G6. Miller v. Miller^ 10 Mass. R. 59. 
 JBurghardt v. Turner, 1'2 Pick. 534,
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. 413 
 
 second case above cited the court conceded, Ikal the legis- 
 lature could not impair the title to estates without the 
 consent of the proprietors unless for public objects, when 
 an adequate consideration should be provided, but that 
 there could be no objection to the operation of a statute 
 retrospectively which should enlarge or otherwise make 
 more valuable the title to an estate ; for that in such cases 
 the consent of the owners to the act might be presumed. 
 In a note to this case, the editor suggests a doubt as to the 
 accuracy of the decision in the last case cited. He places 
 the doubt upon the ground, that the judgment could only 
 be maintained, as it would seem, from the express words 
 of the act, which seemed to refer to all conveyances, 
 which had been or should be made. That although a 
 retroactive law, so far as it affected the remedy only, was 
 unobjectionable ; but in this case, if the words of the 
 act were to have their full force, rights already vested 
 and acquired under conveyances already made were to 
 be affected, altered, and taken away. But in a subse- 
 quent case, the doctrine contained in the two cases above 
 cited was affirmed, and it was held, that it was no ob- 
 jection to the provision of this statute that the deed had 
 been previously made, and had already created an estate 
 in joint-tenancy ; that it was the same in legal effect as 
 if it had provided, that upon the future decease of a joint- 
 tenant, under certain circumstances, the principle of sur- 
 vivorship should not operate. That it was not retro- 
 spective in the sense of affecting any vested right. («) 
 
 § 270. It has also been held, that an act appropriat- 
 ing, in the exercise of eminent domain, to the public 
 use, property previously granted to an individual, was 
 not under this restrictive clause of the constitution. 
 Although it. was held, that a grant of land w T as to be re- 
 
 (d) Burghardt v. Turner, 12 Pick. ZM.
 
 414 OF CONSTITUTIONAL RESTRICTION [ciIAP. VIII. 
 
 gardcd as a contract within the meaning of the constitu- 
 tion, and that such grant could not be revoked by a state 
 legislature, yet that there could be no doubt, but that 
 land granted by the government might be taken by the 
 legislature, in the exercise of the right of eminent domain, 
 on payment of an equivalent, and that such an appropri- 
 ation was not a violation of a contract by which property, 
 or rights in the nature of property, and which might be 
 compensated for in damages, were granted by the gov- 
 ernment to individuals. (a) The decision in the case last 
 cited might be placed upon another ground, to wit, that 
 as the right of eminent domain is an inherent sovereign 
 power, admitted and recognized under all governments ; 
 that right gives to the legislature the control of private 
 property for public use. This fundamental principle 
 of all governments may be considered as a condition 
 annexed to all grants of land, and as such, entering 
 into and forming a part of the contract, in all grants of 
 this character, and subject to which all such grants are 
 held. Thus entering into and forming a part of the con- 
 tract itself, the exercise of this right cannot in any just 
 sense be said to impair the obligation of such contract. 
 § 271. It will not impair the obligation of a contract 
 created by the grant of a charter, if the property of the 
 corporation be taken for the public use. Even if the 
 powers of the corporation be thereby suspended, or the 
 corporation itself dissolved. (b) An act of the legislature 
 made without any consideration, and intended as a mere 
 gratuity, executory in its character, and unexecuted in 
 fact, does not in fact create such a vested right or con- 
 
 (a) Boston Water Power Co. v. Boston and Worcester Rail Road Co., 23 
 Pick. 360. 
 
 (b) Baches v. Lebanon, UN. II. 19. See also The Proprietors to the 
 Piscataqua Bridge v. The New Hampshire Bridge, 7 N. II. 35. Barber v. 
 Andover, 8 N. II 398.
 
 CHAP. VIII.] UPON LEGISLATIVE POWER. I 1 5 
 
 tract as that it may not be changed or defeated by sub- 
 sequent acts of legislation .(a) This decision in the case 
 last cited was placed upon the ground that the act was ex- 
 ecutory ; that the constitution had adopted a distinction 
 between contracts executory and executed, and did not 
 mean togive any efficacy to nude pacts, nor to create new 
 obligations, but to preserve all the obligatory force of con- 
 tracts, and that all such executory contracts as it protected 
 were such, and only such, as were founded on a sufficient 
 consideration ; that the act was a mere promise to col- 
 lect and pay over a fund, and that as a mere gratuity. 
 This promise to collect, and the promise to deliver might 
 be retracted at any time before it was executed, without 
 impairing the obligation of any contract. 
 
 § 272. Although marriage is a civil contract, it is evident 
 from the nature of the obligation it imposes, from the ap- 
 propriate remedies, when they are violated, and from rea- 
 sons which must have actuated the framers of the consti- 
 tution of the United States, that general laws, providing 
 for the dissolution of existing marriages, but operating 
 upon transactions subsequent to their passage, are not 
 within this clause of the constitution. (6) A private act of 
 the legislature authorizing the sale of the estates of infants, 
 for their maintenance and education, is within the scope 
 of the legitimate authority of a state legislature, and is not 
 within this prohibitory clause of the constitution. (c) 
 
 § 273. It is also by the same section of the federal con- 
 stitution declared, that " No state shall, without the con- 
 sent of the congress, lay any imposts or duties on imports, 
 except what may be absolutely necessary for executing its 
 inspection laws ; and the net produce of all duties and 
 imposts laid by any state on imports or exports shall be 
 
 (a) The Trustees of the Bishop's Fund v. Reder, 7 Conn. R. «J9, N. S. 
 
 (b) Clark v. Clark, 10 N. II. 380. 
 
 (c) Cochran v. Van Surlaij, 20 Wen. 365.
 
 416 OF CONSTITUTIONAL RESTRICTION [ciIAP. VIII. 
 
 for the use of the treasury of the United States ; and all 
 such laws shall he subject to the revision and control of 
 the congress. No state shall, without the consent of 
 congress, lay any duty or tonnage, keep troops or ships 
 of war in time of peace, enter into any agreement or 
 compact with another state or with a foreign power, or 
 engage in war, unless actually invaded, or in such im- 
 minent danger as will not admit of delay." We have 
 already, when considering the powers of congress, con- 
 sidered the cases which have arisen under that branch 
 of this clause which relates to states laying imposts, or 
 duties on imports or exports. It will therefore be un- 
 necessary to advert to them in this connection.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 417 
 
 CHAPTER IX. 
 
 OF CONSTITUTIONAL RESTRICTION UPON LEGISLATIVE 
 
 POWER. 
 
 § 274. Having considered in a previous chapter the 
 restrictions upon legislative power under the federal con- 
 stitution, we shall in the next place consider those which 
 are contained in the constitutions of the respective states. 
 These may be considered as divided into two classes. 
 Those which restrict legislative action, unless certain 
 conditions precedent a^e complied with, which are ne- 
 cessary to give validity to a legislative act; and those 
 which are absolute and imperative in all cases, and ope- 
 rating per se as an absolute and unqualified restriction 
 upon legislative power. An instance of the former kind 
 is to be found in the constitution of New York of 1821, 
 art. 7, sec. 9, which provides, " 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 cre- 
 ating, continuing, altering, or renewing every body politic 
 or corporate. In the same class may be ranked the 
 provision, that private property shall not be taken for 
 public use without just compensation, nor unless the 
 public exigencies require it. In the latter class are such 
 provisions as declare that no sanguinary laws shall be 
 passed, nor bills of attainder or ex post facto laws, nor 
 laws which impair the obligation of a contract, and all 
 provisions of a similar character. 
 
 § 275. Under the constitution of New York of 1821, 
 
 53
 
 418 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 the question has frequently arisen as to what bills are 
 two-third bills within the meaning of sec. 9 of art. 7. 
 This question has been considered under two heads: 
 1st, what is a bill appropriating the public moneys or 
 property for local or private purposes ? 2d, what, with- 
 in this clause, are bills creating, continuing, altering, or 
 renewing a body politic or corporate ? The question 
 arising under the first head, to wit : what is a bill apprc- 
 priating the public moneys or property for local or private 
 <purposes7 has seldom, if ever, been the subject of judicial 
 determination, although the question as to what is a 
 public use of property, has been frequently judicially de- 
 termined. It has. however, frequently come under con- 
 sideration in legislative committees, and by "presiding 
 legislative officers. It has also several times been dis- 
 cussed and passed upon by the attorney general of this 
 state. It has elicited much conflict and contrariety of 
 opinion. The limits of this work w 7 ill not admit of our 
 giving a detailed statement of the respective opinions 
 which have been expressed on this point. 
 
 § 276. On a former occasion, and in another capacity, 
 we submitted to the public our views as to the construc- 
 tion which should be given to 'this clause in our state 
 constitution ; and we have seen no reason since that 
 time for a change of opinion. In expounding a consti- 
 tutional provision, the same rules of construction and of 
 interpretation should obtain as are adopted and applied 
 in the construction of a statute. One rule is, that such 
 a construction should be put upon a statute as will 
 prevent any clause, sentence, or word from being su- 
 perfluous, void, or insignificant ; and where the words 
 used will allow of a double meaning, such a construc- 
 tion should be adopted as will allow some meaning to 
 all the words used. With these rules in view, what is 
 the true construction of this clause in our constitution ? 
 Such a construction should be put upon this clause in
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 119 
 
 the constitution as will give full force and effect to the 
 respective words "public," "private" and " local." The 
 word local, as contradistinguished from the words public 
 and private, should be held to embrace all that is inter- 
 mediate — an individual person or interest on the one hand, 
 and the aggregate body politic on the other, but exclusive 
 of both. The word private to relate to an individual per- 
 son or interest, exclusive of what is comprehended in the 
 words local or public ; and the word public should be 
 limited to the whole body politic in its aggregate and i)i- 
 divisible character. A purpose may be purely local, 
 without being public or private, or private without being 
 public or local, or public exclusively without being local 
 or private. A purpose purely public, must be one where 
 the unity of interest is concentrated in the whole aggre- 
 gate body politic. To give full force and effect to the 
 word local, in the sense in which it is used in this clause 
 of the constitution, every grant of the public property for 
 a particular purpose, however near its beneficial effects 
 or community of interest may approximate the unity 
 of interest in the whole body politic, whenever it falls 
 short of that, such purpose falls under the denomination 
 of a local one, and is included within the circle of re- 
 straint which the framers of the constitution have, by 
 the term " local,' ' prescribed. A grant to an individual, 
 or an association of individuals, where the right, privi- 
 lege, use, or profit arising from such grant, is one in 
 which the whole body politic do not either participate 
 or share in common with such individual or community 
 of individuals, or do not derive any common benefit 
 therefrom as a body politic, falls under the denomination 
 of a grant for a private use. A grant, tributary to a 
 fund or object, where the rights, privileges, use and pro- 
 fits, arising from the use of such fund, or the prosecution 
 of such object, are to result to and be owned, possessed, 
 used and enjoyed by the whole body politic, in an aggre^
 
 420 OP CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 gate capacity, would be a grant for a public purpose in 
 tbe sense in which that word is here used. By limiting 
 the word public to the aggregate body politic, and the 
 term local to the intermediate of that aggregate and an 
 individual person or interest : , and the word private to such 
 individual interest or person, each and every the words 
 u public," " local," and " private," have their appropriate 
 meaning and significancy ; and when collectively con- 
 sidered, include the whole scope of the evident intent of 
 the framers of the constitution. This construction makes 
 the word " public" as the outer line of this constitutional 
 circle ; the words " local," and " private," comprehend all 
 the lesser lines of the circle, whether the ratio of their 
 position in the radius of such circle be as 999 to a thou- 
 sand or one to a thousand. To enlarge the sense of 
 either of these words would be dangerous in the ex- 
 treme ; for, by such a construction, the lines of demarca- 
 tion between a purpose purely public, or local, or private, 
 would be made so indefinite and indistinct, or would be 
 so blended together, that it would be next to impossible 
 to say at what point in the radius of this circle the one 
 was to commence, or the other to terminate. If the 
 word public should be construed as meaning any thing 
 less than the indivisible aggregate body politic, then the 
 word local would be rendered wholly insignificant and 
 useless. It would be impossible to determine how near 
 the hand of legislative munificence might approximate 
 an individual, or private, or local interest, without passing 
 the line of demarcation which the framers of the consti- 
 tution intended to establish as a limit to legislative dona- 
 tions. Such a construction would authorize the majority 
 of the legislature, at their discretion, notwithstanding the 
 constitution, to approach the center or verge of this con- 
 stitutional restriction so near, that in effect, to all practi- 
 cal purposes, the distinction between a purpose purely 
 public, or purely local, or private, would be one without
 
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 421 
 
 any essential difference. This, instead of giving fall 
 force and effect to all the words used, would render them 
 synonymous — impair their force, destroy their signifi- 
 cancy, make them useless, weak, and imbecile, as well 
 as violate a fundamental rule of construction. 
 
 § 277. The construction or sense now put upon the 
 respective words used, is also one which is consonant with 
 the immutable principles of natural justice. When it is 
 considered that the grant in these cases proceeds from 
 the body politic in its aggregate capacity, natural justice 
 demands that the equivalent for such grant should be 
 received by it in the same capacity. The legislature in 
 making a grant for a particular object, before deciding 
 that such purpose was a public one, should be able to 
 discover that some equivalent for the grant would ulti- 
 mately be returned to the same hand from which the 
 grant emanated, and be held by it in the same aggregate 
 capacity, as was the thing which was the subject of the 
 grant. Not that it must perceive that the benefit that 
 will result to the state, as such, must in every instance 
 be an adequate consideration for the thing granted, 
 although such a policy would doubtless be a wise and 
 salutary one, but it should have no reasonable doubt that 
 the state would ultimately be beneficiaries of the grant, 
 either by an increase of its revenue, or an enhancement of 
 its publie property, or a diminution of its necessary public 
 expenditures. A purpose which contributes to none of 
 these interests, ought not to be considered a public pur- ■ $ 
 pose. In deciding whether a purpose to which the thing 
 granted is to be applied is public, local, or private, the in- 
 quiry should not be whether the grant itself will enable 
 the recipients of it the better to accommodate the com- 
 munity at large, but it should be directed to the inquiry, 
 who is to be the recipient of the profits or benefits to be 
 derived from the use and enjoyment of the thing granted, 
 and whether there will any benefit flow from it, or 
 
 < 
 
 3
 
 122 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 its use, into the common treasury; or will it tend to an 
 increase of the revenue or to the enhancement of the 
 value of the common property of the state held in its 
 aggregate capacity, or to diminish the necessary public 
 expenditures? If neither the common treasury of the 
 state, nor its common property can derive any benefit, or 
 the common expenses will not be diminished, in case the 
 enterprise proves successful, if the thing granted is not to 
 be used by the public indiscriminately, then the purpose 
 should be regarded as local or private. Were the doc- 
 trine to be admitted, that the legislature might by a 
 majority vote, grant the public property, whenever their 
 imagination could conceive that some incidental accom- 
 modation might result to the public from the use to which 
 the thing granted was to be appropriated, and that such 
 circumstance should take such grant out of this clause in 
 the constitution, this restriction instead of proving a wall 
 of defence, would become a mere cob-web barrier, its very 
 weakness and fragility inviting attack, and this consti- 
 tutional safeguard would not only be wholly inefficacious, 
 but the great end and aim of the framers of this instru- 
 ment, the object and design of this restriction, would be 
 entirely defeated. Such a doctrine would also be in 
 direct hostility to another fundamental rule of construc- 
 tion, which should be applied with all its force to a con- 
 stitutional restriction on legislative power, imposed by 
 the people (the source of all power) in their sovereign 
 capacity, that is, that every law should receive such a con- 
 struction as not to elude its force, or render it vain and 
 illusive. So far, the consequences of a particular con- 
 struction ought to be considered, and have due weight 
 and influence on the construction of a constitutional limi- 
 tation upon political power. 
 
 § 278. In putting a construction upon this clause of 
 the constitution, resort has been had to the last clause 
 of the 7th section of article seventh of the same instru-
 
 CHAP. IX.] UPON LEGISLATIVE I'oVVER. 423 
 
 merit, which provides, that u priratc property shall, not be 
 taken for publie use without just compensation" and the 
 doctrine has been advanced, that because it has been de- 
 cided by the Chancellor, and the court of dernier resort, 
 that the taking of private property, to be used for a rail- 
 road, was taking it for & public use, within the spirit of 
 this clause ; that because such corporations were public 
 and not private, the public property might be appropriated 
 to the purpose of such corporations by a majority vote. 
 This doctrine, if admitted as applicable to the question 
 under consideration, would remove all constitutional 
 protection to the public property, and make the restric- 
 tion vain and illusive. It has also been decided by equally 
 high judicial tribunals, that banks are public corporations 
 — that, as they facilitate exchanges, and afford a circula- 
 ting medium and a currency for the country, they are 
 created for public purposes. If the public money may 
 be appropriated by a majority vote to a railroad com- 
 pany to aid it to complete a road, which, when completed, 
 is to be a corporate property, and not public, because 
 the public may derive accommodations from that road, 
 it cannot be perceived why, by a parity of reasoning, 
 such an appropriation may not also be made to a bank, 
 as part of its capital, to be used as a basis of its circu- 
 lation, because such circulation will accommodate the 
 community. The one is just as much a public corpora- 
 tion created for public purposes, as is the other. Both, 
 by judicial decisions, are declared public corporations, 
 created for public purposes. The doctrine would hardly 
 be tolerated, that because banks were public corpora- 
 tions, created for public purposes, that the public pro- 
 perty might, by a majority vote, be donated to such 
 institutions as part of their capital. 
 
 § 279. It by no means follows because a corporation 
 is public, when it is created for the promotion of private 
 or corporate interest, and the amount appropriated goes
 
 424 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 into the general fund or capital stock of such corporation, 
 because the use of that capital thus employed, (to pro- 
 mote private ends,) may incidentally accommodate the 
 public; that hence such an appropriation is for a jj nolle 
 purpose. The purpose in such cases should be con- 
 sidered as private or local. The accommodation of the 
 public, growing out of the use to which the sum donated 
 is to be applied, does not and cannot make such appro- 
 priation one for a public purpose, within the spirit of the 
 constitution. If it would, then any sum might by a 
 majority vote, be donated to any number of individuals 
 for the purchase of horses and stages, to run between 
 Albany and New Orleans, for the carriage of passengers 
 or property, for a just and reasonable compensation, to 
 be paid to and divided between such individuals, for then 
 the accommodation would be public, but the use or pur- 
 pose private. 
 
 § 280. Care must be taken not to confound the dis- 
 tinction between the import of the word purpose, as it is 
 employed in the ninth section of the seventh article, and 
 of the word use, adopted in the seventh section of the 
 seventh article, of the constitution. What then is the 
 true import of the word purpose in the one case ; and of 
 the word use in the other ? They are by no means used 
 as synonymous terms, or in the same sense. The word 
 'purpose, in the sense here used, is confined within a nar- 
 rower circle, than is the word use in the other clause. 
 It is restricted to the thing or object which is the resi- 
 duum of the thing granted, or rather to that of which it 
 is to become a constituent part, and there terminates : 
 while the word use is far more comprehensive, and takes 
 a more extensive range, embracing objects and things 
 growing out of, and incidental to, the original purpose, 
 extraneous from the purpose itself, and taking effect 
 after that purpose is consummated and at an end. This 
 distinction is one that has been recognized and adopted
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 425 
 
 in the construction of tins constitutional limitation, con- 
 tained in said ninth section of the seventh article. In 
 the case of the bill to aid in the construction of a road 
 through the oil spring reservation, the bill provided for 
 a grant of $420 of the public money, to be applied in 
 construction of that road. This distinction was taken 
 by Mr. Talcott, the then Attorney-General : In that case 
 the purpose of the appropriation was to complete, or aid 
 in the completion of the road ; that was a local purpose, 
 although the use of the road when completed was to be 
 dedicated to the public or a public use. In that case 
 the public use was one which would be entirely free and 
 untrammelled by any exclusive chartered privileges of 
 a corporation. There the word purpose was restricted 
 to the sense now adopted, and would have had its con- 
 summation before the use (which was public) would 
 have fairly commenced. Had the question submitted to 
 the Attorney General in that case been, whether the 
 legislature could under the seventh section of article 
 seventh of the constitution, take private property for this 
 road, making just compensation therefor, it must have 
 been answered in the affirmative. On the other hand, 
 had the question submitted been, whether the legislature 
 could, by a majority vote, grant property which belonged 
 to the state for the same purpose as the money, it must 
 have been answered in the negative, on the ground that 
 it would be as clearly within the circle of this constitu- 
 tional restriction, as was an appropriation of $420 of 
 public money to be applied to that purpose. 
 
 § 281. " No statute or law should receive such a con- 
 struction as will lead to absurd consequences." Respect 
 for the framers will always induce courts, when a par- 
 ticular sense applied to a word will lead to such conse- 
 quences, to infer, that such was not the sense in which 
 it was used. To hold that the word purpose embraces 
 
 54
 
 426 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 within it all the consequences which might flow, or result, 
 from an act to which the thing granted might be applied, 
 would lead to such a consequence. It is very much 
 doubted whether a single legislator who should vote for 
 such an act, could be found, so regardless of character, 
 so destitute of moral sensibilities, and so reckless of con- 
 sequences, as to be willing to be considered in the eye 
 of the law as criminally or morally responsible for all the 
 consequences, contingent or remote, which might there- 
 after result to society from the use to which property 
 under such an act should be devoted, or be considered 
 in voting for such an act, to have purposed such conse- 
 quences and results. This sense, too, is consonant to 
 one in which the word purpose is not unfrequently used. 
 Thus, when it is said that the Creator of the Universe 
 purposed to create man, it is understood that the crea- 
 tive energies of Omnipotence were to be directed to the 
 formation of an organic frame, which should be subject 
 to certain fixed rules and laws, to impart to that frame 
 vital energies, and to endow it with certain physical, 
 mental, and moral powers and capacities. This was the 
 sum of the purpose to which those creative energies were 
 to be directed, and marked the boundaries within which 
 that purpose was confined. The purpose to create 
 did not extend itself over the wide range of human 
 action, or of human depravity, which might, or which 
 did, thereafter flow from the exercise of those faculties 
 thus created, nor were these comprehended within the 
 original purpose of creation, when, in the councils of 
 eternity, it was said, " Let us make man." 
 
 § 282. We shall next proceed to demonstrate, if pos- 
 sible, the accuracy of the construction we have adopted 
 by reference to decisions which have been made on this 
 question, in addition to the one above referred to. In 
 1 843, the then president of the senate declared a bill to 
 be a majority bill which, in eflect, released to a rail road
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 427 
 
 corporation a $3,000,000 debt due to t|^e state. That 
 decision, we are aware, must be regarded as in direct 
 conflict with the construction which we have put upon 
 this clause. But we apprehend, that nearly all the other 
 decisions which have been made under this clause, stand 
 opposed to that decision, and according to our under- 
 standing of such decisions, most of them are in perfect 
 harmony with our construction of this clause ; such of 
 them as do not must be regarded as standing opposed to 
 the letter as well as spirit of the constitution. There 
 are certain considerations worthy of special note, in re- 
 ference to that decision, before proceeding to the consid- 
 eration of the extent to which it is sustained by other 
 decisions which have been made under this clause. It 
 should be remarked, that the act of incorporation of the 
 company to whom that debt was released, clothed it 
 with certain rights, immunities, and privileges, to be ex- 
 ercised, used, and enjoyed by it for a period of years, 
 exclusive of the public ; among which was the right of 
 the acquisition of property, which when acquired, be- 
 came corporate not public property. It imposed no ob- 
 ligation whatever on the corporation to use its road 
 when completed in any particular manner in reference 
 to the public ; nor was such use one of common law 
 right. The duties and obligations of a common carrier 
 did not attach to it unless thereafter it should voluntarily 
 assume such obligations and duty. Its own use of the 
 road was one of entire discretion, and the use of it by 
 others for a period of years might be granted or denied 
 as would best subserve its corporate interest, or gratify 
 corporate caprice. It contemplated no increase of the 
 public revenue, no enhancement of the public property, 
 no diminution of the necessary public expenditures. Its 
 claims were never urged on either of those grounds. It 
 was not connected at either point of its termination with 
 any great public work owned and prosecuted by the
 
 428 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 state. To all Jiuman appearance, its tendency would 
 be to divert travel and business from those internal ar- 
 tificial arteries, owned and sustained by the public reve- 
 nue, and would necessarily detract from the sources of 
 revenue necessary to keep them in repair. These con- 
 siderations are important, because they distinguish that 
 case from a numerous class of cases which have been 
 supposed to be analogous, when, in fact, no such analogy 
 exists. The cases to which allusion is now made, and 
 which have been supposed to be analogous, are the act 
 of 1823 in relation to the Albany pier and basin, the act 
 of the fifteenth of April, 1822, to authorize grants for 
 the purpose of promoting the settlement of public land 
 in the counties of Essex and Franklin, and the act of 
 seventeenth of April, 1822, to authorize and encourage 
 the construction of the harbor of Buffalo creek, all of 
 which were decided to be majority bills. All those acts 
 it will be found have been sustained as majority bills, on 
 the ground that the state was to derive benefit in its ag- 
 gregate capacity, either because they increased its annual 
 revenue, or enhanced the value of its public property, or 
 diminished the amount of its necessary public expendi- 
 tures. Mr. Talcott, in his opinion, submitted to the 
 legislature in 1823, in relation to the bill concerning the 
 Albany pier and basin, put all these cases upon this 
 distinct ground; and it was after he had thus distin- 
 guished this class of cases from others, that he added : — 
 " If the question was now presented for the first time, it 
 might be a matter of serious consideration how far it 
 would be consistent with prudence to give such a con- 
 struction to this clause of the constitution, as would ex- 
 empt from its operation bills passed with a view to con- 
 tingent or merely probable benefits, or even to a certain 
 one, when there was no sufficient data to estimate its 
 value." 
 
 § 283. It will be perceived, that all those acts which
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 429 
 
 have thus far been referred to, and which were held to 
 be majority bills, with the exception of the one of 1843, 
 harmonize with our views above expressed. There are 
 other decisions, however, which have by some been con- 
 sidered as in direct conflict with the construction we 
 have adopted. We apprehend, however, that most of 
 them do not ; and that those that do, to say the least of 
 them, certainly savor too much of a latitudinarian con- 
 struction of a constitutional restriction upon the legisla- 
 tive department of the government, to receive our assent 
 to their accuracy. We, however, cannot pass them in 
 this connection without giving them a consideration. 
 The first class to which attention will be directed, are 
 those making loans of the public money, and providing 
 for a security therefor, such, for instance, as the loan to 
 the President and Directors of the Neversink Navigation 
 Company, and to the Hudson and Delaware Canal Com- 
 pany ; and those of purchasers of property by the state ; 
 such, for instance, as the purchase of the Oneida Lake 
 Canal and Feeder. It is to be regretted, that the lan- 
 guage of the then constitution was not sufficiently com- 
 prehensive to reach loans of public money, w T hich cer- 
 tainly ought to be included within a constitutional re- 
 striction. But as the constitution must, or ought to be 
 construed strictly, on the one hand, nothing should be 
 subtracted therefrom, and on the other, no casus omissus 
 can, or should be, supplied by construction. Adopting 
 a strict rule of construction, it is undoubtedly true, that 
 the prohibition in this clause of the constitution, extends 
 only to cases of absolute grants of public money or pro- 
 perty, and is not sufficiently broad to comprehend a case 
 of a loan of property or money upon securities ; hence 
 such loans are not within this constitutional restriction. 
 There may be cases where a transaction may be charac- 
 terized by the name of u a loan" when, from the very 
 nature of the security provided for, or from the well
 
 430 OF CONSTITUTIONAL RESTRICTION [ciTAP. IX. 
 
 known insolvency and utter worthlessness of the bor- 
 rower, it may be certain that the transaction was a mere 
 device, or trick to elude the constitution, in which courts 
 would be authorized in deciding, that such trick or de- 
 vice should not be effectual to evade this constitutional 
 restriction, and that a law authorizing a loan under such 
 circumstances, would, for this reason, be unconstitutional 
 and void. Whether a transaction which should be cha- 
 racterized as a loan, is a mere trick or device to elude the 
 constitution, must depend upon the circumstances of each 
 particular case. 
 
 § 284. It has been said, that acts authorizing purchases 
 of property for the state, have been passed by a majority 
 vote, and that such acts thus passed have tacitly received 
 a legislative construction. That such acts are not with- 
 in this clause, is admitted. But at the .same time, it 
 must be remarked, there is no statute requiring such 
 acts to be passed by a two-third vote, and there certainly 
 is no such requisition to be found in the constitution. 
 Thus, it will be perceived, that the cases ranked in this 
 class are not in conflict with our view of this clause, nor 
 do they afford any support to a contrary doctrine. 
 
 § 285. Before proceeding to the consideration of the 
 next class of cases, it is proper to correct an error in 
 point of fact, in relation to one case, which otherwise 
 would fall within the second class to which allusion will 
 hereafter be made. It has been supposed that the 
 Neversink Navigation Company, having failed to pay the 
 principal and interest on the loan to them, that debt was 
 released, and the stock cancelled and discharged in 1841, 
 by a majority vote. The history of that transaction will 
 show how far this supposition is warranted by the facts. 
 On the 15th of April, 1828, an act was passed authori- 
 zing a loan by the Comptroller of $10,000 of the stocks 
 of the state to that company, for the redemption of which 
 the faith and credit of the state was pledged. By the
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 131 
 
 terms of the act, this loan was to be secured by a mort- 
 gage on the rights and privileges of the company in 
 the Neversink river and appurtenances, as granted by 
 the state to that company in 1816. In case of default 
 of payment of the interest on such stock by that com- 
 pany, the Comptroller was authorized to proceed and 
 sell the property, or so much as should be necessary, 
 and on such sale, to purchase for the benefit of the state. 
 The Neversink Company having failed to pay the inte- 
 rest, the Attorney General, under the statute, foreclosed 
 the mortgage ; and on the 16th day of September, 1837, 
 the premises were sold and bid in by him for the state 
 at $800, and that property still is owned by the state. 
 The act of 1841, related almost exclusively to the balan- 
 cing of certain accounts between the several canal funds 
 — but by sec. 7, the treasurer was required to pay on 
 the warrant of the Comptroller, to the commissioners of 
 the canal fund, or to the then stockholders of the state 
 stocks, $10,000, for the redemption of that amount of 
 such stock, issued under the act of 1828, authorizing the 
 loan of said stock to that company. This act did not in 
 any way discharge or attempt to discharge, or in any 
 way affect the debt due from that company to the state ; 
 or in any way affect the security therefor. It simply 
 made provision for the payment by the state of its own 
 debt due to its own creditors. 
 
 § 286. The case of the release of a debt against My- 
 ron Holley, has been supposed to be an instance which 
 sanctioned the donating public property for private pur- 
 poses by a majority vote. The history of that act and 
 its attendant circumstances, will now be stated. That 
 act was passed in 1828. Before its passage, it was re- 
 ferred to the committee on two-third bills in the house, 
 to examine the same, and report whether in their opinion 
 it came within the 9th clause of the 7th article of the 
 constitution, requiring its passage by a two-third vote.
 
 432 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 Mr. Paige, one of that committee, submitted a long and 
 able report, in which the committee arrived at the con- 
 clusion that it did not. The reasons for that conclusion 
 will clearly show the true ground upon which that de- 
 cision was placed. The report stated, that the claim 
 against Mr. Holley arose out of supposed deficiencies in 
 his account as a canal commissioner, which the com- 
 mittee were satisfied arose from unavoidable mistakes, 
 and losses incident to the duty imposed upon him under 
 the laws of this state ; and that there could be no doubt 
 of the obligation of the state upon legal principles to 
 indemnify him to the extent of those mistakes and losses. 
 For an agent was only bound to exercise ordinary dili- 
 gence, and was not responsible in cases of damage or 
 loss happening without his default. That this was a 
 payment of a demand against the state, for services ren- 
 dered by a public officer in a public capacity. That it 
 was an appropriation for the payment of a just debt. 
 The payment of a debt due by the state, could not be 
 called an appropriation of the public money or property, 
 for the reason the creditors of the state had a claim upon 
 the money in the treasury to the amount of such debt, 
 and only that portion of the money in the treasury which 
 remained after the debts were paid, ought to be called 
 public money. That the claim of Mr. Holley was 
 founded in justice, and was either a legal or equitable 
 demand against the state, and the principles of eternal 
 justice demanded its satisfaction. For these reasons, it 
 was the opinion of the committee, an appropriation to 
 discharge it, could not be such an appropriation for local 
 or private purposes as was contemplated by the constitu- 
 tion. In this instance, it will be perceived, that the 
 committee regarded this case as not within this clause 
 on the ground, that it was not one appropriating public 
 property to private use, but one in which the legislature
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 133 
 
 made disposition of the property of the state, for state 
 purposes, in payment of a state debt. 
 
 § 287. The next case to which we shall allude, which 
 was decided to be a majority bill, is the act of the 12th 
 of April, 1838, entitled "An Act to authorize the comp- 
 troller to cancel a certain bond signed by Alexander \i. 
 Johnson and others, citizens of Utica, and for other 
 purposes." The history and attending circumstances of 
 this case, are also important to a right understanding of 
 the principle which it sustains. In the fall of 1838, 
 the canal commissioners fixed the northern termination 
 of the Chenango Canal about three and one-half miles 
 west of Utica, and about one-third of a mile east of 
 Whitesborough. At the ensuing session of the legisla- 
 ture, petitions from the citizens of Utica, and from other 
 parts of the state, were presented to the legislature, 
 praying for a change of the northern termination to 
 Utica, and placing the application solely on the ground 
 of public interest and convenience. In pursuance of 
 those petitions, an act was passed on the 24th March, 
 1834, authorizing a change of termination, but imposing 
 as a condition, that the Canal Commissioners should 
 first receive security for the estimated difference of ex- 
 pense between the two terminations, and that such secu- 
 rity must be given within thirty days. At this time, 
 the canal was under contract, and the contractors were 
 going to proceed immediately with the work. Under 
 these circumstances, the bond was executed, to prevent 
 the termination being forever fixed and the public inte- 
 rest thereby affected for all future time. On the 1 1 th 
 May, 1835, an act was passed authorizing this amount 
 to be assessed upon the real estate in the city of Utica, 
 which act was, in 1838, sought to be repealed, or to 
 have this bond cancelled. The grounds upon which 
 the passage of this act was urged were, 1st. That the 
 
 55
 
 434 OF CONSTITUTIONAL RESTRICTION [ciIAP. IX. 
 
 Canal Commissioners, in ascertaining the difference of 
 the cost of the two terminations of the Chenango Canal, 
 having to proceed upon estimates necessarily conjectural, 
 had committed an error in fact, and assumed such dif- 
 ference to be upward of $1800 greater than it really 
 was. 2d. That they did not give due weight to the con- 
 sideration of public utility and convenience, according to 
 the spirit of the act authorizing the northern termination 
 of the canal. 3rd. That the legislature in 1833 had 
 inadvertently proceeded upon a mistaken and unwise 
 policy in allowing the location of a public work to be 
 controlled by the amount of gifts, donations, and grants, 
 as it was by that act. 4th. That due regard to the 
 public interest, required that this canal should terminate 
 at Utica. The grounds upon which the committee on 
 two-third bills, to whom that bill was referred, reported 
 it as a majority bill, were, that the legislature might by 
 a majority vote provide for the payment of a just debt. 
 It was not perceived why it might not in the same way 
 cancel a debt in form, for which paper securities had 
 been created, in contravention of great principles of 
 public policy. The act, in the shape in which it finally 
 passed, is indited in the same spirit, and proceeds upon 
 the same general principles as were urged in favor of 
 its passage. Section 1 required the Canal Board to re- 
 examine the estimate of the cost of the termination of 
 the Chenango Canal at Utica, and of its termination as 
 originally located, and if on such re-examination of such 
 cost, and all other considerations of public interest con- 
 nected therewith, they should be satisfied that the 
 amount estimated as the difference of cost between the 
 two, for which this bond was given, had been estimated 
 at a larger sum than it ought to have been, then they 
 were authorized to reduce the bond to such sum as in 
 their judgment should be just and equitable. By sect. 
 2, if the Canal Board should be of the opinion that the
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 435 
 
 northern termination of this canal should have been at 
 Utica, but for the restriction in the act authorizing its 
 construction, then they were authorized to direct the 
 bond to be cancelled. By sect. 3, if the bond should 
 not be cancelled, but the amount reduced, the commis- 
 sioners appointed under the act of 11th May, 1835, 
 should reduce the assessment made by them upon the 
 real property in Utica, and the amount thus reduced 
 should be collected pursuant to that act. From this 
 statement of the circumstances attending the passage of 
 this act, it will be perceived that the sum for which this 
 bond was given, was, if the estimate was correct, actu- 
 ally expended on a work undertaken, prosecuted, and 
 owned exclusively by the public. That this expense 
 was one that the public exigencies, as well as conve- 
 nience required. The public were beneficiaries of it, 
 and the enforcement of the bond would have been in 
 contravention of public policy. Although that act 
 may be regarded as one where a very liberal and latitu- 
 dinarian construction was adopted to take that case out 
 of this constitutional prohibition, yet it was a case which 
 might be considered as coming within the spirit of the 
 rule adopted in the case of Mr. Holley, on the ground 
 that upon principles of eternal justice, inasmuch as 
 this sum had been expended to promote the public exi- 
 gencies, there was in truth and in fact, nothing due to 
 the state on this bond. It must be admitted, however, 
 that this act, and the ground upon which it was urged 
 and passed, as a majority bill, was but another species 
 of political device by which to prostitute the constitution 
 to gratify local feeling and advance private interest, 
 under the cover of the forms of law. We cannot admit 
 the accuracy of this decision, although it does not mili- . 
 tate against our construction of this clause. 
 
 § 288. The only remaining cases which have been 
 passed as majority bills, which we shall notice, are, the
 
 436 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 act of 4th May, 1840, releasing a judgment in favor of the 
 state against the New York University, which we think 
 was, without doubt, unconstitutionally passed, and the act 
 of 1838, granting $6000 per annum to the Geneva Col- 
 lege, $G000 to tiie University of the city of New York, 
 and $3000 to the Hamilton College. Were these grants 
 appropriations for private or local purposes 1 There is 
 a general principle which has been settled by the highest 
 judicial tribunal in the United States, which serves 
 as a beacon light, by which we may discover the real 
 character of such donations, and determine whether the 
 purpose was one which was public or local or private. 
 The principle to which allusion is made, is that settled 
 in the case of Woodioorth v. The Dartmouth College, 
 (i If an act of incorporation be a grant of political power, 
 or if it create a civil institution to be employed in the 
 administration of the government, or if the funds of the 
 college are to be public property, or if the state as a 
 government be alone interested in its transactions, and 
 the sole recipient of its profits, then it is a grant for a 
 public purpose, otherwise not." This is the true crite- 
 rion by which to determine whether the purpose of a 
 corporation is a public purpose in the sense in which 
 that word is used in the constitution. In another case,(«) 
 it was decided, that the corporation of the regents of the 
 University was a private and not a public corporation. 
 It was not created for political purposes, nor invested 
 with political powers. That if a corporation was at 
 first eleemosynary, and private, no subsequent endow- 
 ment of it by the state could change its character. It 
 was not sufficient to render a corporation public that its 
 ends were public. Whether a corporation be public or 
 "private, depended upon the nature of the franchises 
 
 (a) The Rcgettls of the University of Maryland, 9 Gill & Johns. 365.
 
 CHAP. IX.] UPON LEGISLATIVE POWF.IJ. 437 
 
 granted, and not the expected beneficial results to the 
 community from the possession and exercise of those 
 franchises. If the charters of the colleges we have above 
 referred to, bring them within the rule laid down in the 
 two cases above cited, perhaps a decision that the hill 
 donating to them the public moneys might be sustained 
 under this clause of the constitution. But if not, then 
 we cannot but regard their passage by a bare majority 
 vote, as an act in direct conflict with this clause of the 
 constitution. A decision that they were majority bills, 
 if we rightly understand the true nature of their respec- 
 tive charters, it must be admitted, stands opposed to our 
 view of the true construction of this clause. Isolated 
 instances, however, of a contrary construction, standing 
 in direct opposition to the whole current of decisions on 
 the same subject, cannot be regarded as such a practical 
 construction as to render such decision" decisive of the 
 question as to what is the true construction of this clause. 
 A practical construction of a constitutional restriction 
 upon its own powers, by that department of the govern- 
 ment upon whom such restriction is imposed, in order to 
 be entitled to much w r eight should be one commensurate 
 with the constitution itself, uniformly acted upon and 
 acquiesced in since the period of the adoption of the 
 constitution ; or, in other words, one continued and un- 
 broken chain of precedent in favor of a particular con- 
 struction of any given restrictive clause. 
 
 § 289. We shall, in the next place, endeavor to ascer- 
 tain whether the construction which we have put upon 
 this clause in our state constitution has been overruled 
 by practical legislative precedent in favor of a more 
 latitudinarian construction. We by no means admit this 
 to be true in point of fact, yet, inasmuch as such prece- 
 dent is, in modern times, too often resorted to, and relied 
 upon, whenever an occasion presents itself, to mould this 
 constitutional restriction to meet the exigencies of a
 
 438 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 given case, in this connection it is proper to advert 
 more at large to the doctrine of contemporaneous or 
 practical construction, and to refer to some of the cases 
 illustrative of the rule we have just laid down, in refer- 
 ence to the question as to what degree of weight such 
 construction of a constitutional or statutory provision is 
 entitled to, in ascertaining the true construction of such 
 provisions. 
 
 § 290. Contemporary practice is of two sorts. The 
 first consists of what was done by the people at the time 
 the law was made, and is resorted to as a means to col- 
 lect with what view the law was made. The other con- 
 sists in what was done under the law immediately after 
 it was made, and is resorted to for the purpose of collect- 
 ing the sense in which the law was understood by those 
 having the fittest opportunity of knowing. Mr. Justice 
 Story, in his treatise on the constitution, says: "It is 
 obvious, however, that contemporary interpretation must 
 be resorted to with much qualification and reserve. 
 The private interpretations of any particular man or 
 body of men, must be manifestly open to much observa- 
 tion. That contemporary construction is properly re- 
 sorted to, to illustrate and confirm the text, to explain a 
 doubtful phrase, or to expound an obscure clause, and 
 in proportion to the uniformity of that construction, and 
 the known ability and talents of those by whom it is 
 given, is the credit to which it is entitled, it can never 
 abrogate the text, it can never narrow down its true 
 meaning, it can never enlarge its natural boundaries." 
 Other able judges have held, that while great deference 
 is due to a legislative exposition of a constitutional 
 provision, when it is made contemporaneously with the 
 constitution, and may be supposed to result from the 
 same views of policy, and modes of reasoning ; yet, even 
 then, it is by no means conclusive. It is much to be 
 doubted whether a single case can be found, where it
 
 CITAP. IX.] UPON LEGISLATIVE POWER. 439 
 
 has been held, that much stress should be given to a 
 legislative exposition of a constitutional provision, when 
 that provision was one intended to be in restraint of the 
 power of the legislature itself. One case, it is true, con- 
 tains an intimation to that effect, by a single member of 
 the court of dernier resort in this state, but not in such 
 a way as to give it the force of a judicial determination 
 of that point. To give much weight to a construction 
 by this department of the government of its own powers, 
 and allow its own construction to control, would be a 
 dangerous doctrine, as it would lead to dangerous con- 
 sequences. 
 
 § 291. Mr. Story says, " That in the exposition of the 
 constitution, where it is a question of power, it should 
 be approached with infinite caution, and be affirmed only 
 on the most persuasive reasons." We will now advert 
 to two leading cases in our own courts illustrative of 
 the rule which governs in the application of the doctrine 
 of contemporaneous exposition. M'Kem v. Delanci/s 
 Lessec,(ci) decided in 1809, was a case which arose under 
 the act of Pennsylvania of 1715, which required deeds 
 to be acknowledged before a justice of the peace in the 
 county where the land lay ; it had been the contempora- 
 neous and uniform practice from 1715 to the date of the 
 deed (1775) to acknowledge deeds before a justice of the 
 supreme court, although the act of 1715 did not autho- 
 rize such a practice. The Supreme Court of the United 
 States held, as that practice had prevailed for so long a 
 period, it must be considered a correct exposition of the 
 statute, or good evidence of such construction by the 
 judicial tribunals of Pennsylvania. This decision, how- 
 ever, was put upon the ground which the Supreme Court 
 of the United States have uniformly adopted, that in 
 
 {a) 5 Crancli, 32.
 
 440 OF CONSTITUTIONAL RESTRICTION [dlAP. IX. 
 
 construing the statutes of a state, on which land titles 
 depend, infinite mischief would ensue, if that court were 
 to observe a different rule from that established in the 
 state where the law originated, and that in this case 
 there could be no doubt but that the courts of Pennsyl- 
 vania considered a justice of the supreme court as with- 
 in the description of the act. This case establishes this 
 principle, that contemporaneous practice acquiesced in 
 for a great number of years, and acted upon since the 
 time of the passage of an act, is evidence that such act 
 has been thus construed by the judicial tribunals of the 
 state where the statute was- passed, and that is all it 
 decides on this point. In Stuart v. Laird^a) decided 
 in 1803, the question was, whether the judges of the 
 court of the United States had a right to sit as circuit 
 judges, not being appointed as such, the practice always 
 having been for them to do so. It was held, that this 
 was a practical exposition of the constitution, practised 
 and acquiesced in for a period of years, commencing 
 wtih the organization of the judicial system, and hence 
 it was a contemporaneous exposition of the most for- 
 cible nature, and that such practical exposition was too 
 strong to be shaken or controlled. The extent of the 
 doctrine to be deduced from all the authorities on this 
 point is, that a practical exposition, in order to be of 
 much force, or entitled to much weight, must be one 
 where -there has been an unbroken chain of practice or 
 precedent commensurate with the adoption of the con- 
 stitution, and acquiesced in and acted upon since that 
 time. 
 
 § 292. If we apply this doctrine to the question under 
 consideration, even if it were admitted that the case of 
 Mr. Holley was a parallel one, (having demonstrated that 
 
 («) 1 Cranch, 299.
 
 CITAP. IX.] UPON LEGISLATIVE POWER. 411 
 
 all those preceding this, rest on the ground of an increase 
 of public revenue, or the enhancement of public property, 
 or the diminishing of the necessary public expenses,) in- 
 stead of that unbroken chain of precedent, contemporary 
 with the adoption of the constitution, practised upon and 
 acquiesced in since that time, we have only that one act, 
 originating in 1828; the other acts have all originated 
 since 1837, and have at most been acquiesced in for 
 only a few years, and acted upon but by a few succes- 
 sive legislatures. Is this such an unbroken chain of 
 precedent as this rule contemplates, or such a practical 
 construction of the constitution by the government itself 
 in its various departments, which, within the spirit of this 
 rule, should have much weight or afford any high or satis- 
 factory evidence of the true construction 1 Should this 
 feeble chain of precedent be deemed adequate to fetter the 
 minds and consciences of legislators who are sworn to sup- # 
 port the constitution irrespective of legislative precedent 1 
 Much stress has sometimes been laid on what Mr. Jus- 
 tice Story, in his learned commentaries, in discussing con- 
 stitutional construction, says : " And after all the most un- 
 exceptionable course of collateral interpretation, is from 
 the practical exposition of the government itself, in its 
 various departments upon particular questions, discussed 
 and settled upon their own single merits. These ap- 
 proach nearest in their own nature to judicial expositions, 
 and have the same general recommendation that belongs 
 to the latter." It must be borne in mind, that these re- 
 marks were not made with reference to a case of consti- 
 tutional restriction upon legislative power. Even had 
 it been applied to such case, it would not afford much 
 support to the position that much stress is to be laid or 
 much weight given to the construction by but one de- 
 partment of government, when that department is judg- 
 ing of its own powers. To admit this would be but to
 
 442 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 permit the particular department restricted to expound 
 away the very restriction imposed ; it would be found, 
 that men naturally opposed to all restraint upon their 
 own powers, would not be wanting, who would be wil- 
 ling, by oft repeated practical expositions, to wear out 
 the chain of constitutional restraint, especially in cases 
 where that chain was the only barrier interposed be- 
 tween them and the public treasury or property. 
 
 § 293. If a legislative exposition of a constitutional 
 restriction upon its own power, is to receive so much 
 respect as to be of controlling force, binding and authori- 
 tative upon those whose duty it may be to pass upon the 
 constitutionality of a particular legislative act, or is to be 
 received as evidence of a true construction, then the 
 constitutional restriction imposed may, by the mere force 
 of such construction, be rendered ineffectual in re- 
 straint of those upon whom it was intended as a check. 
 This would be carrying the doctrine of legal nullifica- 
 tion to an extreme unprecedented in the history of any 
 government. If we concede to the legislature this judi- 
 cial attribute and make its exercise evidence of what the 
 constitution is, then the power restricted has only to 
 pronounce several successive erroneous judgments, and 
 thus elude the restriction by legislative exposition. This 
 would be carrying the doctrine of legislative omnipotence 
 to a greater extent than was ever claimed even by a 
 British parliament. The parliament of England rests 
 its claim to omnipotence, upon the fact that it is unfet- 
 tered and unrestricted by a written constitution, ex- 
 pressive of the will of its constituents, that it stands in 
 the place of the people, and speaks the language of abso- 
 lute sovereignty ; hence, that its powers must of neces- 
 sity be transcendental and omnipotent in the scale of 
 political existence, and therefore can mould the constitu- 
 tion at its will : " It is far otherwise under our form of
 
 CHAP. IX.] UPON LEGISLATIVE POWER. -143 
 
 government. The spirit, genius, and policy of our politi- 
 cal institutions, rest upon principles which are at war 
 ■with the doctrine of legislative omnipotence ; ours is a 
 government founded upon an express written compact, 
 reduced to exactitude and certainty, expressive of the 
 sovereign will of the people, fixing the limit and marking 
 the bounds of legislative authority and power. The 
 legislatures instead of being omnipotent, must yield to 
 its force, submit to its restraint, and bow to its authority."' 
 This written compact originated in a spirit of distrust 
 of legislative authority, and from a conviction that legis- 
 lative omnipotence was but another name for despotism. 
 The evidence of that will, rests not in the volition or 
 judgment of those intended to be restricted by its own 
 omnipotent fiat. 
 
 § 294. Under our form of government, the legislature 
 is the creature of the constitution, it owes its existence 
 to that instrument, it derives its power from it ; that is, 
 the voice of the people, in their original and unlimited 
 capacity, fixing the limits of legislative power. It is 
 the mandate of the creator, directed to, and obligatory 
 upon the creature; its authority is alone sovereign, ab- 
 solute, and supreme. If the creature of the constitution, 
 can pass judgment upon its obligations, and its judicial 
 determination of its powers be clothed with the attri- 
 butes of a judicial exposition, authoritative and of con- 
 trolling force, then legislative omnipotence in this country 
 would exceed that of the British parliament to an extent 
 at least commensurate with the force of a written con- 
 stitutional restriction, which it weighs down by the force 
 of its judicial expositions — while the energies of parlia- 
 ment are only directed to the exercise of powers unlimi- 
 ted and uncontrolled, legislative power in this country 
 would go much farther ; it would break the fetters the 
 constitution has wrought out, throw off the restraint it
 
 J 
 
 444 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 has sought to impose, and annihilate the written will of 
 tha people. Parliament never carried its arrogance to 
 such extent ; it never, except in days of revolution, nul- 
 lified the written will of the people it represented by the 
 force of parliamentary exposition : it never trod under 
 foot a written compact : it never sat in judgment in its 
 own cause, and demanded for its decision in such case, 
 respect paramount to Magna Charta. The utmost 
 stretch to which legislative exposition can be carried, is, 
 that it may be considered and respected ; it may be con- 
 sulted as an index to other minds ; it may be regarded 
 as the embodiment of the views of predecessors, or of 
 one department of the government. But this respect 
 cannot be clothed with the attribute of judicial authority. 
 The evidence of what were the views and opinions of 
 others, can never make those views and opinions evi- 
 dence that they were right, it can never ripen a wrong 
 opinion into a right one. 
 
 § 295. It is no answer to the views we have taken 
 that a power of judicial exposition, which shall be ar- 
 bitrary and beyond control, must from necessity be 
 lodged in some department; and hence, that it is as safe 
 to entrust it to legislative exposition, as to expositions 
 made by the judicial tribunals of the land, or that the 
 combined wisdom and judgment of a numerous body of 
 men, is as likely to be correct as that of a single judge, 
 or a limited number of judges acting in a judicial capa- 
 city, for the combined wisdom of the people as embodied 
 in the constitution itself, has otherwise settled that 
 question, by lodging the judicial attribute in the hands 
 of another co-ordinate department of the government. 
 A very learned judge, as well as sage of the law, has 
 very justly held, that "To contend that courts of judi- 
 cature must obey the requisitions of an act of the legis- 
 lature, when it appears to have been passed in violation 
 of the constitution, would be to contend that the law
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 445 
 
 was superior to the constitution, and that the judge had 
 no right to look into it, and regard it as tlie paramount 
 law. It would be to render tlie power of the agent 
 greater than his principal, and be declaring that tlie will 
 of only one concurrent and co-ordinate department of 
 the subordinate authorities under the constitution, was 
 absolute over the other department, and competent to 
 control according to its own will and pleasure the whole 
 fabric of the government, and the fundamental law in 
 which it rested. The attempt to impose restraints upon 
 legislative power would be fruitless, if the constitutional 
 provisions were left without any power in the govern- 
 ment to guard and enforce them." It is difficult to per- 
 ceive why it is not just as much the duty of the repre- 
 sentative, to bring every act upon which he is to pass 
 to the test of the constitution, and weigh it in that 
 balance, independent of prior legislative exposition, as it 
 is that courts should do so in applying the same test to 
 such act when passed. By a parity of reasoning it would 
 seem to follow, that to contend that a legislative exposi- 
 tion should exert a controlling influence over the mind 
 of the representative when applying such test, would be 
 in effect to contend that such prior exposition is para- 
 mount to the constitution, as completely as it would be 
 were judges to adopt that rule in deciding upon such act 
 when passed. Its influence should be no greater in the 
 one case than in the other. 
 
 § 296. The learned commentator on American law 
 has said : " From the mass of powers necessarily vested 
 in the legislature, and the active and sovereign nature of 
 these powers, from the numerous bodies of which the 
 legislature is composed, the popular sympathy which it 
 excites, and its immediate dependence upon the people, 
 by means of periodical elections, it follows that the legis- 
 lative department of the government will have a decided 
 superiority of influence. It is constantly acting upon all
 
 446 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 the groat interests of society, and agitating its hopes and 
 fears. It is liable to be constantly swayed by popular 
 pirjudicc and passion, and it is difficult to keep it from 
 pressing with injurious weight upon the constitutional 
 rights and privileges of the other departments. While 
 an independent judiciary, venerable by its gravity and 
 its wisdom, and deliberating with entire serenity and 
 moderation, is peculiarly fitted for the exalted duty of 
 expounding the constitution." If it be true, as it un- 
 doubtedly is, that the legislature is liable to be swayed by 
 popular prejudice and passion, its decisions certainly are 
 liable to be more or less influenced by it ; hence, the in- 
 ference would seem to be, that instead of a legislative 
 exposition being of much weight or exerting a controlling 
 influence, it ought rather to be regarded as very ques- 
 tionable authority, and should be but little relied on, in 
 expounding a constitutional limitation upon legislative 
 power, especially when that power is to be called into 
 exercise to meet the pressing demands of popular clamor 
 for legislative munificence, urged and enforced as such 
 claims are, by the strong and potent energies of numer- 
 ous constituents, and which too often not only sway and 
 influenced the judgment of the representative, but enforce 
 acquiescence in such demand, even at the expense of 
 legislative independence, as well as a sacrifice of the 
 constitution itself. If it be admitted that legislative ex- 
 position is to be respected and implicitly followed ; if 
 the constitution is thus to be made subordinate to the 
 legislature ; if a short and feeble chain of precedent is 
 to be deemed adequate to control the judgment and fetter 
 the conscience of the representative sworn to support 
 the constitution ; if that sacred instrument can be thus 
 expounded away ; it is to but little purpose, that we live 
 under a government having a written constitution, 
 u which is fixed and certain, expressive of the paramount 
 w T ill of the people, intended as the supreme law of the
 
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 1 17 
 
 land, and to be of a force adequate to fix the limits of 
 legislative authority, and define the boundaries of le- 
 gislative power, or to prescribe the orbit in which it 
 must move." Such a doctrine subverts the principle 
 that " the constitution is paramount to legislative power, 
 subject to be revoked or altered only by the power that 
 made it — that the life-giving principle, and the death- 
 giving stroke must proceed from the same hand." For, 
 then, instead of " the constitution fixing the limits of 
 legislative authority, and prescribing the circle in which 
 it must move," the legislature become to the constitution 
 the sun, around which it must revolve, and upon which 
 it must be dependent for its existence. Such a doctrine 
 strikes a death blow to the long cherished opinion " that 
 the constitution of a state is stable and permanent, not to 
 be worked upon by the temper of the times, not to rise 
 and fall with the tide of events, notwithstanding the com- 
 petition of opposing interests, or the violence of contend- 
 ing parties." Instead of its " remaining firm and immo- 
 vable as a mountain amid the strife of storms, or a rock 
 in the ocean amid the raging of waves," it becomes a 
 frail bark, which may be rocked by the surges of political 
 strife — be tossed and shattered by every breeze which 
 ambition or avarice may excite — and it will become a 
 total wreck, whenever it shall have encountered three or 
 four successive mutilations upon the quick-sands of le- 
 gislative precedent. 
 
 § 297. In some instances it has been urged, that acts 
 granting public property or releasing a debt due to the 
 state were conditional, and hence not within this two- 
 third clause. This, we think, can make no difference. 
 A moment's consideration will show the danger as well 
 as the absurdity of permitting such a circumstance to be 
 regarded as sufficient to elude this constitutional re- 
 striction on legislative power. Such a principle, if ad- 
 mitted, would render this clause of the constitution a 
 
 ^
 
 448 OF CONSTITUTIONAL RESTRICTION [CHAP. IX, 
 
 dead letter. It would destroy its efficacy, and violate a 
 well settled rule of construction, that " a constitutional 
 provision, intended to prevent or remedy an evil, should 
 receive such a construction as to extend to all cases in 
 which that evil may be found." A distinguished consti- 
 tutional lawyer has said, that " The object of this pro- 
 vision in the constitution was to guard against too ready 
 and too lavish disbursement of public money, or appro- 
 priations of public property, for the advancement of local 
 or private interests, without a correspondent benefit to 
 the state in its politic capacity ; hence it is the duty of 
 the representatives of the public, whether in a legislative 
 or other capacity, to give such a construction to the con- 
 stitution as will most effectually save the rights and 
 public property of those who adopted it, whenever it can 
 be done without compromitting other and more valuable 
 interests." Once admit the principle that the legislature 
 may, by a majority vote, make an effectual grant of the 
 public property for local or private purposes, provided 
 such grant shall be conditional, then it might donate the 
 entire property of the public upon an individual, upon 
 the condition that he should give his wife or child one 
 dollar, or any other condition equally absurd. Or if you 
 limit the condition to a right of repurchasing the subject 
 of the grant, on terms to be prescribed by the legislature, 
 then the majority of the legislature are made the arbi- 
 ters of those terms, and are vested with a power of pre- 
 scription, which may be exercised in such a manner as 
 to render a compliance with those terms and conditions, 
 on the part of the state, so onerous and oppressive as to 
 require a sacrifice greater than the value of the thing 
 which was the subject of the grant; and thus effect the 
 object, but elude the constitution, or render it nugatory. 
 It would admit the application of the dagger to the heart 
 of the constitution, provided the legislative hand could 
 be concealed by this thin disguise, while it inflicted the
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 449 
 
 death blow. Such a principle would permit the major- 
 ity of the legislature to fritter away the entire public 
 property, which it was the object and design of this 
 clause to protect. It would invite Legislative peculation 
 upon that property, at each annual session, until it should 
 be entirely squandered, or until the inventive powers of 
 men, prompted by local interest, or excited by the dic- 
 tates of avarice, or influenced by the still more reprehen- 
 sible spirit of demagogueism, shall cease to be employed, 
 as they ever have been, in devising the means, and in- 
 venting conditions, by which to elude the letter and sub- 
 vert the spirit of this sacred instrument, or quite destroy- 
 ing its force and effect. So, too, if the fact that a grant 
 of the public property, by a majority vote, for a local or 
 a private purpose, is to take effect at a future day, should 
 be considered as sufficient to take such a grant out of 
 this constitutional limitation upon legislative power, then 
 the legislature have only to pass such an act, without 
 specifying the time it is to take effect, and this object is 
 accomplished, under the general statute, which provides 
 in such case, it shall take effect in twenty days. 
 
 § 298. The next question arising under this clause 
 of the constitution, to wit : what, within the meaning of 
 this clause, is " a bill creating, continuing, altering, or re- 
 newing a body politic or corporate," has frequently been 
 considered by our judicial tribunals. A distinction was, 
 at one time, taken, between a mere municipal corpora- 
 tion and other corporations. In the first case, in our 
 courts, where this question arose, («) it was held, that 
 this provision did not apply to public corporations, but 
 solely to private corporations, such as banking institutions 
 and the like. That laws affecting public corporations, 
 
 (a) The People v. Morris, 13 Wend. 325. 
 
 57
 
 450 OF CONSTITUTIONAL RESTRICTION [ciIAP. IX. 
 
 such as cities and villages, might be passed by a majority 
 vote. It was, however, in that case, conceded, that a 
 strict interpretation would include the former class. 
 The same doctrine was reiterated in a subsequent 
 case. (ft) Chancellor Walworth, in subsequent cases, 
 entertained the same view of this point.(6) The deci- 
 sion on this point in the last cited cases was based upon 
 the ground, that public corporations were not within the 
 mischiefs the constitution was intended to guard against. 
 That it was aimed solely at a multiplicity of private cor- 
 porations. But this doctrine in the court of dernier re- 
 sort was ultimately overturned in the case of The People 
 v. Purdy.(c) 
 
 § 299. In that case it was definitely settled, that this 
 clause includes all corporations, properly so called, whe- 
 ther public or private. The decision in that court was 
 placed on the ground, that the terms were sufficiently 
 comprehensive to include all corporations, and were ex- 
 plicit and unambiguous. The plain and comprehensive 
 language did not warrant the court in confining it to pri- 
 vate corporations. That if it had been the intention of 
 the framers of the constitution to have excluded public 
 corporations from the operation of this section, and to 
 leave them to be controlled at the pleasure of a bare 
 majority of each house, they should have said so in ex- 
 press terms, and they evidently would not have used the 
 words " every bill," applicable to all corporations. When 
 the words were thus plain and clear, and the sense dis- 
 tinct and perfect arising on them, no other sources of 
 interpretation should be resorted to. That the constitu- 
 tion made no distinction, in terms, between public and 
 private corporations. If it was the intention of this 
 
 (a) The People ex rel. Lynch v. The Mayor, <$c, 25 Wend. 680. 
 
 (b) Warner v. Beers, 23 Wend. 126. The People v. Purely, 4 Hill, 391. 
 
 (c) 4 Hill, 391.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 451 
 
 clause to prevent a multiplicity of banks or monied cor- 
 porations, why were they not specifically enumerated, 
 and an exception made exempting public corporations 
 from the general provisions. The evils to be appre- 
 hended from the alteration of a public corporation were 
 far greater than any which would be likely to flow from 
 altering a mere private corporation ; for the one would 
 affect only a few individuals ; the other, the whole com- 
 munity. Hence, the inhabitants of cities and towns had 
 been careful to retain, in all their charters, the recitals 
 of their ancient liberties and free customs ; because they 
 knew and understood the operation of these upon their 
 interest and happiness. Hence it had been the policy 
 in territorial cessions, and on conquest, to retain the an- 
 cient usages of the people. There was much more rea- 
 son for applying the two-third clause of the constitution 
 to public rather than private corporations, in order to 
 shield the former against sudden and arbitrary encroach- 
 ments upon their ancient customs. Nothing appeared 
 more inconsistent, than that the framers of the constitu- 
 tion intended to allow the chartered rights of a great 
 community, consisting of more than three hundred thou- 
 sand souls, to be altered by a bare majority vote, while 
 at the same time they required the assent of two-thirds 
 of the members elected to each branch of the legislature 
 to amend or alter the incorporation of a turnpike or toll 
 bridge. 
 
 § 300. That the people, in the adoption of the consti- 
 tution, must be understood to have used the words of 
 the text in their reasonable interpretation, and not ac- 
 cording to the private understanding of any particular 
 man. Where the words were clear, and the sense dis- 
 tinct and perfect, arising on them, there was generally 
 no necessity to have recourse to other means of interpre- 
 tation. That recourse to other means of interpretation 
 was only warranted where there was some ambiguity in
 
 452 OF CONSTITUTIONAL RESTRICTION [dlAP. IX. 
 
 the language. That adopting these rules of construction 
 and applying them to this clause, no doubt remained as 
 to its meaning. The words were so plain and their 
 meaning so clear and obvious, there had been no attempt 
 to explain them away. If the words " altering or renew- 
 ing any body politic or corporate," might be construed 
 to mean one kind of corporation only, to wit, private 
 corporations, might it not be said, that another distinction 
 may be made, and it be insisted that the words did not 
 apply to a sole corporation, and then another that they 
 did not relate to a lay, but only to spiritual corporations, 
 and then refining still more in the love of spiritualization, 
 explain " any body" to mean nobody. Such a construc- 
 tion would be contrary to what the constitution plainly 
 imports. The language was, " every bill," continuing, 
 altering, &c, any body politic. Lexicographers had de- 
 fined the word " every," to mean " each one of all." 
 Johnson had given the example of its definition, " All 
 the congregation are holy, every one of them ;" and he 
 had also defined the word " any" to mean " every," and 
 had said, " It is in all its senses applied indifferently to 
 persons and things." That the construction which had 
 been contended for would make the words " every bill, 
 altering or renewing any body politic or corporate," to 
 mean some bills and some corporations, instead of every 
 bill and .all corporations, and that too, where the words 
 used were not dubious or couched in any ambiguous 
 terms. 
 
 §301. The decision was also placed on the ground, 
 that the debates in the convention which framed the 
 constitution showed that this subject was distinctly 
 brought before that body, in course of the discussion had 
 upon this section, and was formally passed upon. On 
 referring to Carter and Stone's Debates in convention it 
 would be seen, that when the report of the committee, 
 containing this clause, came up for consideration, not
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 458 
 
 only was it suggested that this provision would embrace 
 public as well as private corporations, but a proposition 
 was actually submitted to amend, by adding after the 
 word "any" the words "bank or monied institution," 
 thus confining its operation to this particular class of 
 corporations. It was then argued that the section as it 
 then stood, would require two-thirds of the members of 
 each branch of the legislature to incorporate a village 
 bridge or turnpike. But it was answered, that two- 
 thirds would never be wanting to incorporate a village 
 or a turnpike ; and the proposed amendment was there- 
 upon withdrawn. Thus showing clearly, that the con- 
 vention, while they were anxious to throw restrictions 
 around the increase of monied corporations, were at the 
 same time desirous to guard and protect all incorporated 
 institutions from any alteration of their charter of rights, 
 except in cases where those alterations were of so clear 
 and palpable a character, as to satisfy the minds of two- 
 thirds of the members elected to the legislature that such 
 alteration sbould be made. 
 
 § 302. It has been decided by the court of dernier re- 
 sort in the state of New York, that the act of 1838, en- 
 titled " An act to authorize the business of banking," was 
 a valid and constitutional act, although it did not receive 
 the assent of two-thirds of the members elected to each 
 branch of the legislature. That associations organized 
 under this act, and in conformity to its provisions, were 
 not corporations within the spirit and meaning of the 
 constitution. (a) The decision in this case was placed 
 on as many different grounds as there were different 
 minds participating in the expression of an opinion. The 
 president of the senate held, that corporations exist either 
 by express grant or by implication. That by this act 
 
 (a) Warner v. Beers, President, 23 Wend. 103.
 
 454 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 corporations were not expressly created or authorized. 
 The associations formed under it were not corporations, 
 by implication. An association of men would not be 
 deemed a corporation by implication, except where cor- 
 porate authority was necessary to the exercise of bene- 
 ficial powers expressly granted, or for the protection of 
 important interests, or the execution of important trusts; 
 nor would such associations be deemed to possess cor- 
 porate powers, unless such powers were solicited by the 
 donees of the power. These associations were not cor- 
 porations by implication, for the following reasons : There 
 was no necessity that they should possess corporate 
 powers to carry into effect the objects for which they 
 were authorized. Such powers were not solicited by 
 the public in their appeals to the legislature for this law. 
 The legislature did not intend to create or authorize 
 corporations, nor had it done so by conferring the powers 
 and privileges which those associations were authorized 
 to use and enjoy. At common law most of those privi- 
 leges were claimed and had been long exercised by pri- 
 vate associations, copartnerships, and joint stock com- 
 panies. But if these associations were deemed to be 
 corporations, the law authorizing them was not with- 
 in the mischiefs intended to be remedied, and there- 
 fore not within this inhibitory clause of the constitution. 
 The evils intended to be guarded against were the ex- 
 clusive character and undue multiplication of corpora- 
 tions, possessing and exercising banking powers, which, 
 by means of the restraining acts, had grown into monop- 
 olies. The effect of this act was to repeal jwo tanto the 
 restraining act, and thus restore to the citizens generally 
 a common law right of which they had been deprived. 
 The act, instead of violating this provision of the consti- 
 tution, came in aid of it, and was therefore a constitu- 
 tional act, although it did not receive the assent of two-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 456 
 
 thirds of the members elected to each branch of the 
 legislature. 
 
 § 303. The Chancellor placed his decision on the 
 ground that the constitution of a state, like an act of the 
 legislature, must be construed according to its spirit and 
 intent; taking into view the evils intended to be 
 remedied, and the danger sought to be guarded against. 
 This prohibitory clause in the constitution was intended 
 to guard against the increase of joint-stock corporations, 
 either for banking, or for other purposes of trade or 
 profit, the charters of which conferred exclusive privi- 
 leges, and which when obtained were beyond the reach 
 of general legislation, so that they could neither be 
 modified or repealed. This provision was not intended 
 to restrict the powers of the legislature so as to prevent 
 the granting of an equal right or privilege to all the in- 
 habitants of the state, or to so many of them as should 
 choose to associate together for the purposes of trade, or 
 other lawful business, during the continuance of the act 
 granting the privilege, provided such privilege was at 
 all times subject to the control of general legislation. 
 He conceded that these associations had the right in 
 their collective capacity, to bold property in common, 
 and in a manner in which individuals were not permitted 
 to hold it, and transmit the same to others by an arti- 
 ficial and continued succession, and possessed powers 
 which were distinguished characteristics of a corpora- 
 tion. Had the act guarantied the continuance of such 
 powers and privileges, so that the same could not be 
 taken away by a simple repeal of the law, or be modified 
 by general legislation, the act would have been within 
 this clause of the constitution. But that these powers, 
 privileges and immunities, could only endure while the 
 act remained in force, and might be modified or repealed 
 by the legislature by a vote of less than two-thirds ; and
 
 456 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 hence, the act was not within the spirit or intent of this 
 restrictive clause in the constitution. 
 
 § 304. Senator Verplanck held, that the associations 
 authorized by this act, were partnerships or joint-stock 
 companies, and not corporations. This provision was 
 intended to guard against the undue increase of institu- 
 tions enjoying exclusive privileges, and operating as 
 monopolies. The act in question, instead of conflicting 
 with the constitution, came directly in aid, by opening 
 the business of oanking to all who chose to engage in 
 it, upon complying with the requisitions of the legisla- 
 ture. («) Thus, it will be perceived, that this important 
 question has been definitely settled in the court of der- 
 nier resort. 
 
 § 305. Notwithstanding the decision by that court 
 thus explicit on this question, the former supreme court 
 of this state uniformly adhered, as well before as since 
 the above named decision, to the doctrine that associa- 
 tions created by or organized under the act of 1838, are 
 corporations. (6) The court for the correction of errors 
 has itself decided (c) that associations formed under this 
 law, are corporations within the statute relative to taxa- 
 tion. Hence, in the same court, we have presented the 
 anomaly of deciding that they are not corporations within 
 the spirit of this clause in the constitution, which it 
 conceded is directed at the creation of monied corpora- 
 tions, and that they are corporations, and monied corpo- 
 rations too, within statutes aimed at such kind of corpo- 
 
 (a) See also, Gifford v. Livingston, 2 Denio, 380. 
 
 (b) Thomas v. Dakin, 22 Wend. R. 1 ; Delafield v. Kinney, 24 Wend. 
 R. 345 ; In the matter of the Danville Bank, 6 Hill's R 370 ; The People v. 
 Assessors of Watertown, 1 Hill, 616 ; De Bow v. The People, 1 Denio's R. 9 ; 
 Willoughby v. Comstock, 3 Hill, 389 ; The People v. The Supervisors of 
 Niagara, 4 Hill, 20. 
 
 (c) The Board of Supervisors of Niagara v. The People, ex rel. McMarlin, 
 7 Hill, 504.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 407 
 
 rations, and that too accompanied with a concession that 
 the constitution was intended to apply to that kind of 
 corporations. We are aware that the Chancellor, in the 
 case of Gifford v. Livingston, (a) undertook to reconcile 
 the manifest inconsistency of these decisions. In regard 
 to the decision of The Supervisors of Niagara v. The 
 Peoplc,(b) he said, " That decision it is true, does declare 
 them to be corporations, but the actual judgment given 
 by the supreme court, or by this court in that case, can 
 only be sustained upon the supposition that such asso- 
 ciations were legal and constitutional corporations, so as 
 to be taxable as corporations under the general tax law. 
 For, if they were merely illegal and unconstitutional 
 associations of individuals, their property would not 
 have been taxable as corporate stock at the place where 
 the office of the association was located, and by the cor- 
 porate name, but each individual stockholder would be 
 taxable for the actual value of his interest in such stock, 
 so far as that interest consisted of personal estate, ac- 
 cording to the provisions of the general law. The 
 mandamus asked for in that case was, to compel the 
 supervisors of the county of Niagara to place the name 
 of one of these associations upon the assessment roll, 
 and tax it as a corporation ; and the supreme court di- 
 rected a peremptory mandamus accordingly. That 
 judgment was brought to this court upon a writ of error, 
 and was affirmed. Now it is evident, that if the general 
 banking law was unconstitutional, an association at- 
 tempted to be created under it, would have no legal 
 existence as a corporation, and could not therefore be 
 taxed as such. In the language of one of our most able 
 and distinguished judges, ' If the general bank law was 
 
 (a) )i Denio, 388. (b) 7 Hill, 501. 
 
 58
 
 458 OF CONSTITUTIONAL RESTRICTION [dlAP. IX. 
 
 not a constitutional exercise of power on the part of the 
 legislature, it follows that there was no such legal being 
 as the Bank of Lockport to be taxed.' In justice to the 
 supreme court, it is however proper to say, I have been 
 informed by the Chief Justice of that court, that the 
 counsel in the Lockport case did not advert to the fact 
 that the banking association could not be taxable as a 
 corporation, if the general banking law was an uncon- 
 stitutional act." With due deference we submit, whether 
 these observations of the learned Chancellor obviate in 
 the least, the charge of inconsistency urged against that 
 court, for pronouncing what we conceive to be mani- 
 festly inconsistent and irreconcilable decisions upon this 
 question 1 One thing is certain, these associations are 
 the creatures of the statute, and as such, if they are for 
 any purposes a corporation, it is because the statute 
 makes them such ; for no corporation under our form of 
 government can, or does exist, independent of some sta- 
 tutory creation; hence, if the statute created them, or 
 authorized their creation, it did create or authorize their 
 creation as corporations, otherwise they could not be 
 taxed as such. The decision, that as corporations they 
 were taxable, did in fact, of necessity decide that they 
 were corporations — nay more, that they were monied cor- 
 porations ; or in other words, that they were just what 
 the constitution had declared should not be created, 
 except by the assent of two-thirds of all the members 
 elected to each branch of the legislature. Nor can any one 
 doubt that they would unquestionably have been declared 
 such by that court, had it not acted under the influence 
 of extraneous matters affecting, to a great extent, the 
 commercial community of one of the greatest and most 
 important commercial states of the United Confederacy. 
 We fully concur in the view of this question expressed 
 by Bronson, Chief Justice, in the case of Dc Bow v. The
 
 CHAP. IX."] UPON 'LEGISLATIVE POWER. 459 
 
 Peopkfa) that the court decided that these brinks were 
 corporations of the particular kind or species mentioned 
 in the Law, to wit : u M<mkd or Stock. Corporations deri- 
 ving an income or profit from their capital, or otherwise," 
 and that such a decision necessarily affirmed that they 
 were corporations ; and that the constitution is not con- 
 fined to any particular kind or species of corporations, 
 but includes the whole genus. We also fully concur in 
 the clear, sound, and forcible reasoning of the Chief 
 Justice in the case last cited, as well as in the case of 
 The People v. The Assessors of Wdtertovm.(b) It is to 
 be regretted that this constitutional restriction has been 
 forced to yield all its vitality under the pressure of the 
 public exigencies, and that in defiance of its plain and 
 obvious import, that these institutions have been in- 
 grafted upon our statute books by a mere majority vote, 
 but it is now presumed that this question will never 
 again come under review ; and if it should, there is but 
 little hope that it would ever receive a different judicial 
 determination. 
 
 § 306. In the case of The People v. Purdij,(c) the 
 majority of the supreme court held, that an act which 
 annulled the power conferred upon the Aldermen of the 
 city of New York by the charter of 1730, to officiate as 
 judges in the court of general sessions, might be passed 
 as a majority bill. Mr. Justice Cowen in that case held, 
 that the act did not import an interference with any 
 right of a strictly corporate character, and was not for 
 that reason within this clause of the constitution. Chief 
 Justice Nelson concurred with him on the main question, 
 but placed his decision upon the ground that this clause 
 did not relate to municipal corporations. Mr. Justice 
 Bronson dissented, and the decision of the majority of 
 
 (a) 1 Denio, 16. (c) 4 Hill, 384. 
 
 (b) 1 Hill, 616.
 
 4G0 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 the court in this case was reversed by the court for the 
 correction of errors ; and the bill was held to be a two- 
 third bill within this clause of the constitution, and that 
 it could not be constitutionally passed by a majority vote 
 — that an act excluding aldermen of the city of New 
 York from sitting as judges of the court of general 
 sessions was one altering the charter of the city. 
 
 § 307. The question has frequently arisen under this 
 clause, whether the legislature has the constitutional 
 power although two-thirds might assent, to provide by a 
 general law for the creation of an indefinite number of 
 corporations by a single act. This question came under 
 consideration in the supreme court of this state, in the 
 case of T/iomas v. Dakin.(a) The question arose in 
 that case under the general banking law of this state ; 
 but the members of that court were not unanimous in 
 opinion on this point. In was in that case, on the one 
 hand, urged that according to the true intent and mean- 
 ing of this clause, each corporation thereafter to be 
 created must receive the direct assent of two-thirds of 
 the members elected to each branch of the legislature. 
 On the other hand it was insisted, that this provision 
 was fairly complied with, when the assent of two-thirds 
 was given to a general statute establishing a system for 
 the admission of voluntary associations to corporate 
 privileges ; in other words, when such assent was indi- 
 rectly given to the creation of each. Chief Justice Nel- 
 son admitted, that we were to regard this clause as in- 
 tended to check the undue multiplication of these bodies ; 
 that it was quite clear that the former construction 
 would most effectually attain the object, as it secured a 
 perpetual restraint upon their creation, both as it respects 
 the deliberation and judgment to be bestowed, as well as 
 
 (a) 22 Wend. 76.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 4GI 
 
 to the assent to be given to each particular application. 
 A general law when once enacted, put an end to all 
 further check upon the legislature, but that the latter 
 interpretation gave full scope to this clause in respect to 
 all the legislation essential to the creation of such bodies 
 as now could claim an existence except such as were 
 passed in obedience to its injunctions. The material 
 difference between the two constructions consisted 
 mainly in the mode of applying the restriction to the 
 action of the legislature ; the one making it bear directly 
 upon the grant of privileges, the other only through an 
 established system of law devised for the purpose. The 
 words descriptive of the nature and character of the bill, 
 and which distinguished it as falling within the restric- 
 tion, only imported one creating any body politic or 
 corporate. How, or in what mode, the bill should create 
 them ; what should be its particular provisions ; whether 
 it must create directly, or might do it indirectly, was not 
 prescribed ; and of course must depend upon the con- 
 struction to be given to it. One thing it secured in 
 terms, that however the bill might be passed, if it cre- 
 ated a corporation, it could properly only be passed by 
 two-thirds. Hence, it might be argued with considerable 
 effect, that the framers of the constitution did not intend 
 to restrict the discretion of the legislature in respect to 
 the form and provisions of the bill, its particular arrange- 
 ments and details, whether it might or might not embody 
 provisions creating one or more corporations at the 
 same time, or provide for their creation at will, for spe- 
 cified objects, upon certain stipulations and conditions to 
 be first complied with ; but that they intended simply to 
 inhibit the passage of whatever bill might be devised 
 creating, directly or indirectly, these institutions. He 
 was of the opinion they might, by a two-third vote, pass 
 a bill creating an indefinite number of corporations. 
 Mr. Justice Cowen was also of the opinion, that the le-
 
 4G2 OF CONSTITUTIONAL RESTRICTION [ciIAP. IX. 
 
 gislature had the constitutional power to authorize the 
 creation of an indefinite number of corporations, whether 
 of one sort or another, by a two-third vote. But Mr. 
 Justice Bronson said " he could not concur in the opinion 
 that the legislature had the constitutional power, although 
 two-thirds may assent, by a general law for the creation 
 of an indefinite number of corporations, at the pleasure 
 of any persons who may associate for that purpose." The 
 ultimate decision in this cause was placed upon other 
 grounds, although the court were united in the opinion 
 that these associations were corporations ; and the ma- 
 jority of the court were of the opinion that a multiplicity 
 of corporations might be created by a general law. 
 
 § 308. In the case of Bccars v. Warner, (a) in the 
 court for the correction of errors, the Chancellor held 
 that an act of the legislature authorizing an indefinite 
 number of corporations to be created, upon compliance 
 with certain conditions, was a valid and constitutional 
 act, if passed with the assent of two-thirds of all the 
 members elected to each branch of the legislature. Such 
 also was the opinion expressed by the president of the 
 senate. He held, that if the act did come within this 
 provision in the constitution, it might still have been 
 passed by a two-third vote. His reasons were — that 
 previous to the adoption of the constitution, the legisla- 
 ture possessed and exercised the power of passing such 
 laws. The object of the restrictive clause of the consti- 
 tution, even if applicable to this branch of legislation, 
 was not to prohibit altogether the exercise of this power, 
 or prevent entirely the passage of such acts, but merely 
 to change the vote by which such acts should be passed. 
 The power of the legislature to pass such an act re- 
 mained the same as before: the manner only of doing it 
 
 (a) 23 Wend. 105.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 1G3 
 
 was modified by this new provision in the constitution ; 
 it now requiring for their passage, instead of a vote of a 
 simple majority of a quorum, the assent of two-thirds of 
 all the members elected to each branch of the legisla- 
 ture. On the other hand, Senator Root held, that the 
 law would have been unconstitutional, even had it re- 
 ceived the assent of two-thirds of the members elected 
 to each branch of the legislature. That the constitution 
 required such assent to the creation of each and every 
 body politic or corporate. An indefinite number of cor- 
 porations, could not be authorized or created under a 
 general act of the legislature. This cause was however 
 decided on the ground that this act was constitutionally 
 passed, although it did not receive a two-third vote ; and 
 also on the ground that the associations it authorized 
 were not corporations within the spirit and meaning of 
 the constitution. 
 
 § 309. Assuming it to be true, that these associations 
 are not corporations, the decision in that cause, placing 
 it on that ground, did not necessarily require a judicial 
 determination of the precise question under consideration, 
 such would seem to be the inference from the case itself. 
 We are aware, however, that in the case of Gifford v. 
 Livbigston,(a) the chancellor undertakes to show, that 
 in the case of Warner v. Beers, the court of dernier re- 
 sort intended to and did necessarily pass upon this pre- 
 cise point; on that question, however, there seems to 
 have been conflict of opinion even among the members 
 of that court. Taking all the various opinions which 
 have been expressed on this question in the state of 
 New York, perhaps it may be said that the scale pre- 
 ponderates in favor of the doctrine that the legislature 
 may, by a single bill, create an indefinite number of cor- 
 
 (a) 2 Dcnio, 381.
 
 464 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 poratioDs, by a two-third vote, and should this question 
 ever again arise the probabilities are, that this view of 
 this clause of our constitution will receive a judicial 
 sanction, in a decisive and authoritative manner. 
 
 § 310. Section 2, of art. 12 of the constitution of the 
 state of Michigan, contains this provision : " The legis- 
 lature shall pass no act of incorporation, unless with the 
 assent of at least two-thirds of each house." In the case 
 of Falconer ct at. v. Campbell ',(«) the question arose, 
 whether the legislature could create several distinct 
 corporations by the same act. It was in that case held, 
 that the legislature having the power to establish more 
 than one incorporation in the same act, might establish 
 many, or an indefinite number, in one act ; whether the 
 act was limited or indefinite did not render it unconsti- 
 tutional. Mr. Justice McLean held, it could not be said 
 that the law in question (a general banking law,) vio- 
 lated any express provision of the constitution. The 
 extent of the restriction was, that no act of incorporation 
 could be passed except by at least a majority of two- 
 thirds of each branch of the legislature. This did not 
 limit the number of corporations which should be created 
 in one act. The only express restriction on the subject 
 was, that the act must be passed by a majority of two- 
 thirds, and that if the legislative power was to be re- 
 stricted beyond this, it must be done by construction, 
 although there was a wide difference between the policy 
 of a general and a special law, yet that was not a ques- 
 tion for judicial cognizance. The question was, whether 
 there was such a difference in principle, as to make the 
 one constitutional and the other unconstitutional. As to 
 the power of the legislature, it was unquestionable, 
 whether the law established one or fifty banking insti- 
 
 («) 2 McLean's R. SOU.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 465 
 
 tutions. The same power which might establish one, 
 under the constitution, might establish fifty. The only 
 difference between a general and a special act was, in 
 one, the number of corporations was limited, whilst 
 under the other, they were indefinite. The legislature 
 might determine the number, if they might do this, they 
 might, by a two-third vote, establish voluntary associa- 
 tions, without limiting their number. If a law created 
 ten, it acted as directly and distinctly upon each associa- 
 tion as if it had been the only one created by it. In the 
 passing of the law, the legislature exercised the same 
 scrutiny as if they were about to incorporate one bank. 
 If they might create two they might create more than 
 two, or any indefinite number. In the general law there 
 was no disregard of the restraints of the constitution. 
 Having the power to establish more than one corpora- 
 tion in the same act, they might establish many, or an 
 indefinite number. The number, whether indefinite or 
 limited, did not render the law repugnant to the consti- 
 tution. Thus, it will be perceived, that in Michigan, 
 this precise question has received a judicial determina- 
 tion in favor of the position, that an indefinite number 
 of corporations may be created by a single act, provided 
 such act is passed by a two-third vote. It will be per- 
 ceived, however, that the language of the constitution of 
 Michigan is not as specific and definite as is that of the 
 constitution of New York. The one requires the assent 
 of two-thirds to an act of incorporation, it is directed to 
 an attribute of legislative power and not to the manner of 
 its exercise ; the other, the like assent to every bill cre- 
 ating, continuing, &c, any body politic or corporate, that 
 is, to every act in which this attribute is brought into 
 exercise. Were this an original question, in the ab- 
 sence of any adjudication, we should not hesitate to con- 
 cur in the views expressed by Senator Root. 
 
 59
 
 
 466 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 § 311. The next qualified restriction upon legisla- 
 tive power we shall notice, is that which relates to 
 taking private property for public use. The respective 
 clauses in the respective state constitutions relating to 
 this subject will be found in chapter six, and to which 
 reference may for that purpose be had. It will be seen 
 that in some instances, this right of eminent domain by 
 express provisions can only be exercised when the public 
 exigencies require it. Such is the provision in the con- 
 stitutions of Maine and Massachusetts. In one instance, 
 that of New Hampshire, there is no clause containing 
 any express provision that when private property is 
 taken for public use just compensation shall be made. 
 It has, however, been held, in that state, whenever this 
 power is exercised, a just compensation! must be made. 
 Natural justice speaks on this subject when the consti- 
 tution is silent.(«) 
 
 § 312. In the consideration of this subject, it should 
 be observed at the outset, that we understand that the 
 right of taking private property for public use is incident 
 to the sovereignty of every government. By the common 
 law the right of eminent domain has ever been held as 
 a high prerogative of sovereignty, to be exercised only 
 for the public use, and only under such circumstances 
 as preclude the attainment of that benefit except by its 
 exercise. The constitution, as we understand it, has not 
 altered this rule of common law, or disposed of this na- 
 tural inherent incident of sovereignty. 
 
 § 313. We have shown in chapter eight, in doing so 
 the obligation of a contract was not impaired, for the 
 reason that all persons hold their property subject to this 
 requisition for public use, or right of eminent domain in 
 the state, for public purposes. The property of the citi- 
 
 (a) Bristol v. Newchester, 3 N. II. R. 534.
 
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 4<',7 
 
 zen is only protected from arbitrary seizure, not when 
 it is taken or appropriated by public right for public use. 
 This principle has been recognized by oft repeated judi- 
 cial decisions. (a) It has been said of the necessity or 
 expediency of the exercise of this right of eminent do- 
 main the government must, in all cases, be the judge, 
 but the obligation to make just compensation for the 
 property taken by it is concomitant with the right.(6) 
 § 314. The necessity for exercising this right of emi- 
 nent domain is manifest, for were it denied, the will or 
 caprice of an individual might often defeat the most use- 
 ful and extensive enterprises. Hence it is, that yielding 
 to the public exigencies, the law authorizes on the one 
 hand, a species of forced sale to satisfy the pressing ne- 
 cessities of the public, and on the other hand, giving to 
 the owner an equivalent therefor. Whenever the legis- 
 lature authorizes the taking of private property, the 
 compensation therefor must be settled by stipulation be- 
 tween the legislature and the proprietor, by commission- 
 ers mutually elected by the parties, or by the interven- 
 tion of a jury.(c) In one of the cases cited the act 
 providing for compensation directed the claimants should 
 present their claims to a board of property, who were 
 to judge of the validity of the claim, and ascertain through 
 the medium of commissioners to be appointed by the 
 legislature, the quality and value of the land, and to 
 judge of the quantity of the vacant land to be granted 
 
 (a) Bonaparte v. The Camden and Amboy Rail Road Co., 1 Baldw. C. C. 
 R. 221. 
 
 (6) See Cooper v. Williams, 7 Greenl. R. 273. McMaster v. The Com- 
 monwealth, 3 Watts' R. 294. Henry v. Undenvood, 1 Dana, 247. CHara v. 
 Lexington Rail Road Co., 1 Dana, 232. Perry v. Wilson, 7 Mass. R. 395. 
 Harding v. Goodlel, 3 Yerger R. 41. 
 
 (c) Van Home's Lessees v. Dorrance, 2 Dallas R. 313. Armstrong v. 
 Jackson, 1 Blackf. R. 374.
 
 468 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 as an equivalent. That act was held not a constitu- 
 tional one. 
 
 § 315. In Van Home's Lessees v. Dorrance it was 
 held, that no just compensation could be made except 
 in money. Money was the common standard, by com- 
 parison witli which the value of any thing might be as- 
 certained. It was not only a sign which represented the 
 respective value of commodities ; but it was an univer- 
 sal medium, easily portable, liable to little variation, and 
 readily exchanged for any kind of property. Compen- 
 sation was a recompense in value, a quid pro quo, and 
 must be in money ; although land or any thing else 
 might be a compensation, it must be at the election of 
 the party. It could not be forced upon him. The de- 
 cision in that case was a nisi jyrius decision, upon which 
 a writ of error was taken, but never prosecuted, in con- 
 sequence of the repeal of the statute which gave rise to 
 the controversy. The accuracy of this decision has, in 
 several instances, been questioned ; but it has not, as 
 we are aware, ever been expressly overruled. 
 
 § 316. Rogers, J., in the case of McMaster v. The 
 Commomccalth^a) commenting on the case of Van 
 Home's Lessees v. Dorrance, remarks : " It is true that 
 there is a primary convenience in money as a medium 
 of commercial exchange, but I do not fee] the force of 
 reasoning by which the court deduce a conclusion from 
 this, against the exercising of a constitutional power in 
 the legislature. It is an inference drawn from its sup- 
 posed advantages, but certainly not an express require- 
 ment of the constitution, which in general terms declares, 
 that no man's property shall be taken or applied to pub- 
 lic use without the consent of his representatives, and 
 without just compensation being made. As the legisla- 
 
 (n) 3 Watts' R. 296.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 469 
 
 ture had the undoubted right to determine when the 
 public interest requires the assumption of private pro- 
 perty, so, it seems to me to be the better construction of 
 the constitution, that it shall rest in their wisdom to de- 
 termine the nature and kind of compensation to be made, 
 and also to point out the tribunal by whom the amount 
 may be ascertained. Experience has shown, that the 
 commonwealth, rather than individuals, have most rea- 
 son to complain of the assessment of damages when 
 lands have been appropriated to public use." Huston, 
 J., in Saltcrlce v. Matthcwson ,(a) said, the accuracy of 
 the decision in the case of Van Home's Lessees v. Dorr- 
 ance, had been questioned. " However this may be, yet 
 there is one thing certain, that if it be considered a cor- 
 rect exposition of the constitution, the legislature have 
 violated the provisions in question in more instances 
 than one." 
 
 § 317. In the case last cited, as well as several others 
 which have come to our notice, it lias been supposed that 
 acts of the legislature providing for the assessment of dam- 
 ages to the owner for property taken for public use, which 
 contain a provision, that in making such assessments an 
 estimate shall be made of the benefits to accrue from 
 such public use to the owner, and directing the amount 
 of such estimated benefit to be deducted from the value 
 of the property taken, were in direct conflict with the 
 principle laid down in Van Home's Lessees v. Dorrance. 
 It was upon such an assumption Mr. Justice Huston 
 made the remark above quoted. But we cannot perceive 
 that there is any such conflict in reality. The just com- 
 pensation the constitution demands shall be given to the 
 owner, it seems to us, is fully provided for within the 
 spirit of the constitution, when the party has a full equi- 
 
 ty 16 Serg. & Rawle, 179.
 
 470 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 valent for the property taken ; that equivalent must, and 
 injustice ought to be ascertained, by estimating the actual 
 damage the party sustains by the loss of the property 
 taken. That damage is the value of the property, less 
 the actual amount of benefit accruing to the residue of 
 the property of the same individual, by reason of the use 
 made of that taken. The benefit is in part an equiva- 
 lent for the property taken, and as such equivalent, in 
 the language of the constitution it is, to that extent, a 
 "just compensation." Such acts of legislation have 
 been for a long period acquiesced in, and have received a 
 judicial sanction. In most turnpike acts, in the estima- 
 tion of damages, the viewers are required to take into 
 consideration the advantages accruing from the road, as 
 well as the injury done to the owner of the land taken. 
 The same principle has been engrafted into the canal 
 system of several states, and has also been incorporated 
 into many acts in reference to the opening or widening 
 public streets in cities and villages. In the case of Liv- 
 ingston v. The Mayor, #c, of N. Y.,(a) such a provision re- 
 ceived a judicial sanction. The court for the correction 
 of errors in that case held, that the benefit accruing to a 
 person whose land was taken for a street, the increased 
 value of adjacent property belonging to him 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 to the extent 
 of such benefit for the property taken. In some in- 
 stances such acts go still farther, and direct an assess- 
 ment of benefit to lots owned by persons whose land is 
 not taken for public use, for the advantage of those who 
 may be injured by the improvement ; such acts have 
 also received a judicial sanction.(6) 
 
 (a) 8 Wend. 85. 
 
 (b) McMasier v. The Commonwealth, 3 Watts' R. 2 { J6.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 471 
 
 § 318. We very much doubt (he accuracy of, nor 
 can we yield our assent to the doctrine laid down 
 by Mr. Justice Rogers, in the case of McMaeter v. The 
 Commonwealth, above cited, that " it should rest in the 
 wisdom of the legislature to determine the nature and 
 kind of compensation to be made." It seems to us that 
 such a doctrine ought not to be tolerated for a moment ; 
 it would, if sanctioned, authorize if not lead to an abuse 
 which would, in effect, virtually remove all the protec- 
 tion it was the design of the constitution to throw around 
 private property, as a shield against legislative aggres- 
 sion. If the legislature may, at its discretion, determine 
 the nature and kind of compensation, if superadded to 
 this such determination is to be conclusive upon the citi- 
 zen, and that without his consent, the legislature, in the 
 exercise of such a discretion, might determine as an 
 equivalent whatever thing it might choose to designate, 
 and force upon the citizen that which to him would be 
 utterly worthless, nay more, that which would prove to 
 be a curse, instead of just compensation. We cannot 
 resist the conclusion in our mind, that the extent of the 
 actual damages sustained, calculated upon the principle 
 above stated by us, should be compensated by an actual 
 payment of an equivalent in that which, by the law of 
 the land, would be deemed a lawful tender in the pay- 
 ment of any other pecuniary demand. The moment pri- 
 vate property is taken for public use the obligation on 
 the part of the government to compensate arises, that 
 obligation becomes, in fact, a debt, and, as such, should 
 be paid in money. Indeed, state governments are ex- 
 pressly inhibited from making any thing but gold and 
 silver coin a lawful tender for a debt. This inhibition 
 ought to be construed as extending to such a case as 
 this, for compensation due is in fact a debt. 
 
 § 319. Mr. Justice Patterson, after stating the rule 
 laid down by him in Van Home's Lessees v. Dorrunee,
 
 
 472 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 uses the following clear and forcible argument : " It is 
 contended, that the legislature may judge of the neces- 
 sity of interposing their despotic authority ; that it is a right 
 of necessity upon which no other power in government 
 can decide ; that no civil institution is perfect ; and that 
 cases will occur in which private property must yield to 
 urgent calls of public utility, or general danger. Be it 
 so ; but then it must be upon complete indemnification 
 to the individual. Agreed. But who shall judge of 
 this? Did there exist a state necessity, that the legis- 
 lature, or persons solely appointed by them, must ad- 
 measure the compensation or value of the land seized or 
 taken, and the validity of the title thereto ? Did a third 
 state necessity exist, that the proprietor must take lands 
 by way of equivalent for his land? And did a fourth 
 state necessity exist, that the value of this land equiva- 
 lent must be adjusted by the board of property without 
 the consent of the party, or the intervention of a jury? 
 Alas ! how necessity begets necessities. They rise upon 
 each other and become endless. The proprietor stands 
 afar off, a solitary and unprotected member of the com- 
 munity, and is stripped of his property without his con- 
 sent, without a hearing, without notice ; the value of 
 that property judged upon without his participation, or 
 the intervention of a jury, and the equivalent therefor in 
 lands ascertained in the same way. If this be the le- 
 gislation of a republican government, in which the pre- 
 servation of property is made sacred by the constitution, 
 I ask wherein does it differ from the mandate of an 
 Asiatic Prince ?" 
 
 § 320. Under the constitution of New Hampshire an 
 express provision is made, that " In all controversies 
 concerning property, and in all suits between two or 
 more persons, except in cases in which it has been here- 
 tofore used and practised, the parties shall have a right 
 to a trial by a jury." It has however been held, where
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 173 
 
 an act of the legislature took the property of a corpora- 
 tion for public use, in the exercise of this power of emi- 
 nent domain, it was not necessary that the act should 
 provide for a trial by jury to ascertain the damages 
 occasioned by the laying out of a highway.(a) This 
 decision was placed upon the ground that by a long 
 course of legislation the damages occasioned by the 
 laying out of highways had been assessed by the court 
 or a committee, and no provision was found for the in- 
 tervention of a jury in cases of that character. It had 
 therefore been otherwise used and practised for nearly a 
 century and a half before the adoption of the constitu- 
 tion, and a similar practice had prevailed since ; hence, 
 this case was not only within the express language of 
 the exception, but there was abundant evidence that it 
 had been within the view of the framers of the consti- 
 tution. 
 
 § 321. Until just indemnity is afforded to the party, 
 the power of taking his property cannot be lawfully 
 exercised. So strictly is this rule adhered to, that if an 
 attempt is made under a statute to take such property 
 without such an indemnity, a court of chancery will 
 interpose by way of injunction. (6) Although it is true 
 that the legislature may appropriate the lands of another 
 to public uses without his assent, provided a reasonable 
 compensation be made to him therefor ; but without 
 such compensation such an appropriation would be un- 
 constitutional and void.(c) 
 
 § 322. In Rogers v. Bradshaw^d) it was held, that 
 where private property was taken for public use, it was 
 
 (a) Backus v. Lebanon, 11 N. H. R. 19. 
 
 (b) Gardner v. Trustees of Newburgh, 2 John. Ch. R. 162. 
 
 (c) Perry v. Wilson, 7 Mass. R. 393. Stephens v. Middlesex Canal, 12 
 id. 466. Thatcher v. Dartmouth Bridge, 18 Pick. R. 501. 
 
 (d) 20 Johns. R. 735. 
 
 60 

 
 474 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 not necessary the amount of the compensation should be 
 actually ascertained and paid before such property was 
 taken and appropriated to the public use. It was suffi- 
 cient if a certain and adequate remedy was provided by 
 which the individual could obtain such compensation 
 without any unreasonable delay. In a subsequent case 
 the above rule was qualified by Chancellor Kent. The 
 doctrine was countenanced by him, that it was not even 
 necessary a remedy for obtaining compensation should 
 be provided. (a) Chancellor Walworth, however, has 
 refused to sanction the reasoning of Chancellor Kent in 
 the case last cited. He held, that before the legislature 
 could authorize the agents of the state, or others, to enter 
 upon, or occupy, or destroy, or materially injure the 
 private property of an individual, except in cases of 
 actual necessity which would not admit of any delay, 
 an adequate and certain remedy must be provided 
 whereby the owner of such property might compel the 
 payment of his damages or compensation. He was not 
 bound to trust to the justice of the government to make 
 provision for such compensation by future legislation. 
 By this he did not intend to decide, that the legislature 
 might not authorize a mere entry upon the land of 
 another, for the purposes of examination, or of making 
 preliminary surveys, which otherwise would be a tech- 
 nical trespass, but no real injury to the owner of the 
 land, although no previous provision was made by law 
 to compensate the individual for his property if it should 
 afterwards be taken for public use. But it was not the 
 intention of the frainers of the constitution to authorize 
 the property of the citizen to be taken, and actually ap- 
 propriated to the use of the public, and compel him to 
 trust to the future justice of the legislature to provide 
 
 (a) Jerome v. Ross, 7 Johns. Ch. R. 314.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 475 
 
 him a compensation therefor. The compensation must 
 be either ascertained and paid to him before his property 
 was thus taken and appropriated, or an appropriate 
 remedy must be provided, and an adequate fund whereby 
 and out of which he might obtain such compensation, 
 through the medium of courts of justice, if those whose 
 duty it was to make such compensation should refuse to 
 do it. In the ordinary case of lands taken for the 
 making of public highways, or for the use of the state 
 canals, such a remedy was provided, if the town, county, 
 or state officers refused to do their duty, in ascertaining, 
 raising, and paying such compensation, in the mode pre- 
 scribed by law ; the owner of the land had a remedy by 
 mandamus to compel them to perform their duty. In 
 such cases the public purse, or the property of the town 
 or county upon which the assessment was to be made, 
 might be justly considered an adequate fund : but when 
 it was left to future legislation, he would have no such 
 remedy against the legislature to compel the passage of 
 the necessary laws, either to ascertain the amount of 
 compensation he was to receive, or the fund out of 
 which he was to be paid. He also held that the citizen 
 whose property was thus taken from him without his 
 assent, was not bound to trust to the solvency of an in- 
 dividual, or even a corporation, for such compensa- 
 tion. (a) 
 
 § 323. When the case last cited was before the su- 
 preme court, (6) that court held, that the legislature 
 might authorize a rail road company, by their agents, 
 surveyors and engineers, to enter upon the lands of an 
 individual for the purpose of making a survey and ex- 
 aminations, so as to determine the most advantageous 
 
 (a) Bloodgood v. The Hudson and Mohawk R. R. Co., 18 Wend. 17. 
 
 (b) Bloodgood v. The Hudson and Mohawk R. R. Co., 14 \Veud. 51.
 
 476 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 route for the proper line or course whereon to construct 
 their road or way, previous to acquiring the title to lands 
 required for that purpose, or the assessment and pay- 
 ment of damages. It also held, that the company might 
 enter upon the land in like manner, previous to acquiring 
 title to the land, or having the damages appraised or 
 paying the same. The purchase of the land it held, was 
 a condition precedent to the vesting of the fee simple, 
 but not to the right to enter, and take possession and 
 use the land for the purposes of a rail road. But when 
 this case came under review in the court for the correc- 
 tion of errors, (a) that decision was overruled, and it was 
 decided that it was a condition precedent that the dama- 
 ges should be assessed and paid, before the company 
 had any right to enter upon and actually appropriate the 
 land for the purposes of a rail road. It was not to be 
 presumed the legislature intended, or that it meant to 
 authorize the company to enter upon the land of an in- 
 dividual, pull down his buildings and other erections, 
 before assessment and payment for the same ; or to leave 
 the individual to seek an uncertain remedy by action. 
 The decision above referred to, by the court of dernier 
 resort, settles the construction to be put upon this clause 
 in our constitution in this respect. 
 
 § 324. The constitution of Mississippi is explicit. 
 " The compensation shall be first made." Under the 
 provisions of that constitution it has been held, payment 
 is a condition precedent; such payment must precede 
 the seizure for public use. Hence an act which autho- 
 rized such seizure for public use without providing such 
 previous compensation was declared unconstitutional 
 and void. (b) 
 
 (a) 18 Wend. 9. 
 
 (b) Thompson v. Grand Gulf Rail Road and Banking Company, 3 How. 
 Miss. R. 240.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 477 
 
 § 325. The question lias frequently arisen, what use 
 of property, under this right of eminent domain, was to 
 be regarded as a public use. This question, as we nave 
 already seen, is not without embarrassment, as the line 
 of demarcation between a use that is public and one 
 that is strictly private is not easily drawn. One thing, 
 however, is certain, the necessities of the public for the 
 use to which the property is to be appropriated must 
 exist as the basis upon which the right is founded. 
 Hence it is, that where the property is wanted merely for 
 ornamental purposes, this right cannot be exercised, as 
 the purpose must be both necessary and useful.(a) It 
 must also be a public one. The reason why it must be. 
 a public and not a mere private one seems to be, that 
 the right itself is one founded upon the exigencies of the 
 public, which are paramount to private interest, and 
 upon the principle of an implied assent on the part of 
 those who hold property, that it shall yield to the 
 paramount demands of the public exigencies. But so 
 far as it regards private interest, and private rights, there 
 is no such implied assent, nor is there any such thiDg as 
 a preponderance in favor of a mere private right of one 
 citizen over the private right of another citizen, which 
 should turn the scale against the right of the one in favor 
 of the right of the other. Chancellor Walworth has, in 
 one case, recognized the doctrine, that the right of emi- 
 nent domain is founded upon the implied assent of the 
 citizen. He held, " it was no part of the contract be- 
 tween the crown and its grantees, or their assigns, that 
 the property should not be taken for public use upon 
 paying a just compensation, whenever the public interest 
 or necessities required it should be so taken. All sepa- 
 rate interest of individuals in property is held of the 
 
 («) Paterson, J., 12 Pick. 480.
 
 478 OP CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 government under this tacit agreement, or implied reser- 
 vation. Notwithstanding the grant to individuals, the 
 eminent domain, the highest and most exact idea of pro- 
 perty, remained in the government, or in the aggregate 
 body of the people, in their sovereign capacity, and they 
 had a right to resume the possession of the property in 
 the manner directed by the constitution and the laws of 
 the state whenever the public interest required it." It 
 was doubtless from the view of the non-existence of the 
 right to take private property for mere private purposes, 
 no provision was made in our written constitution pro- 
 viding for compensation in case private property should 
 be taken for private purposes. It has been justly said, 
 " if the right exists to take private property for private 
 purposes, it may, under our constitution, be exercised 
 without any reference to compensation." 
 
 § 326. That the use must be a public one has fre- 
 quently been recognized in the courts of this state, under 
 its former constitution, which provided, " private pro- 
 perty shall not be taken for public use without just com- 
 pensation." In Tke Matter of Albany Street,(a) it was 
 determined, that the corporation of New York had not 
 the power to take more of the land of an individual for 
 the purpose of a street than was actually required for 
 that purpose, and that an act relating to the city of New 
 York, which authorized the commissioners of assess- 
 ment and estimate to include in their assessment the 
 whole of a lot, when part only was required for the use 
 of a street, by means whereof the fee became vested in 
 the corporation, upon the confirmation of the report, was 
 unconstitutional, when such lands were taken without 
 the assent of the owner. Chief Justice Savage in that 
 case said, " If this provision was intended merely to give 
 
 (a) 11 Wend. 149.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 479 
 
 to the corporation capacity to take property under such 
 circumstances with the consent of the owner, and then 
 to dispose of the same, there can he no objection to it. 
 But if it be taken literally, that the commissioners may, 
 against the consent of the owner, take the whole lot, 
 when only a part is required for the public use, and the 
 residue to be applied to a private use, it assumes a power 
 which, with all respect, the legislature did not possess. 
 The constitution, by authorizing the appropriation of 
 private property to public use, impliedly declares, that 
 for any other purpose private property shall not be taken 
 from one and applied to the private use of another. It 
 is in violation of natural right, and if not in violation of 
 the letter of the constitution, it is of its spirit, and cannot 
 be supported. (a) 
 
 § 327. In the case of Bloodgood v. The Mohawk and 
 Hudson R. R. Co.,(b) a distinguished member of the 
 court for the correction of errors made a most clear, lucid, 
 and forcible argument on this question, which, as we 
 cannot abridge without impairing its force, we give at 
 length. " It has never been allowed to be a rightful at- 
 tribute of sovereignty in any government, professing to 
 be founded upon fixed laws, however despotic the form 
 of the government might be, to take the property of one 
 individual or subject, and bestow it upon another. The 
 possession and exertion of such a power would be in- 
 compatible with the nature and object of all govern- 
 ment ; for it being admitted that a chief end for which 
 government is instituted, is that every man may enjoy 
 his own ; it follows necessarily that the rightful exer- 
 tion of a power by the government of taking arbi- 
 trarily from any man what is his own for the pur- 
 
 (a) See also Dunn v. City Council, Harp. R. 189. 
 
 (b) 18 Wend. 56.
 
 480 OF CONSTITUTIONAL RESTRICTION [clIAP. IX. 
 
 pose of giving it to another, would subvert the very 
 foundation principle upon which the government was 
 organized, and resolve the political community into its 
 original chaotic elements. This power, therefore, in- 
 stead of being acknowledged, was expressly repu- 
 diated by the Roman law at the height of imperial 
 despotism ; so that even when the lives of subjects were 
 wantonly sacrificed by thousands at the remorseless bid- 
 dings of cruel and capricious tyrants, no idea seems to 
 have been entertained that they could, except by the in- 
 terposition of legal forms, transfer the property of one 
 subject to another. Even Hobbs, the most ingenious of 
 all advocates for the absolute powers of government, 
 does not go further with his doctrine on this point than 
 to say, that the property which a subject has in his 
 goods, consists not in a right to exclude the sovereign 
 from the use of them, but consists in a right to exclude 
 all other subjects from a use of them. But no approved 
 writer on public law will be found to go as far as Hobbs 
 in vindicating the unqualified right of the sovereign to 
 assume at will the property of the subject. Every other 
 writer is disposed to recognize a distinction between 
 right and power, as applied to sovereign and subject, and 
 to acknowledge that a rightful government must be 
 founded on some other principle than that ol* mere force. 
 Hence, an original compact, founded in the mutual ne- 
 cessities of the individuals about to constitute a political 
 community, is implied in all cases ; and the respective 
 rights of sovereign and subject are referred to this sup- 
 posed compact for their ascertainment. It follows, of 
 course, that as the terms of this compact are capable of 
 being shown only argumentatively, differences of opinion 
 will exist in regard to them. To avoid this difficulty is 
 one great purpose of written constitutions. But though 
 differences of opinion exist as to the extent of the prin- 
 ciple of the inviolability of private property, the secure
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 481 
 
 possession and undisturbed enjoyment of properly by in- 
 dividuals, is universally admitted to be the great cement 
 of the social compact, and every publicist therefore feels 
 the necessity of prescribing some safeguards for it against 
 the encroachments of the sovereign power. At the same 
 time all are ready to acknowledge it to be a principle of 
 the social compact, assented to by the original members 
 of it, that in public emergencies the right of individuals 
 over their property must yield to the superior necessi- 
 ties of the state. Whether this principle be denominated 
 the right of transcendental property, or of eminent do- 
 main ; or as is more properly called by Grotius, the force 
 of super-eminent dominion ; it means nothing more or 
 less than an inherent political right, founded on a com- 
 mon necessity and interest, of appropriating the property 
 of individual members of the community to the great 
 necessities of the whole community. This principle or 
 right does not rest, as supposed by some, upon the notion 
 that the state had an original and absolute ownership of 
 the whole property possessed by the individual members 
 of it, antecedent to their possession of it, and that their 
 possession and enjoyment being subsequently derived 
 from a grant by the sovereign, it is held subject to a tacit 
 agreement or implied reservation, that it may be resu- 
 med ; and all individual rights be extinguished by a 
 rightful exertion of sovereign power. Such a doctrine 
 is bringing the principles of the social system back to the 
 slavish theory of Hobbes, which, however plausible it 
 may be in regard to lands once held in absolute owner- 
 ship by the sovereignty, and directly granted by it to 
 individuals, is inconsistent with the fact that the security 
 of pre-existing right to their own property is the great 
 motive and object of individuals for associating into 
 governments. Besides, it will not apply at all to perso- 
 nal property, which in many cases is the entire creation 
 
 Gi
 
 482 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 of its individual owner ; and yet the principle of appro- 
 priating private property to public use is full as extensive 
 in regard to personal as to real property. But in what- 
 ever this principle is founded, the difficulty is not the 
 less in determining the limits that rightfully bound it. 
 On this point, the writers upon public law are not 
 agreed, nor is any one of them, that I have been able to 
 consult, satisfactory ; for, while all admit that the sove- 
 reign or transcendental propriety consists in the right 
 of taking the property of individuals for the necessities 
 of the state, no one succeeds in defining clearly the de- 
 gree of necessity that justifies the exertion of this right : 
 perhaps from the nature of the case, such a definition is 
 impracticable. Grotius(a) asserts that the power can 
 be exerted rightfully, not only in cases of extreme ne- 
 cessity, but for those of public utility, (ftd publicam utili- 
 tatum ;) while Puffendorf says, that " transcendental 
 propriety never takes place but in the extremities and 
 necessities of the commonwealth ;" and yet he quotes 
 from Bsecler what he says in his commentaries upon 
 Grotius, " that this necessity hath its different degrees, 
 and that it is not only in the last extremity this power 
 should be made use of," though Bsecler admits " that it 
 should not be extended too far, but should be reduced to 
 equity as nigh as possible." Bynkershoeck insists that 
 private property connot be taken on any terms without 
 the consent of the owner, for purposes of public orna- 
 ment or pleasure : and as Burlamague in his principles 
 of law(&) speaks of this right as not to be exercised, 
 " except in cases where it is absolutely necessary for 
 the public good ;" and again, (c) that " it takes place 
 only in case of necessities of state, which ought not to 
 
 (a) Lib. 3, ch. 20., sec. 7. (c) Page 130. 
 
 {b) Page 145.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 483 
 
 have too great an extent, but it should be tempered as 
 much as possible with the rules of equity." No doubt 
 it was in full view to the discordant opinions expressed 
 by writers on public law, in regard to the application of 
 the principles of super-eminent dominion, and with a 
 mature design of affording special and additional pro- 
 tection to the citizen against the exertion of it by the 
 government, that the framers of our national constitution 
 adopted the clause in question ; and it is reasonable to 
 presume, that from the same motives and for the same 
 object, it was transcribed literally from that instrument 
 into the constitution of this state. In both instruments 
 it is designed to be as well a limitation as a definition of 
 the right of the respective governments as sovereign po- 
 litical powers, to interfere with the otherwise absolute 
 right of the citizen, to the undisturbed possession and 
 enjoyment of his own property. It is therefore, I think, 
 to be construed in both cases as equivalent to a consti- 
 tutional declaration, that private property, without the 
 consent of the owner, shall be taken only for the public 
 use, and then only upon a just compensation. 
 
 § 328. In another case,(«) the doctrine was held, by 
 Justice Bronson, that private property could not be taken 
 for private use ; that the statutes of the state of New 
 York which authorized the laying out of a private road 
 over the lands of another, was unconstitutional. He 
 discussed in a very able manner the constitutionality of 
 such an act under our constitution, and as to what was 
 to be implied under the general grant, of legislative power 
 contained in the constitution. He held, under our con- 
 stitution, 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. We no where found 
 
 (a) Taylor v. Porter, 4 Hill, 140.
 
 484 OF CONSTITUTIONAL RESTRICTION [ciIAIMX. 
 
 a delegation of power to the legislature to take the pro- 
 perty of one and give it to another, either with or with- 
 out compensation. Only one clause in the constitution 
 could be cited in support of the power, and that was the 
 first section of the iirst article, which declared, " The 
 legislative power of this state shall be vested in a senate 
 and assembly." He admitted that the two houses, sub- 
 ject only to the qualified negative of the governor, pos- 
 sessed all the legislative power of the state. But the 
 question presented itself, what was that " legislative 
 power," and how far did it extend 1 He held, as we 
 have already had occasion to show in another chapter, 
 it did not reach the life, liberty, or property of a citizen, 
 who was not charged with a transgression of*the laws, 
 and when the sacrifice was not demanded by a just re- 
 gard for the public welfare. The security of life, liberty, 
 and property lay at the very foundation of the social 
 compact. To say that this grant of " legislative power," 
 included the right to attach private property, was equi- 
 valent to saying that the people had delegated to their 
 servants the power of defeating one of the great ends for 
 which the government was established. Without one 
 word of qualification in the whole instrument, he should 
 feel great difficulty in bringing his mind to the conclusion 
 that the clause he then had under consideration had 
 clothed the legislature with despotic power. That such 
 would be the extent of their authority if they could take 
 the property of one citizen and give it to another, either 
 with or without compensation. He also held, in that 
 case, that this question under our then constitution did 
 not necessarily turn on the section granting legislative 
 power. But that it also contained negative words under 
 the clause, " no member of the state shall be disfran- 
 chised, or deprived of any of the rights or privileges se- 
 cured to any citizen thereof, unless by the law of the 
 land or the judgment of his peers. That the meaning
 
 CHAP. IX.] UPON LEGISLATIVE POWftl. 485 
 
 of this section was, that no member of this state should 
 be disfranchised or deprived of his right or privileges, 
 unless the matter should be adjudged against him, upon 
 trial had according to the course of the common law. 
 That it must be ascertained judicially that he had for- 
 feited his privileges, or that some one else had a superior 
 title to his property, before either of them could be taken 
 from him. It could not be done by legislation. If there 
 was any doubt, the remaining clause was decisive. The 
 whole clause when read together, if it did not amount to 
 a direct prohibition against taking the property of one 
 and giving it to another, it contained at least an implica- 
 tion too strong to be resisted, that such an act cannot be 
 done. That such trial or judgment was not necessary 
 in exercising the right of eminent domain. For when 
 private property was taken for public use the oidy re- 
 striction was, that just compensation shall be made to 
 the owner. 
 
 § 329. Chancellor Walworth has held.(rt) the right of 
 eminent domain did not imply a right in the sovereign 
 power to take the property of one citizen and transfer it 
 to another, even for a full compensation, where the pub- 
 lic interest would in no way be promoted by such trans- 
 fer, and if the legislature should attempt thus to transfer 
 the property of one individual to another, where there 
 could be no pretence of benefit to the public by such ex- 
 change, it would probably be a violation of the contract 
 by which the land was granted by the government to 
 the individual, or to those under whom he claimed title, 
 and thus be repugnant to the constitution of the United 
 States. In a subsequent case,(6) he reiterated the same 
 views, and said, " it is not pretended, that even under 
 the arbitrary government of the Roman emperors it was 
 
 (a) Beekman v. Saratoga and Schenectady Rail Road Co., 3 Paige, 73. 
 (£) Vanck v. Smith, 5 Paige, 159.
 
 486 OF CONSTITUTIONAL RESTRICTION [CIIAP. IX. 
 
 lawful or justifiable for the sovereign to take the pro- 
 perty of one citizen and give it to another, where the 
 public interest was not concerned in such transfer."(«) 
 
 § 330. Mr. Thomas, in his treatise,(6) while he ad- 
 mits the general right of the sovereign power to control 
 or dispose of private property, paying a just compensa- 
 tion therefor, and to regulate and control the enjoyment 
 of things before existing in common, considers a cause- 
 less or corrupt limitation of pre-existing rights as an 
 abuse of the power. The chancellor, in the case last 
 cited, says, " Perhaps in England, where the power of 
 parliament is said to be omnipotent, so far as the exer- 
 cise 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 the three estates of the realm. But in 
 a state which is governed by a written constitution, 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 another, where there was no 
 foundation for a pretence that the public was to be be- 
 nefitted thereby, he should not hesitate to declare that 
 such an act was 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 legislature." Thus, in this state, it 
 may be regarded as well settled that private property 
 cannot be taken for any other than a public use, either 
 with or without compensation, and that it cannot be 
 taken even for such public use, without such compensa- 
 tion is actually secured to the owner, before it is taken 
 and appropriated to such use.(c) 
 
 (a) Domat's Civil Law, b. 1, tit. 2, sec. 12. 
 
 (b) Thomas's Universal Jurisprudence, 171. 
 
 (c) See also Case v. Thompson, 6 Wend. 634. Day v. Stetson, 8 Green- 
 leaf. 365.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 487 
 
 § 331. A special act of the legislature in each particu- 
 lar case is not necessary to the exercise of the power of 
 eminent domain ; but it may be exercised through the 
 action of general laws and judicial tribunals. («) In the 
 case last cited, it was contended that the power to take 
 by eminent domain could not be transferred to any sub- 
 ordinate agent, but must be exercised by the state itself. 
 In answer to this objection Parker, Ch. J., said, "That 
 the argument seemed to be, that each individual exer- 
 cise of the power must be by a legislative act. No 
 authority was cited in support of this proposition, and it 
 certainly was in conflict with the practice of the govern- 
 ment from its first institution, and, it was believed, with 
 that of all others in the United States. As early as 
 1639, the colony of Massachusetts Bay made provision 
 for laying out highways, through the advice of the court 
 of the county, and the appointment by such courts of in- 
 dividuals for that purpose.(6) In 1641 and 1642, the 
 inhabitants of the settlements then existing in New 
 Hampshire united themselves to the Massachusetts col- 
 ony. On the separation in 1680, and the organization 
 of a provincial government there, it was enacted by the 
 assembly that the laws they had been formerly governed 
 by should be the rule in judicial proceedings, so far as 
 they would suit our constitution, and not repugnant to 
 the laws of England, and until others were legally pub- 
 lished. And in 1719 an act was passed by which the 
 courts of quarter sessions were empowered to appoint 
 committees to lay out highways.(c) Similar provisions, 
 authorizing courts of the counties to exercise a jurisdic- 
 tion for this purpose, had been enacted, and acted upon, 
 without any question respecting their constitutionality, 
 
 (a) Backus v. Lebanon, II N. H. R. 19. 
 {b) Charter and Colony Laws, 26. 
 (c) Pro?. Laws, 153.
 
 488 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 until the present time. It would require very strong 
 reasons to authorize breaking in upon and condemning 
 this continued practice of two centuries. But none had 
 been suggested, and none presented themselves to the 
 court. If the power of eminent domain was exercised 
 through the action of general laws and judicial tribunals, 
 there was probably as little danger to be apprehended 
 from its abuse as in any mode which could be devised.'' 
 
 § 332. In Massachusetts the question has arisen as to 
 the character of property taken for a public use, which 
 would entitle the owner to the protection secured to pri- 
 vate property, under the constitution. It has been held, 
 that the provision in the tenth article of the declaration 
 of rights, " that whenever the public exigencies require 
 that the property of an individual should be appropriated 
 to public uses, he shall receive a reasonable compensa- 
 tion therefor," does not extend to the case of an indirect 
 or consequential damage or expense, by means of the 
 right use of property already belonging to the public; 
 but was confined to cases where there was a direct ap- 
 propriation of the property of individuals, by virtue of 
 legislative acts, to public uses. (a) 
 
 § 333. In another case,(6) it was held, that the diver- 
 sion of tolls from an old bridge or turnpike, by granting 
 a new one, was such consequential damage, was not 
 the taking of private property for public use, within the 
 provision of the constitution requiring compensation to 
 be made in such cases. In the case of The Piscataqua 
 Bridge v. JVeio Hampshire Bridgc,(c) it was decided, that 
 the exclusive grant of a bridge gave to the grantee a 
 franchise, and the legislature could not authorize the 
 erection of another bridge within the same limits, with- 
 
 \a) Cullender v. Marsh, 1 Pick. 418. 
 
 (b) Charles River Bridge v. Warren Bridge, 7 Pick. 344. 
 
 (c) 7 N. II. R. 35.
 
 CHAP. IX.] I ro.\ LEGISLATIVE POWEB. 4&'J 
 
 out provision for compensation to the first grantee. But 
 that .such franchise was property, and another grant to 
 build another bridge within the same limits might after- 
 wards be made if compensation be provided. But that 
 it was not, however, sufficient to authorize the erection 
 of such other bridge that the grantee might obtain com- 
 pensation by action for the wrong done in erecting it, 
 when no provision for compensation had been made in 
 the second grant. 
 
 § 334. In Edwards v. Popc,(a) it was held, that where 
 an act authorizing a sale instead of partition, gave the 
 commissioners authority to lay out the property into lots 
 and streets, and declared such streets when thus laid 
 out, public streets and highways, was not such a taking 
 of private property for public use as to require that com- 
 pensation should be made. That this was done to en- 
 hance the value of the other property, and for the benefit 
 of the owners. The court held, by every rule of inter- 
 pretation applicable to this act, it could not resist the con- 
 clusion, that all these proceedings were intended to 
 enhance the interest of the proprietors. The state was 
 not seeking to take private property for public use. It 
 neither needed, asked, or required a public highway 
 there. The act declared the streets public, not because 
 it wanted one, but to secure by this, public easement 
 and increased competition and value to the lots. It was 
 clear and manifest, that the intention of the parties and 
 the legislature was to enable the parties, by petition, 
 through the order of the court and the action of the com- 
 missioners, to lay off the land into lots and streets ; but 
 because the proprietors might at any time resume their 
 rights to the fee of the streets, to the injury of the pur- 
 
 (a) o Scam. II. 471. 
 
 62
 
 490 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 chaser of lots, which would prevent their sale at a fair 
 value, the commissioners were empowered to record a 
 plat, and when so recorded the streets were declared 
 public highways. This but empowered the parties to 
 do that for themselves which they could not do by rea- 
 son of infancy, they not being known, or being non- 
 residents. 
 
 § 335. We have said the most difficult question which 
 has arisen under such restrictive clauses in the constitu- 
 tion is, as to what use of property is to be regarded as a 
 public use, so as to justify the taking of it, upon com- 
 pensation being made. Upon this question there has 
 been a great conflict of opinion. We shall not under- 
 take to discuss, in this connection, the accuracy or inac- 
 curacy in our judgment of the decisions that have been 
 made on this point. Although we regard many of them 
 as unauthorized by any fair construction, and cannot but 
 believe that the constitution, in many of the decisions 
 wiiich have been made on this point, has been forced to 
 yield to the overpowering influence of private interest 
 and popular clamor. The views which we have hereto- 
 fore expressed would not give sanction to many of 
 them. 
 
 § 336. In Tennessee it has been held, that the legisla- 
 ture might make grist mills public mills, and authorize 
 the court to condemn the lands of individuals for the use 
 of such mills, providing a compensation for such lands.(a) 
 In Massachusetts it has been held, that the construction 
 of dams by a corporation, for obtaining a head and fall 
 of the waters of a navigable arm of the sea, and working 
 mills, and also for providing a toll road over the dams, 
 was such a public enterprise as authorized the legislature 
 to appropriate private property thereto.(6) 
 
 (a) Harding v. Goodlel, 3 Yerg. 41. 
 
 (f>) Boston and Roxbury Mill Dam Co. v. Newman, 12 Pick. 467.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 491 
 
 § 337. In Maine it has been also held, that a private 
 fishery might be taken, opened and improved for the 
 benefit of the inhabitants further up the stream, and that 
 such taking was for the public use, and that although 
 the emoluments of the improved fishery were granted to 
 two towns. The decision in that case was placed upon 
 the ground, that the public had an interest in the pre- 
 servation and regulation of the fishery, and in the remo- 
 val of the obstructions by which it might be impaired. 
 In Alabama it has been held, that the legislature might 
 authorize a corporation to take private property for the 
 site of a bridge and for the purpose of making a passage 
 thereto, and that such use was a public use. (a) 
 
 § 338. In Vermont and New Hampshire it has been 
 held, that the easement or franchises of a turnpike corpo- 
 ration, might be taken when necessary for a public high- 
 way.^;) It has also been held, that the power of emi- 
 nent domain in taking the property and franchises of a 
 corporation for a public use, might be exercised notwith- 
 standing that the charter of the corporation contained a 
 provision that the legislature might purchase the property 
 at a certain price. (c) It was contended in the case last 
 cited, that the state having made provision by which 
 the state might acquire the property on certain terms, 
 the right of eminent domain was strictly provided for, 
 and could not be exercised in any other mode. But the 
 court held, that did not by any means prove that the 
 right of eminent domain was thereby surrendered, even 
 if the legislature might be supposed to possess the power 
 to make such a surrender. The act provided a mode by 
 
 (a) Dyer v. The Tuscaloosa Bridge Co., 2 Porter, 296. 
 
 (b) Armington v. Barnett, 15 Vt. R. 745. Pierce v. Somersworth, 10 N. 
 H. R. 369. See also, Piscalaqua Bridge v. New Hampshire Bridge, 7 N. 
 H. R. 35. Backus v. Lebanon, 11 id. 19. 
 
 (c) Backus v. Lebanon, 11 N. H. R. 19.
 
 492 OF CONSTITUTIONAL RESTRICTI0N [c»AP. TX. 
 
 which the government might, after a certain period, 
 come into possession of all the property of the corpora- 
 tion ; and a mode which would not have existed, but for 
 the provision in the charter itself. But that this reser- 
 vation did not seem to imply, in any manner, a relin- 
 quishment of any right by which the property of a cor- 
 poration, or a part of it, might be taken for public use. 
 That if the legislature should grant land to an individual 
 in fee, with a reservation of a right, at the expiration of 
 a term of years, to resume the property granted upon 
 the repayment of the purchase money, with interest, that 
 could not be construed as implying that a public high- 
 way should not be laid through it in the ordinary exer- 
 cise of the power of eminent domain. And the principle 
 would be the same, if the tract was of such a shape and 
 character that the whole of it was afterwards required 
 by the public exigencies. 
 
 § 339. The doctrine has also been usually conceded, 
 that private property may be taken for the purpose of 
 constructing turnpike roads by turnpike corporations, and 
 that land thus taken is taken for public use ; and so 
 as it regards canals, ferries, wharves and basins, and for 
 the purpose of draining swamps, &c, and carrying water 
 to cities. In the state of New York, the court for the 
 correction of errors have sanctioned the doctrine, that 
 the legislature of the state has the constitutional power 
 to authorize the taking of private property for the pur- 
 pose of making a rail road, or other public improvement 
 of like nature ; whether such improvement be made by 
 the state itself, or through the medium of a corporation 
 or joint-stock company. (a) 
 
 § 340. Chancellor Walworth, in the case of Beekman 
 
 {a) Bloodgood v. The Mohaxoh and Hudson R. R. Co., 18 Wend. 9.
 
 CHAP. IX.] UPON LEGISLATIVE POWERt H> : > 
 
 v. The Saratoga and Schenectady Rail Road Chmpcmyfa) 
 first decided this question in this state. His decision in 
 that case was placed on the ground, that if the public 
 interest could in any way be promoted by the taking of 
 private property, it must rest in the wisdom of the legis- 
 lature to determine whether the benefit to the public 
 will be of sufficient importance to render it expedient for 
 them to exercise the right of eminent domain, and to 
 authorize an interference with private rights for that 
 purpose. That it was upon this principle that the legis- 
 lature of the several states had authorized the condem- 
 nation of the lands of individuals for mill sites, where, 
 from the nature of the country, such mill sites could not 
 be obtained for the accommodation of the inhabitants 
 without overflowing lands thus condemned. That upon 
 the same principle of public benefit, not only the agents 
 of the government, but also individuals and corporate 
 bodies, had been authorized to take private property for 
 the purpose of making public highways, turnpike roads, 
 and canals, of erecting and constructing wharves and 
 basins ; of establishing ferries, of draining swamps and 
 marshes, and of bringing water to cities and villages. 
 That in all such cases the object of the legislative grant 
 of power, was the public benefit derived from the con- 
 templated improvement, whether such improvement was 
 to be effected directly by the agents of the government, 
 or through the medium of corporate bodies or of indi- 
 vidual enterprise. In answer to the objection that a rail 
 road differed from other public improvements, and par- 
 ticularly from turnpikes and canals, because travellers 
 could not use it with their own carriages and horses, 
 and that farmers could not transport their produce in 
 their own vehicles ; and that the company in this case 
 
 (a) 3 Paige, 73.
 
 494 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 were under no obligations to accommodate the public 
 with transportation ; and that they were unlimited in 
 the amount of toll which they were authorized to take ; 
 he held, that if the making of a rail road would enable 
 the traveller to go from one place to another without the 
 expense of a carriage and horses, he derived a greater 
 benefit from the improvement tiian if he was compelled 
 to travel with his own conveyance over a turnpike road 
 at the same expense. And if a mode of conveyance 
 had been discovered by which the farmer could procure 
 his produce to be transported to market at half the ex- 
 pense which it would cost him to carry it there with his 
 own wagon and horses, there was no reason why the 
 public should not enjoy the benefit of the discovery ; and 
 if an individual was so unreasonable as to refuse to have 
 the rail road made through his lands, for a fair compen- 
 sation, the legislature might lawfully appropriate a por- 
 tion of his property for the public benefit, or might 
 authorize an individual, or a corporation, thus to appro- 
 priate it, upon paying a just compensation to the owner 
 of the land for the damages sustained. The objection 
 that the corporation was under no legal obligation to 
 transport produce or passengers upon the road, was un- 
 founded in fact. The privilege of making a road, and 
 taking tolls thereon, was a franchise, as much as the 
 establishment of a ferry, or a public wharf, and taking 
 tolls for the use of the same. The public had an inte- 
 rest in the use of the rail road, and the owners might be 
 prosecuted for the damages sustained, if they should re- 
 fuse to transport an individual or his property, without 
 any reasonable excuse, upon being paid the usual rate of 
 fare.(a) The legislature might also, from time to time, 
 
 («) With all due deference to the learned Chancellor, we cannot assent to 
 the entire accuracy of this last proposition. The rule of law he there lays 
 down is one applicable to common carriers : in regard to them, it is a strictly
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 495 
 
 regulate the use of the franchise, and limit the amount 
 of tolls which it should be lawful to take, in the same 
 manner as they might regulate the amount of tolls to be 
 taken at a ferry, or for grinding at a mill, unless they 
 had deprived themselves of that power by a legislative 
 contract with the owners of the road." The principles 
 thus laid down have in this state received the judicial 
 sanction of our court of dernier resort, and may now be 
 considered as engrafted upon the constitutional power of 
 the legislative department. Although we cannot but 
 regard the decision in this case, and also that in the case 
 of a mill, as antagonistical to the letter and spirit of this 
 clause in the constitution, and should, were it now to be 
 regarded as an open question, coincide with the clear, 
 and to our mind conclusive, view of this question taken 
 by Senator Tracy in the case of Bloodgood v. The Mo- 
 hawk and Hudson Rail Road Company. (a) 
 
 § 341. In Massachusetts it has been held that an act 
 of the legislature authorizing the building of a bridge 
 over navigable water, within the bounds of the common- 
 wealth, was constitutional. In answer to the objection, 
 that this grant was made upon the petition and for the 
 sole benefit of individuals, and was not needed for the 
 accommodation of the public, it was said, in all cases the 
 
 correct legal proposition. The mere act of acceptance of the franchise 
 granted, does not constitute such a corporation common carriers ; nor does it 
 impose upon it any of the duties of common carriers ; until it shall in fact be- 
 come such by some subsequent act, this rule of law has no application to it. 
 Whether it ever shall have any application depends on the mere volition 
 of a soulless corporation, and its subsequent election not to assume any such 
 obligation, might defeat this principle from ever having any application to it ; 
 for that election may not be made until years after private property has been 
 seized, entered upon, and used by the corporation, and the citizen dispossessed 
 — and then it may elect never to assume the responsibilities of common car- 
 riers ; and in that event this principle of law would never have any applica- 
 tion to such a corporation. 
 (a) 18 Wend. 17.
 
 I!H) OK CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 legislature had the power to inquire whether the public 
 convenience and necessity demanded partial obstructions 
 and interruptions to navigation, and upon what terms 
 and conditions they might be established. It was true 
 that the leading motives of the defendants in erecting 
 the bridge was private profit. And so almost all other 
 enterprises, many of which had resulted in great public 
 improvement, had originated in motives of private gain. 
 It was also true that others, as well as the proprietors 
 might have occasion to go upon the Island ; for such the 
 bridge was an accommodation. Whether so many were 
 thus accommodated, that it might be said to be of com- 
 mon convenience, was a question which it was the 
 province of the legislature to determine, and which 
 might be presumed had been correctly determined. (a) 
 
 § 342. In Pennsylvania in the case of Philadelphia v. 
 The Trenton Bail Road Company, (p) it was held that 
 the provision in the constitution of that state, that pri- 
 vate property should not be taken for public use with- 
 out just compensation, did not prohibit the legislature 
 from grauting to a rail road company the privilege of 
 laying rails on and using a public street in a city or town 
 for the purpose of a rail road. Mr. Justice Rogers, in 
 another case, says : " It cannot be denied that the legis- 
 lature have the power to authorize the taking of private 
 property for the public streets, upon making just com- 
 pensation. The right of resumption not only results from 
 the right of eminent domain, but it is recognized in the 
 constitution of this state with this statutory reservation, 
 that the property of the citizen shall not be taken and 
 applied to public use, without just compensation being 
 made. With this restriction, it may be exercised not 
 
 (a) The Commonwealth v. Breed, 1 Pick. R. 463. 
 (A) 6 Whart. 25.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 497 
 
 only when the safety, but also when the interest or ex- 
 pediency of the state is concerned ; or where lands of 
 an individual are wanted for a road, street, canal, rail 
 road, or other public improvement."(a) 
 
 § 343. In another case the constitutionality of an act 
 taking private property for the purpose of a rail road 
 came directly in question.(^) In that case Chief Justice 
 Gibson said, " the most material point in the cause is, 
 that which involves the constitutionality of the statute 
 on which the defendant's right is founded ; but it is one 
 about which little need be said. If there is an appear- 
 ance of solidity in any part of the argument, it is that 
 the legislature have not power to authorize an applica- 
 tion of another's property to private purposes, even on 
 compensation being made, because there is no express 
 constitutional • affirmance of such a power. But who 
 can point out an express constitutional disaffirmance of 
 it ? The clause by which it is declared that no man's 
 property shall be taken, or applied to public use, without 
 the consent of his representatives, and without just com- 
 pensation made, is a disabling, not an enabling one ; and 
 the right would have existed in full force without it. 
 Whether the power was only partially restrained, for a 
 reason similar to that which induced an ancient lawgiver 
 to annex no penalty to parricide, or whether it was 
 thought there would be no temptation to the act of tak- 
 ing the property of an individual for another's use, it 
 seems clear, that there is nothing in the constitution to 
 prevent it ; and the practice of the legislature has been 
 in accordance with the principle, of which the applica- 
 tion of another's ground to the purposes of a private 
 
 (a) McMaster v. The Commonwealth, 3 Watts' R. 2 ( J4. 
 
 (b) Harvey v. Thomas, 10 Watts' R. 66. 
 
 63
 
 498 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 way is a pregnant proof. It is true, that the title of the 
 owner is not divested by it ; but, in the language of the 
 constitution, the ground is nevertheless " applied" to pri- 
 vate use. It is also true, that it has usually, perhaps 
 always, been so applied on compensation made ; but this 
 has been done from a sense of justice, and not of consti- 
 tutional obligation. But as in the case of the statute for 
 compromising the dispute for the Connecticut claimants, 
 under which the property of one man was taken from 
 him and given to another, for the sake of peace ; the 
 end to be attained by this lateral rail road law is the 
 public prosperity. Pennsylvania has an incalculable in- 
 terest in her coal mines ; nor will it be alleged that the 
 incorporation of rail road companies, for the development 
 of her resources, in this or any other particular, would 
 not be a measure of public utility; and it surely will not 
 be imagined that a private right given to an artificial 
 person, would be less constitutional than if given to a 
 natural one." 
 
 § 344. In Massachusetts it has also been held, that 
 where a corporation was empowered to build a dam over 
 an arm of the sea, and construct a basin, and to have 
 the use of lands for certain purposes, that it was within 
 the constitutional power of the legislature to authorize a 
 rail road corporation to construct their road across the 
 basin, making compensation to the corporation whose 
 property was thus used. That the grant of this autho- 
 rity to the rail road corporation could not be considered 
 as annulling or destroying the franchise granted to the 
 other corporation. That the right of the latter constituted 
 an interest and qualified property therein no greater nor 
 of a different nature than a grant of land in fee, and 
 hence did not necessarily withdraw it from a liability to 
 which all lands in the commonwealth were subject, to 
 be taken for the public use for an equivalent, whenever, 
 in the opinion of the legislature, the public exigency re-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 499 
 
 quired it; and that the effect of the rail road act was 
 merely to appropriate to another and distinct public use 
 a portion of the lands over which the former franchise 
 was to be used ; and that if the whole franchise should 
 become necessary for the public use, the right of eminent 
 domain would authorize the legislature to take it, on 
 payment of a full equivalent. This case seems to have 
 taken it for granted, that this use of the property by the 
 rail road corporation was a public use.(«) 
 
 § 345. Chief Justice Shaw, in the case last cited, said, 
 u It is difficult, perhaps impossible, to lay down any 
 general rule that would precisely define the power of 
 the government, in the exercise of the acknowledged right 
 of eminent domain. It must be large and liberal, so as 
 to meet the public exigencies, and it must be so limited 
 and restrained, as to secure effectually the rights of the 
 citizen. It must depend, in some instances, upon the 
 nature of the exigencies as they arise, and the circum- 
 stances of particular cases. In the present case, the 
 court are all of the opinion, that the rights of the plain- 
 tiffs in the land of the fall and receiving basin, are not of 
 such a character as to exclude the authority of the legis- 
 lature from taking a small portion of it, for laying out a 
 rail road, it being for another and distinct public use, 
 not interfering with the franchise of the plaintiff." 
 
 § 346. Having considered the qualified restrictions 
 upon legislative power under the heads above stated, we 
 shall proceed, in the next place, to the consideration of 
 those of an absolute character. Some of the state con- 
 stitutions, for instance that of Maine, prohibits the pas- 
 sage of bills of attainder, ex post facto laws, or laws im- 
 pairing the obligation of a contract ; and in others, that 
 
 (a) Boston Water Power Company v. Boston and Worcester Rail Road 
 Company, 23 Pick. R. 360.
 
 500 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 of New Hampshire for instance, that no retrospective 
 law shall be made. We have already considered in the 
 preceding chapter what are bills of attainder, ex post facto 
 laws, and what laws have or have not been considered 
 as impairing the obligation of a contract. Such deci- 
 sions and definitions apply with equal force to all pro- 
 visions of a similar character in the respective state 
 constitutions; hence, we shall omit in this connection 
 any further consideration of them. 
 
 § 347. The constitutions of several of the states de- 
 clare substantially, that the government shall be vested 
 in three departments, the legislative, executive, and ju- 
 dicial ; and contain provisions that neither of those de- 
 partments shall exercise any power properly belonging 
 to the other. The question has arisen, whether particu- 
 lar acts of the legislature were not unconstitutional, on 
 the ground of conflict with such provisions. In order to 
 a correct determination of this question, the line of de- 
 marcation between an act legislative, and one that is 
 executive or judicial, must be kept distinctly in view. 
 If an act of the legislature in terms judicially determines 
 a question of right or of property, as the basis upon 
 which the act is founded, so far the act must be regarded 
 as a judicial act, and repugnant to the constitution. But 
 if the act simply authorizes the doing of an act with the 
 view of attaining a given end, or accomplishing a par- 
 ticular result, without any determination of the fact of 
 the existence of that which secures to a party a right to 
 the fruits of the act ; such an act is not liable to this 
 constitutional objection. In accordance with this prin- 
 ciple, it has been held, that an act of the legislature 
 which authorized A to sell so much of the lands of a 
 deceased person as would be sufficient to raise a specific 
 sum, together with interest and costs, and directing that 
 the proceeds should be applied to the extinguishment of 
 the claims of A and B against the estate of the deceased.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 501 
 
 for monies advanced and liabilities incurred by them, on 
 account of the estate, was unconstitutional, on the 
 ground that it was a judicial determination of the fact 
 that the estate was indebted to A and B, for monies 
 advanced and liabilities incurred on account of the 
 estate, («) 
 
 § 348. On the same principle it has been decided, 
 that an act of the legislature which directed among 
 other things, the assignment of dower to a widow by 
 certain commissioners, so far as it was a judicial deter- 
 mination that she was entitled to dower, was null and 
 void, on the ground that the legislature had no power to 
 inquire into, or ascertain and determine her rights in the 
 premises. (b) An act of the legislature granting a di- 
 vorce, and directing payment by the husband of a given 
 sum for alimony, so far as it granted alimony has been 
 considered a judicial act, and on that account unconsti- 
 tutional. (c) This decision held, that although in the 
 state of Maryland the granting of a divorce had been 
 and might be performed by the legislature, yet that sec- 
 tion which directed alimony, was an exercise of judicial 
 powers. The granting of alimony was within judicial 
 cognizance. Under the 6th section of the bill of rights, 
 it was declared, " That the legislative and judicial powers 
 of government ought to be forever separate and distinct 
 from each other." This political maxim had made its 
 appearance in some form in all the state constitutions 
 framed about the time of the war of the revolution, and 
 was said to have been borrowed from Montesquieu. (c/) In 
 whatever terms it had been adopted, in none of the consti- 
 tutions had the judiciary and legislative departments been 
 
 (a) Lane v. Dorman, 3 Scam. R. 240. 
 
 (b) Edwards v. Pope, 3 Scam. R. 465. 
 
 (c) Crane v. Megnis, 1 Gill. & John. R. 475. 
 
 (d) Spirit of Laws, vol. i. j>. 181.
 
 502 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 kept wholly separate and unmixed. In some the executive 
 was appointed by the legislature, and the judiciary by 
 the executive. In others, the powers of the several de- 
 partments were still more blended and mingled together. 
 It seemed to have been the intention to have engrafted 
 this invaluable maxim of political science on their re- 
 spective systems, only so far as comported with free 
 government, and to prohibit the exercise by one depart- 
 ment of the power of another department, or to confine 
 each department to the exclusive exercise of its own 
 powers. This idea had been admirably expressed in the 
 constitution of Massachusetts, " The legislative depart- 
 ment shall never exercise the executive and judicial 
 powers, or either of them ; the executive shall never 
 exercise the legislative and judicial powers, or either of 
 them ; and the judiciary shall never exercise the execu- 
 tive and legislative powers, or either of them." The 
 inhibition went to the practical exercise of powers con- 
 ferred by the constitution, and to be used after it was in 
 operation, and did not apply simply to the original dis- 
 tribution of powers among the departments of govern- 
 ment. It was in the same sense, this 6th article in the 
 bill of rights should be construed, which had the same 
 object in view as the constitution of Massachusetts, al- 
 though somewhat different terms were employed to 
 express it. The one imitated the language, the other 
 dived into and expressed the meaning of the venerated 
 author from whom they both copied. Their common 
 purpose was to confine in practice the action of each 
 department to its own appropriate sphere, forbidding it 
 the use of powers allotted to the co-ordinate depart- 
 ments. That the act in question was the exercise by 
 the legislature of judicial powers, and hence repugnant 
 to the constitution. 
 
 § 349. In Tennessee an act of the legislature, passed 
 upon the application of the guardian of the infant heirs
 
 CHAP. IX.] UPON LEGISLATIVE POWEI!. 503 
 
 of a deceased ancestor, with the approbation of the 
 minors, authorizing the guardian to sell certain lands of 
 which the ancestor died seised, and declaring the pro- 
 ceeds assets, was declared unconstitutional and void, for 
 the reason it was not the exercise of legislative power, 
 but one of a judicial nature. It was said it did not par- 
 take of the character of a law, as it formed no rule of 
 action of that uniform and universal character which 
 Blackstone in his commentaries had said constitutes the 
 fundamental principle of a municipal law. It was but 
 a judicial decree enacted upon the avowed ground, that 
 the estate of the ancestor was indebted. It adjudged 
 the existence of debts, and decreed the land to be sold 
 for their payment. Although it was in the form of a 
 law, it did not differ in substance from a judicial decree. 
 If in substance a judicial decree, the form in which the 
 makers had thought fit to clothe it, could not alter its 
 character.(a) 
 
 § 350. In New Hampshire a question was submitted 
 to the judges, whether the legislature could authorize a 
 guardian of minors, by a special act or resolve, to make 
 a valid conveyance of the real estate of his wards? 
 They expressed a decisive opinion against the exercise 
 of such a power. Their decision was placed on the 
 ground, that the exercise of such a power by the legisla- 
 ture was, in its nature, both legislative and judicial. It 
 was the province of the legislature to prescribe the rule 
 of law, but to apply it to particular cases was the busi- 
 ness of courts of law. The 38th article of the bill of 
 rights of that state declared, that " In the government 
 of this state, the three essential powers thereof, to wit : 
 the legislative, executive, and judicial, ought to be kept 
 as separate from, and independent of, each other, as the 
 
 (a) Jones v. Perry, 10 Yerger's R. 59. 
 
 V
 
 504 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 nature of a free government will admit, or as is con- 
 sistent with that chain of connection that binds the 
 whole fabric of the constitution in one indissoluble bond 
 of union and amity." The exercise of such a power 
 could never be necessary. By the existing laws of that 
 state, Judges of Probate had very extensive jurisdiction 
 to license the sale of the real estate of minors by their 
 guardians. • If the jurisdiction of that court was not 
 sufficiently extensive to reach all proper cases, it might 
 be a good reason why that jurisdiction should be ex- 
 tended, but could hardly be deemed a sufficient reason 
 for a particular interposition of the legislature in an in- 
 dividual case. If it was fit and proper that a license 
 should be given to one guardian, under particular cir- 
 cumstances, to sell the estate of his ward, it was fit and 
 proper that all guardians should, under similar circum- 
 stances, have the same license. Such was the spirit and 
 genius of their institutions. That an act of the legisla- 
 ture to authorize the sale of a particular minor's estate, 
 by his guardian, could not be reconciled with the spirit 
 of the article in the bill of rights, above cited. (a) This 
 case may, perhaps, be regarded as in conflict with the 
 decisions in other states. 
 
 § 351. Where a legislative act does not in any manner 
 determine any matter of fact, or of right, dependent upon 
 matters of fact, such an act is not liable to an objection 
 that it is the exercise of judicial powers; this principle 
 has been recognized in many adjudged cases. In accor- 
 dance with it, it has been held, an act of the legislature 
 may be constitutionally passed which authorizes the sale 
 of the estate of a deceased person for the payment of his 
 debts generally, without any determination of the fact 
 of, or the extent of such indebtedness, to any particular 
 
 (a) Opinion of Judge, 4 N. H. R. 572.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 505 
 
 person. This doctrine was affirmed by the federal court 
 in the case of Watkins v. Holnum.^a) The same doc- 
 trine has been held by several of the state courts. (/>) 
 The case of Watkins v. Holman was placed on the dis- 
 tinct ground, that the act was remedial ; it contained no 
 other features. An authority was given to the adminis- 
 trators to sell, in a particular manner, the property of 
 an intestate, for the payment of his debts. It did not 
 determine the amount of debts, nor to whom they were 
 payable. It was proved the estate was insolvent. It 
 was in conformity to the settled policy of the state which 
 had passed the act in question, to apply the real estate 
 of a deceased person in payment of his debts. The case 
 then under consideration was one where the administra- 
 tor resided in Massachusetts, and was desirous of selling 
 the estate through an attorney, which did not come with- 
 in the general act on that subject, and hence the neces- 
 sity of a special act. This act, although special, did not 
 in principle differ from the general law on the same sub- 
 ject, which was passed with knowledge on the part of 
 the legislature, of its expediency and necessity. The 
 special act was passed from a knowledge of its proprietv 
 in the particular case. The general law had pointed 
 out a particular mode of procedure. That mode was 
 required by the legislature from motives of expediency ; 
 but it by no means followed, that it was the only mode 
 they could adopt. This was a question of power and 
 not of policy, and on such a question the court could 
 not test the act by any considerations of expediency. 
 As it regarded the question of power in the legislature, 
 no objection was perceived to their subjecting the lands 
 of the deceased to the payment of his debts, to the ex- 
 
 fa) 16 Peters 1 R. 59. 
 
 (A) Kirby v. ChdwoocTs Adm'rs., i Monroe R. 94. 
 
 64
 
 506 OF CONSTITUTIONAL RESTRICTION [clIAP. IX. 
 
 elusion of his personal property. The legislature regu- 
 lated descents, and the conveyance of real estate. To 
 define the rights of debtor and creditor was their common 
 duty. They might authorise a guardian to convey lands 
 of an infant, which descended to him. They might give 
 capacity to the infant himself to convey land. The idea 
 that the lands of an infant, which descended to him, 
 could not be made responsible for the payment of the 
 ancestor's debts, except through a decree of a court of 
 chancery, was novel and unfounded. So far from this 
 being the case, the court had no doubt, that the legisla- 
 ture of a state had power to subject land of a deceased 
 person to execution, in the same manner as if he were 
 livinir. The mode in which this should be done was a 
 question of policy and not of power, and rested in the 
 discretion of the legislature. 
 
 § 352. In Kirby v. Chilivood's Adm'rs.^a) in which 
 was involved the validity of an act of the legislature, 
 which directed the sale of real estate of infants for the 
 payment of the debts of the ancestor. Chief Justice 
 Bibb, in delivering the opinion of the court, remarks ; 
 u The exercise of such a power has been, at least in one 
 instance, resisted by the executive department, but has 
 not been hitherto a subject of minute investigation 
 in the judicial department. Indeed, these acts are so 
 various in their nature, and different in their cir- 
 cumstances and objects, that no one constitutional 
 provision could, perhaps, embrace the whole, and 
 many must rest on their particular circumstances, and 
 be opposed by different constitutional provisions. In 
 the legislative department they have not been adopted 
 without opposition, arising from constitutional objec- 
 tions ; and it is perhaps a matter of regret, that so many 
 
 (a) 4 Monroe, 94.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 507 
 
 have passed that body. One great objection seems to 
 be, that the power of infants over their real estate is de- 
 nied to them by the general laws of the land, and while 
 their own volition is thus restrained, and their hands 
 tied, these special laws dispose of their real estate, with- 
 out their concurrence, without permitting them to be 
 consulted ; and whether the legislature can dispose of 
 their real estate, and take it from them, by laws which 
 operate like the revocation of a grant, consistently with 
 every constitutional provision, is a question of much im- 
 portance; but the particular circumstances of each case, 
 and the object of the legislature in making such act, ought 
 to be considered in deciding on each of these acts. We 
 are aware that one objection, which presents a question 
 of acknowledged difficulty, presents itself against legisla- 
 tive transfers of estates, without the consent of the ow r ner, 
 and that is, is such a proceeding within the scope of 
 legislative authority, or is it a power belonging to other 
 departments of the government, or to individuals them- 
 selves 1" This point he did not pass upon, as the legis- 
 lature had the power of subjecting estates to payment of 
 debts ; that this was within the compact, and conceded 
 to legislative authority. 
 
 § 353. S/ichun's Heirs v. Barrctt(a) involved the con- 
 stitutionality of an act of the legislature of Kentucky, 
 passed in 1796, with a preamble appointing commission- 
 ers over the estate of J. Barrett, for the benefit of his 
 creditors. The preamble recited that Barrett had died 
 intestate, leaving but little personal estate, and conside- 
 rable lands ; that he had sold, and not conveyed many 
 of these lands, and that others would be lost for want of 
 attention, and as nobody would administer upon his 
 estate, his creditors were suffering. The act then vested 
 
 (a) Monroe, 593.
 
 508 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 the estate in certain commissioners, who were directed 
 to convey in fulfilment of his contracts for lands, and to 
 sell his personal estate and pay his debts, and if that 
 proved insufficient, to sell and convey so much of said 
 lands as might be necessary for that purpose, on a credit, 
 and to apply the proceeds in discharge of his debts. 
 They were also authorized to sue for debts due the 
 estate, and made subject to suits by creditors. The 
 court decided, on the authority of the case last cited, the 
 act a valid one, as it had been held, that where real 
 estate ought, by the general law of the land, to be sold 
 for the payment of debts, the legislature might subject it 
 by a special law for that purpose, when the rights of the 
 parties concerned were held inviolable. The court 
 however said, " We are still disposed to confine this de- 
 cision exclusively to one class of cases, viz., to the sub- 
 jecting lands to debts by special act, which were before 
 subject to the same debts by the general laws of the 
 land, without materially affecting the rights of parties ; 
 and we would not be understood as giving our sanction 
 to other appropriations of the real estate of minors for 
 other purposes." A learned judge, in another case, com- 
 menting on the two cases last cited, held, that he could 
 discover nothing in them but doubtful affirmances of 
 acts, where the sales were for the benefit of all the cre- 
 ditors, and the conveyance of land according to the pre- 
 vious contracts of the intestate. He then adds, " These 
 cases are clearly distinguished from the case under con- 
 sideration,^) (to wit, a special act to sell land to pay 
 particular debts, in specified sums, to particular credi- 
 tors.) The acts in those cases were for the benefit of 
 all the creditors of the estate, without distinction, and in 
 one case in addition for the purpose of perfecting titles 
 
 (a) Lane t. Dorman, 3 Scam. R. 243.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 509 
 
 contracted to be made by the intestate. The claims of 
 the creditors were to be established by judicial or other 
 satisfactory proceedings, and in truth, in the last case 
 cited, the commissioners were nothing more than spe- 
 cial administrators. The legislative department, in the 
 passing of those acts, investigated nothing, nor did any 
 acts which could be deemed a judicial inquiry. It nei- 
 ther examined proofs, nor determined the nature or ex- 
 tent of claims. It merely authorized the application of 
 real estate to the payment of debts generally, discrimi- 
 nating in favor of no one creditor, and giving no prefer- 
 ence over another. Not so in the case before us. The 
 amount is investigated and ascertained, and the sale is 
 directed for the benefit of two persons exclusively. The 
 proceeds are to be applied to the payment of such claims 
 and none other, for liabilities said to be incurred, but not 
 liquidated or satisfied, and those two created after the 
 death of the intestate." 
 
 § 354. Where the legislature passed a special act, the 
 preamble of which recited, that divers persons, some 
 known and others unknown, some residents and others 
 non-residents, were owners of certain tracts of land, and 
 that a partition thereof would be extremely difficult, if 
 not impracticable, and the act authorized any one inte- 
 rested to petition the circuit court of the property county 
 in behalf of themselves and all others interested, without 
 naming them, for the sale of said lands, and authorized 
 the court on due proof of the publication of notice of the 
 presentation of said petition, as required by the act, and 
 upon its appearing that a partition of the said lands 
 would be extremely difficult, if not impracticable, to 
 order the sale of the same, and appoint three disinterested 
 householders of the said county to lay off the same into 
 town lots and streets, and to sell the lots on a credit, 
 and on the payment of the purchase money to make 
 deeds to the purchasers, which deeds were declared to
 
 510 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 be valid and effectual to pass to the purchasers respec- 
 tively, or their assigns, an estate in fee simple to the 
 premises purchased. And the act further provided, that 
 the streets should be and forever remain free, public, 
 and common highways and streets.(«) It was con- 
 tended, that the legislature had not the power exercised, 
 under the constitution, because it was a judicial power, 
 which was confided to another body of magistracy. The 
 court said, the first section of the first article of the con- 
 stitution has divided the powers of the government into 
 three departments, the legislative to one, the judicial to 
 another, and the executive to another; and the second 
 section provides, that no person or collection of persons, 
 being of one of these departments, shall exercise any 
 power properly belonging to either of the others. The 
 legislative is confided to the general assembly, the 
 executive to the governor, and the judicial to the su- 
 preme and inferior courts. It was also contended, that 
 the legislature could not pass such a law for a particular 
 case, that all laws must be of a general nature and ope- 
 ration, in relation to rights and property. In answer to 
 this position, it was held, it would not be contended that 
 the legislative department might not establish all such 
 rules in relation to rights, property, the rules of descent, 
 the power and mode of disposing of and securing such 
 rights, and of evidence to establish them, that they might 
 deem expedient and needful for the public good, so that 
 they take away from the citizen no rights which he pos- 
 sessed, or if taken for the public use that the consent of 
 the representatives be first obtained, and a just compen- 
 sation made. They might so change the law of descents 
 as to cut off all our expectations of inheritance, and con- 
 fer it upon a single child, and might deny the power of 
 
 (a) Edwards v. Pope el al. 3 Scam. K. 4C5.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 511 
 
 disposition by will, so as to prevent the bounty of our 
 parents. They might so change the rules of evidence 
 as to make it dillicult to establish our rights. They 
 might limit the time of suit, as that when elapsed, to 
 deny us all remedy to enforce those rights. And yet, in 
 all these cases, and the like, not violate that great fun- 
 damental law. The power of the legislature was limited 
 and restrained by the constitution within the bounds 
 prescribed by that instrument. It was not the mode of 
 exercising the power, but the right, that was denied by 
 the constitution. If the thing to be done, the right to 
 be secured, and the mode of securing that right, and 
 doing that act, be within legislative competency, the 
 manner of the legislative exercise of that power was not 
 restrained by the constitution. By the " mode and man- 
 ner," reference was had to general or special legislation, 
 and not to the readings of the bills in the several legisla- 
 tive departments, and their approval by the executive. 
 Although Magna Ckarta was not a paramount law to 
 the power of parliament, yet it contained a declaration 
 of the great and fundamental rights of freemen, which 
 parliament would not violate, notwithstanding its omni- 
 potence, according to Blackstone. Parliament had, since 
 the reign of Edward the lirst, before and since Magna 
 Charta, passed private acts, upon the petition of individ- 
 uals for relief in private affairs; and it had long since 
 become one of the common assurances of title in the 
 kingdom. And parliament exercised this power under 
 circumstances enabling a person to acquire an absolute 
 title to realty, where by the deeds, will, or settlements, 
 he was only entitled to an estate tail, but capable of 
 being converted into a fee by fine and recovery. Thus, 
 it would be seen, that the exercise of this power by par- 
 liament was not confined to those cases in which the 
 party had no relief under the general laws, but was ex- 
 ercised in those cases where, by the general laws, the
 
 512 OF CONSTITUTIONAL RESTRICTION [cHAP. IX. 
 
 same end could be accomplished. It had passed acts 
 for enclosing particular commons. But the mode of 
 passing the act was much more cautious and circumspect 
 than here. All the parties in interest either presented 
 the petition or they expressly consented, and it was re- 
 ferred to two judges to hear the proofs, and draw a bill, 
 which was again referred to a committee, and proofs 
 heard. Consent was expressly required from all inte- 
 rested, unless perversely withheld ; or if incapable of 
 giving it, on account of infancy, lunacy, &c, an equiva- 
 lent must be given them. Nearly all the states had con- 
 stitutions with provisions similar to the one under con- 
 sideration. Contemporaneous and uniform constructions 
 would assist in the sound interpretation of constitutions 
 and laws. These might be found in the private acts 
 upon the statute books of the several states. It held, 
 that the legislature might, therefore, exercise its legiti- 
 mate powers by enacting general or especial laws. It 
 was unquestionable that the legislature had power to 
 subject all real and personal estate to sale for payment 
 of debts, either by the creditor's having first established 
 his debt before a judicial tribunal, or by officers ap- 
 pointed by law. If the legislature had the power to 
 declare what should be lawful age at which minority 
 should cease, and an individual should be capable of 
 consenting or conveying, might it not also declare a par- 
 ticular minor capable of conveying during minority 1 
 Or, if application be made on his behalf for relief, might 
 it not by special law give that consent for him ; or by 
 giving power to his friend to convey for him 1 The op- 
 position to such laws seemed to be on the ground, that 
 the legislature acted contrary to the wishes and interest, 
 and in violation of rights so circumstanced. But the 
 truth was, these are intended to be, and are, remedial 
 acts to effectuate the common rights of all, according to 
 the constitution and legal powers of the government.
 
 CHAP. IX.] UPON LEGISLATIVE POWERf 5f> 
 
 The laws of descent might be so changed, as that tin' 
 land should descend to the administrator, until all credi- 
 tors were satisfied. The lands, it is true, are to descend 
 to and absolutely vest in the heirs, and that it was a di- 
 vestiture of their inheritance, under our laws subjecting 
 their inheritance to the payment of debts ; but that de- 
 scent to, and seizure of the heir, was only a vested right 
 sub mocb, subject to be divested by a deficiency of assets. 
 It was difficult to lay down any general rule distinguish- 
 ing between legislative and judicial acts; between what 
 the legislature might rightfully do, and what would be 
 an infringement of private right, or a disturbance of 
 vested interest to do. 
 
 § 355. It has been held by the supreme court of the 
 United States, that an act of the legislature of the state 
 of Rhode Island passed in 1792, which confirmed a sale 
 and conveyance of lands which had been made by an 
 executor, under a license from a probate court in ano- 
 ther state, was not an act of judicial authority. («) Judge 
 Story, in answer to the position that it was an act of 
 judicial authority, which the legislature was not compe- 
 tent to exercise at all ; or if it could exercise it, it could 
 only be after due notice to all the parties in interest, and 
 a hearing and decree, said : " We do not think that the 
 act is to be considered as a judicial act ; but as an exer- 
 cise of legislation. It purports to be a legislative reso- 
 lution, and not a decree. As to notice, if it were ne- 
 cessary, (and it certainly would be wise and convenient to 
 give notice, where extraordinary efforts of legislation 
 are resorted to which touch private rights,) it might well 
 be presumed, after a lapse of more than thirty years, 
 and the acquiescence of the parties for the same period, 
 
 (a) Wilkcson v. Leland, 2 Pet. R. 660. 
 
 65
 
 514 OF CONSTITUTIONAL RESTRICTION [ciIAP. IX. 
 
 that such notice was actually given. But by the general 
 laws of Rhode Island upon this subject, no notice is 
 required to be. or is in practice, given to heirs or devi- 
 sees, in cases of sales of this nature ; and it would be 
 strange if the legislature might not do, without notice, 
 the same act which it would delegate authority to ano- 
 ther to do without notice. If the legislature had au- 
 thorized a future sale by the executrix for the payment 
 of debts, it is not easy to perceive any sound objection 
 to it. There is nothing in the nature of the act which 
 requires that it should be performed by a judicial tribu- 
 nal, or that it should be performed by a delegate instead 
 of the legislature. It is remedial in its nature to give 
 effect to existing rights." 
 
 § 356. In Rice et al. v. Pa?~kmcm,(a) it was held that 
 the legislature had power to license the sale of the real 
 estate of minors, notwithstanding they had delegated the 
 same power to the judicial courts. It was in this case 
 conceded by Parker, Ch. J., that if the powers by which 
 the resolve authorizing the sale was passed, were of a 
 judicial nature, it was clear that they could not be exer- 
 cised by the legislature. But that it was not of this 
 description, as it was not a case of controversy between 
 party and party, nor was it a decree or judgment affect- 
 ing the title to property. The object of the authority 
 granted by the legislature, was to transmute real into 
 personal estate, for purposes beneficial to all who were 
 interested therein. This power had been frequently 
 exercised by the legislature of the province and of the 
 colony, while under the sovereignty of Great Britain, 
 analogous to the power exercised by the British parlia- 
 ment on similar subjects, time out of mind. It was ab- 
 solutely necessary for the interest of those who, by the 
 
 (a) 16 Mass. R. 326.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 515 
 
 general rules of law, were incompetent to dispose of 
 their property. This power must rest in the legislature ; 
 that body being competent to act as the general guardian 
 and protector of those who were disabled to act for 
 themselves. It did not follow, because the power had 
 been delegated by the legislature to courts of law, it 
 was judicial in its character. It was doubtless included 
 in the general authority granted by the people to the le- 
 gislature in the constitution. For full power and au- 
 thority was given from time to time to make, ordain, 
 and establish all manner of wholesome and reasonable 
 orders, laws, statutes, and ordinances, directions and in- 
 stitutions, as they should judge to be for the good and 
 welfare of the commonwealth, and for the subjects 
 thereof. 
 
 § 357. In Connecticut an act of the legislature passed 
 upon the application of a wife, alleging criminal intima- 
 cies of her husband with another woman, not amounting 
 to adultery, which found the fact alleged, and absolved 
 the petitioner from all obligation by virtue of the mar- 
 riage, was held not to be an assumption of judicial 
 powers by the legislature, so as to render the act uncon- 
 stitutional. This case was resisted on the ground, that 
 by the constitution of 1818, there was an entire separa- 
 tion of the legislative and judicial departments, and that 
 the legislature could not now pass an act or resolution 
 not clearly warranted by the constitution. That the 
 constitution was a grant of power, and not a limitation 
 of power already possessed. In short, that there was 
 no reserved power in the legislature since the adoption 
 of this constitution. Chief Justice Daggett, in answer 
 to this argument, held, that precisely the opposite of 
 this was true. From the settlement of the state there 
 had been certain fundamental rules, by which power 
 had been exercised. These rules were embodied in an 
 instrument, called by some a constitution, by others a
 
 51 G OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 charter. All agreed, that it was the first constitution 
 ever made in Connecticut, and made too, by the people 
 themselves. It gave extensive powers to the legislature, 
 and left too much, (for it left every thing almost,) to 
 their will. The constitution of 1818, professed to, and 
 in fact did limit that will. It adopted certain general 
 principles, by a preamble, called a declaration of rights ; 
 provided for the election and appointment of certain 
 agents of government, such as the legislative, executive 
 and judicial departments, and imposed upon them cer- 
 tain restraints. It found the state sovereign and inde- 
 pendent, with a legislative power capable of making all 
 laws necessary for the good of the people, not forbidden 
 by the constitution of the United States, nor opposed to 
 the sound maxims of legislation ; and it left them in the 
 same condition, except so far as limitations were pro- 
 vided. There was then, and had been, a law in force, 
 on the subject of divorces, for one hundred and thirty 
 years. It provided for divorces a vinculo matrimonii, in 
 four cases, viz : adultery, fraudulent contract, wilful de- 
 sertion, and seven years' absence unheard of. The law 
 had remained in substance the same as it was when 
 enacted in 1667. During all this period, the legislature 
 had interposed, like the parliament of Great Britain, and 
 passed special acts of divorce a vinculo matrimonii, and 
 at almost every session since the constitution of the 
 United States went into operation, then forty-two years, 
 and for thirteen years of the existence of the constitution 
 of Connecticut, such acts had been, in multiplied cases, 
 passed and sanctioned by the constituted authorities of 
 the state. The court were not at liberty to inquire into 
 the wisdom of the existing laws on that subject, nor into 
 the expediency of such frequent interference by the le- 
 gislature. They were only to inquire into the constitu- 
 tionality of the act under consideration. The power 
 was not prohibited either by the constitution of the
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 517 
 
 United States, or of that state. In view of the appalling 
 consequences of declaring the general law of the state, 
 or the respective acts of the legislature, unconstitutional 
 and void — consequences easily conceived, but not easily 
 expressed — such as bastardizing the issue, and subject- 
 ing the parties to punishment for adultery — the court 
 should come to the result only on a solemn conviction 
 that their oaths of office and the constitution imperiously 
 demand it. Feeling no such conviction, for one he could 
 not pronounce the act void. In this case, Mr. Justice 
 Peters said: " Upon general principles, he had no doubt 
 that the act of divorce in this case was repugnant to the 
 constitution of the United States, as impairing the obli- 
 gation of a contract; and that it was void under the 
 constitution of this state, as an assumption of judicial 
 power by the legislature. But in view of decisions in 
 analogous cases, and of the appalling consequences of 
 nullifying all legislative acts of divorce, he should ac- 
 quiesce in the opinion of the court." 
 
 § 358. In reference to acts of the nature we have 
 been considering, each act must depend upon its pecu- 
 liar phraseology and provisions. The court will look to 
 the particular circumstances of the parties applying for, 
 and to be affected by it, as well as their intention, and 
 the intention of the legislature, and the object to be ac- 
 complished. If from these, it be manifest that the legis- 
 lature has but exercised a remedial power, in enabling 
 the parties to do with their own property what they had 
 not power before to do, and that it has not adjudicated 
 that they should do what they were unwilling to do, such 
 acts will be deemed within legislative competency.(rt) 
 
 § 359. There is another class of cases which it is 
 proper we should consider in this connection. In the 
 
 (a) Edwards v. Pope el al., 3 Scam. R. 473.
 
 518 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 case of Holden v. Jame's Administrator, (a) the statute 
 of limitation had run against the plaintiff's demand. 
 Upon his petition to the legislature, an act was passed 
 authorizing him to commence and prosecute his suit, 
 " In the same manner as he might or could have done, 
 if the same had been commenced within the time pre- 
 scribed by law ;" and the court was authorized to give 
 judgment, any thing in any law to the contrary notwith- 
 standing. This power of dispensing with, and suspend- 
 ing the general laws for particular cases, and authorizing 
 judgment non obstante any statute, was held to be un- 
 constitutional.^) 
 
 § 360. In Maine, Vermont, and New Hampshire, it 
 has been repeatedly held, that the legislature could not 
 constitutionally pass an act granting an appeal, or a re- 
 view, or a new trial, in any case between private per- 
 sons.^) In the state of Maine the legislature, in 1824, 
 passed an act granting an appeal from a decree thereto- 
 fore made by the judge of probate, and directing the 
 judge of probate to allow, and the supreme court to sus- 
 tain, proceed, and decree in the same in the like manner 
 as if the appeal had been claimed and granted pursuant 
 to an existing law on the day of making the decree. 
 The constitutionality of this act came in question in the 
 case of Lewis et al. v. Webb, above cited. One point 
 made was, that it was a judicial act, and therefore trans- 
 cended the powers of the legislature, to which this au- 
 thority was expressly interdicted by art. 3, sees. 1, 2, of 
 the constitution of Maine. In the decision of this ques- 
 tion, Mellen, Ch. J., said : " What is the nature of the 
 
 (a) 11 Mass. R. 400. 
 
 (b) See also, Lyman v. Mower, 2 Vt. R. 517. Ward v. Barnard, 1 Aik. 
 R. 121. 
 
 (c) Lewis v. Webb, 3 Greenl. R. 326. Dunham v. Lewislon, 4 Greenl. 
 R. 140. Bales v. Kimball, 2 Chip. R. 77. Stamford v. Barry, 1 Aik. R. 
 314.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 519 
 
 power exercised by the legislature in passing said re- 
 solve, is it of a legislative or judicial character V In 
 answering this inquiry he held: The terms used in the 
 first section, as to three departments of government, were 
 general, and the phraseology of the second section, pro- 
 hibiting the interference of the departments, was also 
 general. Hence, as in the instance then before the 
 court, a question arose ; what exercise of power by those 
 belonging to one department is to be considered as an 
 invasion of the province of either of the other depart- 
 ments 1 In reply to this, it might be said at once, that if 
 the legislature undertake to exercise judicial power, they 
 invade the province of the judiciary, because the consti- 
 tution and the laws had placed all the judicial power 
 in other hands. But the question returns ; did the legis- 
 lature exercise a judicial power in granting to the appel- 
 lants the right of appeal 1 In form they did not ; but if 
 it was such in substance and effect, it would clearly be 
 a violation of the spirit if not of the very language of the 
 constitution. Whatever might be considered the nature 
 and character of the decree, since the appeal was claimed, 
 it was very clear, that at the time the legislature passed 
 the resolve, it was in full force and virtue, and had been 
 for almost five years. The rights of heirs or creditors 
 in the subject matter of that decree vested when it was 
 passed, and so remained undisturbed until the resolve 
 professed to grant the appellants leave to disturb them. 
 The ordinary and legal consequence of an appeal was to 
 vacate at once the judgment or decree appealed from ; 
 had that effect been produced in the present instance 1 
 Or was the decree of the judge of probate in full force 
 then, and the administrator liable to have a second de- 
 cree passed against him by the court on the same ac- 
 count 1 Such a decree passed by the court would not 
 operate to relieve the administrator from the effect of the 
 existing decree, unless the resolve and the appeal claimed
 
 520 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 in virtue of it, had completely vacated that decree ; and 
 if it was not vacated thereby why was it not a bar to all 
 proceedings in court when relied upon as such 7 In fact, 
 this appeal could not be sustained on any other princi- 
 ples than that of its having produced the usual effect of 
 an ordinary appeal ; that was, having vacated the de- 
 cree below. Could the legislature, by a mere resolve, 
 set aside a judgment or decree of a judicial court, and 
 render it null and void 1 This was an exercise of power 
 common in courts of law, a power not questioned, but it 
 was one purely judicial in its nature and its conse- 
 quences. It was one of the striking and peculiar features 
 of judicial power, that it was displayed in the decision 
 of controversies between contending parties, the settle- 
 ment of their rights, and redress of their wrongs. But 
 it was urged that the resolve was not liable to objection 
 on constitutional ground; that the resolve went no further 
 than to authorize a re-examination of the cause, to em- 
 power one judicial court to review the proceedings of 
 another judicial court, by way of appeal, and thus do 
 complete and final justice to all concerned. It was true, 
 the resolve did not, in terms, purport to transfer property 
 directly from one man to another by mere legislative 
 authority ; but it professed to grant to one party in a 
 cause which had been, according to existing laws, finally 
 decided, especial authority to compel the other party, 
 contrary to the general law of the land, to submit his 
 cause to another court for trial, the consequence of which 
 might be the total loss of all those rights, and all that 
 property, which the judgment complained of had entitled 
 him to hold and enjoy ; that is to say, it professed to ac- 
 complish, in an indirect and circuitous manner, that 
 which the existing laws forbid, and which, by a direct 
 and legal course could not be obtained ; and to perform 
 an act respecting a cause between party and party ; an 
 act, therefore, of a judicial character, in the simple form
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 521 
 
 of legislation. Such a law could not be reasonable 
 within the meaning of that term, as used in the consti- 
 tution in the grant of legislative power. There was 
 some harmony between the principles of morality and 
 those of the constitution and the common law. It was 
 the province of the legislature to make and establish 
 laws ; and it was the province and duty of judges to 
 expound and apply them. There was no occasion for 
 this species of particular legislative interposition. The 
 cause of justice did not require it, if the general law 
 which gave authority to the judicial courts to grant re- 
 views in special cases, was not sufficiently comprehensive 
 in its terms or provisions, let this discretionary jurisdic- 
 tion be enlarged, so as to embrace all those cases where 
 a new trial ought to be had ; but all the citizens should 
 be placed on the same level ; and discuss the merits of 
 their application before those tribunals, where facts can 
 be investigated and principles uniformly applied ; in that 
 forum w T here, if a review should be granted, the cause 
 would undergo its final investigation and decision. The 
 genius of our government, and the nature of our civil 
 institutions, were such as to render it most proper that 
 all questions between litigating parties should be dis- 
 cussed and decided in a judicial court; there was the 
 place to settle questions of law, and though they had 
 often been presented to the legislature for their determi- 
 nation, in the form of applications for new trials, nothing 
 but a familiarity with this mode of proceeding prevented 
 perceiving at once its impropriety and violation of the 
 spirit of constitutional provisions. 
 
 § 361. In another case in the same state, the question 
 arose whether the legislature of the state had authority 
 by the constitution to grant a review of a suit between 
 private citizens.(a) In that case it was argued, that 
 
 (a) The Inhabitants of Durham v. Lewiston, 4 Greenl. R. 140. 
 
 66
 
 522 OF CONSTITUTIONAL RESTRICTION [dlAP. IX. 
 
 there was no limit to the power of the state legislature 
 except what was imposed by the constitution of the state, 
 and of the United States. Whatever authority it pos- 
 sessed was transcendental. Notwithstanding the theo- 
 retic division of powers, a practical line of demarcation 
 was to be settled. The constitution did not attempt to 
 define the judicial authority, but left it to be ordained 
 and distributed by the legislature, and to be parcelled 
 out in such portions as it might see fit, in its general 
 discretionary superintendence over the municipal con- 
 cerns of the community. The residuum of such power 
 remained by the necessary constitution of the state in 
 the legislature. Having no court of chancery jurisdic- 
 tion, the legislature necessarily possessed some chancery 
 powers: and these powers extended to granting relief in 
 all cases of accident, mistake, and hardship. That this 
 case was clearly distinguishable from that of Lewis v. 
 Webb, which was a case of appeal. Almost the whole 
 jurisdiction of the court was appellate, and the statutes 
 regulating appeals required them to be pursued within 
 limited periods, after which the rights inevitably lapsed, 
 and could not be revived consistent with the rights of 
 the adverse party, which had become vested by commis- 
 sion. Hence, in that case, an act of the legislature to 
 grant an appeal from a final judgment, might amount to 
 an act to vacate such judgment, but reviews stood on a 
 different footing. In reply to this argument, the court 
 said : " One object of the counsel had been to distinguish 
 this case from that of Lewis v. Webb, in respect to the 
 constitutional authority of the legislature to pass the 
 resolve in question, and give it its intended operation. 
 The soundness of that decision was not questioned ; but 
 as the two cases in some respects were different, they 
 had attentively listened to the arguments, that they 
 might become satisfied whether there was any difference 
 of such a character as to leave the present case unaf-
 
 ClfAP. IX.] ' UPON LEGISLATIVE POWER. - r >23 
 
 fected by that decision ; and after mature consideration, 
 they were all satisfied there was no such distinction;"' 
 and on this ground they held the act unconstitutional. 
 
 § 362. In the state of Vermont, K. had taken out 
 letters of administration on the estate, B. represented to 
 be insolvent, commissioners had been appointed by the 
 court of probate to receive, examine and adjust the claims 
 of creditors, who adjudged a claim of $596 20 in favor 
 of B. which was returned to the court, and it was al- 
 lowed and ordered recorded. K. omitted to appeal in 
 the time allowed by law. Subsequently the legislature (^ 
 his petition passed a special act allowing him to appeal 
 from the report of the commissioners. The constitu- 
 tionality of this act came under review in the case of 
 Bates v. Kimball, above cited, and it was held to be 
 unconstitutional. Aiken, J., in deciding this question, 
 took the. position, that to determine whether the act 
 be constitutional or not, it became necessary to ascer- 
 tain the character of the subject matter to be affected by 
 it, as well as the consequences or effect of the act itself. 
 When the estate of a deceased person was represented 
 insolvent, commissioners were to be appointed to re- 
 ceive, examine, and adjust all claims of the creditors to 
 such estate. They were the only board known to the 
 law having original cognizance of demands thus situated. 
 Their determination when approved by the probate 
 courts became a matter of record. The demand, thence- 
 forth, was a debt of record ; and was final between the 
 parties, except in cases where an appeal was taken. A 
 judgment not appealed from, within the time allowed by 
 law for taking the appeal, was thenceforth of the same 
 effect as though no appeal were by law allowed, and 
 was a final judgment. Such was the plaintiff's cause 
 of action, upon which the present suit was brought. 
 By the act in question, the defendant was authorized to 
 enter an appeal from the decision of the commissioners,
 
 524 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 to the present session of the court : and it was thereby 
 further commanded that the proceedings, both before 
 the court of probate and this court, should be in all re- 
 spects the same as though the defendant had entered his 
 appeal within the time allowed by the law. This act, 
 in the first instance, altered the decision of the commis- 
 sioners from a final and absolute judgment upon the 
 merits, to a judgment nisi; or, in other words, to a judg- 
 ment liable to be vacated by the act of the party in en- 
 tering his appeal : and, secondly, through the authorized 
 act of the party on entering his appeal, it altered it to a 
 judgment vacated. That a judgment appealed from 
 was a judgment vacated, was evident from the fact, that 
 by the appeal the parties were thrown back upon the 
 original cause of action, and were compelled to litigate 
 anew, that which would otherwise be concluded by the 
 judgment itself. Again, it could never be enforced as a 
 judgment of the same court whence the appeal was 
 taken, though the appeal be not carried up. If the ap- 
 pellee did not, on the neglect of the appellant to prosecute 
 his appeal, procure an affirmance by the court to which 
 the appeal was taken, he lost the benefit of his judg- 
 ment forever, and must resort to a new suit for his 
 remedy. That the subject matter of this act, was a 
 final judgment of record between party and party, ren- 
 dered by a board, and approved by a court of competent 
 jurisdiction for that purpose ; and that the effect and 
 operation of the act was virtually to vacate that judg- 
 ment. The real question, therefore, was, had the legis- 
 lature power to vacate or annul an existing judgment 
 between party and party 1 The doctrine that all power 
 was originally in the government, and that the people 
 by their charters and constitutions had abridged and 
 limited those powers, was fit only for those countries 
 where the ignorance of the people was the weapon by 
 which the lawless power maintained her throne. The
 
 <V>r; 
 
 CHAP. IX.] UPON LEGISLATIVE POWER. Ol& 
 
 axiom that the sovereignty was in the people, was a po- 
 litical truth on which every free and rational govern- 
 ment was founded. Its development had regenerated 
 the nations of this western hemisphere, and again re-illu- 
 minated the long benighted but classical land of Greece. 
 When the people associated and entered into compact 
 for the purpose of establishing government, that com- 
 pact, whatever might be its provisions, or in whatever 
 language it might be written, was the constitution of 
 the state, revocable only by the people, or in the manner 
 they prescribed. It was by this instrument that govern- 
 ment was instituted ; its departments created, and the 
 powers to be exercised by each confined. The powers 
 thus conferred by the constitution of this country, must 
 be found expressed in the constitution, or be derived by 
 a just and necessary implication from the expressions 
 used. But power which was expressly delegated to one 
 department, could never be devised to another by impli- 
 cation, because no necessity for such implication could 
 justly be pretended. The necessity of a distinct and 
 separate existence of three great departments of govern- 
 ment, was well understood by the people at the time of 
 the adoption of the constitution. Its importance to the 
 security of public liberty and private right, had been 
 proclaimed and enforced by some of the wisest and most 
 eminent men of other countries, and of this ; among 
 whom were Montesquieu, Sir William Blackstone, Jef- 
 ferson, and Madison. It had been sanctioned by the 
 people of the United States by being adopted, in more 
 or less explicit terms, into all their written constitutions. 
 The constitution of Vermont had declared " That the 
 legislative, executive, and judiciary departments shall be 
 separate and distinct, so that neither shall exercise the 
 powers belonging to the other." Whatever,- therefore, 
 it properly belonged to the judiciary to do, the legisla- 
 ture were expressly precluded from doing. The legis-
 
 526 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 lature had the power by general laws to establish the 
 courts, to appoint and limit their respective jurisdiction ; 
 to prescribe the mode in which causes should be brought 
 before them ; to enlarge or restrict the power of grant- 
 ing appeals, reviews and new trials, and otherwise to 
 regulate their proceedings, so that every person can find 
 a certain remedy by having recourse to them for all in- 
 juries and wrongs, was readily admitted. But when 
 they had done this, they had exercised every power re- 
 lating to the administration of justice " necessary for 
 the legislature of a free and independent state." This 
 was the extent of the powers of this description vested 
 in that body by the constitution, except indeed certain 
 judicial powers expressly delegated to them touching 
 the conduct and privileges of their own members. It 
 was true the constitution had no where particularly de- 
 fined what those powers were, which properly belong to 
 the judiciary department ; but from sections four and six 
 we learned that by the judiciary department was meant 
 courts of justice. These powers then must be such as 
 were usually exercised by courts in the trial of causes, 
 and the administration of justice ; to ascertain them, we 
 must necessarily resort to the common law and usage, 
 in manifest reference to which the constitution was 
 framed. The effect of this act was to vacate a judgment 
 and direct another trial in matters determined by that 
 judgment. It was immaterial whether that effect was 
 produced by authorizing an extraordinary appeal in a 
 case not w"ithin, and of course not " conformably to the 
 law," or whether it was done by ordering a new trial 
 before the same court, the mischief was the same. It 
 was not by the mode of doing a thing, nor by the pre- 
 tended capacity in which it was done, but by the nature 
 of the act itself, that its propriety or impropriety was to 
 be determined. The common law and usage referred 
 us in view of these proceedings, to the judiciary depart-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 527 
 
 ment. The granting of a new trial, after the verdict and 
 before judgment, was a part of the ordinary administra- 
 tion of justice in all common law courts, and was essen- 
 tial to the support and proper exercise of the right of 
 (rial by jury. 
 
 § 363. In Stanifurd v. Barry, the same court affirmed 
 the same doctrine, and held, that the validity of such an 
 act had been discussed in the case of Bates v. Kimball, 
 and that this question must be considered as settled by 
 that decision. The court said, " It was there deter- 
 mined, that the judgment of commissioners, appointed 
 to receive and examine claims on an estate represented 
 insolvent, unless appealed from within the time pre- 
 scribed by law, was a final judgment, which fixed the 
 rights of the parties, and could not be vacated or set 
 aside by an act of the legislature. That decision was a 
 direct authority that the act, under which this appeal 
 was taken, is unconstitutional and void, as being an ex- 
 ercise of power by the legislature properly belonging to 
 the judiciary, and 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. The case 
 referred to has been maturely considered, and was de- 
 cided on principles and authorities which are conclusive 
 on the question. It is unnecessary, therefore, to enter 
 at large into the question at this time. We have only 
 to add, that the principles adopted in the case cited, have 
 become settled constitutional law, and are universally 
 recognized and acted upon as such by all judicial tribu- 
 nals in this country. They are found in the doctrines of 
 learned civilians and the decisions of able judges, with- 
 out a single decision or even opinion or dictum to the 
 contrary. They not only grow out of the letter and 
 spirit of the constitution, but are founded in the very 
 nature of a free government, and are absolutely essential
 
 528 OK CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 to the preservation of civil liberty and permanent secu- 
 rity of rights." 
 
 § 364. In New Hampshire an act of the legislature 
 awarding a new trial in an action which had been de- 
 cided in a court of law, was held to be an exercise of 
 judicial powers, as the legislature was not, by the con- 
 stitution, a part of the judiciary, and could not perform 
 any judiciary act.(«) The court in this case took the 
 position, that no article in the constitution could be de- 
 signated which, in specific terms, made the legislature a 
 branch of the judiciary, consequently, if they were, it 
 must depend upon inference, and that inference, it was 
 admitted, could be drawn from nothing but the grant of 
 powders to the general court, and from the 31st and 37th 
 article of the bill of rights. By that grant they were in- 
 vested " with full authority to make all manner of whole- 
 some and reasonable orders, laws, statutes, ordinances, 
 directions and institutions, either with penalties or with- 
 out, so as the same be not repugnant or contrary to this 
 constitution." But nothing was said of decrees or judg- 
 ments, or judicial power. The phraseology was alto- 
 gether peculiar to legislative subjects. Though styled 
 the " General Court of New Hampshire," they were 
 considered in the first section to be " the supreme legis- 
 lative power." The constitution then proceeds to state, 
 not that the general court shall be a branch of the judi- 
 ciary, but that " they shall forever have power and au- 
 thority to erect and constitute judicatures;" not that 
 they themselves shall hear any private controversies, but 
 that the courts of record, so constituted, shall be holden 
 in the name of the state, for hearing such causes. 
 
 § 365. In Colder v. BullQ)) the Supreme Court of the 
 
 (a) Merill v. Sherbrun et al. 1 N. H. R. 206. 
 
 (b) 3 Dallas R. 386.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 529 
 
 United States held, that an act of the legislature of Con- 
 necticut, granting a new trial, after the time for appeal- 
 ing had elapsed, was constitutional, although the act 
 was judicial in its nature. It has by some been sup- 
 posed that this decision was inconsistent with the de- 
 cisions in New Hampshire, Maine, and Vermont, above 
 referred to, and that the doctrine of those cases had 
 been virtually overruled. We apprehend, however, such 
 is not the fact. The decision in that case was placed 
 upon the ground, that it was the usage in that state so 
 to legislate, which was to be taken as evidence of the 
 fundamental law, it at that time having no written con- 
 stitution; Mr. Justice Patterson, in his opinion, puts 
 the case on that distinct ground. He held, the constitu- 
 tion of Connecticut was made up of usages, and it ap- 
 peared that its legislature had, from the beginning, exer- 
 cised the power of granting new trials. This had been 
 uniformly the case till the year 1762, when this power 
 was, by legislative act, imparted to the superior and 
 county courts. But the act did not remove or annihilate 
 the pre-existing power of the legislature in this particu- 
 lar, it only communicated to other authorities a concur- 
 rence of jurisdiction, as to the awarding of new trials. 
 And the fact was, that the legislature had, in two in- 
 stances, exercised this power since the passage of the 
 law of 1762. They acted in a double capacity ; as a 
 house of legislation, with undefined authority, and also 
 as a court of judicature in certain exigencies. Whether 
 the latter arose from the indefinite nature of legislative 
 powers, or in some other way, it was not necessary to 
 discuss. From the best information which he had 
 been able to collect on this subject, it appeared that the 
 legislature, or general court of Connecticut, originally 
 possessed and exercised all legislative, executive, and 
 judicial authority ; and that from time to time they dis- 
 
 67
 
 530 OF CONSTITUTIONAL HESTRICTION [CHAT. IX. 
 
 tributed the two latter in such manner as they thought 
 proper, but without parting with the general superin- 
 tending power, or the right of exercising the same when- 
 ever they should judge it expedient. It was sufficient 
 that they had, on certain occasions, exercised judicial 
 authority from the commencement of their civil polity. 
 This usage made up part of the constitution of Connect- 
 icut, and the court were bound to consider it as such, 
 unless it was inconsistent with the constitution of the 
 United States. True it was, that the awarding of new 
 trials fell properly within the province of the judiciary, 
 but if the legislature of Connecticut had been in the un- 
 interrupted exercise of this authority in certain cases, 
 the court must, in such cases, respect their decisions, as 
 flowing from competent jurisdiction or constitutional 
 organ. They might, in the present instance, consider 
 the legislature of the state as having acted in their cus- 
 tomary judicial capacity, if so, that was an end of the 
 question. For, if the power thus exercised came more 
 properly within the description of a judicial than of a 
 legislative power, and if by usage or the constitution, 
 which in Connecticut were synonymous terms, the legis- 
 lature of that state acted in both capacities ; then, in the 
 case before the court, it would be fair to consider the 
 awarding of a new trial as an act emanating from the 
 judiciary side of the department. The decision in that 
 case was also put on the same ground by the court in 
 Connecticut.(a) 
 
 § 366. We have in a previous chapter considered the 
 nature of retrospective laws, and have endeavored to 
 show, that the legislature, irrespective of any constitu- 
 tional restriction, cannot pass such laws having a retro- 
 active effect, affecting vested rights, in the legitimate 
 
 (a) 2 Root's R. 350.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 531 
 
 exercise of its constitutional powers.(«) We are next 
 to consider what acts are and what acts are not deemed 
 retrospective, within the meaning of constitutional re- 
 strictions upon legislative power, in this particular. The 
 constitution of New Hampshire declares, " Retrospective 
 laws are highly injurious, oppressive and unjust. No 
 such law, therefore, should be made, either for the de- 
 cision of civil causes or the punishment of offences."(&) 
 
 § 367. Under this clause in the constitution, it has 
 been determined that a retrospective law for the punish- 
 ment of an offence, within the meaning of this clause, 
 was one which was made to punish an act previously 
 done, or to increase the punishment of such act, or in 
 some way to change the rule of law in relation to its 
 punishment, to the prejudice of him who committed it. 
 In other words, it was such a law as would, under the in- 
 hibition against ex jwst facto laws, be deemed strictly ex 
 j)Ost facto. It must be a law establishing a new rule for 
 the punishment of an act already done. The object of 
 this clause was to protect individuals against unjust and 
 oppressive punishment. On the one hand, it inhibited the 
 power to make laws retroactive for the punishment of 
 offences, and on the other, leaves uninhibited the power 
 to make all such laws as it should deem expedient to 
 mitigate the degree of punishment to be inflicted.(c) 
 
 § 368. The question has arisen as to what is a " re- 
 trospective law made for the decision of civil causes," 
 within the meaning of this clause. The language in this 
 clause is far more broad and comprehensive than that 
 used in the preceding clause. The former seems de- 
 signed only for the protection of one of the parties, that 
 is, the citizen ; the latter is designed for the protection 
 
 (a) See ante, § 149, et sequitur. 
 
 \b) Ante, $ 82, p. 127. 
 
 (c) Wourt v. Witmkk, 3 N. H. R. 476.
 
 532 OP CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 of both parties to a civil action. It protects both parties 
 from any interference of the legislature whatever, in any 
 civil cause, by a retrospective law. A law for the de- 
 cision of a cause is a law prescribing the rules by which 
 it is to be decided — a law enacting the general principles 
 by which the decision is to be governed. A retrospec- 
 tive law for the decision of civil causes, is a law pre- 
 scribing the rules by which existing causes are to be 
 decided, upon facts existing previous to the making of 
 the law. Instead of being rules for the decision of civil 
 causes, as laws are in their very essence, retrospective 
 laws for the decision of civil causes are, in their nature, 
 a judicial determination of the rules, by which existing 
 causes shall be settled, upon existing facts. They may 
 relate to the grounds of the action, or the grounds of the 
 defence, both of which it seems are equally protected by 
 this clause. On the one hand, it is not within the con- 
 stitutional competency of the legislature to annul by 
 statute, any legal ground, on which a pending action is 
 founded, or to create any new bar, by which such action 
 may be defeated ; on the other hand, no new ground for 
 the support of an existing action can be created by sta- 
 tute, nor any legal bar to any such action be taken away. 
 A statute which attempts either of the above things is a 
 retrospective law for the decision of civil causes, within 
 the prohibition of this article in the bill of rights. (a) 
 
 § 369. Richardson, Ch. J., in the case last cited, speak- 
 ing of this clause, says ; " It was intended to prohibit 
 the making of any law prescribing new rules for the de- 
 cision of existing causes, so as to change the ground of 
 the action, or the nature of the defence. We think that 
 such was the intention, because it was fit and proper 
 that the prohibition should go to that extent. Retro- 
 
 (a) Woart v. Wirmick, 3 N. H. R. 477.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 533 
 
 spective laws of that kind deserved to be denounced, as 
 they are denounced in our constitution, as highly inju- 
 rious, oppressive, and unjust. They have been de- 
 nounced by the most sound and intelligent jurists and 
 statesmen in every age. We think that such was 
 the intention, because the establishment of new rules 
 for the decision of existing cases, is in its nature 
 an exercise of judicial power, a power which the 37th 
 article of the bill of rights declares ought to be kept 
 separate from, and independent of, the legislative power; 
 and because the union of the legislative and judicial 
 power in the same branch of government is, in its es- 
 sence, tyranny. We think such was the intention, be- 
 cause it is most manifestly injurious, oppressive, and 
 unjust, that after an individual has, upon the faith of 
 existing laws, brought his action, or prepared his defence, 
 the legislature should step in, and, without any examina- 
 tion of the circumstances of the case, arbitrarily repeal 
 the law upon which the action or defence has been 
 rested. Such an exercise of power is, in our opinion, 
 wholly irreconcilable with the spirit of our institutions, 
 and with the great principles of freedom, upon which 
 they are founded." 
 
 § 370. In the case last cited it was held, that an act 
 of the legislature repealing a statute of limitation, with 
 respect to all actions pending at the time of the repeal, 
 and which were barred by the statute, was a retrospec- 
 tive law for the trial of civil causes, and repugnant to 
 the constitution of New Hampshire, and hence wholly 
 inoperative. In another case,(«) a statute, purporting to 
 grant a new trial in a civil cause, after a final judgment 
 had been rendered, was held to be a retrospective law, 
 within the meaning of this clause in the bill of rights. 
 
 § 371. In the case of the Society, $c. v. Wheeler et 
 
 (a) Merrill v. Sherbmne, 1 N. H. R. 199.
 
 534 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 «/.,(«) an act of the legislature of New Hampshire, of 
 1805, was held retrospective and unconstitutional, which 
 provided, " That when any action shall be brought 
 against any person for the recovery of any lands or tene- 
 ments which such person holds by virtue of a supposed 
 legal title, under a bona Jidc purchase, and which the 
 occupant, or the person under whom he claims, has been 
 in the actual possession and improvement of, for more 
 than six years before the commencement of the action 
 the jury who try the action, if they find a verdict for the 
 plaintiff, shall inquire, and by their verdict ascertain, the 
 increased value of the premises by virtue of the buildings 
 and improvements made by such person or persons, or 
 those under whom he or they claim, and no writ of seisin 
 or possession shall issue upon such judgment, until such 
 plaintiff shall have paid into the hands of the clerk of 
 said court, for the use of the defendant, or person or per- 
 sons justly entitled thereto, such sum as said jury shall 
 assess as aforesaid, which sum shall be paid to the clerk 
 within one year after the verdict rendered by the jury, 
 otherwise no writ of possession shall issue." 
 
 § 372. Mr. Justice Story, after laying down the rule 
 that " every statute which takes away or impairs vested 
 rights acquired under existing laws, or creates a new ob- 
 ligation, imposes a new duty, or attaches a new disa- 
 bility, in respect to transactions or considerations already 
 past, must be deemed retrospective," placed his decision 
 in the case last cited on the ground, that before the pas- 
 sage of the act, the demandants had a clear vested right 
 and title in the demanded premises in fee, absolute and 
 unconditional ; and although the seisin was in another, 
 yet the existing laws afforded a complete remedy to 
 perfect that title by an union juris ct seisine, under judi- 
 
 (a) 2 Gallison R. 105.
 
 chap, ix.] upon legislative power. 535 
 
 cial process. They were also entitled, both at law and 
 equity, not only to the land, but to all the improvements 
 thereon which were annexed to the freehold, by whom- 
 soever made, under that vested right and title. The 
 law imputed no laches to them for not pursuing their 
 legal remedy to recover seisin, for the time of the statute 
 of limitations had not run against them ; and it imposed 
 no obligation to pay for any amelioration of the soil, or 
 any erections which had been made by any person 
 claiming on adverse possession or seisin. Thus the act 
 found them, and it took effect immediately. That the 
 action was brought in 1807, and if the tenants claimed 
 that the act applied to this action, it must be upon the 
 ground that the six years' possession under a supposed 
 legal title, was to be calculated backwards from the time 
 of the commencement of the action, although that time 
 should not have elapsed after the date of the act. In 
 this view, the arguments to support its constitutionality 
 must be the same as though the action were commenced 
 immediately after the passage of the act. It might be 
 admitted that if this were a statute of limitations, bar- 
 ring real actions within a reasonable time, under the 
 exercise of legislative discretion, its constitutionality 
 could not be doubted. And if the state had declared, 
 that if the party should for six years after the passing of 
 the act, or for six years after any ouster or disseisin infu- 
 turo, neglect to pursue his remedy for the recovery of his 
 right, then that the remedy should only be had upon the 
 terms of the act, it might perhaps have fallen under the 
 same consideration ; for it would in effect be only a ri- 
 gorous statute of limitations. But if the legislature 
 were to pass an act of limitations, by which all actions 
 upon past disseisins were to be bound, without any al- 
 lowance for time for the commencement thereof in fu- 
 ture, it would be difficult to support its constitutionality, 
 for it would be completely retrospective in its operation
 
 536 OF CONSTITUTIONAL RESTRICTION [cnAP. IX. 
 
 on vested rights. (a) But the statute then under con- 
 sideration, could not be regarded as a statute merely 
 regulating the remedy, and prescribing the mode and 
 time of proceeding. It conferred an absolute right to 
 compensation on one side, and a corresponding liability 
 on the other, if the party would enforce his previously 
 vested title to the lands. And unless he should comply 
 within a given time, his title, or what is in effect the same 
 thing, his remedy, was completely extinguished. It was 
 not therefore in form, or in substance, a modification of 
 the remedy, but a direct extinguishment of a vested right 
 in all the improvements and erections on the land, which 
 were annexed to the freehold. It directly impaired the 
 value of the vested right of the party in the land itself, 
 inasmuch as it impaired the remedy, and subjected the 
 party to burthens which might render the right not 
 worth pursuing ; and that too, upon past considerations, 
 respecting which the party had incurred no legal ob- 
 ligation, and had imputed to him no legal laches. If 
 indeed, it ought to be the very essence of a new law that 
 it is to be a rule for future cases, and that it is against 
 natural justice to apply it to past cases, it would seem 
 to follow that an act which worked the effect which 
 had been stated, ought to be deemed a retrospective 
 law, within the prohibition of the constitution of New 
 Hampshire, for it was a law for the decision of a civil 
 cause, which affected past cases, and had a retroactive 
 operation. 
 
 § 373. The bill of rights of Tennessee declares, " That 
 no retrospective law, or law impairing the obligation of 
 contracts, shall be made." It has been held in that state, 
 that an act of the legislature, which authorized an indi- 
 
 («) See also, Call v. Hagger, 8 Mass. R. 423. The Proprietors of Ken- 
 nebeck Purchase v. Laboree, 2 Greenl. R. 293.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 537 
 
 vidual to prosecute a suit pending in the name of two 
 other persons, one of whom was deceased, without 
 taking out letters of administration upon the estate of 
 the deceased, was within this clause of the constitu- 
 tion.^) It was determined in that case, that any act of 
 the legislature which was retrospective in its operations, 
 which took away from some vested rights, and gave 
 them to others, that changed the nature of obligations, 
 and dispensed with liabilities that all others would be 
 under in a similar situation, or that was partial in its 
 operation, giving one individual privileges that were not 
 extended to others, contrary to the general law, was un- 
 constitutional. The court said, " The law as it exists at 
 the time of the death of a member of society fixes the 
 rights of the parties ; these rights should be uniform ; 
 laches or accident may be the cause of a loss of a right 
 which one more vigilant might save. This did not arise 
 from the defect of law, but it may arise from the neglect 
 or misfortune of one claiming the benefit of it. It should 
 be the business of the judge to see that the scales of jus- 
 tice be held with an even hand. An interference with 
 the uniform administration of justice, directing that ad- 
 ministration aside from uniformity, so as to give to one 
 man rights which must be denied to another, would at 
 once be subversive of the liberty and security guaranteed 
 by the constitution. This would be emphatically the 
 case, if any power but the court was permitted to direct 
 at pleasure the rule and measure of justice, in specified 
 cases. Who would be safe if the legislature were per- 
 mitted to dictate the decision of causes pending 1 What 
 would be the use of courts under such a state of things ? 
 They would be mere instruments in the hands of others ; 
 
 (a) Officer v. Young, 5 Yerger's R. 320. 
 
 68
 
 538 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 and all their powers and usefulness would be paralysed. 
 They might make records and issue process ; but their 
 mind and independence would be gone ; and with these 
 would also go responsibility ; for if the agent be not free 
 to act, there should not be accountability ; hence arises 
 the great necessity of courts looking to their own consti- 
 tutional rights and powers, and firmly disregarding all 
 attempts at innovation upon them. Admit the principle 
 that the legislature at pleasure can take from or add 
 parties in causes pending, and how can the court look 
 forward to results? The obligation of the judge, 'that 
 he w r ill do equal law and right to all persons ;' that he 
 will delay no one of common right, by reason of any 
 command from any person or persons, in authority, or for 
 other cause whatever ; but that he will faithfully, truly 
 and justly do equal and impartial justice to individuals 
 and the public ; are the great and mighty barriers to all 
 encroachment upon that administration of justice, which 
 puts citizen upon an equal footing with citizen. Who 
 on the death of Elrod became instantly interested in the 
 subject matter litigated in this suit? The widow, the 
 heirs, and creditors of the deceased, had a direct interest ; 
 an interest which a law uniform in its operation, fixed 
 and established. To settle the interests of all, needed 
 no legislation. The way was plain, and it was for the 
 court to see that it was properly pursued. What is the 
 attempt made ? To disregard the rules which were ge- 
 neral ; make an excepted case of the present ; substitute a 
 person not known to the law of the land, and permit him 
 without responsibility to stand in the place of Peter Elrod, 
 and prosecute the suit. It is asked, what section of the 
 constitution has been violated by the act in question ? 
 It is answer enough to say, that the act takes away from 
 some their vested rights, and gives them to others ; 
 changes the nature of obligations, and dispenses with 
 the liabilities which all others in similar situations would
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 539 
 
 lie under. There is no aspect in which it can be viewed, 
 that does not present a strange anomaly, alike conflict- 
 ing with the sworn duty of the judge, the vested rights 
 of persons, and the constitution. What is the difference 
 between such a course, and appointing a judge over the 
 head of the legitimate and constitutional one, to decide 
 the cause? None can be perceived in principle ; though, 
 in fact, the consequences, in the case before us, may be 
 most injurious and fatal to rights." 
 
 § 374. In Wally's Heirs v. Kenncdy(a) it was made a 
 question, whether an act which declared that certain 
 suits should be barred if it was proved that it was pro- 
 secuted in trust for another, was within this constitu- 
 tional restriction respecting retrospective laws. The 
 court, however, did not distinctly pass upon the question 
 as to how far the act was effected by that part of this 
 clause in the constitution which declared, " that no re- 
 trospective laws shall be passed." It however declared, 
 that it did not omit to pass upon it from any delicacy or 
 serious doubt entertained in that particular instance, but 
 from the paramount importance of the question arising 
 upon statutes infringing upon the constitution more 
 clearly than did the act then under consideration. It re- 
 marked, in substance, that the act of 1827 proposed to le- 
 gislate out of court actions of ejectment, lawfully brought 
 before its passage, by letting in parol proof of an out- 
 standing trust created by contract long before the act was 
 passed ; which contract, for any thing appearing to the 
 contrary on this record, was lawful when made, and for 
 the first time declared otherwise by this act ; the letting 
 in, and in the grade of evidence, unheard of proof in the 
 pending action of ejectment, and declaring the effect of 
 that proof was, to its mind, very dangerous legislation, 
 
 (a) 2 Yerger's R. 555.
 
 540 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 and it felt it a duty not to pass entirely unnoticed this 
 point, for fear inferences might be drawn that it thought 
 the act consistent with the clause of the constitution 
 prohibiting retrospective laws and laws impairing the 
 obligation of contracts. Its impression was directly the 
 other way. In the case of Fisher's Negroes v. Dobbs,(d) 
 it was held, that the statute of Tennessee of 1829, which 
 authorized a bill to be filed by slaves, by their next 
 friend, to emancipate them, although it applied to cases 
 that arose before its passage, was not a retrospective 
 law within the meaning of this clause of the consti- 
 tution. 
 
 § 375. In Vermont, although there is no constitu- 
 tional prohibition in the state constitution, it has been 
 held that the enactment of retrospective laws was not 
 within the constitutional power of the legislature. In 
 Ward v. BarnardJJi) an act of the legislature releasing 
 a debtor, imprisoned on execution at the suit of a party, 
 from his imprisonment, and freeing his body from arrest 
 for a given time, was held null and void. One ground 
 of this decision was, that the section of the constitution 
 which declared the powers of the legislature, and which 
 gave to it all the powers necessary for the legislature of 
 a free and sovereign state, did not confer this power, as 
 no legislature, as such, had any other than the power of 
 making laws : by the section in the constitution granting 
 powers to it, no other than a law making power was 
 conferred. That the act in question was not a law, for 
 a law was a prescribed rule of civil conduct. Such was 
 a correct and the universally approved definition of mu- 
 nicipal law. So far as an act of the legislature was re- 
 trospective, or ex post facto, it was not a prescribed rule 
 
 («) 6 Yerger's R. 19. {b) 1 Aiken's R. 121.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 541 
 
 of conduct. This act was retrospective, as it related to 
 past events, and retroactively affected a vested right of 
 the creditor, who had elected to take satisfaction of his 
 debtor in that particular manner. The same principle 
 was adopted in subsequent cases in the same court.(a) 
 § 376. In Lyman v. Mower, the court said, that the 
 decision in the case of Ward v. Barnard, did not pro- 
 ceed upon the ground that the bond was a contract, 
 within the provision of the constitution of the United 
 States prohibiting the state legislatures from passing 
 acts impairing the obligation of contracts, but upon the 
 ground, that the act was an enactment in a particular 
 case, affecting private rights, was retrospective in its 
 operation, and on general principles of law void. That 
 the decision was in conformity with opinions expressed 
 by several successive councils of censors, composed of 
 men of the first respectability for intelligence, having 
 great experience in legislation, and a thorough know- 
 ledge of the principles of the government. The question 
 had been several times argued, was maturely considered, 
 and the court were unanimous in the opinion that was 
 pronounced. Subsequent reflection had not shaken 
 their confidence in the soundness and correctness of the 
 decision, nor did they think it at all impugned by the 
 determination in the case of Mason v. Ha'de^b) as that 
 case was distinguishable in several very essential and 
 important particulars, and might well be considered as 
 resting on different principles. 
 
 § 377. Although the court in the case last cited, seem 
 to think that its decision did not conflict with the doc- 
 trine laid down in the case cited by it from 12 Wheat. 
 Rep. 370, and that the case it decided was distinguisha- 
 
 (a) Ly?nan , s Admr. v. Mower et al., 2 Vt. R. 517. Kendall v. Dodge 
 <3f Waterman, 3 id. 360. 
 (4) 12 Wheat. R. 370.
 
 542 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 ble from the case of Mason v. Ifailc, we must confess 
 that we have been unable to discover any such distinc- 
 tion as would warrant the inference, that the two cases 
 could be reconciled, or be regarded as harmonizing with 
 each other, so far as the fact of retrospect or retroaction 
 is concerned. The latter case, it is true, was that of a 
 general law applicable to all the citizens of the state, 
 extended by a special law to a particular individual. 
 The former was a special law enacted for a given 
 case, and was confined in its operation to a single indi- 
 vidual : in this respect they were different. That is, 
 upon the question whether laws should be special or 
 general, the two cases present cases somewhat different 
 in their character ; and perhaps in this respect, the two 
 cases rest upon somewhat different principles, but not 
 so far as the question of retrospect is concerned. The 
 case of Mason v. Halle decided, that a discharge under 
 a general insolvent act of a state did discharge a prisoner 
 committed to prison for debt antecedent to the passage 
 of the resolve, which extended to the defendant the 
 benefits of an old statute providing for a discharge from 
 debts, and imprisonment for debt. The ground upon 
 which the decision was placed, was that imprisonment 
 for debt was merely remedial, and did not partake of 
 the nature of a vested right. It was no part of the con- 
 tract, and hence did not come within the rule that sta- 
 tutes should not have a retroactive operation so as to 
 affect vested rights. That if it might be regarded as a 
 punishment for not performing the contract, or might be 
 allowed as a means for inducing the party to perform it, 
 the state might refuse to inflict the punishment, or might 
 withhold it altogether, and leave the contract still in 
 force. We apprehend that the difficulty in sustaining 
 the decision in the case of Ward v. Barnard is, that in 
 that case, although the court grasped a principle which 
 is a sound one, that the legislature cannot constitution-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 5 13 
 
 ally pass laws which arc retrospective and having a re- 
 troactive effect upon vested rights, it confounded the 
 marked distinction which exists between matters which 
 are purely remedial, and which are not deemed vested 
 rights, and which may be retroactively affected by subse- 
 quent legislation, and matters which do not relate to the 
 remedy merely, but enter into the substantive parts of a 
 contract, expressed or implied, constituting an absolute 
 right, completely and unqualifiedly vested in the party. 
 This, as we have already had occasion to show, is the 
 line which bounds legislative power, so far as retrospect- 
 ive acts are concerned. 
 
 § 378. It has by some been supposed that the supreme 
 court of the United States have decided that state legis- 
 latures might pass retrospective laws having a retroactive 
 effect, divesting vested rights. In the case of Sattcrlec 
 v. Matl/ieicson,(a) Mr. Justice Washington did declare 
 that there was no part of the constitution of the United 
 States which applied to a state law of this description ; 
 and that he was not aware of any decision of any of the 
 United States courts, which had condemned a law on 
 this ground, provided its effect be not to impair the obli- 
 gation of a contract. In Watson v. Mcrcei',(b) Mr. Jus- 
 tice Story said, " It was clear that this court lias no 
 right to pronounce an act of the state legislature void, as 
 contrary to the constitution of the United States, from 
 the mere fact that it divests antecedent vested rights of 
 property. The constitution of the United States does 
 not prohibit the states from passing retrospective laws 
 generally." The same doctrine is reiterated by Chief 
 Justice Taney, in the case of Charles River Bridge v. 
 Warren Bridge ct al.(c) 
 
 (a) 2 Pet. R. 413. (c) 11 id. 539. 
 
 (b) 8 id. 110.
 
 544 OF CONSTITUTIONAL RESTRICTION [CHAP. IX, 
 
 § 379. These cases, however, only decide that there 
 is no inhibition against such laws contained in the con- 
 stitution of the United States ; they by no means sanc- 
 tion the doctrine that such kind of laws are within the 
 legitimate scope of legislative authority. In neither of 
 those cases did the act under consideration divest any 
 vested right, and all that the court said upon the subject 
 of retrospective laws divesting vested rights, was obiter 
 dicta. In the case cited from 2 Peter's R., the act simply 
 changed a rule of evidence as between landlord and 
 tenant, so that a tenant might in an action dispute the 
 title of his landlord, which under the common law he 
 could not do ; and even that act w 7 as confined to cases 
 which had not passed into judgment, so as to become a 
 vested right under a judgment. («) The case of Wat- 
 son v. Mercer, was an act which cured a defective ac- 
 knowledgment of a deed, and the decision was placed 
 on the ground that the act did not affect or touch any 
 title acquired under any patent or deed. It assumed the 
 title good, and made the deed effectual to secure the 
 right which vested, or was intended to be vested under 
 the deed : in other words, gave effect to vested rights. 
 The case of The Charles River Bridge v. The Warren 
 Bridge above cited, does not necessarily determine that 
 the legislature may legitimately pass retrospective laws 
 having a retroactive effect, and thereby divest vested 
 rights. It is true, as we have seen, it was held that 
 state laws might be retrospective in their character, and 
 might divest vested rights without conflicting with the 
 constitution of the United States, unless it impaired the 
 obligation of a contract. This proposition, restricted as 
 it is in that decision, is undoubtedly true ; for that in- 
 
 (a) See also, 13 Sergt. & Rawle, 133 ; 16 ibid. 169. Delancy v. Tilgh- 
 man, Gill. & Johns. 461. Wilkeson v. Lcland, 2 Pet. R. 627.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 515 
 
 strument does not contain any inhibition against state 
 legislatures passing retrospective laws, having a retro- 
 active effect upon mere civil rights. By a critical exami- 
 nation of this case, it will be perceived that it was unne- 
 cessary for the court to lay down that proposition qualified 
 as it was ; and so far as relates to retrospective laws di- 
 vesting vested rights, it is also obiter dicta; for that 
 question did not arise out of the facts in that case. The 
 facts in that case were, that a charter had been granted 
 to a bridge company with authority to receive tolls for a 
 certain number of years. Before the expiration of that 
 charter, the legislature incorporated another company 
 with authority to erect a bridge over the same river, i n 
 such proximity to the bridge of the former company as 
 seriously to affect its tolls. The validity of the last act 
 came in question in this cause. The court held, that 
 the charter of the first company did not create a contract 
 with it, that no other bridge company should be incorpo- 
 rated. It will be perceived, if this was so, they had no 
 vested right to all the tolls paid by persons crossing this 
 river. The only right in this respect which vested in 
 it, was a vested right in all such tolls as should accrue 
 from persons who actually crossed its bridge. The lat- 
 ter act, therefore, did not in this respect affect any right 
 vested in the first company under its charter. Hence, 
 it was not necessary for the court to decide, that a retro- 
 spective law might be passed having a retroactive effect, 
 so as to divest vested rights. The decision was put 
 upon the ground in fact, that the act did not divest any 
 vested right which had been secured to the company by 
 its charter, or which had become vested in it. This 
 case, as well as the two other cases above cited, on the 
 one hand, distinctly recognize the sanctity of rights 
 vested under any compact ; and on the other, they do 
 not sanction the doctrine, nor do they sustain the posi- 
 
 69
 
 546 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 tion that a state legislature, in the legitimate exercise of 
 its authority, may by retrospective legislation, divest 
 vested rights. They only declare that they may do so 
 for aught that is contained in the federal constitution. 
 
 § 380. The doctrine of these cases does not conflict with 
 the views we have taken in a preceding chapter, when 
 considering laws of this character. We omitted then to 
 refer to them as they came more properly under consid- 
 eration as a constitutional question. It has been hfeld, 
 that statutes, the object of which are to cure all defec- 
 tive acknowledgments, in a certain class of deeds, and 
 give them the same efficacy as if they had been originally 
 in proper form, are valid acts of legislation. («) But 
 such statutes do not apply to cases which have actually 
 passed into judgment, under which rights have become 
 absolutely vested.(^) Other confirmatory acts have been 
 sustained in other states, although not decided strictly 
 under any express constitutional inhibition against re- 
 trospective laws. The judges of the court in Connecti- 
 cut have repeatedly, in sustaining such acts, said that 
 retrospective laws, impairing vested rights, if not clearly 
 unjust were entitled to obedience, and to disregard an 
 act of the legislature, unless it be inequitable, oppressive, 
 and in violation of the social compact, is not within the 
 confines of judicial authority. (c) In two of the cases 
 cited, the acts were acts confirming certain acts defec- 
 tively executed, or declaring that certain acts should not 
 be deemed void which otherwise would have been so. 
 And in the first case, the act under consideration made 
 
 (a) Tate v. Stooltzfoos, 16 S. & R. 35. McMaster v. The Commonwealth, 
 3 Watts' R. 294. Walter v. Bacon, 8 Mass. R. 472. 
 
 (b) Barnelt v. Barnett, 15 S. & R. 72. 
 
 (c) Goshen v. Stoning ton, 4 Conn. R. 209. Mather v. Chapman et al., 6 
 Conn. R. 54. Beach v. Walker, 6 Conn. R. 197. Booth v. Booth, 7 Conn. 
 R. 365. Norton v. Petlibone, 7 Conn. R. 319.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 
 
 .17 
 
 valid an informal marriage. In that case, as we have 
 already seen, Hosmer, Ch. J., dissented. The decisions 
 in Connecticut are based on the reason, that every act 
 of the legislature implies an opinion, that the legislative 
 body had a right to enact it, and that the judiciary would 
 discover sufficient promptitude, if it determine a law to 
 be invalid, that operates by retrospection unjustly on 
 persons or property. That this principle steers a cor- 
 rect medium, admitting the sovereignty of the legislature 
 to do justice, by an act unquestioned by the court of 
 law, while it equally repels the supposed uncontrollable 
 omnipotence of the same body, to require the observance 
 of an unjust law, in subversion of fundamental rights, 
 and in opposition to the social compact. They concede 
 that this question is not free from difficulty. But hold, 
 that unless the doctrine sanctioned by this rule be em- 
 braced, this extreme would be resorted to, that every 
 retrospective law, however just or wise, affecting the 
 property of an individual, must be considered as of no 
 validity, and thus, in cases the most equitable and salu- 
 tary, the judiciary must deny the legislature the right to 
 pass a law, oppressive to no one, and promotive of entire 
 justice. In the case in which these views were ex- 
 pressed by Hosmer, Ch. J., Mr. Justice Lanman con- 
 curred, Mr. Justice Peters dissented, and Justices Brai- 
 nard and Dagget expressed no opinion. The act in 
 question in this case was a confirmatory one, providing 
 that no levy of an execution on real estate previously 
 made should be deemed void, because the officer em- 
 braced in his return as part of the cost of the levy, other 
 and greater fees than were by law allowed. These acts, 
 it is true, some of them operated upon and affected, to 
 some extent retrospectively, vested rights, yet none of 
 them, so far as operative as confirmatory, merely, di- 
 vested any vested right, in the proper sense of the term. 
 They legalized past acts defectively done. They were
 
 548 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 confirmatory of acts of a remedial nature, and legalized 
 things pertaining to remedial proceedings, connected 
 with the enforcement of rights, to some extent authorized 
 and sanctioned by law. Were declarative that an act by 
 which vested rights had been divested, should not be ren- 
 dered nugatory, because, by accident, mistake, or other- 
 wise, there had been an excess or defect of authority, in a 
 matter connected with an act, per se, legal to some extent, 
 unless tainted by an illegal act or defect growing out of 
 extraneous matters. That such defect or excess should 
 not vitiate the whole of the proceedings, those that were 
 otherwise authorized as well as those not. They merely 
 sanction the doctrine that a past error shall not be unalter- 
 ably and irretrievably fixed, beyond the power of legisla- 
 tion, in cases where it may be remedied without injustice, 
 or inequitable oppression, and without any violation of 
 the fundamental principles of the social compact. An act 
 producing neither of these effects, and at the same time 
 promotive of justice and equity, and restricted within 
 the limits which in these cases has been prescribed, can 
 hardly be regarded as an act taking from one a vested 
 right, and vesting that right in another, or in other words, 
 to operate, per se, by retrospection, so as to divest ante- 
 cedently acquired interests. In the case last cited, the 
 law which was altered by the act, authorized the di- 
 vesting of an estate for the payment of a debt, and to 
 that extent authority to divest existed by the former law 
 and under which the proceedings were had, though not 
 strictly conformable to its literal import. The confirma- 
 tory act declared in effect, that an estate divested under 
 an authority of law pro tanto legal, should not be de- 
 feated or vitiated on account of an excess in the exercise 
 of an authority expressly given to a certain extent. Such 
 acts of legislation may perhaps be defended on the ground 
 that they fall more properly under the denomination of 
 purely remedial acts, which, as we have seen, have uni-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 549 
 
 formly been sanctioned by the civil and common law, 
 although retrospective in their character. 
 
 § 381. The learned and now lamented Chancellor 
 Kent, who has shed so much light upon American juris- 
 prudence, says : " A retrospective statute affecting and 
 changing vested rights, is very generally conceded, in this 
 country, as founded on unconstitutional principles, and 
 consequently inoperative and void." He cites in support 
 of this doctrine numerous authorities, some of which 
 have already been considered by us,(«) and then adds : 
 " But this doctrine is not understood to apply to re- 
 medial statutes, which may be of a retrospective nature, 
 provided they do not impair contracts, or disturb abso- 
 lute vested rights, and only go to confirm rights already 
 existing, and in furtherance of the remedy by curing de- 
 fects, and adding to the means of enforcing existing obli- 
 gations.^) Such statutes have been held valid, when 
 clearly just and reasonable, and conducive to the general 
 welfare, even though they might operate in a degree upon 
 existing rights, as a statute to confirm former marriages 
 defectively celebrated, or a sale of lands defectively 
 made or acknowledged. The legal rights affected in 
 those cases by the statute, were deemed to have been 
 
 (a) See Tennessee Bill of Rights, art. 20. New Hampshire Bill of 
 Rights, art. 23. Osborne v. Huger, 1 Bay, 179. Ogden v. Blackledge, 2 
 Cranch, 272. Bedford v. Shilling, 4 Sergt. & Rawle, 401. Duncan, J., 
 in Eakin v. Raub, 12 ibid. 363-372. Society for Propagation of the Gospel 
 v. Wheeler, 2 Gallison R. 105. Washington, J., in Society for Propagation 
 of the Gospel v. New Haven, 8 Wheat. R. 493. Merrill v. Sherbrune, 1 
 N. H. R. 199. Ward v. Barnard, 1 Aik. R. 121. Brunswick v. Litchfield, 
 2 Greenl. R. 28. Proprietors Kennebeck Purchase v. Laboree, 2 ibid. 275. 
 Story, J., in WUkeson v. Leland, 2 Pet. R. 657, 658. Lewis v. Bracken- 
 bridge, 1 Blackf. Ind. R. 220. 
 
 (b) Duncan, J., in Underwood v. Lilly, 10 Sergt. & Rawle, 101. Tate 
 v. Slooltzfoos, 16 ibid. 35. Bleakney v. F. <Sr M. Bank, 17 ibid. 61. Foster 
 v. Essex Bank, 16 Mass. R. 245. Lock v. Dane, 9 id. 360. Townsend r. 
 Townsend, 1 Peck. Tenn. R. 16 ; 17 ibid. 266.
 
 550 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 vested subject to the equity existing against them, and 
 which the statute recognized and enforced. But the 
 cases cannot be extended beyond the circumstances on 
 which they repose, without putting in jeopardy the en- 
 ergy and safety of the general principle."(«) 
 
 § 382. It is true, however, that all such acts lie 
 close upon the line which divides legitimate from ille- 
 gitimate acts of legislation. To draw that line with nice 
 precision, and run it with technical accuracy, is a matter 
 of much intrinsic difficulty, and requires great discrimi- 
 native powers and intellectual discernment. It has, in- 
 deed, taxed the intellect of many of the ablest minds 
 which have adorned and illuminated by their genius and 
 legal acumen, the jurisprudence of a nation illustrious in 
 all that pertains to the science of legislation, under a 
 written and well defined fundamental law, as the basis 
 of the civil compact of an independent and free people. 
 It ever has been, and probably ever will be, a difficult 
 and vexed question, presenting itself in many varied 
 aspects ; and as hitherto, it probably ever will be the 
 subject of much conflict and contrariety of opinion 
 among the ablest, the purest, as well as the most dis- 
 criminating minds which shall hereafter sit in places of 
 judgment, clothed with the judicial power of the confed- 
 erated American States, or with that of each distinct 
 and separate member of our augmented and constantly 
 augmenting confederacy. 
 
 § 383. The next restriction upon legislative power 
 which we shall consider, is that affecting the right of 
 trial by jury. The seventh amendment of the constitu- 
 tion of the United States declares, that " In suits at 
 common law where the value in controversy shall exceed 
 twenty dollars, the right of trial by jury shall be pre- 
 
 (a) 1 Kent's Com. 455.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 551 
 
 served." We have already seen that this restriction 
 does not apply to the state governments, but restricts 
 only the government of the United States, and the pro- 
 ceeding of the federal courts. (a) The same rule also 
 obtains in reference to the sixth amendment of the fede- 
 ral constitution, which in criminal cases secures to the 
 accused a trial by jury. (b) 
 
 § 384. The trial by jury is justly dear to the Ameri- 
 can people. It has always been an object of deep inte- 
 rest and solicitude, and every encroachment upon it has 
 been watched with great jealousy. The right to such 
 a trial is, it is believed, incorporated into, and secured in 
 every state constitution in the Union. One of the 
 strongest objections originally taken against the consti- 
 tution of the United States, was the want of an express 
 provision securing the right of trial by jury in civil 
 cases. As soon as the constitution was adopted, this 
 right was secured by the seventh amendment to the con- 
 stitution proposed by congress ; and which received an 
 assent of the people so general as to establish its impor- 
 tance as a fundamental guaranty of the rights and liber- 
 ties of the people. At this time there were no states in 
 the Union, the basis of whose jurisprudence was not es- 
 sentially that of the common law in its widest meaning, 
 and probably no states were contemplated in which it 
 would not exist. 
 
 § 385. A question has frequently arisen as to the 
 meaning of the phrase " common law" used in this clause. 
 In Parsons v. Bedford^c) it was held, the phrase " com- 
 mon law," found in this clause, is used in contradis- 
 tinction to equity, and admiralty, and maritime juris- 
 
 (a) Livingston v. Mayor, <SfC, of New York, 8 Wend. R. 100. Colt v. 
 Eves, 12 Conn. R. 243. 
 
 (b) Murphy v. The People, 2 Cow. R. 815. Jackson v. Wood, 2 Cow. 
 R. 819. 
 
 (c) 3 Peters' R. 433.
 
 552 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 prudence. The constitution had declared in the third 
 article, " that the judicial power shall extend to all cases 
 in law and equity arising under this constitution, the 
 laws of the United States, and treaties made, or which 
 shall be made under their authority," &c, and to all cases 
 of admiralty, and maritime jurisdiction. It is well 
 known, that in civil causes, in courts of equity and ad- 
 miralty, juries do not intervene, and that courts of 
 equity use the trial by jury only in extraordinary 
 cases to inform the conscience of the court. When, 
 therefore, we find that the amendment requires that 
 the right of trial by jury should be preserved in 
 suits at common law, the natural conclusion w r as, that 
 this distinction was present to the minds of the framers 
 of the amendment. By common law, they meant what 
 the constitution denominated, in the third article, " law ;" 
 not merely suits which the common law recognized 
 among its old and settled proceedings, but suits in which 
 legal rights were to be ascertained and determined, in 
 contradistinction to those where equitable rights alone 
 were regarded, and equitable remedies were adminis- 
 tered ; or where, as in the admiralty, a mixture of public 
 law and of maritime law and equity, was often found in 
 the same suit. Probably there were few if any states in 
 the Union, in which some new legal remedies, differing 
 from the old common law forms, were not in use, but in 
 which, however, the trial by jury intervened, and the 
 general regulations in other respects were according to 
 the course of the common law. Proceedings in cases of 
 partition, and of foreign and domestic attachment, might 
 be cited as examples variously adopted and modified. 
 In a just sense, the amendment then might be well con- 
 strued to embrace all suits which are not of equity and 
 admiralty jurisdiction, whatever might be the peculiar 
 form which they might assume to settle legal rights. And 
 congress seems to have acted with reference to this ex-
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 553 
 
 position in the judiciary act of 1789, ch. 20, (which was 
 contemporaneous with the proposal of this amendment,*) 
 Cor in the ninth section it is provided, that " the trial of 
 issues in fact in the district comets in all cases, except 
 civil causes of admiralty and maritime jurisdiction, shall 
 be by jury." And in the twelfth section it is provided, 
 that " the trial of issues in fact in the circuit courts, shall, 
 in all suits, except those of equity and of admiralty 
 and maritime jurisdiction, be by jury ;" and again in the 
 thirteenth section it is provided, that " the trial of issues 
 in fact in the supreme court in all actions at law, against 
 citizens of the United States, shall be by jury." If a 
 suit be instituted in the federal court, in an action at 
 common law, those courts in their proceedings will con- 
 form to the mode of proceeding and trial prescribed by 
 the constitution of the United States, though a different 
 mode may be prescribed by the law r s of the state in 
 which the cause of action arises. («) In accordance with 
 this principle, if in an action at common law in a federal 
 court, a state law provides for a different mode of trial, 
 such provision will by the federal courts be deemed re- 
 pugnant to the clause in the federal constitution, now 
 under consideration. Thus in the case of Bank of Ham- 
 ilton v. Dudley,(b) it was held, that the occupant claim- 
 ant law of Ohio, which declared that an occupying 
 claimant should not be evicted or turned out of posses- 
 sion until he should be paid for his improvements, and 
 directed the court, in a suit at law, to appoint commis- 
 sioners to value the same, was repugnant to this clause 
 in the federal constitution. That the compensation for 
 improvements in such suit must, whenever the action 
 was pending in the federal court, be submitted to a jury. 
 
 (a) Bank of Hamilton v. Dudley, 2 Peters' R. 492. Parsons v. Bedford, 
 3 Peters' R. 433. 
 
 (b) 2 Peters' R. 492. 
 
 70
 
 554 OF CONSTITUTIONAL RESTRICTION [CHAP. IX, 
 
 § 386. Under the constitution of Kentucky it has 
 been held, that the clause in the constitution se- 
 curing the right of trial by jury, 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 ; 
 and in all cases where the legislature had withheld or 
 miglit withhold the trial by jury before the constitution, 
 they might do so after the constitution went into opera- 
 tion. That government never did, either before or since 
 the constitution, extend or grant the right of trial by 
 jury to every controversy between it, and any of its 
 citizens. That to criminal and penal offences it did 
 belong, but not to public debtors. It is upon this prin- 
 ciple that taxes were always recoverable, not only with- 
 out jury, but even without judge, and the assessment of 
 the ministerial officer was made to operate as an execu- 
 tion on the citizen. («) In Virginia, where by statute 
 passed previous to the adoption of the constitution, the 
 court of chancery had jurisdiction to try a matter with- 
 out the intervention of a jury, that right was not taken 
 away by the adoption of the constitution. (6) The court 
 in the case last cited, say : " The propriety of the court 
 deciding without calling a jury, might have been more 
 doubtful if, at the adoption of our constitution, the mat- 
 ter had been exclusively cognizable at law, and the court 
 of chancery had taken jurisdiction under a statute sub- 
 sequently enacted. A decision of the facts by the court 
 might then be considered an innovation of the ancient 
 right of trial by jury, and in conflict with that provision 
 of the constitution which declares that the ancient mode 
 
 (a) Harris v. Wood, 6 Munroe's R. 642. See also, Creigkton v. Johnson, 
 6 Litt. R. 241. Walts v. Griffin, 6 id. 247. 
 
 (b) Watts v. Griffin, 6 Litt. 247.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 555 
 
 of trial by jury shall be held sacred, and the right thereof 
 remain inviolate. But the statutes to which we have 
 referred, were all enacted long before the adoption of the 
 constitution, and every power which the court derived 
 from those statutes before the adoption of the constitu- 
 tion, may no doubt now be exercised without violating 
 any constitutional provision. The statute of this coun- 
 try, it is true, was enacted after the adoption of our 
 first constitution ; but that statute confers no power on 
 the court which it did not possess under the statutes of 
 Virginia ; and according to those statutes we apprehend 
 the court might decide the case without, a jury. Those 
 statutes contain no express provision as to the mode of 
 deciding the causes, but they contain a grant of juris- 
 diction, and that implies a grant of all power necessary 
 to the final decision of the matter in contest." 
 
 § 387. In Kentucky it has been held, " That part of 
 the Kentucky statute of 1792, prohibiting dealing with 
 slaves, without their owner's consent, which provides 
 that the owner may recover four times the value of the 
 article transferred, by the judgment of a justice of the 
 peace, if it be under five pounds, was unconstitutional, 
 as it deprived the party of a trial by jury. "(a) So, for 
 the same reason, the third section of the statute of 1799, 
 concerning the public arms of the state of Kentucky.(6) 
 And so, also, of the statute of 1810, authorizing the 
 county court to impose a fine, without trial by jury, for 
 giving in a false and fraudulent list of taxable pro- 
 perty .(c) In the case last cited, the question arose 
 under an order and judgment of the county court, impo- 
 sing a fine and treble tax on a party for giving in to the 
 commissioners of tax, a false and fraudulent list of his 
 
 (a) Enderman v. Ashby, Pr. Dec. 65. 
 
 (b) Stidger v. Rogers, Pr. Dec. 64. 
 
 (c) Carson v. Commonwealth, 1 A. K. Marsh. R. 290.
 
 556 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 taxable property. Upon the return of the summons 
 into the county court, the party fined and taxed ap- 
 peared and moved the court for a jury to be empannelled 
 for the purpose of trying the issue. The motion was 
 overruled, and judgment rendered in favor of the com- 
 monwealth. This order and judgment came up for re- 
 view, and the only question made was, whether the 
 court decided correctly in refusing to cause the issue to 
 be tried by a jury. The court in that case say : " Test- 
 ing the case exclusively by the act of January, 1810,(«) 
 we should be induced to accord with the decision of the 
 county court ; for, as by that act the court is directed 
 upon the appearance of the defendant, and defence made, 
 to proceed to inquire into and decide the contest, the 
 instruction there given the court, strongly negatives the 
 necessity of calling a jury to assist in its determination. 
 But, as by the constitution of this country, the right of 
 trial by jury is held sacred, and made inviolable, we 
 should, in deciding upon questions involving such a 
 right, look to that instrument as the paramount rule, 
 and give such an operation to the acts of the legislature, 
 as shall accord with its clear and obvious import. In 
 deciding upon the present contest, then, it becomes only 
 necessary to inquire whether or not, the case now be- 
 fore us is of that description which, by the constitutional 
 right, trial by jury is guarantied to the defendant. Still, 
 in making the inquiry, it is material barely to look into 
 the laws regulating the trial of such cases at the time 
 and previous to the adopting the constitution. For, if 
 before and at that time, those who should be accused of 
 like offences, were by the existing laws, allowed to have 
 a decision of their cause by a jury, any change in the 
 law, by which they may be deprived of that privilege 
 
 (a) 4 Little's R. 161.
 
 CITAP. IX.] UPON LEGISLATIVE POWER. 557 
 
 must, as it is an innovation upon the ancient right, be 
 considered an infraction of the clear and obvious mean- 
 ing of the constitution. Looking to those laws, then, we 
 can have no hesitation in deciding that the defendant in 
 the court below was entitled to a trial of the issue by- 
 jury. By an act of the Virginia legislature of 1786, a 
 fine and treble tax is imposed upon such as may give 
 in a false and fraudulent list of taxable property, and in 
 pointing out the mode of ascertaining the truth of such a 
 charge, the act expressly gives to the person accused 
 the privilege of either having a jury called, or a decision 
 by the court. That act, it is believed, was not repealed, 
 but continued in full force until the adoption of the con- 
 stitution, and after being adopted by that instrument, 
 was re-enacted by the legislature of this country at their 
 first session in 1792, (a) and continued in force until the 
 act before alluded to in 1810. Under this state of the 
 law, therefore, at the adoption of the constitution, al- 
 though the act of 1810 seems to bear a different import, 
 we are of opinion, that in accordance to the controlling 
 influence of the constitution, the supreme and paramount 
 law of the country, the court below ought, at the in- 
 stance of Carson, to have tried the issue by a jury." 
 
 § 388. It has also been held, that the ninth section of 
 the act of 1800 of Kentucky, which provided, that "on 
 the dissolution of an injunction, judgment shall be given 
 by the court against the sureties, as well as the plaintiff 
 in the injunction bond. And in all bonds hereafter given 
 on appeals and writs of error, when the judgment of the 
 superior court shall be affirmed in part or in whole, the 
 judgment shall be given against the securities in said 
 appeal or supersedeas bond, as well as against the prin- 
 cipal, and execution shall issue accordingly," was uncon- 
 
 (a) 1 Little's R. 63.
 
 558 OF CONSTITUTIONAL RESTRICTION [CHAP. IX, 
 
 stitutional.(a) The court held, in the case last cited, 
 that " Upwards of twenty years since, and immediately* 
 after the passage of this act, this court decided it to be 
 unconstitutional, and refused to enforce it, and the act 
 had remained in their code as a dead letter ever since ; 
 and among all the courts, superior and inferior, notwith- 
 standing the imperative language of the act, not one, till 
 the present case, had ever undertaken to render a judg- 
 ment or decree enforcing it. After such a total disre- 
 gard of its provisions, and after such a long acquies- 
 cence by the judicial sense of the state, they were 
 bound, whatever their private opinions might be, were 
 it res nova, not to enforce it ; especially as its operations 
 would prove a surprise upon many litigants and more 
 sureties, who had not believed themselves in such dan- 
 ger when they executed such bonds. It was not easy to 
 foresee what would be the effect of such enforcement 
 against all the sureties then bound in injunction, super- 
 sedeas and appeal bonds. The operation of one new 
 rule was often more extensive than the abolition of many 
 old ones. 
 
 § 389. A statute authorizing a judgment to be entered 
 on motion for breach of an agreement, thereafter to be 
 made, to pay money for the building of a penitentiary, 
 has been held not within this constitutional provision. (b) 
 And the same rule has been adopted where a statute 
 gave a right to sureties to recover, by summary process, 
 money paid for their principal. The decision in this 
 latter instance was placed on the ground, that a court of 
 equity, prior to the adoption of the constitution, had 
 jurisdiction in such case, and to proceed without the in- 
 tervention of a jury.(c) So too, it has been held, that in 
 
 (a) Hughs v. Hughs, 4 Monroe's R. 43. 
 (6) Ewing v. Directors, dfc, Hardin's R. 5. 
 (c) Watts v. Griffin, 6 Litt. R. 247.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 
 
 debt or covenant, where the amount has been liquidated 
 by the act or deed of the parties, the court may proceed 
 without the intervention of a jury to assess damages. 
 This case also has been put upon the same ground as 
 that last cited, (a) 
 
 § 390. Statutes giving summary remedies against pub- 
 lic officers and their sureties have, in Kentucky, been 
 held not to be within this clause of the constitution. (b) 
 In Indiana such a statute was sustained ; the court, 
 however, placed their decision on the ground, that there 
 were no express words in the act depriving the parties 
 of their constitutional right of trial by jury, and that the 
 court were unwilling to believe the legislature ever in- 
 tended to abridge this palladium of liberty so particu- 
 larly noticed in the declaration of independence, and 
 secured by the constitution of the state. It however 
 held, that if such was its intention, that so much of the 
 statute as destroyed the common law right of trial by 
 jury in civil cases, where the value in controversy ex- 
 ceeds twenty dollars, was unconstitutional. (c) 
 
 § 391. Where before the adoption of the former con- 
 stitution of Pennsylvania in 1790, justices of the peace, 
 by an act passed the 5th April, 1785, had jurisdiction in 
 cases of debt or demand, not exceeding £10, but by a 
 law passed 19th April, 1794, that jurisdiction was in- 
 creased in cases of the same kind to an amount not ex- 
 ceeding £20. " This law directed, that if any person 
 should bring suit in other manner than was provided by 
 the act, and should not recover more than £20 he should 
 not have judgment for any costs ; at the same time it 
 provided, that either plaintiff or defendant in a suit 
 brought before a justice for a demand above £10 might, 
 
 (a) Harrison v. Chiles, 3 Litt. R. 200. 
 
 (b) Murray v. Askew, 6 J. J. Marsh. 27. Wells v. Caldwell, 1 A. K. 
 Marsh. 141. 
 
 (c) Dawson v. Shaver, 1 Blackf. R. 204.
 
 560 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 before judgment, elect to have the cause tried in the 
 common pleas, the defendant, if he was the party elect- 
 ing, giving security in the nature of special bail, or to 
 enter a common appearance, accordingly as the cause 
 originated by cajrias or summons ; and it entitled either 
 party, even after judgment, if the amount exceeded £5, 
 to appeal to the common pleas, upon giving security to 
 answer costs, to prosecute the appeal with effect, &c. 
 The same jurisdiction, thus modified, was given to the 
 alderman's court, which proceeded without the interven- 
 tion of a jury." The constitutionality of this act came 
 in question in Emcrick v. IIar?is,(a) on the one hand, it 
 was contended : " That the law of 19th April, 1794, was 
 not contrary to the constitution. That the legislature 
 had an express right by that instrment, to organize new 
 judicial tribunals ; and that so long as the trial by jury 
 was preserved through an appeal, the preliminary modes 
 of obtaining it might be varied at their will and pleasure. 
 That to deny them this right, was to prohibit the mi- 
 nutest change in any of the formal process and rules by 
 which jury trial was obtained and regulated. That by 
 this law the trial was open to the parties at their own 
 election, or by appeal ; and it rested with them, whether 
 to remain before the magistrate, or to proceed in the old 
 way. That the only difficulty was about the costs ; and 
 that therefore the question of constitutionality came to 
 this, whether the legislature had a right to abridge, or 
 to abolish costs, in cases wherein they were recoverable 
 before the constitution was adopted. That this was 
 almost too plain for argument, and was a matter upon 
 which a multitude of laws had been made since that 
 time, without a suggestion of their impropriety. That 
 it was always a question of policy for the government, 
 
 (a) 1 Binncy's R. 416.
 
 CHAP. IX.] UPOiN LEGISLATIVE POWER. 06 1 
 
 and not of right in the party ; some parties paying none, 
 others paying double or treble costs according to the 
 nature of the case ; a proportion sometimes existing be- 
 tween them and the damages recovered, sometimes not ; 
 the whole being an arbitrary system, of the change of 
 which, or even its extinction, no one had a right to com- 
 plain." On the other hand it was contended, " That 
 the constitution, by directing that trial by jury should be 
 as heretofore, and the right thereof remain inviolate, had 
 interdicted the legislature from abolishing or abridging 
 this right in any case, in which it had existed before the 
 constitution. That a prohibition to do this directly, was 
 a prohibition to do it indirectly, either by deferring the 
 decision of a jury until one, two, or more previous 
 stages of the cause had been passed, or by clogging the 
 resort to that tribunal by penalties of any kind, either 
 forfeiture of costs, security upon appeal, or delay. That 
 the power to obstruct at all, implied a power to increase 
 the obstructions, until the object became unattainable ; 
 and that the instant the enjoyment of the right was to 
 be purchased by sacrifices unknown before the constitu- 
 tion, the right was violated, and ceased to exist as be- 
 fore. That the question was not whether the legislature 
 had a right to take away costs altogether, but whether 
 they could make the loss of them a penalty for demand- 
 ing a right secured by the constitution. That all en- 
 croachments upon constitutional rights were in the first 
 instance minute; that they increased in magnitude, as 
 the boldness of the usurping power increased by the ac- 
 quiescence of the citizen; and that therefore it was the 
 duty of the judiciary to detect and resist the usurpation 
 at the outset." Yeates, J., remarked : " When the con- 
 vention declare in the fifth section of the bill of rights, 
 that ' trials by jury shall be as heretofore, and the right 
 thereof shall remain inviolate,' I do not conceive that 
 
 71
 
 562 OV CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 any restriction is thereby laid on the legislative autho- 
 rity, as to erecting or organizing new judicial tribunals 
 in such manner as may be most conducive to the gene- 
 ral weal, on a change of circumstances effected by a 
 variety of causes. This appears plain to me from the 
 fifth article of the constitution, which vests the judicial 
 power of the state ' in a supreme court, courts of oyer 
 and terminer, and sessions of general jail delivery, com- 
 mon pleas, orphan's court, register's court, sessions of 
 the peace, justices of the peace, and in such other courts 
 as the legislature may from time to time establish.' But 
 it is equally obvious to my understanding, that the legis- 
 lature cannot constitutionally impose any provisions sub- 
 stantially restrictive of the right of trial by jury. They 
 may give existence to new forums ; they may modify 
 the powers and jurisdiction of former courts, in such in- 
 stances as are not interdicted by the constitution from 
 which their legitimate powers are derived. Still, the 
 sacred inherent right of every citizen, a trial by jury, 
 must be preserved. ' It shall remain inviolate, as hereto- 
 fore.' When the present state constitution was formed, 
 the £10 act which passed on the 5th April, 1785, was 
 in full force, and must be presumed to have been in the 
 contemplation of the convention, who by the words ' as 
 heretofore,' virtually confirmed it. The law now in 
 question was enacted at a subsequent period on the 
 19th April, 1794; and is therefore subject to legal dis- 
 cussion. It extended the jurisdiction of justices of the 
 peace to £20. With the wisdom, sound policy, or ex- 
 pedience of that law, this court have nothing to do. 
 These are matters purely of legislative deliberation and 
 cognizance. I cannot avoid lamenting that the original 
 jurisdiction of suits embraced by the act is exclusively 
 assigned to a single justice, and only an appellate juris- 
 diction reserved to a jury. But it must be admitted that 
 the right of trial by jury is not taken away, though the
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 563 
 
 party may be subjected to some inconvenience in making 
 his election. The law therefore appears to me not to 
 be that plctin and clear case, in which I should feel my- 
 self authorized to pronounce on its invalidity, as a devi- 
 ation from the constitution." 
 
 § 392. Mr. Justice Brackenridge, in the same case, 
 said : " It is of less moment that under this act the juris- 
 diction of the justices is extended to a demand of £20 ; 
 yet it may be said to be * contrary to the spirit of the 
 constitution.' For though an appeal is saved in debt or 
 demand above £5, yet there is in the first instance a pri- 
 vation of the trial by jury. It is true there is weight in 
 the consideration expressed in the preamble of the act, 
 * the lessening in the value of money.' But it cannot be 
 in the spirit of the constitution, but contrary to it, to ex- 
 tend the jurisdiction of the justices of the peace, ad libi- 
 tum, and to any extent, even allowing the appeal. Yet 
 it is one thing to be contrary to the spirit of the consti- 
 tution, and another thing to be in direct violation of it. 
 ' Trial by jury shall be as heretofore.' But trial by jury 
 heretofore, had not been known in the forum of the jus- 
 tice. And it could not be with a view to secure the 
 jury trial in this forum, that the provision was intro- 
 duced. It must have been to secure the trial in the 
 courts where it had existed ; or to secure it in those 
 courts which ' the legislature may from time to time 
 establish.' But in the distribution of judicial power to 
 the justices of the peace where the trial by jury does 
 not exist, what is given more to the cognizance of the 
 justice, is making less the jurisdiction of the courts 
 where the jury trial does exist; and is indirectly taking 
 away the trial by jury from the subject of the jurisdic- 
 tion given to the justice. Yet this is but an indirect in- 
 vasion ; and the difficulty is to say where it may begin 
 to be an invasion, unless it is assumed as a principle 
 that it cannot be extended beyond what it was at the
 
 564 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 time of framing the constitution ; and this, taking into 
 view the history and progress of the jurisdiction, would 
 seem to be assuming more than is justifiable. If then 
 we are not arrested at the precise point where the mat- 
 ter stood at the framing of the constitution, with respect 
 to an enlargement of the jurisdiction of the justice of the 
 peace, how far shall we go 7 Where shall we stop 1 Is 
 it competent to the judiciary to fix this point? Is it not 
 in the nature of it, a matter of discretion, a question of 
 expediency 1 And must it not be left to the legislature 1 
 What might be done in an extreme case which might 
 be imagined, an accumulation of jurisdiction in a justice 
 of the peace far beyond any thing like what had before 
 existed, it is not necessary to say ; for the present would 
 not appear to me to be such a case, nor can it warrant 
 the judiciary to exercise an act of such paramount and 
 delicate authority as to interfere. My opinion therefore 
 must be for the plaintiff in the suit before the justice. 
 It will be observed that I have confined myself to the 
 act giving jurisdiction to the justice of the peace in de- 
 mands not exceeding £20, under which the jurisdiction 
 in the case before us arises ; and which act, being of the 
 19th April, 1794, is an extension of the act of March, 
 1745, and subject to, and under every regulation, restric- 
 tion and exception in that act. The exceptions in that 
 act with respect to the subject of controversy, debt for 
 rent, debt upon bonds for performance of covenant, 
 actions of covenant, replevin, &c, have been stated, and 
 the jurisdiction in the act in question being subject to 
 the like exceptions, it has not come in my way, in con- 
 sidering the case before us, to take notice of what might 
 be the question in a case where the subject of jurisdic- 
 tion was enlarged as to the cause of action, as well as to 
 the quantum of the demand ; or as to the cause of action 
 itself. I take it to be of more moment that the jurisdic- 
 tion be confined as to the subject of controversy, than as
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 569 
 
 to the quantum of demand, or at least as much ; for the 
 principle of law, which may come in view and be dis- 
 posed of by the justice, may be of as much consequence 
 as the value of the property. I should feel myself under 
 more difficulty to reconcile the enlarging the jurisdiction 
 as to cause of action, than as to quantum of demand. But 
 there is nothing in the act before us which goes beyond 
 debt, or contract, or actions not excepted in the act of 
 March, 1745." 
 
 § 393. In another case in the same state, it was 
 held, that where the defendant had a right, in a case 
 tried before a justice, to appeal to the court of com- 
 mon pleas, where he might have a trial by jury, although 
 required to make oath " that he verily believed injustice 
 had been done him, and that the appeal was not made 
 for the purpose of delay," was not one in conflict with 
 this clause in the constitution. That this provision was 
 no more than a wholesome regulation. The object of 
 courts was to administer justice, and no man had a right 
 to complain, because he was refused an appeal intended 
 for the purpose of delay ; or in a case in which he did 
 not think that he had suffered injustice, that such laws 
 as this promoted justice, and left the substance of the 
 trial by jury unimpaired ; and that was all that was re- 
 quired in the expression in the constitution, that " trial 
 by jury shall be as heretofore." 
 
 § 394. In Connecticut, where the provisions of a city 
 charter provided that the jury should be taken from the 
 freemen of the city, instead of the body of the county, it 
 was held that the act was not repugnant to the constitution 
 of that state, which declares that the right of trial by jury 
 shall remain in violate, («) It was objected that the jury 
 were not taken from the body of the county, but from a 
 particular section, and thus the right of trial by jury was 
 
 (a) Colt v. Eves, 13 Conn. R. 213.
 
 566 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 not preserved inviolate. But the court held, that to pre- 
 serve the right of trial by jury inviolate could not mean, 
 that we must pursue the exact course taken in England. 
 If it did, it would be difficult to say what time should 
 be selected as the criterion, for in England the qualifica- 
 tion of jurors had been constantly changing. That be- 
 side this, the common law required merely that the jury 
 should come from the vicinage. That the direct princi- 
 ples of the common law had in fact been adopted in the 
 city charter. But even if it were an innovation upon 
 the common law, it would not follow that the trial by 
 jury was not preserved inviolate. It never could have 
 been intended to tie up the hands of the legislature, so 
 that no regulations of the trial by jury could be made. 
 The same court in a previous case held, that within the 
 reasonable intendment of this clause in the constitution, 
 if the trial by jury be not impaired, although it might be 
 subject to new modes, and even rendered more expen- 
 sive, if the public interest demanded such an alteration, 
 it would not be a violation of this clause in the consti- 
 tution. (a) 
 
 § 395. In New York, it has been determined that 
 a statute creating a court of special sessions for the trial 
 of petit larceny, without a jury, was not in conflict with 
 a former constitution of that state, which declared " The 
 trial by jury in all cases in which it has been heretofore 
 used, shall remain inviolate forever." In one case where 
 the constitutionality of the act came in question, (6) the 
 decision was placed upon the ground, that the constitu- 
 tion of 1821 made that case a special exception, so that 
 no question of its constitutionality could arise under it ; 
 and that the constitution of 1777 had, in express terms, 
 retained such parts of the common law of England, and 
 
 (a) Beers v. Beers, 4 Conn. R. 535-539. 
 
 {0) The People v. Murphy, C Cowen's R. 815.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 567 
 
 of the statute law of England and Great Britain, and of 
 the acts of the legislature of the colony of New York 
 as did together form the law of the colony on 19th of 
 April, 1775. That as early as 1774, and previous to tlie 
 adoption of the constitution of 1777, an act authorizing 
 a trial of such an offence by three justices, had been 
 passed, and hence the statute did not conflict with the 
 constitution. In the case of Jackson, ex dem. Wood v. 
 lloud,(a) Chancellor Walworth in 1824, then circuit 
 judge, who passed upon this question, said : " The former 
 constitution of this state was in force at the time of this 
 conviction, and the only part which had any bearing 
 upon the question, was the 41st article. That part of 
 the constitution provided, that trial by jury, in all cases 
 in which it had before been used in the colony of New 
 York, should remain inviolate forever, and that the legis- 
 lature should, at no time thereafter, institute any new 
 courts but such as should proceed according to the course 
 of the common law. If the act of 1801, authorizing a 
 trial by special sessions, without indictment or jury, in 
 cases of petit larceny and other small offences, had been 
 the first law instituting such courts and authorizing such 
 trials, it would have been a palpable violation of this 
 article of the constitution. But this act was only a re- 
 vision of a former law, which was in force at the adop- 
 tion of the constitution, in 1777, and as it respected 
 these courts and the offences of which they had cogni- 
 zance, contained no new provisions. The first act insti- 
 tuting such courts, and containing substantially the same 
 provisions, was passed by the colonial legislature in 1744. 
 It was amended in 1768, and was re-enacted in the 
 revisions of the laws in 1788, 1801 and 1813 ; and it is 
 recognized and provided for by the 7th article of the 
 new constitution of this state. No right of trial by jury 
 
 (a) 2 Cowen's R. 819.
 
 568 OF CONSTITUTIONAL RESTRICTION [cHAP. IX. 
 
 ever existed in those courts until it was authorized by 
 the act of the last session. The legislature, therefore, 
 did not establish any new court, and the right of trial by 
 jury remained as it had been used in the colony of New 
 York, previous to the adoption of the constitution." 
 
 § 395. The constitution of Massachusetts provides, 
 " In all controversies concerning property, and in all 
 suits between two or more persons, except in cases in 
 which it has heretofore been otherwise used and prac- 
 tised, the parties have a right to trial by jury." It has 
 been held, that this provision was not violated by a law 
 which disallowed an appeal from a justice of the peace, 
 on a complaint filed to collect a fine under the militia 
 law. (a) In the case cited, however, it was not neces- 
 sary for the court to pass upon this question. Mr. Jus- 
 tice Thatcher, in the opinion delivered by him, declared 
 that on this constitutional question he did not think it 
 necessary to give an opinion. The constitution had not 
 secured the right of appeal in any case : that was left 
 wholly to the legislature ; nor had the constitution un- 
 dertaken to detail, or even to specify the mode in which 
 parties were to have the trial by jury : that was left to 
 the legislature. Sewell, J., held, that whatever might 
 be the construction or effect of this article of the consti- 
 tution in ordinary cases, it had no application to the case 
 then under consideration. That the appeal was claimed 
 against a judgment, or decision, by the justice or justices 
 upon the trial of an issue of law, exclusively cognizable 
 by the justice or justices, without the intervention of a 
 jury; and at the time of the appeal claimed, no issue 
 had been taken or tendered by the defendant, suitable 
 for the cognizance of a jury. At the utmost, this clause 
 could only preserve the right, to be exercised at the will 
 
 (a) Mountforl v. Hall, 1 Mass. R. 413.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 569 
 
 of the party. Mr. Justice Sedgwick placed his decision 
 on the ground that it did not appear, nor had any laws 
 been shown for that purpose, that before the framing of 
 the constitution a man charged with a mere neglect of 
 militia duty, was entitled to a trial by jury, but the fact 
 it was believed, was directly to the contrary. Hence, 
 the defendant was not deprived of a trial by jury in a 
 case where before the constitution, it had been other- 
 wise used and practised. 
 
 § 396. It has also been held in the same state that 
 trials of questions of settlement of paupers might be re- 
 quired to be had by the court without the intervention 
 of a jury without any conflict with this clause.(a) The 
 decision in this instance, was also placed on the ground 
 that it came within the exception to that general pro- 
 vision of causes which were used and practised other- 
 wise before the adoption of the constitution. That from 
 the first settlement of the country, all questions relative 
 to the settlement or removal of paupers had been heard 
 and determined by the courts of the general sessions of 
 the peace, without the intervention of a jury. 
 
 § 397. We have now discussed all the questions on 
 the subject of legislative pow T er which the limits of this 
 work will admit of, and must bring this branch of our 
 subject to a close. There is one other question which, 
 although not arising under this head, demands a mo- 
 ment's consideration, as it stands connected with the 
 subject of legislative power. That is the question as to 
 the manner, and by whom, an abuse of legislative au- 
 thority is to be controlled. We shall, therefore, close 
 this part of our commentaries, by adverting in this place 
 to the question of the power of courts to declare a statute 
 
 (a) The Inhabitants of Shirley v. Lunenburgh, 11 Mass. R. 379. 
 
 72
 
 570 OF CONSTITUTIONAL RESTRICTION [cfiAP. IX. 
 
 void, on the ground of it being repugnant to, or in con- 
 flict with, the constitution. 
 
 § 398. In a preceding chapter we considered the con- 
 trolling force of statutes, and the power of courts to de- 
 clare them void, independent of any question as to con- 
 flict with the provisions of any written constitution. 
 We therein considered the extent of authority claimed 
 for the parliament of England, and the views which had 
 been taken of this question by legal writers ; wherein it 
 was seen, that it had been claimed, that parliament could 
 do any thing that was not naturally impossible, and that 
 some writers had not scrupled to call its power by the 
 bold figure of the omnipotence of parliament, and that 
 which it did, no power or authority on earth could undo. 
 We live under a government unlike that of England, 
 from whence we have derived many of our laws, and 
 whose system of jurisprudence has been extensively 
 copied by most of the American states ; yet, the juris- 
 prudence of England sheds no light on the great and 
 important question which is the subject of our pre- 
 sent inquiry. It is difficult to define what the con- 
 stitution of England is ; for, it is not reduced to writing, 
 nor characterized by the certainty and precision of a 
 written and permanent fundamental law ; it bends to 
 every govermental exigency ; it varies and is blown about 
 by every political breeze, or legislative humor and ca- 
 price.^) It is on this ground that the doctrine of the 
 omnipotence of parliament rests. It has with great pro- 
 priety been said, " In England there is no written con- 
 stitution, no fundamental Jaw, nothing visible, nothing 
 real, nothing certain, by which a statute can be tested."(6) 
 The basis of the English constitution, the capital princi- 
 
 (a) Van Home's Lestees v. Dorrance, 2 Dallas's R. 308. 
 
 (b) Ibid.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 571 
 
 pie on which all others depend, is, that the legislative 
 power belongs to parliament alone. That is to say, the 
 power of establishing laws, of abrogating, changing, or 
 explaining them. (a) 
 
 § 399. In America the case is widely different. Every 
 state in the Union has its constitution reduced to written 
 exactitude and precision. The constitution is the form 
 of government delineated by the mighty hand of the 
 people, in which certain just principles of fundamental 
 law are established. The constitution is certain and 
 fixed, it contains the paramount will of the people, and 
 is the supreme law of the land, paramount to the power 
 of the legislature, and can only be revoked or altered by 
 the same power that framed it. The life-giving principle 
 aud the death-giving stroke must proceed from the same 
 hand. The constitution is the wish and will of the 
 people themselves in their original, sovereign, and un- 
 limited capacity, while statute law is the work of the 
 legislature, in their derivative and subordinate capacity. 
 The one, the work of the creator, the other, of the crea- 
 ture. The constitution fixes the limits to the legislative 
 exercise of authority, and describes the orbit within 
 which it must move.(6) 
 
 § 400. The question of the power of courts to declare 
 a law void, on the ground of its conflict with the funda- 
 mental law, arose at a very early period of our history, 
 it was considered with becoming deference, and decided 
 by a far sighted and an independent judiciary. As early 
 as 1791 the circuit court of the United States, for the 
 district of New York, in Hayburn's case, declared an act 
 of congress, assigning certain ministerial duties, to the 
 circuit courts of the United States, to be unconstitu- 
 
 (a) Steph. Eng. Comra. vol. ii. 531. 
 
 (J) Van Hornets Lessees v. Dorrance, 2 Dallas's R. S08.
 
 572 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 tional.(a) In Pennsylvania and North Carolina, the 
 circuit courts of the United States within those districts 
 also held the same act not binding upon them, because 
 the legislature had no power to assign to them duties 
 not judicial. (b) In 1797, Judge Patterson assented to 
 the duty of the court, and the paramount authority of 
 the constitution. He said, " The constitution of a state 
 is stable and permanent, not to be worked upon by the 
 temper of the times, not to rise and fall with the tide of 
 events, notwithstanding the competition of opposing in- 
 terests, and the violence of contending parties, it remains 
 firm and immovable as a mountain amid the strife of 
 storms, or as a rock in the ocean amid the raging waves. 
 That it was a clear position, if a legislative act opposes 
 a constitutional principle, the former must give way and 
 be rejected on the score of repugnance. It was the duty 
 of the court in such a case to adhere to the constitution, 
 and to declare the act of the legislature null and void."(c) 
 § 401. In 1803, this question again came under con- 
 sideration in the Supreme Court of the United States, 
 ■when Marshall, J., said, " The question whether an act 
 repugnant to the constitution can become the law of the 
 land, is a question deeply interesting to the United 
 States. That the people have an original right to 
 establish for their future government, such principles as, 
 in their opinion, shall most conduce to their own happi- 
 ness, is the basis on which the whole American fabric 
 has been erected. The exercise of this original right is 
 a very great exertion ; nor can it, nor ought it to be fre- 
 quently repeated. The principles, therefore, so esta- 
 blished are deemed fundamental. And as the authority 
 from which they proceed is supreme, and can seldom 
 
 (a) 1 Kent's Com. 450. 
 
 (b) Case of Hay burn's, 2 Dallas's R. 410. 
 
 (c) Van Home's Lessees v. Dorrance, 2 Dallas's R. 309.
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 573 
 
 act, they are designed to be permanent. This original 
 and supreme will organizes the government, and assigns 
 to different departments their respective powers. It 
 may either stop here, or establish certain limits not to 
 be transcended by those departments. The government 
 of the United States is of the latter description. The 
 powers of the legislature are denned and limited ; and 
 that those limits may not be mistaken or forgotten, the 
 constitution is written. To what purpose are powers 
 limited, and to what purpose that limitation committed 
 to writing, if these limits may, at any time, be passed by 
 those intended to be restrained? The distinction be- 
 tween a government with limited and unlimited powers 
 is abolished, if those limits do not confine the persons on 
 whom they are imposed, and if acts prohibited and acts 
 allowed are of equal obligation. It is a proposition too 
 plain to be contested, that the constitution controls any 
 legislative act repugnant to it ; or, that the legislature 
 may alter the constitution by an ordinary act. Between 
 these alternatives there is no middle ground. The con- 
 stitution is either a superior paramount law, unchange- 
 able by ordinary means, or it is on a level with ordinary 
 legislative acts, and like other acts, is alterable when the 
 legislature shall choose to alter it.(a) 
 
 § 402. " In the United States, the principle in the 
 English government, that the parliament is omnipotent, 
 does not prevail ; though, if there be no constitutional 
 objection to a statute, it is with us as absolute and un- 
 controllable as laws flowing from the sovereign power, 
 under any other government. (6) But in this, and in all 
 other countries, where there is a written constitution, 
 designating the powers and duties of the legislature, as 
 
 (a) Marbury v. James Madison, 2 Dallas's R. 175. 
 (£) 1 Kent's Coin. 426.
 
 574 OF CONSTITUTIONAL RESTRICTION [CHAP. IX. 
 
 well as of the other departments of government, an act 
 of the legislature may be void as being against the con- 
 stitution. The law with us must conform, in the first 
 place, to the constitution of the United States, and then 
 to the subordinate constitution of its particular state ; 
 and if it infringes the provisions of either, it is so far 
 void. The courts of justice have a right, and are in 
 duty bound, to bring every law to the test of the consti- 
 tution, and to regard the constitution, first of the United 
 States, and then of the subordinate constitution of its 
 particular state, as the paramount and supreme law, to 
 which every inferior or derivative power and regulation 
 must conform. The constitution is the act of the people, 
 speaking in their original character, and defining the 
 paramount conditions of the social alliance ; and there 
 can be no doubt on the point with us, that every act of 
 the legislative power, contrary to the true intent and 
 meaning of the constitution, is absolutely null and void. 
 § 403. The judicial department is the proper power 
 in the government to determine whether a statute be, or 
 be not constitutional. The interpretation or construc- 
 tion of the constitution, is as much a judicial act, and 
 requires as much legal discretion, as the interpretation 
 or construction of a law. To contend that courts of 
 justice must obey the requisitions of an act of the legis- 
 lature, when it appears to them to have been passed in 
 violation of the constitution, would be to contend that 
 the law was superior to the constitution, and that the 
 judges had no right to look into it and regard it as the 
 paramount law. It would be rendering the power of 
 the agent greater than that of his principal, and be de- 
 claring that the will of only one concurrent and co-ordi- 
 nate departments of the subordinate authorities under 
 the constitution, was absolute over the other depart- 
 ments, and competent to control, according to its own 
 will and pleasure, the whole fabric of the government
 
 CHAP. IX.] UPON LEGISLATIVE POWER. 57 5 
 
 and the fundamental laws on which it vested. The at- 
 tempt to impose restraints upon the exercise of the legis- 
 lative power would he fruitless, if the constitutional pro- 
 visions were left without any power in the government 
 to guard and enforce them." Chancellor Kent has justly 
 said : " From the mass of powers necessarily "vested in 
 the legislature, and the active and sovereign nature of 
 those powers ; from the numerous bodies of which the 
 legislature is composed, the popular sympathies which 
 it excites, and its immediate dependence on the people, 
 by the means of frequent periodical elections, it follows 
 that the legislative department of the government will 
 have a decided superiority of influence. It is constantly 
 acting upon all the great interests in society, and agita- 
 ting its hopes and fears. It is liable to be constantly 
 swayed by popular prejudice and passion, and it is diffi- 
 cult to keep it from pressing with injurious weight upon 
 the constitutional rights and privileges of the other de- 
 partments. An independent judiciary, venerable by its 
 gravity, its dignity, and its wisdom, and deliberating 
 with entire serenity and moderation, is peculiarly fitted 
 for the exalted duty of expounding the constitution, and 
 trying the validity of statutes by that standard. It is 
 only by the free exercise of this power, that courts of 
 justice are enabled to repel assaults, and to protect every 
 part of the government, and every member of the com- 
 munity, from undue and destructive innovations upon 
 their chartered rights. It has accordingly become a 
 settled principle in the legal polity of this country, that 
 it belongs to the judicial power, as a matter of right and 
 of duty, to declare every act of the legislature made in 
 violation of the constitution, or of any provision of it, 
 null and void."(a) The question whether a law is void 
 
 (a) 1 Kent's Com. p. 430.
 
 576 OF CONSTITUTIONAL RESTRICTION, AC. [cHAP. IX. 
 
 for its repugnancy lo the constitution, is at all times, a 
 question of much delicacy, which ought seldom, if ever, 
 to be decided in a doubtful case. It is not on slight im- 
 plication and vague conjecture, that the legislature is to 
 be pronounced 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 incompati- 
 bility with each other.(rt) In one case,(6) Buchanan, 
 Ch. J., remarks : " It has been said, that a legislative act 
 should not be pronounced unconstitutional or invalid, in 
 a doubtful case ; nor should it, where the doubt is bona 
 Jlde, and well founded, and not the result of disinclina- 
 tion to deny the authority of the legislature, which all 
 must feel, which none should yield to in violation of a 
 solemn duty. But where a judge is satisfied, upon full 
 consideration, that an act of the legislature is contrary to 
 the constitution of the United States, the supreme law 
 which he is bound to obey, and which must prevail over 
 any act that comes in conflict, and cannot stand with it, 
 or is for any other reason invalid, he has no choice ; and 
 all that is left for him, is honestly and fearlessly to do 
 his duty, from the faithful discharge of which, however 
 unpleasant the task, no upright judge can shrink, if he 
 will. On the other hand, a judge should not suffer 
 himself to be betrayed to pronounce an act unconstitu- 
 tional or invalid, on insufficient grounds, by a morbid 
 apprehension that a contrary decision might be ascribed 
 to the want of a proper sense of judicial duty." 
 
 (a) Fletcher v. Peck, 6 Cranch R. 87. 
 
 (b) The Regents of the University of Maryland v. Williams, 9 Gill & 
 Johns. 383.
 
 CHAP. X.] OF LEGISLATIVE AND, «tc. 577 
 
 CHAPTER X. 
 
 OF LEGISLATIVE AND JUDICIAL INTERPRETATION. 
 
 § 404. Having in the preceding chapter considered 
 the origin and history of legislation, and the subject of 
 legislative power, we shall now enter upon the second 
 subdivision of our subject, that, of the construction of 
 statutes. The question of the bounds of legislative and 
 judicial interpretation, lies at the threshold of this part of 
 our inquiries, and is one claiming the consideration of 
 all whose duty it is to interpret the statute laws of a 
 nation, which in this country, constitutes 1 the greatest 
 part of our entire judicial system. It should be the aim 
 of judges, in all cases, to keep within the legitimate 
 bounds of interpretation, and studiously to avoid such 
 latitude of interpretation as would amount to judicial 
 legislation, rather than judicial interpretation. In all 
 that we shall annote on this subject we are indebted to 
 the pen of the English author on statutes, Mr. Dwarris. 
 
 § 405. It is a remarkable fact, that in an enlightened 
 age, and among so many intelligent inquirers into the 
 philosophy, both of history and of law, so little attention 
 should have been paid to the consideration of the im- 
 portant question, — What are the principles upon which 
 the jurisprudence of a country ought to proceed 1 Cer- 
 tainty in the law, to a positive extent, is unfortunately 
 unattainable ; immutability of laws, even if it were de- 
 sirable, (which it surely is not) is still more impracti- 
 cable. An extensive alteration in the condition of the 
 people, — a total change of circumstances, must, at any 
 time, induce some change of institutions, and render ab- 
 
 73
 
 578 OF LEGISLATIVE AND [CHAP. X. 
 
 solutely necessary a sensible modification of the laws. 
 Laws must be accommodated — or laws will accommo- 
 date themselves — to the growing necessities of mankind, 
 and the varying state and condition of human society. 
 " Comment enchainer 1' action du temps 7 Comment 
 s' opposer au cours des evenements, ou a la pente insen- 
 sible des mceurs? Comment connaitre et calculer d' 
 avance ce que 1' experience seule peut nous reveler 7 La 
 prevoyance peute-elle jamais s'etendre a des objets que 
 la pensee ne peut atteindre7 — Les hommes ne se repo- 
 sent jamais ; ils agissent toujours : et ce mouvement, qui 
 ne s'arrete pas, et dont les effets sont diversement modifies 
 par les circonstances, produit, a chaque instant, quelque 
 combinaison nouvelle — quelque nouveau fait, — quelque 
 resultat nouveau. (a) 
 
 § 406. Again, with the highest degree of certainty of 
 which laws are susceptible, doubts will still arise upon 
 the sense of enactments, or as to their application. In 
 all cases where the legislature has not defined with per- 
 fect precision the exact nature of the subject of its pro- 
 visions, some authority will be required to decide upon 
 the meaning of the terms which it employs, or the cases 
 to which its provisions shall extend. 
 
 § 407. In ancient tinies, cases of the first impression, 
 and all matters presenting any serious doubt or difficulty, 
 were usually " adjourned into parliament, to be resolved 
 and decided there."(£») To this effect Bracton observes, 
 — " Si aliqua nova et inconsueta emerserint quae nun- 
 quam prius evenerunt, et obscurum et difficile sit eorum 
 judicium, tunc ponantur judicia in respectu usque ad 
 Magnam Curiam, ut ibi per consilium curee termine- 
 tur.'Yc) For the high court of parliament met every 
 
 (a) Discours Pr^liminaire du premier projet de Code Civil, p. 29. 
 
 (6) 2 Inst. 408. 
 
 (c) Braclon, li. 1, ca. 2.
 
 CHAP. X.] JUDICIAL INTERPRETATION. 579 
 
 year, " or oftener if need was," for the " maintenance and 
 execution of the lavvs.'(rt) 
 
 § 408. In like manner it has been said in modern 
 times, (and the sentiment has been before noticed with 
 approbation,) parliament is always at iiand, to supply 
 deficiencies and to correct mistakes. (b) Is the legisla- 
 ture, then, to be interrogated, every time a doubt arises 
 upon the construction of a statute, to decide particular 
 disputes 1 Assuredly not. For would not this be end- 
 less? Would it not impair the usefulness, and derogate 
 from the dignity of the judicature 1 Would it not give 
 room for partiality and oppression 1 " Forcer le magis- 
 trat de recourir au legislateur, ce serait admettre le plus 
 funeste des principes ; ce serait renouveler parmi nous la 
 desastreuse legislation des Rescrits. Car, lorsque le 
 legislateur intervient pour prenoncer sur des affaires nees 
 et vivement agittees entre particuliers, il n' est pas plus 
 a V abri des surprises que les tribunaux." And under 
 such circumstances certainly ; " On a moins a redoubter 
 l'arbitraire regie, timide et circonspect d'un magistrat 
 que peut etre reforme, et qui est soumis a la action en 
 forfaiture, que 1' arbitraire absolu d' un pouvoir indepen- 
 dant, qui n' est jamais responsable. Des lois intervenues 
 sur des affaires privees seraient souvent suspectes de 
 partialites et toujours elles seraient retroactives et in- 
 justes pour ceux dont le litige aurait precede 1' interven- 
 tion de ce lois. De plus, le recours au legislateur en- 
 trainerait des longeurs fatales au justiciable," &c.(c) 
 
 § 409. It follows, that the questions of construction 
 before adverted to, — viz. the meaning of the terms em- 
 ployed by the legislature, and the cases to which the 
 provisions of the law are applicable, must be left to the 
 
 (a) 4 E. 3, ca. 14 ; 36 E. 3, ca. 20. (c) Discours Pr^liminaire, &c, p. 26. 
 
 (b) Dwarris on Statutes, p. 721.
 
 580 OF LEGISLATIVE AND [CHAP. X 
 
 decision of the judges. If the judges of the inferior 
 courts are mistaken in their construction of a law, their 
 decision must be reviewed and corrected by the courts of 
 superior jurisdiction. But by what maxims are the 
 judges of both courts to be guided in their expositions, — 
 on what ground will their determinations rest ? Are the 
 courts to proceed upon established principles- — to be 
 governed by fixed rules ; or, exercising a liberal discre- 
 tion, to have recourse, in doubtful cases, to natural prin- 
 ciples, — to aid and to moderate the law according to 
 equitable considerations, — to include in their delibera- 
 tions those cases and circumstances, which the legislator 
 himself would have expressed, had he foreseen them ? 
 
 § 410. To an English lawyer, brought up with a sober 
 veneration of the wise maxim, (so consonant to the spirit 
 of our constitution, and so constantly to be traced per- 
 vading the whole body of our jurisprudence,) — that Op- 
 tima est lex, quce minimum relinquit arbitrio judicis, optl- 
 inus judex, qui minimum sibi^a) the question would 
 seem to present little difficulty. An English judge, 
 however, would be in no slight degree astonished, at 
 finding it laid down as a dogma of law, as in the fourth 
 article of the Titre preliminaire de la publication des 
 Lois : — " Le juge qui refusera de juger, sous pretexte du 
 silence, de l'obscurite, ou de l'insuffisance de la loi, 
 pourra etre poursuivi comme coupable de deni de jus- 
 tice."^) On which law, the following passage in the 
 Discours Preliminaire(c) may be considered as a com- 
 mentary : — " Sur le fondement de la maxime qui les juges 
 doivent obeir aux lois, et qu 'il leur est defendu de les 
 interpreter, les tribunaux, dans ces dernieres annees, 
 renvoyaient par des referes les justiciables au pouvoir 
 
 (a) Aphorism, 46 ; Bacon's Works, vol. 7, p. 148. 
 
 (b) P. 26, Titre Preliminaire. 
 
 (c) P. 25. Discours Preliminaire.
 
 CHAP. X.] JUDICIAL INTERPRETATION. 581 
 
 legislatif, toutes les fois qu 'ils manquaicnt de loi, on que 
 la loi existante leur parassait obscure. Le tribunal de 
 cassation a constamnient reprime cet alms, comrne un 
 dC'iii de justice." From which important passage it is 
 to be collected, that even among our enlightened neigh- 
 bors, and at a very recent period, the boundaries of 
 legislation and of judicial interpretation were so vaguely 
 defined, and so imperfectly understood, that the judges 
 were constantly either mistaking the principles, or erring 
 in the application of them. 
 
 §411. The doctrine laid down in the fourth article 
 of the Titre Preliminaire, before cited, will probably ap- 
 pear to the ordinary reader, even in its present shape, 
 not a little calculated to produce the effect which the 
 Consul Cambaceres denounced as the probable result 
 before the adoption of an amendment suggested by him 
 to control it: — "peut faciliter les usurpations des tribu- 
 naux sur le pouvoir legislatif.(rt) The explanations, 
 however, of this article, which were afforded during the 
 discussion of the projet, are highly valuable. (b) 
 
 § 412. Le Minister de la Justice dit, " qu' il y a deux 
 sortes d' interpretations, celle de legislation et celle de 
 doctrine ; que cettc derniere appartient essentiellement 
 aux tribunaux ; que la premiere est celle que leur est 
 interdite ; que lorsqu'il est defend^ aux juges iV interpre- 
 ter, il est evident que c' est de /' interpretation legislative 
 qu^ 'il s' agit. II cite V art. VII., du titre l er a de V or- 
 donnance de 1667, qui defend aux juges d' interpreter les 
 ordonnances." Le C. Troncket dit, " que 1' on a abuse, 
 pour reduire les juges a un etat purement passif, de la 
 defense que leur avait faite 1' assemble constituante, d' in- 
 terpreter des lois et de reglementer. Cette defense 
 
 (a) Deuxieme redaction, seance de 14 therm, an IX. 
 
 (b) Titre Preliminaire, p. 28.
 
 582 OF LEGISLATIVE AND [CHAP. X. 
 
 n' avail pour objet que d' empecher Jes tribunaux d' ex- 
 ercer une partie de pouvoir legislatif, comme I'avaient 
 fait' Jes anciennes cours, en iixant le sens des lois par des 
 interpretations abstraites et generales, ou en les supple- 
 ant par des arrets de reglement. Mais, pour eviter 
 1' abus qu' on en a fait, il faut laisser au juge 1' interpre- 
 tation, sans laquelle il ne peut exercer son ministere. 
 En effet, les contestations civiles portent sur les sens 
 different que chacune des parties prete a la loi ; ce n' est 
 done pas par une loi nouvelle, mais par 1' opinion du juge, 
 que la cause doit etre decidee. On craint que les juges 
 n'en abusent pour juger contre le texte de la loi; s'ils 
 se le permettaient, le tribunal de cassation aneantirait 
 leurs jugements." Le C. R&dercr dit, " que 1' article IV. 
 donne trop de pouvoir au juge, en Y obligeant de pronon- 
 cer meme dans le silence de la loi. II appartient au 
 judge d' appliquer la loi ; il ne lui appartient pas de rem- 
 plir les lacunes de la legislation, quand la loi garde un 
 silence absola." Le C. Portalis re pond, " que le cours 
 de la justice serait interrompu, s' il n' etait permis aux 
 juges de prononcer que lorsque la loi a parle. Peu de 
 causes sont susceptibles d' etre decidees d' apres une loi, 
 d' apres une texte precis ; c' est par les principes gene- 
 raux, par la doctrine, par la science du droit, qu' on a 
 toujours prononce sur la plupart des contestations. — En 
 matiere criminelle le juge ne doit prononcer que lorsque 
 la loi a qualifie de debt le fait qui est defere a la justice, 
 et qu'elle y attache une peine; en matiere civille au 
 contraire, le juge ne peut se refuser a prononcer indis- 
 tinctement sur toutes les causes qui lui sont presentees, 
 parceque, s' il ne trouve pas dans la loi de regies pour 
 decider, il doit recourer a 1' equite naturelle. Ce serait 
 trop multiplier les lois, que de les faire naitre des doutes 
 des juges." 
 
 § 413. It is necessary to bear these explanations in 
 mind in perusing the following passages from the mas-
 
 CHAP. X.] JUDICIAL INTERPRETATION. 
 
 terly discourse prefixed to these Discussions sur le Code 
 Civil ; and it is not less important to remember that in 
 all civilized countries except England, (a) the jurisdiction 
 of common law and of equity is committed to the s€tme 
 courts, and that, by blending law and equity together, 
 greater latitude is given to the judges in matters of pro- 
 perty, to mould and adapt, that is, (discarding figurative 
 language,) without absolutely altering, to modify, the 
 law r s, in order to meet the purposes of justice in particu- 
 lar cases, than where the judges are bound by settled 
 rules. With us, even in the courts of equity, which are 
 supposed in some instances, to admit of determinations 
 according to conscience, and arbtirium bon't viri, it has 
 been a question with enlightened lawyers, how far this 
 most liberal description of equitable jurisdiction should 
 be permitted ; and whether courts of equity ought not 
 to be, in all cases, governed by general rules. On the 
 one hand it is admitted, that if this w r ere the case, the 
 consequence would inevitably follow, that a judge would 
 sometimes be bound to pronounce decrees which would 
 be materially unjust; since no rule can be equally just 
 in the application to a whole class of cases, that are far 
 from being the same in every circumstance. But on the 
 other hand, it has been thought, that even this dreadful 
 evil should be tolerated, to avoid a greater ; — that of ren- 
 dering judges arbitrary, and their decrees so fluctuating, 
 that the public could never trust to them as a rule of 
 conduct.(6) 
 
 § 414. The observations of Lord Hardwicke upon this 
 subject, (of the establishment of general rules in our 
 courts of equity,) are entitled to great attention, and his 
 remarks upon the subject of frauds, seem quite conclu- 
 sive upon that part of the subject. " Some general rules 
 
 (a) Some of the American states also. 
 
 (b) Lcrd Kame'a Principles of Equity,
 
 584 UK LEGISLATIVE AND [c'HAP. X. 
 
 there ought to be, for otherwise, the great inconvenience 
 of jus vagum et incertum will follow ; and yet the Pvcb- 
 tor must not be so absolutely and invariably bound by 
 them, as the judges are by the rules of the common law. 
 In the construction of trusts, which are one great head 
 of equity jurisdiction, the rules are pretty well ascer- 
 tained ; so they are in cases of redemption of mortgages, 
 which makes another great branch of that business. But 
 as to relief against frauds, no invariable rules can be 
 established. Fraud is infinite, and were a court of equity 
 once to lay down rules, how far they would go, and no 
 farther, in extending their relief against it, or to define 
 strictly the species, or evidence of it, the jurisdiction 
 would be cramped, and perpetually eluded by new 
 schemes, which the fertility of man's invention would 
 contrive. "(a) 
 
 §,4 15. In the same letter, but in the handling of a 
 different topic, (which will be the subject of notice here- 
 after,) Lord Hardwicke expresses a decided feeling 
 against a measure, the tendency of which would be to 
 make the judges of the common law, law-makers in mat- 
 ters of property. Not so, mutatis mutandis, the French 
 codifiers ; by whom some contempt is indicated, for the 
 practical wisdom of those qui osent prescire imperieuse- 
 ment au legislateur la terrible tache de ne rien abandon- 
 ner a la decision du juge. Quoi que 1' on fasse, — pro- 
 ceeds the same profound and analytical discourse,^) — 
 les lois positives ne sauraient jamais entierement rem- 
 placer V usage de la raison naturelle dans les affaires de 
 la vie ; les besoins de la societe sont si varies, les com- 
 munication des homines est si active, leurs interests sont 
 
 (a) Letter to Lord Karnes ; Lord Woodhouslee's Memoirs of the Life and 
 Writings of Lord Kame. Parked History of the Court of Chancery, Ap- 
 pendix No. 4. 
 
 (b) Discours Prelim, p. 20.
 
 CHAP. X.] JUDICIAL INTERPRETATION. 585 
 
 si multiplies et leur rapports si etendus, qu' il est impos- 
 sible au legislateur de pourvoir a tout. Dans les matieres 
 memes qui fixent particulierement son attention, il est 
 une foule de details qui lui echappent, ou qui sont trop 
 contentieux et trop mobiles pour pouvoir devenir 1' objet 
 d'un texte de loi. Une foule de choses sont done ne- 
 cessairement abandonnes a 1' empire de 1' usage, a la dis- 
 cussion des hommes instruits, a 1' arbitrage des juges. 
 L' office de la loi est de fixer, par de grandes vues les 
 maximes generates de droit ; d' etablir des principes 
 feconds en consequences, et non descendre dans le detail 
 des questions qui peuvent naitre sur chaque matiere. 
 Cest du magistrat et au jurisconsulte penetres de V esprit 
 general des lois, a en diriger 1' application. De la, chez 
 toutes les nations policees, ou voit loujours se former, a 
 cote du sanctuaire des lois, et sous la surveillance du 
 legislateur un depot de maximes, de decisions et de doc- 
 trine qui s'epure journellement par la practique et par 
 le choc des debats judiciaires qui s' accroit sans cesse de 
 toutes les connoisances acquises, et qui a constamment 
 ete regarde comme le vrai supplement de legislation. II 
 serai t, sans doute, desirable que toutes les matieres pus- 
 sent etre reglees par des lois. Mais a defaut de texte 
 precis sur chaque matiere, un usage ancien, constant et 
 bien establi, une suite non interrompue de decisions 
 semblables, une opinion ou une maxime recue, tiennent 
 lieu de loi. Quand on n' est dirige par rien de ci qui 
 est etabli ou connu, quand il s' agit d' un fait absolument 
 nouveau, on remonte aux principes du droit naturel. 
 Car, si la prevoyance des legislateurs est limitee, la na- 
 ture est infinie ; elle s' applique a tout ce qui peut inte- 
 resser les hommes. Pour combattre 1' authorite que 
 nous reconnaisons dans les juges, de statuer sur les choses 
 que ne sont pas determinees par les lois, on invoque le 
 droit qu'a tout citoyen de n' etre juge que d'apres une 
 
 74
 
 58G OF LEGISLATIVE AND [CHAP. X. 
 
 loi anterieure et constante. Ce droit ne peut etre me- 
 connu. Mais pour son application, il faut distinguer les 
 matieres criminelles d' avec les matieres civiles, &c. En 
 matriere criminelle ou il n' y a qu' un texte formel et 
 pre-existant qui puisse fonder 1' action du juge, il faut 
 des lois precises et point de jurisprudence. II en est 
 autrement en matiere civile : la, il faut une jurisprudence 
 parce qu' il est impossible de regler tous les objets civils 
 par des lois. Q,uand la loi est claire, il faut la suivre ; 
 quand elle est obscure il faut en approfrondir les dispo- 
 sitions. Si F on manque de loi il faut consulter 1' usage 
 ou F equite. L' Equite est le retour a la loi naturelle, 
 dans le silence, I' opposition ou 1' obscurite des lois po- 
 sitives. 
 
 § 416. The tenor of these passages, (for the citation 
 of which, from so interesting a work, no apology is con- 
 sidered necessary to the intelligent reader,) may, perhaps, 
 be thought in some measure, to confirm Bacon's saga- 
 cious opinion : — " Apud nonnullos receptum est, ut juris- 
 dictio quse decernit secundum sequum et bonuin atque 
 ilia altera quse procedit secundum jus strictum, iisdem 
 curiis deputentur ; apud alios autem, ut diversis : — Om- 
 nino placet curiarum separatio. Neque enim servabitur 
 distinctio casuum, si fiat commixtio jurisdictionum ; sed 
 arbitrium legem tandem trahet." Does not this effect 
 appear to be produced ; — arbitrium legem trahere 1(a) 
 
 § 417. Where so much is left to the discretion of the 
 judges, it is desirable to know, whether any rules are 
 prescribed for their government, and the guidance of that 
 extensive discretion. The introductory discourse, so 
 often already quoted, observes upon this head, and very 
 judiciously :(6) II est trop heureux qu' il y ait des re- 
 
 (a) De Aug. Scient. lib. 8, cap. 3, aph. 45. 
 
 (b) Tit. Prel. p. 23.
 
 CHAP. X.] JUDICIAL INTERPRETATION. 587 
 
 cueils, et une tradition suivie d' usages, de maximes, et 
 de regies, pour que Ton soit, en quelque sorte. nccessite 
 a juger aujourd' hui, comme on a juge hicr, et qu' il n' y 
 ait d' autres variations dans les jugements publics que 
 celies qui sont amenes par le progres des lumineres et 
 par la force des circon stances. Again, and more em- 
 phatically :(a) Le pouvoir judiciaire, etabli pour appli- 
 quer les lois, a besoin d' etre dirige dans cette application, 
 par certaines regies. Nous les avons traces : elles sont 
 telles, que la raisan particuliere d'aucun horame, ne 
 puisse jamais prevaloir sur la loi, raison publique. 
 Lastly, (and no longer mediately or remotely, but di- 
 rectly, affecting the subject under consideration, viz. the 
 boundaries of legislation and of judicial interpretation,) 
 the same dissertation proceeds : En eflfet, la loi statue 
 sur tous : elle considere les hommes en masse, jamais 
 comme particuliers ; elle ne doit point se meler des faits 
 individuels, ni des litiges qui divisent les citoyens. S' il 
 en etait autrement, il foudrait journellement faire de nou- 
 velles lois : leur multitude etoufferait leur dignite et nui- 
 rait a leur observation. Le jurisconsulte serait sans 
 fonctions, et le legislatueur, entraine par les details, ne 
 serait bientot plus que jurisconsulte : Les interets par- 
 ticuliers assiegeraient la puissance legislative ; ils la de- 
 tourneraient, a chaque instant, de 1' interet general de 
 societe. II y a une science pour les legislateurs : comme 
 il y en a une pour les magistrats : et 1' une ne ressemble 
 pas a 1' autre. La science du legislateur consiste a trou- 
 ver dans chaque matiere les principes le plus favorables 
 au bien commun : la science du magistrat est de mettre 
 ces principes en action, — de les ramifier, — de les etendre 
 par une application sage et raisonnee aux hypotheses 
 privees ; d' etudier Y esprit de la loi quand la lettre tue ; 
 
 (c) Titre Preliminaire, p. 31.
 
 588 OF LEGISLATIVE AND [cilAP. X. 
 
 et de ne pas s' exposer au risque d' etre, tour a tour, 
 esclave et rebelle, et de desobeir par esprit de servi- 
 tude.^) 
 
 § 418. It cannot be denied, that these extracts, given 
 from the " Discour Preliminaire du Premier Projet de 
 Code Civil," contain a very particular and even minute 
 enumeration of the duties of the judge; but it may be 
 thought to be still open to inquiry, what are the func- 
 tions of the legislator'? The province of the legislator is 
 shadowed out {adumbrated) in the following passages, 
 indistinctly indeed, without relief, and in a manner 
 wanting the bold and consistent aspect presented by the 
 other parts of the work. II faut que le legislateur veille 
 sur la jurisprudence; il peut etre eclaire par elle et il 
 peut de son cote, la corriger ; mais il faut qu' il y en ait 
 une. C'est a 1' experience a combler successivement les 
 vides que nous laissons. Les codes des peuples se font 
 avec le temps ; mais, a proprement parler, on ne les fait 
 pas.(^) 
 
 § 419. With us it has been shown(a) to be the duty 
 of the j udges, where a case occurs which was not fore- 
 seen by the legislature, to declare it casus omissus ; or 
 where the intention, if entertained, is not expressed, to 
 say of the legislature, quod voluit, non dixit; or where 
 the case, though within the mischief, is not clearly with- 
 in the meaning ; or where the words fall short of the 
 intent, — or go beyond it ; — in e,very such case it is held 
 the duty of the judge, in a land jealous of its liberties, to 
 give effect to the expressed sense, or words, of the law, 
 in the order in which they are found in the act, and 
 according to their fair and ordinary import and under- 
 standing. 
 
 § 420. As to deciding contrary to the plain words of 
 
 (a) Titre Preliminaire, p, 27. (c) Dwarris on Statutes, chap. 12. 
 
 (b) lb.
 
 CHAP. X.] JUDICIAL INTERPRETATION. 589 
 
 an act of parliament, — as to holding that the legislature 
 did not mean what it has unequivocally expressed, — it 
 may be observed that if with decided cases, the maxim 
 of law be, (as it incontrovertibly is,) stare decisis, if the 
 courts feel themselves bound by the positive authority 
 of a solemn determination of the same question by former 
 judges; a fortiori ought they to be concluded by the 
 more positive authority of an act of parliament. As to 
 the weight of authority, — the influence justly due to the 
 codes of France, Prussia, Bavaria, the Netherlands, &c, 
 considered as a question of general jurisprudence, — the 
 Code Napoleon, with which we have the opportunity of 
 being the best acquainted, has been a source of endless 
 litigation. The controversies and discussions to which 
 it has given rise are innumerable ; the commentaries 
 upon it would already fill a library ; — the result of form- 
 ing a new system, depending upon general rules, which 
 it is left to the judges to interpret and apply. 
 
 § 421 . The duty of the judge is to adhere to the legal 
 text, as his sole guide. The legislator also, has his im- 
 portant rights and solemn duties. Where there has 
 been an omission in an act, — or where his intention has 
 been misconceived, and the remedy, in consequence, 
 carried too far, or not given full effect to, he may supply 
 deficiencies, — may state his own meaning with greater 
 precision, and guard, for the future, against an applica- 
 tion of the remedy move extensive than the intention. 
 But — poor and limited would be his sphere, were it con- 
 fined to these functions. The higher province and duty 
 of the legislator, is to exercise a surveillance over some- 
 thing more than the mere judicature of the country, — 
 over the objects, as well as the administration, of the 
 laws, — over the history of man and the progress of so- 
 ciety. Silently but vigilantly it is incumbent upon him 
 to watch the spirit of the age, — the growth of feelings, — 
 the development of principles, — the changes of every
 
 590 OF LEGISLATIVE AND [CHAP. X. 
 
 kind produced by time, — the demand for different laws 
 to protect newly-created species of property, — the cases 
 in which judges are found lamenting the want of a law 
 adapted to existing circumstances, — the instances in 
 which society is felt to be disturbed by laws utterly un- 
 suitable, — the retention of antiquated forms — or the in- 
 fliction of unprofitable severities. 
 
 § 422. No intelligent man will deny that, with us, the 
 laws have, in a succession of ages, been gradually adapt- 
 ed to the free institutions of the country. Beyond all 
 question, we are extensively indebted to the liberality of 
 the judges, for much of the regulated freedom we at pre- 
 sent enjoy. No reflecting man can fail to perceive that 
 there has been the greater facility in making this adap- 
 tation, in as far as our laws were unwritten, and there- 
 fore, in a certain sense, unascertained. So far, good has 
 unquestionably resulted from our laws being in an un- 
 settled state. From not being more formally prescribed, 
 the laws were less certain — from being less certain, they 
 admitted of being rendered more complete. 
 
 § 423. But, where the law is prescribed and promul- 
 gated as the declared will of the supreme power in the 
 state, the case is wholly different. Supposing the writ- 
 ten law to require change or modification, it will hardly 
 admit a question whether such alteration is to be effected 
 in a direct manner, by the superior power that originally 
 created the law, or indirectly, by the subordinate autho- 
 rity employed to give it effect, and put it in operation ; 
 and if a doubt could exist upon the subject of the com- 
 parative competency and fitness of the legislature, and 
 of the judicature of the country, to correct its laws, re- 
 course should in preference be had to the legislature. 
 For the legislature intends to found its regulations upon 
 general principles; courts of law — and still more of 
 equity — refine upon individual cases. 
 
 § 424. The truth is, that the legislature, and not the
 
 CHAP. X.] JUDICIAL INTERPRETATION. 591 
 
 courts, should be driven to comply with the necessities 
 of mankind. But this, unfortunately, has not been the 
 practice. When rules of law have been found to work 
 injustice, they have been evaded instead of being re- 
 pealed. Obsolete 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 re- 
 quired, it has been left to able judges to invade its pro- 
 vince, and to arrogate to themselves the lofty privilege 
 of correcting abuses and introducing improvements. The 
 rules are thus left in the breasts of the judges, instead 
 of being put upon a right footing by legislative enact- 
 ment. 
 
 § 425. Much of the evil just described, is no doubt 
 attributable to the supineness of the legislature, — some- 
 thing to the narrowness of the rules of the common law, 
 — but the principal share, to the want of a proper under- 
 standing at what point interpretation ought to end, and 
 legislation should begin. (a) Let the discriminating rea- 
 der look at Burke s eloquent panegyric upon Lord Mans- 
 field, and then ask himself soberly, whether every im- 
 provement the orator ascribes to the judge, however un- 
 questionably meritorious, is not within the province, and 
 ought not to have been effected by the intervention of 
 the legislature 1 " He sought," it is said, " to effect the 
 amelioration of the law, by making its liberality keep 
 pace with justice and the actual concerns of the world, 
 and not restricting the infinitely diversified conditions of 
 men, and the rules of natural justice, within artificial cir- 
 cumscriptions, but conforming its principles to the growth 
 of our commerce and our empire." 
 
 § 426. As to the assumptions of jurisdiction by the 
 
 (a) Butler's Reminis. toI. 1.
 
 592 OF LEGISLATIVE AND [CHAP. X. 
 
 court of chancery, it will be more satisfactory to rest 
 upon the admissions of its ornament, as well as apologist, 
 Lord Hardwicke; than to refer to the opinion of Mr. 
 Humphreys, its less ardent admirer, that "its acts have 
 been rather legislative than judicial. "(a) " New dis- 
 coveries and inventions in commerce," says Lord Hard- 
 wicke, in a letter to Lord Karnes before referred to, 
 " have given birth to new species of contracts ; and these 
 have been followed by new contrivances to break and 
 elude them, for which the ancient simplicity of the com- 
 mon law had adapted no remedies ; and from this cause, 
 courts of equity, which admit of a greater latitude, have, 
 under the head adjuvandi, vel supplendi juris civilis, been 
 obliged to accommodate the wants of mankind. 
 
 § 427. Another source of the increase of business in 
 the courts of equity has been, the multiplication and ex- 
 tension of trusts. New methods of settling and incum- 
 bering landed property have been suggested by the ne- 
 cessities, extravagance, or real occasions of mankind. 
 But what is more than this, new species of property 
 have been introduced, particularly by the establishment 
 of the public funds, and various transferrable stocks, that 
 required to be modified and settled to answer the exi- 
 gencies of families, to which the rules and methods of 
 conveyancing would not ply or bend. Here the liberal- 
 ity of courts of equity has been forced to step in and 
 lend her aid." Thus it appears, that these objects, ren- 
 dered necessary by a change of circumstances, have been 
 effected by equitable interference; that is, in truth, by 
 judicial refinement, and not by the seasonable enactment 
 of salutary laws. Instead of the encroachment upon the 
 common law, of which Bacon was apprehensive, it seems 
 that the Praetorian courts(6) overflowed their banks in 
 
 (a) Humphrey's Observations on the Laws of Real Property, &c. 
 
 (J) Maxime omnium interest certitudinis legem, ne curiae preetori&e intumes-
 
 CHAP. X.] OK LEGISLATIVE AND, AC. 593 
 
 an opposite direction, and, while sparing of injunctions, 
 openly invaded the province of the legislature. Upon a 
 careful investigation of the course actually pursued, it 
 will be found that, in general, inconvenient laws were 
 set aside, and required changes were effected, by the use 
 of technical fictions and contrivances to evade inconsis- 
 tent rules ; and if there was a lamentable want of politic 
 institution, there has been thought to have been also, at 
 times, some defect of judicial principle. Mr. Butler is 
 decidedly of opinion, as regards the ascertaining and ob- 
 taining the proper boundary of interpretation and legis- 
 lation, that the French courts of justice have shown 
 greater moderation than our own, in the exercise of this 
 important branch of judicature. (a) It certainly is a re- 
 markable fact, that the jurisdiction or methods of pro- 
 ceeding, in all our superior courts, will be discovered, 
 on inquiry, to be founded in usurpation, and sustained 
 by fiction. 
 
 cant et exundent in lantum, ut praetextu rigoris legum mitigandi, etiam robur 
 et nervos iis inoidant aut laxent, omnia trahendo ad arbitrium. — Aphorism, 43. 
 (a) Reminis. vol. 1. 
 
 75
 
 >94 DIVISION, DtRATldN, UIAL1T1ES, [CHAP. XI. 
 
 CHAPTER XI. 
 
 DIVISION, DURATION. Q.UALITIES, AND INCIDENTS OF 
 STATUTES. 
 
 § 428. Statute law is the rule which is ordained or 
 prescribed by the supreme power of the state, or the 
 legislative department of the government. Statutes are 
 divided into two classes ; to wit, public and private; and 
 these are remedial, or penal, affirmative, or negative. The 
 parts of a statute, in its popular sense, are, the title, pre- 
 amble, the purview or body of the act, the proviso, the 
 saving clause, and the exceptions. Although in a strict 
 sense, the title and preamble are not considered as a 
 part of a statute. These classes of statutes and parts of 
 statutes will come under review in a subsequent part of 
 this work. Before proceeding to the consideration of 
 the general doctrine of the construction of statutes, it is 
 proper that we should submit some observations of a 
 general character, (as preliminary to our main design,) 
 which relate to the duration, qualities, and incidents of 
 statutes. 
 
 § 429. In regard to the duration of statutes, some are 
 temporary, others are perpetual. Every statute, for the 
 continuance of which no time is limited, is perpetual, 
 although it be not expressly declared so to be. A tem- 
 porary statute continues in force, unless it is sooner re- 
 pealed, until the time for which it is made expires. Al- 
 though an offence should have been committed before 
 the expiration of an act, the party cannot be punished 
 after it has expired, unless a particular provision be 
 made by law for that purpose. On this account a tern-
 
 CHAP. XI.] AND INCIDENTS OF STATUTES. 595 
 
 porary statute is sometimes made to continue in force, 
 after it has ceased to operate substantially, for the purpose 
 of supporting prosecutions against those who have vio- 
 lated it during the term assigned for its continuance. 
 
 § 430. Statutes are the declared will of the supreme 
 power of the state, which, unless repugnant to the laws 
 of God, and natural justice, all subjects are bound to 
 obey. Created by the exercise of the highest authority 
 which the constitution acknowledges, they cannot be 
 dispensed with, altered, amended, suspended, or repealed, 
 but by the same authority by which they w T ere made. 
 The life-giving principle and the death-going stroke 
 must emanate from the same hands; for it is a maxim 
 of the law, " conveniens naturali ceqitati unumquodque dis- 
 solvi eo ligamine, quo ligatum est." 
 
 § 431. In regard to the qualities and incidents of sta- 
 tutes, a statute binds all persons but such as are specially 
 saved by it.(a) The government itself, however, is not 
 to be restrained of a liberty, or right it had before, by the 
 general words of a statute, if it be not named in the act, 
 but if a statute be intended to give a remedy against a 
 wrong.(o) to prevent fraud, (c) tortious usurpations, or 
 the decay of religion, the government, though not named, 
 will be bound by the act. In England, if an act of par- 
 liament do not name the king, he is bound by acts for 
 the advancement of religion, or learning, or for providing 
 for the poor. And if an act speak of the king generally 
 and indefinitely, it extends to all his successors, and to 
 a queen if the crown descend to a female. (d) 
 
 § 432. A statute which gives corporeal punishment, 
 does not bind an infant, contra of other statutes, if thev 
 do not except the infant.(c) A statute cannot alter by 
 
 (a) And. 148, pi. 83. (<f) 19 Rep. 110. 
 
 (b) 6 Inst. 681. (e) 2 Inst. 55. 
 
 (c) 5 Rep. 14, b.
 
 596 DIVISION, DURATION, QUALITIES, [CHAP. XI. 
 
 reason of time, but the common law may, since cessante 
 ratione cessal lex. (a) When statutes are made, there are 
 some things which are exempted and foreprised out of 
 the provisions thereof by the law of reason, though not 
 expressly mentioned ; thus, tilings, for necessity's sake, 
 or to prevent a failure of justice, are excepted out of 
 statutes. (b) 
 
 § 433. Whenever an act gives any thing generally, 
 and without any special restriction declared, or rationally 
 to be inferred, it gives always subject to the general con- 
 trol and order of the common law.(c) Whenever a sta- 
 tute gives or provides any thing, the common law pro- 
 vides all necessary remedies and requisites. (ri) In 
 statutes incidents are always supplied by intendment, in 
 other words, whenever power is given by a statute every 
 thing necessary to make it effectual is given by implica- 
 tion ; for the maxim is, Quando lex aliquid concedit con- 
 ccdere videtur et id, per quod devenitur ad illud.(e) Thus, 
 a statute giving an action for waste, to one as tenant for 
 life, or for years, impliedly gives authority to him in re- 
 version, by himself or by another, to enter to see if any 
 waste be done.(/') Upon the same principle, in an 
 action of waste, given by a statute repealed, against ten- 
 ant in tail, after possibility of issue extinct, treble dama- 
 ges were held recoverable, although not mentioned :(§•) 
 for such damages were recoverable under a prior statute, 
 by which an action of waste was given ; and whenever 
 an old action is given in a new case, all that before ap- 
 pertained to the action is likewise given. 
 
 (a) Dwarria on Statute, 602. 
 
 (A) Plow. Comm 13 b. 2 Inst. 118. 
 
 (c) Rex v. Bishop of London, 2 Show. 455. 
 
 (d) The Protector v. Ashfield, Hard. 62. 
 
 (e) 2 Inst. 306. 12 Rep. 130, 131. 
 (/) Bro. ; Waste, pi. 68. 
 
 I?) Ibid.
 
 CHAP. XI.] AND INCIDENTS OP STATUTES. 507 
 
 § 434. There are certain common law maxims, that 
 aid in the application of statutes to given cases. Quan- 
 do aliquid prohibetur, prohibetur et omne, per quod deveni- 
 tur ad Mud. Magna Cliarta says, no man aliquo modo 
 destruatur nisi, #t., by which every oppression against 
 law, by color of any usurped authority, is forbidden, and 
 by these words, all things by any manner of means tend- 
 ing to destruction are prohibited, as if a man be accused 
 or indicted of treason or felony, his lands and goods can- 
 not be granted to any, no not so much as by promise, 
 before attainder ; for, when a subject obtaineth a pro- 
 mise of the forfeiture, many times undue means and more 
 violent prosecution is used for private lucre, tending to 
 destruction, than the just and quiet proceedings of the 
 law would permit.(a) Whenever the provision of a 
 statute is general, every thing which is necessary to 
 make such provision effectual is supplied by the common 
 law. (b) If an offence be made felony by a statute, such 
 statute, by necessary consequences, subjects the offender 
 to the like attainder and forfeiture, and requires the like 
 construction, as to those who shall be accounted acces- 
 sories before or after the fact, and to all intents and pur- 
 poses, as a felony at common law does.(c) Misprison 
 of felony is as well incidental to a felony created by a 
 statute as to one of the common law.(rf) 
 
 § 435. Lex una ore omnes alloquitur,(e) Lord Coke 
 says : " This maxim is the pride of the English law ; and 
 it is pre-eminently so of the written law, which lays 
 down one clear and certain rule for all descriptions of 
 persons, and is both known and invariable. For the 
 
 (a) 5 Inst. 48. Steph. L. Elec. 14. 
 
 (b) 1 Inst. 235. 2 Inst. 223. Bac. Abr. title Statute. 
 
 (c) 3 Inst. 47, 49, 50. 1 Hawk. c. 41, $ 4. 
 (J) 1 S. Elec. L. 14. 
 
 (e) 2 Inst. 1847.
 
 598 DIVISION, DURATION, QUALITIES, [CHAP. XI. 
 
 written and statute law, being of old duly and formally 
 promulgated to the .people, could never be what Lord 
 Bacon says of Henry the Seventh's laws, " as a nemo scit" 
 and of these rules of conduct no judge, producing a man- 
 uscript decision, can say, Lo ! I have the law in my side 
 pocket."(a) 
 
 § 436. No one can be punished without an injury or 
 fault having been committed. Nemo punitur sine inju- 
 ria, facto sine dcfalto. Where a statute provided that, in 
 case of a disseisor alienating lands, and not being 
 able to satisfy the damages, they to whose hands the 
 lands and tenements shall come should be charged with 
 the damages, &c. Now, if the tenant cometh to the 
 lands by act of law, which he cannot withstand, and 
 where there is no act or default on him, he shall not be 
 charged. For instance, if the disseisor aliened to A. and 
 his heirs, and A. dieth without heirs, the law cast the 
 land upon the lord, to the end that there may be a ten- 
 ant to the praecipe. In this case, if the lord doth not 
 take any profits of land, in a suit brought against him 
 for the land, the lord may plead the special matter, and 
 to discharge himself from damage; for although he be 
 tenant of the land, yet he is no tenant, (against his will) 
 within the meaning of this statute, because there is no 
 wrong or default in him. (6) 
 
 § 437. Actus legis neinini est damnusus. An act of 
 law is damage to no one. Where an act for enlarg- 
 ing the term granted to a patentee for the enjoyment of 
 his patent, provided that in case the power, privilege, or 
 authority granted by the letters patent should become 
 vested in more than five persons, or their representatives, 
 at any one time, otherwise than by devise, or succession, 
 all liberties, privileges, &c, should cease. The paten- 
 
 fa) Watkins on Conveyances, preface. 1 Steph. Ele. L. 14. 
 tb) 2 Inst.
 
 CHAP. XI.] AND INCIDENTS OF STATU'I •'"; ( • ,< • , 
 
 tees having become bankrupts, it was held, that this 
 clause applied only to an assignment by act of the party, 
 and not to an assignment by operation of law. (a) Ab- 
 solula sententia expositere mm indigel. Lord Coke says 
 this is the case where the words are plain without any 
 scruple, and absolute without any saving.(ft) 
 
 (a) Bloxam and another, assignees, v. Elscc, G B. & C. 169. 
 
 (b) 2 Inst. 533.
 
 600 OF INTERPRETATION [CHAP. XII. 
 
 CHAPTER XII. 
 
 OF INTERPRETATION AND CONSTRUCTION. 
 
 § 438. We shall now enter upon the main and most 
 important question which arises under this branch of our 
 subject — that of interpretation and construction of sta- 
 tutes. Under this head, we shall have occasion, in the 
 prosecution of our inquiries, to go somewhat into the 
 doctrines and rules adopted by ethical writers, and wri- 
 ters upon the civil law, and incidentally, to some extent 
 consider the rules that obtain in the interpretation, and 
 construction of written instruments, and commercial con- 
 tracts. We should remark, however, that the rules 
 adopted in the latter class of instruments, do not always 
 prevail in the construction of statutes. 
 
 § 439. Interpretation and construction, when applied 
 to statutes, have been sometimes considered as synony- 
 mous terms. Lieber, in his admirable work on Legal 
 and Political Hermeneutics, defines interpretation thus : — 
 11 Interpretation is the art of finding out the true sense 
 of any form of words — that is, the sense which their au- 
 thor intended to convey — and of enabling others to de- 
 rive from them the same idea which the author intended 
 to convey. Construction is the drawing of conclusions 
 respecting subjects that lie beyond the direct expressions 
 of the text, from elements known from, and given in the 
 text — conclusions which are in the spirit, though not in 
 the letter of the text. Interpretation only takes place if 
 the text conveys some meaning or other. But construc- 
 tion is resorted to, when, in comparing two different wri- 
 tings of the same individual or two different enactments
 
 CHAP. XII.] AND CONSTRUCTION. 601 
 
 by the same legislative body, there is found contradic- 
 tions where there was evidently no intention at such con- 
 tradictions one of another, or where it happens that part 
 of a writing or declaration contradicts the rest. When 
 this is the case, and the nature of the document or de- 
 claration, or whatever else it may be, is such as not to 
 allow us to consider the whole as berns* invalidated bv a 
 partial or other contradiction, then resort must be had 
 to construction. So too, if found to act in cases, which 
 have not been foreseen by the framers of those rules, by 
 which, we are nevertheless obliged, for some binding rea- 
 son, faithfully to regulate as well as we can an action re- 
 specting the unforeseen case. 
 
 § 440. In politics it signifies generally the supplying of 
 supposed, or real imperfections, or insufficiencies of a text, 
 according to proper principles and rules. By insufficient 
 cy is to be understood, both imperfect provisions for the 
 cases, which might, or ought to have been provided for, 
 and the inadequateness of the text for cases, which hu- 
 man wisdom could not foresee. He illustrates this, in 
 the instance of the application of a very ancient charter, 
 to cases arising out of entirely and radically new rela- 
 tions, which have since sprung up, and which cases nev- 
 ertheless clearly belong to that province of human ac- 
 tion for which the charter was intended. This defini- 
 tion of construction, in its application to text of inferior 
 authority or importance which partially militate with the 
 demands of superior authority, will show us, that con- 
 struction is the causing of the text to agree and harmo- 
 nize with the demands or principles of superior autho- 
 rity, although they are not, according to the immediate 
 and direct meaning of the words constituting the text, 
 contained in it. Thus it is construction which saves in 
 many instances from sacrificing the spirit of the text, or 
 the object, to the letter of it, or the means by which that; 
 object was to be obtained. 
 
 76
 
 G02 OF INTERPRETATION [CHAP. XII. 
 
 § 441. It has been very justly said by him, that with- 
 out construction, written laws, in fact any laws or other 
 texts containing rules of action, specific or general, 
 would in many cases become fearfully destructive to the 
 best and wisest intentions — nay, frequently produce the 
 very opposite of which it was purposed to effect. After 
 laying down the rule, that the constructor is not allowed 
 to proceed without rule, or arbitrarily, but is to draw 
 conclusions from the elements given in the text, he holds 
 that the proper principles of construction are those which 
 ought to guide us in good faith and conscience, and that 
 they may be two-fold. 1st. If the text itself is the de- 
 claration of fundamental principles, which we are bound 
 to follow in a certain sphere of action, and of certain 
 fundamental forms, which are to regulate our actions, in 
 this case, construction signifies the discovery of the spi- 
 rit, principles and rules that ought to guide us according 
 to the text, with regard to subjects on which that decla- 
 ration is silent, but which nevertheless belongs to its 
 province. If, for instance, a political constitution or 
 charter, has been adopted or granted to regulate our poli- 
 tical actions, and a case occurs which has not been pro- 
 vided for, but which is of an undoubted political charac- 
 ter, we have to search for its true spirit and act accord- 
 ingly in the case under consideration. 2d. Or there may 
 exist principles or rules of superior authority, and the 
 problem of construction then is, to cause that which is 
 to be construed to agree with them. In this case the 
 principles and rules of superior authority are, the sub- 
 jects that lie beyond the direct expressions of the text, 
 mentioned in his previous definition. For instance, if a 
 law be passed, parts of which are contrary to the funda- 
 mental law of the state, it is called construing the law, 
 when the proper judges declare those parts to be invalid. 
 In its most general adaptation of the term, construction
 
 CHAP. XII.] AND CONSTRUCTION. 603 
 
 signifies the representing an entire whole from given ele- 
 ments by just conclusions. 
 
 § 442. He divides interpretation into close, extensive, 
 extravagant, limited or free, predestinated, and authentic ; 
 — close interpretation is, where for just reasons connect- 
 ed with the formation and character of the text, we are 
 induced to take the words in their narrowest meaning. 
 Extensive interpretation, interpretatio extensively is where 
 it inclines us towards adopting the more, or most com- 
 prehensive signification of the words. Extravagant in- 
 terpretation, interpretatio execdens, is that mode of inter- 
 preting which substitutes such meaning as is evidently 
 beyond the true meaning, and hence not genuine inter- 
 pretation. Free or unrestricted, interpretatio soluta, is 
 that which proceeds simply on the general principles of 
 interpretation in good faith, not bound by any specific or 
 superior principle. Limited or restricted interpretation, 
 interpretatio limitata, takes place, if other rules or prin- 
 ciples than the strictly hermeneutic ones limit us. Pre- 
 destinated interpretation, interpretatio predestinata, is that 
 where the interpreter, either consciously or unknown to 
 himself, yet laboring under a strong bias of mind, makes 
 the text subservient to his preconceived views, or some 
 object he desires to arrive at. An instance of this is 
 where cunning and art are exerted in attempts to show 
 that the text means something which was not, according 
 to the interpreter's own knowledge, the meaning of the 
 author or utterers. This latter species he denominates 
 artful. Authentic interpretation is that which proceeds 
 from the author or utterer of the text himself. The lat- 
 ter is, more properly speaking, but a declaration, and not 
 an interpretation. 
 
 § 443. If a legislature or monarch give an interpreta- 
 tion, it is called authentic, though the same individual 
 who issued the law to be interpreted, may not give the 
 interpretation. This proceeds upon the reason that the
 
 604 OF INTERPRETATION [ciIAP. XII. 
 
 successive legislators or monarchs, are considered as one 
 and the same, making the law and giving the interpreta- 
 tion in their representative and not in their personal cha- 
 racters. 
 
 § 444. He divides construction into close, comprehen- 
 sive, transcendant or extravagant, and defines them 
 thus : — 1. Close construction is that which inclines 
 to the directest possible application of the text, or the 
 principles it involves, to new or unprovided cases, or to 
 contradictory parts — in short, to words which lie beyond 
 the words of the text. 2. Comprehensive construction 
 is that which inclines to an extensive application of the 
 text, or the principles which it involves to new, unpro- 
 vided, or not sufficiently specific cases or contradictions. 
 3. Transcendant construction is that which is derived 
 from, or founded upon, a principle superior to the text, 
 and nevertheless aims at deciding on subjects belonging 
 to the province of the text. Extravagant construction 
 is that which carries the effects of the text beyond its 
 true limits, and therefore not any longer genuine con- 
 struction, as the previous species becomes of a more and 
 more doubtful character the nearer it approaches to this. 
 The difference between the two is, the former remains, 
 in spite of its transcendency, within the spirit of the 
 law, or document to be construed, whilst the latter aban- 
 dons it. The learned and valuable work of this author 
 on this subject, is one which should be perused, studied 
 and understood by every legal student, and should find a 
 place in every law library. 
 
 § 445. Rutherforth divides interpretation into three 
 kinds ; literal, rational and mixed. He defines literal in- 
 terpretation, where we collect the intention from the 
 words only, as they lie before us. Rational where the 
 words do not express that intention perfectly, but ex- 
 ceed it or fall short of it, and we are to collect it from 
 rational or probable conjecture only. Mlxed^ where the
 
 CHAP. XII.] AND CONSTRUCTION. G05 
 
 words, though they do express the intention when they 
 are rightly understood, are of themselves of doubtful 
 meaning, and we are bound to have resort to like con- 
 jecture to find out in what sense they are used. In lit- 
 eral interpretation the rule which should govern, is, to 
 follow that sense, both in respect of the words, and of 
 construing them which is agreeable to common use with- 
 out attending to etymological fancies or grammatical 
 refinements. In mixed interpretation, which supposes 
 the words to admit of two or more senses, each of which 
 is agreeable to common usage, we are obliged to collect 
 the sense partly from the words, and partly from conjec- 
 ture of intention. The rules there adopted are to con- 
 strue the words according to the subject matter, in such 
 a sense as to produce a reasonable effect, and with re- 
 ference to the circumstances of the particular act. Light 
 may also be obtained in such cases from contemporary 
 facts, or exposition from antecedent mischiefs, from 
 known habits, manners, and institutions, and from other 
 sources almost innumerable, which may justly affect the 
 judgment in drawing fit conclusions in the particular 
 case. 
 
 § 446. He also says, that interpretation may be strict 
 or large, though the same thing is not always meant 
 when we speak of a strict or large interpretation. When 
 common usage has given tw 7 o senses to the same word, 
 one of which is more confined, or includes fewer partic- 
 ulars than the other, the former is called its strict sense, 
 and the latter, which is more comprehensive, or includes 
 more particulars, is called the large sense. If we find 
 such a word in a law, and we take it in a more confined 
 sense, we are said to interpret it strictly. If we take it 
 in its more comprehensive sense, we are said to interpret 
 it largely. But whether we do the one or the other, we 
 still keep to the letter of the law. But strict and large 
 intepretations are frequently opposed to each other in a
 
 606 OF INTERPRETATION [dlAP. XII. 
 
 different sense. The words of the law may sometimes 
 express the meaning of the legislature imperfectly ; they 
 may, in their common acceptation, include more or less 
 of their intention, and, as on the one hand, we call it a 
 strict interpretation when we contend that the letter is 
 to be adhered to precisely ; so, on the other, we call it a 
 large interpretation when we contend, that the words 
 ought to be taken in such a sense as common usage will 
 not fully justify, or that the meaning of the legislature is 
 something different from what the words in any usage 
 would import. In this sense a large interpretation is 
 synonymous with what has been termed a rational inter- 
 pretation, and a strict interpretation in this sense, in- 
 cludes both literal and mixed interpretation, and may, as 
 contradistinguished from the former, be called a close, 
 in opposition to a free or liberal interpretation. 
 
 § 447. In mixed interpretation, where the intention of 
 the legislature is expressed in their words, but the words 
 are ambiguous, and will admit of more senses than one, 
 so that we are forced to have recourse to rational con- 
 jecture, in order to determine in which of the senses 
 the words are used ; these conjectures may be drawn 
 from the subject matter, or the circumstance connected 
 with it. The reason why resort is had to the subject 
 matter is, that we are sure, on the one hand, that the 
 subject matter was in the mind, and on the other, that 
 there can be no reason for thinking that any thing differ- 
 ent from it was intended. Vattel, speaking of extensive 
 interpretation, founded on the reason of the act, says : 
 " The consideration of the reason of a law or promise 
 not only serves to explain the obscure or ambiguous ex- 
 pressions which occur in the piece, but also to extend 
 or restrict its several provisions independently of the ex- 
 pressions, 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 Cice-
 
 CHAP. XII.] AND CONSTRUCTION. 607 
 
 ro,(a) 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, ice extend that provision, 
 to cases to xchich the same reason is applicable, although 
 they be not comprised within the signification of the terms. 
 This is what is called extensive interpretation. It is 
 commonly said, that we ought to adhere rather to the spirit 
 than to the letter. Thus the Mahomedans justly extend 
 the prohibition of wine, in the Koran, to all intoxicating 
 liquors ; that dangerous quality being the only reason 
 that could induce their legislator to prohibit the use of 
 wine. Thus also, if, at the time when there were no 
 other fortifications than walls, it was agreed not to inclose 
 a certain town with walls, it would not be allowable to 
 fortify it with fosses and ramparts, since the only view of 
 the treaty evidently was, to prevent its being converted 
 into a fortified place. But we should here observe the 
 same 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. As to the 
 rest, I do not here forget what I have said above,(c) 
 that the true sense of a promise is not only that which 
 the person promising had in his mind, but also that 
 which has been sufficiently declared, — that which both 
 
 (a) Quid! verbis satis hoc cautum erat? Minime. Quae res igitur valuit * 
 Voluntas : quae si, tacitis nobis, intelligi posset, verbis omnino non uteremur. 
 Quia non potest, verba reperta sunt, non quae impedirent, sed quae indicarent 
 voluntatem. — Cic. Orat. pro Ccccina. 
 
 {b) Vattel, sec. 287. 
 
 (c) lb. 268.
 
 G08 OF INTERPRETATION [CHAP. XII. 
 
 the contracting parties must reasonably have understood. 
 In like manner, the true reason of a promise is that which 
 the contract, the nature of the things in question, and 
 other circumstances, sufficiently indicate : it would be use- 
 less and ridiculous to allege any by-views which the per- 
 son might have secretly entertained in his own mind."(a) 
 § 448. In regard to restrictive interpretation he says : 
 " 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 compris- 
 ed 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 a promise, contrary to the literal signification 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 case ought to be excepted, al- 
 though, 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 express everything : it is 
 sufficient to announce 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,(6) 
 there are exceptions so clear, that is unnecessary to ex- 
 press them. The law condemns to suffer death whoever 
 strikes his father : shall we punish him who has shaken 
 and struck his father, to recover him from a lethargic stu- 
 por ? shall we punish a young child, or a man in a deliri- 
 um, who has lifted his hand against the author of his life 1 
 In the former case, the reason of the law does not hold 
 good ; and to the two latter it is inapplicable. We are 
 
 (a) Vattel, b. 2, ch. 17, sec. 290. (b) Lib. iv. Declam. xxvii.
 
 CHAP. XII.] AND CONSTRUCTION. COO 
 
 bound to restore what is intrusted to us : shall I restore 
 what a robber has intrusted to me, at the time when the 
 true proprietor makes himself known to me, and demands 
 his property 1 A man has left his sword with me : shall I 
 restore it to him, when, in a transport of fury, he de- 
 mands it for the purpose of killing an innocent person ?" 
 § 449. " When a case arises in which it would be too 
 severe and too prejudicial to any one to interpret a law or 
 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 intention of the legislature, 
 or of him who made the promise ; for the legislature in- 
 tends only what is just and equitable ; and, in contracts, 
 no one can enter into such engagements in favor of an- 
 other, as shall essentially supersede the duty heowes to 
 himself. It is then presumed with reason, that neither 
 the legislature nor the contracting parties have intended 
 to extend their regulations to cases of this nature, and 
 that they themselves, if personally present, would except 
 them. A prince is no longer obliged to send succors 
 to his allies, when he himself is attacked, and has need 
 of all his forces for his own defence. He may also, 
 without the slightest imputation of perfidy, abandon an 
 alliance, when, through the ill success of the war, he 
 sees his state threatened with impending ruin if he does 
 not immediately treat with the enemy. 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 receiving 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 generous re- 
 solution to struggle against an extremity which might 
 have dispensed with his persisting in his engagements. 
 
 77
 
 610 OF INTERPRETATION [CHAP. XII. 
 
 We have said abovc,(a) that we should take the expres- 
 sions 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 particular country confines the entail or fiefs to the 
 male line properly so called : if an act of enfeoffment 
 in that country declares that the fief is given to a per- 
 son for himself and his male descendants, the sense of 
 these last words must be restricted to the males descend- 
 ing 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 de- 
 scendants of the first possessor."(6) 
 
 § 450. Lieber, in substituting close for what Ruther- 
 ford denominates literal interpretation, denies in toto the 
 use of the term of literal interpretation, on the ground 
 that literal interpretation ought of course to mean, 
 that which takes the words in their literal sense, which 
 is hardly ever possible, since all human language is 
 made up of tropes, elisions, images, expressions relating 
 to erroneous conceptions, &c. That literal interpretation 
 would, moreover, signify, in most cases, a contradiction, 
 since there can be little doubt as to the meaning of a 
 sentence, if the words are to be taken in a literal signifi- 
 cation, and thus make sense at all. Interpretation, there- 
 fore, would be superfluous ; and, on the other hand, it 
 would be difficult to say where the literal signification 
 of a word ends, and the figurative begins. That if we 
 are to understand by literal interpretation, a species 
 
 (a) Vattel, sec. 280. 
 
 (b) Id. book 2, ch. 17, sees. 292-295, pp. 259, 260.
 
 CHAP. XII.] AND CONSTRUCTION. 611 
 
 which, by way of adhering to the letter, substitutes a 
 false sense for a true one, it has no more meaning than 
 the term false facts. That it is false, deceptive, or art- 
 ful interpretation, if we do not give that sense which they 
 ought to have, according to good faith, common sense, 
 and the use which the utterer made of them. That the 
 terms literal, rational, and mixed, lose greatly their im- 
 portance, or become actually inadmissible, if we adhere 
 to his definition of interpretation, which is to find the 
 true sense. That there can be no literal sense, and be- 
 side it another. A single word may signify indeed seve- 
 ral things, and in order to determine in which sense it 
 has been used in a particular passage, we should be 
 obliged, as a matter of course, to use grammar, etymo- 
 logy, logic, and every other means which are in con- 
 stant use among men, to understand the words of one 
 another. 
 
 § 451. Puffendorff says the true end and design of 
 interpretation is to gather the intent of the man from the 
 most probable signs. These signs are of two sorts, 
 words and conjectures, which may be considered sepa- 
 rately or both together. Domat says there are two 
 sorts of cases where it is necessary to interpret laws. 
 One is, when we find in a law some obscurity, ambigu- 
 ity, or other defect of expression ; for in this case it is 
 necessary to interpret the law, in order to discover its 
 true meaning. And this kind of interpretation is limited 
 to the expression, that it may be known what the law 
 says. The other is, when it happens that the sense of 
 a law, how clear soever it may appear in the words, 
 would lead us to false consequences, and to decisions 
 that would be unjust, if the laws were indifferently ap- 
 plied to every thing that is contained within the expres- 
 sion. For in this case, the palpable injustice that would 
 follow from this apparent sense, obliges us to discover 
 by some kind of interpretation, not what the law says,
 
 612 OF INTERPRETATION [CHAP. XII. 
 
 but what it means ; and to judge by its meaning, how 
 far it ought to be extended, and what are the bounds that 
 ought to be set to its sense. And this kind of interpre- 
 tation depends always on the temperament that some 
 other rule gives to the law which we should be in dan- 
 ger of misapplying, if we did not explain it. For it is 
 this temperament that gives to the law its use and its 
 verity.(a) 
 
 § 452. Almost every rule of interpretation and con- 
 struction which has been engrafted into the common 
 law, has been derived from the civilians : indeed, the 
 civil law writers have laid the entire foundation of the 
 common law in this particular. We shall, therefore, in 
 this connection, proceed to consider consecutively the 
 rule laid down by the civilians on this subject. Many 
 of them will be again adverted to hereafter in connec- 
 tion with those of the common law. Before doing so, 
 however, it is necessary that we should remark that 
 many of those rules are laid down in reference to the 
 interpretation of laws. The word " laws" as used by them 
 in some instances, refers to all laws, including the law 
 of nature, and laws which, with us, would more properly 
 be denominated the common law — and arbitrary laws, 
 that is, laws which, with us, would be denominated sta- 
 tute law. Thus Domat says, laws or rules are of two 
 sorts ; one is of those which flow from the law of nature 
 and equity, and the other is of such as derive their ori- 
 gin from the positive law, which are otherwise called hu- 
 man and arbitrary laws, because they have been estab- 
 lished by the laws of men. (b) The word arbitrary law, 
 however, is also used by them in a more extended sense, 
 and would also include what, with us, would be regard- 
 
 (a) Bomat's Civil Law, Prel. B. p. 7, tit. i. sec. 2, pi. 2. 
 {b) Ibid. p. 3, tit. i. sec. 1, pi. 2.
 
 CHAP. XII.] AND CONSTRUCTION. G13 
 
 ed rather as parts of the common law, originating per- 
 haps from ancient statutes, of which no record remains. 
 Thus Domat says arbitrary laws are of two sorts. The 
 one is of those that have been originally enacted, writ- 
 ten, and promulged, by those that had the legislative au- 
 thority; and such are, in France, the edicts and ordi- 
 nances of the kings. The other is of such laws, of 
 whose origin and first establishment there is nothing ap- 
 pears, but which are received by universal approbation, 
 and by the constant use that the people has made of 
 them time out of mind ; and these are the laws, or rules, 
 to which we give the name of customs. (a)(6) Keeping 
 this distinction in view, we shall readily discover which 
 of these rules have an application to statutes, and which 
 not. The civil law doctrine of equitable construction, 
 as will be seen in a subsequent chapter, has been adopt- 
 ed by us with much qualification, and is to be taken in a 
 very restricted sense. 
 
 § 453. Domat lays down the following rules : that for 
 the right understanding of a rule, it is not enough to ap- 
 prehend the apparent sense of the words, and to view it 
 by itself; but it is necessary likewise to consider if there 
 are not other rules that limit it. For it is certain, that 
 every rule having its proper justice, which cannot be 
 contrary to that of any other rule ; each rule hath its 
 own justice within its proper bounds. And it is only 
 the connection of all the rules together that constitutes 
 their justice, and limits their use. Or rather, it is natu- 
 
 (a) Constat autem jus nostrum quo utimur, aut scripto, aut sine scriplo, ut 
 apud Graecos, r<3i> vopw ol /*<!> 2vypa<poi, ol <Je toypaipoi, i. e. legum sunt scriptce 
 alia, aim non scriptce. Scriptum autem jus est lex, plebiscitum, senatuscon- 
 sultum. Principum placita, magistratuum edicta,responsa prudentum. Sec. 
 3, inst. de jur. nat. gent, et civ. Sine scripto jus venit, quod usus approba- 
 vit. Nam diuturni mores, consensu utentium, comprobati, legem imitantur. 
 Sec. 9, eod. 
 
 (b) Domat's Civil Law.Prel. B. p. 4, tit. i. sec. 1, pi. 10.
 
 614 OF INTERPRETATION [CHAP. XII. 
 
 ral equity, which, being the universal spirit of justice, 
 makes all the rules, and assigns to every one its proper 
 use. From whence we must infer, that it is the know- 
 ledge of this equity, and the general view of this spirit of 
 the laws, that is the first foundation of the use, and par- 
 ticular interpretation of all rules. This principle of in- 
 terpreting the laws by equity, does not only respect the 
 laws of nature, but reaches likewise to the arbitrary 
 laws, they being all of them founded upon the laws of 
 nature, as has been observed in the eleventh chapter of 
 the Treatise of Laws. But to this principle of equity we 
 must add, in so far as concerns the interpretation of ar- 
 bitrary laws, another principle which is peculiar to them, 
 and that is, the intention of the lawgiver, which deter- 
 mines how far the arbitrary laws regulate the use and 
 interpretation of this equity. For in this kind of laws, 
 the temperament of equity is restrained to what is agree- 
 able to the intention of the lawgiver, and is not extend- 
 ed to whatever might have appeared to be equitable, be- 
 fore the arbitrary law was enacted.(a) 
 
 § 454. In order to make a right use of this fundamen- 
 tal principle for the interpretation of laws, which is 
 equity, it is not enough to observe in each rule what the 
 light of reason finds to be equitable in its expression, 
 and in the extent which it seems to have ; but we must 
 join to this a general view of universal equity, that we 
 may discern in the cases which are to be regulated, whe- 
 ther there are not other rules that demand a justice alto- 
 gether different, to the end we may not pervert any rule 
 from its true use, and that we may apply to the matters 
 of fact, and to their circumstances, the rules that agree 
 to them. And if they are natural laws, we are to re- 
 concile them by the extent and limits of their truth ; or 
 
 (a) Domat's Civil Law, Prel. B. p. 8, tit. i. eec. 2.
 
 CHAP. XII.] AND CONSTRUCTION. G15 
 
 if they arc arbitrary laws, we are to fix their equity by 
 the intention of the lawgiver.(a) 
 
 § 455. All rules, whether natural or arbitrary, have 
 their use, such as it is assigned to every one of them by 
 universal justice, which is the spirit of them all. Thus, 
 the application of the laws is to be made, by discerning 
 what it is that this spirit demands ; which in natural 
 laws is equity ; and in arbitrary laws is the intention of 
 the lawgiver. And it is in this discerning faculty that 
 the science of the law does chiefly consist.(6)(c) 
 
 § 456. If it happens that a natural rule being applied 
 to some case which it seems to include, there follows 
 from such application a decision contrary to equity, we 
 must from thence conclude that the rule is not rightly 
 applied, and that it is by some other rule that this case 
 ought to be judged.(d) 
 
 § 457. If an arbitrary law being applied to a case 
 which it seems to include, there follows a consequence 
 contrary to the intention of the lawgiver, the rule ought 
 not to be extended to that case.(e) 
 
 § 458. We must not take for injustices contrary to 
 equity, or to the intention of the lawgiver, those deci- 
 sions which seem to have some hardship in them, which 
 is called the rigor of the law, when it is evident that that 
 rigor is essential to the law from which it flows, and that 
 
 (a) Domat's Civil Law, Prel. B. p. 9, tit. i. sec. 2. 
 
 (b) In omnibus quidem maxime tamen in jure, squitas spectanda, 1. 90, ff. 
 de reg. jur. In summa aequitatem ante oculos habere debet Judex. 1. 4, sec. 
 1, ff. de eo quod certo loco. Benignius leges interpretandaa sunt, quo volun- 
 tas earum conservetur. L. 18, ff. de legib. mens legislators ; 1. 13, sec. 2, 
 ff. de excus. tutor. Scire leges non hoc est verba earum, tenere, sed vim ac 
 potestatem. L. 17, ff. de legib. Ratio naturalis quasi lex quaedam tacita. 
 L. 7, ff. de bon. damnat. Jus est ars boni et esqui. L. 1, ff. de just, et jur. 
 
 (c) Domat's Civil Law, Prel. B. p. 9, tit. i. sect. 2, pi. 1. 
 
 (d) Ibid. 10, pi. 2. 
 
 (e) Ibid. pi. 3.
 
 616 OF INTERPRETATION [CHAP. XII. 
 
 no temperament can be applied to the law without an- 
 nulling it. (a) 
 
 § 459. If the hardship or rigor of a law be not a ne- 
 cessary consequence of the law, and inseparable from it, 
 but that the law may have its effect by an interpretation 
 which mitigates the said rigor, and by some tempera- 
 ment which equity, that is, the spirit of the law, re- 
 quires ; we must in this case prefer equity to the rigor 
 which the letter of the law seems to demand, and follow 
 rather the spirit and intendment of the law, than the 
 strict and rigid way of interpreting it.(6)(c) 
 
 § 460. It follows from the foregoing rules, that we 
 cannot lay it down as a general rule, either that the ri- 
 gor of the law ought to be always followed, contrary to 
 the temperament of equity, or that it ought always to 
 yield to equity. But this rigor becomes an injustice in 
 the cases in which the law will admit of an equitable 
 interpretation ; and it is, on the contrary, a just rule in 
 the cases where such an interpretation would destroy the 
 law.(rf) Thus, the word rigor of the law is taken either 
 for a hardship that is unjust and odious, and no ways 
 conformable to the spirit of the laws, or for a rule that 
 is inflexible, but which has nevertheless its justice. And 
 
 (a) Domat's Civil Law, Prel. B. p. 10, tit. i. sec. 2, pi. 4. 
 
 (b) Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quam 
 stricti juris, rationem. L. 8, C. de judic. Benignius legis interpretandae 
 sunt, quo voluntas earum conservetur. L. 18, ff. de legib. Etsi maxime 
 verba legis hunc habent intellectum, tamen mens legislatoris aliud vult. L. 
 13, sec. 2, ff. de excus. tut. Haec aequitas suggerit, etsi jure deficiamur. L. 
 2, sec. 5, in f. ff. de aqua et aquas pluv. arc. Ubicumque judicem aequitas 
 movent. L. 21, ff. de interrog. Naturalem potius in se, quam civilem ha- 
 bet aequitatem. Siquidem civilis deficit actio, sed natura aequum est. L. 1, 
 sec. 1, ff. si is qui test. lib. Benigniorem interpretationem sequi, non minus 
 justius est, quam tutius. L. 192, sec. 1, ff. de reg. jur. Semper in dubiis 
 benigniora prsferenda sunt. L. 56, eod. Rapiendi occasio est, quae praebet 
 benignius responsum. L. 168, eod. 
 
 (c) Domat's Civil Law, Prel. B. p. 10, tit. i. sec. 2, pi. 5. 
 (</) This article is a consequence of the foregoing rules.
 
 CHAP. XII.] A>,D CQMSTBUCTION. 017 
 
 we must be eareful never to confound the use of these 
 two ideas ; but we ought to make a right discernment, 
 and to apply either the just severity, or the tempera- 
 ment of equity, according to the preceding rules and 
 those which folio w.(«) 
 
 § 461. It is never free and indifferent for us to choose 
 either the rigor of the law, or equity, so as to be at lib- 
 erty in one and the same case to apply either the one or 
 the other indifferently and without injustice. But in ev- 
 ery fact, we must determine ourselves either to the one 
 or to the other, according to the circumstances, and to 
 what the spirit of the law requires. Thus, we must 
 judge according to the rigor of the law, if the law ad- 
 mits of no mitigation ; or according to the temperament 
 of equity, if the law will bear it.(6)(c) 
 
 § 462. The obscurities, ambiguities, and other defects 
 of expression, which may render the sense of a law du- 
 bious, and all the other difficulties of understanding 
 aright, and applying justly the laws, ought to be resolved 
 by the sense that is most natural, that has the greatest 
 relation to the subject, that is most conformable to the 
 intention of the lawgiver, and most agreeable to equity. 
 And this is discovered by the several view 7 s of the na- 
 ture of the law, of its motive, of the relation it has to 
 other laws, of the exceptions that may limit it, and by 
 other reflections of this kind, which may discover the 
 spirit and sense of the law. (d)(c) 
 
 (a) Domat's Civil Law, Prel. B. p. 11, tit i. sec. 2, pi. vi. 
 
 (b) This article is also a consequence of the preceding rules. 
 
 (c) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pi. 7. 
 
 (d) In ambigua voce legis, ea potius aceipenda est significatio quae vitio ca- 
 ret. Praesertim cum etiam voluntas legis, ex hoc colligi possit. L. 19, If. de 
 legib. Quoties idem sermo duas sententias exprimit, ea potissimum excipiatur 
 quae rei gerendae aptior est. L. 67, ff. de reg. jur. Prior atque potentior est 
 quam vox, mens dicentis. L. 7, in ff. de suppell. leg. Benignius leges inter- 
 pretandae sunt, quo voluntas earum conservetur. L. 18, ff. de legib. Scire 
 leges non hoc est verba earum tenere, sed vim ac potestatem. L. 17, eod. 
 
 0) Domat's Civil Law, Prel. B. p. 13, tit. i. sec. 2, pi. 0. 
 
 78
 
 Glc) OF USTEUI'KETATION [CHAP. XII. 
 
 § 463. For understanding aright the sense of a law, 
 we ought to consider well all the words of it, and its 
 preamble, if there be any, that we may judge of the 
 meaning of the law by its motives and by the whole 
 tenor of what it prescribes ; and not to limit its sense, 
 to what may appear different from its intention, ei- 
 ther in one part of the law taken separately, or by a 
 defect in the expression. But we must prefer to this 
 foreign sense of a defective expression, that which ap- 
 pears otherwise to be evident by the spirit of the whole 
 law. Thus, it is to transgress against the rules and spi- 
 rit of laws, to make use, either in giving of judgment, 
 or counsel, of any one part of a law taken separately 
 from the rest, and wrested to another sense than what 
 it has when it is united to the whole. (a) (6) 
 
 § 464. If there happens to be omitted in a law any 
 thing that is essential to it, or that is a necessary conse- 
 quence of its disposition, and that tends to give to the 
 law its entire effect, according to its motive, we may in 
 this case supply what is wanting in the expression, and 
 extend the disposition of the law to what is included 
 within its intention, although not expressed in the 
 words. (c)(d) 
 
 (a) Incivile est nisi tota lege perspecta, una aliqua particula ejus proposita, 
 judicare, vel respondere. L. 24, ff. de legib. Verbum ex legibus, sic accipi- 
 endum est, tarn ex legum sententia, quam ex verbis. L. 6, sec. 1, ff. de verb, 
 sign. Etsi maxime verba legis bunc habent intellectum, tamen mens legisla- 
 tors aliud vult. L. 13, sec. 2, ff. de excus. tut. See the preceding articles. 
 See upon the word preamble the 134th Law, sec. 1, ff. de verb. obi. 
 
 (b) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pi. 10. 
 
 (c) Quod legibus omissum est, non omittetur religione judicantium. L. 
 13, ff. de testib. Quoties lege aliquid unum vel alterum introductum est, bona 
 occasio est, caetera quae tendunt ad eamdem utilitatem, vel interpretatione, vel 
 certe jurisdictione suppleri. L. 13. ff. de legib. Supplet praetor in eo quod 
 legi deest. L. 11, ff. de praeser. verb. Licet orationis sub divo Marco habi- 
 tae verba deficiant, is tamen qui post contractas nuptias nurui suae curator da- 
 
 (<f) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pi. 11.
 
 CHAP. XII.] AND CONSTRUCTION. Gl9 
 
 § 465. If the words of a law express clearly the sense 
 and intention of the law, we most hold to that. But if 
 the true sense of the law cannot be sufficiently under- 
 stood by the interpretations that may be made of it, ac- 
 cording to the rules that have been just now explained, 
 or that the sense of the law being clear, there arise from 
 it inconveniences to the public good, we must in this 
 case have recourse to the prince, to learn of him his in- 
 tention as to what is liable to interpretation, explanation^ 
 or mitigation ; whether it be for understanding the law 
 or mitigating its severity. (a)('>) 
 
 § 466. If the true meaning of a law being well known, 
 although we are ignorant of its motive, there seems to 
 
 tar, excusare se debet, ne manifestam sententiam ejus offendat. L. 17, C. de 
 excus. tut. Edicti quidem verba cessabunt : Pomponius autem ait, sententiam 
 edicti porrigendam esse ad haec. L. 7, sec. 2, ff. de jurisd. See in this sec- 
 tion the 2 1st, 2-Jd and 23d articles, which serve as examples of this. 
 
 (a) Leges sacritissimaj quaa constringunt hominum vitas, intelligi ab omni- 
 bus debent, ut universi praescripto earum manifestius cognito, vel inhibita de- 
 clinent, vel permissa sectentur. Si quid vero in iisdem legibus latum fbrtas- 
 sis obscurius fuerit, oportet id ab imperatoria interpretatione patefieri, duri- 
 tiamque legum, nostra; humanitati iucongruam, emendari. L. 9, C. de leg. 
 Inter sequitatem, jusque interpositam interpretationem, nobis solis et oportet 
 et licet inspicere. L. 1, eod. Si enim in preesenti leges condere soli impe- 
 ratori concessum est, et leges interpretari, solo dignum irnperio esse oportet. 
 L. ult. eod. Nov. 143. De his quai primo constituuntur, aut interpretatione, 
 aut constitutione optimi principis certius statuendum est. L. 11, ff. eod. 
 Thus the Parliament made remonstrance to Charles the Seventh, touching the 
 declarations, interpretations, modifications, which were to be made to the an- 
 cient ordinances, upon which followed that of 1446. Thus the ordinance of 
 Moulins, art. 1, and that of 1667, tit. i. art. 3 and art. 7, enjoin the Parlia- 
 ments and the other courts, to make their remonstrances to the king touching 
 what appeared in the ordinances to be contrary to the advantage or conveni- 
 ency of the public ; or to want interpretation, declaration, or mitigation. See 
 the 33d article of the ordinance of Philip VI. in the year 1349, empowering 
 the Council and the Chamber of Accounts to make the declarations and inter- 
 pretations that should be wanted on the said ordinance. De interpretatione 
 canonum ecclesiasticorum, siquid dubietatis emerserit. V. 1. 6, de Sacro- 
 sanct. Eccl. de dubietate, quae in canonibus emerserit. V. 1. 6, C. de Sacro- 
 sanct. Eccl. 
 
 (b) Domat's Civil Law, Prel. B. p. 13, tit. i. sec. 2, pi. 12.
 
 620 OF INTERPRETATION [CHAP. XII. 
 
 arise from it some inconvenience that cannot be avoided 
 by a reasonable interpretation, we must presume that the 
 law has nevertheless its usefulness and its equity found- 
 ed upon some view of the public good, which ought to 
 make us prefer the sense and authority of the law to the 
 reasonings that may be brought against it. For other- 
 wise many laws, very useful and well established, would 
 be overthrown either by some other views of equity or 
 by subtilty of reasoning. («)(&) 
 
 § 487. The laws which are in favor of that which the 
 public good, humanity, religion, the liberty of making 
 contracts and testaments, and other such like motives, 
 render favorable, and those which are made in favor of 
 any persons, are to be interpreted in as large an extent 
 as the favor of these motives, joined with equity, is able 
 to give them, and they ought not to be interpreted strict- 
 ty, nor applied in such manner as to be turned to the 
 prejudice of those persons in whose favor they were 
 made.(c)((/) 
 
 (a) Non omnium quae a majoribus constituta sunt ratio reddi potest. L 20, 
 ff. de legib. et ideo rationes eorum quae constituuntur, inquiri non oportet, 
 alioquis multa ex his quae certa sunt, subvertuntur. L. 21, eod. Disputare 
 de principali judicio non oportet. ' L. 3, C. de crim. Sacril. Multa jure ci- 
 vili contra rationem disputandi, pro utilitate communi recepta esse, innumera- 
 bilibus rebus probari potest. L. 51, sec. 2, ff. ad 1. Aquil. 
 
 (b) Domat's Civil Law, Prel. B. p. 13, tit. i. sec. 2, pi. 13. 
 
 (a) Nulla juris ratio, aut aequitatis benignitas patitur, ut quae salubriter pro 
 utilitate hominum introducuntur, ea nos duriore interpretatione, contra ipso- 
 rum commodum producamus ad severitatem. L. 25. ff. de legib. Aliam cau- 
 sam esse institutionis quae benigne acciperetur. L. 19, ff. de lib. et post, prop- 
 ter publicam utililatem strictam rationem insuper habemus, quae nonnun- 
 
 quam in amhiguis religionum quaestionibus omitti solet. Nam summam esse 
 rationem qua? pro religione facit. L. 43, ff. de relig. et sumpt. funerum. 
 Quod favore quorumdam constitutum est, quibusdam casibus ad laesionem 
 eorum nolumus inventum videri. L. 6, C. de legib. legem enim utilem rei- 
 
 publicae adjuvandam interpretatione. L. 64, sec. 1, ff. de condit. et dem. 
 
 See an example of the last part of this rule in the ninth article of the third 
 section of the contract of sale ; and another in the third law, sec. 5, ff. de 
 carb. ed. The rest needs no example. 
 
 (b) Domat's Civil Law, Prel. B. p. 13, tit. i. sec. 2, pi. 14.
 
 CHAP. XII.] AND CONSTRUCTION. 021 
 
 § 468. The laws which restrain our natural liberty, 
 such as those that forbid any thing that is not in itself 
 unlawful, or which derogate in any other manner from 
 the general law; the laws which inflict punishments for 
 crimes and offences, or penalties in civil matters ; those 
 which prescribe certain formalities ; the laws which ap- 
 pear to have any hardship in them ; those which permit 
 disinheriting and others the like, are to be interpreted in 
 such a manner as not to be applied, beyond what is 
 clearly expressed in the law, to any consequences to 
 which the laws do not extend. And on the contrary, we 
 ought to give to such laws all the temperament of equity 
 and humanity that they are capable of.(a)(6) 
 
 § 469. If any law or custom happens to be established 
 upon particular considerations, contrary to other rules, 
 or to the general law, it ought not to be drawn to any 
 consequence beyond the cases which the words of the 
 law mark expressly. (c) 
 
 (a) This is a consequence of the preceding rules. Interpretatione legum 
 poena? moliendae sunt, potius quam asperandae. L. 42, ff. de pcen. In pcenali- 
 bus causis benignius interpretandum est. L. 155, sec. ult. ff. de reg. jur. la 
 levioribus causis proniores ad lenitatem judices esse debent, in gravioribus 
 poenis, severitatem legum, cum aliquo temperamento benignitatis, subsequi. 
 L. 11, ff. de pcen. "V id. !. 32, eod. Aliam causam esse institutionis quas be- 
 nigne acciperetur ; exhaeredationes autem non essent adjuvandae. L. Is), ff. 
 de lib. et post. Si ita libertatem acciperit ancilla, si primum marem peperit, 
 libera esto : et haec, uno utero marem et fceminam peperisset,siquidem certum 
 est quid prius edidisset, non debet de ipsius statu ambigi, utrum libera esset, 
 necne. Sed nee filia?, nam si postea edita est, erit ingenua. Sin autem hoc 
 incertum est, nee potest nee per subtilitatem judicialem manifestari, in ambi- 
 guis rebus humaniorem sententiam sequi oportet. Ut tarn ipsa libertatem con- 
 sequatur, quam filia ejus ingenuitatem. Quasi per praesumptionem priore mas- 
 culo edito. L. 10, sec. i. ff. de reb. dub. Quod contra rationem juris recep- 
 tum est, non est producendum ad consequentias. L. 14, ff. de legib. In 
 quorum finibus emere quis prohibetur, pignus accipere non prohibetur. L. 
 24, ff. de pign. Although the example of this slave be quoted in this law 10, 
 sec. 1, ff. de reb. dub. upon the subject of Testaments, yet it may be also ap- 
 plied here. 
 
 (b) Domat's Civil Law, Prel. B. p. 13, tit. i. sec. 2, pi. 15. 
 
 (c) Ibid. pi. 1G.
 
 022 OF INTERPRETATION [CHAP. XII. 
 
 § 470. If the laws in which there is some doubt or 
 other difficulty have any relation to other laws which 
 may help to clear up their sense, we must prefer to all 
 other interpretations that which they may have from 
 the other laws. Thus, when new laws have reference 
 to old ones, or to ancient customs, or ancient laws to 
 modern ones, they are interpreted one by the other, ac- 
 cording to their common intention, in so far as the latter 
 laws have not abrogated the former.(«)(6) 
 
 § 471. If the difficulties which may happen in the in- 
 terpretation of a law or custom are explained by an an- 
 cient usage, which has fixed the sense of the law, and 
 which is confirmed by a constant series of uniform de- 
 crees, we must stick to the sense declared by the con- 
 stant practice, which is the best interpreter of laws. (c)(t/) 
 
 § 472. All laws extend to every thing that is essential 
 to their intention. Thus, the laws allowing males to 
 marry at the age of fourteen years complete, and females 
 at the age of twelve, it is a consequence of these laws, 
 that those who marry, can bind themselves, although 
 minors, to the performance of the articles agreed on in 
 marriage, which relate to the wife's portion, her jointure, 
 the community of goods, and other matters of the like 
 nature. Thus, judges being established to administer 
 justice, their authority extends to every thing that is ne- 
 cessary for the exercise of their functions ; such as the 
 
 (a) Non est novum, ut priores leges ad posteriores trahantur. L. 26, ff. de 
 legib. Sed et posteriores leges ad priores pertinent : nisi contraries sint. Id- 
 que multis argumentis probatur. L. 28, eod. 
 
 (b) Domat's Civil Law, Prel. B. p. 14, tit. i. sec. 2, pi. 18. 
 
 (c) Si de interpretatione legis queeratur, in primis inspiciendum est quo jure 
 civitas retro in ejusmodi casibus usa suisset : optima enim est legum interpres 
 consuetudo. L. 37, ff. de legibus. Nam imperator noster Severus rescripsit 
 in ambiguitatibus, quae ex legibus proficiscuntur, consuetudinem, aut rerum 
 perpetuo similiter judicatarum authoritatem, vim legis obtinere debere. L. 
 38, eod. 
 
 (d) Domat's Civil Law, Prel. B. p. 14, tit. i. sec. 2, pi. 19.
 
 CHAP. XII.] AM) CONSTRUCTION. 623 
 
 right of inflicting penalties on tliose who contravene the 
 orders of justice : and it is the same thing as to all the 
 other consequences of their ministry.(a)(6) 
 
 § 473. In the laws which permit, any thing, we draw 
 the consequence from the greater to the lesser. Thus, 
 those who have a right to give away their goods for 
 nothing, have much more a right to sell them. And in 
 like manner, those who have a right to appoint execu- 
 tors by a testament, have with much greater reason a 
 right to bequeath particular legacies (c)(d) 
 
 § 474. In the laws which forbid any thing, we draw 
 the consequence from the lesser to the greater. Thus, 
 prodigals, who are not allowed to have the management 
 of their own estate, are with much greater reason ren- 
 dered incapable of alienating it. Thus, those who are 
 declared to be unworthy of some office, or some honor, 
 are much more unworthy of a greater office, and of a 
 more considerable honor. (c)(/) 
 
 (a) Haec aequitas suggerit, etsi jure deficiamur. L. 2, sec. 5, in f. ff. de 
 aqua, et aquas pluviee arcend. Edicti quidem verba cessabunt : Pomponius au- 
 tem ait, senlentiam edicti porrigendam esse ad haec. L. 7, sec. 2, ff. de jurisd. 
 Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus juris- 
 dictio explicari non potuit. L. 2, eod. By the law of England minors can 
 make no legal settlements on their marriages. Coke i. Inst. f. 34 s , 38". 
 And therefore an act of parliament is requisite to empower them so to do, and 
 to confirm and ratify the settlements that are so made. By which means the 
 legislative power takes care of the interest of minors, that they be not wronged 
 in any transaction of this sort before they attain to the years of discretion, 
 when they may be able to judge for themselves, and stipulate such conditions 
 as they think fit. 
 
 (b) Domat's Civil Law, vol. i. prel. book, p. 15, tit. 1. sec. 2, pi. 21. 
 
 (c) Non debet cui plus licet, quod minus est, non licere. L. 21, ff. de reg. 
 jur. Cujus est donandi, eidem et venendi, et concedendi jus est. L. 163, ff. 
 de reg. jur. Qui potest invitis alienare, multo magis et ignorantibus, ci ab- 
 sentibus potest. L. 26, ff. de reg. jur. See the two following sections. 
 
 (d) Domat's Civil Law, vol. i. prel. book, tit. 1, sec. 2, p. 15, pi. 22. 
 
 (c) Qui indignus est inferiore ordine, indignior est superiors. L. 4, ff. de 
 Senatorib. Est enim perquam ridiculum,cum qui minoribus pcenae causa pro- 
 hibitus sit, ad majores aspirare. L. 7, sec. ult. ff. de interd. et releg. ; 1. 5, 
 ff. de serv. export. 
 
 (/) Domat's Civil Law, vol. i. prel. book, tit. 1. sec. 2, p. 15, pi. 23.
 
 G2i OK INTERPRETATION [iJHAP. XII. 
 
 § 475. This extension of laws from the lesser to the 
 greater, and from the greater to the lesser, is limited to 
 the things which are of the same kind with those that 
 are mentioned in the law, or which are such that its 
 motive ought to be extended to them, as in the examples 
 of the foregoing articles. (a) But we must not draw the 
 consequence either from the greater to the lesser, or 
 from the lesser to the greater, when they are things of a 
 different kind, or such as the spirit of the law is not ap- 
 plicable to.(7>) Thus, the law which permits persons 
 who have attained to the years of marriage, although 
 minors, to bind themselves by contracts of marriage, and 
 to engage their estates for the performance of the cove- 
 nants that are consequences of the marriage, would be 
 wrongfully applied to other sorts of contracts, although 
 of less importance. Thus, the liberty which an adult 
 person has in his minority, to devise his whole estate by 
 will, would not be rightly extended to the liberty of 
 making over any part of it by a deed or gift that should 
 take effect in his lifetime. Thus, the power which be- 
 longs to a lord of a manor, who has a royalty, or ample 
 jurisdiction for the administration of justice within his 
 
 (a) In eo quod plus sit, semper inest et minus. L. 110, ff. de reg. jur. 
 Cum quis possit alienare, polerit et consentire alienationi. L. 165, eod. 
 Lex Julia, quae de dotali praedio prospexit, ne id marito liceat obligare, aut 
 alienare, plenius interpretanda est, ut etiam de sponso idem juris sit, quod de 
 marito. L. 4, ff. de fundo dot. 
 
 (b) Thus, in the ancient Roman law, the license which fathers had to take 
 away the lives of their children, did not extend to the license of depriving 
 them of their liberty, and making them slaves. Libertati a majoribus tantum 
 impensum est, ut partibus, quibus jus vita; in liberas necisq ; potestas olim 
 erat permissa, libertatem eripere non liceret. L. ult. C. de patr. potest. 
 Thus in the same Roman law, it was lawful for a man to give to his concu- 
 bine, but not to his wife. V. 1. 58, et tot. Tit. ff. de donat. inter vir. et uxor. 
 Thus by the same law, a husband was allowed to sell the lands which he got 
 with his wife in marriage, if she consented to it ; but he could not. mortgage 
 them, not even with her consent. Lex Julia fundi dotalis Italici alienationem 
 prohibebat fieri a marito non consentiente muliere : hypothecam autera nee si 
 mulier consentiebat. L. un. sec. 15, C. de rei ux. act.
 
 CHAP. XII. J AND CONSTRUCTION. 625 
 
 own lordship, by the special grant of the sovereign, 
 would be wrongfully applied to such as have grants only 
 of an inferior jurisdiction, and in causes of lesser mo- 
 ment. Thus, the power of a lord chief justice will not 
 infer that of a constable or bailiff. Thus, the laws 
 which brand persons with infamy, would not be rightly 
 extended to the confiscation of goods, although honor is 
 much more valuable than any goods.(a) 
 
 § 476. Mackeldey, in his Compendium of Modern Civil 
 Law, considers the doctrine of interpretation, in its appli- 
 cation to legal transactions. He divides and explains 
 this doctrine in the following manner : " The interpre- 
 tation of legal transactions is of three kinds, viz. authen- 
 tica, usualis, or doctrinalis ; according as it proceeds from 
 the parties themselves, or is founded on the ordinary use 
 of language, or on the rules of juridical hermeneutics. 
 1. In the interprctatio autkentica, a distinction is to be 
 made between contracts and testaments. In construing 
 testaments, the doubtful passage must be taken in the 
 sense in which the testator wished it to be undrstood.(6) 
 The same rule applies to all other acts and instruments 
 which proceed from a single party. But where several 
 parties concur in a transaction, its authentic interpreta- 
 tion presupposes an accordance between them all, and 
 therefore a one-sided explanation given by one of them 
 cannot prejudice the rights of the others. 2. The inter- 
 pretatio usualis applies particularly to cases where in a 
 legal transaction words and phrases are employed, which 
 have a strictly determined sense in the ordinary speech 
 of the place, and it does not appear that the parties em- 
 
 (a) Domat's Civil Law, vol. i. prel. book, tit. 1, sec. 2, p. 15, pi. 24. 
 
 (b) Quisque verborum suorum optimus est interpres. Fr. 96, D. 50, 17. — 
 Fr. 21, sec. 1, D. 28. 1. — Bucker, Recht der Forderungen, 2d edit. Leipsic, 
 1830, sec. 37. 
 
 79
 
 626 OF INTERPRETATION [CHAP. Xll. 
 
 ployed them in a different meaning.(a) Whenever cases 
 of this kind occur in practice, it is important to ascertain 
 whether the doubt, which arises from the expressions 
 used in the transaction, has not previously presented 
 itself and been removed by judicial decision. (6) 3. In 
 the interpretatio doctrinalis the following rules are to be 
 observed: 1. Every obscure and doubtful passage is to 
 be explained according to the intention of the parties ; 
 and this we must endeavor to ascertain from the words, 
 the usage of language, and also from the respective cir- 
 cumstances and relations of the parties to the transac- 
 tion, (c) 2. If their real intention cannot be discovered 
 with certainty, the obscure passage must be explained 
 in such a manner as will deviate the least from the na- 
 ture of the transaction, and hence adversely to him who 
 puts in a claim which deviates from the nature of the 
 transaction, and who ought therefore to have been care- 
 ful to employ a clearer mode of expression. (d) 3. If there 
 be a doubt respecting the amount of the debt, the doubt- 
 ful passage must be explained in such manner as is least 
 unfavorable to the promiser.(e) 4. And lastly, if, from 
 the words employed in the transaction, it is altogether 
 uncertain and doubtful what the party or parties in- 
 tended, the transaction is invalid ;(/) yet it is a principle 
 
 (a) Arg. fr. 37, 38, D. 1, 3.— Fr. 21, sec. 1, in fin. D. 28, 1. See also fr. 
 69, sec. 1, D. 32.— Fr. 9-12, D. 33, 6. 
 
 (b) E. g. fr. 13, pr. D. 28, 2.— Fr. 17, sec. 1, D. 30.— Fr. 10, sec. 1, D. 
 
 34 5. 
 
 (c) Fr. 219, D. 50, 16.— Fr. 67, D. 50, 17.— E. g. fr. 3, sec. ult. D. 33, 
 
 10.— Fr. 33, D. 34, 2.— Fr. 22, D. 34, 1.— Fr. 14, D. 33, 1.— Fr. 75, D. 32. 
 
 (d) Interpretatio facienda est secundum naturam negotii : fr. 3, D. 12, 1. 
 Fr. 11. sees. 1, 2, D. 19, 1. — Fr. 72, pr. D. 18, 1. — Interpretatio facienda 
 est contra eum, qui clarius loqui potuisset ac debuisset. Fr. 172, pr. D. 50, 
 17.— Fr. 39, D. 2, 14.— Fr. 21, D. 18, 1.— Fr. 38, sec. 18, D. 45, 1.— Fr. 
 26, D. 34, 5. 
 
 (e) In dubio id quod minimum est sequimur. Fr. 9, 34, D. 50, 17. Fr. 
 52, D. 19, 2.— Fr. 1, sec. 4, D. 45, 1. 
 
 (/) Fr. 188, D. 50, 17.— Fr. 2, fr. 10, pr. fr. 21, 27, 28, D. 34, 5.
 
 CHAP. XII.] AND CONSTRUCTION. C27 
 
 of law, that the interpretation of a transaction shall favor 
 its validity as far as possible. 1 ' (a) (6) These rules have a 
 more direct application to deeds and testaments than to 
 statutes ; although they serve in some respects to eluci- 
 date the general doctrine of interpretation now under 
 consideration. 
 
 § 477. No civil law writer has laid down rules of in- 
 terpretation with greater precision than Vattel. We 
 shall now proceed to state such elementary rules as we 
 deduce from this writer, so far as we consider them ap- 
 plicable to statutes. We shall not quote his precise 
 language, but extract from it those rules which we apply 
 to statutes. We give these elementary rules from a 
 conviction that they will greatly assist the legal student 
 in getting a clear understanding of the reason and foun- 
 dation upon which the rules hereafter stated rest ; and 
 also from our firm conviction, that what Domat has said 
 is true to a great extent, when applied to the present 
 age. He has justly remarked : " There is great danger 
 of misapplying the rules of law, if we have not ample 
 knowledge of all the particular rules, and of the several 
 views that are necessary for interpreting and apply- 
 ing them aright."(c) This remark is as pertinent to 
 statutory interpretation as to that of any other kind of 
 laws. 
 
 § 478. The first general maxim of interpretation laid 
 down by this writer is, that it is not allowable to interpret 
 what has no need of interpretation.(rf) When the words 
 of an act are in clear and precise terms, — when its mean- 
 ing is evident, and leads to no absurd conclusions, there 
 can be no reason for refusing to admit the meaning 
 
 (a) Fr. 12, D. ibid.— Fr. 80, D. 45, 1. 
 
 (/>) Kauffman's Mackeldey, sec. 180, pp. 172, 3. 
 
 (c) Domat, prel. b. tit. 1, p. 17. 
 
 (d) Vattel, b. 2, ch. 17, sec. 263.
 
 628 OF INTERPRETATION [CHAP. XII. 
 
 which the words naturally present ; to go elsewhere in 
 search of conjecture in order to restrict or extend the 
 act, would be but an attempt to elude it. Such a me- 
 thod, if once admitted, would be exceedingly dangerous, 
 for there would be no law, however definite and precise 
 in its language, which might not by interpretation be ren- 
 dered useless. However luminous each clause might 
 be, — however clear and precise the terms of it, all this 
 would be of no avail, if it be allowed to go in quest of 
 extraneous arguments, to prove that it is not to be un- 
 derstood in the sense which it naturally presents. Puf- 
 fendorff says, " If the words of the law express clearly 
 the sense and intention, we must hold to that.(a) 
 
 § 479. The next general maxim which may be ap- 
 plied to statutes is this : that if the framers of a statute 
 use language that is wholly unintelligible, or which con- 
 veys no meaning, courts, by interpretation, cannot make 
 it express what upon its face remains unexpressed, or 
 which cannot, by any fair rule of interpretation, be made 
 out of the language the law-maker has seen fit to employ. 
 Such an instance as this will rarely if ever occur in apy/r^^ 
 modern act of the legislature. ^^/^^^^ eU, If 
 
 § 480. The sole object of interpretation of a statute 
 is, to discover the intention of the framers. That inten- : 
 tion is, however, sometimes very obscurely expressed. * 
 
 Whenever we meet with an obscurity in a statute, we 
 are to consider what probably were the ideas of those 
 who drew the act, and to interpret it accordingly. (6) 
 This is the general rule for all interpretation. It partic- 
 ularly serves to ascertain the meaning of particular ex- 
 pressions, whose signification is not sufficiently determi- 
 nate. Pursuant to this rule, we should, in remedial 
 statutes, take those expressions in their utmost latitude, 
 
 (a) Law N. & N. pr. b. p. 13, sec. 12. (b) Vattel, b. 2, c. 17, sec. 270.
 
 CHAP. XII.] AND CONSTRUCTION. 629 
 
 when it seems probable from the language, that the law 
 maker had in view every thing which in that extensive 
 sense the words are capable of designating ; and on the 
 other hand, courts should restrict their meaning if from 
 the language used, it is evident that the legislature in- 
 tended to confine the act strictly to what would be com- 
 prehended in their more limited signification. By the 
 same rule, a clause is to be interpreted in the utmost 
 latitude which the strict and appropriate meaning of the 
 words w 7 ill admit of, when, from the language used, and 
 the context and purview of the act, it is apparent that 
 the framers of the act had in view every thing which 
 the words in their strict and appropriate meaning com- 
 prehend. But, it must be interpreted in a more limited 
 sense when, from the same sources, it appears manifest, 
 that the legislature did not mean to extend it to all cases 
 and to every thing which might be included within the 
 strict propriety of the terms used. 
 
 § 481. The next general maxim is, that the words 
 used are to be interpreted, and explained, conformable to 
 general usage.(a) PulTendorff says : "As for the words, 
 the rule is, unless there be reasonable objections against 
 it, they are to be understood in their proper and most 
 known signification, not so much according to grammar 
 as to the general use of them.(i) Vattel lays down this 
 rule. It is to be presumed that the legislature employed 
 the words in their proper signification ; that is, the sig- 
 nification which common usage has aftixed to them. It 
 is not to be presumed, that it did not intend to annex the 
 same meaning to the words which common usage had 
 annexed to them ; hence, in no instance, ought courts to 
 deviate from the common usage of the words, unless it 
 should clearly appear, that they were intended to be 
 
 (a) Vattel, b. 2, c. 17, sec. 271. (b) Puff. Law N. & N. b. 5, c. 12, sec. 3.
 
 G30 OF INTERPRETATION [CHAP. XII. 
 
 used in a different sense, or unless there be weighty rea- 
 sons for it. 
 
 § 482. Languages incessantly vary, and the significa- 
 tion and force of words change with time. The com- 
 mon usage of the words at the time of the enactment is 
 the true criterion by which to determine their meaning. 
 Hence, in order to correctly interpret ancient statutes, the 
 court should endeavor to ascertain the sense of the 
 words, according to their common usage among the 
 people, at the era of their enactment. To ascertain 
 their sense according to such common usage, resort may 
 be had to what definition the then common law had an- 
 nexed to given words, if any had been annexed ; also to 
 the sense in which they had been used in contempora- 
 neous deeds, and by contemporaneous writers, aud as 
 the use of language is governed by arbitrary rules, ety- 
 mological or grammatical investigations, w 7 ere they pur- 
 sued Avith a view to discover the true import of the 
 words, would seldom, if ever, afford a sure key by which 
 to unlock the mind of the lawgiver ; they therefore are 
 not regarded as at all decisive of the true interpretation, 
 and are not to be strictly or universally followed. 
 
 § 483. Technical terms, or terms peculiar to the arts 
 and sciences, ought commonly to be interpreted accord- 
 ing to the definition given them by the masters of the 
 art, or persons versed in the knowledge of the art or 
 science to which the term belongs. If, however, the 
 technical or other terms relate to things that admit of 
 different degrees, a strict adherence to their technical 
 definition is not always required, and in that case, the 
 terms may be construed in a sense the most agreeable 
 to the context.(a) Puffendorff lays down the rule thus : 
 " As for terms of art, which are above the reach of the 
 
 (a) Vattel, b. 2, c. 17, sees. 276, 277.
 
 CHAP. XII.] AM) CONSTRUCTIOIf. 631 
 
 common people, the rule is, that they be taken according 
 to the definition of the learned in such art. ,; («) 
 
 § 484. Where the terms are ambiguous, such a mean- 
 ing should always be affixed to the words used, as is 
 most suitable to the subject matter or purview of the act. 
 This rule is based upon the reason, that the office of 
 true interpretation is, to discover the thoughts, or rather 
 the intent of the law-maker. Hence, whenever the 
 legislature use words which are ambiguous, or which are 
 susceptible of many different significations, it is pre- 
 sumed they were intended to be used in agreement with 
 the general subject matter.(6) 
 
 § 485. If an expression which is susceptible of dif- 
 ferent meanings occurs more than once in the same sta- 
 tute, it may not have the same signification in every 
 instance in which it may be used, as it may be governed 
 by the subject matter in its immediate context, or pro 
 substrata materia. Thus, for instance, the word " day" has 
 two significations, to wit: the natural, and the civil day; 
 the former being the period between the rising and setting 
 of the sun ; the latter, the term of twenty-four hours. 
 Should that word occur in the same statute, in different 
 places, the immediate context of the one having refer- 
 ence to a certain number of days of mental or physical 
 labor, and the immediate context of the other having 
 reference to the time in which an act should be done, 
 that is, within a given number of days ; in the former 
 case, the context would limit the word " day" to the natu- 
 ral day, for the legislature could not have intended suc- 
 cessive civil days' effort without intercession. But in the 
 latter, the context would indicate, that the word day was 
 intended to embrace a civil day. 
 
 § 486. Every interpretation that leads to an absurdity 
 
 (a) PuffendorfT, b. 5, c. 12, sec. 1. (b) lb. b. 5, c. 12, sec. 5.
 
 632 OF INTERPRETATION [CHAP. XII. 
 
 ought to be rejected ; by this is meant, that no such con- 
 struction should be put upon a statute as would lead to 
 an absurd consequence. This rule is founded upon the 
 presumption, that the legislature did not intend an ab- 
 surdity, hence, as that intention is to be ascertained, this 
 presumption leads the mind to the conclusion, that any 
 construction, which would lead to such consequences, is 
 not the true one. By an absurdity, in the sense in which 
 we now use the term, we mean not only that which is 
 physically impossible, but also what is morally so. We 
 regard that to be morally impossible which is contrary 
 to reason, or in other words, that which could not be 
 attributed to a man in his right senses. (a) 
 
 § 487. The rule we have laid down in the preceding 
 section ought to be followed, when the statute does not, 
 considered in itself, present either obscurity or ambi- 
 guity in the language. For the uncertainty of the sense 
 to be given to a law does not proceed solely from the 
 obscurity or other defect in the expressions used, but 
 also from the limited nature of the human mind, which 
 cannot foresee all cases and circumstances, nor take into 
 view all the consequences of what may be enacted ; and 
 also from the impossibility of entering into that immen- 
 sity of detail which would be necessary to meet every 
 possible case which might arise. As laws must necessa- 
 rily deal in generals, and cannot descend to particulars, 
 and as interpretation is the application of them to par- 
 ticular cases, as the presumption is against an absurd 
 intent, whenever the words, taken in their proper and or- 
 dinary sense, would lead to such a consequence, the 
 court should so far deviate from their meaning, as to 
 avoid such a consequence. 
 
 § 488. It is not to be presumed, that the legislature 
 
 (a) Vattel, b. 2, c. 17, sec. 282.
 
 CHAP. XII.] AND CONSTRUCTION. 633 
 
 intended, that the results of its deliberate act, should 
 prove of no effect, or in other words, a nullity. Hence, 
 another rule of construction is, that no statute should be 
 so construed as to produce such an effect. Indeed this 
 rule is properly a branch of the preceding, for, to destroy 
 the entire force and effect of a statute, by construction, 
 and render it nugatory, would be to produce an absur- 
 dity ; that is, it would be antagonistical to the presump- 
 tion that something was intended by the law. It would, 
 in effect, be equivalent to saying that when something 
 was intended nothing was in fact intended, as construc- 
 tion is but following out the intendment of the legisla- 
 ture. The true rule is, that if many different interpre- 
 tations present themselves from the language in which 
 the law is expressed, and any one of them will enable 
 us to avoid such an effect, that should be preferred, 
 which appears to be the most agreeable to the intention 
 of the framers of the statute, for that would be most con- 
 sonant to the true office of interpretation. 
 
 § 489. It sometimes happens that a statute, in some 
 part, is expressed in obscure or equivocal terms ; in other 
 parts the same terms are used in a more clear, unequiv- 
 ocal, and precise manner, and from which their true 
 sense may be clearly discerned. In all such cases, we 
 ought to interpret the obscure or equivocal terms in such 
 manner as that they shall agree and coincide with those 
 which are clear and unequivocal, and which are found 
 in other parts of the same statute. 
 
 § 490. In the framing of statutes, conciseness is fre- 
 quently studied, and hence it is, that things intended by 
 the framers of an act, are imperfectly expressed, or, there 
 is a degree of obscurity in the language, and what the fra- 
 mers intended to, and supposed they had expr ssed in a 
 preceding or subsequent part of the act is not expressed, 
 and as the same words sometimes have quite a different 
 
 80
 
 634 OF INTERPRETATION [cTIAP. XII. 
 
 signification, according to their connection and relation 
 to other words in the context. Hence it is that the rule 
 obtains, that every part and the whole law is to be con- 
 sidered, and the sense gathered from the whole and 
 each expression, not so much the signification which a 
 particular word individually would admit of, as that 
 which it ought to have from the context, spirit and pur- 
 view of the law. It was a maxim of the Roman law : 
 " Incivile est, nisi tola lege perspecta una aliqua parlicala 
 ejus proposita judiciari vel respondere.^ It is only in this 
 way an interpretation can be made in such a manner as 
 that all parts shall be made consonant with each other, 
 so that what follows may agree with what precedes. 
 This should always be done by interpretation, unless it 
 evidently appears, that by subsequent clauses, the fra- 
 mers intended to make some alteration in preceding 
 ones; so too, two different statutes, enacted at differ- 
 ent times, may have such a relation to each other, and 
 stand so intimately connected, as that the one may serve 
 as a key to the true interpretation of the other, and upon 
 this principle rests the doctrine of examining all statutes 
 in pari materia 
 
 § 491. The reason of the statute — that is, the motives 
 which led to the making of it, the object in contempla- 
 tion at the time the act was passed, is another criterion 
 by which to ascertain the true meaning of the act. At- 
 tention should be paid to the circumstances whenever 
 there is question either of explaining an obscure, ambi- 
 guous, indeterminate passage in an act of the legislature, 
 or of applying it to a particular case. When we once 
 know the reason, which alone determined the will of 
 the law makers, we ought to interpret and apply the 
 words used in a manner suitable and consonant to that 
 reason, and as will be best calculated to effectuate the 
 intent. Great caution should always be observed in the 
 application of this rule to particular given cases ; that is,
 
 CHAP. XII.] AND CONSTRUCTION. G35 
 
 we ought always to be certain that we do know, and 
 have actually ascertained, the true and only reason which 
 induced the act. It is never allowable to indulge in 
 vague and uncertain conjectures, or in supposed reasons 
 and views of the framers of an act, where there are 
 none known with any degree of certainty. Vattel, in 
 the application of this rule to deeds and treaties, 
 holds : — If the piece in question is in itself obscure, — 
 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 re- 
 course to conjecture, and, in default of absolute cer- 
 tainty, 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 mo- 
 tives and uncertain views, in order to wrest, restrict, or 
 extend the meaning of a deed which is of itself suffi- 
 ciently clear, and carries no absurdity on the face of it. 
 Such a procedure is a violation of that incontestable 
 maxim — that it is not allowable to interpret what has no 
 need of interpretation. (a) Much less are we allowed, — 
 when the author of a piece has in the piece itself de- 
 clared 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 
 expressions. 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 sufficiently 
 declared. (b) We ought to be the more circumspect in this 
 
 (a) Vattel, sec. 263. 
 (i) Ibid. 266.
 
 036 OF INTERPRETATION [CHAP. XII. 
 
 kind of interpretation, as it frequently happens that sev- 
 eral motives concur to determine the will of the party 
 who speaks in a law or a promise. Perhaps the com- 
 bined influence of all those motives was necessary in or- 
 der 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 cer- 
 tain that it was only in consideration of several concur- 
 rent reasons and motives that the legislature or the con- 
 tracting parties consented to the law or the contract, the 
 ^interpretation and application ought to be made in a 
 manner agreeable to all those concurrent reasons, 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 w T ould, by each of the reasons separately con- 
 sidered, have been induced to form the same determina- 
 tion which he has formed upon all the reasons taken in 
 the aggregate, his words must be so interpreted and ap- 
 plied as to make them accord with each of those rea- 
 sons taken individually. Suppose a prince has promised 
 certain advantages to all foreign Protestants and artisans 
 who will come and settle in his states : 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 foreign- 
 ers 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 particular so 
 great a want of artisans, that he would gladly receive 
 them, of whatever religion they be, — his words should 
 be taken in a disjunctive sense, so that it will be suffi-
 
 CHAP. XII.] AND CONSTRUCTION. GOT 
 
 cient to be cither a Protestant or an artisan, in order to 
 enjoy the promised advantages. 
 
 § 492. To avoid tedious and complex circumlocution, 
 Vattel makes use of the term "sufficient reason for an 
 act of the will," to express whatever has produced that 
 act, — whatever has determined the will on a particular 
 occasion ; whether the will has been determined by a 
 single reason or by many concurrent reasons. That suf- 
 ficient I'coson, then, will be sometimes found to consist in 
 a combination of many different reasons, so that, where 
 a single one of those reasons is wanting, the sufficient 
 reason no longer exists : and in those cases where we 
 say that many motives, many reasons, have concurred to 
 determine the will, yet so as that each in particular 
 would have been alone capable of producing the same 
 effect, — there will then be many sufficient reasons for pro- 
 ducing one single act of the will. Of this we see daily 
 instances. A prince, for example, declares war for three 
 or four injuries received, each of which would have 
 been sufficient to have produced the declaration of 
 war.(rt) 
 
 § 493. Puffendorff says : " But that which helps us 
 most in the discovery of the true meaning of the law, is, 
 the reason of it, or the cause which moved the legislator 
 to enact it. This ought not to be confounded with the 
 mind of the law ; for that is nothing but the genuine 
 meaning of it ; for the finding out of which, we call in 
 the reason of it to our assistance. And this is of the 
 greatest force when it evidently appears that some one 
 reason was the only motive that the parties went upon, 
 which is no less frequent in laws than in facts. And 
 here that common saying takes place, that the reason ccas- 
 ing, the law itself ceases.(b) But if several reasons COn- 
 
 fa) Vattel, B. ii. p. 256, oh. 17, sec. 287, 288, 289. 
 (5) But as to this as regard statutes, see post.
 
 638 OF INTERPRETATION [CHAP. XII. 
 
 cur together, and only one ceases, the others do not im- 
 mediately expire, or become less able to support the effi- 
 cacy of the law. Nay, sometimes the general reason of 
 the thing seems to draw one way, and the absolute will 
 of the legislator another, and, in such a case, the will of 
 the legislator must be deemed by the subjects a reason, 
 which if it be but clearly signified, although not altoge- 
 ther so congruous to the law of prudence, yet suffices to 
 create an obligation." He illustrates it thus : " Another 
 instance of a case which may be decided from the reason 
 of the law. The law is, that those who in a storm 
 forsake the ship, shall lose r. 11 ; and the ship and the la- 
 ding shall be theirs that stay in it. But in a very dismal 
 tempest all forsake the ship, except one sick man who 
 is not able to get out and escape : the ship by chance 
 comes safe to port. ; the sick man seizes it as his : the 
 owner puts in his plea against him. Now the reason of 
 the law was, that those who had exposed their lives to 
 save the ship should have some encouragement ; but 
 this the sick man cannot pretend, who neither stayed in 
 the ship upon that account, neither contributed anything 
 to the saving of it." (a) 
 
 § 494. When the things which constitute the reason 
 of a law are considered as not actually existing, but sim- 
 ply as possible, — or in other words, when the fear of an 
 event, as the result of a given act, is the reason which 
 induced the legislature to enact a law, no case can, 
 by construction, be exempted from it other than such an 
 one in which it can be proved to demonstration that the 
 event is really impossible. Vattel illustrates this rule 
 thus : " For instance, if a law were to prohibit walking 
 the streets by night with a lighted torch or candle, it 
 would be an unavailing plea for the transgressor of that 
 
 (a) PufFendorff, b. 5, ch. 12, pp. 307, 8.
 
 CHAP. XII.] AND CONSTRUCTION. C)'-jJ 
 
 law to allege that no mischief had ensued, and that he 
 carried his torch with such circumspection that no ill 
 consequence was to be apprehended." The bare possi- 
 bility of causing a conflagration by such an act, induced 
 the law, and such possibility was sufficient to have ren- 
 dered it his duty to have obeyed the law. 
 
 § 495. The doctrine that penal statutes are to be con- 
 strued strictly, (as well as all or nearly all the other rules 
 of interpretation and construction,) has been borrowed 
 from the civil law writers, and they afford us the most cor- 
 rect rule by which to determine the line of demarcation be- 
 tween a strict and a liberal interpretation. The distinc- 
 tion taken by them is, that between things which are 
 odious and those which are favorable. To the former 
 they apply the rule of a strict construction ; to the latter 
 that of a liberal one. Vattel says : " There is, doubtless, 
 no language in which there do not occur expressions, 
 words or entire phrases susceptible of a more or less 
 extensive signification. Many a word is equally appli- 
 cable to the genus or the species : — the word fault im- 
 plies intentional guilt or simple error : — several species 
 of animals have but one name in common to both sexes, 
 as partridge, lark, sparrow, &c. — when we speak of horses 
 merely with a view to the services they render to man- 
 kind, mares also are comprehended under that name. In 
 technical language a word has sometimes a more and 
 sometimes a less extended sense than in vulgar use : the 
 word death, among civilians, signifies not only natural 
 death, but also civil death ; v&rbum, in the Latin gram- 
 mar, signifies only that part of speech called the verb ; 
 but, in common use, it signifies any icord in general. 
 Frequently also the same phrase implies more things on 
 one occasion and fewer on another, according to the na- 
 ture of the subject or matter : thus, when we talk of 
 sending succors, sometimes we understand a body of 
 auxiliary troops maintained and paid by the party who
 
 640 OF INTERPRETATION [CHAP. XII. 
 
 sends them — at other times a body whose expenses are 
 to be entirely defrayed by the party who receives them. 
 It is therefore necessary to establish rules for the inter- 
 pretation of those indeterminate expressions, in order to 
 ascertain the cases in which they are to be understood in 
 the more extensive sense, and those in which they are 
 to be restricted to their more limited meaning. 
 
 § 496. But it is to this head that the famous distinc- 
 tion, between things of a favorable and those of an odious 
 nature, particularly belongs. Some writers have reject- 
 ed the distinction, (a) — doubtless for want of properly 
 understanding it. In fact, the definitions that have been 
 given of what is favorable and what is odious, are not 
 fully satisfactory nor easily applied. After having ma- 
 turely considered what the most judicious authors have 
 written on the subject, VatteJ conceives the whole of the 
 question to be reducible to the following positions, which 
 convey a just idea of that famous distinction. 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. (a) The precise point of the will of the 
 legislature or the contracting parties, is what we must ad- 
 here 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 par- 
 ticular case in question, be discovered and fixed by the 
 other rules of interpretation, — we must presume it ac- 
 cording to the laws of reason and equity : and, for this 
 purpose, it is necessary to pay attention to the nature of 
 the things to which the question relates. There are cer- 
 tain things of which equity admits the extension rather 
 than the restriction ; that is to say, that, with respect to 
 
 (a) See Barbeyrac's remarks on Grotius and PuiTendorflf. 
 
 (b) Vattel, sec. 263.
 
 CHAP. XII.] AND CONSTRUCTION. G4l 
 
 those things, the precise point of the will not being dis- 
 covered 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 legis- 
 lature or the contracting parties, as a fixed point. At 
 that point precisely should we stop, if it be clearly 
 known ; if uncertain, we should at least endeavor to ap- 
 proach it. In things favorable, it is better to pass be- 
 yond that point than not to reach it; in things odious, it 
 is better not to reach it than to pass beyond it. "(a) 
 
 § 497. He then proceeds to a specification of things 
 which are deemed odious, and hence to receive a strict 
 construction. We shall now proceed to their enumera- 
 tion. 1st. Every thing that contains a penalty. The 
 reason for this is, " with respect to the law, it is univer- 
 sally agreed, that, in case of doubt, the judge ought to 
 incline to the merciful side, and that it is indisputably 
 better to suffer a guilty person to escape than to punish 
 one who is innocent. 2d. Whatever tends to render a 
 deed void or ineffectual, either in whole or in part, and 
 whatever produces any change in things already agreed 
 upon. This rule has a more direct application to deeds 
 than to statutes, although it may well be applied to sta- 
 tute, which produce by a particular construction such an 
 effect. 3d. Whatever tends to change the present state 
 of things. He however concedes that there are certain 
 things which are considered in a double aspect, either as 
 
 (a) Vattel, b. 2, p. 264, ch. 17, sec. 300. 
 
 81
 
 642 OF INTERPRETATION [cHAP. XII. 
 
 favorable or as odious, depending upon the particular 
 view in which they are to be considered. He admits 
 that although penalties are generally odious, yet, that 
 they may be viewed in a favorable light when they are 
 particularly necessary for the safety of society. He 
 says: "When there is question of interpreting things of 
 this nature, we ought to consider whether what is favor- 
 able in them greatly exceeds what appears odious ; whe- 
 ther the advantage that arises from their being extended 
 to the utmost latitude of which the terms are suscepti- 
 ble, will materially outweigh the severe and odious cir- 
 cumstances 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 con- 
 ventions is reckoned as nothing, when it procures the 
 inestimable blessings of peace. In the same manner, 
 penal laws may be interpreted in their most extensive 
 meaning on critical occasions when such an instance of 
 severity becomes necessary to the safety of the state. 
 Cicero caused the accomplices of Cataline to be execu- 
 ted by virtue of a decree of the senate, the safety of the 
 republic rendering it improper to wait till they should 
 be condemned by the people. But where there is not 
 so great a disproportion in the case, and where things 
 are in other respects equal, favor inclines to that side of 
 the question which presents nothing odious ; that is to 
 say, we ought to abstain from things of an odious nature, 
 unless the attendant advantage so far exceed the odious 
 part as in a manner to conceal it from view. If there 
 be any appearance, however small, of an equilibrium 
 between the odious and the favorable in one of those 
 things of a mixed nature, it is ranked in the class of 
 odious things, by a natural consequence drawn from the 
 principle on which we have founded the distinction be- 
 tween things of a favorable and things of an odious na-
 
 CHAP. XII.] AND CONSTRUCTION. ')!?» 
 
 ture,(«) because, in case of doubt, we sliould in prefer- 
 ence pursue that line of conduct by which we are least 
 exposed to deviate from tlie principles of equity. 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 lan- 
 guage ; 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 conduct with all mankind where- 
 ever a perfect right is not exactly determined and known 
 in its precise extent. When the legislature or the con- 
 tracting 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. 
 Now, when there is question of favorable things, the 
 more extensive signification of the terms accords better 
 with equity than their more confined signification. 2. 
 In questions relating to favorable things, all terms of art 
 are to be interpreted 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 understand that art. 3. But we 
 ought not, from the single reason that a thing is favora- 
 ble, to take the terms in an improper signification : this 
 is not allowable except when necessary, in order to avoid 
 absurdity, injustice, or the nullity of the instrument, as 
 is practised on every subject :(&) for we ought to take 
 the terms of a deed in their proper sense, conformably 
 to custom, unless we have very strong reasons for devi- 
 ating from it.(c) 4. Though a thing appears favorable 
 when viewed in one particular light, yet where the pro- 
 per meaning of the terms would, if taken in its utmost 
 
 (a) Vattel, sec. 300. (b) Ibid. sec. 282, 283. (c) Ibid. sec. 271.
 
 644 OF INTERPRETATION [CHAP. XII. 
 
 latitude, lead to absurdity or injustice, their signification 
 must be restricted according to the rules given above.(a) 
 For here, in this particular case, the thing becomes of a 
 mixed nature, and even such as ouidit to be ranked in 
 the class of odious things. 5. For tiie same reason, al- 
 though neither absurdity nor injustice results from the 
 proper meaning of the terms ; if, nevertheless, manifest 
 equity or a great common advantage requires their re- 
 striction, 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. As to the rest, 
 it is to be carefully remembered that all these rules re- 
 late only to doubtful cases, since we are not allowed to 
 go in quest of interpretations for what is already clear 
 and determinate. (/>) 
 
 § 498. " 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 con- 
 formable to equity, when the will of the legislature or of 
 the contracting parties is not exactly determined and pre- 
 cisely 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 mean- 
 ing, in order to avert the oppressive consequences of the 
 proper and literal sense, or any thing of an odious na- 
 ture, which it would involve : for we are to favor equity, 
 and to do away every thing odious, as far as that can be 
 accomplished without 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. In point of penalties, in 
 
 (a) Vattel, sec. 293, 294. (b) Ibid. sec. 263.
 
 CHAP. XII.] AND CONSTRUCTION. 645 
 
 particular when they arc really odious, we ought not 
 only to restrict the terms of the law, or of the contract, 
 to their most limited signification, and even adopt a figu- 
 rative meaning, according as the case may require or au- 
 thorize it, but also to admit of reasonable excuses; 
 which is a kind of restrictive interpretation, tending to 
 exempt the'party from the penalty. "(a) 
 
 § 499. Grotius has given us three tilings from which to 
 trace out the design, where words are obscure or ambigu- 
 ous, viz. the subject matter, the effects and the circum- 
 stances. As to the first, that the words are to be under- 
 stood according to the subject matter. Puffendorf gives 
 us several illustrations of the rule : A man promises you 
 to defend you in the possession of the goods he sold you ; 
 his promise is not supposed to extend to extra judicial 
 violence. A truce made for thirty days must be under- 
 stood natural days, consisting of twenty-four hours, and 
 not of artificial days, or the space of the sun above the ho- 
 rizon. Again, the word " arms" denotes sometimes the 
 weapons of war, and sometimes the warriors themselves, 
 according as the subject matter of the discourse directs. 
 For if it be an article that neither party shall use arms, 
 against a third, it is plain soldiers or an army is meant 
 by it ; but if upon a surrendering of a garrison it be stip- 
 ulated that they deliver up their arms, not the soldiers 
 but the weapons are supposed by it. In regard to the 
 second, he says, " the effect and the consequences do 
 often point out the genuine meaning of the words; for 
 where words, if they be taken literally, are like to bear 
 none, or, at least, a very absurd signification, to avoid 
 such an inconvenience, we must a little deviate from the 
 received sense of them. He gives us the following as 
 an instance where this rule should be applied. At Bo- 
 logna, it was enacted, that whosoever drew blood in the 
 
 (a) Vattel, b. 2, pp. 266, 278, ch. 17, sec. 306.
 
 64G OF INTERPRETATION [CHAP. XII. 
 
 street should be severely punished. Upon which law a 
 barber was indicted for opening a vein in the street ; and 
 it had like to have gone hard with him, because it was 
 added in the statute, that the words should be taken 
 precisely without any interpretation. In regard to the 
 third, he says : — It gives great light to the interpretation 
 of obscure passages to compare them with others that 
 have some affinity with them ; as to consider what the 
 same author says in another place, where he handles the 
 same matter, or to compare them with what goes before 
 and follows in the context. For in a doubtful point the 
 author must be supposed to be consonant to himself, and 
 therefore if in one place he expresses his mind clearly, 
 we ought to presume that he is still of the same mind in 
 another place, unless it expressly appears that he has 
 changed it.(a) 
 
 § 500. Having thus far confined our observations to 
 ethical and civil law writers, and having reviewed the 
 rules which have been adopted and applied by them, 
 we come now to consider this subject under the com- 
 mon law. As we proceed, we shall discover that most 
 of the rules we have considered have in some form or 
 other, been adopted into our own system of jurispru- 
 dence. 
 
 § 501. It will aid us, the better to understanding this 
 subject, to allude to some extent in this connection, to 
 the rules of interpretation which obtain in the construc- 
 tion of deeds and wills, annoting as we proceed the dis- 
 tinction to be observed in those rules, as applicable to 
 deeds and testaments, when applied to the question of 
 statutory construction. 1st. The law will judge of a 
 deed, or other instrument consisting of divers parts or 
 clauses, by looking at the whole, and will give to each 
 
 (a) Puflendorf, b. 5, c. 12.
 
 CHAP. XII.] . AM) CONSTRCCTION. G IT 
 
 part its proper office, so as to ascertain and carry out 
 the intention of the parties. (a) This general rule lies 
 at the foundation of the doctrine, that a statute is its 
 own best expositor, and in construing it, the whole act 
 and all its parts are to be considered, as well as all other 
 statutes, in pari materia, for the purpose of ascertaining 
 and carrying into effect the intention of the legislature. 
 § 502. The rule stated in the preceding section in- 
 cludes another, to wit : that the sense and meaning of 
 the parties in any particular instrument, should be col- 
 lected ex antccedentibus et consequentibus ; that is to say, 
 every part of it should be brought into action, in order 
 to collect from the whole one uniform and consistent 
 sense, if that may be done ;(&) or, in other words, the 
 construction must be made upon the entire instrument, 
 and not merely upon disjointed parts of it ;(c) the whole 
 context must be considered, in endeavoring to collect 
 the intention of the parties, although the immediate 
 object of the inquiry be the meaning of an isolated 
 clause. (d) This rule applies in all its force in the con- 
 struction of statutes, when seeking for the intention of 
 the legislature. The following instances may be given 
 as an illustration of this rule : " Thus, in the case of a 
 bond with a condition, the latter may be read, and taken 
 into consideration, in order to correct and explain the 
 obligatory part of the instrument.^' ) On the same prin- 
 ciple, the recital in a deed or agreement may be looked 
 
 (a) 2 Inst. 317. 
 
 (b) Per Ld. Ellenborough in Barton v. Fitzgerald, 15 East R. 541. Shep. 
 Touch. 87. 
 
 (c) 2 Black. Com. 379 ; Lord North v. Bishop of Ely, cited in 1 Bulstr. 
 101 ; Meyrick v. Meyrick, 2 Cr. & J. 230. 
 
 (d) Coles v. Hulme, 8 B. & C. 568 ; Hobart, 275 ; Gale v. Reed, 8 East 
 R. 79 ; Chitty on Contracts, 3d edit. 84. 
 
 (e) Coles v. Hulme, 8 B. & C. 568, (E. C. L. R. vol. 15 ;) and cases cited, 
 Id. 574, n. (a).
 
 648 OF INTERPRETATION [CHAP. XII. 
 
 at, in order to ascertain the meaning of the parties, and 
 is often highly important for that purpose ;(«) and the 
 general words of a subsequent distinct clause or stipula- 
 tion may often be explained by the matter recited. (6) 
 So, covenants are to be construed according to the ob- 
 vious intention of the parties, as collected from the whole 
 context of the instrument containing them, and according 
 to the reasonable sense of the words ; and, in conformity 
 with this rule, a covenant in large and general terms has 
 frequently been narrowed and restrained, (c) where there 
 has appeared something to connect it with a restrictive 
 covenant, or where there are words in the covenant it- 
 self amounting to a qualification ;(<:/) and it has been ob- 
 served, that covenants are to be construed as independent 
 or restrictive of each other, according to the apparent- 
 intention of the parties, upon an attentive consideration 
 of the whole deed : every particular case, therefore, must 
 depend upon the precise words used in the instrument 
 before the court, and the distinctions will be found to 
 be very nice and difficult.(e)"(/) 
 
 § 503. From the rule considered in the preceding sec- 
 
 (a) Shep. Touch. 76 ; The Marquis of Cholmondely v. Lord Clinton, 2 B. 
 & Aid. 625 ; S. C. 4 Bligh, 1 ; where it was held, (Bayley, J., diss.) that it 
 was not competent to go into the intention of the settlor, apparent from the 
 recital of a conveyance to uses, in order to explain the words of a particular 
 limitation ; such words being of plain and well-known import. 
 
 (b) Payler v. Homersham, 4 M. & S. 423 ; recognized, Simons v. Johnson, 
 3 B. & Ad. 180, (E. C. L. R. vol. 23 ;) Solly v. Faroes, 2 B. & B. 38, (Id. 
 6 ;) Charleton v. Spencer, 3 Q. B. 693, (Id. 43 ;) Sampson v. Easlerby, 9 
 B. & C. 505, (Id. 17,) affirmed in error, 1 Cr. & J. 105. 
 
 (c) Per Ld. Ellenborough, C. J., Iggulden v. May, 7 East, 241 ; Plowd. 
 329 ; Cage v. Paxton, 1 Leon. 116 ; Broughton v. Comvay, Moor, 58 ; Gale 
 v. Reed, 8 East, 89 ; Sicklemore v. Thistleton, 6 M. & S. 9 ; Hesse v. Ste- 
 venson, 3 B. & P. 365, (E. C. L. R. vol. 7.) See Doe v. Godwin, 4 M. & 
 S. 265. 
 
 (d) Judgment in Smith v. Compton, 3 B. & Ad. 200, (E. C. L. R. vol. 30.) 
 
 (e) 1 Wms. Saund., 5th ed., 60, n. (i). 
 (/) Broom's Legal Maxims, pp. 219, 250.
 
 CHAP. XII.] AND CONSTRUCTION. 649 
 
 tioii has been deduced the rule, that " in construing a 
 statute, the intention of the lawgiver, and the mean- 
 ing of the law are to be ascertained by viewing the 
 whole and every part of the act. If any section be in- 
 tricate, obscure, or doubtful, the proper mode of discov- 
 ering its true meaning is by comparing it with the other 
 sections, and finding out the sense of one clause by the 
 words or obvious intent of another.(a) This, as Sir E. 
 Coke observes, is the most natural and genuine method 
 of expounding a statute ;(/>) and it is a true principle, 
 that verba posteriora propter ccrtitudincm addita ad pri- 
 ora qua? certitudine indigent sunt rcfercnda{e) — reference 
 should be made to a subsequent section, in order to ex- 
 plain a previous clause of which the meaning is doubtful. 
 S It is, in my opinion,' observes Mr. Justice Coleridge, in 
 a recent case,(d) ' so important for the court, in constru- 
 ing modern statutes, to act upon the principle of giving 
 full effect to their language, and of declining to mould 
 that language, in order to meet either an alleged incon- 
 venience, or an alleged equity, upon doubtful evidence 
 of intention, that nothing will induce me to withdraw a 
 case from the operation of a section which is within its 
 words, but clear and unambiguous evidence that so to 
 do is to fulfil the general intent of the statute, and, also, 
 that to adhere to the literal interpretation is to decide 
 inconsistently with other and overruling provisions of 
 the same statute. When the evidence amounts to this, 
 the court may properly act upon it ; for the object of all 
 rules of construction being to ascertain the meaning of 
 
 (a) Stowel v. Lord Zouch, Plovvd. 365 ; Doe v. Bywater v. Brandling, 7 
 
 B. & C. 643, (E. C. L. R. vol. 42.) 
 
 (b) Co. Litt. 381, a. 
 
 (c) Wing. Max., p. 167; 8 Rep. 236. See 4 Leon. R. 248. 
 
 (d) Rex v. The Poor Law Commissioners, (St. Pancras,) 6 A. & E. 7, (E. 
 
 C. L. R. vol. 33.) 
 
 82
 
 650 OF INTERPRETATION [CHAP. Xli. 
 
 the language used, and it being unreasonable to impute 
 to the legislature inconsistent intents upon the same 
 general subject-matter, what it has clearly said in one 
 part must be the best evidence of what it has intended 
 to say in the other ; and if the clear language be in accor- 
 dance with the plain policy and purview of the whole 
 statute, there is the strongest reason for believing that 
 the interpretation of a particular part inconsistently with 
 that is a wrong interpretation. The court must apply, 
 in such a case, the same rules which it would use in 
 construing the limitations of a deed ; it must look to the 
 whole context, and endeavor to give effect to all the pro- 
 visions enlarging or restraining, if need be for that pur- 
 pose, the literal interpretation of any particular part.' "(a) 
 § 504. It is another rule in the interpretation of writ- 
 ten instruments, that the words shall be taken the most 
 strongly against the party employing them. (6) Statutes, 
 however, are not in general within the reason of this 
 rule, because they are not the words of parties, but of 
 the legislature ; nor does this rule apply to wills. (c) 
 Where, however, a statute is passed for the benefit of a 
 canal, railway, or other company, it has been observed, 
 thai this, like many other cases, is a bargain between a 
 company of adventurers and the public, the terms of 
 which are expressed and set forth in the act, and the 
 rule of construction in all such cases is now fully estab- 
 lished to be, that any ambiguity in the laws of the con- 
 tract, would operate against the adventurers, and in favor 
 of the public, the former being entitled to claim nothing 
 which is not clearly given by the act.(d) 
 
 (a) Broom's Legal Maxims, pp. 253, 254. 
 
 (b) Co. Litt. 36, a. 
 
 (c) 2 Dwarris on Statutes, 688 ; Lord Bacon's Works, vol. iv. p. 30. 
 
 (d) Per Lord Tenterden, C. J., Stourbridge Canal Co. v. Wheeley, 2 B. 
 & Ad. 793 ; Priestley v. Foulds, 2 Scott N. R. 228, per Coltman, J., ibid.
 
 CHAP. XII.] AND CONSTRUCTION. 651 
 
 § 505. Another rule in the interpretation of written 
 instruments, is, that in the absence of ambiguity, no ex- 
 position shall be made which is opposed to the express 
 words of the instrument, or, in other words, it is not al- 
 lowed to interpret what has no need of interpretation ;(«) 
 nor will the law make an exposition against the express 
 words and intent of the parties. (6) The rule under con- 
 sideration applies equally to the interpretation of an act 
 of parliament, the general rule being that a verbis legis 
 7ion est recedcndum.(c) A court of law will not make 
 any interpretation contrary to the express letter of a sta- 
 tute ; for nothing can so well explain the meaning of the 
 makers of the act as their own direct words, since index 
 animi sermo, and maledicta expositio quce corrumpit:cx- 
 tum,(d) it would be dangerous to give scope for making 
 a construction in any case against the express words, 
 where the meaning of the makers is not opposed to them, 
 and when no inconvenience will follow from a literal in- 
 terpretation. (e)(/) 
 
 § 506. Falsa demonstrationnon nocet.Qz) Mere false 
 description does not make an instrument inoperative. 
 Falsa demonstratio may be defined to be an erroneous 
 description of a person or thing in a written instru- 
 
 226 ; Oildart v. Gladstone, 11 East, 685 ; Barrett v. Stockton and Darling- 
 ton Railway Co., 2 Scott N. R. 370; S. C. 3 Scott N. R. 803, per Maul, 
 J. ; Portsmouth Floating Bridge Co. v. Nance, 6 ib. 831 ; Blakemore v. 
 Glamorganshire Canal Co., 1 My. & K. 165 ; Thicknesse v. Lancaster Canal 
 Co., 4 M. & W. 482. 
 
 (a) Chitty on Contracts, 3 ed. 99 ; per Kelynge, C. J., Lanyon v. Cam?, 
 2 Saund. R. 167. 
 
 (6) Co. Litt. 147, a, 7 Rep. 103. 
 
 (c) 5 Rep. 119; cited, Wing. Max. p. 25. 
 
 (d) 4 Rep. 35 ; 2 Rep. 24 ; 11 Rep. 34 ; Wing. Max. p. 26. 
 
 (e) Eldrich's case, 5 Rep. Ill); cited, Argument, Gaunt v. Taylor, 3 Scott, 
 N. R.709. 
 
 (/) Broom's Legal Maxims, p. 268. 
 (g) 6 T. R. 676.
 
 652 OF INTERPRETATION [CHAP. XII. 
 
 ment ;(«) and the above rule respecting it may be thus 
 stated and qualified : as soon as there is an adequate and 
 sufficient definition, with convenient certainty, of what 
 is intended to pass by the particular instrument, any sub- 
 sequent erroneous addition will not vitiate it. (6) " I have 
 always understood," observes Lord Kenyon, speaking 
 with reference to a will,(c) " that such falsa demonstra- 
 te should be superadded to that which was sufficiently 
 certain before, there must constat de persona ; and if to 
 that an inapt description be added, though false, it will 
 not avoid the devise ;" and this observation is applicable 
 not only to wills but to other instruments \{d) so that the 
 characteristic of cases strictly within the rule is this, that 
 the description, so far as it is false, applies to no subject, 
 and, so far as it is true, it applies to one subject only; 
 and the court, in these cases, rejects no words but those 
 which are shown to have no application to any sub- 
 ject.^) The rule, therefore, may be thus stated : Prce- 
 sentia corporis tollit erroreni nominis, et Veritas nominis tol- 
 lit errorem demonstrationist/ )(g) This rule, in the case 
 of The Watervliet Turnpike Co. v. M'Kean 9 (Ji) was held 
 to apply to statutes as well as deeds and wills. In the 
 case last cited, where a statute referred to another by 
 
 (a) See Bell, Diet, and Dig. of Scotch Law, 420. 
 
 (b) Per Park, B. Llewellyn v. Earl of Jersey, 11 M. & W. 189 ; Com. 
 Dig. "Fait,"(E. 4.) 
 
 (c)^Thomas v. Thomas, 6 T. R. 676. See also Mosleyv. Massey, 8 East, 
 149 ; per Parke, J., Doe d. Smith v. Galloway, 5 B. & Ad. 51, (E. C. L. R. 
 vol. 27 ; per Littledale, J., Doe d. Ashforth v. Bower, 3 B. & Ad. 459, (Id. 
 23 ;) Gynes v. Kemsley, 1 Freem. 293 ; Hobart, 32, 171 ; Greene v. Arm- 
 steed, Id. 65; Vin. Abr. "Devise," (T. b.) pi. 4. 
 
 (d) London Grand Junction Railway Company v. Freeman, 2 Scott, N. R. 
 705, 748. 
 
 (e) Wigram, Ex. Ev. 2d ed. 81. 
 
 </) Bac. Max. reg. 24 ; 6 Rep. 66 ; 1 Ld. Raym. 303 ; 6 T. R. 675 ; Doe 
 v. Huthwaite, 3 B. & Aid. 640, (Id. 5.) 
 (g) Broom's Legal Maxims, p. 269. 
 (h) 6 Hill, 616.
 
 CHAP. XII.] AND CONSTRUCTION* 653 
 
 several descriptive particulars, some of which were ma- 
 nifestly false and others true, it was held the former 
 might be rejected as surplusage, provided the remainder 
 was suffered to show clearly what was meant. That a 
 statute was not to be nullified, because some of its pro- 
 visions were absurd, repugnant or untrue. It should be 
 so construed as to make it effective rather than to de- 
 stroy it.(rt) If enough remained, after rejecting the parts 
 which were inappropriate, to show what was intended 
 by the legislature, that would suffice. In The Chancellor 
 of Oxfords casc,(b) it was resolved, that in an act of par- 
 liament, the misnomer of a corporation, when the ex- 
 press restriction appeared, should not avoid the act no 
 more than a will for parliament testament, ct arbitrament 
 tum } were to be taken according to the minds and inten- 
 tions of those who are parties to them. And therefore, 
 when the description of a corporation in an act of par- 
 liament, or in a will, is such that the true corporation 
 intended was apparent, and it was impossible to be in- 
 tended of any other incorporation, although the right 
 name was not expressly followed, yet the act of parlia- 
 ment should take effect. The same principle has been 
 adopted in Massachusetts in a case where a statute re- 
 ferred to a vote of a town, by a wrong date, it was held 
 that the date might be rejected as surplusage, the refer- 
 ence being clear without it ; and on this principle effect 
 was given to the statute, (c) In this connection, it should 
 be observed, that in construing deeds, it is a rule that 
 non accipi debent verba in demonstrationem falsam qua 
 compctunl in Umitationem veram;(d) if it be doubtful 
 
 (a) Bullon v, Ward, 2 Rolle's Rep. 127 ; Moore v. Hussey, Hob. Rep. 
 93,97. 
 
 (b) 10 Rep. 57. 
 
 (c) Shrewsbury v. Boylston, 1 Pick. 105. 
 (J) Bac. Max. reg. 13.
 
 G54 OF INTERPRETATION [CHAP. XII. 
 
 upon the words whether they impart a false reference or 
 description, or whether they be words of restraint, limit- 
 ing the generality of the former name, the law will not 
 intend error or falsehood. This rule has been illustrated 
 thus : " I have some lands wherein all the demonstrations 
 are true, and some wherein part of them are true and 
 part false ; then the will shall be interpreted as words 
 of true limitation, to pass only those lands wherein all 
 those circumstances are true ;(a) and if a man pass lands, 
 describing them by particular references, all of which 
 are true, the court cannot reject any one of t\\em."(b) 
 
 § 507. The next general maxim in the interpretation 
 of deeds is, that general words shall be aptly restrained, 
 according to the subject-matter or person to which they 
 refer. In construing the words, it is proper to consider, 
 first, what is their meaning in the largest sense which, 
 according to the common usage of language, belongs to 
 them;(c) and if it should appear that that sense is larger 
 than the sense in which they must be understood in the 
 deed or act in question ; then, secondly, what is the ob- 
 ject for which they are used. They ought not to be ex- 
 tended beyond their ordinary sense, in order to compre- 
 hend a case within their object, for that would be to 
 give effect to an intention not expressed ; nor can they 
 be so restricted as to exclude a case both within their 
 object and within their ordinary sense, without violating 
 a fundamental rule which requires that effect should be 
 given to such intention of the parties as they have used 
 lit words to express.(d) 
 
 § 508. The express mention of one thing implies the 
 
 (a) Doe d. Ashforlh v. Bowen, 3 B. & Ad. 459, 460 ; Doe d. Chichester 
 v. Oxenden, 3 Taunt. 147. 
 
 (b) Per Le Blanc, J. Doe v. Lyford, 4 M. & S. 557. 
 
 (c) 3 Inst. 76. 
 
 {d) Per Made, J. Borradaile v. Hunter, 5 Scott, N. R. 431, 432 ; Moseley 
 t. Motteux, 10 M. & W. 533 ; Broom's Legal Max. 276.
 
 CHAP. XII. J AM) CONSTRUCTION. 655 
 
 exclusion of another ; or, in other words, "expressum 
 facit cessare taciturn." (a) This maxim lias only refer- 
 ence to inferences of fact, to be drawn from written in- 
 struments or parol declarations : it only means, that if you 
 expressly name some, out of certain requisites, the infer- 
 ence is stronger, that those omitted arc intended to be 
 excluded, than if none at all had been mentioned. (6) 
 This maxim, as applied to the construction of statutes, 
 is thus expressed by Mr. Dwarris : " Sometimes the ma- 
 kers of a statute put the strongest cases, and, by con- 
 struction, the lesser shall be included : here the cases are 
 put by way of example, and not as excluding other 
 things of a similar nature. Where, moreover, the words 
 are general, and a statute is only declaratory of the com- 
 mon law, it shall extend to others besides the persons 
 or things named. Sometimes, on the contrary, the ex- 
 pressions used are restrictive, and intended to exclude 
 all things which are enumerated. Thus, where certain 
 specific things are taxed, or subjected to any charge, it 
 seems probable that it was intended to exclude every 
 thing else even of a similar nature, and, ' a fortiori,' all 
 things different in genus and description from those 
 which are enumerated. So, too, where a general act 
 confers immunities which expressly exempts certain 
 persons from the effect and operation of its provisions, it 
 excludes all exemptions to which the subject might have 
 been before entitled at common law ; for the introduction 
 of the exemption is necessarily exclusive of all other 
 independent extrinsic exceptions. "(c) 
 
 § 509. Ad proximum antecedent fiat rclatio nisi impc- 
 
 (a) Co. Litt. 210, a, 183, b. (b) Broom's Legal Max. 278. 
 
 (c) Gregory v. Des Agnes, 3 B. N. C. 85, 87 ; Atkinson v. Fell, 5 M. & S. 
 240; Cates v. Knight, 3 T. R. 442, 444 ; Rex North v. Nibley, 5 T. R. 21 ; 
 see argument Rex v. Woodland, 2 East, 160, and in Rex v. Bell, 7 T. Ii. 
 600 ; Rex v. Cunningham, 5 East, 178 ; 2 Dwarris Stat. 712, 713.
 
 656 OK INTERPRETATION [CHAP. XII. 
 
 dlatur sentential a) Relative words refer to the next 
 antecedent, unless, by such a construction, the meaning 
 of the sentence would be impaired. Relative words 
 generally are referred to the next antecedent, where the 
 intent upon the whole deed does not appear to the con- 
 trary ;(/>) but, although this general proposition is true in 
 strict grammatical construction, yet there are numerous 
 examples in the best writers to show that the context 
 may often require a deviation from this rule, and that the 
 relative may be connected with nouns which go before 
 the last antecedent, and either to take from it or give to 
 it some qualification. (c) For instance, an order of ma- 
 gistrates was directed to the parish of W., in the county 
 of R., and also to the parish of M., in the county of L., 
 and the words " county of R." were then written in the 
 margin, and the magistrates were, in a subsequent part 
 of the order, described as justices of the peace for the 
 county aforesaid : it was held, that it thereby sufficiently 
 appeared that they were justices for the county of 
 R.(<i)(e) IVoscilur a sociis.(f) The meaning of a word 
 may be known by reference to the neighboring words. (g) 
 It is a rule laid down by Lord Bacon, that copulatio ver- 
 
 (a) Noy's Max. 9th ed. p. 4. ' 
 
 (b) Com. Dig. "Parols," (A. 14, 15); Jenk. Cent. 180; Dyer, 46, b ; 
 Wing. Max. p. 19. 
 
 (c) Judgment, Staniland v. Hopkins, 9 M. & M. 192 ; in which case a dif- 
 ficulty arose as to the proper mode of construing a statute. 
 
 (d) Rex v. St. Mary's, Leicester, 1 B. & Aid. 327 ; and the remarks, per 
 Curiam, on Rex v. Moor Critchell, 2 East, 66 ; Baring v. Christie, 5 East, 
 398 ; Rex v. Chilverscoton, 8 T. R. 178. 
 
 (e) Broom's Legal Maxims, p. 292. 
 (/) 3 T. R. 87. 
 
 (g) This, it has been observed, in reference to King v. Melting, 1 Vent. 
 225, was a rule adopted by Lord Hale, and was no pedantic or inconsiderate 
 expression when falling from him, but was intended to convey, in short terms, 
 the grounds upon which he formed his judgments. See 3 T. R. 87 ; 1 B. & 
 C. 644, id. 8 ; Argument. 13 East, 531.
 
 CHAP. XII.] AAD CONSTRUCTION. 657 
 
 borum indicat acccplationem in eodem scnsu(a) — the cou- 
 pling of words together shows that they are to be un- 
 derstood in the same sense. So, where the meaning of 
 any particular word is doubtful or obscure, or where the 
 particular expression when taken singly is inoperative, 
 the intention of the party who has made use of it may 
 frequently be ascertained and carried into effect by look- 
 ing at the adjoining words, or at expressions occurring in 
 other parts of the same instrument ; for quce nun valeant 
 singula juncta juvant(b) — words which are ineffective 
 when taking singly operate when taken conjointly ; one 
 provision of a deed, or other instrument, must be con- 
 strued by the bearing it will have upon another. (c) The 
 above rules are in truth comprised in that principle 
 which universally obtains, that courts of law and equity 
 will, in construing a written instrument, endeavor to dis- 
 cover and give effect to the intent of the party. They 
 are, moreover, applicable, like other rules of grammar, 
 whenever a construction has to be put upon a will, sta- 
 tute, or agreement ; and although difficulty very fre- 
 quently arises in applying them, yet this results from the 
 particular words used, and from the particular facts ex- 
 isting in each individual case, so that one decision, as to 
 the inference of a person's meaning and intention, can be 
 considered as an express authority to guide a subsequent 
 decision only where the words and circumstances are 
 similar, (d) The application of the principle nosci- 
 tur a sociis is very general in commercial instruments, 
 such as policies of insurance, &c.(e) Mr. Justice Story, 
 
 (a) Bac. Works, vol. 4, p. 2G. (b) 2 Bulstr. 132. 
 
 (c) Argument, Galley v. Barrirtglon, 2 Ring. 391, id. 9 ; per Lcl. Kenyon, 
 C. J. 4 T. R. 227. 
 
 (d) Broom's Legal Maxims, p. 295. 
 
 (e) Cull en v. Butler, 5 M. & S. 465 ; Philips v. Barber, 5 B. & Aid. 161 ; 
 Be Vaux v. /' Anson, 5 B. & C. 519 ; Borradaile v. Hunter, 5 Scott, N. 
 R. 416 ; Roe v. Read, 8 T. R. 118 ; 1 Jarman on Wills, 645. 
 
 83
 
 658 OF INTERPRETATION [CHAP. XTI. 
 
 in one case, held that noscitur a sociis was a well founded 
 maxim applicable to revenue as well as penal laws. (a) 
 
 § 510. Qua-, kceret in litem hceret in corlicc.(Jj) He 
 who considers merely the letter of an instrument goes 
 but skin-deep into its meaning. The law respects the 
 effect and substance of the matter, and not every nicety 
 of form or circumstance. (c) The reason, therefore, 
 and spirit of cases make law, and not the letter of 
 particular precedents. ((/) Hence, it is a rule connect- 
 ed with the interpretation of deeds and written in- 
 struments in general, that, where the intention is clear, 
 too minute a stress should not be laid on the strict and 
 precise signification of words, (e) For instance, by the 
 grant of a remainder, a reversion will pass, and e conver- 
 so ;(f) and, if a lessee covenants to leave all the timber 
 which was growing on the land when he took it, the 
 covenant will be broken, if, at the end of the term, he 
 cuts it down, but leaves it there ; for this would be de- 
 feating the intent of the covenant, although a literal per- 
 formance of it(g) In accordance with this principle, it 
 is a further rule, that mala grammatica non vitiat chart- 
 am{li) — the grammatical construction is not always, in 
 judgment of law, to be followed ; and neither false En- 
 glish nor bad Latin will make void a deed, when the 
 meaning of the party is apparent.(i) Thus, the word 
 " and" has, (as hereafter stated,) in some cases, been read 
 
 (a) Adams v. Bancroft, 3 Sumner R. 386. 
 
 (b) Co. Litt. 283, b. 
 
 (c) Ibid, a; Wing. Max. p. 19. See per Coltman, J. 2 Scott, N. R. 300. 
 
 (d) Per Lord Mansfield, C. J. 3 Burr. 1364. 
 
 (e) 2 Bla. Com. 379. 
 
 (/) Hobart, 27 ; 2 Bla. Com. 379. 
 
 (g) Woodf. L. and T. 5th ed. 439, citing 1 Esp. N. P. 271. 
 
 (h) 9 Rep. 48 ; 6 Rep. 40 ; Wing. Max. p. 18 ; Vin. Abr. " Grammar," 
 (A.) ; Lofft, 441. 
 
 (i) 2 Bla. Com. 379 ; Co. Litt. 223, b ; OsborrCs case, 10 Rep. 133 ; 2 
 Show. 334.
 
 CHAP. XII.] AXD CONSTRUCTION. G59 
 
 « or," when this change was rendered necessary by the 
 context.(fl) Where, however, a proviso in a lease was 
 altogether ungrammatical and insensible, the court did 
 not consider themselves bound to find out a meaning for 
 it. (6) In interpreting an act of parliament, also, it is 
 not, in general, a true line of construction to decide ac- 
 cording to the strict letter of the act ; but the courts will 
 rather consider what is its fair meaning,(c) and will ex- 
 pound it differently from the letter, in order to preserve 
 the intent.(*Q(c) 
 
 § 511. The construction of a statute, like the operation 
 of a devise, depends upon the apparent intention of the 
 makers, and is to be collected either from the particular 
 provisions or the general context. The rules by which 
 the sages of the law, according to Plowden,(/) have ever 
 been guided, in seeking for the intention of the legisla- 
 ture, are maxims of sound interpretation, which have 
 been accumulated by the experience, and ratified by the 
 approbation of ages. 
 
 § 512. " Contemporanea expositio est optima el fortissi- 
 mo, in lege.(g) — The best and surest mode of expounding 
 an instrument is by referring to the time when, and cir- 
 cumstances under which, it was made. — There is no 
 better way of construing ancient grants and deeds than 
 by usage ;(/i) and the uniform course of modern authori- 
 
 (a) Chapman v. Dalton, Plowd. 289 ; 1 Jarman on Wills, 443 et seq. 
 (6) Doe d. Wyndham v. Carew, 2 Q. B. 317, (E. C. L. R. vol. 42.) 
 
 (c) Per Lord Kenyon, C. J. 7 T. R. 196, (E. C. L. R. vol. 46; id. 43 ;) 
 Fowler v. Padget, id. 509; 11 Rep. 73; Litt. s. 67, with Sir E. Coke's 
 Commentary thereon, cited, 3 B. N. C. 525, (E. C. L. R. vol. 42 ;) Co. Litt, 
 381, b. See Vincent v. Slayma/cer, 12 East, 372. 
 
 (d) 3 Rep. 27. 
 
 (e) Broom's Legal Maxims, p. 299. 
 (/) Plow. Rep. 205. 
 
 («■) 2 Inst. 1 1 . 
 
 (/*) Per Lord Hardwicke, C, Attorney General v. Parker, 3 Atk. 576, and
 
 660 OF INTERPRETATION [CHAP. XII. 
 
 ties fully establishes the rule, that, however general the 
 words of an ancient grant may be, it is to be construed 
 by evidence of the manner in which the thing granted 
 has always been possessed and used ; for so the parties 
 thereto must be supposed to have intended. (a) Thus, 
 if it be doubtful, on the face of an instrument, whether 
 a present demise or future letting was meant, the inten- 
 tion of the parties may be elucidated by the conduct they 
 have pursued. (6) If the words of the instrument be 
 ambiguous, the court will call in aid the acts done under 
 it as a clue to the intention of the parties. (c) Upon the 
 same principle, also, depends the great authority which, 
 in construing a statute, is attributed to the construction 
 put upon it by judges who lived at the time when the 
 statute was made, or soon after, as being best able to de- 
 termine the intention of the legislature, not only by the 
 ordinary rules of construction, but especially from know- 
 ing the circumstances to which it had relation ;(c/) and it 
 has been resolved, that, for the true and sure interpreta- 
 tion of all statutes, be they penal or beneficial, restrictive 
 of or enlarging the common law, four points are to be 
 considered : 1st, what was the common law before the 
 making of the act ; 2ndly, what was the mischief and 
 defect for which the common law did not provide ; 3rdly, 
 what remedy the parliament hath resolved and appointed 
 to cure the disease of the commonwealth ; and, 4thly, 
 the true reason of the remedy ; — and then the office of 
 
 2 Inst. 2S2, cited, 4 T. R. 819. Per Lord Eldun, C, Attorney General v. 
 Forster, 10 Ves. jun. 338. 
 
 (a) Weld v. Hornby, 7 East, 199 ; Rex v. Osbourne, 4 East, 327. 
 
 (b) Chapman v. Bluck, 4 B. N. C. 187, 195, (E. C. L. R. vol. 33.) 
 
 (c) Per Tindal, C. J., Doe d. Pearson v. Ries, 8 Bing. 181, (E. C. L. R. 
 vol. 21.) 
 
 {d) 2 Phill. Ev., 9th ed., 347 ; The Bank of England v. Anderson, 3 B. N. 
 C. 666, (E. C. L. R. vol. 32.)
 
 CHAP. XII.] AND CONSTRUCTION. 6G1 
 
 the judges is always to make such construction as shall 
 suppress the mischief, and advance the remedy. («)"(/>) 
 
 § 513. The words of a statute are to be taken in their 
 ordinary and familiar signification and import, and re- 
 gard is to be had to their general and proper use, for the 
 jus et norma loquendl is governed by usage, and the 
 meaning of the words spoken or written ought to be al- 
 lowed to be as it has constantly been taken to be, loquen- 
 dum est et vulgus.(c) But, if the usage has been to con- 
 strue the words of a statute contrary to their obvious 
 meaning by the vulgar tongue, and the common accepta- 
 tion of the terms, such usage is not to be regarded, it 
 being (say the books,) rather an oppression of those 
 concerned, than a construction of a statute. ((/) And 
 though where the words of a statute are doubtful, gene- 
 ral usage may be called in to explain them, for optimus 
 legum est con&ueludo } (e) yet a usage that can cancel 
 an act of parliament, must be universal, and not the 
 usage of any particular place. (f) 
 
 § 514. In the interpretation of statutes, it is but sel- 
 dem, if ever, that we have to interpret any thing but 
 words ; hence the term interpretation means always the 
 interpretation of the words. In regard to statutes, as 
 well as all other instruments in writing, construction 
 must inevitably be resorted to, for such is the imperfec- 
 tion of human language, that men who use words, even 
 with the best intent, and utmost caution and skill, cannot 
 foresee all possible complex cases, and if they could, no 
 human forethought or intellectual sagacity, would be 
 able to provide for them; for as it has been justly said, 
 each complex case would require its own provision and 
 
 (a) HeydorCs case, 3 Rep. 7. (d) Vaughan, 169 ; Parker, 44. 
 
 (b) Broom's Legal Maxims, 300. (c) 2 Rep. 81. 
 
 (c) 4 Rep. 47. (/) Rex v. Hogg, 1 T. R. 728.
 
 662 OF INTERPRETATION [CHAP. XII. 
 
 rule; times and relations change, so that after a long 
 lapse of time, we must either give up the letter of the 
 law or its intent ; since both, owing to a change in cir- 
 cumstances, do not any longer agree. Statute law, being 
 the express written will of the legislature, rendered au- 
 thentic, every statute in some respects partakes of the 
 character of a deed ; hence, in their construction, such 
 an exposition should be made as is most agreeable to 
 the intention of the law makers. 
 
 § 515. The great object of the rules and maxims of 
 the interpretation of statutes is, in all cases, if possible, 
 to discover the true intention of the law ; for this pur- 
 pose, it is to ascertain what was the mind of the framcrs 
 of a particular statute, and when that can be indubitably 
 ascertained, the duty of the court is to give it effect, 
 whatever may be their own opinion of its wisdom, ex- 
 pediency or policy. As it is the duty of courts to exe- 
 cute all laws according to their true intent and meaning, 
 that intent, when collected from the whole and every 
 part of the statute taken together, must prevail, even 
 over the literal sense of the terms, and control the strict 
 letter of the law, where the letter would lead to possible 
 injustice, contradiction, and absurdity, (a) 
 
 § 516. In Tkc Commonwealth v. Kimball,(l>) Shaw, 
 Ch. J., says, "It is unquestionably a well settled rule of 
 construction, applicable as well to penal statutes as to 
 others, that when the words are not precise and clear, 
 such construction will be adopted as shall appear the 
 most reasonable, and best suited to accomplish the ob- 
 ject of the statute ; and where any particular construc- 
 tion would lead to an absurd consequence, it will be 
 presumed, that some exception was intended by the 
 legislature, to avoid such conclusion." 
 
 (a) 1 Kent's Com. 4G2 ; Dig. 1, 3, 7 ; Ibid. lib. 27, 1, 13, 2. 
 (6) 24 Pick. 370.
 
 CHAP. XII.] AM) CONSTRUCTION. 663 
 
 § 517. It was a rule of the civil law, as we have seen, 
 that whenever it happened that the sense of the law, 
 how clear soever it may appear in the words, would 
 lead to false consequences, and to decisions that would 
 be unjust, if the law were to be indifferently applied to 
 every thing contained within its expressions, this pal- 
 pable injustice which would follow from its literal sense 
 compelled an effort to discover some kind of interpreta- 
 tion, not what the law says, but what it means, and to 
 judge by its meaning how far it ought to be extended, 
 and what the bounds which ought to be set to its 
 sense, (a) 
 
 § 518. The reason for the above rule seems to be, 
 that when a particular construction of a statute, applied 
 to a case which it seems by its terms to include, there 
 follow from such a construction an absurd consequence, 
 respect for the legislature will induce the court from 
 thence to conclude that some other construction, which 
 will not produce such a consequence, ought to be 
 adopted. (b) Hence every construction which leads to 
 an absurdity, ought to be rejected. But the construc- 
 tion should be such as will avoid an absurdity. 
 
 § 519. It is said that this rule should be followed, 
 even in cases where there is neither obscurity, nor any 
 thing equivocal in the law itself, for the reason, that the 
 absurdity of the literal sense of the law does not proceed 
 merely from the obscurity or any other fault in the ex- 
 pression, but from the narrow limits of the human mind, 
 which cannot foresee all cases and circumstances, or in- 
 clude all the consequences of what is ordained. That 
 it is impossible for the legislature to enter into immen- 
 sity of detail. It can only make laws in a general man- 
 ner, and in applying their acts to particular cases, the 
 
 (a) Domat's Civil Law, b. i. tit. i. sec. 2, pi. 7. 
 
 (b) Uomat, p. 10.
 
 G64 OF INTERPRETATION [cHAP. XII. 
 
 construction ought to be conformable to the intention of 
 the legislature. It cannot be presumed that the legisla- 
 ture intended any thing absurd. When, therefore, the 
 words when taken in their obvious and proper sense, 
 lead to it, it is necessary to turn them from that sense, 
 just as far as is sufficient to avoid an absurdity, if 
 from the whole purview of the law, and giving effect 
 to all the words used in it, it may fairly be done.(«) 
 The application of this rule is attended with less diffi- 
 culty, when the words of the law are susceptible of two 
 different senses ; for then, the court will adopt that sense 
 which will not lead to an absurdity. 
 
 § 520. It is upon analogous principles, that although 
 the general rule is, that the natural import of the words 
 of any legislative act, according to the common use of 
 them, when applied to the subject-matter of the act, is 
 to be considered as expressing the intention of the legis- 
 lature, unless the intention so resulting from the ordinary 
 import of the words, be repugnant to sound acknow- 
 ledged principles of national policy. Yet, if that inten- 
 tion be repugnant to such principles, then the import of 
 the words ought to be enlarged, or restrained, so that it 
 may comport with those principles, unless the intention 
 of the legislature be clearly and manifestly repugnant to 
 them, (b) 
 
 § 521. In consequence of the application of these max- 
 ims, similar expressions in different statutes, and some- 
 times in the same statute, are liable to, and do receive 
 different constructions, so that the true intent of the 
 legislature may prevail. In the report of the judges, (c) 
 this rule was applied. The question submitted to the 
 judges for their opinion was, whether aliens were ratable 
 
 (a) Carthew, 134 ; United States v. Fisher, 2 Cranch, 400. 
 (/>) Report of Judges, 7 Mass. R. 523. 
 (c) 7 Mass. R. 523.
 
 CHAP. XII.] AND CONSTRUCTION. 665 
 
 polls, within the intent and meaning of the constitution 
 of Massachusetts ; and whether the towns, in ascertain- 
 ing the number of their ratable polls, in order to deter- 
 mine the number of representatives they were entitled 
 to send to the house of representatives, could constitu- 
 tionally include in that number, aliens resident in said 
 towns, and predicate a representation on such resident 
 aliens ; and whether such representation could constitu- 
 tionally be predicated on the number resulting from the 
 including in the number of polls, aliens resident in any 
 towns within the commonwealth, and taxed and paying 
 taxes therein. 
 
 § 522. It was by them held, that although by the con- 
 stitution, the elector of a senator must be an inhabitant 
 of the senatorial district in which he votes, and the elec- 
 tor of a representative must have resided one year in the 
 town, before he could there be a voter. Although an 
 alien might be an inhabitant of a district, because he 
 might there dwell or have his home, yet, that he could 
 not vote ; although he might be estimated among the 
 ratable polls. After citing the rules above laid down, 
 they say : " Now we assume, as an unquestionable prin- 
 ciple of sound national policy, that as the supreme power 
 rests wholly in the citizens, so the exercise of it, or of 
 any branch of it, ought not to be delegated to any but 
 citizens, and only to citizens. It is therefore to be pre- 
 sumed, that the people, in making the constitution, in- 
 tended that the supreme power of legislation should not 
 be delegated but to citizens ; and if the people intended 
 to impart a portion of their political rights to aliens, this 
 intention ought not to be collected from general words 
 which do not necessarily imply it, but from clear and 
 manifest expressions which are not to be misunderstood. 
 But the words, " inhabitants" or " residents" may com- 
 prehend aliens ; or they may be restrained to such in- 
 
 84
 
 666 OF INTERPRETATION [ciIAP. XII. 
 
 habitants or residents who are citizens, according to the 
 subject-matter to which they are applied. The latter 
 construction comports with the general design of the con- 
 stitution. There the words "people" and "citizens" are 
 synonymous. The people are declared to make the 
 constitution for themselves and their posterity; and the 
 representation in the general court is a representation of 
 the citizens. If aliens could vote in the election of rep- 
 resentatives, the representation would not be of citizens 
 only, but of others." But they also came to the conclu- 
 sion, that the several towns, in ascertaining their num- 
 ber of ratable polls, in order to determine the number of 
 representatives they were entitled to send, might consti- 
 tutionally include of their ratable polls, the polls of aliens 
 residing in their towns, who were by law ratable to pub- 
 lic taxes, and predicate a representation thereon. In 
 this conclusion, they restrained the general import of the 
 words " inhabitants" and " residejits" used in some parts 
 of the constitution, to inhabitants and residents who 
 were citizens, so that they might not unnecessarily fix 
 on the people an intention of imparting any of their 
 rights of sovereignty to aliens. And at the same time 
 they used the words, " ratable polls" according to their 
 common acceptation, on the ground, that there was no 
 principle of construction authorizing a deviation from it ; 
 so as to deny to the legislature the right of making the 
 estates and polls of aliens ratable; and that the taxes 
 assessed on the polls and estates of aliens had no effect 
 upon their political rights, but merely influenced the ap- 
 portionment among the towns. 
 
 § 523. A statute is to be so construed^ that it may 
 have a reasonable effect, agreeable to the intent of the 
 legislature. (a) In one case, (6) we find this instance of 
 
 (a) Gore v. Brazier, 3 Mass. R. 523, 540 ; Pease v. Whitney, 5 Mass. R. 
 380 ; Stanwood v. Pierce, 7 Mass. R. 458 ; Gibson v. Jenny, 15 Mass. R. 205. 
 
 (b) Pease v. Whitney, 5 Mass. R. 380.
 
 CHAP. XII.] AND CONSTRUCTION. 667 
 
 the application of this rule. A statute made landholders 
 taxable for all lands in the town, in his own occupation, 
 for the use of the school district in which he lived, but 
 that his lands in the occupation of his tenants should be 
 taxed for the use of the district in which the lands are 
 included. By the subsequent general tax act, the asses- 
 sors had a discretion vested in them, to tax the owner 
 for lands in the occupation of the tenant, or to tax the 
 tenant himself. It was contended, on the one hand, 
 that this discretion extended as well to county and town 
 taxes, as to state taxes. On the other hand, it was in- 
 sisted, that this provision in the general tax act, did not 
 extend so as to vest in the assessors this discretion, in 
 assessing school district taxes. The court held, that 
 although a subsequent statute would control the provi- 
 sions of former statutes which were repugnant to it, ac- 
 cording to its strict letter ; but that there are exceptions 
 to this rule, depending upon the construction of the last 
 statute, agreeable to the intent of the legislature. If, 
 therefore, the assessors, in making a school district tax, 
 might by availing themselves of this discretion, counter- 
 act the equitable principle of equalising the school dis- 
 trict assessments required in the first act, the general 
 words of the general tax act ought not to be extended 
 so as to produce that mischief, but should be constrained 
 by a reasonable construction, on the principle that the 
 legislature did not contemplate any alteration in that 
 statute. That by the first statute, a school district, 
 when defined, might vote to raise money for several pur- 
 poses, as for instance, to build a school-house for the use 
 of the district ; and this money was to be assessed on 
 the polls and estates of the inhabitants comprising the 
 district, and on the lands belonging to non-resident own- 
 ers, and the legislature manifestly intended, that the pro- 
 perty of any man once lawfully assessed for the uses of 
 one district, should not be again assessed for the use of
 
 668 OF INTERPRETATION [CHAP. XII. 
 
 another district. And to secure this intent, the lands of 
 non-resident owners, were to be assessed to the use of 
 one and the same district, and could not afterwards be 
 assessed to the use of another district, and this provision 
 was made that the same lands might not be twice charged 
 in two districts. If this discretionary election in the as- 
 sessors were to be allowed, then, if in one year a school- 
 house was to be erected in the district where the owner 
 dwelt, and a sum of money was voted for that purpose, 
 the assessors might assess the owner for his land in the 
 occupation of his tenant living in another district ; and 
 afterward, even in the same year, if the district in which 
 the tenant lived should also vote money to build a school- 
 house, the assessors having this discretion, might for this 
 tax assess the tenant for the lands in his occupation, and 
 thus a portion of the owner's land, would be charged in 
 two districts with the building of two school-houses, 
 which would be manifestly against the intention of the 
 statute. That intention clearly was, that in denning the 
 district, a resident owner having land in his own occu- 
 pation, should be assessed for all the lands in the dis- 
 trict in which he lived, and his lands in the occupation 
 of his tenants, should be assessed in the district in which 
 the tenant lived. 
 
 § 524. The same principle was applied in another 
 case,(«) where a turnpike road was authorized by the le- 
 gislature to be located and made from JBowdoin College 
 to a certain place in Bath, and the sessions whose duty 
 it was to lay out the road laid the same seventeen rods 
 distant from the college buijdings, and eight rods from 
 the lands appropriated to the use of the college, it was 
 held to be well laid out within the intent of the legisla- 
 ture : that if the legislature, by " Bowdoin College" in- 
 
 (a) Stanwood v. Pierce, 7 Mass. 458.
 
 CHAP. XII.] AND CONSTRUCTION. CG9 
 
 tended in the statute the college buildings, it was not 
 well laid out. ; but if the legislature, by " Botodoin Col- 
 lege" intended not any particular building, but the land 
 holden by the trustees, on which to erect suitable build- 
 ings to accommodate the students, their instructors and 
 governors, then a different construction ought to be given 
 to the powers vested in the sessions : that the latter was 
 the intent of the legislature was evident, as the word 
 "college" is more naturally applied to the place where a 
 collection of students is contemplated, than to the hall 
 or other buildings intended for their accommodation. 
 
 § 525. We find another instance of the application of 
 this rule. In Gibson v. Tenncy^a) under chap. 100 of L. 
 1805, one swine was exempt from attachment for debts, 
 and the question in that case was, whether a swine 
 which had been butchered, but not cut up, the debtor at 
 the time having no other swine, was exempt from at- 
 tachment. Ch. J. Parker said : " The question present- 
 ed was more curious than difficult. For if they were to 
 be governed at all, by the manifest intention of the le- 
 gislature, in making the exemption of a swine from lia- 
 bility to attachment or execution, they must give the ex- 
 emption effect in that case. For what could have been 
 intended but the sustenance of a poor family, by this ex- 
 emption. That to give the strict construction contended 
 for, would be to convert the intended benefit into an in- 
 jury, for the swine would be protected until it became 
 fit for food, and then be at the mercy of the creditor. In 
 answer to the position taken, that this statute was in de- 
 rogation of common law, and to be construed strictly, he 
 admitted this was true, but that it was also to be con- 
 strued sensibly, and with a view to the object aimed at 
 by the legislature." 
 
 («) 15 Mass R. 205.
 
 G70 OF INTERPRETATION [CHAP. XII. 
 
 § 526. The same rule was adopted and applied in the 
 case of Thompson v. Egbert.(ci) That case arose under 
 the statute of New Jersey, which enacted, " If a hus- 
 band shall hereafter devise to his wife, by a will duly 
 executed to pass real estate, any lands or real estate for 
 her life or otherwise, and without expressing whether 
 such devise to her is intended to be in lieu or bar of 
 dower or not, and the said w T ife shall survive her hus- 
 band, that then .said wife should not be entitled to dower, 
 in any lands or real estate devised by her said husband, 
 unless she shall, in writing, express her dissent to re- 
 ceive the said lands or real estate so devised to her, 
 in satisfaction and bar of her right of dower in other 
 lands," &c. A widow had lands devised to her by her 
 husband, of which she had been evicted by title para- 
 mount, and the question was whether she was barred 
 of her dower. The court held, that had the demand- 
 ant continued in possession of the lands devised, she 
 would, of course, have been barred of her dower un- 
 der this statute. But as she had nothing under the 
 will, if her temporary continuance in possession should 
 deprive her of her dower, it would be manifestly against 
 right. That whatever might be the literal signification 
 of the words of the statute, it would be contrary to the 
 spirit and intent of the act to make it embrace such a 
 case. That in reference to jointures, if a widow be 
 evicted of any part of it, it was expressly provided that 
 she should be endowed of a proportionate amount of the 
 residue of the husband's lands. So in reference to other 
 testamentary provisions, in money or other chattel inte- 
 rest in satisfaction of dower, the court of chancery, after 
 acceptance and enjoyment by the widow, will allow her 
 to refuse it and claim her dower. This showed the gen- 
 
 (a) 2 Harr. N. J. R. 459.
 
 CHAP. XII.] AND CONSTRUCTION. 671 
 
 era! leaning of the courts and legislatures in favor of 
 widow's rights, that dower was one of the favorites of 
 the law. But if the construction contended for should 
 be adopted, it would be otherwise in New Jersey. That 
 the effect of such a construction in all similar cases 
 would be, either to compel the widow to refuse the tes- 
 tamentary provision which Avas made in lieu of dower at 
 once, or take the hazard of the insolvency of the estate. 
 That nothing- short of a manifest intent upon the part of 
 the legislature, so clear as to leave no doubt, would jus- 
 tify a construction so harsh and unjust. That there was 
 nothing plainer than that the general scope and intent of 
 the legislature was to carry into effect the will of the 
 testator. That this general intent characterized the 
 whole course of legislative and judicial decisions. If it 
 should declare that the widow had in this case not only 
 lost the testamentary provision, but likewise her right of 
 dower, it would violate the intent of the testator, ex- 
 pressed in his will, as well as the real and benevolent 
 intent of the law, which has in general so carefully pro- 
 tected the rights of the widow. There could be no 
 doubt, when the legislature said, " If a husband shall 
 hereafter devise to his wife, by will duly executed to 
 pass real estate, any lands or real estate for life or other- 
 wise," &c, it should be a bar to a claim of dower, it was 
 meant and intended that such devise should take effect 
 according to its terms. That no other construction could 
 be put upon this .section consistent with the general scope 
 and end of legislation on this subject. That it was not 
 the object of the statute to bar her dower in such a 
 case. 
 
 § 527. It is never to be presumed that the legislature 
 had nothing in view in making a law ; hence it is ano- 
 ther rule that a statute should never be so construed as 
 to render it a nullity, or quite elude its force, but such a 
 construction ought to be put upon it as that it shall have
 
 672 OF INTERPRETATION [cHAP. XII. 
 
 its full force and effect, and not to be made vain and illu- 
 sive.^) In mixed interpretation the rule prevails that 
 we must give to all doubtful words or expressions that 
 sense which will make them produce some effect, and 
 this effect must in general be a reasonable one, and it 
 must likewise be the same that the law makers intended 
 to produce. By this we mean that they are to be so 
 construed as to give them some meaning; for to take 
 them in any sense that will make them produce no effect, 
 is in reality to give them no meaning at all. The rule, 
 therefore, of taking all doubtful words or expressions in 
 such a sense as will make them produce some effect, 
 amounts to the same thing as if we had said that all the 
 words are to be construed in such a manner as will give 
 them some meaning. Any other construction of them, 
 instead of pointing out the intention of the law makers, 
 is to suppose the law makers to have used the words 
 without any intention at all. If the words or expres- 
 sions are ambiguous, and are susceptible of two senses, 
 either of which will produce some effect, the rule then 
 goes further, and says that the effect must be a reasona- 
 ble one. (6) This rule is founded in reason and good 
 sense : for since the reason of a law consists in the end 
 which the law makers intended to obtain, or in the effect 
 which they intended to produce by it; and since it can- 
 not be supposed that they intended the end, without in- 
 tending the means, if we give the words such a meaning 
 as to make the law produce the effect which they intended 
 to produce, we give them such a meaning as is agreeable 
 to their intentions. This rule proceeds from the same ge- 
 neral principles, from the necessity of giving the words 
 the .sense which it is presumed are comformable to the 
 intent of the legislature :(c) and this is conformable to 
 
 (a) Hob. 97. (b) Rutherf. b. 2, c. 7, sec. 8. 
 
 (c) Vattel, b. 2, o. 17, sec. 282, p. 381.
 
 CHAP. XII.] AND CONSTRUCTION. 673 
 
 the rule of the civil law, that when a law was applied 
 to a case included in its terms, there followed a conse- 
 quence evidently contrary to the intention of the law- 
 giver, the law ought not to be extended to that case.(^) 
 § 528. If a statute makes use of a word, in one part of 
 it, susceptible of two meanings, and in another part it 
 is used in a definite sense, it is to be understood through- 
 out in the latter sense, unless the object to which it ap- 
 plies, or the connection in which it stands, require it to 
 be differently understood in the two places, but it should 
 upon the whole be so construed that, if possible, no 
 clause, sentence or word will be superfluous, void or insig- 
 nificant.^) Where the words of a statute are susceptible 
 of two meanings, the one favorable and the other hostile 
 to its principal design, the former should prevail and con- 
 trol the construction. (c) In the case of James v. Dubois, 
 the question arose whether the act of 1784, relative to 
 entailments, limited and cut down estate tail created by 
 deed, as well as estates created by devise. The doubt arose 
 from the last clause of the second section, which provi- 
 ded — " And that no entailment of any lands or other real 
 estate shall continue to entail the same, in any case 
 whatever, longer than the life of the person to whom the 
 same hath been or shall be first given or devised by such 
 entailment." It was insisted that the word entailment 
 in this clause must be understood to mean devise, because 
 this same word, in a preceding clause, was used as syno- 
 nymous with that word. It was admitted that it was so 
 used in the preceding clause, for the reason that the act 
 used the two words in the following connection : " Agree- 
 able to the devise or entailment, after the decease of the 
 
 (a) Domat, b. 1, tit. i. sec. 2. 
 
 (b) James v. Dubois, 1 Har. 285 ; Den v. Schcnck, 3 Halstead, 31 ; Den 
 v. Clark, Coxe R. 359. 
 
 (c) Lott v. .Wyckoff, 1 Barber Sup. Court R. 635. 
 
 85
 
 674 VF INTERPRETATION [CHAP. XII. 
 
 iirst devisee, to all the estate in the devised premises, 
 which the testator was entitled to, or could have de- 
 vised;" thus qualifying and limiting the sense in which 
 the word entailment was then used to entailment by de- 
 vise only : for had the legislature intended to use the 
 word entailment as synonymous with deed or gift, as dis- 
 tinguished from devise, they would have said, in the lat- 
 ter part of the sentence, " After the decease of the first 
 devisee, or donee, or, grantee, to all the estate devised or 
 granted premises to which the testator or grantor was 
 entitled or could have devised or granted." That such 
 must have been inevitably the structure of the sentence, 
 if the legislature had in the body and previous part of 
 that section been legislating about deeds, as well as 
 wills. That therefore they were compelled to under- 
 stand the word " entailment," in that part of the act, as 
 tautological or unnecessary, or at most meaning the same 
 thing as devise. In answer to the argument, that the 
 word " entailment," in the last clause of the section, 
 ought to be restrained to the same meaning, not only be- 
 cause all the preceding part of the act related to devises, 
 but because the last clause of the second section did not 
 profess to introduce a new or distinct topic of legisla- 
 tion, but was connected by the conjunction "and" with 
 what preceded it : the court said : " It is no doubt a 
 rule of construction, that if a statute makes use of a 
 word, in one part of it, susceptible of two meanings, and 
 in another part of the statute the same word is used in 
 a definite sense, we are to understand it throughout in 
 that sense, unless the object to which it is applied, or 
 the connection in which it stands, requires it to be dif- 
 ferently understood in the two places. But then there 
 is another rule, — viz., that a statute ought, upon the 
 whole, to be so construed, that if it can be prevented, 
 no clause, sentence or word shall be superfluous, void or 
 insignificant. That by testing the clause by this rule,
 
 CHAP. Xir.] AND CONSTRUCTION. 675 
 
 give the word " entailment," as there used, the meaning 
 contended for, and how would it read 1 — for if " entail- 
 ment" means devise, we must read it so : it would then 
 read — " And no devise of any lands shall continue to en- 
 tail the same, in any case whatever, longer than the life 
 of the person to whom the same hath been or shall be 
 first given and devised by such devise." This would not 
 only be a very badly constructed sentence, but it would 
 render the whole clause nugatory, superfluous, and in- 
 significant. It would be a useless and unmeaning repe- 
 tition in general terms of what had before been specifi- 
 cally enacted. They were therefore not at liberty to re- 
 ject this clause of the statute, where, without any vio- 
 lence to the words or to the grammatical rules of con- 
 struction, it was susceptible of a substantive and impor- 
 tant meaning, and that too upon a subject relating to, 
 and connected with, the avowed object of legislation in- 
 dicated by the title of the statute itself, which was ' : to 
 limit estates in tail." That there was another circum- 
 stance that led to the conclusion that the legislature in- 
 tended, by this general clause, to reach estates created by 
 deed — that was, that in this clause, the legislature had 
 used for the first time, in the statute, the word "given." 
 They do not say " to whom the same shall be first en- 
 tailed or devised," but " shall be first given or devised by 
 such entailment. Now the word " given," in its appro- 
 priate legal sense, is applicable to deeds as well as wills, 
 and, so understood, it gives effect to that word, and a 
 very important effect too. It gives it a place and mean- 
 ing in the statute, by making the statute embrace es- 
 tates created by deed as well as by will, whereas if we 
 read it as synonymous with devise, it is unmeaning and 
 worse than useless — ought to be stricken out, and must 
 be rejected, which we have no right to do if we can 
 usefully and sensibly employ it where we find it." 
 § 529. This case is illustrative of both of the rules last
 
 676 OF INTERPRETATION [CHAP . XII. 
 
 above stated, and the circumstances and qualification 
 under which they are to be adopted. These rules have, 
 like all other rules of construction, for their object, the 
 effectuation of the intent of the legislature in every pos- 
 sible given case, where the reason or necessity for con- 
 struction arises. As the legislature can never be pre- 
 sumed to intend manifest injustice, cruelty or oppression, 
 no such construction ought to be put upon a statute as 
 will punish or damnify the innocent,(a) nor so as to 
 delay justice,(6) nor so as to extend a new remedy or a 
 new jurisdiction when it is a summary one.(c) 
 
 § 530. In ascertaining the intent of the legislature, it 
 is important in the first place, that we should know what 
 the common law was before the making of the statute, 
 for thereby it may be seen whether the statute be intro- 
 ductory of a new law, or only affirmative of the common 
 law. This, it has been said, is the very lock and key 
 that sets open the windows of the statute.(<f) Fur- 
 ther, as a rule of exposition, statutes are to be construed 
 in reference to the principles of the common law. For 
 it is not to be presumed that the legislature intended to 
 make any innovation upon the common law, further than 
 the case absolutely required. The law rather infers 
 that the act did not intend to make any alteration, other 
 than what is specified, and besides what has been plainly 
 pronounced ; for if the legislature had that design, it is 
 naturally said, they would have expressed it. It was 
 observed by the judges in the case of Stowell and 
 Zouch, that it was good for the expositors of a sta- 
 tute to approach as near as they could to the reason 
 of the common law.(e) The best interpretation of a 
 
 (a) 1 Inst, 360. 
 
 (b) 2 Inst. 611. 
 
 (c) Barb. 106. 
 
 (d) 2 Inst. 301 ; 3 Rep. 13 ; Hob. 83. 
 
 (e) Plowd. 365.
 
 CHAP. XII.] AND CONSTRUCTION. 077 
 
 statute, say other cases, is to construe it as near to the 
 rule and reason of the common law as may be, and by 
 the course, which that observes in other cases. («) Such, 
 indeed, has been, the language of the courts in every age ; 
 and when we consider the constant, vehement, and ex- 
 alted eulogy which the ancient sages bestowed upon the 
 common law, as, " the perfection of reason," and the 
 " best birthright and noblest inheritance of the subject," 
 we cannot be surprised at the great sanction given to this 
 rule of construction, and its careful observance. (£»)(c) 
 When a statute alters the common law, the meaning 
 shall not be strained beyond the words, except in cases 
 of public utility, when the ends of the act appear to be 
 larger than the enacting words (d) This intention of 
 the makers of a statute may also sometimes be discovered 
 from the cause or necessity of making the act. To this 
 end it is proper to inquire, what was the mischief against 
 which the common law had not provided. The cause 
 and reason of the act, or in other words, the mischief 
 requiring a remedy, may either be collected from the 
 statute itself, or discovered from circumstances extrinsic 
 of the act. The mischief maybe discovered aliunde ; 
 the remedy from the act itself; and then the safe and 
 established rule of construction is, that the intention of 
 the lawgiver, and the meaning of the law, are to be dis- 
 covered and deduced from a view of the whole and every 
 part of a statute taken and compared together. 
 
 § 531. Another fundamental rule of construction of a 
 statute is, to construe it according to the sense of the 
 terms, and the intention of the legislature, to be gathered 
 from the words used. In the ascertainment of that in- 
 
 (a) 1 P. Wms. 252 ; 2 Inst. 148, 301 ; 1 Sand 2 10. 
 
 (b) 1 Kent's Coram. 431. 
 
 (c) 1 Dwarris on Statutes, 695. 
 
 (d) lb. 696.
 
 G78 OF INTERPRETATION [CHAP. XII. 
 
 tention, the contents, the subject-matter, the effect, and 
 sometimes the consequences, as well as the reason and 
 spirit of the law are to be considered. (a) The difficulty 
 as well as necessity in the application of this rule in 
 construction, as has been seen, arises from the fact, that 
 such is the imperfection of human language, that the 
 ideas of men are not always distinct and perfectly de- 
 termined, and the terms used by the law-makers cannot 
 always be so specific and precise as not to be susceptible 
 of but one meaning ; hence frequently, contradictions and 
 inconsistencies, either real or apparent, present them- 
 selves in relation to different parts of the same statute ; 
 hence there arises necessity for establishing rules founded 
 in reason and authorized by the law of nature, which 
 are capable of diffusing light on what is obscure, and de- 
 termining what is uncertain. (6) 
 
 § 532. It was a rule in the civil law, that those ob- 
 scurities, ambiguities, and other defects of expression 
 which may render the sense dubious, and difficult to ar- 
 rive at a right understanding of, and justly applying the 
 language to particular cases, ought to be solved by the 
 sense which is the most natural, that has the greatest 
 relation to the subject-matter, and the most consonant to 
 the intention of the law-makers, and agreeable to justice. 
 That this will best be discovered by taking into consid- 
 eration the words and the nature of the law, its mo- 
 tives, and its relations to other laws, from which may 
 be discovered its spirit and its genuine sense.(c) The 
 common law courts have substantially adopted these 
 rules, and have held, that the words ought always to be 
 well considered, and should generally be understood in 
 
 (a) Black. Com. 59, 60; Ayliffe's Pandects, b. 1, tit. 4, p. 25; 1 Domat, 
 prelim, b., p. 9. 
 
 (£) Vattel, b. 2, c. 17, sec. 272. 
 
 (c) Domat, prel. book, tit. 1, sec. 2, p. 12.
 
 CHAP. XII.] AND CONSTRUCTION. G79 
 
 their usual and most known signification, unless that 
 sense is repelled by the context,(«) not so much regard- 
 ing the propriety of grammar, as their general and pro- 
 per use; and if they happen to be dubious, their mean- 
 ing may be established by the context, or comparing 
 them with other words in the same law, and by the 
 subject-matter, with reference to which the expressions 
 are used, the reason and spirit of the law, or the causes 
 which led to its enactment; that these are the best ex- 
 ponents of the words, and the safest rules by which to 
 limit their application. (6) 
 
 § 533. We have in previous chapters considered the 
 question of retrospective laws. The power of the legis- 
 lature to pass such acts independent of any constitutional 
 restriction upon legislative power, and also the constitu- 
 tionality of such acts. As a question of construction 
 merely, it is a general rule that statutes are not to be 
 construed retrospectively, or to have a retroactive effect, 
 unless it shall clearly appear that it was so intended 
 by the legislature, and not even then if by such a con- 
 struction the act would divest vested rights. (c) 
 
 § 534. Whenever a statute uses a technical term 
 which is known, and its meaning clearly ascertained, by 
 the common or civil law, from the one or the other of 
 which it is obviously borrowed, it is proper to refer to 
 the source from which it is taken, for the purpose of 
 ascertaining its meaning. Thus, in the case of The Uni- 
 ted States v. Jones, (jl) the act of Congress made " mur- 
 
 (a) 6 Pet. R. 102. 
 
 (b) Woode's Elem. Jurisp. 36 ; Story on Constitution, 304. 
 
 (c) See Gilmore v. Shuler, 2 Shower, 16 ; S. C. 2 Mod. 310 ; Jones, 108 ; 
 
 2 Ld. Raymond, 1352 ; Holden v. James, 11 Mass. R. 396; Lewis v. Webb, 
 
 3 Greenl. 326 ; Dash v. Van Kleck, 7 J. R. 477; Lewis v. Brackenridge, 1 
 Black. R. 220 ; Prop. Ken. Purchase v. Laboree, 3 Greenl. 275 ; Wilkenson 
 v. Leland, 2 Pet. R. 627 ; Satterlee v. Mattkewson, 2 Pet. 11. 380. 
 
 (</) 3 Wash. C. C. R. 209.
 
 G80 OP INTERPRETATION [CHAP. XII. 
 
 tier" and "robbery" on the high seas acts of piracy. It 
 was contended, that as robbery on land had not been de- 
 clared by an act of Congress to be a capital offence, it 
 was not declared, by the act under which the indictment 
 was found, to be piracy, if committed on the high seas. 
 Washington, J. held this was by no means the correct 
 construction of the law. Murder and robbery, commit- 
 ted on the high seas, were declared to amount to piracy, 
 and also any other offence which would be punishable 
 with death, had it been committed on land. It was 
 clear that the words " which, if committed within the 
 body of a county," &c., related not to " murder or rob- 
 bery," but to the words immediately preceding " or any 
 other offence." That all that remained was to ascertain 
 the meaning of the word "robbery," and it was admit- 
 ted that the common law definition of the term might be 
 resorted to. That 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 the one or 
 the other of which it was obviously borrowed, no doubt 
 could exist that it was necessary to refer to the source 
 from whence it was taken for its precise meaning. 
 
 § 535. Also, when a statute uses a word, the meaning 
 of which is well ascertained at common law, the word 
 shall be understood in the statute in the same sense in 
 which it is understood at common law. (a) We have al- 
 ready seen that it was a rule of the civil law, if techni- 
 cal terms are used, or terms proper to the arts and scien- 
 ces, they should commonly be interpreted according to 
 their technical sense, or to the definitions given them 
 by the masters of those arts and sciences, or of persons 
 versed in the art to which the terms belong. But if the 
 terms relate to things that admit of different degrees, 
 
 (a) Kitchen v. Tyson, 3 Murphy, 314.
 
 CHAP. XII.] AND CONSTRUCTION! 081 
 
 there ought Dot to be a scrupulous adherence to techni- 
 cal definitions. («) Whenever such terms <>f art or pecu- 
 liar phrases arc made use of, it must be supposed that 
 the legislature had in view the subject-matter about 
 which such terms or phrases are commonly used.(&) 
 
 § 536. This rule, in one case, was considered under a 
 statute which provided that the coroner should serve all 
 writs and precepts when the sheriff or his deputy should 
 be a party. The deputy, in this case, served the writ on 
 the defendants, who were a corporation, he being at the 
 time a stockholder and member of the corporation. The 
 question raised in the cause was whether, under those 
 circumstances, the deputy was i\ party to the suit within 
 the meaning of the statute. The court, in that case, 
 held — " It was plain they were called upon to decide 
 whether Daniel Dutch, who made the service of this 
 writ, was a party to the suit. That he was interested in 
 it, admitted of no question. They were to ascertain the 
 true meaning of the legislature in the use of the words 
 of their statute, and were to consider them, when legis- 
 lating upon subjects relating to courts and legal process, 
 as speaking technically, unless from the statute itself it 
 appeared that they made use of the term in a more pop- 
 ular sense. The word "party" was unquestionably a 
 technical word, and had a precise meaning in legal par- 
 lance. By it was understood he or they, by or against 
 whom a suit is brought, whether in law or equity ; the 
 party, plaintiff or defendant, whether composed of one 
 or more individuals, and whether natural or legal persons. 
 They were parties in the suit and parties on the record, 
 and all others who might be affected by the suit indi- 
 rectly, or consequently were persons interested, but not 
 parties. And it was clear that the legislature used the 
 
 (a) Vattel, b. 2, c. 17, sec. 276, 277. 
 
 (b) The Merchants'' Bank v. Cook, 4 Pick. 405. 
 
 86
 
 682 OF INTERPRETATION [CHAP. Xll. 
 
 word in this sense, for in one clause in the same section 
 they require that the writ should be served by a coroner 
 where the sheriff or his deputy was a party, and in an- 
 other they require another duty of the coroner where 
 the sheriff should be interested or related to either of the 
 parties." The same doctrine, under a similar statute, was 
 held in the case of Adams v. Wiscasset Bank.(ci) 
 
 § 537. The word " plaintiff," when used in a statute 
 according to the ordinary usage and acceptation of the 
 term, would, in accordance with the rules above stated, 
 seem to mean the party plaintiff upon the record., and so 
 it was decided by the supreme court of New York, un- 
 der the second and eighth sections of the act to prevent 
 usury, passed in 1837, which authorized, under certain 
 circumstances, the calling of the " plaintiff" as a witness 
 to prove the usury. That court held that the statute 
 was confined to the plaintiff* on the record, and did not 
 extend to the party who was the plaintiff in interest.(6) 
 The court for the correction of errors, however, in the 
 same case in error,(c) reversed that decision, and by a 
 vote of fifteen to five, resolved that the word "plaintiff," 
 in the second and eighth sections of the act above referred 
 to, extended to the party in interest as plaintiff, although 
 he might not be the jrtaintiff on the recorded) This de- 
 cision we cannot but regard as a departure from the gen- 
 eral principle of construction which prevails in ordinary 
 analogous cases, and according to our own view of the 
 rule, we should feel no hesitation in coinciding with the 
 view r s of the supreme court and those expressed in the 
 dissenting opinions of Senators Putnam and Rhoades in 
 
 («) 1 Greenl. 361. 
 
 (b) Henry 4 Pierce v. The Bank of Salina, 1 Hill R. 555. 
 
 (c) 5 Hill R. 523. 
 
 (d) See also Stephen el al v. While, 5 Hill, 548 ; Hart v. Oalman, 1 Bar- 
 ber Sup. Court R. 229.
 
 CHAP. XII.] AND CONSTRUCTION. G83 
 
 the case in 5 Hill, 523. We cannot but regard this de- 
 cision of the court of dernier resort as the supplying of 
 a casus omissus in a statute by judicial legislation, and 
 that too in the case of a penal statute, instead of having 
 the statute extended to meet the defect by that depart- 
 ment of the government whose duty it is to enact statute 
 law. 
 
 § 538. The question arose, in another case,(a) as to 
 the sense of the word " supersede," as used in the mili- 
 tia law of Massachusetts. The court held, that the only 
 way to ascertain the sense of the legislature, in using the 
 word " supersede," was to learn the militia sense, in 
 which the word is commonly used. That in the enact- 
 ment of laws where terms of art or peculiar phrases are 
 made use of, it must be supposed that the legislature had 
 in view the subject-matter about which such terms or 
 phrases were usually employed. That in a military 
 sense, to be superseded meant to have one put in the place 
 of another, and that this sense was natural and consist- 
 ent with the common understanding of the term. That 
 by an extraordinary promotion in the militia, no officer 
 was superseded except the one who, in the ordinary 
 course of promotion, would have succeeded to the vacant 
 office. 
 
 § 539. In another case,(6) a question arose whether 
 a judgment for past damage given by a statute for flow- 
 ing waters by a mill-dam, precluded an assessment, or 
 subsequently assessing damages, under a statute which 
 provided, that " while the jury were assessing the an- 
 nual damages, and determining for what time and to what 
 extent the mill owners might flow, they were required 
 to appraise the gross amount, which should be paid for 
 the perpetual right of flowing ; and an election between 
 
 (a) Ex parte Hall, I Pick. 261. 
 
 (b) Snellv. Bridgwater Cotton Gin Manufactory Co. 21 Pick. 298.
 
 684 OF INTERPRETATION [CHAP. XII. 
 
 annual and gross damage was given to the land owner." 
 That " the verdict being returned, judgment should be 
 final, any law or usage to the contrary notwithstanding." 
 It was contended, that the judgment was to be conclu- 
 sive, not only for the gross damage, when they were 
 elected, but also for the annual damages when the judg- 
 ment was rendered for them, so as to preclude any new 
 assessment or judgment for subsequently accruing an- 
 nual damages. This question necessarily involved the 
 question, as to the sense in which the word final was to 
 be understood. The court held that it might be reason- 
 able and in accordance with the usage and sound princi- 
 ples of law, that the judgment for the gross damages 
 should, while unreversed, be conclusive. But, when it 
 undertook to fix a prospective rule for the recovery of 
 damages which had not accrued, it would seem unrea- 
 sonable and unjust to make it conclusive. That the 
 damage might be greater or less than was expected. 
 The effect of the flowing might, on experiment, prove to 
 be different from what was anticipated, the value of the 
 land or its precincts might vary, and many circumstan- 
 ces might occur in the lapse of time, which would render 
 a new appraisement indispensable to the equal distribu- 
 tion of justice between the parties. Although the lan- 
 guage of the statute upon this point was not clear, yet 
 inasmuch as the object of the legislature was to provide 
 a means of ascertaining the value of a perpetual servi- 
 tude upon the plaintiff's land, and not to affect the ap- 
 praisement of annual damages, or to impair his right to 
 recover them, the fair presumption was, that the lan- 
 guage of the statute might be fully satisfied without adopt- 
 ing a construction which seemed absurd or mischievous. 
 That the distinction between final and interlocutory judg- 
 ment was familiar to every lawyer. Interlocutory judg- 
 ments were such as were given in the middle of a cause, 
 and did not finally determine and complete the suit Fi-
 
 • HAP. XU.~\ AM) CONSTRUCTION* 685 
 
 nal judgments were such as at once put an end to an 
 action. The word fined was often used in statutes in 
 in tli is, which was its proper legal sense. That it must 
 be regarded as used in that sense in this statute. 
 
 § 540. Under the statute of 1790, c. 9, sec. 28, which 
 required, in capital cases, a copy of the indictment, &c., 
 should be delivered to the prisoner two entire days be- 
 fore the trial^a) it was held, that the word " trial" meant 
 the trying of the cause by the jury, and not the arraign- 
 ment and pleading preparatory to such trial. In this 
 case Judge Story says, " The question is, what is meant 
 in this statute by the words ' before he shall be tried,' 
 and ' before the trial,' for they are doubtless equivalent ; 
 do they mean that the copy shall be delivered two days 
 before the jury is sworn to try the cause upon the issue 
 of fact, or do they mean, before the party is arraigned on 
 the indictment and put to plead, and before it is ascer- 
 tained, whether by his plea, there will be a trial by a 
 jury or not." He then held, that he was clear in the 
 opinion, that upon the statute itself, the true meaning 
 was, that the copy should be delivered two days before 
 the cause was tried by the jury, and not before the party 
 was arraigned on the indictment. His reasons for this 
 opinion were, first, that this was the natural exposition 
 of the intent and object of the enactment ; secondly, that 
 it was the legal and technical meaning of the word 
 u trial," in the sense of the common law ; that it was 
 admitted that the legislature might use technical words 
 in an untechnical sense, and when from the context, this 
 is ascertained, it was the duty of the court to construe 
 the words according to the legislative intent ; that it was 
 equally its duty to follow such intent when the legisla- 
 ture uses untechnical words in a technical sense ; that in 
 
 (a) Tlve United States v. Curtis, 4 Mason's R. 230.
 
 686 OF INTERPRETATION [CHAP. XII. 
 
 each case indeed, the duty of the court was the same, 
 to carry into effect the object of the legislature, so far as 
 it was expressed, and to give a suitable exposition of 
 the terms according to the fair import of the language. 
 But where the legislature uses words which have an ap- 
 propriate sense in the common law, that sense is sup- 
 posed to be the one intended by the legislature, unless 
 the context shows that a different sense was in fact in- 
 tended. That in the sense of the common law, the 
 arraignment of the prisoner constituted no part of the 
 trial. It was a preliminary proceeding, and until the 
 party had pleaded, it could not be ascertained whether 
 there would be any trial or not. He then cited Black- 
 stone and Hale, that " to arraign is nothing else but to 
 call the prisoner to the bar of the court, to answer the 
 matter charged upon him by the indictment," and that 
 " after the prisoner had pleaded, and put himself upon the 
 country, the next thing in order of proceeding was trial 
 of the offender." And the like distinction between ar- 
 raignment and trial was taken in Sayer's case in 1772, 
 and was universally recognized. 
 
 § 541. Where a criminal prosecution under a statute 
 was to be instituted on complaint, a complaint under 
 oath or affirmation is implied as a part of the technical 
 meaning of the terms. (a) The ordinary and usual mean- 
 ing of the word "deposition" is confined to written testi- 
 mony, at least in legal proceedings ; hence it has been 
 held, that congress in legislating upon this subject must 
 be presumed to have used the word in its legal sense. 
 It was said in one case in which this rule obtained, that 
 there would not be found an instance in the United 
 States laws where the word had been used in a different 
 sense. In the act of 24th September, 1789, ch. 20, sec. 
 
 (a) Camplell v. Thomson, 4 Shepley, 117.
 
 CHAP. XII.] AND CONSTRUCTION. GS7 
 
 30, in which congress had provided for the taking of de- 
 positions of witnesses under certain circumstances, (he 
 language was, that the " deposition" of such person may 
 be "taken," and throughout the whole section the word 
 was used to denote the written testimony of a witness 
 in contradistiction to oral testimony. (a) 
 
 § 542. Under the crimes act of the United States of 
 1825, ch. 276, sec. 10, it is provided, that no master, &c., 
 shall, during his being abroad, maliciously and without 
 justifiable cause, force any officer or mariner of such ship 
 or vessel on shore. In one case,(&) a question was 
 raised as to the meaning of the words " maliciously," 
 and "justifiable cause." It was held, that " maliciously," 
 in the sense of the act, was not limited to acts done from 
 hatred, revenge, or passion, but it included all acts wan- 
 tonly done, that is, against what any man of reasonable 
 knowledge and ability must know to be against his 
 duty. That "justifiable cause" did 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 this subject contemplate, as a case of 
 moral necessity, for the safety of the ship or the due 
 performance of the voyage. That it arose only from ex- 
 traordinary emergencies, and in extreme cases, where 
 otherwise the safety of the officers or crew, or the due 
 performance of the voyage, or the regular enforcement 
 of the ship's discipline would be put in jeopardy. 
 
 § 543. Under the judiciary act of the United States, 
 the question has arisen as to the interpretation of the 
 word " defendant," and it has been held, that although 
 in its terms, it applies only to the case of a single defen- 
 dant; but in its true interpretation, it cannot admit of a 
 rational doubt, that it means the party defendant, whe- 
 
 (a) United Stales v. Clark, 1 Gallison, 501, 2. 
 
 (b) United States v. Coffin, 1 Sumner, 394.
 
 688 OF INTERPRETATION [ciIAP. XII. 
 
 ther one or many, and that it must apply to cases where 
 several aliens or several citizens of another state are 
 jointly sued as defendants, for, in such cases each of 
 them is in the very predicament presumed by the 
 act.(a) 
 
 § 544. The term person in a statute, embraces not 
 only natural but artificial persons, unless the language 
 indicates that the word is used in a more limited sense, 
 in cases where a statute gives or provides a remedy by 
 action or otherwise, to any person or persons. We are 
 aware, however, that the decisions on this point are not 
 uniform, and that it has been held by the supreme court 
 of Illinois ;(6) that an act giving the right to remove 
 fences made by mistake upon the lands of other persons, 
 applied only to natural persons, and had no application 
 to fences erected on lands of the United States; and in 
 that case and also in another case,(c) it was held, that 
 in enactments of legislative bodies, when persons are 
 spoken of, no other than natural persons will be intended, 
 unless it be absolutely necessary to give effect to some 
 powers already conferred on artificial persons, and which 
 it was necessary should be exercised, to carry into effect 
 the objects contemplated in their grant or charter. 
 
 § 545. In the interpretation of statutes, if the words 
 used express clearly the sense and intention of the law, 
 they must always govern. For, as we have seen, it is 
 not permitted to interpret what is plain and manifest, as 
 it stands in no need of interpretation. When an act is 
 conceived in clear and precise terms — when the sense is 
 manifest, and leads to nothing absurd, there can be no 
 reason to refuse the sense which it naturally presents to 
 
 (a) Smith v. Rines, 2 Sum. R. 345. 
 
 (b) Blair v. Worly, 1 Scammon, 178. 
 
 (c) Betts v. Menard, 1 Breese,
 
 CHAP. XII.] AND CONSTRUCTION 
 
 689 
 
 the mind. To go elsewhere in search of conjecture, in 
 order to restrain or limit an act, would be but to elude 
 its force, and it will be perceived that such a course 
 would be dangerous in the extreme ; for if such a rule 
 should be once established, the brighest light might shine 
 on every letter and sentence of a law ; it might be ex- 
 pressed in terms the most clear and determined, yet all 
 this would be useless, were courts to search for foreign 
 reasons to maintain what was not to be found in the 
 sense it naturally presented to the mind.(a) Thus, in 
 Crocker v. Crane,(b) it was held, where the meaning of 
 a statute is plain, all technical rules as to the force or 
 construction of particular terms must yield to the clear 
 expression of the paramount will of the legislature ; 
 or where the meaning is manifest, the intention of the 
 legislature should be carried into effect, even though apt 
 words are not used in the act. A writer on American 
 law says : " Where the intention of the legislature is 
 found, there can no question arise, but that must be the 
 rule and guide, for when perceived by judges, a devia- 
 tion from it must be intentional, and so wholly unjustifi- 
 able. As judges may as well make a new statute of 
 their own, and decide the case by it, as designedly to 
 depart from the understood meaning and intention of the 
 legislature. When the meaning is satisfactorily per- 
 ceived and understood, there is no room for a liberal, or 
 strict, or equitable, or large, or narrow, or other con- 
 struction, than according to the meaning. (c) The Su- 
 preme Court of the United States have held, that where 
 a law is plain and unambiguous, whether it be expressed 
 in general or limited terms, the legislature must be in- 
 tended to mean what it has plainly expressed, and COIl- 
 
 fa) Vattel, b. 2, c. 17, sec. 263. (b) 21 Wendell, 211. 
 
 (c) 6 Dane Ab. 600. 
 
 87
 
 690 OF INTERPRETATION [CHAP. XII. 
 
 sequently no room is left for construction. (a) Mr. Dvvar- 
 ris lays down the rule thus : " But though the judges, in 
 interpreting the law, are to explore the intentions of the 
 legislature, yet the construction to be put upon an act of 
 parliament must be such as is warranted by, or at least 
 not repugnant to, the words of the act. Where the ob- 
 ject of the legislature is plain and unequivocal, courts 
 ought to adopt such a construction as will best effectu- 
 ate the intentions of the lawgiver. But they must not, 
 in order to give effect to what they may suppose to be the 
 intention of the legislature, put upon the provisions of a 
 statute a construction not supported by the words, though 
 the consequence should be to defeat the object of the 
 act.(6) Where the legislature has used words of a plain 
 and definite import, it would be very dangerous to put 
 upon them a construction which would amount to hold- 
 ing that the legislature did not mean what it has ex- 
 pressed. The fittest course in all cases where the inten- 
 tion of the legislature is brought into question, is to ad- 
 here to the words of the statute, construing them ac- 
 cording to their nature and import, in the order in which 
 they stand in the act of parliament. (c) The most en- 
 lightened and experienced judges have for some time 
 lamented the too frequent departure from the plain and 
 obvious meaning of the words of the act of parliament 
 by which a case is governed, and themselves hold it 
 much the safer course to adhere to the words of the 
 statute construed in their ordinary import, than to 
 enter into inquiry as to the supposed intention of the 
 parties who framed the act.((Z) They are not (as the 
 most learned members of a learned body best know) to 
 
 (a) 7 C ranch R. 52. 
 
 {b) Rex v. Stoke Demerel, 7 B. & C. 569. 
 
 (c) Rex v. Ramsgale, 6 B. & C. 712. 
 
 (<i) Rex v. Inhabitants of Great Bentley, 10 B. & C. 520.
 
 CHAP. XII."] AND CONSTRUCTION. G91 
 
 presume the intentions of the legislature, but to colled 
 tlicm from the words of the act of parliament; and they 
 have nothing to do with the policy of the law. This is 
 the true sense in which it is so often impressively re- 
 peated, that judges are not to be encouraged to direct 
 their conduct " by the crooked cord of discretion, but by 
 the golden metwand of the law ;" i. e. not to construe 
 statutes by equity, but to collect the sense of the legisla- 
 ture by a sound interpretation of its language, according 
 to reason and grammatical correctness. "(«) 
 
 § 546. The rule we have been considering necessarily 
 arises from what we have already seen, that it is only 
 when there is some ambiguity or doubt arising from other 
 sources, that interpretation has its proper office, and that 
 it is only to be resorted to when there is obscurity as to 
 the meaning, either from the doubtful character of the 
 words, or from other clauses in the same statute, or from 
 an incongruity or repugnancy between the words and the 
 apparent intention derived from the whole structure of 
 the law or its avowed object. As words are the com- 
 mon signs which mankind make use of to declare their 
 intention, one to another, if those signs are definite, dis- 
 tinct and clear, there can be no need to have an interpre- 
 ter of them. But as the legislature are but men, the 
 language used by them is liable to all that uncertainty 
 and imperfection that pertains to all that is of human 
 origin or that emanates from finite minds. There will 
 from necessity be more or less obscurity in the words 
 used, and they will often be more or less obscure : some- 
 times they will express the meaning so imperfectly, as to 
 either fall short or else exceed the intention, and express 
 more than is designed, and then it is that the words 
 themselves are to be interpreted. Great care should be 
 
 (a) 1 D^varris on Statutes, 702, 703.
 
 G92 OF INTERPRETATION [ciIAP. XII. 
 
 observed that we do not, in all such cases, confound in- 
 terpretation with criticism. The end of the latter is, to 
 find out what are the words of the law maker, and whe- 
 ther the same is genuine or forged — whether any part or 
 material parts have been foisted in or omitted, or erased 
 or altered. The end of the former is, to find what was 
 the intent and meaning, and to clear up that meaning 
 when obscure — to ascertain the sense of ambiguous 
 words — to determine the design when imperfectly ex- 
 pressed. 
 
 § 547. A remedial act should be so construed as most 
 effectually to meet the beneficial end in view, and to pre- 
 vent a failure of the remedy, and as a general rule a re- 
 medial statute ought to be construed liberally. Receiv- 
 ing an equitable, or rather a benignant interpretation, 
 the letter of the act will be sometimes enlarged, some- 
 times restrained, and sometimes it has been said the con- 
 struction made is contrary to the letter.(a) This rule 
 will be illustrated in a subsequent chapter, when we 
 come to consider the doctrine of equitable construction. 
 It is proper, however, that we should here remark, that 
 although it is true as a general rule that where the ob- 
 ject of a statute is remedial, it is to be construed libe- 
 rally, so that it may carry out the purposes for which it 
 was designed. The rule has its qualifications, and we 
 should keep distinctly in view a distinction which exists 
 between the remedy merely and proceedings in the at- 
 tainment of the remedy. In the former case, courts, 
 when looking at the remedy, will take care that the sta- 
 tute shall be so construed as to make it effectual, if pos- 
 sible, in the manner intended ; but in the latter case, 
 courts, when scanning the proceedings in attaining that 
 remedy, especially if it be summary in its nature, will be 
 
 (a) Dwarris, 718.
 
 CHAP. XII.] AND CONSTRUCTION. 693 
 
 strict and rigid in exacting a strict compliance with all 
 the requisites of the statute.(«) 
 
 § 548. We next proceed to consider how far conse- 
 quences are to be regarded. As a general rule, courts, 
 in the construction of statutes, are not to regard the con- 
 sequences. This rule, however, is subject to some qual- 
 ifications and limitations. Where the intent is doubtful, 
 the consequences, resulting from a particular construc- 
 tion, may be regarded. This qualification must always 
 be applied with great caution, and the influence it should 
 have upon the construction must depend on the nature 
 of each particular case to which it is to be applied, espe- 
 cially so in those cases where rights are to be infringed. 
 But wdiere fundamental principles are overthrown, — 
 where the general system of the law is departed from, 
 the legislative intention must be expressed with irresis- 
 tible clearness, to induce a court of justice to suppose a 
 design to effect such an object ; and in such a case, courts 
 will regard the consequences of a particular construc- 
 tion. Where, however, a mere political regulation is 
 made, which is inconvenient, if the intention of the legis- 
 lature is expressed, in terms which are sufficiently intel- 
 ligible to leave no doubt on the mind ; where the words 
 are taken in their ordinary sense, it has been held, that 
 it would be going too far to hold that a constrained inter- 
 pretation should be put upon the statute to avoid any 
 inconvenience. The reason for this is, that it is but rea- 
 sonable to presume that the legislature contemplated 
 such an inconvenience, as being probably overbalanced 
 by the particular advantage the act was calculated to 
 produce.. The rule may, perhaps, be laid down, that 
 where the construction of a particular statute is doubt- 
 ful, an argument from inconvenience will have some 
 
 (a) Smilh v. Mojfalt, 1 Barber Sap. Court Rep. 65.
 
 694 OF INTERPRETATION [dlAP. XII. 
 
 weight, but where it is plain, the eonsequences are not 
 to be regarded, — for that would be to assume legislative 
 authority ; and in all cases where consequences are re- 
 garded, great care should be taken that courts do not put 
 such a construction upon a statute as quite to elude the 
 force of it.(«) 
 
 § 549. In the first case cited, in answer to the objec- 
 tion, that a particular construction of a statute would be 
 inconvenient, the court say : " When the construction of 
 a statute is doubtful, an argument from inconvenience 
 will have weight. But in that case they held, that the 
 construction of the statute then under consideration was 
 not doubtful, but clear; and hence this rule did not ap- 
 ply. And in the second case cited, (6) it was held, that 
 the argument of inconvenience could have no weight in 
 the construction of a statute, except in doubtful cases. 
 Courts will not construe a statute, so as to admit of an 
 unjust consequence ; hence it is, that no statute shall be 
 so construed as to be against reason, and words are to be 
 taken in a lawful and rightful sense. Mr. Dwarris in 
 his treatise on statutes, says : " It is the office of an ex- 
 position to put such a sense upon the words of the sta- 
 tute as is agreeable to equity and right reason,(c) so that 
 no innocent person shall receive any damage by a literal 
 construction. Where a statute will bear two interpre- 
 tations, one contrary to plain sense, the other agreeable 
 to it, the latter shall prevail, (e/) If words literally un- 
 derstood, bear only a very absurd signification, it is ne- 
 cessary to deviate a little from the primary sense." 
 
 (a) Langdon v. Potter, 3 Mass. R. 221 ; Gore v. Brazier, 3 Mass. R. 539 ; 
 The People v. Green, 2 Wend. R. 277 ; 19 Vin. 521, sec. 93 ; 3 Mass. 221 ; 
 Ayers v. Knox, 7 Mass. 306 to 310. 
 
 (b) 3 Mass R. 539. 
 
 (c) I Inst. 381. 
 
 (d) 8 Rep. 118.
 
 CHAP. XII.] AND CONSTRUCTION. GD5 
 
 Blackstone admits, that if out of acts of parliament there 
 arise collaterally any absurd consequences, manifestly 
 contradictory to common reason, such acts are, with re- 
 gard to these collateral consequences void ; such cases 
 are indeed excepted out of the statute by common sense, 
 and the nonsensical words are said to be controlled by 
 the "common law. We have heretofore shown how this 
 opinion of Blackstone was considered by Christian, and 
 what is to be understood by such acts being controllable 
 at common law. 
 
 § 550. It was held, (a) that where the literal interpre- 
 tation of a statute would lead to a gross absurdity of re- 
 striction, the court would extend its application to cases 
 within the same equity, though at the expense of forcing 
 the construction of the words. It is said, (b) in doubtful 
 cases, if by giving a literal construction to a statute it 
 will be the means of producing great injustice, and lead 
 to consequences that could not have been contemplated 
 by the legislature, courts are bound to presume that the 
 legislature intended no such consequence, and give such 
 a construction as will promote the ends of justice. (c) 
 
 § 551. In another case, (7/) the court in reviewing the 
 argument that a particular construction would be at- 
 tended with great inconvenience, say : " The argument 
 from inconvenience, may have considerable weight upon 
 a question of construction, where the language is doubt- 
 ful. It is not to be presumed upon doubtful language, 
 that the legislature intended to establish a rule of action 
 which would be attended with inconvenience. But 
 where the language is clear, and where of course the 
 intent is manifest, the court is not at liberty to be gov- 
 
 (a) Henry v. Tilson, 17 Vt. R. 479. 
 
 (b) Bryan v. Buckmaster, Bre. app. 21. 
 
 (c) See Gilman's Dig. 187, sec. 5. 
 
 (rf) Putnam v. Langley, 11 Pick. 190.
 
 696 OF INTERPRETATION [cHAP. XII. 
 
 erncd by considerations of inconvenience." Chief Justice 
 Marshall says : " It is true, that where great inconven- 
 ience will result from a particular construction, that 
 construction is to be avoided, unless the meaning of the 
 legislature be plain, in which case it must be obeyed. "(rt) 
 
 § 552. In the case of The People v. Canal Commis- 
 sioners, (V) it was held, that if it were apparent, that by 
 a particular construction of a law in a doubtful case, 
 such construction would be likely to endanger, or to ac- 
 tually sacrifice great public interests, it would not, and 
 ought not, to be intended, that such a construction was 
 contemplated by the legislature, in disregard of such in- 
 terests. That it was not for the court to determine, 
 whether an act of the legislature was impolitic or un- 
 wise, but its province was to ascertain its just, reason- 
 able, and true construction, and when that was satisfac- 
 torily ascertained, it had but to pronounce the conclusion 
 at which it had arrived. It was a rule of the civil law 
 whenever the meaning of the law was plain and manifest, 
 although courts could not readily perceive its motives, 
 and there might seem to arise some apparent inconven- 
 ience which could not be avoided by a reasonable inter- 
 pretation, they would always presume, that the law had 
 its usefulness, and that it is founded in some view of the 
 public good, which gave preference to its sense and au- 
 thority over the inconvenience that might be arrayed 
 against it, otherwise, many valuable and well established 
 laws might be subverted and overthrown by subtlety of 
 reasoning.(c) 
 
 § 553. The cases above cited are sufficiently clear and 
 explicit as to the rule itself, and the manner and caution 
 
 (a) 2 Cranch, 386. 
 
 (b) 3 Scam. R. 1G0. 
 
 (c) Domat's Civil Law, prel. b. tit. i. sec. 2, p. 13.
 
 CHAP. XII.] AND CONSTRUCTION. G97 
 
 with which it is applied by courts. At all times the 
 court keep in view in this case, as in all others, the 
 manifest intent of the legislature when that intent is 
 clear and explicit, even at the expense of the dictates of 
 sound reason and natural justice, unless the injustice of 
 a particular construction is such as that it cannot be ad- 
 mitted without conflict with some fundamental principle 
 of govermental policy, and the unreasonableness of it is 
 so manifest as to repel the idea that the legislature could 
 have intended to sanction it. 
 
 § 551. The rule has been laid down thus : " Where 
 the meaning of a statute is doubtful, the consequences 
 may be considered ;" but where the meaning is plain, no 
 consequences are to be regarded in the interpretation, 
 for this would be assuming legislative authority. (a) " The 
 consequences are to be considered, for the court will not 
 so construe an act of parliament as to admit of any ab- 
 surd consequences. No statute shall be construed in 
 such a manner as to be inconvenient or against reason, 
 " words are to be taken in a lawful and rightful sense," 
 as where the words were " where no fine is levied in the 
 king's court," they are to be understood as fines levied 
 by the husband and wife, which is lawful, and not as 
 fines levied by the husband alone, which would work a 
 wrong to the wife ; and the general rule is, quod non 
 iwcestat impedimentum, quod dc jure non sortitur affec- 
 tum "(b) 
 
 § 555. Statutes are divided into six parts. The 
 parts of a statute in a popular sense are, — the title, pre- 
 amble, purview or body of the act, clauses, provisos, ex- 
 ceptions. We shall in the next place consider the effect 
 those parts are to have in the construction of statutes. 
 We will consider each in the order above laid down. 
 
 (a) 10 Mod. 344. (b) Co. Litt. 381, b. ; Stev. L. E. 23. 
 
 88
 
 G98 OF INTERPRETATION [CHAP. Xli. 
 
 § 556. For the purpose of ascertaining the intention 
 of the legislature in certain cases, and under great stress 
 of doubt, resort may be had to the title of a statute. It 
 has been held that the title is no part of the statute, for 
 the reason that in England it is usually framed by the 
 clerk of the house in which it is first passed, and is sel- 
 dom read more than once. (a) This reason does not 
 hold good in this country, for here the legislature make 
 the title as well as the preamble and body of the statute ; 
 still however, here, as in England, the title is not in- 
 tended to be, nor is it considered, as part of the enacted 
 law, and is introduced merely as a name. The title of 
 statute is but a new usage, and began about the 11th 
 Henry VII. (6) Holt, Ch. J., says, " It is true, that the 
 title of an act of parliament is no part of the law or en- 
 acting part, no more than the title of a book is a part of 
 the book, for the title is not the law, but the name, or 
 description given to it by the makers.(c) For this reason 
 it was formerly held, that the title was not to be regard- 
 ed in the construction ;(ci) hence, in Chance v. Adams,(e) 
 it was said, that as the title was no part of the act, it 
 was mere surplusage, and a misrecital should not viti- 
 ate, and it was so adjudged in the case in the house of 
 peers, between Darwyn and the EaH of Monmouth. Al- 
 though the title is a very unsafe guide to assist the mind 
 in ascertaining, even in a general way, the scope or pur- 
 port of the act ;(/) yet, when the mind labors to discover 
 the intention of the legislature, it seizes upon every thing, 
 even the title, from which aid may be derived. 
 
 (a) 1 W. Blacks. R. 95. 
 
 (b) Per Treby, J., Hard. 324. 
 
 (c) Rex v. Williams, 1 W. Bl. 95. See also Poulters case, 3 Rep. 33. 
 Barrington on Statutes, 449, in note. 
 
 (d) Bac. Abr. tit. Statute, I. 
 (c) 1 Lord Raymond, 77. 
 (/) 6 Mod. G2.
 
 CHAP. XII.] AND CONSTRUCTION. 699 
 
 § 557. In the case of The United Slates v. Fisher, (a) 
 the court remarked. " On the influence which the title 
 ought to have in construing the enacting clause, much 
 has been said, and yet it is not easy to discover the 
 points of difference between the opposing counsel in this 
 respect ; neither party contends that the title of an act 
 can control plain words in the body of the statute, and 
 neither denies, that taken with other parts, it may as- 
 sist in removing ambiguities. Where the intent is plain, 
 nothing is left to construction. Where the mind labors 
 to discover the design of the legislature, it seems every 
 thing from which aid can be derived may be resorted to ; 
 and in such cases, the title claims a degree of notice, 
 and will have its due share of consideration." It may, 
 in some cases, be a key which opens to the mind the 
 general scope and import of the act, or the inducements 
 which led to the enactment, and thus point to the polar 
 star of construction, that is, the intention of the law- 
 makers, which has always been held as the only true 
 guide in the construction of all statutes. But as the title 
 is usually drawn without much deliberation, unless it 
 points with great precision to the object and scope of the 
 act, it must always be regarded as a very unsafe and 
 unsatisfactory expositor of a law. It is seldom that it 
 alludes to the subject-matter of the act, and even in cases 
 where it does so, it is in general and sweeping terms, 
 embracing within its scope not more than one or two 
 of the multifarious matters to which the enacting part 
 extends, and it will be found in almost all cases, that the 
 enacting part goes much beyond either the title or pre- 
 amble, and it must, as has already been remarked, be 
 resorted to only in those cases where there is great stress 
 of doubt as to the intention of the legislature, and is no 
 
 (a) 2 Cranch R. 386.
 
 700 OF INTERPRETATION [CHAP. XII. 
 
 farther to be relied on, than it serves when taken into 
 consideration with the enacting part, to complete the 
 chain by which the mind may be drawn to a conclusion 
 on the great question of the real intent and design of the 
 act.(«) 
 
 § 558. It is said, in a note to the Philadelphia edition 
 of Bacon on Abridgment, " But in the more ancient sta- 
 tutes, which are penned with less precision and detail, 
 the title is often material, as in the statute 4 Edw. 3, c. 7, 
 giving a remedy to executor for certain trespasses, and 7 
 East R. 132-4, is referred to as an authority on that point." 
 The case referred to, however, is not an adjudication to 
 that effect. However it may be in England, it has been 
 held in this country the title may in some instances claim 
 some degree of notice. 
 
 § 559. In the case of United States v. Palmer ,(b) it is 
 said that the title of an act cannot control its words, but 
 may furnish some aid in showing what was in the mind 
 of the legislature ; and in that case the title was resorted 
 to by Chief Justice Marshall, in the determination of 
 what crimes were intended to be included in an act of 
 Congress. Other cases have held that the title of an act 
 may be resorted to, to aid in the interpretation. (c) It is 
 now the constant practice, in courts of justice, for both 
 the counsel and the court, in examining a statute of 
 doubtful import and meaning, to refer to the title in aid 
 of a particular construction. 
 
 § 560. The Preamble. — In England, and in some of 
 the states of this Union, it has been and still is the prac- 
 tice to preface statutes with a preamble which was at 
 one time supposed to contain the motive and induce- 
 
 (a) 1 Kent's Com. 464 ; 3 East, 165. 
 
 (b) 3 Wheat. 610. 
 
 (c) State v. Stephenson, 2 Bailey, 334 ; Burgett v. Burgett, 1 Ham. 219.
 
 CHAP. XII.] AND CONSTRUCTION. 701 
 
 ments of the legislature in passing the act. This, as 
 well as the title, forms no part of the enacted law, and 
 is meant merely as a declaration of the mischief intend- 
 ed to be remedied, sometimes pointing to the defects in 
 the existing law, and the manner of the remedy. 
 
 § 561. The preamble may be compared with the dif- 
 ferent clauses of the act, to collect the intention of the 
 legislature, and where the intention is apparent, not to 
 extend the act. The preamble may be used in restraint 
 of the general enacting clause, where it would be incon- 
 venient if not restrained, or it may be resorted to in ex- 
 planation of the enacting clause, if it be doubtful. (a) In 
 one case in England, the preamble of an act of parlia- 
 ment, reciting that certain outrages had been committed 
 in particular parts of the kingdom, was adjudged by the 
 court of king's bench to be admissible in evidence, for 
 the purpose of proving an introductory averment in an 
 indictment for a libel ; that outrages of that description 
 had existed, for the reason that where an act was passed, 
 it was, in contemplation of law, the act of the whole 
 body of the kingdom. (6) 
 
 § 562. Although the preamble has been held to form 
 no part of the statute or enactment,(c) yet in doubtful 
 cases resort has been had to the preamble, as well as the 
 title, for the purpose of discovering the inducement the 
 legislature had to make the law, and the true intent and 
 meaning of the legislature in its enactment. (d) But 
 where the terms of an enacting clause are clear and un- 
 ambiguous, neither the preamble nor any thing else 
 
 (a) Per Buller, J., Crespigny v. Wittenoom, 4 T. R. 793. See also 4 
 last. 330 ; Rex v. Marks, 3 East R. 165 ; Harg. & Butler's Notes on Co. 
 Litt. 70, a ; Mace v. Cammell, Lofft, 783. , 
 
 (6) Rex v. Sutton, 4 M. & S. 532. 
 
 (c) Mills v. Wilkins, 6 Mod. 62 ; 3 Scam. 465. 
 
 (d) Edwards v. Pope, 3 Scam. 465.
 
 702 OF INTERPRETATION [CHAP. XII. 
 
 should be resorted to. It is said.(a) " That though the 
 preamble be generally a key to the statute, yet it does 
 not always open all parts of it; but sometimes the legis- 
 lature, having a particular mischief in view, to prevent 
 which was the first and immediate object of the statute, 
 recite that in the preamble, and then go on in the body 
 of the act to provide a remedy for general mischiefs of 
 the same nature, but of different species, not expressed 
 in the preamble, nor perhaps then in contemplation. 
 
 § 563. Lord Coke considered the preamble of a sta- 
 tute as a key to open the understanding of the statute, 
 and a good means of collecting the intention and show- 
 ing the mischiefs which the makers of the act intended 
 to remedy, and Lord Bacon has said that it is in general 
 true that the preamble of a statute is a key to open the 
 minds of the makers as to the mischiefs which were in- 
 tended to be remedied by the statute, and was a maxim 
 of the civilians " cessantc leges, proannio cessat est ipsa 
 lex" But it has been very justly said, if the preamble 
 to a statute be a key to its construction, it is to be la- 
 mented that it so seldom states the real occasion of the 
 law, and the views of the proposers of it ; and every 
 English lawyer is aware how seldom, at least in the 
 older statute, the key unlocks the casket." 
 
 § 564. It is nothing unusual in an act of parliament in 
 England, or a statute in this country, for the enacting 
 part to go beyond the preamble, and the remedy often 
 extends beyond the particular act or mischief which sug- 
 gested the necessity of the law ; and it is not unfrequent 
 that the preamble is merely introductory to the first sec- 
 tion of the act, and has no application or reference to 
 other sections or parts of the act.(6) 
 
 (a) Mace v. Cammell, Lofft, 782. 
 
 (b) Holbrook v. Holbrook, 1 Pick. 251.
 
 CHAP. XII.] AND CONSTRUCTION. 703 
 
 § 565. In the case of The King v. Marks et al.,(a) the 
 
 defendant was committed under a warrant, charged with 
 felony in aiding and assisting, and being present at and 
 consenting to the administering and taking an oath or 
 engagement to certain persons named, contrary to the 
 statute 37 Geo. 3, c. 123. The preamble to the act only 
 recited certain mischiefs which had arisen from persons 
 attempting to seduce soldiers, sailors and others from 
 their duty and allegiance to the king, and to incite them 
 to mutiny and sedition, to give effect to which, they had 
 imposed pretended oaths upon them. But the body of 
 the act enacted, " That any person or persons who shall 
 in any manner or form whatsoever administer, or cause 
 to be administered, or be aiding or assisting at, or pre- 
 sent at, or consenting to the administering or taking of 
 any oath or engagement purporting or intending to bind 
 the person taking the same, to engage in any mutinous 
 or seditious purpose, or to disturb the public peace, or to 
 be of any association, society or confederacy formed for 
 any such purpose, or to obey the order or command of 
 any committee or body of men not lawfully constituted, 
 or of any leader, or commander, or other person not hav- 
 ing authority by law for that purpose, or not to inform 
 or give evidence against any associate, confederate or 
 other persons, or not to reveal or discover any illegal 
 oath done or to be done, or not to reveal or discover any 
 engagement which may have been administered or ten- 
 dered to, or whom by, such person or persons, or to, or 
 by, any other person, or the import of any such oath or 
 engagement, shall, on conviction by due course of law, 
 be adjudged guilty of felony." A motion was made to 
 bail the defendant, on the ground of the insufficiency of 
 the warrant, and it was insisted that the words of the 
 
 (a) 3 East R. 165.
 
 704 OF INTERPRETATION [CHAP. XII. 
 
 statute relied on, however large in themselves, must be 
 confined to the object stated in the preamble, to wit, the 
 administering of unlawful oaths for the purposes of mu- 
 tiny or sedition. Lord Ellenborough said, that " the 
 facts disclosed did charge the defendant with an offence 
 within the statute. It certainly does appear, from the 
 preamble of the act, as if it were mainly directed against 
 combinations for purposes of mutiny and sedition, but 
 there are words sufficient in the enacting part to satisfy 
 the preamble, and after dealing with offences of that de- 
 scription, the act goes on in much more extensive 
 terms, and embraces other more general objects ; and as 
 there is no word of reference in the latter part as such, 
 which is to be found in the former part of the clause, I 
 see no reason for restraining the common import of the 
 words used, which extend to all illegal associations and 
 combinations of men, in respect of which oaths of the 
 nature described in the act are administered. From 
 a view of the whole scope of the act, it appears to me 
 highly probable that this is a case which will be found 
 within the true spirit as well as the letter of it." Lord 
 Hardwicke(a) says, "there are many cases where the 
 enacting part of the statute extends further than the pre- 
 amble even in criminal matters, as in an act made in 33 
 Hen. 8, c. 23, for trying treason and murders, where the 
 words being within the king's dominion or without it, have 
 been extended to trials in the West Indies, and persons 
 have been tried and executed." 
 
 § 566. Mr. Barrington, in his Treatise on Statutes, has 
 shown • in numerous instances, that a statute frequently 
 recites what in truth is not the real occasion of the law, 
 such as that doubts have arisen at common law, which 
 frequently never had existed. It will readily be per- 
 
 (a) Kinaston v. Clarke, 2 Atk. 205.
 
 chap, xii.] a:sd construction. 7C5 
 
 ceived what great uncertainty there is, as to the accuracy 
 of recitals contained in the preambles to statutes, and 
 how little reliance can be placed upon those preambles 
 in seeking out the intention of the legislature, and (hat 
 the true meaning of a statute must generally be sought 
 from the purview or body of the act. For it is undoubt- 
 edly true, that the preamble is never no more than a 
 recital of some inconveniences or mischiefs, at which 
 the act is levelled, which by no means excludes any 
 other for which a remedy is given in the enacting part 
 of the statute, and the rule is established authoritively, 
 that where the words in the enacting part are strong 
 enough to take in the mischief intended to be prevented, 
 they should be extended for that purpose, although the 
 preamble does not name the particular mischief. 
 
 § 567. It is said, general words in the enacting part 
 shall never be restrained by any words introducing that 
 part ; for it is no rule in the exposition of statutes to 
 confine the general words of the enacting part to any 
 particular words either introducing it, or to any such 
 words even in the preamble itself.(«) It is true Lord 
 Coke commends a construction which agrees with the 
 preamble, but not such as may confine the enacting part 
 to it. Lord Chancellor Cowper(6) says : " I can by no 
 means allow of the notion, that the preamble shall re- 
 strain the operation of the enacting clause, because the 
 preamble is too narrow or defective, therefore the enact- 
 ing clause, which is in general words, shall be restrained 
 in its full latitude, and from doing that good which the 
 words would otherwise of themselves import,' 7 and he in- 
 stanced, by way of illustrating the absurdity of a different 
 rule, the Coventry act, 23 Car. 2, c. 1, which if it had 
 
 (a) The King v. Athos, 8 Mod. 144. 
 (b) Copeman v. Gallant, 1 P. Wm. R. 320. 
 
 89
 
 706 OF INTERPRETATION [CHAP. XII. 
 
 recited the barbarity of cutting Coventry's nose, and the 
 enacting clause had been general, viz. against the cutting 
 of any member whereby the man is disfigured or defaced, 
 it might with equal reason be objected, that cutting of 
 the lips or putting out the eye would not have been 
 within the act because not within the preamble. (a) 
 
 § 568. But other cases have held, that the enacting 
 clause may be restrained by the preamble, when no in- 
 convenience will be sustained by such construction, oth- 
 erwise not. (6) This seems rather an exception to the 
 general rule. There is also another class of cases which 
 are also exceptions to the general rule, and in which the 
 converse of the above exception is also laid down, to wit, 
 that if the not restraining the generality of the enacting 
 clause will be attended with inconvenience, the pre- 
 amble shall restrain it.(c) Lord Chief Baron Parker in 
 jRyall v. Rolle,{d) says: "I admit, in many cases, the 
 preamble will not restrain the general purview, as in 1 
 Jones, 163, Pal. 485, but it is a rule, and so agreed there, 
 that where the not restraining the generality of the ex- 
 acting clause will be attended with inconvenience it 
 shall restrain, and here would be inconvenience if not 
 restrained." 
 
 § 569. Ch. J. Willes says,(e) " if the words of an act of 
 parliament be doubtful, it may be proper to have recourse 
 to the preamble, to find out the meaning of the legisla- 
 ture, but where the words of the enacting part are plain 
 and express, I do not think that they ought to be re- 
 strained by the preamble, for the preamble may only 
 
 (a) See also Gaunt v. Brockman, Hardin, 335. 
 
 (b) Seidenbendcr v. Charles, 4 S. & R. 166 ; Kent v. Somerville, 7 Gill & 
 John. 266. 
 
 (c) Ryall v. Rolle, 1 Atk. 174. 
 
 (d) 1 Atk. 174, also reported in 1 Vesey, sen. 365. 
 
 (e) Copeman v. Gallant, 1 P. Wms. R. 320.
 
 CHAP. XII.] AND CONSTRUCTIOX. 1 07 
 
 recite some particular mischiefs which have happened, 
 but the enacting clause may not only be calculated to 
 prevent those mischiefs but also others of a like nature." 
 
 § 570. Mr. Justice Wild(u) says : " This is undoubt- 
 edly true, and might be demonstrated by reference to 
 very many statutes, in which it will be found that the 
 preamble states imperfectly the views of the legislature, 
 and can afford but little aid in the construction of the 
 enacting parts." 
 
 § 571. Mr. Justice Thompson laid down the rule thus : 
 " It is in general true, that the preamble of a statute is a 
 key to open the mind as to the mischiefs which were 
 intended to be remedied by the statute. This rule must 
 not however be carried so far as to restrain the general 
 words of the enacting clause." Although the preamble 
 cannot control the enacting part of a statute, which is 
 expressed in clear and unambiguous terms, yet if any 
 doubt arises on the words of the enacting part, the pre- 
 amble may be resorted to to explain it.(6) Parker, Ch. 
 Justice,(c) lays down the rule, that it is right and proper 
 to consider the whole of a statute and preamble, and the 
 probable intention of the legislature, in order to ascertain 
 the meaning of any particular section; and that this 
 mode of interpretation is justifiable, even where the 
 words of the section may be unambiguous. If one sec- 
 tion, however explicit in its terms, if taken literally, 
 would contravene the general object of the statute, it 
 should be restrained so as to conform to that object. In 
 a case where the question was, whether the act of 1784, 
 cutting down estates tail, included such estates created 
 by deed as well as by devise, it was held it did. Ch. J. 
 Hornblower said, "they are within the title of the act, 
 
 (a) Holbrook v. Holbrook, 1 Pick. 251. 
 
 (b) See also Kent v. So7?ierville, 7 Gill & John. "203. 
 
 (c) Holbrook v. Holbrook, 1 Pick. 257.
 
 708 OF INTERPRETATION [CHAP. XII. 
 
 and though the preamble has a different aspect, and looks 
 only to devises, yet the act itself is not to be restrained 
 by that. It is, nevertheless, an appropriate preamble to 
 two branches of the statute and not inconsistent with 
 the third subject of its enactment. When a statute is 
 in itself ambiguous and difficult of interpretation, the 
 preamble may be resorted to, but not to create a doubt 
 or uncertainty which otherwise does not exist." 
 
 § 572. If the words of an enacting clause give a clear 
 and definite remedy for the grievance recited in the pre- 
 amble, their import cannot be enlarged so as to include 
 another remedy, although the words of the preamble 
 would seem intended to introduce a more extensive re- 
 medy. Thus although the statute 3 W. & M. c. 14, for 
 relief of creditors against fraudulent devises, seems to 
 allude to all specialty debts, and although the second 
 section, in general terms, makes void wills of land, &c, 
 against specialty creditors, yet as the specific remedy 
 given by sec. 3, is an action of debt on such bonds aud 
 specialties against the heir and devisee ; it was held, 
 that an action of covenant would not lie against a devisee 
 for a breach of covenant by the devisor, but that the re- 
 medy was confined to cases where debt lies. (a) This 
 rule proceeds upon the principle, that general expressions 
 may be restrained by subsequent particular words, which 
 show that in the intention of the legislatere those gene- 
 ral expressions are used in a particular sense, and that 
 under this principle the latter words describing the re- 
 medy, imply a restriction on the general words which 
 precede them. (6) 
 
 § 573. In support of the general doctrine that the pre- 
 amble of an act, though it may assist ambiguous words, 
 
 (a) Bac. Abr. Statute, I. ; Wilson v. Knubley, 7 East, 128. 
 
 (b) Adams v. Wood, 2 Cranch, 336.
 
 CHAP. XII.] AND CONSTRUCTION. 709 
 
 cannot control a clear and express enactment, there are 
 numerous decisions. Thus under the statute of England 
 respecting legacies to subscribing witnesses to wills ; the 
 preamble of the statute slates a doubt, which applied 
 only to wills of land; who were to be deemed legal wit- 
 nesses within the statute of frauds, and for the purpose 
 of avoiding that doubt the statute was professedly made. 
 But then, as the enacting part went beyond that object, 
 and applied to witnesses attesting the execution not only 
 of wills of real estate, but also of u any will or codicil," 
 it was held, that as in these words, there was not any 
 ambiguity, they clearly applied to every will and co- 
 dicil. The preamble, although it might assist the con- 
 struction of ambiguous words, could not control this 
 clear and express enactment, and that the statute ap- 
 plied to wills of personalty also. (a) The true rule on 
 this subject, deduced from all the authorities, is, that the 
 preamble may be resorted to in restraint of the general 
 words of the enacting clause, when it would be incon- 
 venient when not thus restrained, or when no partic- 
 ular inconvenience would result from bavins: it thus 
 restrained. And the preamble may also be resorted to 
 in explanation of the enacting clause, or as a key to its 
 construction when the intent is doubtful ; but it cannot 
 control the enacting clause when expressed in clear and 
 unambiguous terms. 
 
 § 574. The true meaning of a statute is generally and 
 most properly sought for and ascertained from the pur- 
 view and body of the act;(6) that is in construing the 
 words and collecting from them the intention of the 
 legislature, regard must always be had to the subject- 
 matter. As illustrative of the application of this rule, 
 
 (a) Lees v. Sammersgill, 17 Ves. 510. 
 
 (b) Strode v. The Stafford Justices, 1 Brock. 162.
 
 710 OF INTERPRETATION [CHAP. XII. 
 
 suppose a statute use the word maintenance, now this 
 word, abstractedly considered, is in itself equivocal ; but 
 suppose we find the act in which it is used directed 
 against the encouragement of litigation, and the uphold- 
 ing parties to suits, keeping in mind the purview of the 
 act, we at once perceive what was designed to be pre- 
 vented, or in other words, discover what was intended 
 by the act. We have in another place stated the civil 
 law rule on this subject, and cited instances illustrative 
 of it.(a) The intent of the legislature is not to be col- 
 lected from any particular expression in any one clause ; 
 but from a general view of the whole of an act ; and if 
 the court find in any particular clause an expression not 
 so large and extensive in its import as those used in 
 other parts of the act, and upon a view of the whole act 
 it can collect from the more large and extensive expres- 
 sions used in other parts the real intention of the legis- 
 lature, it is their duty to give effect to the larger expres- 
 sions.^) 
 
 § 575. Upon all acts of the legislature, such construc- 
 tion should be made as that one clause shall not frus- 
 trate and destroy, but on the contrary, shall explain and 
 support another(c) — sound exposition requiring effect to 
 be given to every significant clause, sentence or word in 
 a statute. In one case where the question was whether 
 a provision in an act was general, or related only to as- 
 saults on revenue officers, qua officers, Buller J. said : 
 u The intention might be collected from other parts of 
 the act. It is fair to infer that the legislature meant to 
 extend the indemnity in the first section to all those 
 cases in which, by the subsequent clause, they gave the 
 right of changing the venue." In this instance, and in 
 
 (a) See sees. 46^, 480, 484, 485, 495. 
 
 (b) Per Best, J., 4 Bingh. 196 ; Dwarris, 703, 704. 
 
 (c) Hard. 344, pi. 1.
 
 CHAP. Xll.] AND CONSTRUCTION. 711 
 
 many others, prior clauses were allowed to be restrained 
 by subsequent clauses in a statute. But where a clause 
 which is separate and substantive itself creates an of- 
 fence, the court may give judgment for that offence as a 
 misdemeanor, notwithstanding there may be another sec- 
 tion in the same statute giving a specific punishment. (a) 
 This principle is illustrated in another place. 
 
 § 576. In construing a doubtful clause in a statute, it 
 will often be a question whether a clause be a substan- 
 tive, independent clause, or only a qualification of an an- 
 tecedent clause. It is difficult to lay down any precise 
 general rule applicable to all such cases. Where, how- 
 ever, a section is by way of proviso, it can only be con- 
 sidered as a clause dependent on a former clause, unless 
 the manifest intention of the legislature require a differ- 
 ent construction. (6) 
 
 § 577. A saving must be of a thing in esse. The na- 
 ture of a saving is to preserve a former right, and not to 
 give or create a new one. We have remarked in ano- 
 ther place that it may restrain and qualify the purview, 
 but was never allowed to overturn it.(c) When words 
 are at the beginning of a sentence, they may govern the 
 whole as nullus liber komo.(d) When words are at the 
 end of a sentence, they refer to the whole. (e) Thus the 
 words per legem tcrroe, in c. 29 of Magna Charta, being 
 towards the end of the chapter, have always been held 
 to refer to all the precedent matter. (/) But if words 
 are in the middle of a sentence, and sensibly apply to a 
 particular branch of it, can they be extended to that 
 
 (a) Rex v. Harris, 4 T. R. 202. See Rex v. Robinson, 2 Burr. 799. 
 (6) 1 Stev. Elec. L. 23. 
 
 (c) 2 Inst. 32. 
 
 (d) In Mag. Char. 
 
 (e) 2 Inst. 50. 
 
 (/) 1 Stev. Elec. L. 21.
 
 712 OF INTERPRETATION [CHAP. Xll. 
 
 which follows ] Agreeable to reason, and in grammati- 
 cal construction, it should seem not ; but as statutes are 
 read without breaks and stops, it is not at any time clear 
 that words belong to any particular branch of a sen- 
 tence ; it must be collected from the context to what 
 they relate, and they are often to be read distributively 
 — reddendo singula singulis.(a) 
 
 § 578. A proviso is something engrafted upon a prece- 
 ding enactment.(6) It was held by all the barons of the 
 exchequer, that where the proviso of an act was directly 
 repugnant to the purview of it, the proviso should stand 
 and be held a repeal of the purview, because it was said 
 it speaks the last intention of the lawgiver. It was com- 
 pared to a will in which the latter part, if inconsistent 
 with the former, supersedes and revokes it.(c) 
 
 § 579. There is a known distinction in the law be- 
 tween an exception in the purview of an act and a pro- 
 viso, which should be noted. If there be an exception 
 in the enacting clause of a statute, it must be negatived 
 in pleading ; a separate proviso need not.(d) The rule 
 is, that any man who will bring an action for a penalty 
 on an act of parliament, must show himself entitled un- 
 der 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 him from the penalty, (e) 
 Buller J. says : " I do not know of 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.(/) Lord Mansfield has 
 
 (a) See Dwarris, 704 ; 1 Stev. Elec. L. 21. 
 (/;) Rex v. Taunton St. James, 9 B. & C. 835. 
 
 (c) The Attorney General v. Governor and Company of Chelsea Water 
 Works, Fitz. 195 ; Bac. Ab. Tit. Statute. 
 
 (d) Dwarris, 661. 
 
 (e) Spiers v. Parker, 1 T. R. 141 ; 8 T. R. 542. 
 (/) 8 T. R. 542.
 
 CHAP. XII.] AMJ CONSTRUCTION. "i 13 
 
 said : " What comes by way of proviso in a statute 
 must be insisted on, by way of defence, by the party ac- 
 cused ; but where exceptions are in the enacting part of 
 the law, it must appear in the charge that the defendant 
 does not fall within any of them. "(a) 
 
 § 580. Where a statute delegates an authority to a 
 particular person or to a particular class of persons, 
 where it is evident that a personal trust or confidence is 
 reposed in those persons, and especially where the ex- 
 ercise and application of the power is made subject to 
 his or their discretion or judgment, the authority is 
 purely personal, and cannot be delegated to another un- 
 less there be a special power of substitution. Such is 
 the rule in relation to powers created by deed or will, 
 a fortiori it is so, where the authority is conferred by an 
 act of the legislature. It has accordingly been held that 
 where authority was conferred upon the canal commis- 
 sioners to enter upon and take the property of individu- 
 als for the construction of a canal, that this power could 
 only be executed by them in person or under their ex- 
 press directions ; and that an engineer, or any other sub- 
 agent, could not lawfully exercise such power but by the 
 express direction of the canal commissioners, or one of 
 them, although such engineer had been entrusted with 
 the superintendence of the construction of the canal in 
 the vicinity.(6) 
 
 § 581. The general rule is, that where a statute gives 
 authority to one person expressly, all others are ex- 
 cluded. (c) This rule seems founded upon the principle 
 that a special power is always to be construed strictly. 
 Thus, where an act of parliament gave power to " two 
 parties finally to hear and determine an oflfence," it is 
 
 (a) Fost. 430 ; East P. C. 167. 
 
 {b) Lyon v. Jerome, 26 Wend. R. 485. See also 11 Rep. 61. 
 
 (c) 11 Rep. 59, 64. 
 
 90
 
 714 OF INTERPRETATION [CHAP. XII. 
 
 necessarily supposed that they shall be together, or, 
 which is the same thing, that they shall hold a special 
 session for that purpose. And the same construction ob- 
 tains where they are to do any other judicial act, as to 
 make an order of bastardy, or adjudge the settlement of 
 a poor person. For it is unknown to the laws of En- 
 gland that two persons shall act as judges in the same 
 cause, when at the same time one of them is in one part 
 of the country and the other in another.(a) 
 
 § 582. In this connection, w r e shall proceed to consi- 
 der the construction which has been given to particular 
 words, when used in a statute. First, we shall consider- 
 the rule that obtains under laws imposing duties on 
 goods, or, in other w 7 ords, revenue laws. As these acts 
 are intended for practical use and application by men 
 engaged in commerce, the language adopted by the legis- 
 lature will be interpreted according to the commercial 
 understanding of the terms used. Revenue and duty 
 acts, it should be remarked, 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 favor of 
 private rights and liberty, and 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 intention is ascertained, that 
 and that only is to guide in interpreting such laws. They 
 are not to be strained to reach cases not within their 
 terms, even if it should be conjectured that public pol- 
 icy might have reached certain cases ; nor on the other 
 hand are their terms to be strained so as to exclude ca- 
 ses clearly within them, simply because public feeling 
 might dictate such an exclusion. In Elliot v. Sicart- 
 hout,(b) a question arose under the act of 1832, which, 
 
 {a) Burn's Justice Introduu. 24. (b) 10 Pet. R. 150.
 
 CHAP. XII.] AND CONSTRUCTION. 715 
 
 after imposing a specific duty on a number of enumera- 
 ted articles, the section under which the question arose 
 concluded in these words : " And upon all merino shawls 
 made of wool, or all other manufactures of wool, or of 
 which wool is a component part, and on ready made 
 clothing, fifty per centum ad valorem." A question was 
 made whether worsted shawls with cotton borders, and 
 worsted suspenders with cotton ends or straps, were 
 manufactured of wool, or of which wool was a compo- 
 nent part. It was admitted as a fact, that worsted was 
 made out of wool by combing, but that it became there- 
 by a distinct article, well known in commerce under the 
 denomination of worsted. The court held, that laws 
 imposing duties on importations of goods were intended 
 for practical use and application by men engaged in com- 
 merce, and hence it had become a settled rule, in the in- 
 terpretation of statutes of this description, to construe 
 the language adopted by the legislature, and particularly 
 in the denomination of articles, according to the com- 
 mercial understanding of the terms used. That it being 
 admitted in this case that worsted was a distinct article, 
 well known in commerce under that denomination, they 
 must understand Congress as using the term in that 
 commercial sense, and as contradistinguished from wool 
 and woolen goods, another well known denomination 
 of goods. That the classification of the article in this 
 section, showed that Congress had in view a class of 
 goods known as worsted goods, as contradistinguished 
 from wool, and upon which a different duty was laid ; 
 and they held that the shawls and suspenders were not 
 a manufacture of wool, or of which wool was a compo- 
 nent part. 
 
 § 583. In the case of two hundred chest of tea, (a) it 
 was held that the term " tea" was used in the duty act 
 
 (a) 9 Wheat. 430.
 
 71G OF INTERPRETATION [CHAP. XII. 
 
 in its known commercial sense, and that bokea tea of 
 commerce was not usually a distinct and simple sub- 
 stance, but was a compound made up in China ; it came 
 within the duty act under the general word " teas." The 
 court in that case say : " The object of the duty law is 
 to raise revenue, and for this purpose to class substances 
 according to the general usage and denomination of trade. 
 Whether a particular article was designated by one 
 name or another in the country of its origin, or whether 
 it were a simple or mixed substance, was of no import- 
 ance in the view of the legislature. It applied its atten- 
 tion to the description of articles as they derived their 
 appellation in our own markets, in our domestic as well 
 as our foreign traffic ; and it would have been as danger- 
 ous as useless to attempt any other classification than 
 that derived from the actual business of human life. 
 
 § 584. Under the revenue act of 1816, a duty is laid 
 on " loaf sugar." In one case,(a) it was held that the 
 words "loaf sugar" must be understood according to 
 their general meaning in^rade and commerce, and buy- 
 ing and selling. Mr. Justice Story, in that case, says, 
 " That after all, acts of this nature are to be interpreted, 
 not according to the abstract propriety of language, but 
 according to the known usage of trade 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 a foreign name was well 
 known here, and no different appellation exists in do- 
 mestic use, we must presume that in a commercial law 
 the legislature used the word in the foreign sense. I 
 
 (a) United States v. Breed et al. 1 Sumner, 159.
 
 CHAP. XII.] AM) CONSTRUCTION. 717 
 
 say nothing as to what rule ought to prevail where an 
 article is known by one name among merchants, and by 
 another among manufacturers, or the community at 
 large, in interpreting the legislative meaning in a 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. What then is meant by " loaf sugar" 
 in a commercial sense, by which I mean not merely 
 among merchants, but among buyers and sellers gene- 
 rally in the domestic trade 1 Has it any generally re- 
 ceived uniform meaning '] If it has, then that must be 
 presumed to be the meaning adopted by the legislature. 
 I agree to the law as laid down in the case of the two 
 hundred chests of tea. (a) That case was fully consid- 
 ered, and as deliberately weighed as any which ever 
 came before the court. It was there laid down, that in 
 construing revenue laws, we were to consider the words 
 not as used in their scientific or technical sense, where 
 things were classified according to their scientific cha- 
 racters and properties, but as used in their known and 
 common commercial sense in the foreign and domestic 
 trade. Laws of this kind tax things by their common 
 and usual denomination among the people, and not ac- 
 cording to their denomination among naturalists, or bota- 
 nists, or men of science." 
 
 § 585. It has also been held, that it is a well settled 
 rule of interpretation of laws of this sort, that articles 
 grouped together are to be deemed to be of a kindred 
 nature and of kindred materials, unless there is some- 
 thing in the context which repels that inference. That 
 noscitur a sociis is a well founded maxim, applicable 
 to revenue as well as penal laws. (6) That laws impo- 
 
 (a) 9 Wheat. 430. (5) Adams v. Bancroft, 3 Sum. 386.
 
 718 OF INTERPRETATION [CHAP. XII. 
 
 sing duties are never construed beyond the natural im- 
 port of the language, and duties are never imposed upon 
 the citizen upon doubtful interpretation ; and as 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 used. (a) 
 
 § 586. In the case of The Schooner* Nymph,(b) a ques- 
 tion arose as to the meaning of the word " trade" under 
 the license law, respecting the carrying on business by 
 vessels in certain trades. The vessel in question had 
 been licensed to carry on the cod fishery, and the ques- 
 tion was whether the trade of mackerel fishery could be 
 carried on under such a license, the act having declared 
 that the vessel should be forfeited in the event that any 
 vessel should be employed in any other trade than that 
 for which she was licensed. It was contended, on the 
 part of the claimant, that the word " trade" was here 
 used in its most restricted sense, and was equivalent to 
 traffic in goods, or buying and selling in commerce or 
 exchange. But it was held, that such was not the 
 true sense. The word " trade" was often used, and in- 
 deed generally used in a trade sense, and as equivalent 
 to occupation, employment or business, whether manual 
 or mercantile. That whenever any occupation, employ- 
 ment or business was carried on for the purpose of pro- 
 fit, or gain, or a livelihood, not in the liberal arts, or in 
 the learned professions, it is constantly called a trade. 
 It was used in this sense when we speak of the art, 
 mystery or trade of various mechanics whose trade 
 was carried on without buying or selling goods. The 
 words of this section showed that " trade" must mean 
 something more than mere traffic in goods, or com- 
 mercial buying and selling. The very language implied 
 
 (a) Adams v. Bancroft, 3 Sum. 387. 
 
 (b) 1 Sumner, 516.
 
 CHAP. XII.] AND CONSTRUCTION. 719 
 
 that the vessel was to be licensed for some trade, and 
 that she might engage in another trade. The cases 
 in which licenses were authorized or required were for 
 vessels engaged in the coasting trade, or the whale fish- 
 ery, or cod fishery, and that this section applied to each 
 of them, and hence that each of them were contempla- 
 ted as a " trade" in the sense of the act. The coast- 
 ing trade was not ordinarily a traffic in buying and 
 selling, but a transportation for hire. There was no 
 more difficulty, in propriety of language, in denomi- 
 nating the whale fishery the whale trade, and the cod 
 fishery the cod trade, than in denominating the coast- 
 ing business the coasting trade. Each embraced the 
 same general notion, to wit, employment, occupation, or 
 business for gain alone, in contradistinction to employ- 
 ment for mere pleasure. That it seemed beyond all 
 reasonable doubt that the whole policy of the act would 
 be defeated, and its manifest intention be evaded, by 
 any narrow definition of the word " trade," and hence 
 it must be considered as used in the sense of occupa- 
 tion, employment, or business, and consequently mack- 
 erel fishery was a " trade" within the purview of the 
 act. 
 
 § 587. The words " high seas." The question has 
 frequently arisen under the criminal statutes of the 
 United States, as to the meaning of those words, when 
 used in a statute ; and for the ascertainment thereof re- 
 sort has been had to the technical meaning of these 
 terms at common law, and the same meaning has been 
 attached to them as the words are understood at com- 
 mon law. Blackstone uses the words " high sea," and 
 " main sea," altum mare, or le kaut nicer, as synonymous, 
 and adds, " that the main sea begins at the low water 
 mark." Mr. Justice Story seemed to be of the opinion, 
 that though this might be one sense of the term, to dis- 
 tinguish the divided empire which the admiralty pos-
 
 720 OF INTERPRETATION [CtfAP. XII. 
 
 sesscd between high water and low water mark, when 
 it was full sea, from that which the common law pos- 
 sessed when it is ebb sea ; yet that the more common 
 sense was, to express the open uninclosed ocean, or that 
 portion of the sea which is without the fauces terra, or 
 sea coast, in contradistinction to that which is surround- 
 ed or inclosed between the narrow head lands or pro- 
 montories. (a) 
 
 § 588. Lord Hale says : " The sea is either that which 
 lies within the body of the country or without it. That 
 arm or branch of the sea which lies within the fauces 
 terra, where a man may reasonably discern between 
 shore and shore, is or at least may be within the body 
 of a county, and therefore within the jurisdiction of the 
 sheriff or coroner ;" and he adds, " the part of the sea 
 which lies not within the body of the county is called 
 the main sea or ocean;" dejure mari.{lj) 
 
 § 589. Chief Justice Marshall, (c) seemed inclined to 
 the same interpretation of the words " high seas," in our 
 criminal code. He says : " The words are to be taken 
 according to the common understanding of mankind ; if 
 they be taken in their received and popular sense, the 
 11 high seas," if not in all instances confined to the ocean 
 which washes a coast, can never extend to a river half a 
 mile wide in the interior of a country." 
 
 § 590. It has been held, (cZ) that the words " high seas," 
 used in the crimes statute of 1825, ch. 276, sec. 22, meant 
 the uninclosed water of the ocean, or sea coast outside 
 of the fauces terra ; and that where an arm of the sea, 
 or creek, haven, basin or bay, was so narrow that a 
 person standing on one shore could reasonably discern 
 
 (a) United Stales v. Grush, 5 Mason, 298. 
 (6) Ilarg. Tract, ch. 4, p. 10. 
 
 (c) United States v. Millberger, 5 Wheat. 76 to 94. 
 
 (d) United States v. Grush, 5 Mason, 290.
 
 CHAP. XII.] AND CONSTRUCTION. 721 
 
 and distinctly see by the naked eye what was doing on 
 the opposite shore, the waters were within the body of 
 a county, and not part of the " high sea." 
 
 § 591. Lord Hale, following the exact definition given 
 by the books of assizes, 22 Assizes, 93, says : " That is 
 called an arm of the sea where the sea flows and reflows, 
 and so far only as the sea flows and reflows." Both 
 he and Lord Coke, constantly limit the " high seas" 
 to those waters of the ocean which are without the 
 boundary of any county. At the common law nar- 
 row arms of the sea are deemed to be within the boun- 
 dary of some county of the realm. But the waters of 
 the ocean, upon the open sea coasts, are admitted on all 
 sides to be without the limits of any county, and are 
 within the exclusive jurisdiction of the admiralty, up to 
 the high water mark when the tide is full, and are 
 deemed by the crown writers generally as the high sea 
 or main sea. It has been held,(a) that an offence com- 
 mitted in a bay which was entirely land locked, and en- 
 closed by reefs, was not committed on the high seas 
 within the purview of the act of congress of 26th March, 
 1804, ch. 40. In the case of The United States v. Boss,(b) 
 Story, J., held, that the words " high seas," within the 
 true intent and meaning of the act of 30th April, 1790, 
 ch. 9, sec. 8, meant any w r aters on the sea coast which 
 are out of the boundaries of low water mark, although 
 such waters might be in a roadstead or bay, within the 
 jurisdictional limits of a foreign government. That such 
 was the meaning attached to the phrase by the common 
 law, and supported by the authority of the admiralty to 
 a large extent. 
 
 § 592. Under the statutes of Vermont, relating to 
 legal settlements, a question arose as to the meaning of 
 
 (a) United States v. Robinson, 4 Mason, 307. 
 (A) 1 Gallis. 626. 
 
 91
 
 722 OF INTERPRETATION [CHAP. XII. 
 
 the words " healthy and able bodied persons." It was 
 insisted, that the health and physical ability of the pau- 
 per must be continued and uninterrupted ; that these 
 statutes were to be construed strictly. But it was held, 
 that the health enjoyed by men of health, and the physi- 
 cal ability ordinarily possessed by men of sound bodies, 
 constituted the " healthy and able bodied men," within 
 the meaning of the act, and this, nothwithstanding there 
 might have been a casual or temporary illness, or bodily 
 unsoundness, producing an occasional and temporary 
 effect upon the capacity to labor, (a) 
 
 § 593. The terms " law of the land," have not unfre- 
 quently been used in bills of rights and other fundamen- 
 tal constitutions of a state. This phrase has been 
 adopted from Magna Cfiarta, and as the meaning of 
 these words were well understood as used in that instru- 
 ment, it has been held that they must be considered as 
 used in the same sense in which they were therein used ; 
 and it has been held, that the words used in a state con- 
 stitution, providing that " no subject should be arrested," 
 &c, but by the law of the land, meant the same thing 
 as due process of law ; and that as an arrest, if author- 
 ized by a statute or common law, though without writ 
 or warrant, has always been considered in England as 
 warranted ])er legum terrce — by due process of law, with- 
 in the meaning of Magna Charta ; — an arrest under a 
 statute, or the common law, must be considered an arrest 
 by the law of the land, within the meaning of the con- 
 stitution, (b) 
 
 § 594. Mr. Justice Bronson,(c) commenting on the 
 provision of the constitution of New York, which pro- 
 vides, " No member of this state shall be disfranchised 
 
 (a) The Town of Starskboro v. The Town of Hinesborough, 15 Verm. R. 
 200. 
 
 (/>) Mayo v. Wilson, I N. H. R. 55. 
 (c) Taylor v. Porter, i Hill R. 145.
 
 CHAP. XII.] AND CONSTRUCTION. 723 
 
 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," says, "The words 'by the law 
 of the land,' as here used, do not mean a statute passed 
 for the purpose of working the wrong. That construc- 
 tion 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 legislative power of the 
 state, but no one shall be disfranchised, or be deprived 
 of any of the rights or privileges of a citizen, unless you 
 form a statute for that purpose,' in other words, ' you 
 shall not do the wrong unless you choose to do it.' " The 
 section was taken with some modifications from Magna 
 C/iarta, which provided, that no freeman should be taken 
 or imprisoned, or be disseised of his freehold, &c, but 
 by the lawful judgment of his peers, or by the law of the 
 land. Lord Coke, in his commentaries upon this sta- 
 tute, says, that " these words, ' by the law of the land,' 
 mean by the due course and process of the law," which 
 he afterwards explains to be " by indictment or present- 
 ment of good and lawful men, where such deeds be 
 done in due manner, or by writ original of the common 
 law."(«) In North Carolina and Tennessee, where they 
 have copied almost literally this part of the twenty-ninth 
 chapter of Magna Charta, the terms " law of the land," 
 have received the same construction. (6) " The mean- 
 ing of the section there seems to be, that no member of 
 the state shall be disfranchised or be deprived of any of 
 his rights or privileges, unless the matter shall be ad- 
 judged against him upon trial had, according to the 
 course of the common law. It must be ascertained ju- 
 
 (a) Inst. 45, 50. 
 
 (&) Hoke v. Henderson, 4 Dev. 1 ; Jones v. Perry, 10 Yerger, 59 ; 3 Story 
 orf Const. GG1 ; 2 Kent's Cora. 13.
 
 724 OF INTERPRETATION [CHAP. XII. 
 
 dicially, that he has forfeited his privileges, or that some 
 one else has superior title to the property he possesses, 
 before either of them can be taken from him. It cannot 
 be done by mere legislation." 
 
 § 595. It is a general rule in the construction of sta- 
 tutes, that the word " may," in a public statute, is to be 
 construed " must," in all cases where the legislature mean 
 to impose a positive and absolute duty, and not merely 
 to give a mere discretionary power, but no general rule 
 can be laid down upon this subject, further than that 
 exposition ought to be adopted in this, as in other cases, 
 which will carry into effect the true intent and object of 
 the legislature in the enactment. This principle was 
 recognized in the case of Minor v. The Mechanics Bank 
 of Alexandria, (ci) The charter in that case provided, 
 that the capital stock of the corporation may consist of 
 $500,000, divided into shares, &c, and shall be paid in 
 manner following : — that is to say, one dollar on each 
 share at the time of subscribing, and one dollar on each 
 share at sixty days, and one dollar on each share ninety 
 days after subscribing, and the remainder to be called 
 for as the president and directors may deem proper, &c. 
 It was contended that " may," in this section, meant 
 must. The court held that it did not ; after stating the 
 rule as above laid down, they held that the ordinary 
 meaning of the language must be presumed to be intend- 
 ed, unless it would manifestly defeat the object of the 
 provision. The court could not say that there was 
 any leading object in this charter which would be de- 
 feated by construing the word " may" in its common 
 sense, as importing a power to extend the capital stock 
 to $500,000, and not an obligation that it should be that 
 sum and none other. In answer to the argument, that 
 
 (a) 1 Peters R. 64.
 
 CHAP. XII.] AND CONSTRUCTION. 725 
 
 public policy required such an imperative construction 
 of the clause for the public security, it was held a suffi- 
 cient answer, that no such public policy was avowed, 
 nor could it be inferred from the general terms of the 
 act. When the legislature intended to restrict the 
 capital stock of a bank, or require any portion of stock 
 in a stockholder to be indispensable to its legal existence, 
 and operation, it was not uncommon to incorporate such 
 a restriction in the charter. The omission to do so, 
 was quite significant, that the legislature did not deem 
 such a restriction subservient to any. manifest public 
 policy. The court could not perceive any clear legis- 
 lative intention to make the subscription of the whole 
 capital stock a condition precedent to the corporate ex- 
 istence of the bank. 
 
 § 596. In another case,(«) one point presented was, 
 whether the plaintiffs w r ere bound by an act of the legis- 
 lature, passed in 1815, to remove their gate from the 
 Walkill bridge. The words of the act were, " That it 
 shall and may be lawful for the president, directors, and 
 company to remove the toll gate, &c." Chancellor Kent 
 held, that the statute was not imperative, but that it left 
 it at the discretion of the company to remove the gate 
 or not, and he considered the true rule of construction 
 applicable to statutes in such cases to be, that the word 
 " may" means must, or shall, only in cases where the 
 public interest and rights are concerned, and where the 
 public or third persons have a claim dc jure that the 
 power should be exercised. 
 
 § 597. In another case,(6) under a statute which pro- 
 vided, " That if any person hath died, or shall die, leav- 
 ing several persons, his or her heirs, either in the same 
 
 (a) The Newburgh Turnpike Co. v. Miller, 5 J. C. R. 112. 
 
 (b) Malcom v. Rogers, 5 Cow. R. 188.
 
 726 OF INTERPRETATION [CHAP. XII. 
 
 degree or different degrees, all .such heirs shall or may 
 recover in one suit," &c, a question arose whether all 
 such tenants in common were compelled to join in one 
 action, and it was held that they were not, and the rule 
 was recognized, that the words " shall," or " may," 
 when used in a statute, were imperative only when the 
 public interest and rights are concerned. But when 
 a statute declared, that an individual, or individuals, 
 shall or may do certain acts, or have a certain remedy, 
 which is intended for his or their own benefit, he or they 
 had a discretion .to do the act or pursue the remedy or 
 not. Sutherland, Justice, said " The statute was in- 
 tended for the benefit and relief of the heirs, such is the 
 scope and general character of its provisions, and the 
 language used in this particular section, I am inclined to 
 think, according to established principles of construction, 
 leaves it discretionary with the heirs to bring joint or 
 several actions, according to their own views of their 
 own interest." After citing several cases where such 
 words had been held imperative, and showing that in 
 each of them the public or third persons had an interest 
 in the act to be done, he adds : " In the case now under 
 consideration, the public has no direct or immediate in- 
 terest in the question, or, as Chancellor Kent expresses 
 it, a claim de jure, to call upon the plaintiffs to exercise 
 the authority given by the statute to sue jointly with 
 his co-tenant. It is a power given for the benefit of the 
 heirs, which they may exercise or not, at their discre- 
 tion. It is permissive merely, and not compulsory." 
 
 § 598. In the case of The King v. The Bailiffs and 
 Corporation of the Borough of Eyre, a bye-law of the 
 corporation directed that upon the happening of any va- 
 cancy in the number of twenty-four common council, 
 such vacancies should be filled by the freemen inhabit- 
 ing the town, and that a court should be holden once in 
 every year, at which it " shall* and may" be lawful for
 
 CHAP. XII.] AND CONSTRUCTION. 727 
 
 the bailiffs to admit to the freedom of the city such per- 
 sons as had been resident there for one whole year. 
 On a motion for a mandamus to admit to the freedom 
 of the town, one who had been a resident for the requi- 
 site period, it was held by Abbot, C. J., that the bye- 
 law did not give to any person resident during the time 
 therein mentioned an absolute right to be admitted to its 
 freedom. That the words shall and may gave to the 
 bailiffs a discretionary power to admit the person who 
 had the qualification therein mentioned; but that it 
 by no means made it imperative on them to do so. 
 These cases are sufficient to illustrate the rule that 
 the words s/iall or may are to be regarded as per- 
 missive merely, where the public or third persons have 
 no interest in having them considered as imperative. 
 
 § 599. On the other hand, there are numerous cases 
 which clearly establish the converse of this proposition, 
 and that the words " shall or may" are to be construed 
 as imperative in all cases where a public body or officers 
 have been clothed by statute to do an act which concerns 
 the public interest or the rights of third persons, and 
 that in such cases the execution of the power, or the do- 
 ing of the thing required, may be insisted on as a duty, 
 though the phraseology of the statute be permissive 
 merely, and not peremptory. Indeed, this proposition is 
 impliedly admitted in all the cases we have cited in sup- 
 port of our first proposition. 
 
 § 600. In Bex v. Barlow ,(a) it is said, that where a 
 statute directs the doing of a thing for the sake of jus- 
 tice or the public good, the word " may" is the same as 
 the word " shall." That was a case under the 14 Car. 
 2, ch. 12, which gave power and authority to the church 
 wardens, &c, to make an assessment to reimburse the 
 
 (a) 2Salk. 609.
 
 728 OF INTERPRETATION [CHAP. XII. 
 
 constables ; the statute was held to be imperative, and 
 that for the reason that both the public and the consta- 
 bles had an interest in having the authority exercised. 
 So, too, the statute of 23 H. 6, which says the sheriff 
 may take bail, has been construed the same as though 
 it said he shall take bail, and rests upon the same prin- 
 ciple. 
 
 § 601. In another case,(a) the trustees of a charity 
 were directed, as to the merchants, if guilty of drunken- 
 ness or any debauchery, then they " shall and may" by 
 writings under their hands and seals, turn them out. A 
 question was made, whether those words were impera- 
 tive. Lord Hardwicke held, that the words " shall and 
 may" in general acts of parliaments, or in private con- 
 stitutions, are to be construed imperatively. They must 
 remove them. That under this general power of amo- 
 tion, the founder had laid an obligation upon them to 
 turn out for the majura crimina, if he might so call 
 them. 
 
 § 602. In BackweWs casc,(b) the Lord Keeper declared, 
 that though the words in the act of parliament under 
 which an application for a commission in bankruptcy 
 was made, were that the chancellor may grant it, yet 
 that in such a case the word may was in effect must. In 
 the case of The King v. The Inhabitants of Derby, (c) a 
 motion was made to quash an indictment found against 
 the inhabitants " for refusing to meet, and make a vote, 
 to pay the constable's tax. The ground for the motion 
 was, that the statute was not imperative, but merely 
 they " may meet," &c. The court, however, held may, 
 in the case of a public officer, was tantamount to shall. 
 
 (a) Attorney General v. Lock, 3 Atk. R. 164. 
 
 (b) 1 Vernon, 152. 
 
 (c) Skinner, 370.
 
 CHAP. XII. j AM) CONSTRUCTION. <'-'•* 
 
 § 603. In a case in the courts of New York,(a) it was 
 held, that the act to reduce several laws relating parti- 
 cularly to the city of New York into one act, and in 
 which it was provided that " it shall and may be lawful 
 for the mayor and aldermen, &c, to cause certain acts 
 to be done relative to sewers and drains, &c, was a sta- 
 tute of public concern, and related exclusively to the 
 public welfare, and that the words l: shall and may" al- 
 though permissive merely in their terms, must be regard- 
 ed as peremptory on the corporation. That when the 
 public interest called for the execution of the power thus 
 conferred, the corporation were not at liberty arbitrarily 
 to withhold it. The exercise of the power became a 
 duty which the corporation w r ere bound to fulfil. Nel- 
 son, Ch. J., after citing several cases in support of this 
 principle, says : " The inference deducible from the va- 
 rious cases on this subject seems to be, that where a 
 public body or officer has been clothed by a statute with 
 power to do an act which concerns the public interest or 
 the rights of third persons, the execution of the power 
 may be insisted upon as a duty, though the phraseology 
 of the statute be permissive merely, and not peremptory. 
 
 § 604. The rule laid down in The King v. The Mayor, 
 fyc. of Hastings, (If) is, that if there are words of permis- 
 sion in an act of parliament or charter which are for 
 the public good or benefit, they are held to be obliga- 
 tory. In that case, the charter provided that the mayor, 
 &c. might, for the future, hereafter have and hold, and 
 have power to have and hold, at some convenient place, 
 one court, &c. It was held, that this permissive lan- 
 guage was imperative, and that on the ground that the 
 court was evidently intended for the benefit of the in- 
 habitants, and was calculated to promote their benefit. 
 
 (a) 3 Hill R. 612. (b) 1 Dowl. & Ryl. 148. 
 
 92
 
 730 OF INTERPRETATION [CHAP. XII. 
 
 It might be for their benefit that there should be a 
 jurisdiction conducted according to the ancient common 
 law of the country. The numerous cases which we 
 have cited on this point clearly define and sufficiently 
 illustrate the rule itself, and clearly indicate the circum- 
 stances, as well as the cases in which it is to be adopted 
 and applied. 
 
 § 605. The word " month," when used in a statute, 
 has in several cases been held to mean a lunar month of 
 twenty-eight days. In Lacon v. Hoope7*,(a) it was laid 
 down as a general rule, that when the word month is 
 used in a statute, without the addition of calendar or any 
 other words to show that the legislature intended calen- 
 dar months, it is understood to mean a lunar month ; 
 and this rule has been followed in other cases. (b) 
 
 § 606. In the state of New York, however, this rule 
 has been changed by statute, and it is expressly declared 
 that the term month shall be construed to mean calendar 
 month in all statutes, deeds and contracts, unless other- 
 wise expressed. (c) Even before this statutory provi- 
 sion, it had been held that calendar, and not lunar 
 months, would be intended to have been meant ; when 
 in the same act, and in reference to the same subject- 
 matter, calendar time as years, months and weeks were 
 spoken of.(d) The statute under which the question in the 
 last case cited arose, allowed the owner of land two years 
 from the time of sale in which to redeem the land, and re- 
 quired of the corporation to give public notice, six months 
 before the expiration of the two years, four weeks ; and 
 the decision was placed upon the ground, that as calen- 
 
 (a) 6 T. R. 226. 
 
 (6) Jacksonv. Clark, 7 J. R. 217 ; Loring v. Holling, 15 J. R. 119 ; Lcf- 
 fingwellet al. v. White, 1 J. C. 99 ; Parsons v. Chamberlain, 4 Wend. 512. 
 
 (c) 1 R. S. 606. 
 
 (d) The People ex rel. Moulton v. The Mayor, JfC. of New York, 10 W. 
 393.
 
 CHAP. XII.] AND CONSTRUCTION. 731 
 
 dar time had been used by the legislature in fixing the 
 period for redemption, it was a just and reasonable in- 
 ference that they intended to use it in that sense, in fix- 
 ing upon the division or period of time specifying the no- 
 tice to be given to the owners to redeem. That as the 
 one period in express terms was calendar time, and the 
 six months immediately succeeded it, and was intended 
 to include part of it, it should be construed to mean the 
 same — otherwise it must be believed that the legislature 
 intended to fix the different periods by different calcula- 
 tions of time in the same breath, and in the same sub- 
 ject-matter, and that without any conceivable purpose. 
 The same rule also prevailed in another case,(a) and 
 upon the same general principles. These cases clearly 
 fall within the exception to the general rule — that is, that 
 it does not obtain where, from the language of the act, 
 the legislature evidently intended calendar, and not lunar 
 months. In Massachusetts and Pennsylvania the rule 
 obtains, that the word " month," mentioned generally in 
 a statute or contract, will be considered as calendar 
 month, (b) 
 
 § 607. The relative word " aforesaid' 1 often refers and 
 restricts a clause to the preceding purview.(c) Being a 
 collective word, it may have reference, according to the 
 intent, to two or three several matters, as to " every 
 term named in an indenture, "(d) unless where it is im- 
 possible to extend to other things, held in distinct right 
 and under different titles. (e) 
 
 § 608. The conjunction "and" couples sentences to- 
 
 (a) Snyder v. Warren, 2 Cow. 518. 
 
 (b) Hunt v. Holden, 2 Mass. 170 ; Avery v. Pixley, 4 Mass. 460 ; Church* 
 ill v. Merchants Bank, 19 Pick. 532 ; Brudenell v. Vaux, 2 Dall. 302 ; Com- 
 monwealth v. Chambre, 4 Dall. 144 ; Moore v. Houston, 3 S. & R. 184. 
 
 (c) 10 Rep. 139. 
 
 (d) Ibid. 107. 
 
 (e) 9 Rep. 47.
 
 732 OF INTERPRETATION [CHAP. XII. 
 
 gether, so that former adverbs refer to all the verbs sub- 
 sequent ; in this way preventing repetition and tautolo- 
 gy. Thus, in an objection taken upon the words " and 
 then and there gave the said Edward a mortal wound," 
 that it was not stated that he gave it " feloniously and 
 of malice aforethought." The allegation was held suffi- 
 cient, these words having been before mentioned. («) 
 But " and" is relative, as well as copulative. Thus, 
 where R. devised one hundred sheep and ten bullocks, 
 and ten pounds quarterly, the second " and" in the sen- 
 tence disjoins and severs the rent from the sheep and 
 the bullocks. (6) 
 
 § 609. And is not always to be taken conjunctively. 
 It is sometimes in the fair and rational construction of a 
 statute to be read as if it were or, and taken disjunctively 
 and distributively. Doderidge, Justice, says : " When 
 the sense is the same, they are all one, and the words, 
 conjunctive and disjunctive, are to be taken promiscue.(c) 
 Thus, the conjunctive recited in a declaration, instead of 
 the disjunctive, where the recital answers the sense of 
 the statute, is sufficient ; for the statute, notwithstanding 
 the variance, is truly recited ; nor, according to one case, 
 will the use of the word and instead of or hurt, if the 
 word or in the statute has always been construed 
 and.(d) 
 
 § 610. But where a statute uses the disjunctive or, in 
 which sense it is to be understood, and the plaintiff in 
 his declaration mis-recites the statute and uses the word 
 and, and the recital in the declaration not answering the 
 sense of the statute, all the authorities agree that the 
 
 (a) 4 Rep. 40. 
 (£) 8 Rep. 85. 
 
 (c) Creswick v. Rokesby, 2 Bulstr. 47 ; see also 2 Hawk. c. 25, sec. 102, 
 and Waterhouse v. Keen, 4 B. & C. 200. 
 
 (d) Holt v. Gaven, 2 Vent. 205 ; Cro. Eliz. 307.
 
 CHAP. XII.] AND CONSTRUCTION. 733 
 
 declaration is bad. (a) Our courts have held that the 
 word or has sometimes been construed to mean and. 
 such construction being clearly necessary to give effect 
 to a clause in a will, or to some legislative provision, 
 but never to change or control at pleasure. (Ji) 
 
 § 611. "All" — qui omne (licit nihil excludit ; generate 
 dictum gencralitcr est intclUgendum. Therefore where a 
 statute says, omnes vidua, and there are five kinds of 
 dower, that particular chapter does not extend to all of 
 them.(c) Where the words "anything in this act to 
 the contrary notwithstanding" are used in a statute, it is 
 equivalent to saying, that the act shall be no impediment 
 to the measure. They are in consonance with the words 
 adopted in the statute of uses, 27 Hen. VIII. c. 10, " as 
 if this act had not been made.(d) 
 
 § 612. Where a statute, in speaking of a suit, uses the. 
 word " depending" courts in construing it will not consider 
 an action to be depending, if commenced by writ, until the 
 process is returned. But, after an original writ is re- 
 turned, then it is said it will be considered as pending, 
 from the day of the test of the writ.(e) And in this 
 State where, under the Revised Statutes, a suit may 
 be commenced by the filing and service of a declaration, 
 and action would not be deemed pending, until the actual 
 service of the declaration on the party defendant. 
 
 § 613. The word empowered, where the authority em- 
 anates from a superior, is considered as imperative. (/*) 
 The words, from henceforth, (de ccetero) it is said, do not 
 necessarily imply a new law. This was exemplified by 
 
 (a) 1 S. Elec. L. 26. 
 
 (A) Douglass v. Eyre, Gilpin's D. C. R. 148. 
 
 (c) 2 Inst. 81, Stat. Merton, c. 2. 
 
 (d) 7 Rep. 2, 20. 
 
 (e) 5 Rep. 47, 48 ; 7 Rep. 30. 
 (/) S. Elec. L. 26.
 
 734 OF INTERPRETATION [CHAP. XII. 
 
 the doubts which arose on the statute of Merton, c. 2.{ci) 
 The word having, under the statute of wills, imporls 
 two things, ownership, and time of ownership. Thus 
 in Butler's case, as to the " power of a devisor to devise 
 a manor," of divers notable reasons for the judgment, 
 one was on the word having. It was said, if it be asked 
 who can give and dispose by his last will in writing, 
 &c. ? The makers of the act answer, " every person hav- 
 ing manors ;" so that it is not said every person gene- 
 rally, but every person " having," &c. And this word 
 having, imports two things, silicet, ownership, and the 
 time of ownership, for he ought to have the land at the 
 time of making his will, and the statute gives such per- 
 son " having," &c, authority to devise it.(6) 
 
 § 614. The words "fit person," in a statute, when 
 -used to designate a person fit to execute an office, means 
 he — qui melius et sciat el possit officium illud intendere. 
 Lord Coke says, " This word idoneus is oftentimes in 
 law attributed to those who have an office or function, 
 and he is said in law to be idoneus, apt and fit to exe- 
 cute his office, who has three things, — honesty, knowl- 
 edge, and ability ; — honesty to execute it truly, without 
 malice, affection, or partiality : knowledge, to know what 
 he ought duly to do ; and ability, as well in estate as in 
 body, that he may intend and execute his office when 
 need is, diligently, and not for impotency or poverty to 
 neglect it. It is upon this principle the doctrine obtains, 
 that if a coroner in England be senio confractus aut morbo 
 paralysis percussus, aut terras et tenementa in eodem comi- 
 tatu non habet, $•<%, so as to be minus idoneus ad officium 
 illud exequendum, fyc., it is good to remove him.(c) 
 
 § 615. The words immediately maintenant, applied to 
 a descent of lands, as where a statute speaks of a descent 
 
 (a) 1 S. Elec. L. 26. (c) Id. 27. 
 
 (b) Ibid.
 
 CHAP. XII.] AND CONSTRUCTION. 735 
 
 immediately after the decease, is equivalent to saying, 
 without any mesne time, or mesne estate. Hence it is, 
 that he who is immediate heir excludes all mesne heirs ; 
 and the same rule obtains in reference to an immediate 
 tenant. A manor does not descend immediately where 
 it is expectant on the refusal or disagreement of the 
 widow, for, peradventure, she will not refuse in a year. 
 Littleton says, that " if a woman disseisoress take a hus- 
 band, and hath issue, and dies, and afterwards the tenant 
 by the courtesy dies, this dying seised shall not toll the 
 entry ; for the issue came not to the lands immediately 
 after the death of his mother. "(a) In other cases the 
 word immediately has not received such a strict con- 
 struction, that a thing ought not to be made in ipso ar- 
 ticulo temporis, but it is satisfied if the thing be made in 
 convenient time. Thus, where a man is to make an ob- 
 ligation immediately after an award, he ought to have 
 such time as the doing of the act requires, and then of 
 necessity there ought to be a mean time between the 
 award and the performance of the act. (6) So it is pre- 
 sumed that the word instantur, under the rules of our 
 courts, would be held to mean within twenty-four hours. 
 The words likewise and in like manner so couple a clause 
 or section by a reference to a former clause or section, 
 as to carry on its sense and extend its operation. (c) 
 
 § 616. We shall in the next place, consider the rule 
 that prevails in reference to the computation of statute 
 time. First, where the computation of time in a statute 
 is to be from an act done, the first day shall be excluded. 
 Thus, our courts have held, under the statute prescrib- 
 ing the time within which an appeal should be brought 
 
 (a) 1 S. L. Elec. 27. 
 
 (b) See Butler and Baker's case, 3 Rep. 34. 
 
 (c) Rex v. Loxdale, 1 Burr. 447.
 
 736 OF INTERPRETATION [cilAP. XII. 
 
 from a justice's court, the first clay was to be cxcluded.(a) 
 Although in this case the court placed their decision not 
 upon this general rule of construction, but upon the par- 
 ticular words of the statute, which showed an evident 
 intent to exclude the first day. 
 
 § 617. In ffoman v. Siswell(Ij) the rule obtained, that 
 where computation of time in a statute was to be from 
 the date, or from an act done, the day of the date or act 
 was exclusive. The question in that case arose under 
 the act relative to the return of justices' executions. The 
 court cited and relied on the case of Ex jmrte Dean, and 
 the same rule was also adopted in relation to the re- 
 demption act,(c) also under the act of !840,(d) providing 
 that a fi. fa. cannot be issued until after the expiration 
 of thirty days from the entry of the judgment, it has been 
 held that the day on which the judgment was rendered 
 was to be excluded from the computation. (e) So too 
 under the statute requiring fourteen days notice of trial 
 to be given, before the first day of the court, it has been 
 held, that the first day of the court must be excluded 
 from the computation^/) 
 
 § 618. We are not aware that the precise question 
 has ever been presented to the court in this state, whe- 
 ther under our statute of limitations, the day on which 
 the right of action accrued is to be excluded in the com- 
 putation of time. It was however held in Fairbanks v. 
 Wood^g) that the day on which the revised statutes 
 took effect was to be excluded in the calculation of the 
 
 (a) Ex parte Dean, 2 Cow. 606. 
 
 (b) 6 Cow. R. 659. 
 
 (c) 2 Cow. R. 518. 
 
 (d) Sess. L. 1840, p. 334, sec. 24. 
 
 (e) The Commercial Bank of Oswego v. Ives, 2 Hill, 356. 
 
 (/) The Columbia Turnpike Road v. Haywood, 10 Wend. 422. 
 (g) 17 Wend. 329.
 
 CHAP. XII.] AND CONSTRUCTION. 737 
 
 six years. There is but little doubt, but that upon the 
 principle that has prevailed in our courts, in this state it 
 will be held, under our statutes of limitation, that the 
 day upon which the right of action accrued must be ex- 
 cluded from the computation of time, however the rule 
 may be elsewhere. In Wilcox \. Wood^a) Chief Justice 
 Savage says, "In this state, on questions of the compu- 
 tation of time arising under our own rules and statutes, 
 and upon promissory notes, we hold that the day of the 
 date is excluded." The rule which obtains on this ques- 
 tion is not uniformly the same in all the states, or in all 
 the cases in England. In this state, however, the ques- 
 tion is settled according to the rule above laid down. (6) 
 Mr. Chitty thinks that the rule which has been adopted 
 in ISew York, is at the present time the prevailing doc- 
 trine in England. Speaking of a statute containing 
 phrases " after a certain time," he says, that " in con- 
 struing the 2d W. & M. sess. 1, c. 5, authorizing a land- 
 lord to sell a distress, ' after such distress and notice as 
 aforesaid, and the expiration of the said^ve days] the day 
 of the making of the distress is to be excluded, and after 
 allowing the live following clear days, the sale should 
 not be until the seventh day.(c) 
 
 § 619. The other rules which obtain in the construc- 
 tion of statutes will be treated of and illustrated in subse- 
 . % 
 
 (a) 9 Wend. R. 348. 
 
 (b) The Commercial Bank of Oswego v. Ives, 2 Hill R. 355. See on this 
 point The Portland Bank v. The Maine Bank, 11 Mass. R. 204 ; Presbrey v. 
 Williams, 15 Mass. R. 193; Bigelow v. Wilson, 1 Pick. R. 485 ; Common- 
 wealth v. Keniston, 5 Pick. R. 520; Hampton v. Erenzeller, 2 Browne's R. 
 18 ; Ryman v. Clark, 4 Blackf. R. 329 ; Jacobs v. Graham, 1 Blackf. R. 
 392 ; Arnold v. The United Stales, 9 Cranch, 104 ; Pierpont v. Graham, 4 
 Wash. C. C. R. 232 ; 3 Chitty's Genl. Practice, 108 to 110; 1 Cowen's Tr. 
 262, 263, 2d ed. ; 2 Bouvier's Law Diet. 439, tit. Time. 
 
 (c) 3 Chitty's Gen. Pr. 109.; Pitt v. Skew et al., 4 Barn. & Aid. 208. See 
 note by Mr. Hill, 2 Hill's R. 356. 
 
 93
 
 738 OK INTERPRETATION, &C. [ciJAP. XII. 
 
 quent chapters, under the heads, " Of Contemporaneous 
 Exposition," " Of statutes in pari materia," " Of aflirma- 
 tive and negative statutes," " Of equitable construction 
 of statutes," " Of the equitable construction of penal 
 statutes," " Of the construction of penal statutes," " Of 
 the repeal of statutes," " Of public and private statutes," 
 u Of the proof of the existence of statutes." In each of 
 those chapters the reader will find many of the prece- 
 ding rules again referred to, and the same exemplified 
 and illustrated in their application to particular cases.
 
 CHAP. XIII.] OF CONTEMPORANEOUS, &C. 739 
 
 CHAPTER XIII. 
 
 OF CONTEMPORANEOUS EXPOSITION. 
 
 § 620. For the purpose of ascertaining the intention 
 of the legislature, and for putting a construction on a 
 statute, resort in some cases may be had to contempora- 
 neous exposition. Lord Coke has laid down the rule, 
 that great regard, in the exposition of statutes, ought to 
 be paid to the construction that sages of the law, who 
 lived about the time, or soon after it was made, put upon 
 it ; because they were best able to judge of the inten- 
 tion of the makers when the law was made, regard be- 
 ing first had to the true import and meaning of the words 
 themselves. It is undoubtedly true, in cases of doubt 
 as to the intent, recourse should be had to the old 
 authors who wrote at the time, or soon after the passing 
 of the law. This rule is founded on the presumption 
 that they must have had the fittest opportunity, and are 
 the most likely to understand the circumstances which 
 led to its enactment ; and, hence, wdiat was the intent 
 and meaning of the law-makers: It is apprehended that 
 the degree of light which contemporaneous exposition 
 will throw upon a statute, or the weight of influence it 
 should have upon the mind, must depend very much upon 
 the agreement of such expositors, as to the cause which 
 moved to the enactment of a particular statute, and the 
 object which it had in view, and from which the intent is 
 to be spelt out, and that such resort should never be had, 
 except in doubtful cases, or where the words of the sta- 
 tute are obscure. In such cases, considerable stress will
 
 740 OF CONTEMPORANEOUS [CHAP. XIII. 
 
 be laid upon the light in which it was received and held 
 by the contemporary members of the profession. 
 
 § 621. In this case, as in all other cases, the object of 
 such a resort is to ascertain the intention of the legisla- 
 ture, and to carry into effect their true intent and mean- 
 ing, according to the spirit of the enactment ; and, as 
 such intent may be collected from various sources of in- 
 formation, foreign circumstances may be considered as 
 evidences of the reason, cause, necessity, object and spi- 
 rit of the law. (a) Resort may also be had, in cases of 
 doubt, to the history and situation of the country, which 
 sometimes will shed some light on the meaning of some 
 of the provisions of an act. 
 
 § 622. So, too, the history of the legislation in the 
 state, in reference to the subject-matter of a particular 
 statute, may be referred to, as tending to aid in the con- 
 struction to be given to a statute. (b) Contemporane- 
 ous practice, which, as we have seen, consists in what 
 was usually done in the place where the law was made, 
 at or near the time of making it, is a circumstance so 
 intimately connected with a law, that it will many times 
 be taken into consideration, and influence the construc- 
 tion. 
 
 § 623. McKccn v. Ddarwifs Lessec:;(c) affords a fami- 
 liar illustration of this rule. The question in that case 
 arose under the Act of Pennsylvania of 1715, which re- 
 quired deeds to be acknowledged before a justice of the 
 peace of the county where the land lay ; and it had been 
 the long established practice, before 1775, to acknow- 
 ledge deeds before a judge of the supreme court of 
 Pennsylvania. Although the act of 1715 did not autho- 
 rize such a practice, yet as the practice had prevailed, it 
 
 (a) 4 Gill & J. 6. 
 
 (b) Henry v. Tilson, 17 Verm. R. 479. 
 
 (c) 5 Cranch Rep. 22.
 
 CHAP. XIH.] EXPOSITION. 741 
 
 was held that it must be considered as a correct exposi- 
 tion of the statute ; that long and uninterrupted practice 
 under a statute was good evidence of such construction. 
 In Stuart v. Laird,(a) it was also held that a contempo- 
 rary exposition of the constitution of the United States, 
 practiced and acquiesced in for a period of years, com- 
 mencing with the organization of the judicial system, 
 fixed the construction. It was a contemporary in- 
 terpretation of the most forcible nature ; and such a 
 practical exposition was too strong and obstinate to be 
 shaken or controlled. Ch. J. Vaughan, in one case,(6) 
 held, that when the meaning of a statute is dubious, long 
 usage is a just medium to expound it by ; for jus ct nor- 
 ma loquendi are governed by usage. The meaning of 
 things spoken or written must be, as it hath been con- 
 stantly received to be, taken from common acceptation. 
 § 624. There are two sorts of contemporary practice, 
 and either of them may be applied for the purpose of ex- 
 plaining any ambiguous words or expressions in a sta- 
 tute. The first is the common practice, which prevailed 
 among the people when the law was made. The se- 
 cond consists in what was done upon the law, in the time 
 immediately after the making of it. From the practice 
 which prevailed among the people at the time the law 
 was made, we may, with some degree of probability, col- 
 lect with what view it was made ; what good the legis- 
 lature designed to advance or secure, or what harm it 
 designed to prevent or restrain. But this sort of con- 
 temporary practice, since this is the only use that can be 
 made of it in interpreting laws, is only a remote means 
 of interpretation ; it helps us in our conjectures about the 
 meaning of the law, and then from the reason of the law 
 we ascertain the meaning of the legislature in any am- 
 
 (a) 1 Cranch R. 299. 
 
 (b) Sheppard v. Griswold, Vaugh. R. 169 ; cited 1 Kent, 465.
 
 742 OF CONTEMPORANEOUS [ciTAP. XIII. 
 
 biguous words or expressions that it has made use of. 
 By what has been done upon a law soon after it was 
 made, is not meant what has been done by courts of ju- 
 dicature, who are the authorized interpreters of the laws 
 of the country. But the practice which it produced 
 among the people, or what was done in consequence of 
 it by those who were obliged, and might be supposed 
 willing, to comply with it. The practice of courts or 
 their determination of any question which has arisen upon 
 a law, insjtead of being means which will help to inter- 
 pret it, axe t h e ms elves authentic interpretation^ of it. 
 Thus far indeed the practice of such courts m+g-ht be con- 
 sidered as evidence, but not as a means of interpretation. 
 § 625. Though the persons, who for the time being 
 preside in later times, may have the same authority to 
 interpret a law, yet what their predecessors have done, 
 who were contemporaneous with the legislature, will 
 help to restrain them in the use of their authority, be- 
 cause it will show them in what sense the law was un- 
 derstood by those who had the best opportunity of 
 knowing its true sense, either from the legislators them- 
 selves, or by seeing the situation of things which led to 
 the making of the law. In like manner the effect which 
 the law produced in the behavior of those who were 
 obliged by it, and who lived at the time of making it, 
 will help to form a judgment about the meaning of the 
 legislature, when the words used have left that meaning 
 doubtful, both because they had an opportunity either of 
 finding out the reason of the law by their own observa- 
 tion, or of hearing it in their discourse with others, and 
 because it is probable that if their practice had not been 
 agreeable to the sense of the legislature, care would have 
 been taken to correct it, or to explain its meaning more 
 precisely.(rt) 
 
 (a) See Ruth. b. 2, ch. 7, sec. 8, 9.
 
 CHAp. XIII.] EXPOSITION. 743 
 
 § 626. Although general usage, under an act where 
 the words are doubtful, may be called in to explain it; 
 yet where they are clear, it is said the usage of a parti- 
 cular case cannot control them. (a) So, too, in the con- 
 struction of a statute, great deference is certainly due to 
 a legislative exposition of a constitutional provision, es- 
 pecially when it was made almost contemporaneously 
 with such constitutional provision, and may be supposed 
 to result from the same views of policy and mode of rea- 
 soning which prevailed among the trainers of the instru- 
 ment expounded. (6) Although in cases of real doubt as 
 to the meaning of a particular clause in the constitution, 
 a legislative construction, if deliberately given, is enti- 
 tled to much weight, yet it is by no means conclusive on 
 the judicial tribunals. (c) 
 
 § 627. We have already shown, it is obvious that 
 contemporary interpretation of a constitutional provision 
 must be resorted to with much qualification and reserve. 
 The private interpretation of any particular man or body 
 of men must be manifestly open to much observation. 
 Contemporary construction is properly resorted to, to il- 
 lustrate and confirm the text, to explain a doubtful 
 phrase, or to expound an obscure clause, and in proportion 
 to the uniformity of that construction, and the known 
 ability and talents of those by whom it is given, is that 
 credit to which it is entitled. It can never narroio down 
 its true meaning, it can never enlarge the national boun- 
 daries. Such, we have seen, was the opinion of Mr. 
 Justice Story. Other able judges have held, that while 
 great deference is due to a legislative exposition of a con- 
 stitutional provision, when it is made contemporaneously 
 with such constitution, and may be supposed to result 
 
 (a) Rex v. Hogg, 1 T. R. 728. 
 
 (b) The People v. Green, 2 Wendell's Rep. 274. 
 
 (c) Content v. The People, 11 Wend. Rep. 513.
 
 744 OF CONTEMPORANEOUS [CHAP. XIII. 
 
 from the same views, and policy, and mode of reasoning, 
 that even then it is by no means conclusive. 
 
 § 628. To give much weight to a construction, by this 
 department of the government, of its own power, and al- 
 low its own construction to control, would be a danger- 
 ous doctrine, as it would lead to dangerous consequences. 
 The extent of the doctrine to be deduced from all the 
 authorities on this point is, that a practical exposition, in 
 order to be of much force, or entitled to much weight, 
 must be one where there has been an unbroken chain of 
 practice or precedent commensurate with the adoption of 
 the constitution or particular statute, and acquiesced in 
 and acted upon since that time. (a) It is otherwise, how- 
 ever, in regard to judicial construction of a .statute or 
 constitution, for much respect has always been paid 
 to the contemporaneous construction of statutes, and a 
 forbidding caution has always accompanied any approach 
 toward unsettling it, dictated, no doubt, by easily fore- 
 seen consequences attending the sudden change of a rule 
 of property, necessarily introductory, at least of confu- 
 sion, increased litigation, and the disturbance of the peace 
 of society.(6) 
 
 § 629. The most able judges, and the greatest names 
 on the bench, have held this view of the subject, and 
 occasionally expressed themselves to that effect, either 
 tacitly or openly, intimating that if they had held a part 
 in the first construction, they would have been of a dif- 
 ferent opinion, but the particular construction having 
 been made they gave their assent thereto. Lord Eldon 
 in one case remarks ; " I think it better to abide by that 
 determination than to introduce uncertainty into this 
 branch of the law, it being often more important to have 
 
 (a) See ante, sec. 289, 290, 291, 292, 293, 294, 295. 
 (6) Nelson v. Allen § Harris, 1 Yerger, 376.
 
 CHAP. XIII.] EXPOSITION. 745 
 
 the rule settled than to determine what it shall be ; I am 
 not, however, convinced by the reasoning in this case, 
 and if the point were new I should think otherwise."(«) 
 Lord Mansfield in another case says : " When solemn 
 determinations, acquiesced 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."(6) Sir James Mans- 
 field says : " I do not know how to distinguish this from 
 the case before decided in this court. It is of greater 
 consequence that the laws should be as uniform as pos- 
 sible, than that the equitable claim of an individual 
 should be attended to."(c) Judge Whyte says : " What- 
 ever might be my own opinion upon this question, not 
 to assent to its settlement now after two solemn decisions 
 of this court, the last made upwards of fourteen years 
 ago, and not only no opposing decision, but no attempt 
 even by any case, during all this time, to call the point 
 again into controversy, forming a complete acquiescence, 
 would be at the least inconsistent, perhaps, and uncalled 
 for by a correct discharge of official duty."(<i) There 
 also exists what may be regarded as judicial comity be- 
 tween the judicial tribunals of different countries or 
 states, in putting a construction upon the local laws or sta- 
 tutes of another, to follow the construction which has 
 been put on such statutes or laws by the judicial tribunals 
 of the country or state in which the law was enacted. 
 This rule is most generally founded upon the principle 
 supposed to be universally recognized, where such de- 
 partment exist, that it is the appropriate organ for con- 
 
 (a) The King v. The Inhabitants of Eccleston, 2 East R. 302. 
 (6) 1 Burrow. 419. 
 
 (c) 4 Bos. & Pul. 69. 
 
 (d) Nelson v. Allen <$ Harris, 1 Yerger, 376. 
 
 94
 
 746 OF CONTEMPORANEOUS [cHAP. XIII. 
 
 struing the legislative acts of that government. It is 
 presumed that no court would presume to say that the 
 courts of a country have misunderstood their own sta- 
 tutes, and therefore erect itself into a tribunal to correct 
 such misunderstanding.(rt) 
 
 § 630. Under the peculiar form of government exist- 
 ing in the United States, there is another reason for the 
 adoption of this rule as between the federal courts and 
 the judicial tribunals of the different states, or between 
 the judicial tribunals of different states. That is from 
 the necessity of the case, to avoid a conflict of construc- 
 tion between the several tribunals. The federal courts 
 in construing the statutes of any one of the states, have 
 universally adopted the construction which has been put 
 upon the statute by the judiciary of that state. Not be- 
 cause those decisions are final and conclusive in the fed- 
 eral courts, but because a fixed and received construction 
 by a state in its own courts make a part of the statute 
 laws. (b) It has with great propriety been asked, if the 
 construction of the highest judicial tribunal of a state, 
 forms a part of the statute law as much as an enactment 
 of the legislature, how can a federal court make a dis- 
 tinction between them ? There could be no hesitation 
 in so modifying decisions to conform to any legislative 
 alteration in a statute, and why should not the same rule 
 apply where the judicial branch of the state government, 
 in the exercise of its acknowledged functions, have by 
 construction given a different effect to a statute from 
 what had at first been given to it. That the charge of 
 inconsistency might be made with much more force and 
 propriety against the federal tribunals for a disregard of 
 this rule than for a conformity to it. They profess to 
 
 {a) Elemdorfv. Taylor, 12 Wheat. R. 152. 
 (6) 6 Pet. R. 291 ; 11 Wheat. R. 361.
 
 CHAP. XIII.] EXPOSITION. 747 
 
 be bound by the local law, and yet, if they were to de- 
 part from this rule, they would reject the exposition of 
 that law which forms a part of it. This holds true, al- 
 though a different constuction might have been formerly 
 given ; for the inquiry reduces itself to the question, 
 what was the settled law at the time the decision was 
 made, as this constitutes the rule of property within the 
 state by which the right of litigant parties should be de- 
 termined, (a) That it would be a strange perversion of 
 principle if the judicial exposition of these laws were to 
 be disregarded. 
 
 § 631. Such is the regard of the federal courts for the 
 exposition of the acts of the several legislatures by the 
 state tribunals, that it is always with a great degree of 
 reluctance they break the way in exposition of such 
 statutes, and will not do so unless it becomes really ne- 
 cessary for the decision of a cause before them. (6) The 
 importance of this rule will be manifest when it is con- 
 sidered that a great majority of cases which come before 
 the federal tribunals, are cases where the courts are 
 called upon to enforce the laws of the state. The rule 
 that the courts will adopt the construction put upon a 
 statute by the judicial tribunal of the country where the 
 law originated, perhaps would not prevail in the case of 
 a statute which originated in England and had received 
 a construction there, and which statute has been adopted 
 by any of the states. In such case the rule may be sub- 
 ject to some modification, for, by their adoption they be- 
 come as entirely their own as if they had been originally 
 enacted by the legislature of a state. (c) If the federal 
 courts ever change their decisions it is because the 
 
 (a) 11 Wheat. R. 361. (c) 5 Pet. R. 264. 
 
 (b) 1 Brock. C. C. Rep. 539.
 
 748 OF CONTEMPORANEOUS [CHAP. XIII. 
 
 rule on which the decision was founded has been 
 changed. (a) 
 
 § G32. They also carry this principle of comity so far 
 as to adopt the local laws of real property as ascertained 
 by the decisions of state courts, whether those deci- 
 sions are grounded on the construction of a statute of 
 the state, or form a part of the unwritten law which has 
 become a fixed rule of property. (6) Although this 
 branch of the rule does not, strictly speaking, fall within 
 the general object and scope of this work, it is deemed 
 advisable to allude to and illustrate its application, and 
 the reasons upon which it is founded, in this connection. 
 The case of Jackson v. Chew(c) will serve as an illus- 
 tration of the application of the rule, and the general 
 principles upon which it is grounded. The question 
 involved in that case was, whether certain words used 
 in a will of one Medcef Eden were words of limitation, 
 or whether the devisee under the will took an estate in 
 fee, or an estate in tail under the will. The statutes of 
 New York having abolished estates tail, the supreme 
 court and the court for the correction of errors in that 
 state had decided repeatedly that the clause in question 
 in the will did not create an estate in tail, but was to 
 take effect as an executory devise. It was urged on the 
 argument in this cause, that the principle of adopting 
 the construction of state courts only applied to the con- 
 struction of statutes. But it was held that the rule had 
 been extended to other cases, and that there could be no 
 good reason assigned for not applying it as well to the 
 rules of construction growing out of the common law as 
 
 (a) See also 1 Pet. R. 64 ; Minor v. Bank of Alexandria, 2 id. 18, 85, 
 349, 368, 662, 664; 3 id. 65, 270; 4 id. 1, 124, 398; 5 id. 264, 505; 6 id. 
 102, 124, 151, 283, 291, 369 ; 7 id. 1, 222, 404, 453, 469, 596. 
 
 (b) 12 Wheat. 153. 
 
 (c) Ibid.
 
 CHAP. XIII.] EXPOSITION. 749 
 
 the statute laws of the state, when applied to the title 
 of lands. That such a course was indispensahle and 
 necessary in order to preserve uniformity, otherwise, the 
 peculiar constitution of the judicial tribunals of the 
 states and of the United States would be productive of 
 the greatest mischief and confusion. That there was 
 the same necessity and fitness in preserving a uniformity 
 of decision in the one case as in the other. 
 
 § G33. So, too, in another case, (a) the question arose 
 upon the interpretation of a clause in a will which had 
 received a judicial construction by the supreme court of 
 Pennsylvania. It was urged that this was not one of 
 those cases where the decision of the state courts, upon 
 questions of local Jaw, established rules of property 
 which the United States could not disturb. But the 
 court held that the question was one of so much doubt, 
 that they were disposed upon this point, to acquiesce in 
 the decision of the supreme court of that state, (A) that 
 the word " heirs" in the will was to be construed as 
 words of limitation.(c) 
 
 § 634. The rule of construing statutes of other coun- 
 tries according to the judicial decisions of these coun- 
 tries, has also been adopted and applied where English 
 statutes, such as the statutes of fraud and limitation, 
 have been adopted into our own legislation. The known 
 and settled construction of statutes by English courts 
 have been either considered as silently incorporated into 
 our own acts, or have been received by our judicial tri- 
 
 (a) Daly v. James, 8 Wheat. R. 495. 
 
 (6) Smith v. Folwell, 1 Bin. 546. 
 
 (c) See also Waring v. Jackson, 1 Pet. R. 571 ; Davis v. Mason, 1 Pet. 
 505 : Le Grand v. Darnall, 2 Pet. 670 ; Inglies v. Trustees of S. Snug Har- 
 bor, 5 Pet. 127 ; Hind v. Vattier, 5 Pet. 398 ; McKeene v. De Lancey's Les- 
 sees, 5 Cranch, 22 ; PoWs Lessees v. Wendall, 9 Cranch, 87 ; Thatcher v. 
 Powell, 6 Wheat. 197; Blight's Lessees v. Rochester, 7 Ibid. 535.
 
 750 OF CONTEMPORANEOUS [CHAP. XIII. 
 
 bunals with all the weight of authority. (a) In like 
 manner the construction which British statutes had re- 
 ceived in England, at the time of the separation of this 
 country from the British empire, have been considered 
 as accompanying the statutes themselves. But although 
 our courts very much respect subsequent decisions by 
 the English courts, yet such subsequent decisions are 
 not regarded as decisive, nor are they admitted by our 
 courts as conclusive. So, too, if the English courts 
 vary their construction of a statute which is common to 
 both countries, our courts, however much they may re- 
 spect such decisions, do not hold themselves bound to 
 fluctuate with them. (ft) 
 
 § 635. In the courts of chancery in those states where 
 there are separate courts of law and equity, such courts 
 usually adopt the construction that may have been put 
 upon a statute by the courts of law.(c) The chancellor 
 of this state(d) held, that where a construction is to be put 
 upon a statute which has been recently passed, where 
 the supreme court has given a judicial construction to it, 
 that construction would be followed, if not clearly wrong, 
 by the court of chancery, so that different rules of con- 
 struction might not prevail in the courts of law and equity 
 in relation to the same statutory provision. Blackstone 
 has laid down the general rule also, that there is not a 
 single rule of interpreting laws, whether equitably or 
 strictly, that is not applied equally by the judges in the 
 courts both of law and equity. That the construction 
 must in both be the same, or if they difFer, it is only as 
 one court of law may happen to differ from another. 
 
 (a) Pennock v. Dialogue, 2 Peters' R. 18. 
 (A) 5 Pet. R. 264. 
 
 (c) 1 Pet. C. C. R. 188 ; Lessees of Talbot v. Simpson. 
 
 (d) 5 Paige R. 80 ; 1 Pet. C. C. R. 188.
 
 CHAP. XIV.] OK .STATUTES, <tC. 751 
 
 CHAPTER XIV. 
 
 OK STATUTES IN PARI MATERIA. 
 
 § 636. We have remarked, in a previous chapter, that 
 a statute is the best expounder of itself. In the present 
 chapter we shall proceed to a consideration of the rules 
 which govern in construing a statute by a reference to 
 other statutes relating to the same subject-matter, and 
 the influence which one part of a statute ought to have 
 in the construction of other parts of the same sta- 
 tute ; that is, of clauses upon other clauses in the same 
 act, or, in other words, the doctrine of statutes in pari 
 materia. Statutes which are in pari materia, are those 
 which relate to the same person or thing, or to the same 
 class of persons or things. The word par must not, 
 however, be confounded with the word similis. It is 
 used in opposition to it, as in the expression, magis pares 
 sunt quam similes, intimating not likeness merely, but 
 identity. 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 un har- 
 monious and inconsistent. Such laws are in pari mate- 
 ria.{a) 
 
 § 637. The whole system of legislation upon the sub- 
 ject-matter may be taken into consideration, in order to 
 aid in the construction of a statute relating to the same 
 
 (a) United Society v. Eagle Dank., 7 Conn. R. 469.
 
 752 OF STATUTES [CHAP. XIV. 
 
 subject-matter ; hence other statutes in pari materia, 
 whether they be repealed or unrepealed, may be consi- 
 ered. Thus, in order to ascertain the true construction 
 of the statute of 1784, c. 24,(«) relative to certain chil- 
 dren not named in a will, who, by the act, were to have 
 a portion of the estate of the parent assigned, as though 
 the parent had died intestate, resort was had to the act 
 of 12 Wm. 3, c. 7, of which provincial act the former 
 act was a revision ; and the court held, that to discover 
 the true meaning of the statute, it was the duty of the 
 court to consider other statutes in pari materia, whether 
 they are repealed or unrepealed. 
 
 § 638. So, too, where one statute was undoubtedly 
 under the consideration of the legislature when passing 
 another, the former ought, though long since expired, to 
 be taken into consideration in construing the latter sta- 
 tute, and that for the reason that it is a rule in the con- 
 struction of statutes, that all which relate to the same 
 subject, notwithstanding some of them may have ex- 
 pired, or are not referred to, must be taken to be one sys- 
 tem, and construed consistently, and the practice has al- 
 ways been so. (b) 
 
 § 639. That several acts in pari materia, and relating 
 to the same subject, are to be taken together, and com- 
 prised in the construction of them, because they are con- 
 sidered as having one object in view, and as acting upon 
 one system, has been declared in several cases.(c) Chan- 
 cellor Kent says, the object of the rule is to ascertain and 
 carry into effect the intention ; and it is to be inferred, 
 
 (a) Church v. Crocker, 3 Mass. 21. 
 
 (b) Bac. Ab. Stat. II. 244 ; see also Thayer v. Dudley, 3 Mass. R. 296 ; 
 Holbrook v. Holbrook, 1 Pick. R. 248, 254 ; Menden v. Worceser, 10 Pick. 
 235 ; Sloop Elizabeth, Paine C. C. R. 11. 
 
 (c) Rex v . Loxdall, and The Earl of Axlesbury v. Pathison, 1 Burrows, 
 447 ; Doug. R. 27.
 
 CHAP. XIV.] IN PARI MATERIA. 
 
 753 
 
 that a code of statutes relating to one subject was gov- 
 erned by one spirit and policy, and was intended to be 
 consistent and harmonious. Upon the same principle, 
 whenever power is given by a statute, every tiling neces- 
 sary for making it effectual, or requisite to attain the end, 
 is implied. Quando lex aliquid conccdit, conccdcrc vldc- 
 tur et id per (pod devenitur ad illud,(ti) 
 
 § 640. In doubtful cases, courts should compare all 
 parts of a statute, and different statutes in pari materia, 
 to ascertain the intention of the legislature ; and how- 
 ever broad some of its expressions may be, yet if, on 
 such examination, it shall clearly appear that they were 
 intended to be limited by other provisions of the same act, 
 or other acts upon the same subject, it is not improper 
 to restrain them accordingly. (6) The case last cited is 
 one illustrative of this rule. The sloop Elizabeth was 
 libelled for having departed from the port of New York 
 without a clearance or permit. Under the third section 
 of the first supplementary embargo act, 9 Jan'y, 1808, 
 which declared, " that if any ship or vessel shall depart 
 from any port of the United States without a clearance 
 or permit, such ship, and vessel, and goods, &c, shall 
 be wholly forfeited ;" the forfeiture was claimed under 
 this section. Livingston, Justice, said : "From the very 
 general and comprehensive phraseology here used, it is 
 contended on behalf of the United States, that the court 
 cannot except vessels of any description whatever. It 
 is very certain that this section, taken by itself, and with- 
 out reference to any other parts of this and other acts 
 made in pari materia, would include the case of the 
 Elizabeth. But it is the duty of the court, in construing 
 a written law in doubtful cases, to compare all its parts, 
 in order to discover the intention of the legislature : and 
 
 (a) 1 Kent, 463. 
 
 {b) The Sloop Elizabeth, 1 Paine C. C. R. 11. 
 
 95
 
 754 OF STATUTES [CHAP. XIV. 
 
 however broad some of its expressions may be, yet if 
 from such examination it shall clearly appear that they 
 are, and were intended to be limited by other provisions 
 of the same, or other acts on the same subject, it cannot 
 be improper to restrain them accordingly. The first 
 embargo law having required no security against its vio- 
 lation from any other than registered or sea lettered ves- 
 sels, those licensed for the coasting trade were at liberty 
 to depart from any port, without bond being given to re- 
 land their cargo in the United States. This omission 
 was soon perceived, and in the very next month a sup- 
 plementary act was passed. By the first section of this 
 act, in case of a vessel licensed for the coasting trade, a 
 bond was to be given in double her value and that of 
 her cargo, that she should not proceed to any foreign 
 port, and that the cargo should be relanded in the Uni- 
 ted States ; and the second section provides, that it shall 
 be sufficient in the case of a licensed vessel whose em- 
 ployment has been confined to rivers, bays and sounds, 
 to give a bond in an amount equal to three hundred dol- 
 lars for each ton, with condition that such vessel shall 
 not be employed in any foreign trade during the terms 
 limited in the condition of the bond. Having thus con- 
 fined, by heavy penalties, coasting vessels within their 
 legitimate spheres, the provisions of the third section 
 most obviously refer to other vessels, for it can hardly 
 be imagined, that after taking such ample security from 
 river vessels, it would be thought necessary to impose on 
 all sloops, &c, navigating different rivers of the United 
 States, the necessity of taking a permit or clearance ev- 
 ery time they sailed ; for the permit which might have 
 been obtained at the time of the vessel's being licensed, 
 would not be a compliance with the act. But whatever 
 doubts might be entertained on the construction of the 
 section, it is much diminished, if not entirely removed, 
 by a provision we find in another of the supplementary
 
 CHAP. XIV.] IN PARI MATERIA. 755 
 
 embargo laws, which was passed 25th April, 1808, sub- 
 jecting to forfeiture vessels of the description of the Eli- 
 zabeth, if they depart from any district of the United 
 States without having previously obtained a clearance. 
 There is no way of accounting for this act, passed by 
 the same legislature and at the same session, than on the 
 supposition that, in their opinion, such vessels were, un- 
 der the same laws, liable to no penalty whatever for 
 leaving the port without a clearance ; for if this interdic- 
 tion already existed, and that under the heavy penalties 
 of a forfeiture, what use could there be in saying, and 
 that too by way of further sanction, that she should be 
 forfeited by leaving a district, when departing only from 
 a port was already followed with that consequence? 
 This, then, is not deemed a cause of forfeiture. 
 
 § 641. Statutes enacted at the same session of the 
 legislature are to be taken in pari materia, and should 
 receive a construction which will give effect to each if 
 possible. But if each of them cannot have the same entire 
 effect, when taken in connection with the others, that it 
 would have if taken singly, they must be construed so 
 as to give effect to what appears to have been the main 
 intent of the legislature. This rule was laid down and 
 acted upon in the case of The State v. Rackley.(d) In 
 this case, on conviction under an indictment, the jury 
 acquitted the defendant of costs, which were moved for 
 non obstante veredicto. The question arose under the 
 statute of 20th January, 1824 ; the seventy-second sec- 
 tion provided, " Costs of suit shall, in all cases of con- 
 viction, be included in the judgment, where the jury do 
 not find otherwise." Holman, J., says, " It is not con- 
 tended but that this provision, taken in itself, confers on 
 the jury a right, in cases of conviction, to acquit the de- 
 
 (<z) 2 Black. R. 249.
 
 756 OF STATUTES [CHAP. XIV. 
 
 fendant of costs. But it is urged, that this power in the 
 jury is virtually taken away by the act regulating the 
 fees of officers, which was passed at the same session of 
 the legislature, and approved 30th January, 1824. By 
 which statute it is enacted, that the officers therein men- 
 tioned shall be entitled to receive for their services the 
 fees thereby allowed. Then follows a list of services for 
 clerk, sheriff, &c, in criminal cases, in which it is stated 
 that the prosecuting attorney's fee for every conviction 
 upon indictment or presentment shall be five dollars. 
 The fees in criminal cases allowed by this act, are the 
 costs for which the judgment is usually given, and what 
 the act, in ordinary acceptation, presupposes that the 
 person convicted shall pay. This is the plain meaning 
 of the act. But this meaning is not expressed in such 
 positive terms as to authorize the court in saying that 
 the act would admit of no other, if we should thereby 
 render ineffective a previous enactment of the same 
 legislature. This act gives the officers a right to the 
 enumerated fees, but does not say in express words, that 
 they shall be paid by the defendant in all cases of con- 
 viction ; and the legislature having previously authorized 
 the jury to acquit the defendant of costs, we cannot say 
 that the two acts are so contradictory that they cannot 
 stand together. Although by this construction, we find 
 the officers of the court entitled to certain fees in crimi- 
 nal cases, without any legal method of obtaining them, 
 whenever the jury think proper to discharge the defen- 
 dant from the payment of the costs. There is another 
 act on the subject of fees of the prosecuting attorney? 
 which was also approved on 30th January, 1824, which 
 provides, that in all judgments in criminal prosecutions 
 against any defendant or defendants, the sum of five dol- 
 lars shall be taxed in the bill of costs in favor of the 
 prosecuting attorney. This act seems to be more repug- 
 nant to the dispensing power of the jury with respect to
 
 CHAP. XIV.] IN PARI MATERIA. 757 
 
 costs, than the act regulating fees ; yet if this act is not 
 altogether inconsistent with that, we should give it that 
 construction which, in our opinion, will give effect to 
 what might have been the intention of the legislature in 
 their several enactments. These acts being passed at 
 the same session of the legislature, are to be taken in 
 pari matei'ia, and to receive a construction which will 
 give effect to each if possible ; but as each cannot have 
 the same entire effect, when taken in connection with 
 the others, as it would have if taken singly, we must so 
 construe them as to carry into effect what appears to 
 have been the main intention of the legislature. That 
 intention we conceive to be this : — In criminal cases, the 
 several officers, including the prosecuting attorney, shall 
 be allowed certain fees, which, as a general rule, shall 
 be taxed in the bill of costs against the person con- 
 victed, and for which judgment shall be given ; provided, 
 nevertheless, that the jury shall have a right to discharge 
 a person convicted from the payment of costs. We con- 
 ceive that, by this construction, there is less violence 
 done to the intention of the legislature, than there would 
 be in supposing that they, by one act, intended to defeat 
 another that had been enacted at the same session. 
 
 § 642. So statutes dictated by the same policy, and 
 having in view the attainment of the same ends, and re- 
 lating to the same subject-matter, may both be consid- 
 ered and construed as one statute. As if one statute 
 prohibit the doing of a thing, and another statute be sub- 
 sequently passed whereby a forfeiture is inflicted upon 
 the person doing that act, both are to be considered and 
 construed as one act.(a) Or when an action founded 
 upon one statute is given by a subsequent statute in a 
 new case, every thing annexed to the action by the first 
 
 (a) Slradling v. Morgan, Plow. 206.
 
 758 OF STATUTES [CHAP. XIV. 
 
 statute is likewise given. (a) Or if a thing contained in 
 a subsequent statute be within the reasons of a former 
 statute, it will be taken to be within the meaning of that 
 statute.(6) But this is confined to those cases, and those 
 only, where the latter statute is in the same reason as 
 the former.(c) So too, where one statute is enlarged 
 by another, and a third is passed reciting the first, the 
 second is to be regarded as virtually recited in the last 
 reciting act. For instance, the 13 Eliz. c. 10, concern- 
 ing leases made by spiritual persons, was enlarged by 
 14 Eliz. c. 11 ; the former was only recited in 18 Eliz. 
 c. 11, yet it was holden, that the latter was virtually re- 
 cited therein. (d) In this case it was said, there is such 
 a connection between all the statutes concerning leases 
 of ecclesiastical persons, that they have been taken into 
 the construction of one another. The statute of the 32d 
 H. 8, is not recited within the one of 13 Eliz., yet a 
 lease is not warranted upon these statutes, unless it hath 
 the qualifications required by the 32 H. 8. And this 
 course is usual in the construction of statutes in pari 
 materia, 
 
 § 643. Where one statute is continued, and some ad- 
 ditional clauses added in another, the latter statute will 
 be construed as if the former had been recited therein. 
 The 22 and 23 Car. 2, c. 10, for better settling intes- 
 tates' estates, was continued, with some additional 
 clauses, by 1 Jac. 2, c. 17, and it was holden by Lord 
 Hardwicke, that for this reason, the latter statute must 
 be construed as if the former had been therein recited. 
 Whenever it can be gathered from a subsequent statute 
 in pari materia, what meaning the legislature attached 
 
 (a) Bro., Waste, pi. 68. 
 
 (b) Ld. Raymond, 1028; Sir Wm. Morels case. 
 
 (c) Ibid. 1048. 
 
 ((/) 1 Venl. 246, Bayley v. Minin.
 
 CHAP. XIV.] IN PARI MATERIA. 759 
 
 to the words of a former statute, this will amount to a 
 legislative declaration of its meaning, and will govern 
 the construction of the first statute. (a) 
 
 § 644. The cases above cited, some of which have 
 been fully annoted, are deemed to be sufficiently illustra- 
 tive of the manner in which, and the extent to which, 
 and when, courts will be governed by statutes lit pari ma- 
 teria, as well as indicative of the influence such statutes 
 should have on the mind of the court in the ascertain- 
 ment of the intent of the legislature, where from the lan- 
 guage of the act that intent is doubtful. This rule, like 
 all others, must be applied with much care and discrim- 
 ination, and only to that class of cases to which it is ap- 
 plicable. Before proceeding to note the exceptions to 
 the rule itself, it should be remarked, that it is only 
 in cases where the meaning of any particular section or 
 clause of a statute is questioned, or doubtful, from the 
 language of the act, that it is proper to look into other 
 statutes in pari materia, to ascertain such intent ; for if 
 the language be clear and implicit, so as to leave no 
 doubt upon the mind as to what was such intent, then, 
 and in such a case, there is no room for construction, 
 nor is there in such a case any need of such a 'resort. 
 
 § 645. Although it is unquestionably true, that public 
 statutes made in pari materia, should be construed as 
 though their several provisions were contained in one 
 act, or that an act may be construed by comparison with 
 another, all having relation to the same subject-matter, 
 yet it has in one case been doubted, even in the con- 
 struction of public statutes, whether this principle should 
 in any case be admitted, where they relate and extend 
 to distinct subjects, independent of each other ; and it 
 was in the same case held, that in the exposition of pri- 
 vate statutes, conferring special privileges, or imposing 
 
 (a) Morris v. Mellin, 6 Barn. & Cress. 454 ; 7 B. & C. 99.
 
 760 OF STATUTES [CHAP. XIV. 
 
 particular obligations, it is not proper to resort to the 
 language of any other private act, not relating to the 
 same parties and the same subject-matter. Such private 
 statutes standing on the same basis with contracts by 
 deed, which are not to be affected by evidence aliunde. 
 And also for the reason, that an individual who receives 
 a grant from the legislature, or when a private act is 
 passed for his benefit, is not bound to look into, and care- 
 fully examine the language of other grants and private 
 acts, in order to ascertain the true meaning of the grant 
 or act made for his own benefit.(«) 
 
 § 646. This principle was applied in the case last 
 cited, where the defendant was appointed trustee to 
 manage a lottery, and had given a bond for the faithful 
 performance of his duties ; and one question was, whe- 
 ther the court could travel out of the condition of the 
 bond, and beyond the provisions of the act to which it 
 referred, to get rid of its import and intent, by reference 
 to another statute, authorizing another lottery, and which 
 contained provisions more liberal than were contained 
 in the act under which the bond was given ; for the pur- 
 pose of inferring from the difference in the phraseology, 
 that a more strict and deeper accountability was intend- 
 ed on the part of the managers of this lottery. It was 
 held it could not. In another case it was said : " But 
 private acts of the legislature, conferring distinct rights 
 on different individuals, which can never be considered 
 as being one statute, or the part of one 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."(6) 
 
 (a) Thomas v. Mahan, 4 Maine R. 513. 
 
 (b) Per Hosmer, Ch. J., United Society v. The Eagle Bank of New Haven, 
 7 Conn. R. 470.
 
 CHAP. XIV.] IJN PARI .MATERIA. ^61 
 
 § 647. The rule we have thus far been considering is 
 that of different statutes in pari materia. There is an- 
 other rule analogous to this, which is, that in the con- 
 struction of one part of a statute, every other part of the 
 same statute ought to be taken into consideration; in- 
 deed the most natural and genuine way of construing a 
 statute is, to construe one part by another part of the 
 same statute, for this best expresseth the meaning of the 
 makers ; and such construction is ex visceribus actus. 
 Another reason assigned for this rule is, that a law is 
 the best expositor of itself, and hence every part is to be 
 taken into view, for the purpose of discovering the mind 
 of the legislature, and that the details of one part may 
 contain regulations restricting the extent of general ex- 
 pressions used in another part of the same act. This 
 rule was adopted and applied in the case of Pennigton 
 v. Coxe^a) and there are numerous cases also illustra- 
 tive of the rule. (b) 
 
 § 648. The case of Strode v. The Stafford Justices^) 
 is one which is peculiarly illustrative of the rule, and the 
 true mode of its application. The only question in that 
 case was, whether the limitation of five years, contained 
 in the twenty-second section of the judiciary act, could 
 be pleaded to a writ of error in fact. That section of 
 the act contained the following clause : " And writs of 
 error shall not be brought but within five years after 
 passing the decree complained of." This clause, stand- 
 ing unconnected with other provisions which necessarily 
 limit its operation, would extend to all writs of error, as 
 well in fact as otherwise. This was conceded by Mar- 
 
 fa) 2 Cranch R. 33. 
 
 (b) Canal Co. v. Rail Road Co., 4 Gill & John. 4 ; The opinion of the 
 Judges, 22 Pick. 571 ; Holbrook v. Holbrook, 1 Pick. 248. 
 
 (c) 1 Brocken. R. 162. 
 
 96
 
 762 OF STATUTES [CHAP. XIV. 
 
 shall, Ch. J. ; but he held it was intermingled with other 
 clauses, which essentially influenced its construction ; 
 that it was perfectly clear, that the writs of error given 
 in the twenty-second section was not a writ of error 
 coram nobis, but a writ to be issued from a superior court, 
 for the purpose of correcting the errors of an inferior 
 jurisdiction. It was contended in this case, that the 
 general words " and writs of error," &c, were unre- 
 stricted, and applied to all writs of error whatever, 
 whether such as congress then had in contemplation, or 
 such as were at the time entirely out of the mind of the 
 legislature. But it was held, that this would be a man- 
 ifest departure from the common principles of construc- 
 tion, and from what appeared to be the plain intent of 
 the act; that these words, though general, were not such 
 as to show that the term " writ of error" was used in 
 this instance in a more extended sense than was affixed 
 to it throughout this and the twenty-third and twenty- 
 fourth sections of the act. Marshall, Ch. J., speaking of 
 the words, says : " They are ' and writs of error,' that 
 is, writs of error which are the subject of the law. It 
 is probable that had a more extended operation been in- 
 tended, such terms would have been used indicative of 
 that intention. Instead of the words ' and writs of 
 error,' we should most probably have found the words, 
 ' all writs of error whatever,' or c all writs of error, 
 whether brought in a superior court or in the same 
 court,' or some other terms indicative of an intention to 
 regulate writs which were not the objects to which the 
 attention of the legislature was at the time directed." 
 It was also in this case urged, that one sentence of a law 
 could not be affected by the context. To this proposi- 
 tion the learned chief justice said : " I should as soon 
 have expected that one sentence of a will was not affect- 
 ed by other parts of the will ; in each the intention of 
 the maker is to be effected, and consequently each in-
 
 CHAP. XIV.] IN PARI MATERIA. 763 
 
 strument must be wholly inspected ; — without reasoning 
 upon this subject, the books abound with authorities 
 which seem to be conclusive. In 1 Inst. 381, Lord Coke 
 says: 'It is the most natural and genuine exposition of 
 a statute, to construe one part by another part of the 
 same statute, for that best expresseth the meaning of 
 the makers.' He afterward adds : ' and this exposition 
 is ex visccribus actus. 7 The instances which illustrate 
 this axiom in the construction of statutes are numerous. 
 They are to be found in all the books which touch on 
 the subject, and many have occurred in the supreme 
 court of the United States." 
 
 § 649. When the meaning of any particular section 
 or clause of a statute is questioned, it is no doubt pro- 
 per to look into other parts of the statute ; otherwise 
 the different sections of the same statute might be so 
 construed as to be repugnant, and the intention of the 
 legislature might be defeated : and if, upon the examina- 
 tion of the general meaning and objects of the statute, 
 it should be found inconsistent with the literal import of 
 any particular clause or section, such clause or section 
 must, if possible, be construed according to the spirit of 
 the act. But to warrant the application of this rule, the 
 intention of the legislature, as collected from the whole 
 act, must be clear and manifest.(a) But as the spirit, as 
 well as the letter of a statute, must be respected, hence 
 where the whole context of the law demonstrates a par- 
 ticular intent in the legislature to effect a certain object, 
 some degree of implication may be called in to aid in 
 that intent.(6) 
 
 § 650. Where the words of a statute are express, 
 
 (a) Mendon v. Worcester, 10 Pick. 235 ; CommomceaUh v. Cambridge, 
 20 Pick. 267 ; Holbrook v. Holbrook, 1 Pick. 250. 
 
 (b) Durousseau v. The United Stales, 6 Cranch, 307.
 
 764 OF STATUTES [CHAP. XIV. 
 
 plain and clear, they are to understood according to their 
 genuine and natural signification and import, unless, by 
 such exposition, a contradiction or inconsistency would 
 arise in the statute by reason of some subsequent clause 
 — from whence it might be inferred that the intent of the 
 legislature was otherwise. (a) And where a law is plain 
 and unambiguous, whether it be expressed in general or 
 limited terms, the legislature should be intended to mean 
 what they have plainly expressed ; and in such case 
 there is no room for construction. But if from a view 
 of the whole law, the evident intention is different from 
 the literal import of the terms employed to express it in 
 a particular part of the law, that intention should pre- 
 vail ; for that, in fact, is the will of the legislature. (6) 
 
 § 651. In the construction of a statute, by a conside- 
 ration of all its parts, great difficulty not unfrequently 
 arises from the fact that there may be, in some parts of 
 the act, general words inconsistent with the import of 
 particular words in other parts of the same act. It is 
 said(c) that general words in an act of parliament may 
 be qualified by subsequent sentences or clauses in the 
 same statute. In Andree et al. v. Fletcher : {d) the question 
 arose whether an insurance in England on a foreign ship 
 was void within the statute 19 Geo. 2, c. 37, which de- 
 clared " that it should not be lawful to make re-assurance, 
 unless the insurer shall be insolvent, become a bankrupt, 
 or die." It was contended, that because a prior part of 
 the statute which restrained insurances, interest or no 
 interest, had been held not to extend to foreigners, this 
 clause should also be confined to insurances on English 
 
 (a) Parker, 233 ; Hob. 93, 97 ; United States v. Bright, C. C. U. S., Pa. 
 Pamph. 188 ; Bac. Ab. Stat. I. 
 {b) United Slates v. Fisher, 2 Cranch, 386, 399. 
 
 (c) 8 Modern, 8 ; Rex v. Archbishop of Armagh et al. 
 
 (d) 1 T. R. 161.
 
 CHAP. XIV.] IN PARI MATERIA. 760 
 
 ships. Buller, J. said : " It has been argued, because 
 one clause of this statute does not extend to foreign ships, 
 the others shall not. But if, in the same act of parlia- 
 ment, there be one clause which applies to a particular 
 case, and another which is conceived in general terms, 
 the former shall not restrain the signification of the lat- 
 ter. But it rather operates the other way, for it shows 
 that the legislature had both cases in their view at the 
 time of passing the statute, and when they meant to con- 
 fine the prohibition to British ships, they have done so ; 
 but where they did not intend to confine it, they have 
 omitted the restriction." 
 
 § 652. It would seem, on reading the rules laid down 
 in the two cases last cited, that they are directly in con- 
 flict with each other ; and yet, such apparent conflict evi- 
 dently arises from the unqualified and unguarded manner 
 in which, the proposition is laid down in 8 Modern. The 
 true rule in reference to that proposition is that laid down 
 by Chief Justice Marshall, in the case of Adams v. 
 Wood,{a) which is this — that the general expressions of 
 a statute may be restrained by subsequent particular 
 words, which show that in the intention of the legislature, 
 those general expressions were used in a particular 
 sense." That is, where from the whole act it is mani- 
 fest that the legislature intended to use the general words 
 in the restricted sense of subsequent particular words, 
 in such case, as the intent is to be followed when 
 apparent, the general words are to be controlled and re- 
 stricted so as to meet the provision of the act expressed 
 in the particular language, used in subsequent parts of the 
 same act. This rule is based upon the ground that 
 where a general intention is expressed, and the act also 
 expresses a particular intention which is incompatible 
 
 (a) 2 Cranch, 336.
 
 766 OF STATUTES [CHAP. XIV. 
 
 with the general intention, the particular intention is to 
 be considered in the nature of an exception. (a) 
 
 § 653. Where a particular thing is given or limited in 
 the preceding part of a statute, this shall not be taken 
 away or altered by any subsequent general words of the 
 same statute. (6) This rule may perhaps be illustrated 
 by the following example. The law of Virginia, De- 
 cember 15, 1776, usually termed the penitentiary act,(c) 
 in the first section enacts that " no crime whatsoever 
 committed by any free person against the common- 
 wealth, except murder of the first degree, shall be pun- 
 ished with death. In all the subsequent sections, the 
 word free is omitted, and no words of reference are used 
 so as to connect them with the first section. Yet it has 
 been uniformly held, that all the provisions of that law 
 relate to free persons only, and that the subsequent sec- 
 tions, although the words are general, shall be restricted 
 by the first, and the general intention of the legislature 
 indicated in that section. 
 
 § 654. It is not unfrequently the case that a statute in 
 its general provisions embraces cases which are intended 
 by the legislature not to be included within it. Such 
 cases are usually taken out of the statute by a saving 
 clause or a proviso. A saving clause in a statute is only 
 an exception of a specific thing out of the general thing 
 mentioned in the statute. (d) There are instances in 
 which the saving clause is repugnant to the purview of 
 the act, and in such cases it is said that the saving clause 
 is void.(e) This rule proceeds upon the same principle 
 that prevails in reference to deeds, that a reservation of 
 
 (a) 5 Bing. 180 and 492, 3 ; Ibid. 68. 
 
 (b) Standen v. The University of Oxford, 1 Jon. 26 ; 1 Step. El. L. 6. 
 
 (c) Rand Abr. 359. 
 
 (d) 1 Kent, 462 ; Co. Litt. 381. 
 
 (e) 1 Rep. 47 ; Alton Wood's case, Plow. 564.
 
 CHAP. XIV.] IN PARI MATERIA. 7G7 
 
 the thing granted being repugnant to the grant itself, so 
 that both cannot consistently stand ; and as the deed is 
 to be taken most strongly against the grantor, as some- 
 thing was evidently intended to be granted, the reserva- 
 tion is void on the ground of such repugnancy. 
 
 § 655. The following instances are illustrations of the 
 rule above stated. I. S. was tenant in fee simple of the 
 manor of Dale, or tenant in tail thereof, the reversion to 
 the king. An act of parliament was passed, giving this 
 manor, in express words, to the king, saving the right, 
 title and interest of all persons ; and it was held, that 
 the saving clause did not save the estate of I. S., for the 
 reason that the saving as to the owner of the land was 
 repugnant, inasmuch as the manor is, by express name, 
 given to the king ; and if the general saving should be 
 extended to the owner of the land, then the act would 
 be made in vain. So, too, if it be recited in an act of 
 parliament, that whereas I. S. is seised of certain land in 
 fee, and the land by the act is given to the king in fee, 
 saving the estates and rights of all persons, the estate of 
 I. S. is not saved ; for that would be repugnant to the 
 grant, and make the express gift void. Numerous in- 
 stances of this character are stated in the case of Alton 
 Wood.(a) It is there said, " And it appeareth in our 
 books, that a saving in an act of parliament which is re- 
 pugnant to the body of the act is void, as in Plowden 
 Com. 563, b. where the supposed attainder of the Duke 
 of Norfolk was, by an act of parliament, declared to be 
 null and void ab initio, saving the estate and leases made 
 by King Edward VI., that saving was void ; for when the 
 attainder was declared to be void, the said saving was 
 against the body of the act, and therefore void."(/;) 
 
 (a) 1 Co. 47. 
 
 (b) See also Riddle v. White, 4 Cwill. 1394 ;'Ward v. Cecil, 2 Vern. 711 ; 
 5 Cru. Dig. 23 ; Viner's Ab. Stat. E. 8, pi. 5.
 
 768 OF STATUTES [CHAP. XIV. 
 
 § 656. When it is said, that where the saving is re- 
 pugnant to the purview of the act, it is void ; by the 
 purview of the act is to be understood, the enacting 
 part, or body of the act, in contradistinction to the pre- 
 amble. («) Although it is true that the rule above laid 
 down is well establised, it is equally true, that the pur- 
 view of a statute may be restrained by a saving in the 
 statute, and such saving will be effectual for that pur- 
 pose in all cases, where it is not repugnant to the body 
 of the act; that is where the saving clause may prevail, 
 and yet not quite overthrow the entire body of the act, 
 or render it completely nugatory ; (6) as in the case of 
 a deed, the language of the grant may include an entire 
 estate, and there may be in the same deed a reservation 
 or exception of part of the thing granted, which will be 
 good ; although a reservation of all that was granted 
 would be void, on the ground of repugnancy to the grant. 
 In the former case both may stand, and yet the deed 
 have some effect as a grant, whereas in the latter, both 
 cannot stand without rendering the grant entirely nuga- 
 tory. The rule itself, as well as the reasons for it, apply 
 with equal force in the construction of a statute as of a 
 deed. The reason for the rule, and the principle upon 
 which it is based in all cases, sheds light upon the ques- 
 tion as to whether a saving is void or not, and if kept 
 distinctly in view will enable any one readily to deter- 
 mine questions arising under this rule. 
 
 § 657. We have seen that a saving clause is only an 
 exception of a specific thing out of the general thing 
 mentioned in the statute. The object of a proviso to a 
 statute is, to either except something from the enacting 
 clause, or to qualify or restrain its generality, or to ex- 
 
 (a) Paynes v. Conner, 3 Bibb, 181 
 
 (b) Thornly and Fleetwood v. Duchess of Hamilton, 10 Mod. 115.
 
 CHAP. XIV.] IN PARI MATERIA. 769 
 
 elude some possible ground of misinterpretation of it, as 
 extending to cases not intended by the legislature to be 
 brought within its purview. (a) There has been a dis- 
 tinction in some of the books between a saving clause 
 and a proviso in a statute, though the reason of the dis- 
 tinction is not very apparent. It was held by the barons 
 of the exchequer, in the case of the Attorney General v. 
 The Governor and Co. of the Chelsea Water Works f (b) 
 That where the proviso of an act of parliament was 
 directly repugnant to the purview of it, the proviso 
 should stand, and be held a repeal of the purview, be- 
 cause it speaks the last intention of the lawgiver. It 
 was compared to a will, in which the latter part if in- 
 consistent with the former, supersedes and revokes it. 
 In reference to this distinction Chancellor Kent has 
 said : " But it may be remarked, upon this case of Fitz- 
 gibbon, that a proviso repugnant to the purview of the 
 statute, renders it equally nugatory and void as a repug- 
 nant 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 inconsis- 
 tent with the body of the act, should not both of them 
 be equally rejected. "(c) 
 
 § 654, Sometimes it happens, that a statute makes 
 use of a word in one part of it, which is susceptible of 
 two meanings, and in another part of the same statute 
 the same word is used in a definite sense. In such 
 cases, it is a rule of construction that it is to be under- 
 stood throughout in that sense, unless the object to which 
 it is applied, or the connection in which it stands, re- 
 
 («) Minis v. The United Stales, 15 Peters, 445. 
 
 (b) Fitzg. R. 195. 
 
 (c) 1 Kent, 462. 
 
 97
 
 770 OF STATUTES, &C. [CHAP. XIV. 
 
 quires it to be differently understood in the two places.(a) 
 But this rule is not to be applied to cases where, from 
 the language of the act, to confine its use to a definite 
 sense, will render any clause, sentence, or word super- 
 fluous, void, or insignificant.(6) 
 
 § 659. It sometimes happens that a section is intro- 
 duced into a statute, which appears a stranger to and 
 unconnected either with the preamble, or to the general 
 purview of the act, in such cases, but little aid is derived 
 in its construction either from the preamble, or purview 
 of the act. The rule of construction in such a case, as 
 laid down in Bacon's Abr. Statute, I., is, that it must 
 take effect according to its obvious meaning, independent 
 of all influence from other parts of the law. And even 
 if it be a part of the same subject, and either enlarges or 
 restrains the expressions used in other parts of the same 
 act, it must be interpreted according to the import of the 
 words used, if nothing can be gathered from such other 
 parts of the law to change the meaning. But if in this 
 latter case general words are used, which import more 
 than seems to have been within the purview of the law, 
 or of other parts of the law, and those expressions can 
 be restrained to others used in the same law, or in any 
 other upon the same subject, they ought to be so re- 
 strained. What we have said in this chapter as well as 
 in a previous chapter is all that is deemed necessary as 
 illustrative of the rule in reference to the construction of 
 statutes in pari materia. 
 
 (a) Den ex dem. James v. Dubois, 1 Har. N. J. R. 293. 
 
 (b) Ibid. 293.
 
 CHAP. XV.] OP AFFIRMATIVE AND, AC 771 
 
 CHAPTER XV. 
 
 OF AFFIRMATIVE AND NEGATIVE STATUTES. 
 
 § 660. Some statutes are, from their being in affirma- 
 tive terms, called affirmative statutes ; others obtain the 
 name of negative statutes, because they are penned in 
 negative terms. It is a maxim of the law, that an affir- 
 mative statute does not take away the common law. It 
 is laid down as a rule in the Institutes ; if a statute gives 
 a remedy in the affirmative without a negative, expressed 
 or implied, for a matter which was actionable at common 
 law, the party may sue at the common law, as well as 
 upon the statute, for this does not take away the com- 
 mon law remedy.(a) Thus, it has been held, that where 
 a statute authorized the erection of a mill-dam upon 
 one's own land, upon a creek or river which is a public 
 highway, although it might protect the party from in- 
 dictment for a nusance ; if in doing it, he flow his neigh- 
 bor's land, he is liable to an action, even though the act 
 provides for a summary mode of appraising and paying 
 the damages arising from such a consequence. (6) In 
 the case cited the court held, that if there had been no 
 express provision in the act for the payment of damages, 
 the defendant would have been still liable to pay them ; 
 and the only effect of this provision was, to enforce the 
 duty of making compensation by additional sanctions, as 
 the grant or license might be avoided, if the defendant 
 
 (a) 2 Inst. 200. 
 
 (b) Crittenden v. Wilson, 5 Cow. 165.
 
 772 OF AFFIRMATIVE AND [CHAP. XV. 
 
 should fail to pay the damages in the manner prescribed 
 by the act. The effect of the grant was merely to au- 
 thorize the defendant to erect a dam, as he might have 
 done if the stream had been his own, without a grant. 
 In that case he would have been responsible in damages 
 for all the injury occasioned by it to others. It was not 
 the intention of the legislature, by making it a condition 
 of the grant, that the defendant should pay the damages 
 which might result to third persons from his dam, to be 
 ascertained in the manner pointed out in the act, to de- 
 prive those who might sustain injury of their remedy by 
 action. Their object was to provide a summary remedy 
 for those who might be injured by the dam, by which 
 they might be remunerated more expeditiously and with 
 less expense than by the ordinary course of law. But 
 as there was nothing in the act which either in terms, 
 or by necessary implication, made it compulsory upon 
 those who might be injured to have their damages as- 
 sessed under the act, or deprive them of their pre-exist- 
 ing common law remedy by action — as the act was not 
 couched in negative terms, the remedy which it provided 
 was merely cumulative, and not exclusive. The court 
 based their decision upon the above rule laid down in 
 the Institutes, which it cites, as the rule applicable to 
 such a case.(«) 
 
 § 661. In another case(b) it was held, that where a 
 new right is introduced by statute, the party complain- 
 ing of its violation was confined to the statutory remedy, 
 if one be prescribed. But that it would be otherwise 
 where the right existed at common law, and an affirma- 
 tive statute intervenes, inflicting a new penalty. The 
 court said, if a statute is introductive of new rights 
 
 (a) See Beckford v. Hood, 7 T. R. 628. 
 {b) Lang v. Scott, 1 Blackf. Ind. R. 405.
 
 CHAP. XV.] NEGATIVE STATUTES. 773 
 
 which did not before exist in the country, and prescribes 
 the penalty for their violation, the persons claiming under 
 the act, must depend for the security of the rights (1ms 
 claimed upon the provisions therein specified. In the 
 case last cited, the action was for erecting an unautho- 
 rized ferry within two miles of the plaintiff's ferry. The 
 court held, that as the exclusive privileges of ferries 
 were not known in that state until they were authorized 
 by statute, and as the statute by which they were au- 
 thorized prescribed a specific penalty for their violation, 
 upon the provisions of the act the owners of the ferry 
 must rely for the security of their rights, so far as the 
 courts of common law were concerned. 
 
 § G62. Almij v. Harris^a) was also an action on the 
 case, for disturbing the plaintiff in the enjoyment of a 
 ferry granted to Harris. It was held that the action 
 would not lie. The act to regulate ferries within this 
 state prohibited any person within certain districts from 
 keeping or using a ferry, for transporting across any 
 river, stream, or lake any goods or merchandise for profit 
 or hire, unless licensed in the manner directed in the act, 
 under a penalty of five dollars. If the plaintiff had pos- 
 sessed a right at common law to the exclusive enjoy- 
 ment of this ferry, then the statute giving a remedy in 
 the affirmative, without a negative expressed or implied, 
 for a matter authorized by the common law, he might, 
 notwithstanding the statute, have his remedy by action 
 at the common law. But as he had no such right at 
 common law, nor any right except that derived from the 
 statute, consequently he could have no rights since the 
 statute but those it gave, and must pursue his remedy 
 under the statute.(^) 
 
 (a) 5 J. R. 175. 
 
 (b) See Bissel v. Lamed, 16 Mass. R. 65.
 
 774 OF AFFIRMATIVE AND [CHAP. XV. 
 
 § G63. But where a right is granted by statute, and 
 the act granting the right is silent as to the remedy, and 
 a subsequent statute is passed giving a forfeiture or pe- 
 nalty for the violation of that right, as the right had be- 
 come vested by the first act, such forfeiture or penalty is 
 regarded merely as cumulative to the remedy provided 
 at common law, in cases of the violation of a statute 
 right, where the statute creating the right is silent as to 
 the remedy. This rule was distinctly recognized by 
 Justice Thompson, in the case of Livingston v. Van In- 
 gen.(a) In that case, the legislature had granted, under 
 the act of 1798, to certain persons the sole and exclu- 
 sive right of using and navigating boats by steam in the 
 waters of this state, but that act was silent as to the re- 
 medy for an infringement of the right. Subsequent acts 
 created a forfeiture of boats used in violation of the right 
 secured. Such forfeiture was held to be cumulative 
 merely. Thompson, Justice, said in that case, " But it 
 is said that the right claimed by the appellants being 
 created by statute, they are entitled to no other remedy 
 than that which the statute gives. Without examining 
 whether the rule of law upon which this objection is 
 founded is not confined to criminal cases altogether, it 
 certainly cannot be applied to the present case, for the 
 forfeiture is not given by the same statute which created 
 and gave the right, nor until the right was actually 
 vested in the appellants, by a fulfilment of the terms and 
 conditions upon which they were to be entitled to the 
 exclusive privilege now claimed by them ; and if the 
 right was vested, all existing remedies to enforce it were 
 also vested, and are not to be taken away by implica- 
 tion. The act of April, 1808, creating the forfeiture, pur- 
 ports to be an act for the further encouragement of the 
 
 (a) 9 J. R. 507.
 
 CHAP. XV.] NEGATIVE STATUTES. 775 
 
 appellant's steamboats, which plainly shows that the re- 
 medies therein provided were intended as cumulative, 
 and in addition to those already existing." 
 
 § 664. Where a statute does not vest a right in a per- 
 son, but only prohibits the doing of some act under a pe- 
 nalty, the party violating the statute is liable only to the 
 penalty. But where a right of property is vested in con- 
 sequence of the statute, it may be vindicated by the com- 
 mon law, unless the statute confines the remedy to the 
 penalty. This distinction was recognized and applied 
 in the case of harden v. Crocker^a) The statute of 
 1815, ch. 11, sec. 1, provided that the town of M. should 
 at a legal town meeting dispose of and grant, upon such 
 conditions and under such restrictions and regulation as 
 said town should establish, for that year, and so from 
 year to year, the sole privilege of catching alewives 
 with scoop nets or set nets, on the days and at the places 
 designated by the act, to such person or persons as should 
 give the most for the same, and give sufficient security 
 for payment : such person so purchasing were to have 
 the right to take fish, and no other person whatever. It 
 further provided, that if any person should obstruct the 
 passage of the fish, he should be liable to a penalty not 
 exceeding $20, and not less than $5, to be recovered by 
 indictment, complaint, or action of debt ; the one half to 
 the town, and the other half to the prosecutor. In an 
 action for obstructing the passage of such fish, it was 
 held, that the remedy prescribed by the statute was cu- 
 mulative, and that an action on the case at common law 
 might be maintained by the vendee, to whom the privi- 
 lege had been sold by the town, against the person ob- 
 structing the passage of fish. The court placed their 
 decision upon the ground that the grantee of the town 
 
 (a) 10 Pick. 383.
 
 776 OF AFFIRMATIVE AND [CHAP. XV. 
 
 acquired a valuable interest or franchise in the fishery, 
 and entitled at common law to a remedy for its disturb- 
 ance. That in all cases where a man has a temporal 
 loss or damage by the wrong of another, he might have 
 an action on the case, to be repaired in damages. In an- 
 swer to the objection that the plaintiff's remedy should 
 have been a suit for the penalty, or by abating the nui- 
 sance, the court held it was clear, at common law, were 
 it a public nuisance, one who sustained a particular in- 
 jury might have his action for the damages, and the 
 same rule must apply to a private nuisance. The reme- 
 dies were cumulative. The penalties inflicted in the act 
 were recoverable by a process in the nature of a prose- 
 cution for the public, but that could not affect the com- 
 mon law right of an individual to recover the particular 
 injury sustained by reason of the nuisance. The suit 
 for the penalty might be brought by persons who had no 
 exclusive right to the fish, and would give no satisfac- 
 tion for the injury done to the true owner. The penalty 
 operated as a punishment of the offender, but made no 
 adequate compensation for the particular injury to the 
 plaintiff. That the distinction to be taken was where a 
 statute does not vest a right in a person, but only prohi- 
 bits the doing of some act under a penalty ; in such cases 
 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 is to be vindicated by the common law 
 unless the statute confines the remedy to the penalty. 
 
 § 665. The same rule obtained in another case.(«) 
 The statute of 8 Anne, c. 19, gave to authors the sole 
 right and liberty of printing their works for fourteen 
 years, and certain penalties for violating the act. The 
 
 (a) Beckford v. Hood, 7 T. R. 620.
 
 CHAP. XV.] NEGATIVE STATUTES. 777 
 
 action in this cause was case for damages which the 
 author had sustained for an invasion of his literary pro- 
 perty. It was contended that his only remedy was for 
 the penalty. The court held that the right of property 
 was vested in the author, and the penally a mere cumu- 
 lative remedy. Lord Kenyon said : " The statute hav- 
 ing vested the right in the author, the common law gives 
 the remedy by action on the case for the violation of it. 
 But it is agreed that as the statute in the same clause 
 that creates the right has prescribed a particular remedy, 
 and that no other can be resorted to ; and if such ap- 
 peared to have been the intention of the legislature, I 
 should have subscribed to it, however inadequate it 
 might be thought. But their meaning in creating the 
 penalties in the latter part of the clause in question, cer- 
 tainly was to give an accumulative remedy." Ashurst, 
 Justice, said : " Now I only consider the action for the 
 penalties given to a common informer, as an additional 
 protection, but not intended by the legislature to oust 
 the common law right to prosecute by an action any per- 
 son who infringes this species of property which would 
 otherwise mainly attach upon the right of property so 
 conferred. Where an act of parliament vests property 
 in a party, the other consequence follows, of course, un- 
 less the legislature make a special provision for the pur- 
 pose, and that does not appear to have been intended in 
 this case. The penalties to be recovered may indeed 
 operate as a punishment upon the offender, but they af- 
 ford no redress to the injured party. The action is not 
 given to him, but to any person who may get the start 
 of him and sue first. It is no redress for the civil injury 
 sustained by the author in the loss of his full profits." 
 
 § 666. Where a statute gives a new power, and at the 
 same time provides the means of executing it, those 
 who claim the power can execute it in no other way. 
 
 98
 
 778 OF AFFIRMATIVE AND [CHAP. XV. 
 
 Thus in Andovcr and Medford Turnpike Co. v. Gould,(a) 
 where a statute authorized assessments to be made upon 
 the shares of the corporation, and that whenever any 
 proprietor should neglect or refuse to pay a tax or as- 
 sessment within a limited time, the treasurer might sell 
 the shares of the delinquent at public auction for the 
 payment of the tax. It was held that in the absence 
 of an express promise to pay, no action could be sus- 
 tained to recover the assessment, but that the remedy was 
 that pointed out in the act. 
 
 § 667. It is in general true, that if an affirmative sta- 
 tute, which is introductive of a new law, direct a thing to 
 be done in a certain manner, that thing shall not, even 
 although there are no negative words, be done in any 
 other manner. Thus it has been held, that under the 
 statutes of Massachusetts, which directed the method of 
 laying out highways, provision was made that if any 
 person be damaged in his property by laying out a high- 
 way, the town where the same is shall make such per- 
 son satisfaction, according to the estimation of the com- 
 mittee ; and provision was made, that the court of sessions 
 might order the payment of such sum of money as should 
 be assessed in damages, to be paid by the town out of the 
 treasury, and in default of payment after a reasonable 
 time, the court might levy the same by warrant of dis- 
 tress upon the personal property of the inhabitants. It 
 was held that an action of debt against the town could 
 not be sustained, although the sessions had omitted to 
 order payment of the damages. (6) In the case cited 
 from Plowden it was held, that if an action founded upon 
 
 {a) 6 Mass. R. 41 ; see also 1 Metcalf, 138 ; 3 Fairfield, 388 ; 19 Wend. 
 R. 405 ; 7 Mass. R. 102 ; 8 Mass. 138 ; 10 Mass. 284 ; 14 Mass. 286 ; 14 
 Pick. 483 ; 16 Mass. 94 ; 3 Metcalf, 520. 
 
 (/>) Gedney v. Inhabitants of Tewksbury, 3 Mass. R. 308. See also Plow- 
 den, 206 ; Stradling v. Morgan, Hob. 298 ; Sid. 56.
 
 CHAP. XV.] NEGATIVE STATUTES. 779 
 
 a statute be directed to be brought before a particular 
 court, or a particular justice in his sessions, it cannot be 
 brought before any other person, or in any other place. 
 In Forbes 1 case(a) it was held, that under a statute which 
 provided that error in the exchequer chamber should be 
 amended before the chancellor and treasurer, such error 
 could not be amended before any other person or per- 
 sons. The cases above cited clearly establish the rule, 
 that where a new power is given by an affirmative sta- 
 tute to a certain person, or to certain persons, by the 
 designation of those persons, although it be an affirma- 
 tive statute, all other persons are in the general excluded 
 from the exercise of the power. This rule is founded 
 upon the maxim, that inclusio unius est exclusio aUerius. 
 But if anterior to the passage of such an affirmative 
 act, giving such new powers to a designated person or 
 persons, other persons had by a previous statute power 
 to do the same act, the giving of such power by an affir- 
 mative act to a certain designated person or persons does 
 not exclude the persons having such antecedent power 
 from the exercise of the same power. (b) Lord Bacon 
 cites the following instance as illustrative of this rule. 
 By the 8 Hen. 6, c. 16, it is provided : " That after office 
 found, he who finds himself aggrieved may, within a 
 month offer his traverse, and to take the premises to 
 farm ; and the chancellor, treasurer, or other officer shall 
 demise them to farm." By the 1 Hen. 8, c. 16, liberty is 
 given to the persons aggrieved, " to do this at any time 
 within the space of three months." Afterwards the 32 
 Hen. 8, 6. 40, authorizes the master of the wards " to grant 
 a lease of the lands of a ward or an idiot while they re- 
 main in the hands of the crown." This last clause, not- 
 
 (a) 11 R. 59. 
 
 (b) Davis v. EJ/nonson, 3 Bos. & Put. 387.
 
 780 OF AFFIRMATIVE AND [CHAP. XV. 
 
 withstanding the designation of a new person, shall not 
 take away the power given by the former; for if before 
 any lease is granted by the master of the wards the 
 chancellor or treasurer grant a lease of the premises, the 
 master of the wards cannot afterwards demise them.(«) 
 
 § 668. But where an offence is created by statute, and 
 a specific remedy prescribed, that remedy alone can be 
 pursued. (b) In the case last cited, the defendant, was 
 indicted for retailing spirituous liquors without a license. 
 The statute of Indiana, under which the indictment was 
 found, declared that for every offence against its provi- 
 visions the offender should pay three dollars, and that 
 the fines should be collected in a given way. But it 
 was held, that as the statute created th-e offence, and it 
 was one which did not. exist at common law, it was not 
 indictable, and that the only remedy was that provided 
 for in the act. The rule that where a statute creates 
 an offence unknown to the common law, and in the en- 
 acting or prohibiting clause points out the mode of pro- 
 ceeding under it, that mode alone can be pursued, is not 
 applicable to beneficial statutes in civil cases, was dis- 
 tinctly held in the case of The Hartford and New Haven 
 Rail Road Co. v. Kennedy,(c) and seems impliedly to 
 have received the sanction of Mr. Justice Thompson, in 
 one of the cases decided by him. 
 
 § 669. Where a statute makes that unlawful which 
 was lawful before, and appoints a specific remedy, that 
 remedy must be pursued and no other. It would be 
 otherwise, however, if the offence were before punishable 
 at common law, for then the particular remedy given by 
 statute would be regarded as cumulative, and in such 
 cases either the statutory or common law remedy might 
 
 (a) Bac. tit. Statute, p. 236. 
 
 (b) Sturgeon v. The State, 1 Blackf. R. 39. 
 
 (c) 12 Conn. R. 500.
 
 CHAP. XV.] NEGATIVE STATUTES. 781 
 
 be pursued. (a) A distinction is however taken in those 
 cases where the offence is created, and the penalty given 
 by the same statute, provided they are in separate clauses. 
 In The King v. IIarrk(h) this disinction is recognized* 
 Ashurst, Justice, says, " it is a clear and established prin- 
 ciple, that where a new offence is created by an act of 
 parliament, and a penalty is annexed to it by a separate 
 and substantive clause, it is not necessary for the prose- 
 cutor to sue for the penalty, but he may proceed on the 
 prior clause on the ground of its being a misdemeanor." 
 The distinction taken in this case was alluded to and 
 received the sanction of the court in the case cited from 
 12 Conn. Reports, and the court in that case, as has 
 been seen, applied the rule to a civil case, creating a 
 right in one section of a statute, and providing a specific 
 remedy in a subsequent section of the same act. If a 
 statute without any negative words, declare that deeds 
 shall have in evidence a certain effect, provided particular 
 requisites are complied with, this does not prevent their 
 being used as evidence, though the requisites were not 
 complied with, in the same manner as they might have 
 been before the statute was passed. Hence, in a case 
 where by the sixth section of the act of January, 1762, 
 of the colony laws, it was declared, that every former 
 division of lands of which there was a map or note in 
 writing, under the hands of the proprietors, should be 
 a valid partition, provided such map or note be proved 
 before a judge of the supreme court, and a true copy of 
 such map filed, and such note recorded ; on the trial of 
 an action of ejectment, a deed down to the date of a par- 
 tition and map was admitted in evidence, although it 
 was objected, that it was not admissible, because it did 
 
 (a) Rex v. Robinson, 2 Burr. 799 ; 1 Will. Saund. 135, note 1 ; ibid. 250 
 and note 3. 
 
 (i) 4 T. R. 205.
 
 782 OF AFFIRMATIVE AND [CHAP. XV. 
 
 not appear that the map had been filed or the certificate 
 of proof recorded. In answer to this objection the court 
 held, that the act of 8th January, 1762, sec. 6, declared 
 that every former division of lands of which there is a 
 map or note in writing, under the hands of the proprie- 
 tors, shall be a valid partition thereof, provided, such 
 map or note be proven, &c. That if the condition on 
 which all such previous partitions were declared valid 
 be not performed, the transaction was left as it was be- 
 fore, and was to be considered independent of the act. 
 That the division and the deed between the proprietors, 
 by which they covenanted to abide by it, and the sepa- 
 rate possession taken in pursuance of it, severed the ten- 
 ancy in common. The parties became concluded and 
 bound by the act, and the map and deed being proved 
 before a competent officer, and possession having gone 
 accordingly, the deed and map were admissible as legal 
 evidence in the case. (a) 
 
 § 670. Where a statute directs a person to do a thing 
 in a certain time, without any negative words restrain- 
 ing him from doing it afterwards, the naming of the time 
 will be considered as directory to him, and not as a limi- 
 tation of his authority. In a case where the assessors 
 of a school district were directed to assess a school dis- 
 trict tax within thirty days after the district clerk had 
 certified the vote for raising it, it was held that although 
 the assessors were directed to assess the tax within 
 thirty days after the certificate, yet as there were no ne- 
 gative words restraining them from making the assess- 
 ment afterwards, and accidents might happen which 
 would defeat the authority, if it could not be exercised 
 after the expiration of thirty days ; that the naming of 
 
 (a) Jackson ex dem. Van Vecten el al. v. Bradt, 2 Caines' R. 169.
 
 CHAP. XV.] NEGATIVE STATUTES. 783 
 
 the time must therefore be considered as directory to the 
 assessors, and not as a limitation of their authority. (a) 
 § 671. In another case,(fr) where the militia law made 
 it the duty of the commanding officer of the brigade to 
 appoint a brigade court-martial on or before the first day 
 of June in each year, it was insisted that an order made 
 subsequent to the day specified in the act was void, and 
 a fine imposed by a court-martial under such order ille- 
 gal. The question presented in this case was, could the 
 power given to the commandant of the brigade to ap- 
 point a court-martial be exercised after the first day of 
 June. The court, in the decision of this question, laid 
 down the general rule to be, that where a statute speci- 
 fies 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, unless the nature of the 
 act to be performed, or the language used by the legisla- 
 ture, show that the designation of time was intended as 
 a limitation of the power of the officer. In this case 
 there was nothing in the nature of the power showing 
 that it might not be as effectually exercised after the limit 
 of June as before ; and as the act giving it contained no 
 prohibition to exercise it after that period, the naming 
 of that day was a mere direction to the officer in rela- 
 tion to the manner of executing his duty, there was 
 nothing in the nature of the power given, or in the man- 
 ner of giving it, that justified the inference that the time 
 was mentioned as a limitation, (c) In Merchant v. Lang- 
 worthy^d) it was held that the provisions of the statute 
 requiring the clerk of a school district to post notice of 
 annual meetings, was directory merely to that officer. 
 
 (a) Pond v. Negus, 3 Mass. R. 232. 
 
 (b) The People v. Allen, 6 Wend. R. 486. 
 
 (c) See also The People v. Peck, 11 Wend. 604. 
 
 (d) 6 Hill, 646.
 
 784 OK AFFIRMATIVE AND [CHAP. XV- 
 
 In the last case cited, the statute contained an express 
 provision that the want of notice should not invalidate 
 the proceedings of an annual meeting, but the court held 
 that the result would have been the same if the statute 
 had not contained such a provision, as the annual 
 meeting was required to be held in each school district, 
 and at each annual meeting the time and place of hold- 
 ing the next annual meeting was to be fixed. In ano- 
 ther case,(a) it was held that although the act regulating 
 sales of real property on an execution makes it the duty 
 of the sheriff to file a certificate of sale, in the clerk's of- 
 fice, within ten days after the sale takes place, yet this was 
 merely directory to the officer, and that the omission to 
 do so did not affect the validity of the sale. The filing 
 of the certificate was not a condition precedent to the giv- 
 ing of the deed and passing the title. Where a statute 
 required " That the panel of assize shall be arrayed for 
 four days before the day of assize, it was held that if 
 this was done two days before the day of the assize, it 
 would be good as that two days were sufficient at com- 
 mon law. (6) 
 
 § 672. In Ex parte Heath v. JRoomc,(c) the rule is 
 again adopted that, in general, when a statute requires 
 an official act to be done by a given day for a public pur- 
 pose, it shall be construed as merely directory in regard 
 to the time ; accordingly, it was in that case held, that 
 where ward inspectors of the city of New York were 
 required by a statute to certify the results of the ward 
 elections on the day subsequent to the closing of the polls, or 
 sooner, their certificate was valid, although not made till 
 the second day after closing the polls. That although a 
 public officer neglect his duty, by allowing the precise 
 
 (a) Hooker v. Young, 5 Cow. R. 269. 
 
 (b) See 1 Burr, 447. 
 
 (c) 3 Hill, 42.
 
 CHAP. XV.] NEGATIVE STATUTES. 785 
 
 time to go by, if he afterwards perform it, the public 
 shall not sutler by the delay. 
 
 § 673. 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 until the 8th of Au- 
 gust, it was held that this provision was directory, and_y 
 that a jury empannelled from a jury so chosen was a le- 
 gal jury. The court said, however much the corpora- 
 tion ought to suffer for their own default, it would be a 
 very harsh construction to say, that by the neglect of^ 7 
 their officers they should forfeit their charter. This is 
 not claimed ; but it is said that they should not have a 
 jury for that year. Suppose the common council neglect- 
 ed this duty intentionally, w r ould not a mandamus lie to 
 compel them to discharge it 1 — and would it be a good 
 answer by them that the time had elapsed? May they, 
 by their negligence or design, thus deprive the public of^ 
 the right of a court within the city 1 Is it not incident 
 to the enjoyment of the privileges conferred by this char- 
 ter, that there should be a jury 7 Is it not necessary for 
 the administration of justice according to the charter ] 
 To effect this, it is made the duty of the court of com- 
 mon council to nominate these jurors, and they are di- 
 rected when to do it. It is said that the law is as impe- 
 rative as to the time as it is as to the duty ; and it is 
 analogous to the nomination of jurors in the towns, in 
 the month of January, for each year, which, it is said, ^ 
 cannot be done at any other time. There it is not con- 
 fined to a single day, but may be done during the month. L 
 This fact, with the penalty for non-compliance, has been 
 sufficient to prevent any question under the law. Anv- 
 omission, by one or two towns, would not prevent the 
 accustomed administration "of justice in the county; and 
 it cannot be supposed such an omission could be gene- 
 ral. The object, in the case before us, was to have ju- 
 rors at all times when wanted. So the abstract of the 
 
 99
 
 T8G OF AFFIRMATIVE AND [CHAr. XV. 
 
 lists ought to be with the comptroller, for his use when 
 wanted. But as there seems no particular reason to be 
 assigned why the particular day designated by the law 
 should be suffered to be passed over more in one case 
 than in the other, we think the requisitions in this re- 
 spect should be subject to the same construction, and 
 both be considered as directory. After citing the case 
 of The Peop>le v. Holly \(a) and the case of The People v. 
 Allen : (b) with approbation, the court say, " there (that is, 
 in the latter case) a power was given to a military offi- 
 cer to appoint a court-martial on or before the first of 
 June. Here the mayor and common council are to meet 
 and appoint jurors on or before the first of July. In 
 each case public officers are to meet and perform official 
 acts regarding the rights and duties of others ; one re- 
 garding a military, the other a civil tribunal, to adminis- 
 ter justice. There is nothing in the nature of the power 
 given, or in the manner of giving it, that justifies the in- 
 ference that the time was intended as a limitation more 
 in the one case than in the other. We think, there- 
 fore, that we are bound to say, that the regular admin- 
 istration of justice in our cities is not to be defeated by 
 an omission of this kind ; that the time fixed for select- 
 ing jurors is merely directory, and therefore that this 
 objection cannot prevail. "(c) The People v. Holly,(d) 
 was a case arising under sec. 67 of 1 R. S. 378, which 
 provided, " Every person hereafter elected to the office 
 of sheriff of any county within this state, shall, within 
 twenty days after he shall receive notice of his election, 
 *\ and before he shall enter upon the duties of his office, 
 execute, with sureties who shall be freeholders, a joint 
 
 (a) 12 Wend. 480. 
 
 (b) 6 Ibid. 486. 
 
 (c) Colt v. Eves, 12 Conn. R. 243 to 255. 
 
 (d) 12 Wend. 486.
 
 CHAP. XV.] NEGATIVE STATUTES. 787 
 
 and several bond to the people of the state, it was held 
 that a sheriff does not lose his office by neglecting to 
 give his official bond within twenty days after receiving 
 notice of his election, provided that he execute and file 
 it within fifteen days after the commencement of his term 
 of office. (Vt) 
 
 § 674. So it has been held,(6) that a school district 
 tax was valid, though it be assessed, and the tax list 
 thereof be made out by the trustees after the expiration 
 of one month from the time of holding the district meet- 
 ing at which it was voted. The statute required, and the 
 court admitted, that the tax should be assessed, and the 
 tax list made out by the trustees within one month after 
 the meeting at which the tax was voted. Neither of the 
 tax lists were made out in season ; but as there were no 
 regular words in the statute, such as would necessarily 
 make it imperative, in such a case, for the benefit of the 
 public, the act might be done after the time had elapsed, 
 the statute as to time being regarded as directory only. 
 By the 7th section of the act of 7th April, 1830. amend- 
 ing the charter of the city of New York, it is provided, 
 that all resolutions and reports of committees which 
 shall recommend any specific improvement involving the 
 appropriation of public monies, or taxing or assessing the 
 citizens of said city shall be published immediately after 
 the adjournment of the board, under the authority of the 
 common council, in all the newspapers employed by the 
 corporation ; and whenever a vote is taken in relation 
 thereto, the ayes and noes shall be called and published 
 in the same manner. In Striker v. Kelly,(c) it was held, 
 by a majority of the court, that a resolution for the open- 
 ing of a street might be passed by the common council, 
 
 (a) See Coll v. Eves, 12 Conn. R. 243 to 255. 
 (A) Gale v. Mead, 2 Denio, 232. 
 (c) 7 Hill, 9.
 
 788 OF AFFIRMATIVE AND [dlAP. XV. 
 
 without calling the ayes and noes — that the provision 
 on that subject was merely directory. In this case, how- 
 ever, Bronson, J. dissented. The grounds of his dissent 
 on this point were, that it was well known that men 
 acting in a body, especially when under the cover of 
 corporate privileges, would often do what no one of them 
 would be willing to do if acting alone and upon his indi- 
 vidual responsibility. They would sometimes say "aye," 
 or permit a matter to pass sub silcntio, where they would 
 not venture to record their names in favor of the mea- 
 sure. To guard against such evils, and protect the citi- 
 zens against the imposition of unnecessary burthens, it 
 was provided by the seventh section of the amended 
 charter, that the ayes and noes should be called and pub- 
 lished whenever a vote of the common council shall be 
 taken on any proposed improvement involving a tax or 
 assessment upon the citizens. That the language was 
 imperative. The ayes and noes shall be called. Where 
 a particular mode in which a corporation is to act is thus 
 specifically declared by its charter, he thought it could 
 only act in the manner prescribed by law. The contrary 
 doctrine wanted the sanction of a legal authority, and was 
 fraught with the most dangerous consequences. It would 
 place the corporation above the laws, and there was rea- 
 son to fear that they would soon become an intolerable 
 nuisance. 
 
 § 675. In the marginal note to the case of Wiggin v. 
 Jlte Mayor of New York^a) it is said, " It seems that 
 the provisions of the act of April, 1830, relative to the 
 city of New York, requiring the ayes and noes to be 
 taken and published, is merely directory so far as relates 
 to the publication." The chancellor, in his opinion in 
 that case, says : " It is not necessary, therefore, that £ 
 
 (a). 9 Paige,- 16/
 
 CHAP. XV.] NEGATIVE STATUTES. 789 
 
 should express any opinion at this time upon the ques- 
 tion whether the seventh section of the act of April, 
 1830, requiring the ayes and noes to be taken and pub- 
 lished in certain cases, applies to this case, or whether 
 the last clause of that section applies merely to improve- 
 ments which are to be paid for out of the funds of the 
 corporation generally, or by a tax or assessment upon 
 the citizens at large, and not to cases where the owners 
 of property benefited by the improvement proposed are 
 to bear to the whole expense thereof. As that question 
 was not argued before me, I have not examined it. But 
 if the provision is applicable to a case of this kind, I 
 think it is merely directory as to the publication of the 
 report of the ayes and noes upon the question of the 
 adoption of the ordinance for the proposed improve- 
 ment. The neglect to make such publication did not 
 therefore render the proceeding void if the ordinance was 
 not void upon the face of the record of its adoption." It 
 will be perceived that in this case the chancellor does 
 not give any opinion in the point decided by the su- 
 preme court in the case of Striker v. Kelly, that the 
 taking the ayes and noes was not imperative. The case 
 of Striker v. Kelly was subsequently reversed in the 
 court for the correction of errors \(a) but not upon the 
 point as to which Mr. Justice Bronson dissented in that 
 part of his opinion quoted above. 
 
 § 676. For our own part, we cannot discover upon 
 what well founded rule of construction the prevailing 
 opinion of Mr. Justice Beardsley, in that case, in the 
 court of dernier resort, can be sustained, unless it be 
 upon the assumption, that although the object of the act 
 was to attain the ends and guard against the evils al- 
 luded to in the dissenting opinion of Justice Bronson, that 
 
 (a) 2 Denio, 323.
 
 r 
 
 790 OF AFFIRMATIVE AND [ciIAP. XV. 
 
 end could be attained without making the act imperative in 
 this respect. For the obvious principle that prevails in 
 all rules of construction is, to carry into effect the intent 
 of the legislature, and to secure the object intended to 
 be secured by the statute. If then, the rule adopted by 
 him would not effectuate that intent, and guard against 
 the evils at which the act was aimed, to construe it in 
 any other way than as imperative in this respect, would 
 tend to defeat instead of carrying into effect the intent 
 and object of the law-makers, and would be at war with 
 the well settled rule of construction above alluded to. 
 To our mind, it is obvious at least, that the surest, if not 
 the only way of effectuating that intent, and guarding 
 against the evils at which it was aimed, is to hold the 
 requisition of the act as imperative. («) But this opinion 
 of Judge Beardsley seems also at war with another prin- 
 ciple, which has long since prevailed, that a corpo- 
 ration is the mere creature of the statute, and is precise- 
 ly what the incorporating act has made it, and can only 
 act in the manner prescribed by the act which created 
 it. The decision of the supreme court was re- 
 versed upon another ground, to wit, that the making of 
 an affidavit by the collector, as required by an act of 
 1816, was an essential part of the power to sell, which 
 must be affirmatively shown, and that a lease reciting 
 that fact was not evidence of the fact that such an affi- 
 davit was made. Only two senators concurred in sus- 
 taining the prevailing opinion in the supreme court. The 
 precise point upon which Mr. Justice Bronson dissented, 
 has not therefore been as yet adjudicated in the court of 
 dernier resort. 
 
 § 677. It has frequently been held, that where a power 
 or franchise is created by a statute, which fixes or p re- 
 
 fa) See Wheaton el al. v. Peters el al, 8 Peters, 593.
 
 CHAP. XV.] NEGATIVE STATUTES. T 1 
 
 scribes the mode of its exercise, it must be exercised in 
 the mode pointed out by the act, and in no other, and 
 those upon whom it is conferred are confined strictly to 
 the act creating it. This rule was admitted in the case 
 of Head and Amory v. The Providence Insurance Co.{a) 
 In that case it was held, that a corporation can act only 
 in the manner prescribed by the act of incorporation 
 which created it. Where its agents do not clothe their 
 proceedings with those solemnities which are requisite 
 by the incorporating act to enable them to bind the com- 
 pany, the contract was not binding upon the company. 
 In its corporate capacity a corporation was a mere crea- 
 ture of the act to which it owes its existence. It was 
 precisely what the incorporating act made it. It de- 
 rived all its powers from that act, and was capable of 
 exerting its faculties only in the manner that the act 
 authorized. An individual had an original capacity to 
 contract and bind himself in such manner as he pleases ; 
 but with those bodies which have only a legal existence 
 it is otherwise. The act of incorporation is to them an 
 enabling act; it gives them all the power they possess; 
 it enables them to contract, and when it prescribes to 
 them a mode of contracting they must observe that mode, 
 or the instrument no more creates a contract than if the 
 body had never been incorporated. It is upon a prin- 
 ciple somewhat analogous that the doctrine obtains, that 
 a mere naked statutory power must in all cases be 
 strictly pursued. (6) 
 
 § 678. The question has been raised, whether an ap- 
 pointment of overseers, made after the time limited by 
 the statute for such appointment, was valid, and that 
 under a statute which required it to be made in a given 
 
 (a) 2 Cranch, 127. 
 
 (b) 4 Cranch, 403 ; ^id. 61 ; 4 Wheat. 77 ; 5 id. 116.
 
 792 OK AFFIRMATIVE AKD [CHAP. XV. 
 
 lime, under a penalty, it was held that it was. The 
 statute, in this respect, ought to have a liberal construc- 
 tion, because it was a statute under which provision was 
 made for the poor. As it was not in the power of the 
 parish to compel the justices to make the appointment 
 within the time, the appointment ought, ex necessitate, to 
 be holden good, and that although the statute was intro- 
 ductive of a new law, no negative ought to be implied 
 against the meaning and justice thereof. (a) 
 
 § 679. A distinction in the application of the rule in 
 the cases cited, should be observed, that is, between 
 cases where certain acts to be done are of the essence 
 of the thing required to be done by the act, in which case, 
 it is imperative : and things which are not of the essence, 
 in the latter case, it is merely directory, and this is one 
 of the criterions by which to determine whether the re- 
 quisition is imperative or merely directory. For in- 
 stance, suppose in the case of the want of notice of the 
 annnual meeting by the clerk of a school district, the 
 notice w 7 as a condition precedent, without which no 
 meeting could be held, then and in that case, the thing 
 required would have been of the essence, and the requi- 
 sition imperative, and not directory merely. Or in the 
 case of the filing of the certificate by the sheriff, if it was 
 made a necessary pre-requisite to the vesting of the title, 
 and without which no title could pass, unless the certifi- 
 cate should be filed within a certain time, then the filing 
 within the time would partake of the essence of the 
 thing required, and would be imperative, and in such 
 cases the statute must be strictly complied with. Lord 
 Mansfield says, (7/) " There is a known distinction be- 
 tween circumstances which are of the essence of a thing 
 
 (a) Rex v. Sparrow, Strange, 1123. See also Rex v. Leicester, 7 B. & 
 C. 6. 
 
 (b) See 1 Burrow. 447.
 
 CHAP. XV.] NEGATIVE STATUTES. 793 
 
 required to be done by an act of parliament, and clauses 
 merely directory. The precise time in many cases is not 
 of the essence" This distinction prevailed in the case 
 of the Thames Manufacturing Company v. Lathrop.(a) 
 In that case a statue required the assessors to return an 
 abstract of their assessment lists, on or before the 1st 
 day of December in each year, and the question arose, 
 whether an assessment was valid when the assessment 
 was not returned until after the time specified in the act. 
 The court held, that the general statute had been made 
 for the assessment of taxes, by which assessors were to 
 be chosen, whose duty it was to receive the list of all 
 the inhabitants, and having perfected them by adding 
 property omitted, by valuation of the items, and by the 
 requisite assessments, to return an abstract of the lists 
 to the town clerk on or before the 1st of December in 
 each year. The lists and valuation the town clerk was 
 directed to submit when requested to the inspection of 
 every person liable to pay taxes. A board of relief was 
 constituted to hear appeals from the doings of the asses- 
 sors ; and having given not less than ten days 1 notice, 
 they were to meet on or before the first Monday of Jan- 
 uary in each year, to determine the appeals made to 
 them. The assessment list, as annually made and cor- 
 rected, was the rule for the apportionment of taxes to 
 individuals. From this view of the law, it appeared to 
 be a positive provision, that the lists should be returned 
 to the office of the town clerk on or before the 1st of De- 
 cember in each year. This direction was imperative, 
 and was alone alterable by the legislature. The court 
 must take the law as they found it, and could not 
 say that a return after the 1st of December was 
 
 (a) 7 Conn. R. 555. 
 100
 
 794 OF AFFIRMATIVE AND [CHAP. XV. 
 
 valid, unless they assumed the character of law-makers. 
 The reason of this legislative provision was very appa- 
 rent. It was for the general benefit of every inhabitant 
 of the towns, that each might inspect the list of his 
 estate, and if he believed injustice done him, that he 
 might appeal for its correction to the board of review. 
 A time for a return of the lists should be limited, the 
 general convenience demanded it ; and that it should be 
 sufficiently early for universal inspection, and prepara- 
 tion for a future hearing before the board of review 
 was perfectly obvious. On this principle, the legislature 
 appointed the 1st of December, as the ultimate period of 
 the return. This branch of the law was as imperative 
 and as unchangeable by the courts as any other ; and 
 were it within their competency, it would be as difficult 
 to assign a period more reasonable. That the return 
 should punctually be made was indispensable. A dif- 
 ferent principle would nullify the law, and produce the 
 general inconvenience arising from an unlimited return. 
 No person in such case could know when he might in- 
 spect his list; and if the return was late, no time either 
 for reflection or preparation for a review could be had. 
 If the legislature, in a charter of incorporation, had au- 
 thorized the laying of taxes upon lists returned to a 
 public office at a specified time, the necessity of a strict 
 observance of the limitation would not admit of a ques- 
 tion. The case before the court was strictly analogous to 
 the one supposed. The general law was an enabling act 
 to all the towns ; it had prescribed the subjects of taxa- 
 tion and the mode ; and as there was no authority to 
 tax, except what was conferred by the law, it must be 
 strictly observed. It had been inquired, whether the re- 
 turns of the abstract of the lists by the town clerk, to 
 the comptroller, must be by the 1st of March in each 
 year, according to the provisions of the act in question, 
 and if not, whether the legislature are precluded from
 
 CHAP. XV.] NEGATIVE STATUTES. 795 
 
 laying taxes upon the assessment lists'? Unquestionably 
 they were not. The case put, and the one under discus- 
 sion, was in no respect analogous. The abstract assess- 
 ment lists of the towns, must be strictly returned to the 
 town clerk, or there was no legal assessment. But if a 
 town clerk does not return to the comptroller, an ab- 
 stract of the assessment lists, pursuant to the provisions 
 of the law, the list was not invalidated, but he was sub- 
 jected to a penalty. 
 
 § 680. The principle assumed in the case last cited 
 seems to be, that when the object contemplated by the 
 legislature could not be carried into effect by any other 
 construction, then the time prescribed must be consid- 
 ered as imperative, and the accuracy of this distinction 
 was admitted in a subsequent case in the same court. («) 
 This may be regarded as another mode of settling the 
 question, whether the requirements of the statute as to 
 time in which an act is to be done, shall be deemed im- 
 perative, and is founded upon the principle of a construc- 
 tion in accordance with what was in the intention of the 
 legislature; for it is to be presumed, that it intended to t 
 make such acts imperative in all cases where the object 
 aimed at could not be obtained unless the act should be 
 construed as imperative. 
 
 § 681. There is another question which frequently 
 arises, and that is, whether when an act is required to 
 be done by a public officer, the doing of the act by such 
 officer is essential to the validity of the law or proceed- 
 ings under it. This question arose in the case of The 
 State v. Click^b) under an indictment which was found 
 under a statute which provided : " That the secretary of 
 state should publish the act in certain designated papers 
 
 (a) Colt v. Eves, 12 Conn. R. 243. 
 
 (b) 2 Alabama R. 26.
 
 7 
 
 796 OF AFFIRMATIVE AND [CHAP. XV. 
 
 for three months," and a question was made whether it 
 was essential to the operation of the statute, that it 
 should have been published in the manner directed. 
 The court held,, that this provision was merely directory 
 to the secretary of state, and although it should certainly 
 have been executed according to its letter ; but even if 
 it had been entirely disregarded, yet, as the operation of 
 the act did not depend upon its publication, the neglect 
 of the secretary of state to discharge this duty could not 
 defeat the legislative will. 
 
 § 682. An affirmative statute does not take away a 
 custom ; upon this principle it was held, in the case of 
 The King v. Pugh,(ci) that where the inhabitants of the 
 Hundred of Battle, having by charter and universal cus- 
 tom enjoyed the privilege of not serving on juries out of 
 the hundred, they were not to be deprived of such ex- 
 emption by the several statutes respecting juries, as the 
 words of those statutes were affirmative only. Lord 
 Coke has carried the rule still further, and has laid it 
 down as a rule, that a custom is good against even a 
 negative statute, unless a new law be thereby intro- \ 
 duced ; and that upon this reason, that if the statute be 
 only declaratory of the common law, as a man might 
 have alleged a custom against the common law, so he 
 may against a statute. (6) But this position has since 
 been doubted, and it has since been holden that no pre- 
 scription or custom is good against a negative statute, 
 whether it be declaratory of the common law or intro- 
 ductive of a new lavv.(c) 
 
 § 683. If a statute gives merely a new remedy where 
 one existed before at common law, it is cumulative, and 
 the party is at liberty to pursue either. So, too, if a sta- 
 
 (a) Doug. R. 188. 
 
 (J) 1 Inst. 115. 
 
 (c) 1 Jan. 271 ; Lovelace's case, 2 Bulst. 36; Show. 420.
 
 CHAP. XV.] NEGATIVE STATUTES, 707 
 
 tute 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 deny or withhold the 
 remedy which otherwise would exist at common law, 
 the common law right ceases to exist. Thus, under the 
 statute of Maine, it is provided that no action of tres- 
 pass shall be maintained against the owner of cattle 
 breaking into the inclosure of another through an insuf- 
 ficient fence, being lawfully on the opposite side thereof. 
 It was held, that in a ca.se within this statute, no action 
 of trespass could be maintained ; and although the sta- 
 tute allowed the party injured to impound or maintain 
 trespass, that provision did not affect or qualify the pro- 
 hibitory part, which denied and withheld the remedy 
 under certain circumstances where it existed before at 
 common law. (a) 
 
 § 684. There is another class of cases which it is pro- 
 per we should consider in this connection, although, 
 strictly speaking, they are not cases presenting questions 
 of construction merely. They present a mixed question 
 of construction in part, and in part a question as to the 
 appropriate remedy, in cases where a statute penalty or 
 forfeiture is given. The latter question, arising out of 
 facts and circumstances which are extrinsic of the statu- 
 tory enactment, incidentally and not directly bearing 
 upon the question of construction, and collaterally influ- 
 encing the judgment in the decision, whether a statute 
 penalty is to be construed to be the sole basis of an ac- 
 tion, or whether it is to be regarded as merely cumu- 
 lative. 
 
 § 685. A distinction was made in one case between 
 cases where the party makes an express promise to pay 
 assessments on stock, in which case it was held that he was 
 
 (a) Gooch v. Stephenson, 1 Shepley, 375.
 
 798 OF AFFIRMATIVE AND [CHAP. XV. 
 
 liable to an action to recover the amount subscribed, and 
 the forfeiture in such case merely cumulative ; but that 
 on the other hand, where one, by subscribing an act of 
 association, simply engages to become a proprietor of a 
 certain number of shares, without promising to pay the 
 assessments, then the only remedy which the corpo- 
 ration has, is a sale of the shares to raise the sum as- 
 sessed. Of the accuracy of the first proposition there can 
 be no doubt, and the principle has been sustained by nu- 
 merous decisions. (a) 
 
 § 686. In Massachusetts, where the rule laid down in 
 the case of The Andover and Medford Turnpike Compa- 
 ny v. Gould, has prevailed and been followed in several 
 adjudicated cases, it has been held, that where one sub- 
 scribed an engagement to take a certain number of 
 shares in a turnpike, and to pay on demand to J. G. or 
 order all assessments, and certificates of shares were ac- 
 tually delivered in consequence of such subscription, 
 which were received and retained, that an action of as- 
 sumpsit for such assessments could be maintained. (6) 
 
 § 687. In another case(c) it was also decided that a 
 writing subscribed by the defendant, expressed as a con- 
 tract, to take one share, and to pay all legal assessments, 
 with a proviso as to the location of the road, was a per- 
 sonal engagement to pay assessments, which gave the 
 corporation a cumulative remedy against the subscriber, 
 in addition to the remedy provided by the statute to en- 
 force payment of assessments by a sale of shares. But 
 in another case(c/) it was decided, upon an express pro- 
 mise similar to that in the case of Willard, that the de- 
 
 (a) The Andover and Medford Turnpike Co. v. Gould, 6 Mass R. 43. 
 
 (b) The Taunton and Boston Turnpike Co. v. Whiting, 10 Mass. 327. 
 
 (c) The Worcester Turnpike Co. v. Willard, 5 Mass R. 80. 
 
 (d) The Essex Turnpike Co. v. Collins, 8 Mass. R. 292.
 
 CHAP. XV.] NEGATIVE STATUTES. 799 
 
 fendant was not liable to an action. It has been sup- 
 posed that these two cases are in conflict with each other, 
 but a careful examination of them will show that in both 
 of them a promise to pay assessments, as well as to take 
 shares, was considered as entitling the corporation to a 
 cumulative and personal remedy. In the case of Wil- 
 lard it was conferred on the ground that he became a 
 proprietor, in consequence of this collateral promise on 
 his part. By his act of subscription — that is, after his 
 subscription, to which he was invited pursuant to a vote 
 of the corporation, and after their acceptance of his en- 
 gagement, he must be understood to have received from 
 them a certificate for the share he had subscribed, for he 
 paid the first assessment upon it, and was therefore to 
 be considered as having become a subscriber upon the 
 terms proposed by his subscription. In the case of Col- 
 lins, it was otherwise. After the corporation had been 
 organized, and a part of the turnpike which was the 
 subject of the subscription had been purchased and 
 built, at the invitation of a person not employed by the 
 corporation, or having no authority to engage in their 
 behalf, Collins was induced to subscribe, upon a particu- 
 lar representation made to him as to what would be the 
 effect of his engagement, and the amount of the assess- 
 ments to which he would become liable. But before 
 this proposal as it might be called on the part of Col- 
 lins was accepted by the corporation, he thought fit to 
 declare off, and he finally refused to take any certificate 
 of shares, or to pay any assessments. The decision in 
 this case was put upon this ground, and is not therefore 
 in conflict with the case of Willard on the point under 
 consideration. 
 
 § 688. In New York the doctrine of personal liability 
 in such cases of an express promise to pay, has been re- 
 peatedly decided. This question came before the court
 
 800 OF AFFIRMATIVE AND [CHAP. XV. 
 
 at an early day ;(a) and it was held that an express pro- 
 mise to pay the amount of shares subscribed in a turn- 
 pike company was a sufficient consideration upon which 
 an action of assumpsit could be maintained. Although 
 the act authorized the directors to call for and demand 
 such sums so subscribed, under pain of forfeiture of their 
 shares and all previous payments, it was held that the 
 latter provision was designed as an additional security 
 for the proportion of the shares which should remain 
 unpaid, and to enable the company, by a decisive mea- 
 sure, to compel that prompt payment which the object 
 of the institution required. That they had an election 
 to adopt this expedient and exact the forfeiture, or to 
 enforce the payment in the ordinary course by a suit on 
 the original contract. This case was reversed in er- 
 ror.^) The chancellor put the decision for reversal 
 upon the ground, that in order to entitle the defendant to 
 be considered a stockholder, the act required him to pay 
 $10 in each share, which had not been done ; and as there 
 was no mutuality, it did not constitute a contract. That 
 the contract, if any, was, " I agree to pay $25 for every 
 share I acquire by this subscription ;" and if none were 
 acquired, none were to be paid for. But at the same 
 time he held, that if the subscription had been suffi- 
 cient in the first instance, that the plaintiffs might resort 
 to their action as a cumulative remedy, and that they 
 had their election to exact the forfeiture prescribed by 
 the statute. That this was an affirmative statute, it pre- 
 scribed a form of contract, which, if so entered into as 
 to bind the parties at the time of the consummation, 
 without any aid from the statute by other express pro- 
 visions, would entitle the plaintiffs to maintain their ac- 
 
 (n) The Union Turnpike Co. v. Jenkins, 1 Caines' R. 384. 
 (b) 1 Caines' C. 3G.
 
 CHAP. XV.] NEGATIVE STATUTES. 801 
 
 tion, and that for the reason that it was a maxim in the 
 common law ; that a statute made in the affirmative, 
 without any negative, express or implied, doth not take 
 away the common law. The only other written opinion 
 delivered in that case assumed the broad ground that 
 this act was made for a particular purpose, ought to be 
 strictly pursued, and as there was no remedy given ex- 
 cept the forfeiture, that forfeiture was the only thing the 
 corporation could insist upon. In a subsequent case,(«) 
 which was an action upon a note given for five shares of 
 the capital stock which was expressed upon its face, it 
 was held that the action could be maintained, notwith- 
 standing the remed) given in the act to exact a forfei- 
 ture of the share and all previous payments in case of 
 non-payment. In the latter case the court admitted that 
 the question intended to be raised in the case was whe- 
 ther the remedy given to the company by the statute, to 
 exact the penalty of a forfeiture of the shares, and all 
 previous payments, was not the only remedy. That the 
 decision of the court of errors, reversing the decision in 
 the case of The Union Tarnjuke Company v. Jenkins, (b) 
 might give countenance to such an opinion ; but that the 
 court apprehended, that upon a careful examination of 
 that case, the reversal was to be placed on other grounds, 
 and that the reasoning and decision of the supreme court 
 on the principal point remained good. It was to be pre- 
 sumed that the reversal went upon the ground assigned 
 by the chancellor, who was then the principal law mem- 
 ber of the court. It was therefore held that the action 
 could be sustained ; and the same doctrine was held in a 
 subsequent case.(c) Thompson, J. in the case last cited, 
 says : " Since the decision of the court in the case of 
 
 (a) The Goshen Turnpike Co. v. Hurlon, 9 J. R. 217. 
 
 {b) 1 Gaines 1 R. 384. 
 
 (c) The Duchess Manufacturing Co. v. Davis, 14 J. R. 244. 
 
 101
 
 S( 2 OF AFFIRMATIVE AND [(.'HAP. XV. 
 
 7 lie Goshen TurnpUce Co. v. Hurtov^a) the question 
 whether an action could be sustained upon such a note 
 ought to be considered at rest, at least in that court." He 
 then took occasion to notice the decision of the court of 
 errors,(/;) and concluded that although one of the members 
 of the court, in delivering his opinion, thought that the 
 only remedy was a forfeiture of the shares and all pre- 
 vious payments, yet that was not the point upon which 
 the case turned, but on the ground taken by the chan- 
 cellor. The personal liability of the subscribers to an 
 action on the subscription is adhered to in subsequent 
 cases. (c) It has been held(d) that assumpsit could not be 
 sustained against a putative father of a bastard for the 
 child's support and maintenance, and that the only re- 
 medy in such cases was by proceeding under the order of 
 the sessions in the name of the overseers. This decision 
 proceeded upon the ground that there was no liability of 
 the putative father at common law, and in principle does 
 not conflict with the other decision alluded to. 
 
 § 689. Upon the question as to whether, where one 
 simply subscribes the act of association, merely engages 
 to become a proprietor of a certain number of shares, 
 without any express promise to pay the amount, any 
 other remedy than a sale under the act of the shares 
 could be had, there is not a uniformity in the decisions. 
 This question was very fully and elaborately discussed 
 by Huntington, Justice, in one case.(e) In that case a 
 corporation was created by the legislature, for the pur- 
 pose of constructing a railroad, with the general powers 
 
 (a) 9 J. R. 217. 
 (6) 1 C. C. 86. 
 
 (c) Spear v. Craivford, 14 Wend. 20. 
 
 (d) Moncriff v. Ely, 19 Wendell R. 405. 
 
 (e) The Hartford and New Haven Rail Road Company v. Kennedy, 12 
 Conn. R. 499.
 
 CHAP. XV.] NEGATIVE STATUTES. 803 
 
 and privileges usually granted to corporations for similar 
 purposes. The capital stock was to be $500,000, with 
 the privilege of increasing it to $1000,000, to be divided 
 into shares of $100 each, transferable as the bye-laws 
 should direct. Books were to be opened for subscrip- 
 tions to the capital stock. The directors were autho- 
 rized to require payment of the sums subscribed to the 
 capital stock, and in case any stockholder should neglect 
 to make payment accordingly, the directors were em- 
 powered to sell his shares at public auction, and to ap- 
 ply the avails to such payment, rendering the surplus, if 
 any, to him. A. with others, signed a writing, which 
 after referring to the act, was in these words : " We do 
 hereby subscribe to the stock of said railroad the num- 
 ber of shares annexed to our names respectively, on the 
 terms, conditions, and limitations mentioned in the char- 
 ter," he paying at the same time five dollars on each 
 share subscribed. On a reduction and apportionment 
 of the subscription, ten shares were allowed to A. who 
 received the company's certificate thereof, specifying the 
 sum paid, and declaring the residue to be payable by 
 instalments, as they should be ordered by the directors. 
 Subsequent instalments were required by the directors, 
 which A. refused to pay. In assumpsit brought by the 
 company against A. for such instalments, it was held, 
 1st. That from the relation of stockholder and company 
 thus created, a promise by the defendant was implied to 
 pay the instalments in question ; 2d. That the remedy 
 provided by the clause authorizing a sale of the stock of 
 delinquent stockholders, was cumulative merely, leaving 
 such promise in full force. The first position main- 
 tained in this case, seems founded upon the well settled 
 principles which have governed all the decisions allow- 
 ing a recovery in such cases, and is not in fact in conflict 
 with any of them. The defendant resisted payment on 
 the ground that he had made no promise, express or im-
 
 804 OF AFFIRMATIVE AND [CHAP. XV. 
 
 plied, and that the only remedy of the plaintiffs, on his 
 failure to comply with the order of the directors, was to 
 sell the stock and apply the proceeds to the payment of 
 the instalments which were due. On the first ground of 
 defence, the court thought an obligation to pay was cre- 
 ated, and that the law would enforce it. That it was 
 true a promise to pay, in precise terms, did not appear 
 to have been made. The defendant had not affixed his 
 signature to an instrument which contained the words, 
 /" promise to pay, but he had done an equivalent act. 
 He had contracted with the plaintiffs to become a mem- 
 ber of their corporation, and to be interested in their 
 stock to the extent of one hundred dollars for each share 
 assigned to him, if that amount was required. The con- 
 tract had been executed on the part of the plaintiffs. 
 The shares which he had agreed to take, and for which 
 a certificate of stock had been delivered to him, were 
 part of a monied capital. They were to be paid for in 
 money, and by voluntarily becoming a member of the 
 corporation, under the provisions of the charter, an im- 
 plied assumpsit arose to pay the instalments on the 
 terms, conditions, and limitations mentioned in the char- 
 ter. This was apparent from the object for which this 
 corporation was created, and the several provisions in 
 the act. The court then proceeded to consider those 
 objects, and the several provisions of the act, for the 
 purpose of, and as we think, clearly deducing from 
 them, clear and satisfactory evidence of an evident in- 
 tent on the part of the legislature to hold the subscribers 
 personally liable on their subscription for their stock. 
 In answer to the second ground of defence, that the 13th 
 section, which gave authority to sell the shares of negli- 
 gent stockholders, was the only remedy which could be 
 pursued, and excluded the responsibility which the com- 
 mon law would have otherwise implied ; the court 
 after reciting the provisions of the statute, said, " Thepo-
 
 CHAP. XV.] NEGATIVE STATUTES. 805 
 
 sition advanced and applied to this case was, that where 
 a statute gives a new power, and at the same time pro- 
 vides the means of executing it, those who claim the 
 power can exercise it in no other way. If a power is 
 created in the plaintiffs to direct the instalments to be 
 paid, they can enforce the payment in the method direct- 
 ed by the act of incorporation, and not otherwise ; and 
 that method is by a sale of the delinquent shares. The 
 court admitted that such a position was stated in several 
 cases decided by the supreme court of Massachusetts, 
 and was supposed to be the basis of several decisions by 
 that court, in which it had been held, that where certain 
 corporations were created with powers and privileges, 
 and subject to duties contained in the statutes defining 
 the general powers and duties of such corporations, and 
 where the only remedy provided by the statute for the 
 collection of the assessments upon the shares, when pay- 
 ment was neglected, was by a sale of them, unless there be 
 an express agreement to pay. That these precedents 
 had been followed by the supreme courts of Maine and 
 New Hampshire, but they were far from being satisfied 
 that they were applicable to this case." They then 
 proceeded to review the cases upon this subject, and the 
 distinctions between some of them and the one under 
 consideration, and to deduce from them the rule which 
 should be applied in cases arising under this and other 
 acts. 
 
 § 690. As the decision in that case clearly defines the 
 line of demarcation between instances where the remedy 
 under the statute may be regarded as cumulative, and 
 those wdiere it is the only remedy, we deem it advisable 
 to advert to it somewhat at length. After alluding to the 
 decision in the case of The Andover and Medford Tarn- 
 pike Co. v. Gould ;(a) it held that the words of the sta- 
 
 (a) 6 Mass. R. 43.
 
 806 OF AFFIRMATIVE AND [CHAP. XV. 
 
 tute under which that case arose, were not as strongly 
 indicative of the intention of the legislature to create a 
 personal obligation to pay the assessments as those'of 
 the 1 3th section of the plaintiffs' charter. They gave 
 no authority in terms to demand payment, nor did they 
 refer to the assessment as a debt due and recoverable. 
 They rather implied, that no debt was intended to be 
 created by becoming a stockholder, and that if a tax 
 was assessed it was to be collected only by a sale of the 
 shares. But in the act then in question, express autho- 
 rity was given to demand and require payment of instal- 
 ments. They are considered as debts due and unpaid, 
 and the neglect or refusal to discharge the obligation 
 authorized the use of the additional remedy of a sale of 
 the shares. It w T as also supposed that other broad lines 
 of distinction existed between the act which had received 
 a judicial construction in the first case cited from Mas- 
 sachusetts, and the act then in question. It was under- 
 stood, that in the former, the amount of the capital to be 
 invested was not fixed by the legislature ; it was, to 
 some extent at least, dependent upon the will of the 
 corporation. The power to make assessments was not 
 expressly given by the act defining the general powers 
 and duties of turnpike corporations, but was only im- 
 plied from the authority given to sell the shares of de- 
 linquent proprietors.(«) The discretionary power of 
 these companies to create a large or a small capital, as 
 their interest might require, coupled with the fact that 
 the power to order any assessment, arose solely by im- 
 plication from the authority given to make sale of the 
 shares, might possibly justify the inference that the le- 
 gislature considered such sale as an adequate remedy to 
 recover the assessments. The shares were not valued 
 
 (a) 6 Mass. R. 43.
 
 CHAP. XV."] NEGATIVE STATUTES. 807 
 
 at any given sum in the Massachusetts act. They were 
 not a part of any definite, fixed capital, required by law. 
 No assessment could be made upon them, by virtue of 
 an express statute enactment. The corporation had 
 power to agree upon a tax of the shares of the proprie- 
 tors ; but this power was only inferred from the autho- 
 rity given to sell on failure to pay the tax. When, 
 therefore, the legislature had not thought the public in- 
 terest, or the just rights of third persons required the 
 creation of a certain capital, but left the amount op- 
 tional with the company ; and when they had given no 
 other authority to raise a capital in money, (independent 
 of the payments voluntarily made by the proprietors,) 
 than by sale of the shares of delinquent stockholders ; 
 it was not, perhaps, very unreasonable to give such a 
 construction to their statute as would confine the com- 
 pany to the exercise of the power expressly given. The 
 power to assess was inferred from the power to sell, and 
 the latter might therefore be considered as the only 
 mode in which the former, for any practical purposes 
 could be exercised. It might be said with some plausi- 
 bility, that no general rule would be more just, or better 
 adapted to carry into effect the intention of the legisla- 
 ture, than that which should declare that when an au- 
 thority to impose a tax was derived solely by implica- 
 tion from the power to sell the shares, on failure to pay 
 the tax, every other mode of collection was excluded, 
 when there was no express promise to pay. In such a 
 case, it might be said, the intention would be manifest to 
 make the amount of capital paid in dependent upon the 
 will of the stockholders or upon the sale of the shares ; 
 that the proprietor did not incur a personal obligation to 
 pay any thing, but the company were clothed with au- 
 thority to raise the necessary funds, by a sale of the 
 stock, upon the neglect of the stockholders to pay the 
 just and equal assessments laid upon it. In this view,
 
 808 OF AFFIRMATIVE AM) [CHAP. XV. 
 
 the assessment might be considered as made upon the 
 stock merely, and the remedy in the nature of a pro- 
 ceeding in rem. Such would seem to be the import of 
 the language used in some of the cases referred to. 
 
 § 691. In one case, (a) the court, commenting on the 
 cases cited by counsel from Esp. Dig. 7, to sustain the 
 position that if a person becomes a member of any soci- 
 ety or company, he thereby agrees to abide by all legal 
 claims arising against him from the bye-laws or local re- 
 gulations of that society to which he belongs, said : " In 
 the cases cited from Espinasse, the penalties or assess- 
 ments were set upon the persons, not upon the shares, as 
 is the case under our statutes." Shaw, Ch. J. says : 
 "The individual liability of stockholders, created by the 
 statute of 1808, was of a particular and limited charac- 
 ter, and could only be enforced in the manner pointed 
 out in the statute. It did not subject a living stockholder 
 to a general liability for assessments, but only authorized 
 the company to sell the shares for payment of the assess- 
 ments. By operation of law, the assessment is a lien upon 
 the share. The share is in the same condition with any 
 other pledged property. "(6) The same judge, in another 
 case, uses similar language : " The only compulsory 
 mode which a manufacturing corporation has, to enforce 
 the payment of assessments, is by sale of the share. By 
 laic, the assessment was a lien upon the share. The exe- 
 cutor has an option to redeem the share for the benefit 
 of the estate, by paying off the assessment, as he would 
 have to redeem any other pledged property; and this 
 option he will exercise according to his views of the in- 
 terest of the estate." A similar distinction was taken 
 between assessments upon the person and upon the stock 
 
 (a) Franklin Glass Co. v. White. 14 Mass. R. 286. 
 (/>) Ripley v. Sampson et al. 10 Pick. 371.
 
 CHAP. XV.] NEGATIVE STATUTES. &09 
 
 or property, in the case of The Trustees of the Congrega- 
 tion in Hebron v. Quackerdmsh.{a) In that case the pew 
 on which the assessment was made had l:een sold to 
 the defendant free from rent, and the pews were sold at 
 a high price in consequence of this exemption. The 
 statute vests the possession of the church in the trustee^ 
 and gives them power to " regulate and order the rent- 
 ing of the pews therein. About six months after the 
 sale of the pews, the congregation passed a vote that if 
 any assessment w 7 as made on the pews, and it remained 
 unpaid for one month, the pews should be sold for the 
 benefit of the congregation. No promise of the de- 
 fendant to pay rent was shown; but he continued to be 
 a member of the congregation, and occupied the pew he 
 had purchased, and the action was brought to recover 
 his proportion of the salary of the minister, assessed by 
 the plaintiffs on all the pews. The court, in giving judg- 
 ment for the defendant, say : " Whether the assessment 
 of the pew rent was a valid assessment, we need not 
 now inquire, for the defendant is not chargeable, in this 
 case, upon the implied assumpsit to pay, in consequence 
 of the occupation of the pew. The trustees have no 
 power to make and levy personal assessments, and the 
 owner of the pew is not liable in personam, unless there 
 be some special ground from which to infer a contract 
 and promise to pay. That the facts in this case were 
 not sufficient to furnish such an inference."(&) 
 
 § 692. Huntington, J. in the cases cited from 12 Conn. 
 Rep. 499, says : " We are confirmed in the suggestions 
 we have ventured to make touching the decision in Mas- 
 sachusetts, by adverting to the language of Sewall, Ch. 
 J. in Phillips' 1 Limerick Academy v. Davis, (c) referring 
 
 (a) 10 Johns. R. 217. 
 
 (b) See Cutler v. Middlesex Factory Co. 14 Pick. 483. 
 
 (c) 11 Mass. R. 113. 
 
 102
 
 810 OF AFFIRMATIVE AND [CHAP. XV. 
 
 to the cases decided by the supreme court of that state, 
 in which it was held that no implied obligation on the 
 part of the corporators to pay their assessments arose 
 from their being voluntarily members of the corporation. 
 He says : ' It is said that these decisions were upon the 
 ground of another remedy provided by the legislature iu 
 the act of incorporation. But that was not the sole 
 ground, if it was in any respect a reason for those deci- 
 sions.' And upon no other principle than that the pay- 
 ment of the assessments was intended to be enforced 
 only by the sale of the stock, inasmuch as the power to 
 assess was implied merely from the power to sell, can we 
 consider the remarks of the court in The Andover and 
 Medford Turnpike Corporation v. Gould(a) as having any 
 just application. 'Persons not interested in having the 
 turnpike, either from their situation or private property, 
 may be requested to associate and become corporations. 
 They may not be able to judge of the probable expen- 
 ses or profits ; but if they know that the assessments be- 
 come grievous, they may abandon the enterprise by suf- 
 fering their shares to be sold — they may, on this princi- 
 ple, join the association.' This language, upon the sup- 
 position that no personal liability was intended to be im- 
 posed upon the proprietors, would be consistent with the 
 good faith and moral honesty due to the creditors of the 
 corporation." He held, that if the charter then in ques- 
 tion was compared with the provisions of the Massachu- 
 setts act, as stated in the reported case, a wide differ- 
 ence would be perceived between them. In their char- 
 ter, the amount of the capital was not made to depend 
 upon the caprice or voluntary act of the corporation. It 
 was fixed at " five hundred thousand dollars, with the 
 privilege to increase to one million of dollars, to be divided 
 
 (a) 6 Mass. R. 40.
 
 CHAP. XV. 1 NEGATIVE STATUTES. 811 
 
 into shares of one hundred dollars each." The company 
 was vested with all powers, privileges and immunities 
 which were or might be necessary to carry into effect 
 the purposes and oljects of the act, and was empowered 
 to purchase, receive and hold such real estate as might 
 be necessary and convenient in accomplishing the object 
 for which the incorporation was granted. A certain de- 
 finite capital was created by the act, such as was deemed 
 requisite to ensure the completion of the work and the 
 faithful performance of the contracts of the corporation. 
 Ample provision was made that this capital should not 
 be merely nominal, but real. For this purpose, subscrip- 
 tions were authorized to be received under such regula- 
 tions as the persons named in the first section of the act 
 might adopt. The directors were authorized to require 
 payment for the stock at such time or times, and in such 
 proportions and upon such conditions, as they should 
 deem fit. They were also authorized to sell the stock 
 of delinquent stockholders ; and a forfeiture of the char- 
 ter was incurred if one hundred thousand dollars was 
 not expended upon the railroad within four years, or the 
 road was not constructed, completed and put into opera- 
 tion within six years after the passage of the act. In 
 all these provisions great solicitude has been manifest to 
 secure the public interest, the rights of creditors, the use- 
 fulness of the corporation, and the just expectations of 
 stockholders. A capital sufficiently large was required 
 to be created. The payment of so much as was neces- 
 sary to insure the completion of the work within a rea- 
 sonable time, and to discharge all its debts, was enforced 
 by the authority given to require payment of the instal- 
 ments, to sell the shares of negligent proprietors, and by 
 the forfeiture of the charter, if the commencement or 
 completion of the undertaking was unreasonably de- 
 layed. It was true the payment of the assessments
 
 812 OF AFFIRMATIVE AND [CHAP. XV. 
 
 were dependent upon the action of the directors. They 
 might limit the actual capital to a less sum than five 
 hundred thousand dollars, if the whole amount was not 
 wanted for the object ; but no just fears were entertained 
 that their duties to the public, the corporation and third 
 persons would not be discharged. Jn that charter, the 
 authority to demand payment for the stock was not 
 merely implied from the power given to sell ; it was given 
 in express and explicit terms — " the directors may re- 
 quire the payment of the sums subscribed to the capital 
 stock," &c. The power to sell was additional to the 
 power to demand payment, and was not the only power 
 expressly given. Hence no inference could be deduced 
 that the exercise of the authority to sell was the only 
 means intended to be provided to secure the payment of 
 the capital stock. The subscriptions to the stock were 
 not like those to the turnpike stock in Massachusetts, — 
 an engagement to take a certain number of shares of un- 
 certain value, in a company without any fixed capital, — 
 but an engagement constituting the subscribers stock- 
 holders in a company with a specified capital, the shares 
 of a certain determinate value, and creating an obliga- 
 tion on them to comply with all the terms, conditions and 
 limitations mentioned in the charter, one of which gives 
 authority to demand of them the payment of instalments 
 as they should be ordered by the directors. The form 
 of the certificates issued by the corporations in Massa- 
 chusetts did not distinctly appear from the reported ca- 
 ses. In the case then under consideration, a certificate 
 was issued and delivered to the defendant, in which it 
 was expressed that the residue of the sums due for the 
 stock was payable by instalments, as might be ordered 
 by the board of directors. After a careful examination 
 of the decisions to which the attention of the court had 
 been called, they inclined to the opinion that the decision
 
 CHAP. XV.] NEGATIVE STATUTES. 813 
 
 first made,(a) and which was subsequently followed in 
 the other cases cited, supposed to be similar, might be 
 maintained upon principles which were wholly inappli- 
 ble to the case then before them, and therefore ought not 
 to be regarded as a precedent. 
 
 § 693. We cannot review all the cases on this point, as 
 the limits of our work will not admit of it. From the 
 cases cited on the question under consideration, and 
 which have elicited much able discussion in the courts 
 of several of the states of the Union, we think we may 
 safely declare, as in accordance with the weight of au- 
 thority, the following propositions: 1. That where the 
 act itself, and the proceedings which are had under it, 
 do not vest in the subscriber a vested right in the stock, 
 so as to make him a member of the corporation, with a 
 right to enforce his corporate rights as against the cor- 
 poration itself; in such cases the remedy prescribed by 
 the statute is not cumulative, but is the only remedy to be 
 pursued. 2. That where the act itself, exvi termini, by 
 the bare act of subscription, makes the party subscribing 
 one of the corporators, and vests absolutely, in him the 
 shares subscribed for, subject to payment therefor ; that 
 in such cases it becomes an executed contract, upon 
 which a common law remedv might be enforced. That 
 in such cases the statute remedy may be regarded as 
 merely cumulative, and the corporation in such cases 
 has an election either to pursue the common law remedy 
 or that given by the statute. 
 
 (a) 6 Mass. R. 40.
 
 S14 OF EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 CHAPTER XVI. 
 
 OP EQUITABLE CONSTRUCTION. 
 
 § 694. The design of the present chapter is, to con- 
 sider the nature and illustrate the principles of the doc- 
 trine of equitable construction, define the limits to its 
 application, the exceptions and qualifications of the rule 
 in the construction of statutes. 
 
 § 695. The word equity, as used among judicial wri- 
 ters, has a two-fold signification. It is taken at large, or 
 in general, for that natural justice which distributes right 
 to all men indiscriminately, without regard to persons, or 
 it has a more contracted signification, to wit, that justice 
 which takes off from the rigor and severity of the written 
 law, supplying by fair and reasonable interpretation what 
 the lawgiver must be understood to have intended him- 
 self; but either was not able, or did not think proper to 
 express. It is with the latter definition that our treatise 
 stands connected, and not with the former. It may be 
 said in general, that equitable construction consists in de- 
 ciding according to the will or supposed intention of the 
 lawgiver, in matters which he was not able or willing to 
 express, or in restraining the words of the law, where it 
 is clear that they were not intended to extend to a par- 
 ticular act or thing. This rule presupposes that all hu- 
 man laws may be defective, either against the design or 
 inclination of the law-maker, or without his consent. By 
 the former we are to understand, things which the legis- 
 lature would have defined and ascertained, had it known 
 of their existence ; by the latter, those things which the
 
 CHAP. XVI. J OF EQUITABLE CONSTRUCTION'. 815 
 
 legislature, by reason of the universality of the law, for 
 want of time, or precision, could not descend to a par- 
 ticular enumeration of them. (a) 
 
 § 696. By equitable construction, as anciently under- 
 stood, was meant a judicial interpretation of a st.U ute 
 which, presupposing the legislature to have intended 
 what is right and just, pursues and effectuates that in- 
 tent. The Aristotelian definition of equity is: "The 
 nature of equity is, the correction of the law where it is 
 defective by reason of its universality."^) This defini- 
 tion seems to meet with the approbation of Puffendorf,(c) 
 and is adopted by Grotius. ((/) Wooddeson considers 
 this thought as very sagacious, worthy of its great au- 
 thor, and gives us a clear elucidation of it. According 
 to this author, by universality is meant, that the law 
 deals in general expressions, at least so far general, as 
 to include some cases within the words which are not 
 within the reason or the spirit of its coercion, and to 
 omit other cases which required the like provisional in- 
 stitution. For this reason, it is impossible lor any pre- 
 meditation to discover, or ever so voluminous a code to 
 express that endless series of complicated occurrences 
 which may vary the moral fitness of applying positive 
 ordinances. In all such instances the law, or rather the 
 words of it, are defective, that is, in the original language 
 of the Aristotelian definition, " eXXei^i," it leaves out 
 something which it is the province of equity to supply. 
 Under such circumstances, the judge should inquire 
 what the lawgiver, as an upright man, would have de- 
 creed, if the very case then in question had fallen within 
 his foresight and contemplation. Grotius in his treatise 
 
 (a) Taylor's Civil Law, 91, 92. 
 
 (b) Arist Eth. Nicom. lib. 5, c. 10. 
 
 (r) Jur. Nat. et Gro. lib. 5, c. 12, sec. 21. 
 (d) Grotius de Equitate, c. 1, sec. 3.
 
 816 OF EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 " De Equitate" thus enforces the necessity of thus re- 
 curring to equitable interpretation : " Cum enim incequal- 
 ibus" says he, "idem non possit esse cequale res aulem 
 scepe sunt incequales, lex vero una semper atque eadem, ne- 
 cessario consequitur, alia virtutc opus esse quae incequalibus 
 7xbus suam cuique cequalitatcm prcestat unde licec villus 
 equitas Latinis, Grcecis vero nr««««o dicitur." 
 
 § 697. Equity, therefore, regarding the intent and not 
 scrupulously fettered by the letter of the law, has to this 
 end a two-fold operation ; sometimes abridging the com- 
 prehensiveness of the text, and sometimes extending the 
 words so far as to include other cases within parity of 
 reason. An instance of the former kind may be found 
 in one of the earliest English reports.(a) The case was 
 this, an old act of parliament provided that goods rescued 
 from a ship, where there is no legal wrecker, should be 
 delivered by the sheriff to safe custody, in order to their 
 being claimed within a year and a day, yet if the goods 
 are perishable, and the sheriff" sells them, retaining their 
 value in their stead, restrictive equity (abridging the 
 comprehensiveness of the text, which happened not to 
 make due provision for perishable commodities,) would 
 lead the mind of the judge to the conclusion that the 
 sheriff retaining their value in their stead, would be 
 acting agreeable to the intention of the lawgiver, inas- 
 much as he evidently designed the benefit of the trading 
 owner. 
 
 § 698. On the other hand, instances of the latter kind 
 occur in those cases, " Ubi lex est specialis, et ratio ejus 
 generalis, generaliter est accipienda. v (b) Thus we find 
 
 (a) Plow. 465, 466, cited and approved in Threadneedle v. Threadneedle, 
 1 Freem. 185 ; 3 Keb. 381. 
 
 (b) 2 Inst. 43, 83 ; Beauf age's case, 10 Co. 103, b. ; 2 Inst. 118 ; Dig. L. 
 b. 10, 27.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. SIT 
 
 that two ancient statutes respecting executors, although 
 administrators were not Darned, were held to extend to 
 administrators ; on the ground, that no possible reason 
 could be suggested why they should be exempt from the 
 same provisional regulation. («) By parity of reasoning, 
 in divers statutes where the word persons is used, it has 
 been held that the word includes corporations, although 
 this is a much larger sense than the word bears in ordi- 
 nary conversation. (6) 
 
 § 699. It will be well in this connection to advert to 
 another part of the Aristotelian definition of equity, viz. 
 " the correction of the law." It must be considered, that 
 this " correction" is not by way of control but of exposition. 
 It does not impugn but promotes the meaning of the law. 
 For if the law, understood according to the unquestion- 
 able intention of the legislature, has descended to par- 
 ticulars, has described the very subject-matter under con- 
 sideration, it cannot be said in such a case to be defective, 
 nor in such case is there any room for equitable con- 
 struction, or any warrant or authority for that kind of 
 judicial redress, although the court may indeed doubt 
 how far the ordinances of a particular statute are conso- 
 nant to natural equity ; yet it by no means follows, that 
 they can with propriety assume, that it ought not to be 
 obeyed, where it is not plainly subversive of some prin- 
 ciple of natural justice — of divine or moral obligation ; 
 and even then it has been held by some, that it is rather 
 a matter of private conscience, remote from the office of 
 a judicial magistracy, than within the province of the 
 court, which is constituted to declare and not to alter or 
 impugn the law. " Perquam durum est, scd ita lex scrip- 
 
 (o) Hill v. Grange, Plow. 178 ; Eyston v. Sludd, 2 Plow. 467 ; Hard. 211, 
 213 ; 1 Hale P. C. 653, 654 ; Woodd. Lect. 7, p. 116. 
 (b) Bac. Us. 57 ; Magdalen College case, 1 Mod. 164. 
 
 103
 
 818 OF EDITABLE CONSTRUCTION. [CHAP. XVI. 
 
 ta est, v (a) is the popular phrase of Ulpian, in a case 
 where the terms were sufficiently explicit to exclude 
 that equitable construction which reason would have 
 otherwise dictated. 
 
 § 700. Wooddeson thus illustrates this rule: "By an- 
 other Roman law, a minor was not to be entrusted with 
 his property till he had completed twenty-five years of 
 age. Let us suppose that a guardian, six days only be- 
 fore the appointed period, transferred to his ward the 
 management of his estate, who squanders the patrimony 
 by profuse misconduct, it is not likely that the young 
 heir would, during those six days, have acquired a much 
 greater maturity of discretion ; yet Harmenopulus writes, 
 that the guardian is responsible for the dissipated wealth. 
 The law is sufficiently explicit ; there is no unforeseen 
 exigence of peculiar circumstances ; and if the opinion 
 of the legislator himself could be demanded, he would 
 probably answer, that his intention was to prohibit, and 
 not to allow, every guardian to estimate the discretion of 
 his ward." " A judge is not to make a parade of greater 
 humanity than the law."(6) It seems also, that the 
 early Athenians entertained a general notion of this rule 
 of judicial equity, as supplemental to their written laws. 
 For their judges were sworn to administer relief accord- 
 ing to the laws, where the laws were particularly ex- 
 plicit ; and in other cases, to award the most equitable 
 sentence. Although these general principles, thus clearly 
 expressed by the early ethical and judicial writers, were 
 not originally used in reference to statutes, strictly so to 
 speak, yet it will be seen, in the progress of the present 
 chapter, that from them, have been borrowed some of 
 the important general rules of construction which are 
 
 (a) Dig. xl. ix. 12, 1. 
 
 (b) Nov. lxxx. c. 10; Thuc. lib. 1, c. 84.
 
 CHAP. XVI.] OF EaUITABLE CONSTRUCTION. 819 
 
 now adhered to, and laid down in our most modern law 
 reports. 
 
 § 701. In more modern times, the rule seems still to 
 prevail that statutes are many times to receive what is 
 termed an equitable construction — that is, a construction 
 that may sometimes seem contrary to the letter ; which 
 rule has for its reason, that a thing within the intention 
 is as much within the statute as if it were in the letter, 
 and the principle is still recognized that this rule pro- 
 ceeds upon the ancient ground that the lawgiver could 
 not set down every thing in express terms, so as to meet 
 the varied exigencies of human affairs ; and hence courts, 
 whenever they discover a thing within the mischief 
 which it was the intention of the statute to remedy, hold 
 that such things must be considered as within the sta- 
 tute, (n) So, on the other hand, when a case arises 
 which it is clear that it is out of the mischief intended 
 to be guarded against — or, in other words, out of the 
 spirit of the statute — the letter of the statute will not 
 be deemed so unequivocal as to elude any other construc- 
 tion. (6) This rule obtained in a case in the courts of 
 New York.(c) The statute prohibited any sheriff or 
 other officer, to whom any execution should be directed, 
 or any of their deputies, or any person for them, or either 
 of them, to purchase any goods, or chattels, lands, or 
 tenements, at any sale, by virtue of any execution, and 
 declared all purchases made by them, or any of them, or 
 for the use of them, or any of them, void. The premi- 
 ses in question, in that case, which was an action of 
 ejectment, 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 by a third 
 
 (a) 1 Inst. 19. 
 
 (b) Fciio v. Masteller, 2 Cranch, 10. 
 
 (c) Jackson v. Collins, 3 Cowen R. 85.
 
 820 OP EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 person in his own name ; but in fact, as it was claimed, 
 for the deputy who owned the judgment, and were sub- 
 sequently deeded to him by the purchaser. It was con- 
 tended, that as the purchaser was trustee of the deputy, 
 and purchased the lands for his benefit, the purchase 
 was void. Savage, Ch. J. held, although the purchase 
 came within the letter of the act, it could never have 
 been the intention of the legislature to have prevented a 
 deputy sheriff, when plaintiff in an execution, from bid- 
 ding, in order to secure his money. The object was to 
 prevent abuse, that the sheriff or his deputy should not 
 be allowed to become purchasers at their own sales, and 
 thereby be induced to conduct corruptly in relation to 
 them. But it never was intended to place those persons 
 in a worse situation than others, as to the collection of 
 their own demands. That " whenever the intention of 
 the makers of a statute 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. A thing which is within the 
 letter of a statute, is not within the statute, unless it be 
 within the intention of the makers. (a) If from the view 
 of the whole law, or from other parts in pari materia, 
 the evident intention is different from the literal import 
 of the terms employed to express it in a particular part 
 of the law, that intention should prevail for the reason, 
 that in fact, is the will of the legislature. (b) 
 
 § 702. Some of the English authorities have laid down 
 the rule that all acts, private as well as general, shall be 
 taken by a reasonable construction. Indeed, in this coun- 
 try the doctrine has obtained that an instrument no less 
 
 (a) Bac. Abr Statute I. ; People v. TJtica Ins. Co. 15 J. R. 380 ; The 
 King v. Younge, 5 T. R. 449 ; Rex v. Cox, 2 Burr, 786 ; Canal Co. v. 
 Railroad Co. 4 Gill & J. 6 ; Plowden, 18 ; 3 B. & A. 266 ; 4 B. & A. 212. 
 
 (b) The United States v. Fisher, 2 Crancli, 3!)9.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 821 
 
 solemn and sacred than that of the federal constitution, 
 and that too on a question of power, like every other 
 grant, must have a reasonable construction, according to 
 the true import of its terms ; and where a power is ex- 
 pressly given in general terms, it is not to be restrained 
 to particular cases, unless that construction grows out of 
 the contract, or by necessary implication, for the reason 
 that the constitution, like statutes, necessarily deals in 
 general language. It was impossible, as well as unsuited 
 to the purposes of the people, to provide for minute spe- 
 cification of power in this great charter of their liber- 
 ties, (a) 
 
 § 703. The English rule is, that the intent and mean- 
 ing of. the legislature must be found partly from the 
 words and partly from the mischief which the statute 
 was intended to remedy; as t hat intent is the controlling 
 principle, sometimes it becomes necessary to expound it 
 against the letter, in order to preserve the interest. As 
 the reasons which induced the law-makers to make an 
 act which took away or altered the common law, is the 
 principal thing to be considered in connection with the 
 words of the act itself, courts may in doubtful cases en- 
 large the construction of an act, according to the reason 
 and sense of the law-makers, which are expressed in 
 other parts of the statute or general acts by considering 
 the frame and design of the whole ;(6) and as that intent 
 is rather to be weighed many times, it will be found that 
 things which are in the letter are not within the purview 
 of the law, which extends no farther than the intent of 
 the makers, (c) 
 
 § 704. The spirit, as well as the letter of a statute, 
 
 (a) Martin v. Hunter's Lessees, 2 U. S. Cond. R. 583. 
 
 (b) 11 Mod. 160. 
 
 (c) 19 Vin. Abr. 519.
 
 822 OF EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 must undoubtedly be respected ; and where the whole 
 context of the law demonstrates a particular intent in 
 the legislature to effect a certain object, in that case 
 some degree of implication may be called in to aid that 
 intent. (a) But this rule only obtains where the intent 
 is not plain, and must be ascertained. (6) The intent 
 must be sought for in the words, and where the intent is 
 apparent on the face of the act ;(c) where there is no 
 obscurity in the meaning, obscurity must never be crea- 
 ted by construction. (cZ) The supreme court of the Uni- 
 ted States have held, " It is undoubtedly true it is the 
 duty of the court to ascertain the meaning of the legisla- 
 ture from the words used in the statute, and the subject- 
 matter to which it relates, and to restrain its operation 
 within narrower limits than its words import, if the court 
 are satisfied that the literal meaning of its words would 
 extend to cases which the legislature never designed to 
 include in it.(e) 
 
 § 705. The English rule adopted by ancient authori- 
 ties is, that no statute, when the letter is ambiguous, 
 should be taken by equity contrary to the letter, so as 
 to maintain a thing or mischief contrary to the letter or 
 intent, the very object of the statute being to toll the 
 mischief or inconvenience, but that in such cases it 
 should be taken in the letter and intent, so as to destroy 
 the mischief or inconvenience^/) As the necessity of 
 an equitable construction originates in the difficulty of 
 so framing a statute as to comprehend and provide for 
 
 (a) Durrousseau v. United States, 6 Cranch, 307, 314. 
 
 (b) United Slates v. Fisher, 2 Cranch, 358. 
 
 (c) 7 Cranch, 52 ; 2 Pet. 662. 
 
 (d) Camden and Amboy Railroad Co. v. Commissioners of Appeal, 3 Har- 
 rison R. 72. 
 
 (e) Lessees of Brewer v. Blougher, 14 Pet. 178. 
 (/) 19 Yin. 527.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 823 
 
 every possible case within its scope and design ;(«) and 
 as the words of the law, according to their strict and lit- 
 eral meaning, may in a particular instance lead to the 
 subversion of the intention and principles of it, and pro- 
 duce manifest injustice, either by comprehending cases 
 to which its principles do not extend, or by not embra- 
 cing cases where the intention of it was to give relief, an 
 equitable construction must sometimes be adopted.(6) 
 
 § 705. It may not be amiss, in this connection, to advert 
 once more to the understanding of judicial and ethical wri- 
 ters as to the nature of equitable construction, the extent 
 to which it is to be carried, and the rules that should 
 govern in its application. To this end the pathway of 
 the legal student may be somewhat illuminated by lights 
 derived from ancient civil law writers, as well as by the 
 principles evidently deduced therefrom by more modern 
 legal writers, and expressed in judicial decisions. 
 
 § 706. Grotius seems to have adopted substantially 
 the definition of Aristotle as to the equity required in 
 such cases. He says : " Equity is an accurate interpreta- 
 tion by means of which that which is defective in the law 
 by reason of two general terms, whenever it is perceived 
 is rectified." Puffendorf 's explanation of this definition 
 is, " that a true equitable construction consists in showing 
 by principles of natural good sense, that a particular case 
 is not comprehended in the meaning of a law, because if 
 it were so comprehended, some absurdity would neces- 
 sarily follow," and he illustrates this rule by the case 
 supposed by Cicero, in his treatise De Inventione, where 
 it was forbidden by the law to open the gates of the 
 
 (a) L.lOff. Delegb. 
 
 (b) Grotius Dr des Guene et de La Paix. L. ii. 16, sec. 27 ; Puff. Dr des 
 Gens, b 1, c. 11, sec. 8; 1 V. C. 12, sec. 21 ; Black. Cora. b. 3, 429, 430; 
 Woodd. Lect. 7.
 
 824 OF EQUITABLE CONSTRUCTION. [cHAP. XVI. 
 
 town during the night, a man opened the gates at night 
 for the purpose of admitting troops to succor the town, 
 when they would have been cut to pieces if they had 
 been suffered to remain without the walls until morning. 
 In this case it is perfectly clear, although the act w T as 
 within the letter of the law, the law-makers never could 
 have intended that this law should apply to such a 
 case. 
 
 § 707. St. Germain says: "In some cases it is neces- 
 sary to leave the words of the law, and follow that 
 which reason and justice requireth, and to that intent 
 equity is ordained ; that is to say, to temper and mitigate 
 the rigor of the law, and so it appeareth that equity 
 taketh not away the very right, but only that which 
 seemeth to be right by the general words of the law."(a) 
 Domat adopts the general rule, that courts should not, 
 in the construction of a law, mitigate the hardships or 
 rigor of it whenever it is evident that such rigor is es- 
 sential to the law from which it flows, so that no tem- 
 perament can be applied to it without annulling it.(6) 
 Domat illustrates this principle by a reference to those 
 laws which require certain formalities in the execution 
 of last wills and testaments, but which formalities from 
 the happening either of some unforeseen event, or through 
 mistake or accident, have not been complied with. In 
 such case, the will must always be held null, whatever 
 certainty there may be of the will of the testator, or 
 however favorable the contents of the testament may be. 
 The principle in such case is founded upon the reason 
 that these formalities are the only ways which the law 
 allows, and hence the rigor of the law, which annuls 
 wills when these formalities have not been observed, is 
 
 (a) Doct. and Stud. 1, c. 16. 
 
 (b) Domafs Civil Law, b. i. tit. i. sec. 2, p. 10. IV.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. <V>.~> 
 
 required, and is essentia] to the law itself, founded as it 
 is upon principles of public policy, which cannot be mit- 
 igated without subverting those principles, and quite 
 annulling the law itself.(a) But in those cases where 
 the hardship or rigor of the law be not the necessary- 
 consequence of, and inseparable from it, but the law it- 
 self may have effect, by an interpretation which miti- 
 gates its rigor ; courts may, as the spirit of the law re- 
 quires, depart from the rigor which the letter of the law 
 seems to demand, and follow rather its spirit and true 
 intendment rather than adhere to a strict and rigid inter- 
 pretation. (6) We have seen that he is of the opinion that 
 we cannot lay down any general rule of universal appli- 
 cation, either that the rigor of a law ought always to be 
 followed contrary to the temperament of equity, or that 
 it ought always to yield to equity. For this reason, the 
 rigor of a law becomes injustice in those cases where 
 it will admit of an equitable construction, and on the 
 other hand it is a. just rule in those cases, when an equit- 
 able interpretation would destroy or annul the law 
 itself. 
 
 § 708. Thus it will be seen, that according to this 
 great civilian, " the rigor of the law," must be taken 
 either for a hardship which is unjust and odious, for the 
 reason that it is in no way conformable to the spirit of 
 the law, or on the other hand, for a rule which is inflex- 
 ible, but which has nevertheless its principles founded 
 on substantial reasons and strict justice. In the former 
 case it may be mitigated, but in the latter it should not. 
 This certainly is a very palpable distinction, and one 
 
 (a) Domat's Civil Law, b. i. tit. i. sec. 2, p. 10, IV. See 3 Har. & Mc- 
 Hen. 457. 
 
 (6) Domat's Civil Law, b. i. tit. i. sec. 2, p. 10, V. 
 
 104
 
 826 OF EaUlTABLE CONSTRUCTION. [CHAP. XVI. 
 
 which should ever be kept in view, in cases where an 
 equitable interpretation is to be resorted to. He thinks 
 that the rule of an equitable construction manifestly ap- 
 plies in all that class of cases where the words of the 
 law do not expressly comprehend some cases which 
 cannot, without absurdity, be excepted from its ope- 
 ration. 
 
 § 709. Fret, in his commentaries on the Pandects, 
 says, " That things which are not expressly specified by 
 the law, must be supplied by means of interpretation by 
 the jurisdiction of judges, proceeding on the manifest 
 meaning of the law, to cases similar to those provided 
 for according to the letter of the law, whenever the 
 principles and reason of the law apply. (a) Mr. Dwar- 
 ris says, " Whatever doubts may be entertained of the 
 propriety of extending the words of a statute by equitable 
 construction to embrace other cases, — conveyances, — 
 times, — places, — persons, — and things, — besides those 
 contained and expressly mentioned in the act, there can 
 be no question that 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 construing a remedial statute, to extend the 
 enacting words beyond their natural import and effect, 
 in order to include cases within the same mischief."(6) 
 Stephens says, " That is true with us of remedial sta- 
 tutes only, which Cicero says of all laws, eas ex utilitate 
 communi non ex scriptione, qua, in Uteris est interpre- 
 tari. v (c) 
 
 § 710. Lord Erskine's rule was, that where the strict 
 
 (a) Domat, 4, c. iv. prelim., sees. 1, 21, LX. ff. de leges, I. XII., eod. i. 
 xxxii. ff. ad 4 Aquil. Eng. Constitution, by Bowyer, 28. 
 (6) Dwarris, 735 ; 2 Y. & J. 196. 
 (c) 1 Steph. Elec. L. 28.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 827 
 
 letter of the law was contrary to its spirit or to equity, 
 judges ought not so much to regard the proper or re- 
 ceived signification of the words, as that meaning which 
 appeared most consonant to the design of" the law. (a) 
 And he bids fairest for a just interpretation who keeps 
 constantly in view, the mischiefs or defects which ex- 
 isted in the former laws on the same subject, the reme- 
 dies which the statute has provided to cure them, how 
 far those remedies are proper, and what sense appears 
 the most consonant to the subject-matter, and most 
 agreeable to equity. (Vj) 
 
 § 711. An inattentive reader, in perusing the works 
 of some elementary writers, might be led from their 
 writings to suppose, that a distinction exists between 
 the powders of a court of equity and a court of law in 
 the application of the doctrine of equitable construction. 
 But it will be found no such distinction exists. We 
 have stated the rule adopted in such cases in a previous 
 chapter. (c) We have shown that in those states which 
 have separate courts of law and equity, the same rules 
 of construction prevail in each ; or if they differ it is only 
 as one court differs from another. 
 
 § 712. The rule of an equitable construction of a sta- 
 tute has frequently been adopted in this state, and the 
 reasons for it adverted to. It came under consideration 
 in the case of The Mayor, fyc. of New York v. Lorded) in 
 the court of dernier resort. The chancellor, in speaking 
 of its necessity, says : " The imperfection of human lan- 
 guage, and the different modes of expression in use 
 amongst different individuals, even in the same state or 
 government, to convey their ideas, wishes, or intentions, 
 to the minds of others, renders it morally impossible that 
 
 (a) Erks. Inst. b. i. tit. i. sec. 52. (c) See ante, § 635. 
 
 (b) lb. sec. 58. (d) 18 Wend. 131.
 
 828 OF EQ.UITABLE CONSTRUCTION. [CHAP. XVI. 
 
 the language of any general legislative provision, which 
 is intended to govern in future cases, can be made so 
 certain and explicit as not to admit of a doubt as to its 
 proper interpretation or legal construction, when it is 
 afterwards to be applied to the peculiar circumstances 
 of some cases, which may arise and be brought before 
 the judicial tribunals in reference to such statutes. For 
 this reason it has been found necessary to establish a 
 system of legal hermencutics, or fixed principles of inter- 
 pretation, and construction of legislative enactments, to 
 ascertain the intent and meaning of the lawgiver. For 
 similar reasons, certain fixed rules of judicial construc- 
 tion are resorted to by courts of justice, for the purpose 
 of giving a proper construction to the terms of a grant 
 from the government, or from a private person, the 
 meaning of a testamentary disposition, or the true inter- 
 pretation of words which parties have used in a written 
 contract. Among these fixed principles or rules for the 
 interpretation or construction of statutes, which has been 
 adopted in this country and England, is that of constru- 
 ing the statute by equity, so as to produce neither injus- 
 tice nor absurdity, where the language of the statute is 
 such as to admit of different interpretations or construc- 
 tions." The learned chancellor then adopts the rule of 
 Lord Eskine, above stated by us. 
 
 § 713. In this case, the question arose under the pro- 
 visions of 1 R. L. 1813, p. 368, sec. 81, which provided, 
 that when any building or buildings in the city of New 
 York should be on fire, the mayor, with the concurrence 
 of two aldermen, might direct and order the same, or 
 any other building which they may deem hazardous, to 
 be pulled down or destroyed. The act further provided, 
 that upon the application of any person interested in 
 such building so pulled down or destroyed, to the mayor? 
 recorder or any two aldermen ; it made it their duty to 
 call a jury to inquire of and assess the damages which
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 829 
 
 the owner of such building, or any person having any 
 estate or interest therein, had sustained by the pull- 
 ing down or destroying thereof. J hiring the great 
 fire in December, 1835, a building owned by Ru- 
 fus L. Lord, and occupied by David N. Lord as ten- 
 ant for a year from the 1st May, 1835, had been destroy- 
 ed by being blown up by the order of the mayor 
 and two aldermen, to prevent the spreading of the con- 
 flagration. At this time the tenant, D. N. Lord, had a 
 large amount of goods in the building, which were also 
 destroyed with the building. The tenant applied, under 
 the act, for a jury, who assessed the damage of the owner 
 of the building at $7,168 50, and of the tenant as lessee, 
 and for the goods, at $156,274 80. By the terms of the 
 act, the damages assessed were to be paid by the city in 
 full satisfaction of all demands of such persons, by rea- 
 son of the pulling down and destroying of the building. 
 The main question involved in the case was, whether, 
 under the statute, the tenant, who did not own the build- 
 ing, was entitled to the indemnity of the act. The su- 
 preme court, 17 Wend. 285, Bronson, J. dissenting, had 
 decided he was, which decision was under review in the 
 court for the correction of errors. This case affords an- 
 other illustration of the application of the rule of an 
 equitable construction. The chancellor held, in this 
 case, (and his opinion prevailed,) that in relation to the 
 question then under consideration, the defects in the 
 common law were, that where it might become neces- 
 sary for the officers of the corporation to destroy the 
 property of an individual to prevent the ravages of a fire, 
 no provision was made for compensation to the individ- 
 ual whose property was taken for the benefit of others. 
 Although the legislature seemed to have supposed that 
 it was only necessary to give the officers of the corpora- 
 tion a discretionary power to pull down or destroy build- 
 ings to arrest the progress of a fire, it could hardly &e
 
 830 OF EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 presumed that they did not intend to extend this protec- 
 tion to the officers, as well as the compensation to the 
 individuals whose property was taken or destroyed, to 
 all cases of destruction which were a necessary conse- 
 quence of a correct and judicious exercise of the power 
 expressly given by the statute. The terms of the act ap- 
 peared sufficiently broad to give to the owner or lessee 
 of the building an assessment of all damages he had 
 sustained by the pulling down of the building, without 
 giving him an opportunity to remove his goods there- 
 from. In such cases the loss of the goods might as legi- 
 timately be considered as damages sustained by the de- 
 struction of the building as the loss of the building itself. 
 Both were equally within the spirit and equity of the 
 statute. Thus, by an equitable construction, he gave to 
 the tenant the benefit of this act. 
 
 § 714. Although it is undoubtedly true that judges, 
 when interpreting the law, are to explore the intent of 
 the legislature, yet it is equally true that the construc- 
 tion to be put upon an act, must be such as is warranted, 
 or at least not repugnant to the words of the act. 
 Where the object of the legislature is plain, and the 
 words of the act unequivocal, courts ought to adopt such 
 a construction as will best effectuate the intention of the 
 law-makers ; but they must not, even in order to give 
 effect to what they may suppose to be the intention of 
 the legislature, put upon the provision of a statute a con- 
 struction not supported by the words, even although the 
 consequences should be to defeat the object of the 
 act.(«) 
 
 § 715. Where the legislature have used words of plain 
 and definite import, it would be dangerous to put upon 
 them a construction which would amount to holding 
 
 (a) Rex v. Slake Damerel, 7 B. & C. 569 ; Dwarris, 702.
 
 CHAP. XVI.] OF EQUITAHLE CONSTRUCTION. 831 
 
 that the legislature did not mean what they had clearlv 
 expressed. The fittest course in all cases where the in- 
 tention of the legislature is brought in question, is to ad- 
 here to the words of the statute, construing them, accord- 
 ing to their nature and import, in the order in which 
 they stand in the act. rather than to enter upon an in- 
 quiry as to the supposed intention. (a) Neither are courts 
 to presume the intention of the legislature ; but they are 
 to collect them from the icords of the act. Dwarris hath 
 with great propriety said, " This is the true sense in 
 which it is so often impressively repeated, that judges 
 are not to be encouraged to direct their conduct ' by the 
 crooked cord of discretion, but by the golden metwand 
 of the law.' " That is, not to construe statutes by equity 
 out of the words of the act or irrespective of them, but 
 to collect the sense of the legislature by a sound inter- 
 pretation of the language, according to reason and gram- 
 matical correctness. (6) 
 
 § 716. Great caution should be used in the adoption 
 and application of an equitable construction, lest judges 
 should usurp legislative authority, and make, instead of 
 expounding statutes, in the exercise of too unlimited ju- 
 dicial construction. In modern times, both in this coun- 
 try and in England, courts have felt the danger of giving 
 too great a latitude to this species of construction, as 
 well as the necessity of limiting its exercise to only those 
 cases which are most clearly within the spirit of the rule, 
 and about which there could be no propriety of its ap- 
 plication to each particular case. 
 
 §717. Mr. Justice Chase, in Priestman v. United 
 States,(c) remarked, that " by the rules which are laid 
 down in England for the construction of statutes, and 
 the latitude which has been indulged in their application, 
 
 (a) 6 B. & C. 712. (6) Dwarris, 703. (c) 4 Dallas, 30.
 
 832 OF EQ.UITABLE CONSTRUCTION. [CHAP. XVI. 
 
 the British judges have assumed a legislative power, and 
 on the pretence of judicial exposition, have in fact made 
 a great portion of the statute law of the kingdom. Of 
 these rules of construction, none can be more dangerous 
 than that which distinguishes between the intent and 
 the words of the legislature, which declares that a case 
 not within the meaning of the statute, according to the 
 opinion of the judges, shall not be embraced within the 
 operation of it, although it is clearly within the words ; 
 and vice versa, that a case within the meaning, though 
 not within the words, shall be embraced. Sitting in an 
 American court, he should always deem it a duty to con- 
 form to the expression of the legislature to the letter of 
 the statute, when free from ambiguity and doubt, with- 
 out indulging in speculation either upon the impropriety 
 or hardship of the laws." 
 
 § 718. Mr. Justice Bronson, in his dissenting opinion 
 in the case of The Mayor, fyc. of JVew York v. Lord,(a) 
 held, that very great license had sometimes been taken 
 in the construction of statutes, and they had been ex- 
 tended by equity so as to include cases which seemed 
 far enough from the declared will of the legislature. It 
 had been said, "Judges have liberty and authority over 
 laws, especially statute laws, according to reason and 
 best convenience, to mould them to the truest and best 
 use. "(6) And this was said for the purpose of justifying 
 diverse expositions of the self same words and senten- 
 ces. This, he thought, was occupying dangerous ground. 
 He agreed that we might go beyond the letter, for the 
 purpose of carrying into effect the intent of the law- 
 makers, but we must in general be able to collect that 
 intent from the statute itself, though we may some- 
 times resort to the cause or occasion of its enactment, 
 
 (a) 17 Wend. 304. (b) Hob. 346.
 
 CHAP. XVI.] OF EU.U1TABLE CONSTRUCTION. &33 
 
 for the purpose of arriving at a just conclusion. («) We 
 are not at liberty to act upon the supposed intention of 
 the legislature. 
 
 § 719. In the case of Stone et al. v. The Mayor of 
 New York,(b) involving the construction of the same 
 statute which was involved in the case of Lord v. Tlic 
 Mayor of JVeio York, it was attempted in this case, to 
 carry the construction of this statute so far, as to entitle 
 the lessee of a building destroyed by order of the mayor, 
 &c, to recover damages for merchandise destroyed (with 
 the building) which did not belong to the lessee, but was 
 the property of others, in his possession as a factor, or 
 merely on storage. But the court for the correction of 
 errors refused to do so. In this case, in a prevailing 
 opinion, it was held, that the doctrine of the right and 
 duty of courts to give to a statute an enlarged construc- 
 tion, even in direct violation of the language used, but 
 according to the probable or presumed intention of the 
 legislature, had been maintained and applied to this act. 
 There was much high authority for judicial extension 
 or alteration of the meaning of statutory language, in 
 almost as great a latitude as had been contended for in 
 this case, and it might be found in judicial decisions as 
 well as the reasonings and opinions of learned judges 
 and commentators. The experience of later years had 
 taught courts the danger of excess in bold interpretation, 
 according to the presumed intent and against the plain 
 language of acts. The ablest and safest judges had 
 borne testimony against the evil of the ancient decisions 
 in this spirit. It was the duty of judges to interpret and 
 apply the provisions of statute laws, and not to supply 
 their real or supposed defects, or to carry out and apply 
 their jyresumed policy. However rigidly courts might 
 
 (a) 15 J. R. 358. (*) 25 Wend. 177. 
 
 105
 
 834 OF EQ.U1TABLE CONSTRUCTION. [CHAP. XVI. 
 
 adhere to this intention, there would often be necessity 
 for great latitude of interpretation. This arose in no 
 small degree from the necessary imperfection of human 
 language, and the various senses in which words or 
 phrases were used, even by the most careful writers. 
 But legislative language was liable to greater incongruity 
 from the manner in which acts were often framed in 
 numerous bodies, where amendments by one hand were 
 often engrafted upon bills prepared by others, and some- 
 times with a different intent and spirit. Thus statutory 
 language might be not only obscure but contradictory. 
 Then the necessity of the case imposed on courts the duty 
 of gathering the intention as they best could, from the 
 whole legislative expression of the will taken together, 
 and not from single, isolated, or detached sentences. 
 The legitimate power of judicial construction of legisla- 
 tive language, beyond or contrary to its accustomed 
 meaning, was confined to cases in which the words used 
 were either doubtful or ambiguous in themselves, or 
 contrary to other parts of the same act and its avowed 
 object, or else to some clear, well settled principle of 
 constitutional right, such as the legislature could not be 
 presumed to have meant to oppugn, or where the act 
 would not have been valid had they so meant. In such 
 cases, especially the last, the adoption of unusual and 
 even strained senses of words or phrases, had often been 
 resorted to, and this seemed justifiable, so long as the 
 construction, though less natural and obvious, was still 
 within some reasonable meaning of the language of the 
 statute. If courts were ever authorized to go beyond 
 these limits, it would only be done where there was 
 some acknowledged rule of justice or right wholly inde- 
 pendent of the statute, to which its provisions failed to 
 give effect. Where there was such a previous right, for 
 securing and enforcing of which no legal remedy had 
 beeen provided, and where it could be enforced by statu-
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 835 
 
 tory construction without injustice to other parties, such 
 a latitude of interpretation, or rather of application, might 
 be regarded as a strictly judicial act, applying a general 
 principle of justice in a manner pointed out and approved 
 by the legislature as to similar subjects. But when a 
 statute rests upon legislative discretion alone, or judg- 
 ment upon public policy, then, any assumption by courts, 
 varying, abridging, or extending the clear provisions of 
 a statute, upon the ground of carrying out the policy or 
 intention of the enacting body, appeared to be a usur- 
 pation of power, transgressing the fixed boundaries be- 
 tween the judicial and legislative authority. Whatever 
 may have been the policy or excuse in other countries 
 or in older times, for such bold construction or alteration 
 of legislative language, with us it was in hostility to the 
 genius and spirit of our republican institutions, which 
 aimed at laying open to every citizen, as far as possible 
 a knowledge of his duty and his right. The statute 
 books, and the laws of our annual legislation would be- 
 come, under such an arbitrary system of determination, 
 not merely a sealed book to the private citizen, or the 
 inferior magistrate, but they were calculated to lead into 
 constant error, when the language of the legislative, even 
 where apparently the most simple, direct, intelligible and 
 technical, could be construed in a precisely contrary 
 sense as to its legal effect. The rule that restricted courts 
 to the interpretation of the statute, and inhibited them 
 from altering or amending it on any assumed equity or 
 supposed legislative policy, was the rule of well regu- 
 lated republican liberty, as well as that of justice and 
 reason. 
 
 § 720. Lord Chief Justice Tenterden(a) says, "there 
 is always danger in giving effect to what is called the 
 
 (a) 6 Barn. & Cress. 475.
 
 S36 OF EQUITABLE CONSTRUCTION. [CHAP. XVI 
 
 equity of the statute, and it is much safer and better to 
 rely on and abide by the plain words, although the legis- 
 lature might possibly have provided for other cases, had 
 their attention been directed to it." Butler, Justice,(«) 
 says, " we are bound to take an act of parliament as 
 they have made it ; a casus omissus can in no place be 
 supplied by a court of law, for that would be to make 
 laws, (b) 
 
 § 721. The plain and literal meaning of the language 
 of a statute should never be departed from, unless there 
 be strong evidence that the meaning of those who framed 
 it was different from that which its language imports. (c) 
 It seems that other judges in England have not been 
 insensible to the dangerous consequences of the appli- 
 cation of this rule. Chief Justice Willis, in one case, 
 held, that where the words of an act are doubtful and 
 uncertain, in such case it was proper to inquire what 
 was the intention of the legislature ; but that it was very 
 dangerous for judges to branch out too far, in exploring 
 into the intent of the legislature, when they have ex- 
 pressed themselves in plain words. (d) Indeed, this 
 opinion has become so prevalent in England, it is said 
 that recently English judges frequently observe, in an- 
 swer to remarks of counsel, that the legislature intended 
 so and so — that they had not, in the particular statute 
 then under consideration, so expressed themselves, and 
 therefore the maxim applies quod volintnon dixit. Chief 
 Justice Denman(e) declared, that where he found the 
 words of a statute perfectly clear, he should adhere to 
 them. Lord Tenterden, in one case, also says : " Our 
 
 (a) 1 Term R. 52. 
 
 (b) See also per Bronson, J., 17 Wend. 304. 
 
 (c) Clark v. People, 26 Wendell, 599. 
 
 (d) Plowden, 57. 
 
 (<•) 4 Neville & Manning, 460.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION. 837 
 
 decision may perhaps, in this particular case, operate to 
 defeat the object of the statute, but it is better to abide 
 by this consequence than to put upon it a construction 
 not warranted by the words of the act, in order to carry 
 out what we may suppose to be the intent of the legisla- 
 ture, "(ft) In another case the same learned judge said : 
 " 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. "(6) Mr. Justice Ashurst, in a judgment 
 on the game laws, has said : " It is safer to adopt what 
 the legislature have actually said. The heir apparent 
 may have qualified upon the supposition that the esquire 
 was so already. I cannot suppose it was their intention 
 to exclude the father, but in fact they have done it."(c) 
 § 722. In a case of goods forfeited to the Bishop of 
 Durham, in an action charging the sheriff of the county 
 palatine of Durham with having removed the goods of 
 a tenant from the premises in his occupation, without 
 having paid the landlord one half year's rent then due, 
 according to the form of the statute of 8 Anne, c. 14, 
 Lord Tenterden said : " The process under which the 
 sheriff seized and sold the goods in question, was not 
 process of execution on a judgment — it was not, there- 
 fore, within the words of the statute. But it was said 
 it was within the equity ; but 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 the 
 statute, and that it is much safer and better to rely on 
 and abide by the plain words, although the legislature 
 might have possibly provided for other cases, had their 
 attention been directed to them." Bailey, J. said : " I cer- 
 
 (a) Rex v. Bolton, 8 B. & C. 104. 
 
 (b) Notley v. Buck, 8 B. & C. 160. 
 <c) Jones v. Smart, 1 T. R. 52.
 
 838 OF EQUITABLE CONSTRUCTION. [CHAP. XVI. 
 
 tainly think that the present case comes within the mis- 
 chief intended to be remedied by the statute of 8 Anne, 
 c. 14, sec. 1, and I should have been better satisfied if it 
 could be brought within the fair construction of the 
 words of that enactment. But I think we should be at- 
 tributing too comprehensive a meaning to the words of 
 the statute. Holroyed, J. said : " This case does not 
 appear to have been contemplated by the legislature, 
 although it may perhaps be within the mischief which 
 they intended to remedy by 8 Anne, c. 14."(a) Mr. 
 Dwarris says : " The result is, that to bring a case within 
 the statute, it should be not only within the mischief 
 contemplated by the legislature, but also within the 
 plain, intelligible import of the words of the act of par- 
 liament."^) 
 
 (a) Brandling v. Barrington,% B. & C. 475. 
 (6) Dwarris, 711.
 
 CHAP. XVI.] OF EQUITABLE CONSTRUCTION, &C. 839 
 
 CHAPTER XVII. 
 
 OF EQUITABLE CONSTRUCTION OF PENAL STATUTES. 
 
 § 723. In the preceding chapter we considered the 
 doctrine of equitable construction generally. In the 
 next succeeding chapter we shall proceed to the consid- 
 eration of the rules of construction which prevail in re- 
 ference to penal statutes. The design of the present 
 chapter will be to consider how far equitable construc- 
 tion may be applied to penal statutes. We start with 
 the position, that as a general rule, penal statutes are to 
 be construed strictly. A penal statute is one which im- 
 poses a penalty or forfeiture for the doing or omitting to 
 do a given act. By penal statutes, strictly speaking, are 
 meant not only such as impose a penalty or forfeiture on 
 such as transgress the provisions therein contained, but 
 also such as give a summary remedy in derogation of 
 the common law, or in derogation of rights of pro- 
 perty, or one which takes away the estate of a citizen, 
 or imposing disabilities upon persons. It is important, in 
 the outset, that we should clearly understand the reasons 
 why a penal statute should be construed strictly. Un- 
 der the civil law, the distinction, as we have seen, was 
 between things odious and those not odious. At com- 
 mon law it seems to be that the law does not allow of 
 constructive offences or of arbitrary punishment ; hence 
 it is highly proper that it should be a fundamental rule 
 that no man shall incur a penalty, unless the act which 
 subjects him to it is clearly both within the letter and 
 spirit of the statute imposing the penalty. It has been
 
 810 OF EQUITABLE CONSTRUCTION [CHAP. XVli. 
 
 very justly remarked by an English jurist, that if these 
 rules are violated, the fate of accused persons is decided 
 by the arbitrary discretion of judges, and not by the ex- 
 press authority of law.(«) It is not, however, always 
 true that all statutes of a penal character are to be re- 
 garded as exclusively penal, for a penal statute may also 
 be a remedial law, (6) or it may be penal in one part and 
 remedial in another.(c) 
 
 § 724. In the application of the rules of construclion 
 to statutes which partake of this two-fold character, it is 
 of great importance to keep this distinction in view, and 
 to discriminate between the parts of a statute which are 
 penal and those which are remedial. It has been said 
 that in England an act of parliament that only gives a 
 remedy to the party aggrieved, shall not be construed as 
 a penal statute. (d) 
 
 § 725. Another limitation of the rule that penal sta- 
 tutes are to be construed strictly, should also be ob- 
 served, which is, that while they are to be strictly con- 
 strued, yet they are not to be construed so strictly as to 
 defeat the obvious intention of the legislature, and the 
 words are not to be so narrowed down as to exclude 
 cases which those words, in their ordinary adaptation, or 
 in that sense in which the legislature obviously used 
 them, would comprehend, (e) But in order to au- 
 thorize a detemination that a case is within the inten- 
 tion of the legislature, the language used must clearly 
 authorize the construction. For it would be an ex- 
 tremely dangerous and unjust rule to carry the principle, 
 that a case that is within the mischief of a statute is 
 
 (a) Best, J. Fletcher v. Lord Sa?iders, 3 Bing. 580 ; 1 Stev. Elec. L. 29. 
 
 (6) 3 Wils. 126. 
 
 (c) Day, 702. 
 
 (</) 1 Wils. folio, 412 ; see also Black. R. 1226. 
 
 (e) The United Stales v. Willberger, 5 Wheat. 76 to 94.
 
 CHAP. XVII.] OF PENAL STATUTES. 841 
 
 within its provisions, so far as to punish a crime not 
 enumerated within the statute, because it was of equal 
 atrocity, or of a kindred character with those named in 
 the act, or to apply a penal statute to previous acts, un- 
 less such construction was unavoidable from the lan- 
 guage used. (a) Hence the rule that penal statutes are 
 to be construed strictly, means simply this — that they 
 ought not to be extended, by their spirit or equity, to 
 other offences than those which are clearly prescribed 
 and provided for. But this rule does not prevent an in- 
 quiry by the court into the intention of the legislature.^) 
 No court ought to conjecture that an act not expressly 
 forbidden, and which is in itself innocent, might be a pre- 
 liminary step to a violation of the law, and ought there- 
 fore to be punished, for the purpose of affecting the legis- 
 lative intention ; such a construction would transcend the 
 powers of a court, and would be creating instead of ap- 
 plying a rule already made.(c) 
 
 § 726. The rule that penal statutes are to be con- 
 strued strictly when they act on the offender, and inflict 
 a penalty, admits of some other qualifications. In the 
 construction of statutes of this description, it has often 
 been held that the plain and manifest intention of the 
 legislature ought to be regarded : a statute which is pe- 
 nal to some persons, provided it acts beneficially gene- 
 rally, may be equitably construed, even in cases of 
 felony, courts have regarded the intention of the legisla- 
 ture. Hence, w T here an act is couched in general terms 
 in the plural, it has been held to include a thing in the 
 singular number of the same denomination as is stated 
 in the act. An instance of the kind has obtained under 
 the statute of Geo. 2, which enacted that it should be 
 
 (a) See The United Slates v. Hall, 6 Cranch, 171 to 174. 
 
 (b) The Enterprise, 1 Paine C. C. R. 32. 
 
 (c) See 7 Cranch, 61. 
 
 106
 
 842 OF EttUITABLE CONSTRUCTION [CHAP. XVII. 
 
 felony to steal any bank notes. On an indictment un- 
 der this act ; it has been adjudged felony to steal one bank 
 note. A^iner says : " The rule that penal statutes must 
 be construed strictly, may be adopted with this qualifi- 
 cation, " that it does not apply to those cases where the 
 object of the statute is to prevent a general mischief, al- 
 though it may be held good in cases of laws that are 
 penal as to particular persons, but not if made for the 
 public good and the peace and safety of the realm ;"(«) 
 and this qualification of the rule seems to have been re- 
 cognized, in principle, in the decision of our own courts 
 in several cases. In Sickles v. Sharp, hereafter referred 
 to, it was distinctly recognized. Woodworth, Justice, 
 in the case of The People v. Eartow^b) says, " That 
 although a penal statute is to be construed strictly, the 
 court are not to disregard the plain intent of the legisla- 
 ture. Among other things, it is well settled that a sta- 
 tute which is made for the good of the public ought, al- 
 though penal, to receive an equitable construction. In 
 Vaugh. 179,(c) the rule is also recognized that statutes 
 that are made for the public good are to be so expanded 
 as to attain their end." 
 
 § 727. In the case of the Schooner Harriet,(d) Mr, 
 Justice Story laid down the rule, that penal statutes 
 were to be construed strictly, and cases within the like 
 mischiefs are not to be drawn within a clause imposing 
 a prohibition or forfeiture, unless the words clearly com- 
 prehend the case ; yet all the provisions thereof must be 
 taken together, and interpreted according to the import 
 of the words, and not by the mere divisions into sections, 
 so as to give effect to the object and intent of the statute. 
 And that all statutes relating to the same subject-matter 
 
 (a) 19 Vin, 521. (c) 1 Strange, 253, 258. 
 
 (6) 6 Cow. R. 293. (</) 1 Story, 255.
 
 GHAP. XVII.] OF PENAL STATUTES. B43 
 
 are to be interpreted together, and such a construction is 
 to be given to them, consistent with the words, as will 
 avoid the mischief and promote the object and policy 
 contemplated by the statute. Jf 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 main objects of those sections, and the true 
 intent and policy of the act will be best promoted, by 
 reading it as applicable to all those sections, and it' fur- 
 ther mischiefs equally within the scope of the statute, 
 would be thereby prevented, and upon a different con- 
 struction those mischiefs would be left without redress, 
 there is certainly very strong ground to say, that the 
 clause ought to be so construed as to suppress the mis- 
 chief, and not to promote or protect them. Where the 
 language was appropriate, it should be construed as in- 
 tended to include them. Where the public mischief 
 w T as the same, and the words w 7 ere sufficient to cover 
 all the cases, it would be against all just rules of inter- 
 pretation to confine the language to one case only. 
 
 § 728. In another case the same judge laid down the 
 rule thus : " We are undoubtedly bound to construe 
 penal statutes strictly, and 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 influences of the statute."(«) In 
 the case in which he thus laid down the rule, he says, 
 that the object of the law was to prevent frauds upon 
 the revenue, and it was upon this ground that he was 
 not at liberty to narrow the words so as to save from 
 
 (a) The Schooner Industry , 1 Gallison, 117.
 
 844 OF EQUITABLE CONSTRUCTION [CHAP. XVII. 
 
 their operation a case, also fully within the mischiefs 
 which the legislature designed to remedy. In reference 
 to the doctrine that penal statutes are to be construed 
 strictly, the same learned judge, in another case, said, 
 " I agree to this rule in its true and sober sense, and that 
 is, that penal statutes are not to be enlarged by implica- 
 tion, or extended to cases not obviously within their 
 words or purport. But where the words are general, 
 and include various classes of persons, I know of no au- 
 thority which would justify the court in restricting them 
 to one class, or in giving them the narrowest interpreta- 
 tion, where the mischief which is 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 requires 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. The most restricted sense, then, is 
 not, as a matter of course, to be adopted as the true 
 sense of the statute, unless it best harmonizes with the 
 context, and stands best with the words and with the 
 mischief to be remedied by the enactment. (a) 
 
 § 729. The case last cited, arose under an indictment 
 against the master of a ship for having from malice, and 
 without justifiable cause, on the high seas, beaten and 
 imprisoned one J. B., one of the crew, against the sta- 
 tute 3d March, 1835, c. 40, sec. 5. The third section 
 
 (a) The United States v. Winn, 3 Sumner, 211.
 
 CHAP. XVII.] OP PENAL STATUTES. >|."> 
 
 of the statute provided, " That if any master or other 
 officer of any American ship or vessel on the high seas, 
 or within any other waters within the admiralty and 
 maritime jurisdiction of the United States, shall from 
 malice, hatred, or revenge, and without any justifiahle 
 cause, beat, wound or imprison, any one or more of the 
 crew of such ship or vessel, or withhold from them suit- 
 able food and nourishment, or inflict upon them any cruel 
 or unusual punishment, every such person so offending 
 shall, on conviction thereof, be punished by line not ex- 
 ceeding, &c, or by imprisonment not exceeding, &c., or 
 by both according to the nature and aggravation of the 
 offence." The question presented for the consideration 
 of the court was, whether the offence when committed 
 by the master upon the chief or other officer of the ship, 
 was an offence within the purview or intent of the sta- 
 tute. In other words, whether the word " crew," in the 
 section, was used in contradistinction to other officers of 
 the ship, and so including the common seamen or mari- 
 ners only, or, whether the word " crew," in the sense of 
 the statute, embraced all the officers except the master, 
 as well as the common mariners. It was held that it 
 did include all except the master. Mr. Justice Story, 
 after laying down the rule in the language above quoted, 
 says : " Now the word ' crew' has several well known 
 significations. In its general and popular sense it is 
 equivalent to company. He then proceeded to cite sev- 
 eral authorities to show that such was its popular 
 meaning. He then adds : — The general sense of the 
 word f crew' being then, as I think, equivalent to ship's 
 company, which, it can scarcely be doubted, embraces 
 all the officers as well as the common seamen ; that 
 sense ought not to be displaced unless it is manifest that 
 the legislature have used the word ' crew' in a more re- 
 strictive sense ; and this must be ascertained, either from 
 the context, or from the object to be accomplished by
 
 846 OF EQUITABLE CONSTRUCTION [CHAP. XVII. 
 
 the enactment. Now in examining our laws upon mari- 
 time subjects, it will be found, that the word ' crew' is 
 used sometimes in the general sense above stated, and 
 sometimes in other senses more limited and restrained. 
 It is sometimes used to comprehend all persons com- 
 posing the ship's company, including the master ; some- 
 times to comprehend the officers and common seamen, 
 excluding the master ; and sometimes to comprehend the 
 common seamen only, excluding the master and officers. 
 But in these two last clauses, I think upon close exam- 
 ination it will be found, that the context always contains 
 language which explains and limits the general to the 
 particular sense." After referring to other provisions of 
 the statute, for the purpose of ascertaining the true sense 
 of the word as intended by the legislature, he says : — 
 " Upon the whole, after much deliberation upon the sub- 
 ject, I adhere to the construction which was stated to 
 the jury at the trial. I think the word ' crew' was in- 
 tended to include the officers as well as the common 
 seamen ; and that the section uses the word as equiva- 
 lent to ship's company. In this view it is used in the 
 same sense as it is in the first and second sections of the 
 act ; and for purposes equally important to the due pro- 
 tection of all engaged in the maritime service, and equally 
 necessary for the safety and security of the voyage." 
 
 § 730. It has been held, that courts are not to narrow 
 the construction of penal statutes, but are to give effect 
 as near as may be, to the plain meaning of words, and 
 where they are doubtful they are to adopt the sense that 
 best harmonizes with the context, and the apparent po- 
 licy and object of the legislature. (a) In the case of Bex 
 v. The Inhabitants of Hodnett,(b) it was held, that bas- 
 
 (a) Pike v. Jenkins, 12 N. H. R. 256. 
 
 (b) 1 D. & E. 96.
 
 CHAP. XVII. J OF PENAL STATUTES. 847 
 
 tards were within the meaning of the marriage act, 26 
 Geo. 2, c. 33, which required the consent of the father, 
 guardian, or mother, to the marriage of persons under 
 age, who are not married by banns ; and that there was 
 no reason to except illegitimate children, for they were 
 within the mischiefs intended to be remedied by the act. 
 Buller, Justice, in that case said : " It is not true that 
 the court, in the exposition of penal statutes, are to nar- 
 row the construction. We are to look to the words in the 
 first instance, and, where they are plain, we are to de- 
 cide 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. JNow these words are very gene- 
 ral. The act speaks of all persons, except under par- 
 ticular circumstances. Then does this come within any 
 of the exceptions ? If it do not, it falls under the general 
 regulations established by the act. Besides, the rule 
 that a bastard is nidliusjilius, applies only to the case of 
 inheritances ; it was so considered by Lord Coke." Mr. 
 Justice Woodbury, in commenting upon the rule that 
 penal statutes are to be construed strictly, says ; " But 
 this rule of construction, if we recur to the principles upon 
 which it is founded, appears often to have been misap- 
 plied to statutes, and should generally be confined to the 
 declarations on penal statutes, and to the evidence ad- 
 duced in support of the declarations." In a subsequent 
 part of the same decision he adds : " A statute, if of pub- 
 lic utility, as is the uniform presumption, should be so 
 construed as to effectuate the intention of its makers. 
 This intention, to be sure, must be gathered from the 
 language and subject-matter of the statute. But when 
 once so gathered, it is no less important to society, 
 and no more severe upon the offender to enforce it 
 in penal statutes than in remedial ones. Indeed so- 
 ciety at large have often more interest in a liberal 
 extension of some penal statutes, and in those merely
 
 848 OF EQUITABLE CONSTRUCTION [CHAP. XVII. 
 
 penal, not including such as inflict corporeal punish- 
 ment, the offender has often less at stake. Without such 
 a construction too, this class of statutes become almost 
 a dead letter, prosecutions are a mockery, and malefac- 
 tors encouraged."(a) In Powlter's case^b) Lord Coke 
 observes : " It is frequent in our books, that penal sta- 
 tutes have been taken by intendment, to the end they 
 should not be illusory, but should take effect according 
 to the express intention of the makers of the act;" and. 
 in Plowden,(c) "it was the opinion of all the justices 
 that though things which do not come within the words 
 ' of penal statutes,' shall not be taken by equity, * yet' 
 the words of them may be construed beneficially, accor- 
 ding to the intent of the makers thereof. It is also said 
 the rule that penal .statutes are to be construed strictly, 
 when they act upon the offender and inflict a penalty, 
 admit of some qualifications. In construction of statutes 
 of this description, it has been often held, that the plain 
 and manifest intention of the legislature, ought to be re- 
 garded ; a statute which is penal to some persons, pro- 
 vided it is beneficial generally, may be equitably con- 
 strued ; even in cases of felony courts have regarded the 
 intention of the legislature."(f/) 
 
 § 731. It has also been held that revenue laws for 
 the prevention of fraud, for the suppression of a public 
 wrong, or to effect a public good, are not, in a strict 
 sense, penal acts, although they impose a penalty, but 
 ought to be so construed as most effectually to accom- 
 plish the intention of the legislature in passing them, in- 
 stead of being construed strictly in favor of the defend- 
 ant, (e) So, too, statute against frauds are generally 
 
 (a) Fairbanks v. The Town of Antrim, 2 N. H. R. 105. 
 
 (b) 11 Co. 34. 
 
 (c) Page 86. 
 
 (d) Sickles v. Sharp, 13 J. R. 198. 
 
 (e) Taylor ct al. v. The United Stales, 3 How. R. 197.
 
 CHAP. XVII.] OF PENAL STATUTES. 849 
 
 considered as remedial, and are to be liberally and bene- 
 ficially expounded. This rule has sometimes been thought 
 contradictory to the rule we have been considering, as 
 most of these statutes are, in their consequences, penal. 
 There is an important distinction, however, which should 
 be taken into consideration, that where the statute acts 
 upon the offender and inflicts a penalty, such as impri- 
 sonment or fine, it is in this respect penal, and the old 
 authorities were that it must be construed strictly. (a) 
 But where it acts upon the offence, as by setting aside 
 the fraudulent transaction, in this respect it is remedial. 
 The rule that statutes against frauds, when they operate 
 upon the offence, are to be liberally construed, so as to 
 avoid the transaction, is recognized in other cases. (6) 
 
 § 732. Although statutes which are made with the 
 view of providing for divesting one of his estate, are to 
 be construed with the same degree of strictness as are 
 penal statutes, yet it has been held, in construing sta- 
 tutes giving powers which are to be applied to great pub- 
 lic objects, depending for their success upon the judgment 
 of the officers entrusted with their execution, and in whom 
 there must of necessity be large discretionary power, the 
 interpretation should be liberal. But this rule has been 
 placed upon the ground that they partake of a remedial 
 character. While, on the one hand, these statutes are to 
 be regarded as remedial acts, intended to carry into exe- 
 cution important equitable provisions in favor of private 
 rights, on the other hand they are not to be so construed 
 as to embarrass or defeat their purpose. (c) Although it 
 is true that statutes in derogation of a common law 
 right, or which abridge the liberty of the subject, are, as 
 
 (a) 1 Kent, 465 ; 1 Burrow, 274. 
 
 (b) Dudley, Geo. R. 182. 
 
 (c) Tide Water Canal Co. v. Archer, 9 Gill & J. 479. 
 
 107
 
 850 OF EQUITABLE CONSTRUCTION [CHAP. XVII. 
 
 a general rule, to receive a strict construction, and courts 
 have no right to extend them beyond the plain meaning 
 of the words,(a) yet even in these cases, as in cases of 
 penal statutes, the evident intent of the legislature ought 
 not to be departed from by a too forced or over con- 
 strained construction. (6) 
 
 § 733. By penal statutes, strictly speaking, are meant, 
 as we have seen, such as impose a penalty or forfeiture on 
 such as transgress the provisions of them. It by no means 
 follows, however, that every statute wherein a penalty or 
 forfeiture is annexed to an act or an omission to act is a 
 penal act, as a penal statute may be penal in one part 
 and yet be a remedial law in another.(c) Very different 
 rules of construction may prevail when interpretation is 
 to be applied to a statute of this two-fold character, from 
 that which would be applied to one solely of a penal na- 
 ture. Hence it always becomes a matter of inquiry 
 which particular provision of a statute partakes of the 
 nature of a penal or of a remedial law. The rule gene- 
 rally stated in a previous section obtains that a statute 
 which only gives a remedy to a party aggrieved, by way 
 of increased or aggravated damages, is not to be consid- 
 ered as a penal law.(d) 
 
 § 734. The distinction between a statute wholly penal 
 and one which is partly penal and partly remedial, is 
 important, inasmuch as the same words in the same sta- 
 tute have in some instances been held to bear a different 
 determination, dependent upon the nature of the suit in 
 which the rule of construction was to be applied. Thus, 
 under the statute of the 9th Anne, ch. 14, against gam- 
 ing, which enacts that if any person shall lose, at any 
 one time or sitting, £10, and shall pay it to the winner, 
 
 (a) Vaugh. 179 ; 4 Bing. 183. ( c ) 1 Wils. 126; Day, 702. 
 
 (b) 14 Pet. R. 464 ; 8 Mod. 65. (d) 1 Wils. part 1, fol. 412.
 
 CHAP. XVTI.] OF PENAL STATUTES. 851 
 
 he may recover it back in three months ; and if the loser 
 should not, within that time sue for it, any other person 
 may sue for it and treble value besides ; the judges held, in 
 a case where an action was brought by the loser to recover 
 fourteen guineas, which had been won and paid after a 
 continuance at play, except at an intermission during 
 dinner, that the statute was remedial so far as to prevent 
 the effects of gaming without inflicting a penalty, and 
 therefore in this action they would consider it one time 
 or sitting. But if the action had been for the penalty, 
 they would have construed it strictly, and held that the 
 money had been won at two sittings. The same princi- 
 ple has been recognized in this country. Thus, in Bar- 
 nabus Palmer v. The President, fyc. of York Bank,(a) in 
 an action by an individual under a statute which gave to 
 the party injured four times as much damages as is al- 
 lowed by law for the detention of the debt, although it 
 was penal in its nature, as the damages are given to the 
 party injured, who ought to recover a just debt, to which 
 the incurred damages were made an incident ; a suit, 
 therefore, was not to be regarded as properly a penal 
 suit, the statute being a remedial law. (6) 
 
 § 735. Chancellor Kent(c) recognizes this distinction, 
 and says that " statutes against fraud are generally consid- 
 ered as remedial, and are to be liberally and beneficially 
 expounded. The latter rule has sometimes been thought 
 to be contradictory, as most statutes of this character are 
 in their consequences penal. There is an important dis- 
 tinction, however, which should be taken into considera- 
 tion, that where the statute acts upon the offender, and 
 inflicts a penalty such as imprisonment or fine, it is in 
 this respect penal, and the old authorities were that it 
 
 (a) 18 Maine, 166. (c) 1 Kent Com. 165. 
 
 (l>) 13 Pick. 96.
 
 852 OF EQUITABLE CONSTRUCTION [CHAP. XVII. 
 
 must be construed strictly. (a) But where it acts upon 
 the offence, as by settirig aside the fraudulent transac- 
 tion, in this respect it is remedial, and should be con- 
 strued liberally." 
 
 § 736. A statute which is purely remedial ought al- 
 ways to receive such a construction as to suppress the 
 fraud or mischief, and so as to attain its ends, for such a 
 construction is for the furtherance of justice. (b) It is 
 by no means unusual, in construing such a statute, to 
 extend the enacting words beyond their natural import, 
 in order to include cases in the same mischief. An En- 
 glish author lays down the rule, that whatever doubts 
 may be entertained of the propriety of extending the 
 words of a statute by equitable construction, to embrace 
 cases, conveyances, times, places, persons and things, 
 besides those expressed in the act, there can be no 
 question that the words of a remedial statute are to be 
 construed largely, so as to suppress the mischief and ad- 
 vance the mischief.(c) Professor Dane admits this rule, 
 and assigns, as a reason therefor, that this is necessary to 
 guard against the subtle delays and evasions for private 
 advantage, and to give life and strength to the remedy, 
 according to the true intent and meaning of the makers 
 of the law pro bono publico. (d) 
 
 § 737. Chancellor Walworth, in the case of Cole v. 
 Savage,(e) applied this rule in a case arising under the 
 statute against usury, where the words of the act, in 
 their strict and restrained sense, only applied to the 
 borrower. He held, that there was no reason why 
 the rules which controlled the construction of remedial 
 
 (a) 1 Burrow, 274. 
 
 (b) Dane Ab. 600 ; 2 Dwarris, 715 ; 2 Y. & J. 196. 
 
 (c) 1 Stew. El. C. 28. 
 
 (d) 6 Dane Ab. 600 
 
 (e) MSS. Dec. March, 1844.
 
 CHAP. XVII.] OF PENAL STATUTES. 
 
 statutes in general should not be applied to the provi- 
 sions of this act, in carrying out the provisions which the 
 legislature had so explicitly declared. He said : " It was 
 true the word borrower alone is to be found in this sec- 
 tion ; and if the statute is to be construed literally by re- 
 straining the term 'borrower' to the particular individual 
 to whom the loan was actually made, the remedy which 
 the legislature intended to give to a complainant who 
 came into this court for relief against usurious security, 
 .will not benefit either the surety of the borrower, or his 
 grantee, or heirs, or devisees, or personal representa- 
 tives. It was impossible to believe that such could have 
 been the intention of the legislature. He had no doubt 
 the new principle declared by the legislature must be 
 extended to a complainant claiming under and in privity 
 with the original borrower. A remedial act w T as to be 
 construed liberally to carry into effect the intention of 
 the legislature, and may, be extended by construction to 
 other cases within the same mischief, though not within 
 the w T ords of the statute." Numerous cases are to be 
 found in which remedial statutes have been held to ex- 
 tend to other persons or other things than those expressly 
 mentioned in the statute, where the principle of the sta- 
 tute and the mischiefs intended to be remedied was 
 equally applicable to them.(a) The statute of 9th Rich. 
 2, ch. 3, which gave a writ to the reversioner, upon a 
 recovery against a tenant for life, tenant in dower, tenant 
 by the courtesy, or tenant in tail, after possibility of is- 
 sue extinct, was held to extend to a remainder-man, al- 
 though the reversioner alone was mentioned. (6) 
 
 (a) Reilway's Rep. 96 ; 1 Coke R. 256 ; 1 Plow. Rep. 36 ; Coke'a 2 Inst. 
 43, 152, 382. 
 
 (b) Winchester's case, 3 Coke R. 4.
 
 854 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 CHAPTER XVIII. 
 
 OF THE CONSTRUCTION OF PENAL STATUTES. 
 
 § 738. Penal statutes are to receive a strict interpre- 
 tation. Under the denomination of penal statutes, within 
 this rule, are included not merely such as inflict a pen- 
 alty, or which ex vi termini work a forfeiture, but it ex- 
 tends to statutes which give a summary remedy,(«) or 
 those made in favor of corporations, or individuals, in 
 derogation of common right,(6) or those made in dero- 
 gation of the common law,(c) or in derogation of rights 
 of property, or disability of persons, or that takes away 
 the estate of a citizen, (ri) or statutes which impose re- 
 strictions upon trade or common occupations, or which 
 levy an excise or tax on the citizen, (e) or a statute in- 
 troductive of a new principle of common law.(/) The 
 rule that penal statutes shall be construed strictly, is 
 subject to some qualifications ; they should not be con- 
 strued against the manifest intention of the legislature, 
 or so as to involve an absurd ity.(,§) 
 
 (a) Bennet v. Ward, 3 Caines' R. 259. 
 
 (b) Sprague v. Birdsall, 2 Cowen R. 419. 
 
 (c) Melody v. Read, 4 Mass. R. 471 ; Gibson v. Jenny, 15 id. 205; Com- 
 monwealth v. Knapp, 9 Pick. R. 496 ; Wilbur v. Crane, 13 id. 284 ; Lock v. 
 Miller, 3 Stew. & Port. 13. 
 
 (d) Sharp and others v. Spier, 4 Hill's R. 76 ; Smith v. Spooner, 3 Pick. 
 R. 229 ; Wales v. Stetson, 2 Mass. R. 146 ; 9 Gill & J. 479. 
 
 (e) Sewall v. Jones, 9 Pick. R. 412. 
 (/) Eayre v. Earle, 3 Halstead, 359. 
 
 (g) Commonwealth v. Loring, 8 Pick. R. 370; Read v. Davis, id. 514; 
 Melody v. Read, 4 Mass. R. 471 ; Broadwell v. Conger, 1 Penn. 210.
 
 CHAP. XVIII.] OF PENAL STATUTES. £55 
 
 § 739. The general words of a penal statute must be 
 restrained for the benefit of liiin against whom, the pen- 
 alty is inflicted. It is a maxim of the common law, that 
 receditur a placitis juris potius, (/nam injuria el delicto 
 maneant impunita, but this applies only to positive max- 
 ims, placita juris, rather than regular juris. {a) It is said, 
 if the rule be one of the higher sort of maxims, that are 
 regulce rationales, and not positive?, then the law will 
 rather endure a partial offence to escape without pun- 
 ishment than violate such a rule. Of this latter kind 
 (regulce rationales) is the rule that penal statutes shall 
 not be taken by equity. Thus a statute having enacted 
 that those who were convicted of stealing "horses," 
 should not have the benefit of clergy, was held held not 
 to extend to him that should steals but " one horse ;" and 
 to remedy this defect a new act was passed to provide 
 for such a case. (6) 
 
 § 740. By another restrictive rule of construing penal 
 statutes, if general words follow an enumeration of par- 
 ticular cases, such general words are held to apply only 
 to cases of the same kind as those which are expressly 
 mentioned. Thus, where by a statute persons who 
 should steal sheep, or any other cattle, were deprived of 
 the benefit of clergy ; — the stealing of any cattle, whether 
 commonable or not commonable, seems to be embraced 
 in these general words, " any other cattle," yet they were 
 looked upon as too loose to create a capital offence.(c) 
 
 § 741. Penal stautes are taken strictly and literally 
 only in the point of defining and setting down the fact 
 and the punishment, and not generally, " in words that 
 are but circumstances and conveyances in the putting of 
 the case." Thus under a statute that gave an action of 
 
 (a) Stephens Law of Elect, vol. i. p. 28 ; Bacon's Maxims, 51. 
 {b) Id. pp. 28, 29, 
 (c) Id. p. 29.
 
 856 OF THE CONSTRUCTION [CHAP. XV1H. 
 
 waste against him that holds pro termino vitm vel anno- 
 rum; if a man holds but for one year he is within the 
 statute. While if the law be, that for a certain offence a 
 man shall lose his right hand, and the offender hath had 
 his hand cut off in the wars, he shall not loose his left 
 hand, but the crime shall rather pass without the pun- 
 ishment which the law assigned, than the letter of the 
 law be extended. (a) 
 
 § 742. Reference to some of the cases in which the 
 general rules in reference to the construction of penal 
 statutes will now be referred to in illustration of the 
 general doctrine on this subject. In Sprague v. Bird- 
 sall,(b) Birdsall sued Sprague for money had and receiv- 
 ed, founded upon the fact, that the defendant had crossed 
 the Cayuga Lake on the ice, commencing to cross six 
 miles from the Cayuga Bridge, and having passed off the 
 lake within sixty rods of the bridge. The Cayuga 
 Bridge Comany was incorporated in 1797, and extended 
 by amendment to 75 years. The second section of the 
 act enacted, that it should not be lawful for any person 
 or persons to erect any bridge, or establish any ferries, 
 within three miles of the bridge erected by the company, 
 neither should it be lawful for any person or persons, 
 after it was erected, to cross the lake within three miles 
 without paying toll ; but persons might pass and repass 
 in their own boats without being subject to toll. The 
 questions in the case were : 1st, whether this was a cross- 
 ing within three miles within the act ; 2nd, if so, whe- 
 ther crossing on the ice subjected the defendant to toll. 
 Savage, Ch. J., held, that the act conferred upon the 
 company certain privileges, and restrained the right of 
 the citizen. It was in a measure penal, and ought to 
 
 (a) Bacon's Maxims, 58, 59; Stephen's Elec. Law, 29. 
 
 (b) 2 Cowen, 419.
 
 CHAP. XVIII.] OF PENAL STATUTES. 857 
 
 be construed strictly. In the construction of satutes 
 made in favor of corporations or particular persons^ and 
 in derogation of common right, care should be taken not 
 to extend them beyond their express words, or their 
 clear import. They could not take away a common 
 law right, unless their intention was manifest, and where 
 not remedial were not to be extended even by equitable 
 principles. It could not be supposed the legislature in- 
 tended such a crossing as this. By the proviso, every 
 person was at liberty to cross in his own boat. The object 
 of the legislature seemed to have been, that all persons 
 who were compelled to resort to the aid of others in 
 crossing, should cross the bridge, and pay toll accord- 
 ingly. They did not intend to compel those who had 
 the means of crossing independent of the bridge, to cross 
 on the bridge and pay toll. 
 
 § 743. In another case,(a) an action of debt was 
 brought for a penalty, under ch. 44, 1 R. L. 223, which 
 was an act to prevent liorse racing. The first section 
 declared all racing and running, pacing and trotting for 
 a bet, &c, common and public nuisances, and ofTences 
 against the state, and that all concerned should be pun- 
 ished by fine and imprisonment. The second section 
 enacted, that the owner of every horse used in horse 
 racing, with his privity or permission, whereon bets 
 were laid, should forfeit for every race the value of such 
 horse. The penalty was claimed on the ground that 
 the defendant, on the 23d November, 1822, owned a 
 mare, which was on that day employed in trotting, by 
 his privity and permission, with a horse of the plaintiff's, 
 on which stakes were laid and bets pending by defen- 
 dant. It was insisted that although the term trotting 
 was not used, as the statute was passed for the public 
 
 (a) Van Valkenlurgh v. Tarry, 7 Cowen, 252. 
 
 108
 
 858 OP THE CONSTRUCTION [CHAP. XVIII. 
 
 good, though penal, it should be construed equitably. 
 Trotting was within its mischief. Savage, Ch. J., held, 
 that the action could not be sustained for the penalty. 
 Penal statutes were to be construed strictly. Before the 
 passing of this act, the running or trotting of horses for 
 a wager was a lawful amusement, and so far from sub- 
 jecting those concerned to any punishment, courts en- 
 forced the payment of the wager. The legislature had 
 however declared those acts nuisances, and persons of- 
 fending might be indicted under the first section of the 
 act and punished in the manner provided by it. The 
 second section had added to former punishment for ra- 
 cing, a forfeiture of the value of the horse. That if it in- 
 tended to punish those who trotted horses with a super- 
 added penalty it was easy to have said so. The decisions 
 that penal statutes should receive an equitable construc- 
 tion, so that cases not named may be included in the 
 penalty, rested on the ground that the law-makers could 
 not set down every case in express terms, but that rule 
 did not apply when all offences are enumerated, and a 
 distinction is made in the punishment. When an addi- 
 tional penalty is imposed upon one only, the rule expres- 
 sio unius exclusio alterins applied. (a) 
 
 § 744. Coolidge v. Williams^b) was an action on the 
 case brought to recover treble value for fish taken within 
 the limits of Water town, under a statute 1797, sec. 75, 
 which gave the power to certain towns, of which Wa- 
 tertown was one, to regulate the time, place and man- 
 ner of taking fish within their limits, and to sell the right 
 of taking. Section three declared, that if any person 
 other than those to whom said right was sold should take 
 any fish, such person so offending should forfeit and pay 
 
 (a) Van Valkenburgh v. Torry, 7 Cowen, 252. 
 
 (b) 4 Mass. 140.
 
 CHAP. XVIII.] OF PENAL STATUTES. 859 
 
 to the use of any person who might sue, the treble value, 
 to be recovered in an action on the case. The defendant 
 caught fish in the Charles River, on the Cambridge side 
 of the river, opposite to Watertown, putting in his seine 
 on the Cambridge side, and then running out into the 
 river over the town line, in the bed of the stream, and 
 then drawing out the seine on the Cambridge side with 
 the fish in it, the deepest water being on the Watertown 
 shore, where the fish usually swam. Higher up the 
 stream, Watertown crosses the river, and its fishing is 
 on the same side as Charlestown. It appeared that the 
 seine could not be conveniently carried without it was 
 extended across the river, which the people of Cam- 
 bridge had usually done. Parsons, Ch. J. held, that in- 
 dependent of the statute, the defendant or any person 
 had the right to put his seine into the river from the 
 Cambridge shore, and might have landed his fish, if he 
 committed no trespass, on the land. That private sta- 
 tutes, made for the accommodation of particular citizens 
 or corporations, ought not to be construed to affect the 
 rights or privileges of others, unless such construction 
 resulted from express words, or from necessary implica- 
 tion. But every part of the statute might have a reason- 
 ble effect, without any such construction. The object of 
 it was to enable the towns named therein to regulate 
 their own rights, then subsisting, and to secure them- 
 selves the benefit arising from such regulation. The de- 
 fendant was fishing on the Cambridge shore, where it 
 seemed the people were accustomed to fish, and in the 
 accustomed manner extending his seine across the river 
 towards the Watertown shore, but not upon it, and taken 
 his fish to the Cambridge shore. This privilege of the 
 defendant, it was not the intention of the statute to in- 
 fringe. He might enjoy it, giving all the provisions of 
 the statute a reasonable construction.
 
 860 OP THE CONSTRUCTION [CHAP. XVIII. 
 
 § 745. Ill another case,(a) which was an action qui lam 
 against the defendant for a rescous, under the statute of 
 1 788, c. 65, in relation to rescous and pound breach, which 
 had created a forfeiture for a rescous. By the sixth sec- 
 tion of the act, a forfeiture of forty shillings was created 
 to be recovered in an action of debt qui lam ; a forfei- 
 ture of £5 was also created for a pound breach, and to 
 be recovered in the same manner; and it was provided, 
 in the case of a rescous, the party impressed might re- 
 cover his damages by action on the case ; and in case of 
 pound breach, he might recover double damages by the 
 same form of action. But it was provided, that in the 
 last action, as well as in an action to recover damages 
 for the rescous, the defendant should not be allowed to 
 give in evidence the illegality of distress, to prevent the 
 plaintiff from recovering full damages. The question 
 raised in the case was, whether this latter provision 
 should receive an equitable construction, so as to pre- 
 vent the illegality of distress from being a bar to the ac- 
 tion qui lam, to recover the forfeiture incurred by the 
 rescous ; it was held that it could not be thus extended. 
 Penal statutes must be construed strictly according to 
 the intention of the legislature, as discovered by the im- 
 port of the words, and when not remedial, were not to 
 be extended by equitable principles. Statutes were not 
 to be construed as taking away a common law right, un- 
 less the intention was manifest. Without this provision 
 of the statute, the defendant might plead in bar to the 
 qui lam action, that the distress was unlawful, and this 
 defence neither the express words nor any reasonable 
 construction of them had taken away. This provision, 
 when applied to an action of pound breach, was in af- 
 firmance of the common law ; and probably in a popu- 
 
 (a) Melody v. Read, 4 Mass. R. 471.
 
 CHAP. XVIII.] OP PENAL STATUTES. 801 
 
 lar action to recover the forfeiture created by this sta- 
 tute for a pound breach, the same rule would apply at 
 law without the aid of the statute. But by the express 
 words of the statute, this defence is prohibited only in 
 the action on the case to recover damages, cither for a 
 rescous or a pound breach. It did not extend to the qui 
 tarn action for forfeiture. 
 
 § 746. We have already seen that the reason why pe- 
 nal statutes should not be extended by construction 
 seems to be, that the law does not allow of constructive 
 offences or of arbitrary punishment : no man incurred a 
 penalty unless the act which subjects him to it be both 
 within the letter and spirit of the statute imposing the 
 penalty. It has been said, with great propriety, that 
 if this fundamental rule was to be violated, the fate of 
 innocent persons would be decided by the arbitrary dis- 
 cretion of judges, and not by express authority of law.(a) 
 The rule seems to be well settled that a penalty must 
 always be created by express words, and that it cannot 
 ever be raised by implication. (b) 
 
 § 747. In the case of The Enterprise ,(c) it was said : 
 " But while penal statutes are to receive a strict con- 
 struction, nothing more is meant than that they shall not, 
 by what may be thought their spirit or equity, be ex- 
 tended to offences other than those which are specially 
 and clearly described and provided for. A court is not 
 precluded from inquiring into the intention of the legis- 
 lature. However clearly a law may be expressed, this 
 must ever, more or less, be a matter of inquiry. A 
 court is not, however, to arrive at this intention by mere 
 conjecture, but is to collect it from the object which the 
 legislature had in view, and the expressions used, which 
 
 (a) 1 Stev. El. L. 29. (c) 1 Paine's R. 32. 
 
 (b) Jones v. Estes, 2 J. R. 379.
 
 862 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 should be competent and proper to apprise the commu- 
 nity at large of the rule which it is intended to prescribe 
 for their government. For although ignorance of the 
 law be no excuse for its violation, yet if this ignorance 
 be the consequence of an ambiguous or obscure phrase- 
 ology, some indulgence is due to it. It should be a prin- 
 ciple of every criminal code, and certainly belongs to 
 ours, that no person be judged guilty of an offence, un- 
 less it be created and promulgated in terms which leave 
 no reasonable doubt of their meaning. If it be the duty 
 of the jury to acquit where such doubt exists concern- 
 ing facts, it is equally incumbent in a judge not to apply 
 the law to a case where he labors under the same uncer- 
 tainty as to the meaning of the legislature. If this be 
 involved in a considerable difficulty from the use of lan- 
 guage not perfectly intelligible, much circumspection be- 
 comes neeessary, especially if the consequences are so 
 penal as scarcely to admit of aggravation. When the 
 sense of a penal statute is obvious, consequences are not 
 to be disregarded ; but if doubtful, they are to have their 
 weight in interpretation. It will at once be concluded 
 that no man should be stripped of a very valuable pro- 
 perty — perhaps of his all — be disfranchised and con- 
 signed to public ignominy and reproach, unless it be very 
 clear that such high penalties have been annexed by the 
 law to the act which he has committed. If these prin- 
 ciples be correct, a court has no option where considera- 
 ble ambiguity arises in a penal statute, but is bound to 
 decide in favor of the party accused. It is more consist- 
 ent with the principles of liberty that a court should ac- 
 quit when the legislature intended to punish, than that 
 it should punish when it was intended to punish with 
 impunity." 
 
 § 748. These general principles were applied in the 
 case of The Enterprise, which was a libel for an offence, 
 which if it consisted in any thing, it was in lading cer-
 
 CHAP. XVIII.] OF PENAL STATUTES. 863 
 
 tain merchandise, of the value of more than $400, on 
 board of the schooner Enterprise in the night, without 
 any license or permit from the collector and naval offi- 
 cer, and without the inspection of any officer of the rev- 
 enue. The law under which it was claimed this was a 
 forfeiture, was the supplementary embargo act passed 
 25th April, 1808, and the main reliance was placed upon 
 the second section, which declared substantially, " that 
 during the continuance, of the act laying an embargo, no 
 ship or vessel of the character of the Enterprise should 
 receive a clearance, unless the lading shall be under the 
 inspection of the proper revenue officers, subject to the 
 same restrictions, regulations, penalties and forfeitures, 
 as are provided by law for the inspection of merchandise 
 imported into the United States, upon which duties are 
 imposed, any law to the contrary notwithstanding." It 
 was contended that this section implicated this vessel 
 and its cargo in the same penalties which were imposed 
 by the fiftieth section of the collection law, on the land- 
 ing of goods imported contrary to its direction, which 
 provided : " That no goods brought from a foreign port 
 shall be unladen but in open day, between the rising and 
 setting of the sun, except by special license from the col- 
 lector and naval officer of the port, nor at any time with- 
 out their permit." The penalty for an infraction of either 
 of these directions was a forfeiture by the master and 
 every other person knowingly concerned or acting there- 
 in, of the sum of $400, and disability of holding an office 
 of trust or profit under the United States for a term of 
 years not exceeding seven, the goods to be forfeited, and 
 the vessel also if the goods at the place landed were of the 
 value of $400. After adverting to the general principles 
 above laid down, Livingston, Ch. J., says, " that almost 
 every possible evasion of the law relating to the embargo 
 had been previously guarded against by adequate sanc- 
 tions, except that of loading clandestinely or by night
 
 8G4 OF THE CONSTRUCTION [CHAP. XVlli, 
 
 and then going to sea without a clearance or giving 
 bonds, this was the evil to which it was intended to ap- 
 ply a remedy. This may have been in the contempla- 
 tion of congress, but the court were not bound to con- 
 clude that they had done what was intended, unless lit 
 words were used for that purpose. No words of prohi- 
 bition were to be found in the section. There was no 
 interdiction to load at any time, nor without the inter- 
 vention of the revenue officers. Penal laws generally 
 first prescribe what shall or shall not be done, and then 
 declare the forfeiture. This course is pursued in all the 
 other offences created by the statute, and very generally 
 by all the other penal laws of the United States. The 
 court would not say that an offence can be created in 
 no other way, but when there was such a departure 
 from an almost universal rule, and from other parts of 
 the same law, it suggests strong doubts whether the le- 
 gislature intended to prevent in any other way than by 
 withholding a clearance. The court was not without its 
 doubts, whether it was meant to punish the mere act of 
 loading secretly in any other way. This doubt, which 
 was produced by the unusual and not very luminous 
 phraseology of this section, was increased by a conside- 
 ration of the very heavy and disproportionate punishment 
 which would follow. The wulrl court not, without great 
 hazard of mistake, select from a law of great length, con- 
 taining no less than one hundred sections, and a very 
 great length and variety of provisions and penalties, any 
 particular part, where the reference to the penalty was 
 so certain as to apply it to this case, and as it was 
 doubtful whether any offence was created by the act of 
 25th April, 1808, and still more so what were the pen- 
 alties for its violation ; the court could not persuade 
 itself that the prosecution could be sustained." 
 
 § 749. Although, as a general rule, it is well settled 
 that penal statutes are to be construed strictly, and are
 
 CHAP. XVIII.] OF PENAL STATUTES. 807 
 
 not to be extended by an equitable construction, yet u 
 will be found equally well settled that they are not to 
 be construed so strictly as to defeat the obvious intent 
 of the legislature, nor are the words to be so narrowed 
 down as to exclude from their operation cases which 
 those words, in their ordinary acceptation, or in the 
 sense in which the legislature obviously used them, would 
 comprehend. This distinction has been recognized in 
 several American cases. Chief Justice Marshall in one 
 case,(ft) admitted and recognized the rule, although un- 
 der the circumstances of that particular case he did not 
 admit its application. He remarked : " It has been said, 
 that although penal laws are to be construed strictly, the 
 intention of the legislature must govern ; that if a case 
 be within the intention it must be considered as within 
 the letter, so if it be within the reason of the statute. 
 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 
 punishment is vested in the legislature, not in the judi- 
 cial department. It is the legislature and not the court 
 which is to define the crimes and ordain the punishment. 
 It was true that the intention of the legislature must go- 
 vern the construction of penal, as well as other statutes ; 
 but this w T as not a new and independent rule which sub- 
 verted the old, it was a modification of the ancient max- 
 im, and amounts to this ; that although penal laws were 
 to be construed strictly, they were not to be construed 
 so strictly as to defeat the obvious intent of the legisla- 
 ture." He then states the rule and its qualifications as 
 above stated by us, and then adds : " The intention of 
 the legislature is to be collected from the words they 
 
 (a) The United States v. Wilterberger, 5 Wheat. 76. 
 
 109
 
 866 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 use. Where there is no ambiguity in the words, there 
 is no room for construction. The case must be a strong 
 one indeed, which would justify a court in departing 
 from the plain meaning of the words, especially in penal 
 acts, in search of an intention which the words them- 
 selves did not suggest. To determine that a case is 
 within the intention of a statute, its language must au- 
 thorize the court to say so. It would be dangerous in- 
 deed to carry the principle that a case that is within the 
 reason or mischiefs of a statute is within its provisions, 
 so far as to punish a crime not enumerated in the sta- 
 tute, because it was of equal atrocity, or of a kindred 
 character with those which were enumerated. If this 
 principle had ever been recognized in expounding crimi- 
 nal law, it had been in cases of considerable irritation, 
 w hich t would be unsafe to consider as precedents form- 
 ing a general rule for other cases." 
 
 § 750. The principles of the rule laid down by Ch. J. 
 Marshall have been admitted and applied in several sub- 
 sequent cases. In The American Fur Co. v. The United 
 States^a) which arose under the act of congress of 30th 
 March, 1802. The act, after defining in general terms 
 the boundary lines between the Indian tribes and the 
 United States, prohibited citizens of, or residents within 
 the United States, crossing over the lines to hunt, &c, 
 made it lawful for the military force to apprehend such 
 persons. The twenty-first section, as amended by the 
 act of 6th May, 1822, authorized the president to take 
 such measures, from time to time, as he deemed expedi- 
 ent, to restrain vending or distributing spirituous liquors 
 among such tribes. The second section of the act of 
 1822 authorized the president to direct Indian agents, 
 governors of territories, &c, acting as superintendent of 
 
 (a) 2 Peters R. 358.
 
 CHAP. XVIII.] OF PENAL STATUTES. 867 
 
 Indian affairs, to cause the stores and packages of goods 
 of all traders to be searched upon suspicion or informa- 
 tion that ardent spirits were carried into the Indian 
 country by traders, in violation of the twenty-first section 
 of the act, and declared that if any ardent spirits should 
 be so found, all the goods of the particular trader should 
 be forfeited. The libel charged that the defendant, as 
 such licensed trader, did take and carry into the Indian 
 country, with other goods, seven kegs of whiskey, &c, 
 for the purpose of vending, &c, and upon search the 
 same were found, and claimed that all Ids goods seized 
 were forfeited. It was contended, that in order to work 
 a forfeiture of the other goods, the ardent spirits must be 
 mingled with the other goods at the time of the seizure, 
 and that no part of the goods but that with which the 
 spirits were found were liable to seizure. The district 
 court had in effect ruled, that if the ardent spirits were 
 found with a part only of the goods carried into the In- 
 dian country for the illegal purpose stated in the infor- 
 mation, all the goods of such trader, designed for sale 
 under a license, and seized in the Indian country, were 
 liable to a forfeiture. The supreme court of the United 
 States sustained this decision, and held, that this con- 
 struction of the acts of congress was well warranted by 
 the words of those acts, as well as the obvious policy 
 which dictated them. The expression " all the goods 
 of such traders," in the second section of the last act, 
 although general enough, if it stood alone and unex- 
 plained by the context, to embrace all the goods belong- 
 ing to the trader, wherever they might be found, were 
 clearly restrained by the provision which immediately 
 preceded them, so as to mean those goods only which 
 might be found in company though not in contact with 
 the interdicted articles. That the notion that those 
 goods alone were liable to seizure amongst which the 
 ardent spirits were found, could receive no countenance
 
 868 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 from any fair construction of this section ; that construc- 
 tion which was contended for would enable the trader, 
 by the most simple contrivance, to protect the whole of 
 his other goods from forfeiture. To effect this he would 
 only have to keep the spirits separated from his other 
 goods during their transportation to, and after arriving 
 in the Indian country, so as not to contaminate those 
 goods by placing them in immediate contact with the 
 offending article. As this construction would sanction 
 so glaring an evasion of the whole policy of the law, it 
 ought in no case to be adopted, unless the natural mean- 
 ing of the words of the act required it. Even penal 
 laws, which should be strictly construed, ought not to 
 be construed so strictly as to defeat the obvious inten- 
 tion of the legislature. 
 
 § 751. The same principle was also applied in the 
 case of The United States v. Morris. {a) In this case 
 the defendant was indicted under the second and third 
 section of the act of Congress of 10th May, 1800, enti- 
 tled " An act to prohibit the carrying on the slave trade 
 from the United States to any foreign place or country." 
 The second section of this act declared " That it shall 
 be unlawful for any citizen of the United States, or other 
 person residing therein, to serve on board of any vessel 
 of the United States employed or made use of in the 
 transportation or carrying of slaves from one foreign 
 place or country to another ; and any such citizen or 
 other person voluntarily serving as aforesaid, shall be 
 liable to be indicted," &c. The question involved in the 
 cause was, whether a vessel, on her outward passage to 
 the coast of Africa, for the purpose of taking in a cargo 
 of slaves, was " employed or made use of" in the trans- 
 portation or carrying of slaves from one foreign country 
 
 (a) 14 Peters' R. 464 ; see also 2 Mass. R. 144 ; Paine. 209.
 
 CHAP. XVIII.] OF PENAL STATUTES. 869 
 
 or place to another before any slaves were received on 
 board. Taney, Ch. J. who delivered the opinion of the 
 court, held, that in expounding a penal statute, the court 
 certainly would not extend it beyond the plain meaning 
 of its words — that such statutes must be construed 
 strictly ; yet the evident intention of the legislature ought 
 not to be defeated by an over strict construction. That 
 to be "employed" in any thing, meant not only the act 
 of doing it, but also to be engaged to do it — to be under 
 contract or orders to do it. And this not only was the 
 ordinary meaning of the word, but it had been frequently 
 used in that sense in other acts of Congress. Thus the 
 second section of the act of March 3, 1825, entitled " An 
 act to reduce into one the several acts establishing and 
 regulating the post-office department," declares " That 
 the postmaster-general, and all other persons ' employed' 
 in the general post-office, or in the care, custody or con- 
 veyances of the mail, shall, previous to entering upon 
 their duties assigned to them, take the oath prescribed 
 to them." Here, the persons who had contracted to per- 
 form certain duties in the general post-office, were de- 
 scribed as " employed" in that department before they 
 enter upon the duties assigned them. So, also, in 
 the twenty-first section of the same act, various offen- 
 ces, such as the embezzling or destroying any letter, are 
 enumerated, and the punishment prescribed, when com- 
 mitted by any person " employed in any of the depart- 
 ments of the post-office establishment." Yet it could 
 not be supposed the party must be actually engaged in 
 transacting his official duties when the thing was embez- 
 zled or destroyed, in order to constitute the offence de- 
 scribed in this section. So the act of July 2, 1813, (a) 
 spoke of vessels " employed" in the fisheries before she 
 
 («) 2 Story, 1353.
 
 870 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 sailed on the voyage. So in the act of 3d March, 
 1831, (a) concerning vessels "employed" in the whale 
 fishery, "authorized vessels employed wholly in the whale 
 fishery to be registered in a particular manner, so long as 
 such vessel shall be so emplo\ ed." The registry, license 
 and enrolment must be obtained before the vessel sailed 
 on her outward voyage. Thus she was regarded as 
 employed before she sails. In like manner this slave 
 vessel was " employed" in the transportation of slaves 
 within the meaning of the act, if she was sailing on her 
 outward voyage to the African coast, in Order to take 
 them on board, to be transported to any foreign country. 
 That it was not necessary, in order to constitute the of- 
 fence denounced in the second section, that there should 
 be an actual transportation or carrying of slaves in the 
 vessel of the United States, on board of which the party 
 indicted was alleged to serve, nor that there should be 
 an actual transportation. That the voluntary service of 
 an American citizen on board of a vessel of the United 
 States, in a voyage commenced with the intent that the 
 vessel should be employed and made use of in transport- 
 ing or carrying of slaves from one foreign country or 
 place to another, was in itself, and where no slaves had 
 been transported in such vessel or received on board, an 
 offence under the second section of this act. 
 
 § 752. In another case,(6) the defendant was indicted 
 under the statute of 1814, ch. 175, which provided, that 
 if any person, not being authorized by the board of 
 health or the selectmen of any town, should knowingly 
 dig up, remove, or carry away, or aid or assist in digging 
 up, &c, any human body or remains thereof, such per- 
 son should be imprisoned, &c. It was contended that 
 
 (a) 4 Story, 2256. 
 t (b) The Commomvealth v. Loring, 8 Pick. 370.
 
 CHA*P. XVin.] OP PENAL STATUTES. 871 
 
 the indictment did not pursue the statute. The statute 
 did not provide that the license of the selectmen of the 
 town where the body was buried should be obtained ; — 
 the words were, " any town in the commonwealth.'' 
 Whatever might have been the intent of the legislature, 
 there was nothing in the statute itself restraining it to 
 narrower limits ; and it was no answer to this objection 
 to say that if this construction should be adopted, the 
 statute would not affect its purpose. For it was not for 
 the court to say what the legislature intended, except so 
 far as they could determine it from the words of the act. 
 The words of the statute were so express and unambi- 
 guous, there was no room for construction ; and if there 
 was any thing ambiguous, this being a penal statute, it 
 must be taken according to its strict letter. Parsons, J. 
 in answer to this position, admitted that the question 
 arose from an unfortunate obscurity in the terms of the 
 statute on which the indictment was founded. Taken 
 chiefly without reference to the subject-matter, and the 
 manifest intention and the object of the legislature, it 
 w T ould appear, that in order to sustain the 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 con- 
 sequence would be, as oral testimony alone could be ad- 
 mitted on criminal trials of facts provable by witnesses, 
 that the officers of every town, to the number of three 
 and four hundred, must be summoned, and give their 
 personal attendance in the court where the prosecution 
 was pending. The legislature never intended such an 
 absurdity. But it was said, penal statutes admit of no 
 latitude of construction ; they were to be taken strictly, 
 word for word, let the consequences be what they 
 might. He held, it was true it was so laid down as a 
 general rule, and the reason was, that the court should 
 not be allowed to make that an offence which was not so
 
 <^72 OF THE CONSTRUCTION [CHAP. XVII3, 
 
 made by legislative enactment. But this rule did not 
 exclude the application of common 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 were cases which showed this, although 
 precedents were not required to sustain so reasonable a 
 doctrine.(a) All these authorities went to show, that 
 even penal statutes, though to be construed strictly as a 
 general rule, were to receive such a construction as 
 would conform to the intention of the legislature. 
 
 § 753. The same principle was applied in this state. (6) 
 In the case cited, the defendant was indicted under sec- 
 tion 59, 2 R. S. 2 ed. 565, which provided, if any clerk 
 or servant of any private person, should embezzle or 
 convert to his own use, or take, make way with, or se- 
 crete, with intent to embezzle, or convert to his own use 
 without the assent of his master, &c, any goods, &c, be- 
 longing to any other' person, which shall come to his pos- 
 session, or under his care by virtue of such employment, 
 shall be punished, &c. It was contended, that the 
 words " belonging to any other person" meant other per- 
 son than the master of the servant, and that the defend- 
 ant could not be punished for embezzling " the property 
 of his master." That this offence was not within the terms 
 of the statute. Savage, Ch. J. held, that these words 
 meant belonging to any person other than the servant 
 who had been guilty of the embezzlement ; any other 
 construction would impute to the legislature an absurdity. 
 After adverting to the defects which existed in the com- 
 mon law, and the several statutes which have been 
 passed to remedy those defects — the fact that these sta- 
 tutes, both in this country and England, had been passed 
 
 (a) Bac. Ab. Stat. I. 9 ; HeyderCs case, 3 Co. 7 ; Rex v. Gage, 8 Mod. 
 65 ; Plow. 86 ; Soldier case, Cro. Car. 71. 
 
 (J>\ The People v. Hennesey, 15 Wendell's Reports, 147.
 
 CHAP. XVIII.] OF PENAL STATUTES. 873 
 
 in reference to the two offences of embezzling the pro- 
 perty of others and also that of their masters — he said: 
 " The revised statutes were no doubt intended to em- 
 brace, and did embrace the pith of our former statutes, 
 and also the statute of 39 Char. 3, c. 85." He then 
 asks : " Can it be believed, that when the whole course 
 of legislation on this subject has been aimed at the pro- 
 tection of the master or employer against the frauds of 
 those necessarily entrusted with their property, the legis- 
 lature, when revising and embodying previous statutes 
 into a more simple form of enactment, should lose sight 
 of the great object in view, and protect every person ex- 
 cept those most liable to be defrauded 1 The sixtieth 
 section shows that it was the intention of the legislature 
 to go farther in favor of the master or employer, than 
 of other persons, by making it an offence to embezzle 
 any instrument executed by such master, but not yet is- 
 sued ; a note, for instance, drawn and signed for the pur- 
 pose of being discounted or delivered in the course of 
 business, but not actually put in circulation. It is very 
 clear, therefore, that the offence consists in embezzling 
 the money, goods, rights in action, or other valuable se- 
 curity or effects whatever, belonging to any person other 
 than the person guilty of the embezzlement, which shall 
 have come to his possession or under his care, by virtue 
 of his employment as clerk or servant of a private per- 
 son, or as officer, agent, clerk or servant of any incorpo- 
 rated company." 
 
 § 753. In The United States v. Schooner Industry ■,(«) 
 the rule laid down was, that courts are bound to con- 
 strue penal statutes strictly, and not to extend them be- 
 yond the obvious meaning by strained inferences. On 
 the other hand, they are bound to interpret them accord- 
 
 (a) 1 Gallis. 117. 
 
 110
 
 874 OF THE CONSTRUCTION [ciIAP. XVIII. 
 
 ing to the manifest import of the words, and to hold all 
 cases which are within the wdrds and the mischief, to be 
 within the remedial influence of the statute. In another 
 case it was held, that although penal statutes are not to 
 be extended by construction, yet they are to have a ra- 
 tional interpretation. (a) 
 
 § 754. In Tlie United States v. Winn,{b) the court re- 
 cognized the rule of strict construction of penal statutes 
 in a true and sober sense ; that is, they were not to be 
 enlarged by implication, or extended to cases not clearly 
 within their words and purport. But where the words 
 were general, and included various classes of persons, 
 the authorities did not require the court to restrict them 
 to one class, or in giving them the narrowest interpreta- 
 tion. Where the mischief to be redressed by the statute 
 was equally applicable to all of them, and where a word is 
 used in a statute which has various known significations, 
 the court were not required to adopt one in preference to 
 another, simply because it is more strained, if the objects 
 of the statute equally applied to the largest and broadest 
 sense. The proper course in all such cases was, 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 which would promote, in the 
 fullest manner, the apparent policy and objects of the 
 legislature. 
 
 § 755. The case last cited is one illustrative of the 
 application of this rule. The defendant was indicted 
 as master of the ship Eliza, for having for malice, hatred 
 and revenge, and without justifiable cause, on the high 
 seas, beaten and imprisoned one John B. Bassett, one of 
 the crew of same ship ; Bassett was at the time chief 
 
 (a) Beds v. Boyne, 5 Harris & Johns^ 27. 
 
 (b) 3 Sumner, 211.
 
 CHAP. XVIII. J OF PENAL STATUTES. 875 
 
 officer of the ship. The indictment was found under the 
 third section of the act of 1835, ch. 40, which provided : 
 " That if any master or other officer of any American 
 ship or vessel, on the high seas, or any other waters 
 within the admiralty and marine jurisdiction of the 
 United States, shall from malice, hatred, or revenge, and 
 without justifiable cause, beat, wound, or imprison, any 
 one or more of the crew of the ship or vessel, or withhold 
 from them suitable food or nourishment, or inflict upon 
 them any cruel or unusual punishment, every such per- 
 son so offending, on conviction, shall be punished by fine 
 or imprisonment." The question presented in this case 
 was, whether the offence when committed by the master 
 upon the chief or other officer of the ship was an offence 
 within the intent and purview of the statute; or in other 
 words, whether the word " crew," in this section, was 
 used in contradistinction to officers of the ship, so as only 
 to include the common seamen or mariners, or whether 
 the t word "crew," in the sense of the statute, embraced 
 all the officers except the master. It was held that it 
 did: 1st. Because the word "crew" had several known 
 significations. In its general and popular sense it was 
 equivalent to company. Such was the definition which 
 lexicographers had attached to it. The general sense 
 of the word " crew" being equivalent to ship's company, 
 it could scarcely be doubted, that it embraced all the 
 officers as well as the common seamen ; that sense ought 
 not to be displaced unless it was manifest that the legis- 
 lature had used the word in a more restricted sense, and 
 this must be ascertained from the context, or from the 
 object to be accomplished by the enactment. In exam- 
 ination of the laws upon marine subjects, the word 
 " crew" was found to be used sometimes in this general 
 sense, and sometimes in senses more limited and re- 
 strained. It was sometime used to comprehend all per- 
 sons composing the ship's company, including the mas-
 
 876 OF THE CONSTRUCTION [CHAP. XVIII. 
 
 ter ; sometimes to comprehend the officers and common 
 seamen, excluding the master ; and sometimes to com- 
 prehend the common seamen only. 2d. Because there 
 were various acts of congress in which the words " crew," 
 and " ship's company," were used as equivalent to each 
 other. The results of the examination of the leading 
 provisions of statutes upon similar subjects showed that 
 the w r ord " crew" was ordinarily used as equivalent to 
 " ship's company," and that whenever it was not in- 
 tended to embrace the officers the context manifestly ex- 
 cluded them by enumerating them as contradistinguished 
 from the rest of the crew. 3d. Because that every offi- 
 cer of the ship, except the master or commanding officer, 
 ought to be deemed within the purview of the act as one 
 of the crew. For the reason that he might commit the 
 offence of usurping the command of the vessel as well 
 as a common seaman, and the mischief was the same as 
 in the case of a common seaman, and he was one of the 
 crew and ship's company in the sense of the general 
 maritime law. There was no reason why the section 
 should not be construed to embrace all cases within the 
 words, and within the mischiefs, or why resort should 
 be had to the narrowest possible sense, instead of the 
 general sense, if there was the same mischief in each 
 case to be suppressed, and the same public policy in the 
 protection of the commercial interest of the country. 
 In another case,(a) one of the questions which arose 
 was, whether an offence which was committed on board 
 of a vessel on a voyage, although at the time of the act, 
 lying at anchor, was within the provisions of the 2 R. S. 
 729, sec. 44, providing that, when an offence shall have 
 been committed within this state on board of any vessel 
 navigating any river, and an indictment may be found 
 
 (a) The People v. Hulse, 3 Hill, 318.
 
 CHAP. XVIII.] OF PENAL STATUTES. 877 
 
 within certain counties therein named, &c. Bronson, •)., 
 held that it was; 1st. Because a different construction 
 would amount to a virtual repeal of the statute, especially 
 when applied to canal boats, if the vessel must necessarily 
 be in motion. That it frequently happened that vessels 
 on the river had to come to anchor for the purpose of 
 supplies, or in consequence of calms and adverse winds, 
 or may rest upon shoals and be obliged to wait for tide. 
 It could not be supposed the legislature intended to make 
 so idle a statute as this would prove if it did not extend 
 to the whole voyage. 2d. Because the legislature had 
 spoken of a particular kind of business or employment, 
 and the language must be understood as men engaged in 
 that business would understand it. No seaman or water- 
 man would doubt that this vessel was " navigating" the 
 river, although it happened to be temporarily at rest, in 
 consequence of adverse winds when the crime was com- 
 mitted. 3d. Another statute, which provides that " when- 
 ever any vessel navigating the river," shall be at anchor 
 in the night time,(a) showed that the legislature thought 
 a vessel might properly be said to be navigating the 
 river although at the particular time at anchor. Another 
 question arising in this cause was, whether the statute 
 was applicable to any case except where the voyage 
 commenced and ended within the river. It was held 
 that it did, for there was no reason why it should be 
 thus restricted. There was nothing in the letter or 
 spirit which led to so narrow a conclusion. A ship trad- 
 ing between New York and Liverpool came as plainly 
 within the language of the statute as to that part of the 
 voyage which was performed within the fauces terra 
 as did a sloop trading between Albany and New York ; 
 the same reasons applied to both. 4th. Because this 
 
 {a) 2 R. S. 685, sec. 12.
 
 878 OF THE CONSTRUCTION, &C. [CHAP. XVIII. 
 
 statute was not, properly speaking, a penal one ; it nei- 
 ther created an offence, prescribed punishment, or altered 
 the mode of trial, it merely changed the venue. The 
 latter consideration probably had great influence on the 
 mind of Mr. Justice Bronson, who in all cases has ever 
 been found in favor of a strict construction of penal laws 
 and constitutional provisions, and hostile to any thing 
 bordering upon judicial legislation. 
 
 § 756. The numerous cases we have cited sufficiently 
 define the rules which govern in the construction of pe- 
 nal statutes, and the qualifications and limitations to the 
 rule, that in general they are to be construed strictly. 
 From the frequency of questions arising out of this gene- 
 ral doctrine, we have deemed it important to annote 
 very fully the leading cases in this country, where this 
 rule has come under consideration, and so far to present 
 the circumstances under which they arose, as to give the 
 reader a clear understanding of instances in which it has 
 been applied, and the qualifications under which such 
 application has been made, and thus obviate a necessity 
 of a resort to the reported cases on this subject.
 
 CHAP. XIX.] or THE REPEAL, &C. 879 
 
 CHAPTER XIX. 
 
 OF THE REPEAL OF STATUTES. 
 
 § 757. If laws and statutes seem contrary to one ano- 
 ther, it is by some supposed that the latter one will abro- 
 gate or repeal the former. This rule, however, has its 
 qualifications. In such cases, if by interpretation they 
 may stand together, they shall so stand; and if two laws 
 only so far disagree or differ as that they may, by any 
 other construction, both stand, they will both be upheld ; 
 for whenever this can be done, the rule that subsequent 
 laws abrogate prior ones does not apply, and the last law 
 will not operate as a repeal of the former.(a) When it 
 is not manifestly the intention of the legislature that a 
 subsequent act shall control the provision of a former 
 act, the subsequent shall not be construed as having such 
 an operation, even though the words, taken strictly and 
 grammatically, would repeal the former act.(6) 
 
 § 758. It may be laid down as a general rule, that it 
 is deemed against the policy of the law to favor repeals 
 by implication ; and positive enactments are not to be 
 construed as interfering with pre-existing contracts, rights 
 of action, or suits of a civil nature not penal in their 
 consequences, unless the intent thus to interfere has been 
 expressed in the enactment. It is upon this principle that 
 our courts have held, that the only effect the revision of 
 
 (a) Canal Co. v. Railroad Co. 4 Gill & John. 6. 
 (/>) Ibid. 6.
 
 880 OF THE REPEAL [CHAP. XIX. 
 
 our statutes had upon offences previously committed 
 was, that the proceedings in the subsequent prosecution 
 of such offences must be conducted according to the pro- 
 visions contained in the Revised Statutes. (a) Where 
 those statutes instituted one action for another — such, for 
 instance, as ejectment for the writ of dower — the revision 
 only affects the form and mode of proceeding in such 
 suits ; and even in this respect the latter does not affect 
 the mode of conducting suits which were commenced 
 previous to the time they went into operation ; and we 
 have seen, in a previous chapter, that whenever a person 
 has a right to sue at common law, and a remedy is like- 
 wise given by an affirmative act, without a negative ex- 
 pressed or implied of the action at common law, it does 
 not take away the common law remedy, and the party 
 may, at his election, avail himself of either. (6) 
 
 § 759. We have seen, that where a right is granted by 
 a statute, and a subsequent statute gives a forfeiture or 
 penalty for the violation of that right, such forfeiture or 
 penalty is cumulative to the remedy provided at common 
 law, in cases of the violation of the statute right, when 
 the statute itself is silent.(c) But inchoate rights gene- 
 rally derived under a statute, are lost by its repeal, un- 
 less saved by express words in the repealing statute. It 
 is otherwise, however, in regard to such civil rights as 
 have become perfected far enough to stand independent 
 of the statute ; or, in other words, such as have ceased 
 to be executory, and have become executed. (c/) As a 
 general rule, it is undoubtedly true, an act of the legisla- 
 ture annulling contracts, or creating new exceptions and 
 defences, should be so construed as not to affect COn- 
 
 fa) The People v. Phelps, 5 Wend. R. 10. 
 
 (b) 10 John. R. ; see also 5 John. R. 175. 
 
 (c) 9 Ibid. 507. 
 
 (d) Butler v. Palmer, 1 Hill R. 324.
 
 CHAP. XIX. j 9P STATUTES. v> l 
 
 tracts or rights of action vested and existing at the time 
 of its enactment. (a) Statutes modifying a remedy of a 
 party should be so construed as not to affect actions com- 
 menced before such acts were passed. But the two last 
 rules obtain only in cases of positive enactments, and 
 they will be found not to arise under repealing clauses, 
 and are founded upon the well settled rule that statutes 
 are not to have a retrospective operation, or ex post facto 
 effect, unless declared to be so by express words or po- 
 sitive enactments, and even then subject to the qualifi- 
 cation stated by us in sec. 533. 
 
 § 760. The rule that vested civil rights, acquired un- 
 der a law, are not affected by a repeal, is founded in 
 good sense and reason, is consonant to the fundamental 
 principles of natural justice, and has been derived from 
 the civil law. We have stated in sec. 161 the clear and 
 succinct view of this subject laid down in Taylor's Civil 
 Law, to which our readers will do well to refer to in this 
 connection. 
 
 § 761. Puffendorf says the law itself may be disan- 
 nulled by the author, but the rights acquired by virtue 
 of that law while in force must still remain. He how- 
 ever adds : — " Suppose it were a law, that as a man dis- 
 posed of his possessions by will, so the right to them 
 should stand ; yet it would be unreasonable to take away 
 from one person what fell to him by will while the for- 
 mer law was in use and vigor." Mr. Justice Cowen, in 
 speaking of the effect of a repeal upon inchoate rights, 
 says, I understand the rule of the writers on the civil law 
 perfectly to agree with that acted on by our own courts 
 in all their decisions ancient and modern. Those writers 
 
 (a) See Gilmore v. Shooler, 2 Mod. 310 ; Dash v. Van Kleek, 7 John. R. 
 477 ; Couch v. Jeffries, 4 Burrow, 2460—2 ; Churchill v. Crease, 2 M. & P. 
 415; S. C. 5 Bing. 177 ; Teninglon v. Hargreave, 3 M. & P. 137, 143 ; S, 
 C. 5 Bing. 489. 
 
 Ill
 
 882 OH' THE REPEAL [cHAP. XIX. 
 
 speak of rights which have arisen under the statute not 
 being aflected by the repeal, but the context shows at 
 once what kind of rights they mean. The amount of 
 the whole comes to this, that a repealing clause is such 
 an express enactment as necessarily divests all inchoate 
 rights, which had arisen under the statute which it de- 
 stroys. These rights are but incidents to the statute, 
 and fall with it, unless saved by the express words in 
 the repealing clause ;" after citing from Bracton and the 
 Institutes the maxim, " JVova constitutlo futuris formam 
 imponere debet non prceteritis" and in reference to the 
 quotation from Puffendorf, he adds : — " Here the right 
 had so passed as to be not only vested, but to startd en- 
 tirely independent of the statute." 
 
 § 762. In Fletcher v. Pcck^a) the rule is recognized, 
 that where a law is in the nature of a contract, wdien 
 absolute rights have vested under that contract, a repeal 
 of the law cannot divest those rights, and that a party to 
 a contract, although it might be a sovereign state, could 
 not pronounce its own deed invalid. In another case,(6) 
 the same principle was recognized, and it was held, that 
 w r here an act of the legislature had declared that certain 
 lands which should be purchased for the Indians, should 
 not thereafter be subject to any tax, it constituted a con- 
 tract which could not be rescinded by a subsequent law. 
 Indeed rights thus vested under laws amounting to a 
 contract are, under our government, rendered sacred and 
 inviolate under the federal constitution. 
 
 § 763. Where a right of property or the nature of its 
 enjoyment, has become vested under a contract between 
 parties, as a joint tenancy created by contract, an act 
 abolishing such estates prospectively does not operate to 
 change the nature of the estate existing at the time, and 
 
 (a) 6 Cranch, 88. 
 
 (/)) The Stale of New Jersey v. Wilson, 7 Cranch, 164.
 
 CHAP. XIX.] OF STATUTES. 883 
 
 created and vested under that contract. It has been 
 held, (a) that an estate of freehold in joint tenancy, cre- 
 ated before the date of an act respecting joint tenants 
 and tenants in common, which declared : " No estate, 
 after the passing of this act, shall in this state be consid- 
 ered and adjudged to be an estate in joint tenancy, ex- 
 cept it expressly set forth in the grant or devise creating 
 such estate, that it is the intention of the parties to create 
 an estate of joint tenancy, and not an estate or tenancy 
 in common, any law, usages, or decision heretofore made 
 to the contrary notwithstanding," was not affected by 
 that act. The decision of this case was put upon the 
 ground, that if the act destroyed the nature of the estate 
 it was one impairing the obligation of a contract, and 
 therefore void and inoperative under the federal consti- 
 tution ; and also upon the ground of the rule, that when- 
 ever a statute is susceptible, without doing violence to 
 its terms, or subverting some established rule of construc- 
 tion, of being understood either as exclusively prospec- 
 tive, or as both prospective and retrospective in its 
 enactment, courts of justice would always adopt the for- 
 mer construction, especially if a retrospective operation 
 would work injustice to any one; and the statute ought 
 not to have a retrospective operation unless its words 
 were so clear, strong, and imperative, that no other 
 meaning could be annexed to them, or unless the inten- 
 tion of the legislature could not be otherwise satisfied ; 
 and that this rule ought especially to be adhered to, when 
 such a construction would alter the pre-existing situa- 
 tion of parties, or would affect or interfere with their 
 antecedent rights. These considerations led irresistibly 
 to the conclusion, that the act in question was entirely 
 prospective, and that the court would not impute to the 
 
 (a) Den ex dein. Berdan v. Van Riper, 1 Harrison, 7.
 
 884 OF THE REPEAL [CHAP. XIX. 
 
 legislature any intention at variance with any of the 
 sound and moral principles of law, or as coming into 
 conflict with any vested rights. In Den v. Nobinson,(a) 
 the plaintiff' claimed title under the statute de donis con- 
 dUionalibus, on the decease of his father, who died seised 
 in tail 12th March, 1798. The statute under which his 
 title accrued was on 13th June, 1799, declared by a legis- 
 lative act to be no longer in force in the state, and it was 
 contended that subsequent to the passage of the latter 
 act, the plaintiff could not come in and make title under 
 the former act. But it was held, that as the estate if it 
 passed at all, passed before the date of the act of 1799, 
 and hence that the repeal of the first act, or the render- 
 ing it for the future inoperative, did not destroy an estate 
 already vested under its authority. In another case, (6) 
 the same rule was applied, and it was held, that repeal- 
 ing, or rendering inoperative for the future, an act, would 
 not destroy an estate already vested under it; and that 
 where one statute is repealed by another, acts done in 
 the meantime while it was in force shall endure, stand, 
 and be effectual. 
 
 § 764. Another illustration of this rule is found in a 
 case(c) where an act of congress, providing for the com- 
 pensation of collectors of duties, gave to the collector 
 three per cent, on all moneys received on account of du- 
 ties arising on goods imported into the United States 
 within his district. Duties had arose under that act 
 while in force. A supplementary act was passed, the 
 words of which were, " That in lieu of the commissions 
 heretofore allowed by law, there shall from and after 
 the 30th day of June next, (1800) be allowed to certain 
 collectors named, two and a half per centum, on all mo- 
 
 (a) 2 Southard, 706. 
 
 (b) Den ex dem. Jones v. Dubois, 1 Har. 286. 
 
 (c) The United Slates v. Heth, 3 Cranch, 399.
 
 CHAP. XIX.] OF STATUTES. 885 
 
 neys which shall be collected and received by them. 
 The question in the case was, whether those collectors 
 were restricted to two and a half per cent, on moneys 
 collected on account of bonds taken previous to the pas- 
 sage of the latter act. It was held they were not. On 
 behalf of the United States it was contended, that the 
 rights of the collectors of duties, with regard to their 
 compensation were absolutely submitted to the will of 
 congress; that congress had uniformly increased or di- 
 minished that compensation as circumstances suggested 
 the expediency of that measure, without regarding any 
 supposed limitation of their right to do so, imposed by 
 claims of their officers ; and it had been the uniform po- 
 licy of the government to apportion the commission ac- 
 cording to the actual receipt of money ; and, therefore, 
 whatever may have been the proportion of their labor or 
 responsibility, their right to compensation was not con- 
 summated before the actual receipt of the duties and the 
 amount of their commission remained liable to be in- 
 creased or diminished at the will of congress ; and in 
 passing their act of May 10th, 1800, they had a right to 
 give it a retroactive operation, and the latter words of 
 the second section, " arising on goods imported," would 
 bear and ought to receive such a construction. Johnson, 
 J., held, that the rights of the collectors of duties, as to 
 their compensation, were submitted to the justice and 
 honor of the country that employed them, until consum- 
 mated by the actual receipt of the sums bonded in their 
 respective offices ; but where an individual had per- 
 formed certain services, under the influence of a prospect 
 of a certain emolument, that confidence which it was the 
 interest of government to cherish in the minds of her cit- 
 izens, a confidence which experience left no room to 
 distrust in our own, would lead to a conclusion, that it 
 €ould not have been the intention of the legislature to 
 defeat a reasonable expectation of her officers, suggested
 
 88G or THE REPEAL [chap. XIX. 
 
 by her own laws. Unless, therefore, the words were 
 too imperious to admit of a different construction, it 
 would be gratifying to the court to be able to vindicate 
 the justice of the government, by restricting the words 
 of the law to a future operation. That it was the policy 
 of the United States, in granting compensations to her 
 revenue officers, to limit the consummation of their right 
 to the actual receipts of money, was evident from a view 
 of all her acts on that subject. Upon considering the 
 question, therefore, upon the construction of the act, they 
 were confined to the single inquiry, how far the govern- 
 ment had exercised its power in reducing the compensa- 
 sion to the defendant from three to two and a half per 
 cent. ? The words of the act, " arising on goods im- 
 ported," although in themselves very indefinite in point 
 of time, would receive a precise signification in this re- 
 spect by supplying the words " heretofore," to give them 
 a past, or " hereafter," to give them a future signification. 
 If it were necessary that the court should make an elec- 
 tion between the words, in order to complete the sense, 
 its choice should be immediately determined by recur- 
 ring to two well known rules of construction, viz., that 
 it ought to be consistent with the suggestion of natural 
 justice, and that the words should be taken most strongly 
 contra proferentem. But there were other considera- 
 tions which would lead to such a conclusion, without sup- 
 plying any supposed deficiency in the wording of the sen- 
 tence. There was nothing, either in the terms made use 
 of, or in the professed object of the law, necessarily re- 
 trospective ; but the general intention of the act, as well 
 as the signification of the word " arising" both pointed to 
 a future operation. Besides which, where it could be 
 shown that a government had once adopted a certain 
 rule of justice for its conduct, it was fair to infer, that in 
 legislating afterwards upon the same subject, it was
 
 CHAP. XIX.] OF STATUTES. 887 
 
 intended to pursue the same rule, unless the contrary 
 should be clearly expressed ; and in the act of 3d iVIarch, 
 1797, which varied the compensation of the revenue offi- 
 cers in several particulars, that alteration was expressly 
 restricted to take effect only with regard to future im- 
 portations. Mr. Justice Patterson held, words in a statute 
 ought not to have a retrospective operation, unless they 
 are so clear, strong, and imperative, that no other meaning 
 could be annexed to them, or unless the intention of the 
 legislature could not be otherwise satisfied. This rule 
 ought especially to be adhered to when such a construc- 
 tion would alter the pre-existing situation of parties, or 
 would affect or interfere with their antecedent rights, 
 services and remunerations, which was so obviouslv 
 improper, that nothing ought to uphold and vindicate the 
 interpretation, but the unequivocal and inflexible import 
 of terms and the manifest intention of the legislature. 
 The word "arising" referred to the present time, or time 
 to come, but could not, with any propriety, relate to the 
 subject-matter, and the words with which it was asso- 
 ciated. Thus the word " arising," coupled with the 
 words "on goods imported," showed that the whole 
 clause had a future bearing and aspect, and would not 
 justly admit of a retroactive construction. According to 
 this view, the commission of two and a half per cent, 
 was to be restricted to moneys received by the collector 
 on account of the duties arising on goods, wares, and 
 merchandise which should be imported after the 30th of 
 June, when the act went into operation. To fortify the 
 foregoing construction, it might be added, that the words 
 of a statute, if dubious, ought, in cases of the present 
 kind, to be taken most strongly against the makers. 
 
 § 765. It has been held, that the repeal of a statute 
 conferring jurisdiction took away all right of proceeding 
 under the repealed statute, even in regard to suits pend-
 
 ^v 
 
 \ 
 
 x 
 
 888 OF THE REPEAL [CHAP. XIX. 
 
 ing at the time of the repeal. (a) This rule has been ap- 
 plied in regard to penal statutes, as we shall have occa- 
 sion hereafter to show, and the same rule has been held 
 as to the consequences of a repeal against a civil right, 
 so long as it remains inchoate. Such was the case in 
 the case of Miller. (b) In that case the repeal was held 
 to work the same consequences against a civil right. 
 Miller, an imprisoned insolvent, had been compelled to 
 assign his property, and was entitled to be discharged, 
 by an order of the court of quarter sessions, as early as 
 the 26th of September, 1761. But the 2 Geo. 3, ch. 2, 
 had already passed, repealing the compulsory clause — 
 such repeal to take place from and after the 19th of No- 
 vember of that year. The insolvent urged his discharge, 
 but the sessions adjourned from time to time till after the 
 19th, then refused to grant it, on the ground that the re- 
 pealing act had taken place. On motion for a manda- 
 mus, Lord Mansfield, Ch. J. delivered the opinion of the 
 court, and held that no jurisdiction now remained in the 
 sessions. He cited the repealing clause, which to be sure, 
 was very strong, " That from and after, &c, the same is 
 hereby repealed to all intents and purposes whatsoever" 
 But this, according to what was held in Surties v. Elli- 
 son, and other cases on tbe repealing clause in 6 Geo. 4, 
 ch. 16, was no more than a simple repeal. The first 
 section of the 6 Geo. 4, simply repealed all the previous 
 statutes of bankruptcy ; but by the last section, the sec- 
 tion was not to take effect till the 1st September, 1825. 
 And there being no saving clause as to acts of bankrupt- 
 cy committed, or any inchoate proceedings under the 
 former acts, it was held that the court had no power to 
 imply a saving clause, although it was plain that by a 
 
 (a) Butler v. Palmer, 1 Hill It. 324. 
 
 (b) 1 Blacks. R. 451.
 
 CHAP. XIX.] OF STATUTES. 889 
 
 mere inadvertence in legislation, the kingdom was left for 
 a time entirely destitute of its bankrupt law. The court 
 was pressed for a construction which might avert so great 
 a general evil. But Lord Tenterden said : " We are not 
 at liberty to break in upon the general rule ;" though he 
 admitted that it w T as very unfortunate that an act of so 
 much importance should have been framed with so little 
 care. In a previous case, Best, C. J. said, that on the 
 1st of September all former acts were entirely got rid 
 of.(«) In a subsequent case, a struggle was made to 
 save a deposition, as evidence, which had been taken to 
 support a commission of bankruptcy under the former 
 statute.(6) but which deposition did not happen to have 
 been enrolled as that section required, in order to make 
 it admissible. It was, in all other respects, completely 
 under the former statute ; but the party inadvertently 
 omitted the act of enrolment, till after the repealing 
 clause took effect. And the court held, that no right re- 
 mained even to enrol, although the repealing act provi- 
 ded the like power of enrolment in proceedings under 
 itself. In short, after much consideration, the court de- 
 clared that the clause operated as a simple repeal ; and 
 Lord Ch. J. Tindall laid down the rule applicable to such 
 a case. He said : " I take the effect of a repealing sta- 
 tute to be, to obliterate it (the statute repealed) as com- 
 pletely from the records of the parliament as tf it had 
 never passed, and that it must be considered as a law 
 that never existed, except for the purpose of those ac- 
 tions or suits which were commenced, prosecuted and 
 concluded while it was an existing law. "(c) 
 
 § 766. It will be perceived that the rule laid down in 
 
 (a) Meiggs v. Hunt, 12 Moore, 357, 359 ; S. C. 4 Bing. 213. 
 
 (b) 5 Geo. 2. ch. 30, sec. 14. 
 
 (c) Fey v. Goodivin, 4 Moore & Payne, 341, 351. 
 
 112 
 
 ^
 
 890 OF THE REPEAL [CHAP. XIX 
 
 this and several other cases, lias no respect whatever to 
 the circumstance that the repealed statute was either of 
 a criminal or jurisdictional character. Xor is it per- 
 ceived why, in cases of civil rights, an exception is not 
 just as practicable in favor of a jurisdiction given to en- 
 force the right as to the right itself. On authority, then, 
 at least, no rights arising under the repealed statute can 
 be saved, except by express reservation in the repeal- 
 ing statute, or where those rights have been perfected, 
 by taking every step which depended, for its force, on 
 the former act. 
 
 § 767. Dwarris expresses the result of the cases in 
 this way : " When an act of parliament is repealed, it 
 must be considered — except as to those transactions 
 passed — closed, as if it never existed. "(a) The meaning 
 of the exception is illustrated by an older case. The 
 statute 1 and 2 Phil. & Hen. allowed devises to spiritual 
 corporations, and such a devise was made and took ef- 
 fect. The subsequent repeal of the statute by 1 Eliz. 
 ch. 1, was held not to affect the right of the devisee. (7j) 
 It w 7 ould not, however, have been so, had the testator 
 lived till the 1 Eliz. had been passed. 
 
 § 768. In The People v. Livingston, a creditor had in Au- 
 gust, 1829, acquired a right to redeem, under a certain 
 form under the then statute of executions, which by an 
 enactment in 1828 was to be repealed from and after the 
 31st December, 1829. The repealing statute substituted 
 a new form of redemption. Savage, Ch. J. said, that an 
 attempt, after the 31st of December, to redeem after the 
 \ old form, was nugatory. The right to redeem, in a cer- 
 tain form, being inchoate, and not expressly reserved by 
 the repealing statute, it was held to have died with the 
 old law T , at the close of the year 1829. This decision 
 
 (a) Dwarris on Statutes, 676. (A) Jenk. Cent. 233, case 7.
 
 CHAP. XIX. j OF STATUTES. 891 
 
 seems to have been in exact conformity with the princi- 
 ple of the English cases. 
 
 § 7G9. The doctrines we have been considering were 
 applied in the case of Butler v. Palmer, (a) which arose 
 under a redemption act. In that case the act relative to 
 redemption, passed May 12, 1837, gave a right of redemp- 
 tion at any time within a year from a sale under a mort- 
 gage. The act of April 18, 1838, repealed the former 
 act, to take effect 1st November, 1838, and it was held 
 that the right to redeem became extinct from the time 
 that the act of 1838 took effect, although the sale took 
 place before the passage of the latter act, and a year from 
 the time of sale had not expired. In answer to the ob- 
 jection that a right of action and other executory rights 
 arising under a statute were vested, and ought not to be 
 taken away by a subsequent stittute, the court say — - 
 "They are so, and a subsequent statute ought not to re- 
 peal them, though they may do it by express words, un- 
 less they amount to a contract within the meaning of the 
 constitution. That the very terms of the defendant's 
 proposition, when plainly stated, would seem to show 
 that he could have had no right, in the nature of things, 
 after the 1st November. His right to redeem depended 
 on a statute which he admits had no existence at the 
 time. That the general distinction lies between those 
 rights which are executed and those which are execu- 
 tory, or as it would have been expressed by the civil law 
 makers ; the jus in re, acquired under the repealed 
 statute, and the jus ad rem so acquired, that an actual 
 redemption would have presented an instance of the for- 
 mer ; the mere right to redeem was an instance of the 
 latter. A right carried into judgment, or taking the form 
 of an express executory contract under a repealed sta* 
 
 (a) 1 Hill, 324.
 
 892 OF THE REPEAL [CHAP. XIX. 
 
 tute, might perhaps stand on the same grounds with the 
 case of a devise above cited from Jenkins, and so of other 
 rights having the means of vitality, independent of the 
 statute. 
 
 § 770. Thus far we have confined our remarks almost 
 exclusively to the effect of a repeal upon civil rights. 
 We shall, in the next place, proceed to consider the ef- 
 fects of a repeal upon penalties created or given under a 
 statute. It is a general rule, that the repeal of a law 
 creating an offence, whether it be felony or misdemea- 
 nor, sweeps away all prosecutions against it without a 
 saving clause for that purpose. (a) There can be no le- 
 gal conviction for an offence, unless the act be contrary 
 to law at the time it is committed ; nor can there be 
 judgment unless the law is in force at the time of the in- 
 dictment and judgment. If the law ceases to operate 
 by its own limitation, or by a repeal, at any time before 
 judgment, no judgment can be given. This rule always 
 prevails as it regards penalties either civil or criminal, 
 unless the repealing clause makes it operate prospec- 
 tively, only preventing the operation of the repeal, and 
 continuing the repealed law in force, as to all pending 
 prosecutions. (6) A reference to a few of the adjudica- 
 ted cases on this last point will illustrate this rule. 
 
 § 771. In an anonymous case,(c) the defendant was 
 indicted for perjury under the bankrupt law. The law 
 had been repealed before indictment. Washington, J. 
 held — " Every offence for which a man is indicted must 
 be laid against some law, and it must be shown to come 
 
 (a) 1 W. C. C. R. 87. 
 
 (b) 11 Pick. 350 ; Scott v. Commonwealth, 2 Virg. Ca. 54 ; Slate v. Cole, 
 2 McCord, 1 ; Commonwealth v. Welch, 2 Dana, 330 ; Road in Hatfield, 4 
 Yeates R. 392 ; Alto v. Commonwealth, 3 Virg. Cas. 382 ; State v. Tom- 
 beckbee Bank, 1 Stew. R. 347 ; Commonwealth v. Leftwick, 5 Rand. 657 ; 
 Lewis v. Foster, 1 N. H. 61. 
 
 (c) '1 Wash. C. C. R. 87.
 
 CHAP. XIX. ] OF STATUTES. 893 
 
 within it. Such law might be the general, unwritten, 
 or common law, or the statute law. The offence must 
 not only come within the terms of such law, but the law 
 itself must at the time be subsisting. It was a clear rule, 
 that if a statute create an offence, and is then repealed, no 
 prosecution could be instituted for any offence commit- 
 ted against the statute previous to its repeal. The end 
 of punishment was not only to correct the offender, but 
 to deter others from committing like offences. But if 
 the legislature has ceased to consider the act in the light 
 of an offence, those purposes were no longer to be an- 
 swered, and punishment was then unnecessary." 
 
 § 772. As to civil rights, the rule is, that rights ac- 
 quired under or barred by an existing law, are not de- 
 feated by the repeal of the law. In an admiralty case, (ft) 
 where an appeal suspended the sentence, it was held, 
 that if the law under which the sentence of condemna- 
 tion was pronounced be repealed after sentence in the 
 court below, and before final decree in the appellate 
 court, no sentence of condemnation could be pronounced, 
 unless some special provision was made for that purpose 
 by the statute. Marshall, Ch. J. held, the court were 
 clearly of opinion that in admiralty cases an appeal sus- 
 pends the sentence altogether, and that it was not res ad- 
 judicata until the final sentence of the appellate court 
 should be pronounced. The cause in the appellate court 
 was to be heard de novo, as if no sentence had been 
 passed. The court therefore held, that the cause was to 
 be considered as if no sentence had been pronounced. It 
 had been settled on general principles, that after the 
 repeal of a law, no penalty could be enforced nor punish- 
 ment inflicted for violation of the law, committed while 
 
 (a) Yeaton et al. v. United Stales, 5 ('ranch, 281.
 
 894 OF THE REPEAL [CHAP. XIX. 
 
 it was in force, unless some special provisions be made 
 for that purpose by statute. 
 
 § 773. In one case,(«) the question was, whether a 
 saving clause in a repealing act saved cases subject to 
 criminal punishment, and it was held it did not. Mr. 
 Justice Story, in delivering the opinion of the court, 
 says: "By the nineteenth section of the act of March, 
 1809, it is enacted, ' that the act laying an embargo on 
 all ships and vessels in the ports and harbors of the Uni- 
 ted States, and the several acts supplementary thereto, 
 shall be, and the same are hereby repealed from and af- 
 ter the end of the next session of Congress.' By this 
 clause, (had it stood alone,) the whole embargo acts, to- 
 gether with all their penalties, forfeitures, fines and pun- 
 ishments, would, after the next session, have been swept 
 away, unless they had been passed in rem adjudicatum. 
 Of course, every prosecution therefor depending before 
 any court would have been quashed." 
 
 § 774. In another case, (6) the defendants were indict- 
 ed for a misdemeanor, for disinterring a dead body on the 
 20th February, in the year 1831, contra formam statuti. 
 The defendant pleaded nolo contendere, and afterwards 
 moved in arrest of judgment, for the following reasons: 
 first, because the offence charged in the indictment, in 
 violation of the statute, passed March 2d, 1814, was 
 repealed by the statute 28th February, 1831, without 
 any saving or excepting clause whatever ; and second, 
 because no offence now known by the laws of the 
 commonwealth is therein described. Shaw, C. J. deliv- 
 ered the opinion of the court. He says : " This indict- 
 ment cannot be maintained consistently with the deci- 
 sion of the court last year in the case of Commonwealth 
 
 (a) The United States v. Mann, 1 Gallison, 181. 
 
 (b) Commonwealths. Marshall el al. 11 Pick. R. 350.
 
 CHAP. XIX.] OF STATUTES. 805 
 
 v. Coolcy.(a) In that case it was held, that the statute 
 of 1814, containing a series of provisions in relation to 
 the whole suhject-matter of the disinterring of dead bo- 
 dies, had expressed, and by necessary implication re- 
 pealed the provisions of the common law on the same 
 subject. It is clear that there can be no legal conviction 
 for an offence, unless the act be contrary to law at the 
 time it is committed ; nor can there be a judgment, un- 
 less the law be in force at the time of the indictment and 
 judgment. If the law ceases to operate, by its own lim- 
 itation or repeal, at any time before judgment, no judg- 
 ment can be given. Hence it is usual, in every repeal- 
 ing law, to make it operate prospectively only, and to 
 insert a saving clause preventing the operation of the re- 
 peal, and continuing the repealed law in force, as to all 
 pending prosecutions, and often as to all violations 
 of the existing law already committed." Mr. Justice 
 Cowen(fr) also sanctioned the doctrine, that where a 
 statute repeals a former one, which imposes a penalty, 
 or which confers jurisdiction, the right to the penalty 
 becomes extinguished, even though a prosecution for it 
 had been previously commenced, and that if the repeal 
 take effect after the conviction, the judgment was there- 
 by arrested, (c) 
 
 § 775. It has been said as a general rule, the effect of 
 repealing statute varies according to its nature and ob- 
 ject and the circumstances of the case. The following 
 propositions, we think, are fairly deducible from the cases 
 bearing upon the subject we have had under considera- 
 tion. 1. If the right acquired under a statute, be in the 
 nature of a contract, or a grant of power, a repeal will 
 
 (a) 10 Pick. 37. 
 
 (b) Butler v. Palmer, 1 Hill R. 324. 
 
 (c) See also Stoever v. Immett, 1 Watts, 258 ; Road in Hatfield, 4 Yeates, 
 392.
 
 896 OF THE REPEAL [CHAP. XIX. 
 
 not divest interest acquired, or annul acts done under it 
 2. If the legislature ex rnero molu by a statute give an 
 individual property belonging to the state, and he accept 
 it, then it becomes a gift executed, and the legislature 
 cannot reform the gift any more than an individual could, 
 under similar circumstances ; hence a repeal of such 
 a statute after the actual acceptance, would not deprive 
 the donee of the property. 3. If a penal statute be re- 
 pealed, after acts done in violation of it, the violator is 
 not subject to punishment under it after the repeal. 
 IJence if all crimes or penalties should at once be re- 
 pealed no offender could be thereafter punished. 4. 
 Where a statute restraining a man's natural rights, or 
 his use of his property is repealed, he is restored to those 
 rights as before the law was passed. (a) 5. Where a 
 statute gives a right in its nature not vested but remain- 
 ing executory, if it does not become executed before a 
 repeal of the law it falls with it, and cannot thereafter be 
 enforced. 
 
 § 776. Where a statue imposes a new penalty for an 
 offence, it repeals by implication so much of the former 
 statute as establishes a different penalty. This rule has 
 been adopted, and it has been said, where the legislature 
 impose a second penalty for an offence, whether smaller 
 or larger than the former one, a party cannot be allowed 
 to sue on the one or the other at his option. {b) In one 
 cast (c) the question arose, whether the act of 1838, c. 157, 
 was so far inconsistent with the revised statutes of Massa- 
 chusetts, c. 47, sec. 3, as to operate as a repeal of the for- 
 mer by implication. The revised statutes imposed a pen- 
 alty of twenty dollars for persons violating the provisions 
 
 (a) See James v. Dubois, 1 Harr. 285. 
 
 (b) Nichol v. Squires, 5 Pick. R. 168. 
 
 (c) Commonu-eaUh v. Kimball, 21 Pick. R. 375.
 
 CHAP. XIX.] OP STATUTES. 897 
 
 of the statute relating to excise, and the act of 1838 im- 
 posed a penalty of not more than twenty dollars, nor less 
 than ten dollars, for a violation of that act. The latter act 
 provided, that the provisions of all laws in force incon- 
 sistent with that act were repealed, and there was no 
 saving clause. The act of 1838 had been construed as 
 prohibiting any person not licensed from selling wine, 
 brandy, &c. ; the latter prohibited the same thing except 
 wine. The former prohibited sales less than twenty- 
 eight gallons ; the latter, sales less than fifteen gallons. 
 The court said, these two statutes, passed at different 
 times, concerning the present case ; the former prohibits 
 the forbidden act under a penalty of tw T enty dollars for 
 each offence ; the latter prohibits the same act on pain 
 of forfeiting not more than twenty dollars, nor less than 
 ten dollars for each offence. The former is absolute and 
 imperative, the latter allows a latitude of discretion. It 
 appears to the court, that the one is essentially and sub- 
 stantially inconsistent with the other. That the latter 
 statute, by prohibiting the same act under a lower pen- 
 alty, though no negative words were used, did in effect 
 declare that it shall not be punished by the higher pen- 
 alty, and therefore the acts were inconsistent ; that the 
 penalties, as they stood in the two acts, were equally in- 
 consistent. The former enacted that the offence should 
 be punished by a penalty of twenty dollars. The latter 
 declared that the same offence should not necessarily be 
 punished by a penalty of twenty dollars, but by such 
 penalty not more than twenty dollars nor less than ten 
 dollars, as the court should direct. That the provision 
 of the former act by which the penalty was fixed, was 
 inconsistent with the provision of the latter, and by the 
 terms of the latter repealed. 
 
 § 777. In the case last cited it will be perceived, that 
 the repeal was held to result from the terms of the latter 
 act; and hjence did not involve the question how far one 
 
 113
 
 898 OF THE REPEAL [CHAP. XIX. 
 
 statute operates as a repeal of another by implication. 
 On that point, however, Shaw, Ch. J., says : " Where 
 one statute is enacted in the same terms as a former one, 
 without a repealing clause, and without any change of 
 provisions, it may perhaps be well maintained that one 
 is no repeal of the other, and that both are in force. 
 Such a case will seldom happen, because a case can 
 hardly be supposed, in which the legislature would have 
 a motive to pass a new law without some intent to 
 change the existing law. But a case may be supposed, 
 where, for the purpose of reducing several statutes into 
 one, upon the same subject, the precise provisions of an 
 existing statute may be embodied in a new one. In such 
 case, it might well be maintained, that a later act would 
 not repeal a former one, so as to prevent a judgment 
 from being passed upon an offence committed before the 
 date of the latter, but upon which no judgment had 
 passed, at the time of its enactment. But every statute 
 is a repeal of all former ones by implication, so far as it 
 is contrary and repugnant thereto, without a repealing 
 clause." It has also been held, that where a statute im- 
 posing a penalty for an offence for the benefit of any per- 
 son who may sue for it, and a subsequent statute is 
 passed, giving the benefit of the penalty to the party in- 
 jured, increasing the amount of such penalty, that the 
 latter act will operate as a repeal of the former one. 
 And that upon the ground, that it seemed clearly the 
 intention of the legislature to revive the penal sanction 
 of the act, and to provide severer means to enforce the 
 penalty, and that where such a design clearly appears, 
 the former statute thus revised must be considered no 
 longer in force, though not expressly repealed. That 
 the provisions of the act, so far as it went to fix the pen- 
 alty and prescribe by whom it might be enforced, was 
 an entire substitution of the original act, and operated as
 
 CHAP. XIX."] OF STATUTES. 899 
 
 a repeal of the same. (a) In The Ezng v. Cator,(b) it 
 was decided that a former statute, inflicting a penalty of 
 £100 and three months imprisonment, on persons en- 
 ticing away artificers, was virtually repealed by a subse- 
 quent statute inflicting £500 penalty and twelve months 
 imprisonment, for the same offence ; and the same prin- 
 ciple was adopted in the case of Tlic King v. Davis.(c) 
 
 § 778. A limited privilege granted to a few individuals,^ 
 is merged in a more enlarged privilege granted to all the ^ 
 inhabitants of a state by a subsequent general statute, v 
 Thus where a statute provided, that the inhabitants of a 
 particular town might separate from a religious society 
 by the performance of certain conditions, a subsequent 
 act gave such power to all the inhabitants of the state, 
 upon the performance of only part of those conditions ; 
 and it was held that the one was repugnant to the other, 
 and operated as a repeal of the former statute. The 
 limited privileges secured by the special statute was j 
 merged in the more enlarged privileges granted by the \ 
 latter act.(d) 
 
 § 779. An analogous principle has been applied under 
 a general statute, directing the mode of attachment on 
 mesne process, and selling by execution shares of direc- 
 tors in an incorporated company ; and it has been held 
 that such general act operated as a repeal of a different \ 
 
 provision for the same object in a prior statute incorpo- 
 rating a particular turnpike company. The incorporating 
 act provided, that the shares in the turnpike should be 
 taken, deemed, and considered as personal estate, to all 
 intents and purposes, and that such shares might be at- 
 tached and might be sold on execution in the same man- 
 
 fa) Leighton v. Walker, 9 N. H. R. R. 61. 
 
 (b) 4 Burrow, 20, n. c. 
 
 (c) 1 Leach Cases, 306. 
 
 (d) Gage v. Currier, 4 Pick. 399.
 
 900 OF THE REPEAL [CHAP. XIX. 
 
 ner as was or might be provided for the sale of property 
 by execution. By the general act, directing the mode of 
 attaching on mesne process, and selling by execution 
 shares of debtors in incorporated companies ; particular 
 directions were given as to the course to be pursued 
 when any such shares were attached, and also when 
 they were sold on execution, and by one section it was 
 enacted, that the shares and interest held by any person 
 or persons in any such company, might be attached on 
 mesne process, and taken and sold on execution in the 
 manner provided by that act, any thing in the act incor- 
 porating such company to the contrary notwithstanding. 
 The court held the general act must govern the mode of 
 proceeding, on the ground that it was intended to have 
 a retrospective operation, and that the fifth section pro- 
 vided expressly that a sale made in this way only, should 
 be good, notwithstanding a different mode might have 
 been provided in the several acts of incorporation. (a) 
 
 § 780. A different rule has been held to govern in 
 cases where a particular provision is contained in an act 
 of incorporation, passed subsequent to a general statute 
 upon the same subject, and that the provisions of the 
 subsequent act superseded the general provisions of a 
 prior general act. Thus in 1805 a statute was enacted 
 directing the mode of proceeding by attachment on mesne 
 process, and selling by execution shares of debtors in in- 
 corporated companies, and by this statute the shares or 
 interest of any person in any turnpike, bridge, canal, or 
 other company, then before incorporated, or which might 
 be incorporated, might be attached, &c, and directed 
 the mode of proceeding, &c. In 1807 a fire insurance 
 company was incorporated, and the property of any 
 member of stock was made liable to attachment, and a 
 
 (a) Starkweather v. Howe, 17 Mass. 240.
 
 CHAP. XIX.] OF STATUTES. 901 
 
 mode of proceeding varied from the directions of the ge- 
 neral statute was prescribed, and a question was made, 
 whether the attachment and levy should have been ac- 
 cording to the mode prescribed by the general act, or as 
 prescribed by the subsequent act of incorporation, and it 
 was held the latter must govern. It was made a matter 
 of some doubt by the court, whether the former general 
 statute was intended to apply to corporations so dissimi- 
 lar in the condition and mangement of their property as 
 turnpikes, &c. were, when compared with banks and 
 insurance companies, and that it might be, the other com- 
 panies mentioned in the general statute, were other like 
 companies instituted for those definite and permanent 
 establishments, and not monied institutions; which doubt 
 was strengthened by the fact, that the several statutes 
 by which institutions for banks and insurance companies 
 were incorporated, as well before as since the passage 
 of the general act, contained provisions regulating attach- 
 ments on executions, by which the shares were to be 
 trnsferred. But whether this might be considered as a 
 legislative construction of the term other conqmnies or 
 not, the latter statute must be regarded as settling the 
 rule of proceeding. This particular mode provided for 
 in the incorporating act, might be considered in the na- 
 ture of a special privilege, and a designed variance from 
 the general rule. (a) 
 
 § 781. In another case this rule was extended to a 
 case, where the general statute was passed subsequent 
 to the incorporating act, so far as it regarded rights ac- 
 quired by performance of a condition provided for in the 
 first act ; and it was held, that even in that case, the 
 former act which contained the grant was to govern, and 
 that the general statute did not supersede the private 
 
 (a) Titcomb v. Union Insurance Company, 8 Maes. R. 32C.
 
 902 OF THE REPEAL [CHAP. XIX. 
 
 act.(«) The decision in tins case may at first impres- 
 sion seem in conflict with that in the case of Stark- 
 weather against Howe, above cited. The distinction 
 which governed in this case, seems to have been the fact, 
 that the act of incorporation giving the right to toll, upon 
 the performance of certain acts specified in the act of 
 creation, which had been complied with, and the right 
 having thus become vested, was not affected by subse- 
 quent provisions of a general character. 
 
 § 782. Where a statute does not, in express [terms, 
 annul a right or power given to a corporation by a pre- 
 vious act, but only confers the same rights and powers 
 upon' the same corporation under a new name, and with 
 additional powers, such subsequent act does not annul the 
 rights and powers given to the corporation under the for- 
 mer act and under its former name. (6) In another case 
 it has been held, that where, upon the trustees of a local 
 corporation, were conferred by law the powers of cer- 
 tain officers, as defined by a general act of the legisla- 
 ture, and such general act was subsequently revised and 
 re-enacted, though with alterations, repealing the former 
 act, the power of such trustees did not cease ; but that, 
 on the contrary thereof, they possessed all the powers 
 conferred, and were subject to all the duties expressed 
 by the revised act, upon the class of officers, in reference 
 to whose powers and duties their own were originally de- 
 clared and set forth, as the same were applicable to the 
 corporation they represented. (c) 
 
 § 783. Where the provisions of a revising statute are 
 to take effect at a future period, and the statute contains 
 a clause repealing the former statute upon the same sub- 
 ject, the repealing clause does not take effect until the 
 
 (a) Nichols v. Bertram, 3 Pick. 344. 
 
 (b) The Commonwealth v. Worcester, 3 Pick. R. 474. 
 
 (c) Mitchell v. Halsey, 15 Wend. 241.
 
 CHAP. XIX.] OF STATUTES. 0()3 
 
 other provisions of the repealing act come into opera- 
 tion, (a) 
 
 § 784. Where a statute contains a provision saving 
 from repeal a part of a former statute which had been 
 already repealed, such a provision will be regarded as a 
 nullity, and will not operate as a revivor of the repealed 
 clause thus attempted to be saved. The court, in such 
 a case, will regard the saving clause as improvident, and 
 will presume that the legislature had overlooked the fact 
 that the clause thus attempted to be saved from the ef- 
 fect of a repeal, had in fact already been repealed by a 
 previous statute. (b) 
 
 § 785. Where some parts of a revised statute are 
 omitted in the revising act, the parts omitted are not to 
 be deemed as revived by construction, but are to be con- 
 sidered as annulled. Thus, in Bartlett v. Kwg,(c) it 
 was held that a statute of 1754, concerning donations and 
 bequests to pious and charitable uses, was not in force, 
 and that on the gronnd that the legislature had in 1785 
 legislated upon the same subject, and had omitted to re- 
 enact the provision of the former statute. In one case(e/) 
 a question arose, whether a parol lease for a year was 
 valid under the statute of 1783, c. 27, sec. 1, which de- 
 clared that all leases by parol, and not put in writing, 
 and signed by the parties so making the same, should 
 have the force and effect of leases at will only. It was 
 argued that a judicial construction had been put upon 
 an English statute, nearly similar, in which it had been 
 held that parol leases, for an uncertain time, with a re- 
 servation of an annual rent, might be good as leases from 
 
 (a) Spalding v. Alford, 1 Pick R. 33. 
 
 (b) See Ashley, appellant, 4 Pick. R. 21. 
 
 (c) 12 Mass. 537. 
 
 (d) Ellis v. Paige, 1 Pick. 43.
 
 904 OF THE REPEAL [CHAP. XIX. 
 
 year to year, notwithstanding the statute ; and as the le- 
 gislature had adopted the same language, it must have 
 intended to have adopted the same construction. It was 
 held that this argument would have had weight if the 
 statutes had been in all respects similar ; but that the 
 English statute had an exception in favor of parol leases 
 not exceeding the term of three years, which had been 
 adopted in the provincial statutes. The omission of 
 this exception in the act under consideration, showed an 
 intent of the legislature to place all parol leases on the 
 same footing. The court admitted the rule that we have 
 laid down, and assign as a reason for it, that to hold 
 otherwise would be to impute to the legislature gross 
 carelessness or ignorance, which was not admissible. 
 The court were not at liberty to suppose that the pro- 
 viso or exception in the previous statute was omitted by 
 mistake, and if not, then it was clearly the intention of 
 the legislature to place all parol leases on the same foot- 
 ing.^) 
 f § 786. If a revising statute embrace all the provisions 
 of antecedent krws on the same subject, and reduce them 
 to one system, such revising statute virtually repeals the 
 statutes revised, without any express provision to that 
 effect.(6) The rule is thus laid down in one case.(c) A 
 subsequent statute, revising the whole subject-matter of 
 a former one, and evidently intended as a substitute for 
 it, although it contains no express words to that effect, 
 must, on principles of law, as well as on reason and 
 common sense, operate to repeal the former. 
 
 § 787. The same principle obtains where a statute 
 revises the common law. This rule was laid down in 
 
 (a) See Bullard v. Mendon, 1 Pick. 1 54. 
 
 (b) Goodenow v. Buttrick, 7 Mass. R. 142. 
 
 (c) Bartlett v. King, 12 Mass. R. 545.
 
 CHAP. XIX.] OF STATUTES. 1)05 
 
 Commonwealth v. Cooley.(a) The statute then under 
 consideration was one relating to the disinterring of dead 
 bodies ; and on an indictment it was contended, that the 
 offence was not one at common law ; but that if it was, 
 the common law on that subject had been superseded 
 by a statute of 1814, covering the entire ground. The 
 court held, that although the offence was indictable by 
 the common law, yet that the statute in question had su- 
 perseded the common law, inasmuch as the whole sub- 
 ject had been revised by the legislature. A statute is 
 impliedly repealed by a subsequent one, revising the 
 whole subject-matter of the first ; and that in the case of 
 a statute revising the common law, the implication was 
 at least equally strong. In this case it was doubted 
 whether a repeal of a statute which superseded the 
 common law would revive the then existing common 
 law.(6) The same principle is applied in those cases 
 where a statute covers the whole subject-matter of all 
 English statutes adopted here.(c) 
 
 § 788. As a general rule, a subsequent statute will c 
 control the provisions of a former statute which are re- 
 pugnant to it according to its strict letter.(d) We have 
 already seen that it makes no difference in the control- t 
 ling operation of the latter statute, that it is general and 
 the other special. But there are exceptions to the rule, 
 depending on the construction of the last statute, which 
 must be made agreeable to the intention of the legisla- 
 ture ; and whenever it is satisfactorily discovered that 
 the legislature did not intend that the subsequent act 
 should repeal the former, it will not be held to operate 
 as a repeal. An illustration of this exception will be 
 
 (a) 10 Pick. R. 39. 
 
 (b) See 11 Ibid. 351. 
 
 (c) Mason v. Waite, 1 Pick. 452. 
 
 (d) Pease v. Whiting, 5 Mass. 380. 
 
 114
 
 006 OF THE REPEAL [CHAP. XIX. 
 
 found in several adjudicated cases.(a) In the former of 
 the cases cited, one town had been set oil from another, 
 on condition that certain lands in the town from which 
 it was set off should not be taxed in the latter ; and the 
 act of incorporation was made upon that condition. A 
 subsequent general tax law, although in its general terms 
 it included those lands, was held not to operate as a repeal 
 of the former provision, as such was evidently not the 
 intention of the legislature. In Vinten v. Wekh,(b) it 
 was held, that where a statute gave an authority to erect 
 a dam across a river, it would not per se operate as a re- 
 peal of a former statute providing for passage ways for 
 fish through all dams. In answer to the position that 
 the former act had been virtually repealed by the latter 
 statute, which gave authority to stop the waters in the 
 pond by means of dams across the river, the court held, 
 that there was no express repeal, nor any strong impli- 
 cation of it, because the object of the two statutes were 
 not necessarily inconsistent. The legislature, without 
 doubt, meant to give the same right in the dams to be 
 erected which the proprietors of other dams had — that 
 is, to maintain them, subject only to the inconvenience 
 of keeping open a passage for fish during a small portion 
 of the year ; and as this was the evident intention of the 
 legislature, they could see no ground to suppose the au- 
 thority contained in the latter statute operated as a re- 
 peal of the provisions of the former one relative to the 
 passage of fish. 
 
 § 789. The suspension of a statute for a limited time 
 is not a repeal of it.(c) This rule was adopted and ap- 
 plied in the case cited, which was an action under a sta- 
 
 (a) Capen v. Glover, 4 Mass. R. 305 ; Pease v. Whitney, 5 Mass. 380. 
 
 (b) 9 Pick. 87. 
 
 (c) Brown v. Barry, 3 Dallas, 365.
 
 CHAP. XIX.] OF STATUTES. 907 
 
 tute of 1748, relative lo bills of exchange, on a bill drawn 
 11th February, 1793. It was insisted, that the act of 
 the legislature of Virginia, on which the action was 
 founded, was not in force when the bill was drawn, and 
 it was made a question whether two subsequent acts 
 passed — to wit, one in November, 1782, declaring the re- 
 peal of the act of 1748, and another of December, 1792, 
 declaring a suspension of that repeal till October, 1793 — 
 did in fact repeal, and leave repealed the act of 1748. 
 That it did so, it was contended that such must have 
 been the effect, as ascertained and limited by two other 
 statutes — one of 1787, declaring that a repeal of a re- 
 pealing act should not revive the act first repealed, and 
 another act of 1785, declaring that statutes should"ta.ke 
 effect from the day on which they in fact passed, unless 
 another day was named. But it was held, that the act 
 of 1748 remained in force. 1. Because the act suspend- 
 ing the repealing act of November, 1792. was not within 
 the act of 1789, which declared that a repeal of a repeal- 
 ing act should not revive the act first repealed, and that 
 for the reason that a suspension of a repealing act for a 
 limited time, was not a repeal of such repealing act. 
 2. Because the repealing act and the act suspending 
 it — acts of the same session — were, according to the Bri- 
 tish rule of construing statutes, parts of the same act, and 
 had effect from the same day, that when taken together 
 as parts of the same act, they amounted only to a provi- 
 sion that a repeal of the act of 1748} should take place 
 at a day then future. The act of 1785, declaring the 
 commencement of acts to be from the day on which they 
 in fact passed, did not apply to this case, for the reason 
 that it was provided in the act of 1789 ; that where a 
 question should arise, whether a law passed during any 
 session changes or repeals a former law during the same 
 session, (which was the present case,) the same construc- 
 tion should be made as if the act of 1785 had never been
 
 908 OP THE REPEAL [CHAP. XIX. 
 
 passed ; that is, both acts being of the same session, 
 should have the same commencement — that is, according 
 to the old English rule, on the first day of the session. 3. 
 Because the manifest intent of the suspending act was, 
 that the act repealed by the repealing act should con- 
 tinue in force till a day then future, the 1st October, 
 1793. It could have no other intent. The intention of 
 the legislature, when discovered, must prevail, any rule 
 of construction declared by previous acts to the contrary 
 notwithstanding. 
 
 § 790. A statute cannot be repealed by non-user.(fl) 
 But though non-user can never repeal the words of an 
 act when they are plain, yet a series of practice, without 
 any exception, goes a great way to explain an act where 
 there is any ambiguity. Thus where under a statute 
 there had been a constant practice not to file an affidavit, 
 the court thought such an act unnecessary. (6) A great 
 moral influence, non-user will always have. In Scotland 
 the instances are frequent, where statutes have been 
 deemed to have become obsolete by desuetude. This 
 principle, however, has not been engrafted upon our sys- 
 tem of laws. A statute may be repealed by the express 
 words of a subsequent statute, and it has been said it 
 may be by implication ; our courts, however, do not fa- 
 vor repeals by implication. In England, it is said, an act 
 cannot be repealed in the same session in which it is 
 passed, unless there be a clause inserted, expressly re- 
 serving the power*to do so.(c) This rule we apprehend 
 is not adopted in this country. If a subsequent statute 
 contrary to a former act, have negative words, it will 
 repeal the former statute. Every affirmative statute is 
 
 (a) White v. Boot, 2 T. R. 275. 
 (d) Leigh v. Kent, 3 T. R. 362. 
 (c) Steph. L. E. 12.
 
 CHAP. XIX.] OF STATUTES. 009 
 
 a repeal, by implication, of a precedent affirmative sta- 
 tute, so far as it is contrary thereto; for "leges poslerio- 
 res contrarias abrogant."(<i) 
 
 § 791. The repeal may be absolute though the repeal- 
 ing act be only temporary in its substantial provisions. (b) 
 If a statute have been repealed by three different sta- 
 tutes, and only two of the repealing statutes are repealed, 
 the third continues in force and repeals the original sta- 
 tute.^) If a statute be repealed, all acts done under it 
 while in force are good, but if a statute be declared to 
 be null, all acts done under it while it was in force are 
 void.(d) If a statute which has been repealed be after- 
 wards revived, the repealing statute becomes of no 
 force.(e) By a repeal of a repealing statute, the original 
 statute is revived. (/) A constructive revival of a sta- 
 tute cannot operate on any part of an act which has been 
 expressly altered. (g) It has been said that the expira- 
 tion of a repealing statute does not necessarily revive 
 the original statute, unless it appears clearly that such 
 was the intention of the legislature. (/i) But the expira- 
 tion of a repealing statute by its own limitations revives 
 a statute which had been repealed and supplied by 
 it.(i) 
 
 § 792. We shall conclude this chapter by succinctly 
 stating some of the rules which obtained under the 
 
 (a) Surties v. Ellison, 9 B. & C. 752 ; Maggs v. Hunt, 4 Bing. 212 ; Kay 
 v. Goodwin, 6 Bing. 582. 
 
 (b) The King v. Rogers, 10 East, 569. 
 
 (c) The Bishop's case, 12 Rep. 7. 
 
 (d) Jenk. 233, pi. 6. 
 
 (e) 2 Inst. 686. 
 
 (/) The Bishop's case, 12 Rep. 7 ; 2 Inst. 686 ; Wheeler v. Roberts, 7 
 Cowen, 536. 
 
 (g) Chancellor's case, 1 Bland. 663 ; Wheeler v. Roberts, 7 Cowen, 536 ; 
 Finch v. McDowell, 7 Cowen, 537. 
 
 (h) Bac. Abr. 225, tit. Statute, D. ; Warren v. Windle, 3 East, 212. 
 
 (t) See Chancellor's case, 1 Bland. R. 664.
 
 910 OF THE REPEAL [CHAP. XIX. 
 
 civil law in reference to collision between laws. We 
 would remark, however, that those rules are such as 
 are to be observed as rules of conduct rather than as 
 rules of construction ; yet their consideration might have 
 some degree of influence upon the mind of a court in 
 construing contrarient statutes in pari materia, or con- 
 flicting provisions in different parts of the same statute. 
 We do not here allude to collisions between positive 
 laws and the laws of nature, for in all such cases, ac- 
 cording to civil law writers, the latter is deemed as para- 
 mount. By collision between two laws, we mean those 
 cases which may occur in which it is impossible that 
 both shall stand at the same time. Where there is but 
 a partial conflict between two positive laws they may 
 to a certain extent both stand, and the one must yield 
 to the other only in those points where the repugnancy 
 is so great that one or the other must fall. In all 
 cases what is merely permissive if found incompatible 
 with what is positively prescribed, must yield to the lat- 
 ter. The reason assigned for this is, that mere permis- 
 sion imposes no obligation to do or not to do ; what is 
 permitted is left to our option, we are at liberty to do it 
 or not. But we have not the same liberty with respect 
 to what is positively prescribed ; we are obliged to do 
 that. Nor can the bare permission in the former case 
 interfere with the discharge of an absolute obligation in 
 the latter, 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 per- 
 mission without violating a positive duty. 
 
 § 793. In the same manner, and by parity of reason, 
 the law which permits ought to give way to the law 
 which forbids, for the obvious reason, 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 per-
 
 CHAP. XIX.] OF STATUTES. 911 
 
 mission in that case ceases to be available. So too it 
 is said, all circumstances being equal, the law which or- 
 dains must give way to the law which forbids. This 
 rule, however, is qualified by the fact, " all circumstances 
 being otherwise equal," for many other reasons may 
 occur, which will authorize an exception being made to 
 a prohibitory law. The rules are general ; each relates 
 to an abstract idea, and shows what follows from that 
 idea, without derogating the other rules. Upon this 
 footing, it is 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 pro- 
 hibition is absolute in itself, whereas every precept, 
 every injunction, is in its own nature conditional, and 
 supposes the power, or a favorable opportunity of doing 
 what is prescribed. Now when that cannot be accom- 
 plished without contravening a prohibition, the opportu- 
 nity 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 action which is forbidden. 
 § 794. The date of laws furnish new reasons for esta- 
 blishing the exception in cases of collision. If the col- 
 lision happen between two affirmative laws of different 
 dates, that which is of more recent date claims the pre- 
 ference over the older one, for it is evident that since 
 both laws emanated from the same source, the subse- 
 quent speaks the last mind of the maker, and is capable 
 of derogating from the former. Of two laws, (all cir- 
 cumstances being equal,) we ought to prefer the one 
 which is less general to that which is more definite and 
 specific in its provisions ; because that which is special 
 admits of fewer exceptions than that which is general ; 
 it is enjoined with greater precision, and appears to have 
 been more pointedly intended. Puffendorf gives us a 
 familiar illustration of this rule. He says : — " One law
 
 912 OF THE REPEAL, &C. [CHAP. XIX. 
 
 forbids us to appear in public with arms on holidays ; 
 another law commands us to turn out under arms, and 
 repair to our post as soon as we hear the sound of the 
 alarm bell ; the alarm bell is rung on a holiday. In such 
 cases we must obey the latter of the two laws, which 
 creates an exception to the former."(«) All circum- 
 stances being equal, what is enjoined under a penalty 
 claims a preference over what is not enforced by one ; 
 and what is enjoined under a greater penalty, over that 
 which is enforced by a lesser, for the penal sanctions 
 give additional force to the obligation ; they prove the 
 object in question was more earnestly desired, and the 
 more so in proportion as the penalty is more or less se- 
 vere. The application of these general rules of conduct 
 to a question of construction to contrarient laws or sta- 
 tutory provisions, will readily be perceived, and they 
 may serve to some extent as a beacon light to those 
 upon whom is devolved the duty of construing conflicting 
 enactments. 
 
 (a) Jus Gent. lib. 5, ch. 12, sec. 23.
 
 CHAP. XX.] OF PUBLIC, AC. 913 
 
 CHAPTER XX. 
 
 OF PUBLIC AND PRIVATE STATUTES. 
 
 § 795. We have in a previous chapter remarked, that 
 statutes are divided into two classes — that of public and 
 private acts. This distinction is important in all cases 
 in the determination of the question as to whether an 
 act must be specially pleaded, as it is a general rule that 
 public acts of parliament are to be taken notice of judi- 
 cially by the court, without being formally set forth ; but 
 particular or private acts, are not regarded by the judges 
 unless formally shown and pleaded. The general de- 
 scription of public acts is, that they relate to or concern 
 the interest of the public at large, or relate to a general 
 genas in relation to things ; and private acts relate to 
 private individuals or an individual only, or which con- 
 cern a particular species of such general genus or thing. 
 
 § 796. In legal language, acts are deemed public; and 
 general acts, which the judges will take notice of in 
 pleading — acts concerning the king, queen or prince, or 
 in our American states, the government and its co-ordi- 
 nate departments ; those concerning all prelates, nobles, 
 and all public officers ; those concerning the whole spi- 
 rituality, and those which concern all officers in general ; 
 acts concerning trade in general, or any specific trade ; 
 acts which relate to all the subjects of the realm ; acts 
 concerning all persons generally, though it be a special 
 or particular thing, such as statutes concerning assizes, 
 or woods in forest, chases, fisheries, and private acts, 
 
 115
 
 1)14 OF PUBLIC AND [CHAP. XX. 
 
 when recognized by a public act. Private acts are those 
 which concern only a particular species, thing or person, 
 of which the judges will not take notice without plead- 
 ing them — such as acts relating to bishops only, acts for 
 toleration for dissenters, acts relating to any particular 
 place, or to divers particular towns, or to one or divers 
 particular counties, or to the colleges only in the univer- 
 sities. 
 
 § 797. In parliamentary language, another sort of dis- 
 tinction is also used, and some acts are called public gen- 
 eral acts, and often others public local acts, such as 
 church acts, canal acts, &c. These, in their objects and 
 operations, are merely local or limited, but they are nev- 
 ertheless treated as public acts, either by virtue of a spe- 
 cial clause declaring them to be so, or because, although 
 limited to a particular section or locality, yet they affect 
 the public at large when acting within that section or 
 locality, in reference to matter within the purview of the 
 act. To this class may also be added some acts which, 
 though public, are merely personal, such as acts of at- 
 tainder, and patent acts, and all that class of acts which 
 have for their object the security of the right of some 
 particular individuals or class of persons, but which, in 
 effect, are operative, and of binding force upon all the 
 citizens generally. Other acts are called private acts, of 
 which latter class some are local, such as enclosure acts, 
 &c, and all that class of acts of a private character 
 which relate to a particular locality, place or district, and 
 some personal, such as relate to the names of particular 
 individuals or to particular estates, as special acts of di- 
 vorce, or other matters affecting only a particular person 
 or class of persons. (a) 
 
 § 798. In Holland's case,(b) it is said, " The rule of 
 
 (a) Bacon's Ab. Statutes. (J) 4 Co. 76, a.
 
 CHAP. XX.] PRIVATE STATUTES. 915 
 
 law is, that of general statutes the judges ought to take 
 notice, although not pleaded — otherwise of special or 
 particular statutes ; and for the better understanding of 
 the point as to which are statutum generate and which 
 are statutum spccialc, that, generate dicitur agenere, ct spe- 
 ciale a specie ; and these are genus, species, ct individua : 
 for instance, spirituality is genus ; bishopric, deanery, 
 &c, are species ; and bishopric, or deanery of a particu- 
 lar place, as Norwich, individuum sic dicet <juia in partes 
 dimdi nequit." Hence acts which concern the whole spi- 
 rituality in general, are general acts, and the act(a) 
 concerning colleges in the two universities, and the col- 
 leges of Eaton and Winchester, is a particular act, of 
 which the judges shall not take notice ; but the statutes 
 concerning colleges, deans and chapters, hospitals, par- 
 sons, vicar, or any other having any spiritual or ecclesi- 
 astical living, are general acts. (6) A statute concerning 
 leases made by bishops, is a special act, because it 
 concerns the bishops only, who are but species of the 
 spirituality, or an individual of a certain species, as a 
 particular bishop. So the word officer is a general word 
 or genus, sheriff is a special word or species, and the 
 sheriff of a particular place, as of Norfolk, is individuum. 
 Hence a statute which declares that no sheriff, nor other 
 of the king's officers, shall take any reward to do his of- 
 fice, but shall be paid of that which they take of the 
 king, is a general act, because it extends to officers in gen- 
 eral ; but at one time it was held, that a statute which ex- 
 tends only to sheriffs was but a particular and special act. 
 This doctrine has since been overruled, and this is now 
 held to be a public act.(c) So, mystery or trade is a gen- 
 
 (a) 18 Eliz. c. 6. 
 
 (b) Dumpsor , s case, 4 Co. 120. 
 
 (c) See 2 Lev. 154 ; 1 Ibid. 83 ; Sid. 23 ; Samuel v. Evans, 2 T. R. 569 ; 
 Lovell v. Sheriff of London, 15 East, 320.
 
 916 OF PUBLIC AND [CHAP. XX. 
 
 eral word ; trade of a particular kind, as grocery, is special, 
 and this grocer by name is individuum ; and hence acts 
 concerning mysteries or trades in general are general 
 acts, but an act concerning a particular trade, as that 
 grocery, is a special act, as it is said, (a) because the trade 
 of grocers contains under it but individua, or singular 
 persons, as this or that grocer by name. The distinc- 
 tion between statutes which concern trade in general, 
 and those which relate to a particular trade, is, that in 
 the former the genus trade is composed of all kinds of 
 trade, but in the latter the particular trade is a species of 
 the genus trade, and the particular person is an individ- 
 ual of that species. 
 
 § 799. It has been held that the statutes made in the 
 time of Henry 6th, by which all corporations and licenses 
 granted by that prince are declared void, was a private 
 act, for the reason that it did not extend to all corpora- 
 tions : it was not general, but particular in a generality, 
 or, to speak with more propriety, general in a particular- 
 ity. The genus corporations was general ; the s]iccies — 
 to wit, those granted by this prince — were particular or 
 special. As it is the species and not the genus provided 
 for in the act, it rendered the act itself a private act. (6) 
 
 § 800. It' an act is special which extends ad species, a 
 multo fortiori, it is special or particular when it extends 
 ad individua. As to what acts as to persons are gene- 
 ral, and what not, it may be observed, that although the 
 matter is special, so that under it there be but individua, 
 yet if it is general as to persons, it is a general act ; but 
 if the act concerns aliquod singulare sua individuum, al- 
 though it is general as to persons, yet it is a special act, 
 of which the judges will not take notice. An appeal is 
 
 {a) Dyer, 27. 
 
 (//) Plow. 65 ; 4 Rep. 76 ; Dyer, 119.
 
 CHAP. XX.] PRIVATE STATUTES. 91 7 
 
 a special act, and yet statutes giving appeals to all per- 
 sons are general acts. But if an act should provide that 
 no appeal should be brought of the death of S., that 
 would be a special or particular act. 
 
 § 801. It is upon the same reasoning that statutes of 
 waste, and concerning special actions, assizes, assizes 
 by tenant by elegit, of attaints, &c, are general laws, 
 although they concern special actions and are framed in 
 reference to special objects. Although an act as to per- 
 sons is general, if the matter thereof concerns individua, 
 or singular things, or any particular man or house, &c., 
 or all the manor houses, &c, which are in one or sundry 
 particular towns, or in one or divers particular counties ; 
 these are such particular acts of which courts will not 
 take cognizance, without they are specially pleaded or 
 alleged. But of every act, although the matters thereof 
 concerns individua, or singular things, yet if they touch 
 or affect the king or government at heart, they are public 
 acts, of which the judges ex officio ought to take cogni- 
 zance ; for every subject has an interest in the king as 
 in the head of the commonwealth ; and as the inferior 
 members cannot estrange themselves from the actions 
 and passions of the head, no less can any subject estrange 
 himself from any thing which touches or concerns the 
 king, their supreme head. (a) 
 
 § 802. It has been said, that the distinction between 
 public and private statutes is this, a general or public 
 act is a universal rule that regards the whole community, 
 but special or private acts are rather exceptions than 
 rules, being those which operate upon private persons 
 and private concerns. (6) It is not necessary, however, 
 in order to constitute a statute a public act, that it should 
 be equally applicable to all parts of the state. It is suffi- 
 
 (a) Phil. Ev. 318 ; Bull. N. P. 222. 
 
 (b) 1 Black. Com. 80. 

 
 918 OF PUBLIC AND [CHAP. XX. 
 
 cient if it extends to all persons doing or omitting to do 
 an act within the territorial limits described in the sta- 
 tute.^/,) 
 
 § 803. In the case last cited, the act provided for the 
 survey of timber in the county of Penobscot, and pro- 
 hibited sales unless thus surveyed and marked, but as it 
 was operative upon all persons, it was held to be a pub- 
 lic act. On the same principle, and for the same rea- 
 sons, an act for the preservation of fish called bass in 
 Dunstan river, in Scarborough in the county of Cumber- 
 berland, was held to be a public act. (b) In this case it 
 was said, indeed all the laws regulating the taking of fish 
 are made for the public benefit, to preserve fish, and are 
 public statutes. 
 
 § 804. If a statute contain provisions which are of a 
 private nature, yet if it also contains provisions for the 
 forfeiture of penalties to the state, or for the punishment 
 of public offences, it is a public statute. (c) In Rex v. 
 Bngg, the defendant was indicted under the statute 2 
 Phil. & Mar. ch. 11, for using the trade of a dyer and 
 weaver, not being a cloth maker. It was objected that 
 the indictment was not good, because the act was private 
 and not set out in the indictment. It was held it was 
 so if the act had been private, but that although this 
 concerned a particular thing or was private in its nature, 
 yet that the forfeiture being to the king, and so the king 
 concerned, that this made it a public act. 
 
 § 805. In fiogers\case, the defendant was indicted for 
 having in his possession forged and counterfeit bills, pur- 
 porting to be issued by the Bank of the United States. 
 It was objected that the judge admitted in evidence a 
 printed copy of the act of congress, and that the act was 
 
 (a) Pierce v. Kimball, 9 Greenlf. R. 54. 
 
 (b) 5 Mass. R. 268. 
 
 (c) Case of Rogers, 2 Greenlf. R. 303 ; Rex v. Bagg, Skin. 429.
 
 CHAP. XX.] PRIVATE STATUTES. 01 ( .> 
 
 private, and the only question was, whether the act was 
 public or private. The court held, as the hank was 
 established for public purposes, as an important aid in 
 conducting the fiscal concerns of the nation, the United 
 States owned a large portion of its funds, and its bills 
 were receivable in payment of revenues ; that although 
 if the statute was of a private nature, or if it concerned 
 a particular trade, yet if a forfeiture thereby be given to 
 the king or government, it was a public statute. That 
 the twelfth and thirteenth sections of the act provided 
 penalties of different amounts for violations of certain 
 parts of the act, and a moiety or less portion was given to 
 the United States, and sections eighteen and nineteen 
 provided punishments to be inflicted on those convicted 
 of counterfeiting, that such provisions were only gene- 
 rally to be found in the public and general statutes ; that 
 for these reasons the act was a public act. Upon the 
 same principle it has been held in Massachusetts, that 
 the statute of 1829, c. 2, to regulate the pilotage in the 
 harbor of Boston, is a public act. Shaw, Ch. J., says: 
 " The last objection is, that the statate is a private act 
 and ought to have been recited in the declaration. With- 
 out going minutely into this subject, which sometimes 
 involves distinctions of much nicety and difficulty, there 
 is one consideration which renders it decisive that this 
 is a public act, which is, that the first section in terms 
 imposes a penalty upon every person who shall violate 
 its provisions. It is therefore binding upon every citizen 
 of the commonwealth, and upon every stranger who, 
 coming w 7 ithin its jurisdiction, owes a temporary alle- 
 giance and is bound by its laws."(a) 
 
 § 806. Where the preamble of a statute recited divers 
 mischiefs to the public which arose from want of proper 
 
 (a) Heridia v. Ayrcs, 12 Pick. 344.
 
 920 OF PUBLIC AND [CHAP. XX. 
 
 regulations concerning the poor, and it was enacted, for 
 the redress of the mischiefs intended to be remedied, a 
 work-house should be erected in Middlesex, this sta- 
 tute was hoiden to be a public statute, because it con- 
 cerned the king's person and the public peace ; that a 
 stop should be put to such mischiefs : and the clause for 
 erecting a work-house was hoiden to be public, because 
 it referred to the mischiefs mentioned in the preamble ; 
 a remedy was thereby provided for such mischiefs in the 
 county of Middlesex. (a) 
 
 § 807. In Jones v. A.vcn t (b) in an action of debt on a 
 bond, the defendant plead the statute 22 and 23 Car. 2, c. 
 20,* for discharge of poor prisoners. On demurrer it was 
 objected, that the statute should have been pleaded, as it 
 did not extend to all poor prisoners, but to such only as 
 were in prison at the time mentioned ; but it was held a 
 public statute, because all the people of England might 
 be interested as creditors of the prisoners ; and it was a 
 charitable act, and ought to receive a favorable construc- 
 tion — and was long and difficult to be pleaded, and poor 
 prisoners could not bear the expense of pleading it spe- 
 cially. 
 
 § 808. The reason why statutes which concern the 
 king are deemed public acts, is, as we have seen, that 
 every subject has an interest in the king or governmental 
 head, who is regarded, and in fact is, the head of the 
 body politic, and consequently every one belonging to 
 that government ought to be sensible of that which af- 
 fects the crown, just as much as a member of the natu- 
 ral body is of what the head at any time feels or suffers. 
 The same rule, for the same reason, applies with equal 
 force to the government of the United States or to the 
 government of the respective states, and has been adopt- 
 
 (a) Sid. 209 ; Rex v. Paulding, Bacon Ab, Stat. F. 
 (£) 1 Ld. Raymond, 120.
 
 CHAP. XX.] PRIVATE STATUTES. 921 
 
 ed and thus applied in this country. A turnpike act in- 
 corporating a company, with a clause vesting the road, 
 on a certain event, in the people, is a puhlic act. (a) In 
 the case last cited, Lansing, Chancellor, says : " Amongst 
 the English legal maxims, we find that every statute that 
 concerns the king, and every statute that relates to all tin: 
 subjects of the realm, are public statutes. All highways, 
 as contradistinguished from private ways, are common 
 to all the people of the state, and concern them gene- 
 rally. A new creation of a highway, or a new modifi- 
 cation of an ancient way, as in the case of a turnpike, 
 does not affect the mode of using it generally. It is still 
 a highway, in the preservation of which all citizens are 
 interested. It contributes essentially to their conveni- 
 ence. The toll is merely exactable for its construction, 
 maintenance and repair. In all other respects, the right 
 of using it as a highway is unimpaired. The people of 
 the state, who, in their collective capacity, have succeed- 
 ed to the right of sovereignty, are also entitled to the 
 reservation after the sums charged on the turnpike are 
 satisfied. These considerations rather incline us to think 
 that this statute ought to be considered as a public act." 
 § 809. In one case(6) it was urged, that there was no 
 public law establishing an office of the Bank of Utica at 
 Canandaigua, and that the act of 10th April, 1815, au- 
 thorizing the bank to establish an office at Canandaigua, 
 was a private act. The chancellor said : " The act in- 
 corporating the Bank of Utica is declared to be a public 
 act, and the action is against this bank. But I am not 
 prepared to admit that a law incorporating a bank, with- 
 out declaring the law to be a public law, is a private 
 act, which must be recited in every suit against a corpo- 
 
 (a) Jenkins v. Union Turnpike Co. 1 Caines' Cas. 86. 
 
 (b) The Bank of Utica v. Smeeds, 3 Cow. R. 684. 
 
 116
 
 922 OF PUBLIC AM) [CHAP. XX. 
 
 ration. These institutions are public in their nature 
 and character, and their operations affect the whole com- 
 munity." Neither the chancellor or the court did, how- 
 ever, in this case, decide upon the point that this was a 
 public act. It is, however, now provided by statute 2 
 R. S. 374, sec. 3, in all suits brought by a corporation 
 created by or under any statute of this state, it shall not 
 be necessary to prove, on the trial of the cause, the ex- 
 istence of such corporation, unless the defendant shall 
 have pleaded in abatement or in bar, that the plaintiff's 
 are not a corporation. And it is also provided, in ac- 
 tions by or against any corporation created by or under 
 any law of this state, it shall not be necessary to recite 
 the act or acts of incorporation, or the proceeding by 
 which such corporation was created, or to set forth the 
 substance ; but the same may be pleaded by the reciting 
 the title of such act and the date of its passage.(a) In 
 Missouri it has been held, that the act of the legislature 
 incorporating the Bank of Missouri is a public act, and 
 that, although not signed by the president of the legisla- 
 tive council. (6) In Massachusetts, acts creating public 
 corporations, whether sole or aggregate, are public sta- 
 tutes of which the courts are judicially informed. (c) The 
 act of Virginia incorporating the Bank of Alexandria was 
 held to be a public law.(d) 
 
 § 810. If a private act be recognized as existing by a 
 public statute, in unequivocal language, it thereby makes 
 such private act a public one.(e) Thus in Rogers' case, 
 the defendant had been convicted of uttering, as true, 
 
 (a) 2 R. S. 375, sec. 13. 
 
 (b) Douglass v. Bank of Missouri, 1 Mis. R. 24. 
 
 (c) Portsmouth Livery Co. v. Watson, 10 Mass. 91, 92. 
 
 (d) Young v. Bank of Alexandria, 4 Cranch R. 384. 
 
 (e) Rogers' case, 2 Greenl. R. 301 ; Samuel v. Evans, 2 D. & E. 569 ; 
 Bullefs N. P. 224 ; 7 Bacon Abr. Stat. F. note.
 
 CHAP. XX.] PRIVATE STATUTES. 923 
 
 certain false and counterfeit bills of the Kennebeck 
 Bank. A new trial was moved, on the ground that the 
 judge allowed to be read in evidence the printed statute 
 incorporating the bank, which, it was contended, was a 
 private act. The court admitted the act was a private 
 one, but said, " It was a principle of law, that if a pub- 
 lic statute, in its language, recognizes the existence of a 
 private statute, it thereby made such private act a pub- 
 lic one, which courts of justice may afterwards regard as 
 such. The statute of 1821, ch. 143, had in it, certain 
 provisions relative to any incorporated bank within the 
 state, imposing a penalty for not paying bills on demand, 
 and chap. 144 imposed further duties on the several 
 banks of this state, that, according to the principles of 
 law before stated, the courts were bound to take notice 
 that there were banks established and incorporated in 
 the state, all of which, being recognized by the statutes 
 quoted, must be considered acts by a legislature au- 
 thorized to enact them, — which acts, by such recogni- 
 tion, had become public statutes. That it was well 
 known and admitted, that courts of law and all persons 
 were bound to take notice of public statutes, whether 
 published or not. That by looking at the constitution, 
 they learned that all laws enacted by the legislature of 
 Massachusetts, and in force on 15th March, 1820, should 
 remain, and be in force in this state, until altered or re- 
 pealed by the legislature of Maine. That the repealing 
 act of 1821 did not repeal any act of Massachusetts in- 
 corporating this bank, and hence the printed copy of the 
 act was competent evidence." 
 
 § 811. In Samuel v. jEcans, the action was debt upon 
 a bail bond. The defence set up was, that the bond was 
 void under the statute 23 Hen. 6, c. 9, because it ap- 
 peared to be taken after the return of the writ as stated 
 in the condition ; and the question was, whether that 
 act was a private one, so that it should have been plead-
 
 924 OF PUBLIC AND [CHAP. XX. 
 
 ed. Duller, J. said : " He thought it a general law, for 
 it alludes to all arrests, and every person who is arrested 
 was within the provisions of it, even if the statute of 
 Anne had never passed ; but that the point was not now 
 open to consideration ; for whatever might have been 
 the law before the statute of Anne, the case of Saxly v. 
 Kirkus(a) removes all doubt. As the court there said, 
 that though the 23 Hen. 6, c. 9, was a private law, yet 
 the statute 4 and 5 Anne, having enabled the sheriff to 
 assign such bond, the court must take notice of the law 
 that enables him to take such bond." This case, it will 
 be perceived, proceeds upon the same principle above 
 alluded to, and in a more extended sense, to wit, that 
 any recognition of a statute of a private nature as a pub- 
 lic act will make such private act a public one, although 
 the public act does not in itself in terms refer to or re- 
 cite the act, in all that class of cases where the act done 
 is recognized and is of such a nature that it could not 
 exist independent of some statute authorizing it. Such 
 was the case in reference to a bail bond taken by the 
 sheriff. 7 ' 
 
 § 812. Statutes prescribing the limits of counties and 
 towns are public acts. In the case of The Commonwealth 
 v. The Inhabitants of Spring fieUl^b) the defendants were 
 indicted for not repairing a highway, which it was al- 
 leged they ought to repair. On demurrer to the indict- 
 ment it was objected, that the highway is not alleged 
 either to be in the town of Springfield or in the county 
 of Hampshire. Parsons, Ch. J., said : " The road is de- 
 scribed as 'leading from Chicopee road, in the town of 
 Springfied, to the town of South Hadley in said county,' 
 and it is alleged, that two miles in length of the said 
 road, within the said town of Springfield, was and yet 
 
 (a) Bui. N, P. 224. (b) 7 Mass. R. 9.
 
 CHAP. XX.] PRIVATE STATUTES. 925 
 
 is ruinous, to wit, at Springfield, and that the inhabitants 
 of the said town of Springfield in the county aforesaid 
 ought to repair the same. The indictment was drawn 
 without much attention, and the defendants have argued 
 that although in the latter part of the indictment, Spring- 
 field is described as within this county, yet the location 
 of the defective part of the road in Springfield aforesaid 
 is insufficient, because the court cannot judicially pre- 
 sume that the whole of that town is within the county ; 
 for in fact there are towns which lie part in one county, 
 and part in another county. The objection by the com- 
 mon law of England might prevail, because the judges 
 cannot presume that the whole of a township or parish 
 lies in the same county. In England the limits of the 
 several counties and parishes are not ascertained by 
 public acts of parliament, the records of which are re- 
 maining ; but they are determined by ancient usage, of 
 which the judges cannot judicially take notice. The 
 case is different in Massachusetts; our county limits, and 
 also the boundaries of our several towns, are prescribed 
 by public statutes, of which we are bound judicially to 
 take notice, when from these limits or boundaries it ap- 
 pears that every part of any town is in the same county, 
 of that fact we can judicially take notice. JNow as judges, 
 we know from our several public statutes, that Spring- 
 field lies wholly in the county of Hampshire. When, 
 therefore, the indictment alleges, that the inhabitants of 
 the said town of Springfield, in the county of Hampshire, 
 ought to repair, and that the defective road lies in Spring- 
 field aforesaid, we can take notice that the defective 
 road lies also in the county of Hampshire." 
 
 § 813. A statute concerning the revenue of the king 
 or government is a public law, but it may be private in 
 respect to some clauses in it relating to a private per-
 
 926 OF PUBLIC AND [CHAP. XX. 
 
 son. (a) The distinction is, that when an act concerns 
 the king's revenue, for the advantage of the king, it is 
 general, and judicial notice will be taken of it; but it is 
 otherwise, when it concerns it only in order to a dimi- 
 nution thereof to the advantage of a particular person, 
 as an act of parliament may be general in part, and par- 
 ticular in other parts. (b) An act of congress of the 
 United States for the relief of insolvent debtors in the 
 District of Columbia, as it respects the Union at large, 
 has been held to be a private act, of which the courts 
 were not bound to take notice. This act, as to its extra 
 territorial effect out of that district, stands upon the 
 same footing as do the public acts of a state, which will 
 not be taken notice of judicially by the courts of another 
 state. (c) 
 
 § 814. An act which relates to, or which affects a co- 
 ordinate department or branch of the government of a 
 state or nation, although enacted in reference to a par- 
 ticular locality, and only operative as to that locality, is 
 a public statute. This principle and distinction is re- 
 cognized in Morris v. Hunted) where it was held, that 
 an act to continue until 1st January, 1819, an act made 
 51st Geo. 3, to explain and amend the laws touching the 
 election of knight of the shire, to serve in parliament of 
 England, respecting the expenses of hustings and poll 
 clerks, so far as regards the city of Westminster, was a 
 public act, for the reason that it related to a branch of 
 the legislature, and therefore in an action founded on 
 that statute, at the suit of the high bailiff of Westmin- 
 ster, to recover the expenses of erecting a hustings, &c, 
 
 (a) Shales v. Seignoret, 12 Mod. 249 ; Bac. Ab. Statute, E. 
 
 (b) Ingraham v. Foot, 12 Mod. 613 ; 10 Co. R. 58. 
 
 (c) Wright v. Paton, 10 John. R. 300 ; Canal Co. v. Railroad Co., 1 Gill 
 & John. 63. 
 
 (d) 1 Chitty R. 453.
 
 CHAP. XX."] PRIVATE STATUTES. t>27 
 
 on the election of members of parliament, it was deter- 
 mined not to be necessary to produce an examined copy 
 of the act. 
 
 § 815. Many private acts, are made public by virtue 
 of a special clause in the act declaring them to be public 
 acts. Whenever an act contains such a clause, the only 
 effect of such a clause is, that courts are bound judicially 
 to take notice of them, without their being specially 
 pleaded. The act itself does not derive any additional 
 weight or authority from having a clause declaring it to 
 be a public act. It must notwithstanding be construed 
 as are all other private acts, and when it is passed on 
 the petition of individuals it is to be construed as any 
 private agreement between parties. It was held, (a) that 
 an act of parliament empowering a bankrupt patentee 
 of a patent right, his executors, administrators, and as- 
 signs, to assign the right to a greater number of persons 
 than was allowed by the letters patent, and declared to 
 be a public law, did not enable either the bankrupt or his 
 assignees to make a better title than they could before 
 the act. It was contended that the act of parliament 
 stated in the case, vested a legal interest in the bankrupt, 
 for that he must be taken against all the world, to have 
 that interest which the act of parliament recited, that 
 act being a public act. But Lord Alvanley, Ch. J., held, 
 that though the act was public, it was of a private 
 nature ; that the only object of the proviso for making it 
 a public act was, that it might be judicially taken notice 
 of, instead of being specially pleaded, and to save the 
 expense of proving an attested copy ; but that it had 
 never been held, that an act of a private nature derives 
 any additional weight or authority from such a proviso. 
 It only affected the brankrupt, and those claiming under 
 
 (a) Hesse v. Stevenson, 3 Bos. & Pul. 565.
 
 928 OF PUBLIC AND [CHAP. XX. 
 
 him, and authorised him to do certain acts, which by 
 the letters patent he could not have done. It recited the 
 letters patent, containing a clause which prevented him 
 from assigning to more than five persons, and then en- 
 abled him to assign to any number of persons not ex- 
 ceeding sixty. That it was not possible therefore to 
 consider the act as giving the bankrupt any title which 
 he had not at the time when it was passed. That such 
 w r as the construction which had always been put upon 
 acts of parliament of this nature. That for this reason 
 no aid was to be derived to the defendant from the act. 
 That private acts when passed on the petition of indi- 
 viduals, are to be construed as any other private agree- 
 ment between the parties was held in Perckard v. Hey- 
 wood.{a) 
 
 § 816. Blackstone, under the head of alienation by 
 matters of record, (6) speaking of private statutes, says : 
 "Acts of this kind are, however, carried on in both 
 houses with great deliberation and caution, and particu- 
 larly in the house of lords. They are generally referred 
 to two judges, to examine and report the facts alleged, 
 and to settle all technical forms. Nothing also is done 
 without the consent expressly given of all parties in 
 being, and capable of consent, that have the remotest 
 interest in the matter, unless such consent shall appear 
 to be perversely, without any reason withheld, and as 
 before hinted, an equivalent in money or other estate, is 
 usually settled upon infants, or persons not in esse, or not 
 of capacity to act for themselves, who are to be con- 
 cluded by this act, and a general saving is constantly 
 added at the close of the bill, of the rights and interest 
 of all persons whatsoever, except those whose consent 
 is so given or purchased, and who are therein particu- 
 
 (a) 8 T. R. 468. (b) 2 Black. Com. 345.
 
 CHAP. XX.] PRIVATE STATUTES. 929 
 
 larly named/' And he adds : " A Jaw thus made, though 
 it binds all parties to the bill, is looked upon more as a 
 private conveyance than as a solemn act of the legis- 
 lature." 
 
 § 817. Another important distinction exists, in law, 
 between the force and effect of a public statute and 
 one which is private, which is, that a public statute binds 
 and affects all persons, whether named in it or not; but 
 a private statute does not bind or affect strangers, unless 
 there is a clause for that purpose. In England a general 
 saving clause is now always added, at the close of every 
 private act, of the rights and interests of all persons except 
 those whose consent is obtained ; and before this practice of 
 inserting the saving clause, it was held that a private act 
 did not bind strangers. (a) In BosweWs case,(b) it was 
 resolved, in the court of wards, that an act of parliament 
 making any conveyance good against the king or other 
 person certain, it should not take away the right of any 
 other, although there be not any saving in the act. The 
 rule laid down in BosweWs case above cited has been 
 adopted by our state courts. In Catlin v. Jackson(c) a 
 person had purchased land at sheriff" sale, but had not 
 paid the money, and afterwards became attainted! By 
 the act of attainder of 22d October, 1779, estates upon 
 condition did not become forfeited, or vest in the people 
 of the state, and hence the state was not vested with 
 the title to this land. An act was passed authorizing 
 the surveyor-general to convey the property without co- 
 venant of warranty. It was held, that this private act 
 of the legislature, directing the property to be sold by 
 
 (a) 2 Black. Com. 345 ; 4 Cru. Dig. 519, 9 ; Jackson v. Cathn, 2 J. R. 
 263. 
 
 (b) Cited in Harrington's case, 8 Co. R. 138, a. 
 
 (c) 2 J. R. 246. 
 
 117
 
 930 OF PUBLIC AND [CHAP. XX. 
 
 the surveyor-general without covenant of warranty, and 
 the money to he paid to certain creditors, did not take 
 away the right of third persons, but amounted only to a 
 quit claim of any right- or interest of the state. Kent, 
 Ch. J. said : " The act directs only the surveyor-general 
 to sell the land so purchased by Thomas Jones, and to 
 execute a deed without a clause of warranty, but does 
 not declare the operation of the deed as against the rights 
 of Cochran and his heirs. In the language of Barring- 
 Ion's case, this act does not make the deed good as 
 against person certain, except it be the state, and there- 
 fore shall not take away the rights of any private per- 
 son. If the act had declared the sale to be a bar to the 
 claim of Cochran, a very serious question would have 
 arisen on the validity of the statute taking away private 
 property without the consent of the owner, and without 
 any public object or any just compensation. In the 
 same case, in the court for the correction of errors,(«) 
 the chancellor said " that this was a private act, passed 
 at the instance of the parties, to remove embarrassments 
 in the arrangements of their interest only, which could 
 not affect strangers, or divest the rights of others not par- 
 ties or privies to it. That it was a species of convey- 
 ance which, like all others, the parties take at their pe- 
 ril." In Coolidge v. Williamson) Ch. J. Parsons held, that 
 private statutes made for the accommodation of particu- 
 lar citizens or corporations ought not to be construed to 
 affect the rights or privileges of others, unless such con- 
 struction results from express words or from necessary 
 implication. 
 
 § 818. In Thomas v. Mahan,(c) it was held that 
 
 (a) 8 J. R. 433. (c) 4 Greenl. 513. 
 
 (b) 4 Mass. R. 140.
 
 CHAP. XX.] PRIVATE STATUTES. 931 
 
 private statutes stand upon the same basis as contracts 
 by deed. In all such cases the rule governs, that all am- 
 biguous words or sentences in a private act of the legis- 
 lature creating a corporation are to be construed most 
 strongly against the corporation, and in favor of private 
 rights of property. (a) In England it has been held that 
 the act 7 Geo. 3, ch. 37, was to be considered as a con- 
 tract between the respective parties, notwithstanding it 
 was declared to be a public act ; for it was passed on 
 the petition of the corporation of London. Lord Hard- 
 wick,^) said : " It is a rule that private acts of parlia- 
 ment, introduced only for the settlement of particular es- 
 tates, ought to be considered only as common conveyan- 
 ces, and directed by the same rules of law, and there- 
 fore cannot be taken to extend as a discharge of any per- 
 sons not mentioned in the act." Lord Hale says : " Ev- 
 ery man is so far a party to a private act of parliament 
 as not to gainsay it, but not so as to give up his interest. 
 Suppose an act says, whereas there is a controversy con- 
 cerning land between A. and B., it is enacted that A. shall 
 enjoy it. This does not bind others, though there be no sa- 
 ving, because it was intended only to end the difference be- 
 tween them here.(c) In BaiTingtorfs case(d) it was held 
 that the act 22 E. 4, c. 7, which under certain circumstances 
 authorized the proprietors of grounds in forests, after fell- 
 ing, to enclose them, without the king's license, for seven 
 years, to preserve the opening wood, extended to said 
 grantees, but did not extend to the wood of any subject 
 in which another has a right of common. As it appeared 
 by the preamble, between what persons, and for and 
 
 (a) Scales v, Pickney, 4 Bing. R. 448. 
 
 (b) Hornby v. Houlditch, cited ia note 1 T. R. 93. 
 
 (c) Lucy v. Livingston, 1 Vent. 176. 
 
 (d) 4 Co. 136.
 
 932 OF PUBLIC AND [CHAP. XX. 
 
 against what persons this act was made, and the parties 
 to the great contract, by act of parliament, were the sub- 
 jects having woods, &c. within forests, chases or pur- 
 lieus of one part, and the king and other owners of 
 forests, chases and purlieus of the other part, so that 
 the commoners were not any of the parties between 
 whom this act was made. That for this reason, it was 
 held, that the right of commoners were not taken away 
 by it. 
 
 § 819. It was held, in the case before cited,(«) that 
 there was a manifest distinction between a public sta- 
 tute, which was of universal concernment and obligation, 
 and presented a rule of action to all, and the grant by 
 the legislature, or a private act granting certain chartered 
 privileges to an individual, or to be executed by a person 
 appointed for that purpose. That the former was a de- 
 claration of the sovereign will, and when constitution- 
 ally proclaimed, it became binding upon all the citizens, 
 Avithout any subsequent assent on their part, express or 
 implied ; but that such was not the effect of a grant or 
 charter of privileges to individuals, or of any private 
 act, to be executed in the manner prescribed. Such an 
 act, though passed with all the constitutional sanctions, 
 possessed no binding force, even on the grantees of such 
 chartered privileges, unless expressly or by implication 
 accepted by them ; or in those appointed to carry its pro- 
 visions into execution, until they have accepted the ap- 
 pointment, and subjected themselves to a legal obliga- 
 tion to perform the duties it imposes — then, and not 
 otherwise, it is in effectual operation ; and that, simply, 
 because the act is in the nature of a contract, to the per- 
 
 (a) Thomas v. Mohan, 4 Greenl. R. 513.
 
 CHAP. XX.] PRIVATE STATUTES. 933 
 
 fection of which the assent of two or more minds is al- 
 ways necessary. 
 
 § 820. There are certain exceptions to the rule that a 
 private act will only bind those named in it, depending, 
 however, upon some special reasons. It has been held 
 that a private act will bar an estate tail, and all remain- 
 ders expectantThereon, and also the reversion, although 
 the rights of the remainder were not excepted out of the 
 saving clause. Lord Apsley(a) held this rule ; and that, 
 as it was clear that Robert Westly, being tenant in tail of 
 tbe Yorkshire estate, the right of those in remainder was, 
 by the act of parliament, barred under an act obtained 
 on the application of Westly and the heirs-at-law, who 
 were infants, for the reason that he, being tenant in tail, 
 might have barred the remainder by a recovery ; and 
 that, for this reason, it was different from the case where 
 a tenant for life procured a private act of parliament for 
 the exchange of livings. That being tenant for life only 
 in such a case, the right of those in remainder not being 
 excepted out of the saving clause, they were not bound 
 by the act. 
 
 § 821. Another distinction between a public and pri- 
 vate act to be noted is, that in the construction of a pub- 
 lic act, all other statutes relative to the same subject- 
 matter in pari materia are to be considered in constru- 
 ing the act, but in the construction of a private statute it 
 is not proper to resort to the language of any other pri- 
 vate statute relating to the same subject-matter — and this 
 for the reason that a private statute stands upon the same 
 basis with ^af'contractSby deed, which generally are not 
 to be affected by evidence aliunde ; and also for the rea- 
 son that an individual who receives a grant from the le- 
 
 (a) Westby v. Kierman, 2 Ambl. 697.
 
 934 OF PUBLIC, &c. [chap. XX. 
 
 gislature, or when a private act is passed for his benefit, 
 is not bound to look into and carefully examine the lan- 
 guage of all other grants and private acts, in order to 
 ascertain the true meaning of the grant or act made for 
 his benefit. («) 
 
 (a) Thomas v. Mahan, 4 Greenl. R. 513.
 
 CHAP. XXI.] OF THE PROOF OF THE, &C. 
 
 935 
 
 CHAPTER XXI. 
 
 OF THE PROOF OF THE EXISTENCE OF STATUTES. 
 
 § 822. In ancient times, when acts of parliament were 
 made, to the end that the same might be published and 
 understood, especially before the use of printing, they 
 were engrossed upon parchment, and bundled up to- 
 gether, with a writ in the king's name, under the great 
 seal, directed to the sheriff of every county, sometimes 
 written in Latin, and sometimes in French, commanding 
 the sheriffs to proclaim the same in his bailiwick, as well 
 within liberties as without. Such continued the course 
 of proceeding even after printing came into use, as late 
 as until the reign of Henry VII. 
 
 § 823. We have seen in a previous chapter, that in 
 England, notwithstanding the record of a statute may 
 not be extant, so that resort cannot be had to that spe- 
 cies of evidence, yet that general statutes, made within 
 the time of memory, that is. since 1 Rich. I., do not 
 lose the force of statutes, if any authentic memorials of 
 their being such are to be found in books, seconded with 
 a general received tradition attesting and approving the 
 same. In conformity perhaps with this favorable pre- 
 sumption, it has become a rule, that courts are to take 
 notice of general acts of parliament without pleading 
 them ; for statutes are never to be put in issue on a plea 
 of mil tiel record, but are to be tried by the court, and if 
 there be any difficulty or uncertainty, the judges are to 
 make use of ancient copies, transcripts, books, pleadings, 
 or any other memorials, to inform themselves.
 
 936 OF THE PROOF OF THE [CHAP. XXI. 
 
 § 824. In 8th Coke(a) it was resolved that against a 
 general act of parliament, or such an act whereof the 
 judges ex officio ought to take notice, the other party can- 
 not plead mil tiel record; for of such an act the judges 
 ought to take notice ; but if it be misrecited, the party 
 ought to demur in law upon it. And in that case the 
 law is grounded upon great reason, for it is in that case 
 said, God forbid, if the record of such act be lost, or 
 consumed by lire, or other means, that it should tend to 
 the general prejudice of the commonwealth, but rather 
 although it be lost or consumed, the judges, either by the 
 printed copy, or by the record in which it is pleaded, or 
 by other means may inform themselves of it. In Eng- 
 land in the case of Bex v. Aru?idel,(b) it was held, that 
 a statute should not be proven by a journal of parlia- 
 ment, nor should it in that way be shown that the assent 
 of the house of commons was conditional. And now by 
 statute 41 Geo. 3, c. 90, sec. 9, it is declared that copies 
 of the statutes of Great Britain and Ireland, prior to the 
 union, printed by the printer duly authorized, shall be 
 received mutually as conclusive evidence of the several 
 statutes in the courts of either kingdom. 
 
 § 825. In several of the states of this Union similar 
 provisions are made by statute, that printed copies of 
 the statutes published under authority shall be evidence 
 of public statutes. These statutory provisions in the 
 several states will be hereafter referred to and stated, so 
 far as we have been enabled to collect the same. In re- 
 gard to the general rule, that public acts of parliament 
 are to be taken notice of judicially by the courts of law 
 without being formerly set forth, a distinction is to be 
 taken between those acts which are public and those 
 which are private. It is in reference to the former, and 
 
 (a) Rep. 28. (b) Hob. 110.
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 937 
 
 not to the latter, that this rule obtains. (a) As to what 
 acts are public and what private, has been considered in 
 another chapter. Courts will not only notice the tenor 
 of a public statute, but also the time of its passage, as 
 well as the passage of contemporaneous public statutes. 
 Savage, J., in one case recognized this rule, and inti- 
 mated, that as the court w T ere to take notice of all public 
 acts, he was inclined to think, that under a plea of an 
 insolvent's discharge as against the people of the state, 
 as the court were bound to take notice of all public acts, 
 they therefore knew that the law giving clerk's fees to 
 the people was passed at the same session with the in- 
 solvent act, and the services in that case necessarily 
 were rendered after the passage of the insolvent act.(/>) 
 § 826. Independent of the act authorizing a printed 
 statute to be given in evidence in New York, it has been 
 held, that a printed statute, containing a private act, may 
 be given in evidence against one in w 7 hose favor it was 
 passed ;(c) although in the same case it was held, that 
 the printed statute book is not evidence of a private act. 
 The rule that the statute book is only evidence of public 
 statutes, was in this state changed by statute, sess. 34, 
 c. 246, sec. 46, in which it was provided : " A/l private 
 acts, passed or to be passed by the legislature, and 
 printed by the printer of the state, shall and may be read 
 in evidence in all cases, and in all courts in this state, 
 from the printed statute book, any law or usage to the 
 contrary notwithstanding. And under the revised sta- 
 tutes, " All laws, passed by the legislature, may be read 
 in evidence from the volume printed by the state printer, 
 in all courts of justice in this state, and all proceedings 
 
 (a) 1 Phil. E\r. 32S • Corayn's Dig. tit. Parliament, R. 5, 6 ; Bac. Ab. tit. 
 Statute, L. 2 ; Holland's case, 4 Co. 76 ; 2 Roll. Ab. 466 ; 2 Mod. R. 57. 
 
 (b) The People v. Herkimer, 4 Cow. R. 348. 
 
 (c) Duncan v. Dubois, 3 John. Cas. 125. 
 
 118
 
 938 OF THE PROOF OF THE [CHAP. XXI. 
 
 before any officer, body, or board, in which it shall be 
 thought necessary to refer thereto. "(«) This act of 
 course includes all private as well as public acts. And 
 all laws published by the state printer may be read in 
 evidence from the paper in which it shall be contained, 
 in all such cases, until three months after the close of 
 the session in which it became a law. (6) 
 
 § 827. In Indiana, under their statutes, the printed 
 statute books of the state, and of the late territories of 
 Indiana and Illinois, purporting to be printed under the 
 authority of the state or territory, are evidence of the 
 private acts therein contained. And the printed statute 
 book of any state or territory of the Union, purporting 
 to be printed under the authority of such state or terri- 
 tory, are prima facie evidence of the public and private 
 acts contained in them.(c) Prior to these statutory pro- 
 visions, the courts there took notice of public acts of 
 that state or territory, although it did not of the laws of 
 a foreign state, unless pleaded and proved. (d) 
 
 § 828. In that state, notwithstanding the statute, pri- 
 vate acts are not noticed by the courts, unless their con- 
 tents are set out in the pleadings, a mere reference to 
 them is insufficient. They are regarded in pleadings as 
 matter of fact, the existence of which may denied by 
 plea.(e) It has also been held, that by virtue of the act 
 of February 17, 1838, the printed statute book of any of 
 the states of the Union, purporting to be published by 
 authority, are made prima facie evidence in the courts of 
 that state, of the laws published in them ; were it not 
 
 (a) 1 R. S. 2d ed.. 168, sec. 12. 
 (6) Id. sec. 11. 
 
 (c) Statutes Ind. 1834, p. 7'J ; R ev . Stat. Ind. 1838. p. 273 ; 4 Blackf. Ind. 
 R. 54, note. 
 
 (d) Ibid. 54; Elliot v. Ray, 2 Blackf. R. 31. 
 
 (e) The Ohio and Ind. Railroad Co. v. Ridge, 5 Blackf. R. 78.
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 939 
 
 for that statute, even the printed statute book of a sister 
 state would be incompetent to prove the laws of such 
 state, and parol testimony would not be evidence for 
 that purpose ; for the written laws of other states cannot 
 be proven by such evidence.(a) Where a statute of a 
 private nature is declared to be a public act, its contents 
 need not be pleaded, nor shown to the court, but the 
 court will take notice of them as they do of all other 
 public statutes. (6) 
 
 § 829. Under the statutes of Michigan, the printed 
 copies of all statutes, acts, and resolves of the state, whe- 
 ther of a public or private nature, which shall be pub- 
 lished under the authority of the government, shall be 
 admitted as sufficient evidence thereof in all courts of 
 law, and on all occasions whatsoever.(c) Printed copies 
 of the statute laws of any other of the United States, or 
 of the territories thereof, if purporting to be published 
 under the authority of the respective governments, or if 
 commonly admitted and used as evidence in their courts, 
 shall be admitted in all courts of law, and on all occa- 
 sions in this state, as prima facie evidence of such 
 facts, (d) 
 
 § 830. In regard to private statutes, resolutions, &c, 
 the only mode of proof known to the common law, is 
 either by means of a copy proved on oath to have been 
 examined by the roll itself, or by an exemplirication 
 under the great seal. In those states where the statutes 
 have made provision, that the printed copies of the laws 
 and resolves of the legislature, published by its authority, 
 shall be sufficient prima facie evidence of the statute, as 
 is the case in the states above named ; the common 
 
 (a) Comparet v. Jernegan, 5 Blackf. R. 375. 
 
 (b) 5 Blackf. R. 171 ; Beaumont v. Mountain, 10 Bing. 404. 
 
 (c) R. S. 1837-8, 438, sec. 48. 
 
 (d) Id. spc. 49.
 
 940 OF THE PROOF OF THE [CHAP. XXI. 
 
 law rule in this respect seems to have been changed. 
 There seems no good reason why a similar statutory 
 provision should not be made in all the states, as it is the 
 invariable course for tiie legislatures of the several states, 
 as well as of the United States, to have the laws and re- 
 solutions of each session printed by authority. Confi- 
 dential persons are selected to compare the copies with 
 the original rolls, and superintend the printing. The 
 very object of this provision is to furnish the people with 
 authentic copies ; and from their nature, printed copies 
 of this kind, either of public or private laws, are as much 
 to be depended upon as the exemplifications verified by 
 an officer who is to keep the record. (a) 
 
 § 831. In Massachusetts it has been held, that the 
 printed book of the printers to the general court is not 
 evidence of a private act, as it is of public statutes.(i) 
 It is now, however, provided by statute that the printed 
 copies of all statutes, acts, and resolves of the common- 
 wealth, whether public or private, which shall be pub- 
 lished under the authority of the government shall be ad- 
 mitted as sufficient evidence thereof in all courts of law, 
 and on all occasions whatever.(c) A similar statutory 
 provision exists in New Jersey. (c/) In Illinois a similar 
 provision exists, including statutes of the state and the 
 United States, and the several states and territories. (e) 
 The public statutes of other states, are not judicially 
 noticed by the courts of other states, but are to be shown 
 in the same manner as private statutes.(/) 
 
 (a) Greenl. Ev. sec. 480 ; 6 Bin. 326. 
 
 (6) Kennebeck Purchase v. Call, 1 Mass. R. 483. 
 
 (c) R. S. Mass. 1836, p. 577. 
 
 (rf) R. S. N. J. 1847, p. 714. 
 
 (e) R. S. 111. 1845, p. 232. 
 
 (/) Pearsall v. Dwight, 2 Mass. 84 ; Legg v. Legg, 8 Mass. 99 ; Walker 
 v. Maxwell, 1 Mass. 104 ; Beuchamp v. Mudd, Hardin's R. 165 ; Herring v. 
 Selden, 2 Aik. 12 ; Elliot v. Ray, 2 Blaekf. R. 31 ; Cone v. Cotton, id. 82;
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 941 
 
 § 832. As to the mode of the proof of foreign statutes, 
 there is some diversity in the rule which prevails in the 
 different states. By an act of congress, the acts of the le- 
 gislatures of the several states (to he evidence) must be 
 authenticated by having the seal of the respective states 
 affixed thereto. A printed pamphlet containing the laws 
 of one state is not evidence in another. Where the law 
 offered in evidence was the insolvent law of the state of 
 Louisiana, printed in a small pamphlet form, in the 
 French and English languages, with no seal affixed ; this 
 law was held inadmissible, not being authenticated in the 
 manner required by the act of congress, that is, under 
 the seal of the state of Louisiana. (a) The written or 
 statute laws of sovereign countries, without the United 
 States, must be proved by the laws themselves, (/>) if 
 they can be procured ; if not, inferior evidence of them 
 may be received, and the unwritten laws by parol evi- 
 dence. (c) That the laws of a foreign nation, designed 
 only for the direction of its own affairs, are not to be 
 noticed by the courts of other countries, unless proved 
 as facts, cannot be questioned ; but the public laws of a 
 foreign nation on a subject of common concern to all na- 
 tions, promulgated by the governing powers of the coun- 
 try, can be noticed as law by courts of admiralty in this 
 country, if those laws have been promulgated in the 
 United States, by the joint act of that department which 
 is entrusted with foreign intercourse, and of that which 
 is invested with the power of war, on the ground, that 
 they assume a character of notoriety which renders them 
 
 Stout v. Wood, 1 id. 71 ; Canal Co. v. Railroad Co., 4 Gill & John. 1, 63 ; 
 Haven v. Foster, 9 Pick. 112, 130; Talbot v. David, 2 Marsh. R. 003, 609 ; 
 Tarlton v. Briscoe, 4 Bibb\ 73, 75 ; 3 Wend. 267 ; 7 Wend. 435 ; 1 Paige 
 R. 226. 
 
 (a) Craig v. Brown, Pet. C. C. R. 352. 
 
 (i) Robinson v. Clifford, 2 Wash. C. C. R. 1. 
 
 (c) Consequa v. Wibling, Pet. C. C. R. 225.
 
 942 OF THE PROOF OF THE [CHAP. XXI. 
 
 admissible in our courts. (a) An oath is required for the 
 proof of foreign laws, unless they are verified by such 
 other high authority which is equivalent to the oath of 
 an individual. It has been held, that in order to prove 
 the laws of Portugal, the principle that the best testi- 
 mony shall be required which the nature of the case will 
 admit of, or, in other words, that no testimony should be 
 admitted which presupposes better testimony attainable 
 by the party who offers it, applies to foreign laws as it 
 does to all other facts. The certificate of the consul not 
 sworn to, that the laws are truly copied from the origi- 
 nals, is not evidence. To give to such a certificate the 
 force of testimony, it will be necessary to show that this 
 is one of those consular functions to which, to use its 
 own language, the laws of this country attach full force 
 and credit. That although consuls are officers known 
 to the law of nations, and entrusted with high powers, 
 they do not appear to be entrusted with the power of au- 
 thenticating the laws of foreign nations. They are not 
 the keepers of those laws. They can grant no official 
 copies of them. It was urged in the case where this 
 question arose, that to require, respecting laws or other 
 transactions in a foreign country, that species of testi- 
 mony which their institutions and usages do not admit 
 of, would be unjust and unreasonable. Marshall, Ch. J. 
 said: " The court will never require such testimony. In 
 this, as in all other cases, no testimony will be required 
 which is shown to be unattainable. But no civilized 
 nation will be presumed to refuse those acts of authen- 
 ticating instruments which are usual, and which are 
 deemed necessary for the purposes of justice. It cannot 
 be presumed that an application to authenticate an edict 
 by the seal of the nation, would be'rejected, unless the 
 
 (a) Talbot v. Seeman, 1 Cranch, 1.
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 943 
 
 fact should appear to the court, nor can it be presumed 
 that any difficulty exists in obtaining a copy. Indeed, 
 in this very case the testimony offered would contradict 
 such a presumption. The paper offered to the court is 
 certified to be a copy compared with the original. It is 
 impossible to suppose that this copy might not have been 
 authenticated by the oath of the consul as well as by 
 his certificate. "(«) 
 
 § 833. The question as to the mode of the proof of 
 the due enactment of a statute, under a constitutional 
 requirement, has in the state of New York been the 
 subject of much forensic and judicial discussion ; and as 
 the subject is an important one, we deem it advisable 
 in this connection to present, somewhat at length, the 
 views and opinions which have been elicited on that sub- 
 ject. In Tliomas v. Dakin^li) the question was raised 
 on demurrer. In that case the plaintiff sued as president 
 of a banking association created under the general law 
 authorizing the business of banking. The objection was 
 taken that the act under which the association was 
 formed did not, as was required by the constitution, re- 
 ceive the assent of two-thirds of the members elected to 
 each branch of the legislature. But in this case it was 
 admitted, that upon demurrer it would be presumed that 
 the act had been constitutionally passed. The court did 
 not, therefore, deliberately consider or pass upon this 
 question. Mr. Justice Cowen, at the close of his opin- 
 ion, said : " But this branch of the argument need not be 
 pursued, for it was agreed on both sides, at the bar, that 
 we must on this record presume the general banking law 
 to have been passed by two-thirds of all the members 
 elected to both houses. We must clearly do so, until 
 
 (a) Church v. Huhbart, 2 Cranch, 187 ; 1 Cond. R. 393, 394. 
 
 (b) 22 Wend. R. 9.
 
 ( J44 OF THE PROOF OF THE [CHAP. XXI. 
 
 the fact is denied by plea. The requisite constitutional 
 solemnities in passing an act which has been published 
 in the statute book, must always be presumed to have 
 taken place, until the contrary should be clearly shown. 
 Should the defendant withdraw his demurrer, and plead 
 specially that the law in question did not receive the as- 
 sent of two-thirds, as requiredby the constitution, it will 
 then be in order to pass upon the solidity of such an ob- 
 jection." Bronson, J. also said : " It was conceded on 
 the argument, that the demurrer does not reach the ob- 
 jection that the act was not passed by a two-third vote, 
 and I have not, therefore, considered the question whe- 
 ther we can look beyond the statute book. 
 
 § 834. This question again arose in the case of War- 
 ner v. Beers, President, and Bolander v. Stevens, Presi- 
 dent.^) on demurrer to declarations by the plaintiffs as 
 president of banks, created under the same act, upon a 
 writ of error from the supreme court, who, in these ca- 
 ses, had adhered to the rule adopted in Thomas v. Dakcn, 
 above cited. In these cases the point was distinctly 
 made that the general banking law did not receive the 
 assent of two-thirds of all the members elected to each 
 branch of the legislature, which defect appeared by the 
 law itself. Although the decision in these cases does 
 not necessarily amount to' an actual adjudication of the 
 question by the court for the correction of errors, as the 
 affirmance of the judgment of the supreme court was, 
 by the resolution of the court, placed upon the ground 
 that the law was constitutionally passed ; although it 
 might not have received a two-third vote, as such associ- 
 ations were not bodies politic or corporate, within the 
 spirit and meaning of the constitution, still as this ques- 
 tion was discussed at length by most of the members of 
 
 (a) 23 Wend. 103.
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 945 
 
 the court who delivered opinions, it may be regarded as 
 indicative of what was the understanding of the mem- 
 bers in regard to this question. We shall, therefore, 
 present those views. Bradish, president, was of the 
 opinion that the certificate of the secretary of state, as 
 to the time of a passage of a bill by the two houses of 
 the legislature, was conclusive evidence that such bill had 
 been passed in due form, except as to bills referred to in 
 the ninth section of the seventh article of the constitu- 
 tion of the state. In respect to such latter bills, inquiry 
 might be made as to the number of the votes given on 
 their passage. But such inquiry could not be by ajwy ; 
 it must be by the court, by an inspection of the record in 
 the secretary's oifice. The chancellor was of the opin- 
 ion, that upon demurrer to a declaration in such a case, 
 the court would not look beyond the statute book to as- 
 certain whether the act was passed by a two-third vote 
 or by a majority. He, however, expressed no opinion 
 upon the question whether a court was authorized, in any 
 way, to institute an inquiry into the mode in ichiclt a law 
 was passed, where the act of the legislature had received 
 the signature of the governor, and had been duly certi- 
 fied by the secretary of state. Senator Verplanck held, 
 that the doctrine 0* Lord Coke : " That against a gene- 
 ral act of parliament, or such an act whereof the judges 
 ought ex officio to take notice nul tiel record, cannot be 
 pleaded, applied to an act of our legislature. That it 
 was the duty of the court, without the intervention of a 
 jury, to inform themselves as to the legal existence of a 
 statute the best way they could, by reference to the jour- 
 nals of the legislature, by adverting to uncontradicted 
 contemporaneous public history, and by inspection of the 
 statute in manuscript in the secretary's office." 
 
 § 835. In the case of Hunt v. Van Alstyne^a) the 
 
 (a) 25 Wend. R. 606. 
 
 119
 
 946 OF THE PROOF OF THE [CHAP. XXI. 
 
 same question again came before the supreme court un- 
 der a plea that the Lockport Trust and Banking Com- 
 pany was an association formed under said act, — which 
 association was formed for banking purposes without 
 the assent of two-thirds of the members of the legisla- 
 ture, and contrary to the constitution of the state. In 
 this case also the cause was disposed of on another 
 ground. The chief justice, however, on this branch of 
 the case, says : " The object of the special plea is to put 
 on the record the question of fact whether or not the 
 general banking law of 1838 was enacted by a two-third 
 vote, within the ninth section of the seventh article of 
 the constitution ; and if not so passed, whether it can 
 be upheld as a valid statute." After stating that the 
 pleas were defective, he adds : " Both parties seem to 
 desire that the defence should be met on the constitu- 
 tional ground. In the cases already decided in this court 
 and the court for the correction of errors, though the 
 question whether it is practicable for the defendant to 
 avail himself of this defence, by setting up the fact that 
 the bill did not receive the assent of two-thirds, within 
 the constitutional provision, was alluded to, no definitive 
 opinions were expressed. (a) In the first case, the only 
 one argued before us, it was conceded by the counsel on 
 both sides, that the court must assume, nothing appear- 
 ing on the record to the contrary, that the law was 
 passed by the requisite constitutional vote ; and we en- 
 tertain no doubt of the correctness of this view. If we 
 had felt justified in taking official cognizance of the fact 
 otherwise, the result of our judgment in that case 
 would have been different ; in the latter case, the chan- 
 cellor concurred with this court that on the demurrer in- 
 terposed, he would not look beyond the statute book ; in 
 
 (a) Thomas v. Dakin, 22 Wend. R. 113 ; Warner if Hoy v. Beers, and 
 Borlander v. Stevens, 23 Wend. 103.
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 947 
 
 other words, that the court was bound to assume, for the 
 purpose of the decision, that every law there published 
 was to be deemed constitutionally enacted ; he reserved 
 himself upon the question, whether the court could, in 
 any form, institute an inquiry into the mode in which a 
 law signed by the governor, and duly certified by the se- 
 cretary of state, was passed. The president and Sena- 
 tor Verplanck, the only two other members delivering 
 opinions, in which allusion is made to this point, also re- 
 served themselves, intimating, however, a doubt whether 
 an inquiry could be instituted beyond the record of the 
 law." After adverting to the provision of the statute 
 relative to the mode of publication and authentication 
 of laws, he says : " I have always been inclined to the 
 opinion, that upon a fair interpretation of these several 
 provisions regarding their scope and purpose, the printed 
 publication of the statute, both in the state papers and 
 in the volume, should contain the endorsed certificates 
 of the presiding officers and of the governor. The law 
 comes into the hands of the secretary, with those en- 
 dorsements inscribed, for his certificate, which would 
 seem naturally to follow them ; and this appears to me 
 to be the shape in which publication was contemplated 
 by the legislature. Looking, perhaps, solely at the insu- 
 lated sections, directing the printing in the state paper 
 and volumes, and construing the duty imposed with re- 
 ference to them exclusively, the above intimation may 
 not be well-founded. It is certain the usage has been to 
 omit them. If the provisions prescribing the endorse- 
 ments by the presiding officers and governor are merely 
 directory and not imperative, or a condition to the valid- 
 ity of the law, then the omission would be of no import- 
 ance ; if otherwise, it is a matter of public convenience ; 
 if material to determine the validity of the law, within 
 the two-thirds provision in the constitution, or within 
 any of the sections of the revised statutes, regulating the
 
 948 OP THE PROOF OF THE [CHAP. XXI. 
 
 mode of the enactment of laws, they can still be brought 
 to our notice, doubtless, by an exemplified copy of the 
 original on file. Until this is done, we do not look be- 
 yond the statute as published by the requisite authority, 
 and shall assume each there found to be constitutionally 
 enacted. In the case before us, assuming that the pleas 
 constitute a valid defence to the action, if true under the 
 tests given in sec. 3, 1 R. S. 143, which declares that no 
 bill shall be deemed to have been passed by the assent 
 of two-thirds, unless so certified by the presiding officers 
 of each house, an exemplified copy of the general banking 
 law might determine the fact involved in them. If, on 
 its production, no such certificate appeared, the court 
 would be bound to regard it as passed by a majority 
 only. But suppose it did appear, would it be conclu- 
 sive ? It seems to me it would be so. There are only 
 two modes of contradicting it. 1. By the journals of the 
 two houses ; and, 2. By parol testimony. The presiding 
 officer had all the benefits of the first. The ayes and 
 noes were taken, and the journal made up under his su- 
 pervision and control. His means of ascertaining and 
 determining the fact, when he declares the law to be 
 passed, exceed those of any other tribunal that might 
 afterwards be called upon to inquire into it. Besides, 
 the hurry and looseness with which the journals are 
 copied, and the little importance attached to the printed 
 copies, necessarily impair confidence in their correctness. 
 They are most uncertain data upon which to found a ju- 
 dicial determination of the rights of property, much 
 more of great constitutional questions. As to the se- 
 cond mode of contradicting the certificate, the evidence 
 would, if possible, be still more fallible and unsatisfac- 
 tory. Indeed, we can scarcely imagine a case where, 
 from its nature, the proof would be so subject to the 
 doubtful and conflicting recollection of witnesses. No- 
 thing short of absolute necessity could justify a resort
 
 CHAP. XXI.] EXISTENCE OF STATUTES. 949 
 
 to it. It would hardly deserve weight in contradicting 
 the journal itself — much less the certificate of the pre- 
 siding officer affixed to the law." He subsequently adds : 
 " But I do not desire to be understood as committing 
 myself upon the question, if, on a future investigation, 
 when it shall be directly involved, these views shall be 
 found untenable.'' Mr. Justice Cowen did not regard 
 the decision of the court for the correction of errors, 
 above cited, conclusive of this question ; and in this case 
 neither he nor Mr. Justice Bronson expressed any opin- 
 ion on this point. 
 
 § 836. This question again came under consideration 
 in the case of The People v. Purely. (a) The question in 
 this case arose under the act of 14th May, 1840, annulling 
 the power conferred upon aldermen in the city of New 
 York by the city charter of 1830, to officiate as judges 
 in the court of general sessions. Mr. Justice Bronson, 
 in that case, at page 33, says : "But it is said that the 
 act of 1840 did not receive the assent of two-thirds of 
 the members elected to each branch of the legislature, 
 and consequently that it is not a valid law. The fact 
 that it did not have the vote of two-thirds of the mem- 
 bers, was conceded on the argument ; and we see, from 
 the journals, that only one-half of the senators, and less 
 than half of the members, voted for the bill on the final 
 passage. How a question like this shall be tried, or 
 whether it shall be tried at all, when a bill has gone 
 through all the usual forms of legislation, are questions 
 which were not considered in the case of Thomas v. 
 Dakin.(b) They are now presented to this court for 
 the first time. It has not been denied that the judicial 
 tribunals of the state may, in some way, look beyond 
 the printed statute book, for the purpose of ascertaining 
 
 (a) 2 Hill, 31. {b) 22 Wend. 9.
 
 950 OF THE PROOF OF THE ['CHAP. XXI. 
 
 whether bills coming within the two-third clause of the 
 constitution, have received the requisite number of votes : 
 and although I have felt a good deal of difficulty on that 
 question, I am inclined to the opinion that such an in- 
 quiry may be instituted. The question is, no doubt, one 
 of great delicacy ; but if the court have the right to en- 
 tertain it, the duty is imperative, and we are not at lib- 
 erty to shrink from its performance. We live under a 
 government of laws, reaching as well to the legislative 
 as to the other branches of the government ; and if we 
 wish to uphold and perpetute free institutions, we must 
 maintain a vigilant watch against all encroachments of 
 power, whether arising from mistake or design, and from 
 whatever source they proceed. The constitution is ex- 
 plicit in its terms ; and in a particular class of cases 
 upon which the legislature may act, it denies to a bare 
 majority of the members the power which in other cases 
 they undeniably possess. To give efficiency to this pro- 
 vision, and secure the people against the exercise of 
 powers which they have not granted, we must, I think, 
 when called upon to do so, look beyond the printed sta- 
 tute book, and inquire whether bills creating or altering 
 corporations have received the requisite number of votes. 
 Statute laws may be read in evidence, either from the 
 state papers or from the volumes published by the state 
 printer.(«) It is also enacted, that " no bill shall be 
 deemed to have been passed by the assent of two-thirds 
 of the members elected to each house, unless so certified 
 by the presiding officer of each house." To give full ef- 
 fect to this enactment, and provide a convenient mode of 
 ascertaining whether the two-third clause in the consti- 
 tution has been duly observed, the law should be pub- 
 lished with all the usual evidences of their authenticity. 
 
 (a) 1 R. S. 181, 184, sec. 8, 12.
 
 CHAP. XXI.] EXISTENI E OF STATUTES. 951 
 
 The certificate of the presiding officers of the two houses, 
 and the approval of the governor, should be published 
 as well as the body of the law. But as this has not 
 been the practice, I have examined the original engrossed 
 bill on file in the secretary's office, and find that the act 
 of 1840 is only certified by the presiding officers in the 
 usual form of certifying majority bills. If this be not 
 conclusive, it is at least prima facie evidence; and fol- 
 lowing the statute, this bill cannot be " deemed to have 
 been passed by the assent of two-thirds of the members 
 elected to each house." 
 
 § 837. In the same case, in the court for the correc- 
 tion of errors, (a) the chancellor and senators Paige and 
 Franklin held, that for the purpose of ascertaining whe- 
 ther an act was passed as a majority bill merely, or by 
 a two-third vote, courts may look beyond the printed 
 statute book to the certificate upon the original bill on 
 file with the secretary of state. That if the bill be not 
 certified by the presiding officer of the two houses re- 
 spectively, in the mode pointed out by the statute, it 
 must be deemed prima facie, at least to have been passed 
 by a vote less than two-thirds, and senators Paige and 
 Franklin were of the opinion that the journals kept by 
 the two houses of the legislature, might be resorted to 
 in ascertaining whether an act was passed by a vote of 
 two-thirds. The chancellor was also of the opinion that 
 the certificate of the secretary of state endorsed upon 
 the bill, pursuant to the requirement of the statute, was 
 not evidence that it was passed by a vote of two-thirds, 
 at all events it was not conclusive. For it could never 
 have been the intention of the legislature, to give to the 
 secretary of state the exclusive right of deciding whether 
 any of the provisions of a statute, which had been passed 
 
 (a) i Hill, 384.
 
 952 OF THE PROOF OF THE [CHAP. XXI. 
 
 by a majority vote only, required a vote of two-thirds. 
 The certificate which the secretary is required to endorse 
 upon the bill, related rather to the time when such bill 
 became a law, than to the fact that it was passed by a 
 constitutional vote of two-thirds ; when all or any of its 
 provisions require that it should be passed by such a 
 vote. And the revised statutes having only declared the 
 certificate of the secretary to be conclusive evidence of 
 the facts contained therein, if he does not certify that it 
 was passed by two-thirds of the members elected to each 
 branch of the legislature, his certificate was not evidence 
 that it was so passed ; when such an inquiry becomes 
 material in reference to the validity of any of the pro- 
 visions of the law. The legislature had declared by law 
 that no bill shall be deemed to have passed by a two- 
 third vote, unless it is so certified by the presiding officer 
 of each house, and he was therefore inclined to the 
 opinion that such a certificate, rather than the certificate 
 of the secretary of state specifying the lime when the 
 law was passed, was to be considered the only legal evi- 
 dence that the bill w T as in fact passed by the assent of 
 two-thirds of all the members elected to each branch of 
 the legislature. In the case of De Bow v. The People,(a) 
 Bronson, Ch. J., again held, that the question whether a 
 particular act was passed by a two-third vote was to be 
 determined, whenever it arises, by the court, who for 
 that purpose are to examine the original law on file in 
 the office of the secretary of state ; and in the latter case 
 he said that this question, as to whether the law did 
 receive a two-third vote, was directly and necessarily 
 presented, and that the court could not, if it would, turn 
 aside from considering it. (6) It will therefore be per- 
 
 (a) 1 Denio, 9. 
 
 (A) See also The Commercial Bank of Buffalo v. Sparrow, 2 Denio, 97.
 
 CHAP XXI.] EXISTENCE OF .STATUTES. 953 
 
 ceived, that this most delicate and important question, 
 so far as the state of New York is concerned, is judici- 
 ally and definitely settled, and that whatever may he the 
 rule in England on this point, the rule here is finally put 
 at rest, and that too, as we think, in strict accordance 
 with the spirit and genius of our peculiar political insti- 
 tutions, under a written compact defining and limiting 
 legislative powers. 
 
 § 838. I have now presented all the varied topics 
 which I have deemed it important to discuss. It is due 
 to myself in conclusion to say, that in the presentation 
 of this branch of my subject I have considered it impor- 
 tant to present many instances in which a particular rule 
 of construction has been applied to particular cases, as 
 illustrative of the rule itself, as well as its practical ap- 
 plication by courts, and in such instances to present so 
 many of the facts and circumstances of the case as to 
 enable my readers, without a resort to the cases them- 
 selves, to readily perceive the extent to which the rule 
 itself has been carried, and the mode of applying it. In 
 considering the rules of construction under the varied 
 heads of remark, I have also in some instances presented 
 in juxta-position the varied views of judges in reference 
 to a given topic, even at the expense of a repetition of 
 similar views, when considering the same subject under 
 a different head, and also in instances where the same 
 rule was adopted, but a different application made of it; 
 or its application was to be considered under a somewhat 
 varied aspect, by way of illustration. With this apology 
 for the fault of prolixity in this respect, I close this work, 
 and to all human probability, under my present impres- 
 sions, terminate my labors as a legal author. 
 
 120
 
 INDEX. 
 
 ABSOLUTE NATURE OF GOVERNMENT, 236 to 309. 
 in America, 258 to 259. 
 in England, 243 to 258. 
 ACTS IN DEROGATION OF NATURAL RIGHTS, WHEN VOID. 
 
 236 to 309. 
 ACTS DIRECTORY, 782 to 796. 
 ACTS, PUBLIC AND PRIVATE, 913 to 934. 
 AFFIRMATIVE AND NEGATIVE ACTS, 771 to 813. 
 affirmative acts creating a franchise, 790. 
 
 directing a thing to be done in a given time, 782. 
 do not take away a custom, 796. 
 effect upon actions at common law, 771. 
 effect upon the common law, 771. 
 giving a right, and silent as to remedy, 774. 
 illustrations of rules relating to, 772 to 774. 
 introductive of a new law, 778. 
 nature of, 771. 
 
 requiring acts to be done by public officers, 795. 
 when directory, 782 to 795. 
 when cumulative as to remedy, 797 to 813. 
 AFORESAID, 
 
 how construed, 731. 
 ALABAMA. 
 
 bill of rights, 215 to 219. 
 legislature of, 219 to 222. 
 AND 
 
 when construed, " or," 658. 
 how construed generally, 731. 
 ANGLO SAXON ASSEMBLIES, 25. 
 authority of Witans, 23. 
 code of laws, 23. 
 kings, 23. 
 legislation, 23, 24. 
 mode of enacting laws, 23. 
 optimates, 25. 
 Witans, authority of, 23.
 
 956 INDEX. 
 
 ARCHONS. 
 
 their authority, 11. 
 ARKANSAS. 
 
 hill of rights. 230 to 233. 
 
 legislature of, 233 to 235. 
 ATHENIAN DEMOCRACY, 12. 
 ATHENS. 
 
 assembly of, 10. 
 
 government of, 9. 
 
 senate, 10, 12. 
 ATTAINDER BILLS. 
 
 Definition of, 366. 
 
 distinction between them and bills of pains and penalties, 366. 
 
 include both, 366. 
 AUTHENTIC INTERPRETATION, 603, 625. 
 
 P> 
 
 BANKRUPT LAWS. 
 
 power of congress over, 351. 
 
 not exclusive in congress, 351. 
 
 right of state not taken away until congress exerts the power, 351. 
 
 repeal of congressional act does not confer the right on states, 351. 
 
 when congressional act takes effect power of state suspended, 352. 
 BILLS OF CREDIT. 
 
 constitutional restrictions upon, 377 to 381. 
 
 definition of, 377 to 379. 
 
 nature of, 377 to 379. 
 
 must issue on faith of state, 378. 
 
 must be designed to circulate as money, 378. 
 
 persons issuing must have power to bind the state, 378. 
 
 states cannot issue them, 380. 
 
 states may grant acts of corporation for attainment of objects of so- 
 ciety, 380. 
 
 state bank bills not bills of credit, 381. 
 BILLS APPROPRIATING PUBLIC PROPERTY OR MONEY TO 
 PRIVATE USE, 418 to 449. 
 
 constitutionality of such acts. 417 to 465. 
 
 see two-third bills. 
 BLACKSTONE, WM. 
 
 view of sovereignty and power of parliament, 243. 
 BURKE. 
 
 view of natural rights, 256. 
 BURLAMAQUI. 
 
 view of sovereignty, 237.
 
 index. 957 
 
 c 
 
 CARTHAGENIAN GOVERNMENT, 15. 
 
 character of, 17. 
 
 senate and assembly, 17. 
 
 senate, 15. 
 
 senate's powers, 16. 
 
 suffetees and magistrates, 15. 
 
 tribunal of the hundreds, 16. 
 CHRISTIAN. 
 
 view of authority of parliament, 243. 
 CLOSE INTERPRETATION. 
 
 nature of, 603 
 CLOSE CONSTRUCTION, 604, 610. 
 COMMERCE. 
 
 definition of under constitution, 326. 
 
 includes traffic, 326. 
 
 includes navigation, 326. 
 
 what is meant by " among the several states," 328. 
 
 whether it extends to health and inspection laws, 331. 
 
 what acts concerning commerce are within federal constitution, 335 
 to 347. 
 
 what acts not within it, 347 to 351. 
 COMPREHENSIVE CONSTRUCTION. 
 
 definition of, 604. 
 CONSEQUENCES. 
 
 when regarded in construction, 693 to 697. 
 CONNECTICUT. 
 
 association of inhabitants, 82. 
 
 bill of rights, 136 to 139. 
 
 constitution of 83, 84, 85, 86, 99. 
 
 first general election of colony, 95. 
 
 first settlement of, 81. 
 
 foundation of colony, 80. 
 
 general convention of, 83. 
 
 general court of, 93. 
 
 grant to colony, 82. 
 
 history of, 90. 
 
 laws of colony, 94 to 96. 
 
 laws how enacted, 89, 100, 101. 
 
 legislature of, 139, 140. 
 
 political power of, 90. 
 
 quo warranto against, 97, 98. 
 CONSTITUTION OF ENGLAND, 40. 
 CONSTITUTION OF UNITED STATES. 
 
 to what applicable, 310.
 
 958 - INDEX. 
 
 CONSTITUTION OF UNITED STATES— continued. 
 
 5th amendment to what applicable, 310. 
 CONSTITUTIONAL RESTRICTIONS. 
 
 upon legislative power, 417 to 578. 
 
 upon taxing power, 321 to 326. 
 CONSTITUTIONALITY OF LAWS. 
 
 creating corporations, 449 to 466. 
 
 ex posto facto laws, 366 to 375. 
 
 eminent domain, 466 to 500. 
 
 granting public property for private or local purposes, 417 to 449. 
 
 health and inspection laws, 331. 
 
 impairing obligation of contracts, 382 to 416. 
 
 judicial acts of legislation, 500 to 530. 
 
 retrospective laws, 530 to 550. 
 
 statutes of limitation, 406 to 408. 
 
 two-third bills, 417 to 466. 
 
 statutes affecting right of trial by jury, 550 to 569. 
 CONSTRUCTION. 
 
 according to ordinary signification, 651. 
 
 according to subject matter, 631, 654, 658. 
 
 affirmative and negative statutes, 771 to 813. 
 
 ambiguous terms, 631. 
 
 an exception, 712. 
 
 according to intent of legislature, 649, 679, 666, 671. 
 
 conformable to general usage, 629. 
 
 coupling words, 657. 
 
 deeds and wills, 646 to 660. 
 
 delegating authority, 713. 
 
 derived from civil law, 612. 
 
 derived from the reason of the law, 634. 
 
 derived from natural import of words, 661. 
 
 difference from interpretation, 600, 603. 
 
 doubtful meaning of words, 710. 
 
 equitable construction, 814 to 838. 
 
 equitable construction of penal acts, 839 to 854. 
 
 equivocal terms, 633. 
 
 expressions susceptible of different meanings, 631, 673. 
 
 not to elude the torce of an act, 671. 
 
 not to destroy an act, 710. 
 
 nature of, 600. 
 
 penal statutes, 854 to 878. 
 
 permissive words, 728, 910. 
 
 power of Congress over commerce, 326 to 351. 
 
 proviso, 712. 
 
 particular words, 681 to 729. 
 "complaint," 686. 
 "'defendant," 687.
 
 INDEX 
 
 959 
 
 CONSTRUCTION— continued. 
 
 " depending," 733. 
 
 "final judgment," 683, 684. 
 
 "high seas," 719. 
 
 " may," 724 to 729. 
 
 " maliciously and without justifiable cause," 687. 
 
 "law of the land," 722. 
 
 " legal settlement," 721. 
 
 " party," 681. 
 
 " person," 688. 
 
 " plaintiff," 682. 
 
 " saving clause," 711. 
 
 " supersede," 683. 
 
 "tea and loaf-sugar," 715, 716. 
 
 " trial," 685. 
 public and private acts, 913 to 934. 
 relative words to antecedent, 656. 
 remedial acts, 692. 
 retrospective acts, 679. 
 revenue laws, 714 to 721. 
 
 similar expressions in the same or different acts, 664 to 666. 
 statutes in pari materia, 647, 751, 770. 
 sense when clear, 663. 
 technical terms, 630, 679. 
 terms of art, 630. 
 things favorable, 640. 
 to produce some effect, 631, 632. 
 things odious, 640. 
 
 when it leads to false consequences, 663. 
 when the words are plain, 627. 
 when the words are obscure, 628. 
 CONTEMPORANEOUS CONSTRUCTION, 659, 739 to 750. 
 influence of, 739. 
 nature of, 739. 
 reason for it, 740. 
 rule illustrated, 749. 
 CONTEMPORANEOUS EXPOSITION, 438 to 440. 
 CONTEMPORANEOUS PRACTICE. 
 
 influence on constitutional questions, 743. 
 
 how regarded by federal courts, 747. 
 
 how regarded in construction of English statute, 749. 
 
 how regarded in courts of law and equity, 750. 
 
 necessity of it in United States, 746. 
 
 nature of, 438, 741. 
 
 when judicial and legislative exposition have not the same weight, 
 
 744, 745. 
 when the rule restricted, 744.
 
 960 
 
 INDEX 
 
 CONTRACTS. 
 
 obligations of, what, 382, 383. 
 CONTROLLING FORCE OF STATUTES, 236, 380. 
 COSMI. 
 
 what, 5. 
 CRETE. 
 
 government of, 4. 
 
 D. 
 
 DEFECTS OF EXPRESSION, 617, 618. 
 DELAWARE. 
 
 legislature of, 158,159. 
 DELEGATION OF AUTHORITY. 
 
 construction of, 713. 
 " DEPENDING." 
 
 how construed, 733. 
 DESIGN OF LAW. 
 
 how ascertained, 645. 
 DIRECTORY STATUTES, 782 to 796. 
 DIVISION OF STATUTES, 594, 697. 
 DOMAT. 
 
 view of divine right of sovereignty, 241 
 
 how sovereignty to be exercised, 241. 
 
 rules of construction, 613, 625. 
 DOUBTFUL CLAUSES. 
 
 how construed, 626. 
 
 E. 
 
 EGYPTIANS. 
 
 character of, 13. 
 
 kings, 13. 
 
 kingdom hereditary, 13. 
 
 laws and customs, 13. 
 
 mode of enacting laws, 14. 
 
 public affairs, how conducted, 14. 
 
 power of the state, 13. 
 EMINENT DOMAIN, 466 to 500. 
 
 compensation must be made, 467. 
 
 compensation, how made, 467, 468. 
 
 compensation, when made, 473, 478. 
 
 can only be exercised for public use, 478 to 486. 
 
 constitutionality of its exercise, 466 to 500. 
 
 incident to government, 466. 
 
 mode of assessment for, 473, 469.
 
 INDEX. 
 
 EMINENT DOMAIN— continued. 
 
 may be exercised by general acts, 487. 
 
 nature of, 479. 
 
 necessity for its exercise, 4G7. 
 
 no contract impaired by it, 466. 
 
 what property may be taken for public use, 488 to 492. 
 
 what is a public use, 492, 499. 
 
 without indemnity cannot be exercised, 473. 
 EMPOWERED. 
 
 how construed, 733. 
 ENGLAND. 
 
 constitution of, 40. 
 
 law of, 26. 
 
 legislature of, 38. 
 
 king's power, 29. 
 
 Magna Charta, 30. 
 
 origin of parliament, 30. 
 
 statutes of, 27, 36, 37. 
 
 how enacted, 27, 28, 30. 
 EPHORI. 
 
 what, 7. 
 EQUITABLE CONSTRUCTION. 
 
 cautions to be observed in, 831 to 836. 
 
 definition of, 814, 815. 
 
 Domat's view of, 824 to 825. 
 
 definite terms must be followed, 836. 
 
 English rule, 821,826. 
 
 Grotius' view of, 816, 823. 
 
 illustrations of rule, 827 to 839. 
 
 must be consistent and not repugnant to the words, 830. 
 
 modern rule of, 819. 
 
 nature of, 816. 
 
 plain meaning of words not to be departed from, 836. 
 
 rules in law and equity the same, 750, 827. 
 
 St. Germain's view of, 824. 
 
 the correction of law, 817. 
 
 Woodesson's illustration, 818. 
 EQUITABLE CONSTRUCTION OF PENAL STATUTES, 839. 
 
 application of rule generally, 840, 852. 
 
 application of rule to acts part penal, 840. 
 
 acts which act on the offender, 841. 
 
 distinction between part penal and part remedial acts, 850. 
 
 divesting an estate, 849. 
 
 nature of penal acts, 839. 
 
 revenue laws and statutes of fraud, 848. 
 EXCEPTIONS. 
 
 how construed, 712. 
 
 121 
 
 061
 
 962 INDEX. 
 
 EXPRESSUM FACIT CESSARE TACITUM, 655. 
 
 EX POST FACTO LAWS, 365 to 375. 
 
 EXTENSIVE INTERPRETATION, 603. 
 
 EXTENT OF LEGISLATIVE AUTHORITY, 236 to 309. 
 
 EXTRAVAGANT INTERPRETATION, 603. 
 
 EX POST FACTO LAWS, 366 to 374. 
 
 adding new punishment or increasing it, 372. 
 
 aggravating a crime, 367. 
 
 altering rules of evidence, 367. 
 
 altering or taking away remedies, 370. 
 
 confined exclusively to criminal proceedings, 370. 
 
 do not extend to civil cases, 366, 369. 
 
 making an innocent act criminal, 367. 
 
 what is an ex post facto law, 366. 
 
 F. 
 
 FALSE DEMONSTRATION. 
 
 does not vitiate an act, 651. 
 FIT PERSON. 
 
 how construed, 734. 
 FORCE OF STATUTES. 
 
 not to be destroyed by construction, 671. 
 FREE INTERPRETATION. 
 
 nature of, 603. 
 
 G. 
 
 GOVERNMENT. 
 
 Athens, 9. 
 
 Crete, 4. 
 
 eastern nations, 3. 
 
 Greece, 5. 
 
 Rome, 2. 
 
 Sparta, 6. 
 
 to be kept in distinct departments, 500 to 528. 
 GRECIAN GOVERNMENT, 5. 
 GROTIUS. 
 
 view of sovereignty, 240, 242. 
 
 H. 
 
 HABEAS CORPUS, 365. 
 HALL, ROBERT. 
 
 rights of government, 249.
 
 INDEX 
 
 HEALTH LAWS. 
 
 constitutionality of, 331. 
 HIGH SEAS. 
 
 definition of term, 719. 
 HISTORY OF LEGISLATION. 
 
 resorted to in construction, 740. 
 HOOKER. 
 
 view of law politic, 239. 
 
 1. 
 
 963 
 
 ILLINOIS. 
 
 bill of rights, 209, 213. 
 
 legislature of, 213, 215. 
 IMMEDIATELY. 
 
 how construed, 734. 
 IMPAIRING OBLIGATION OF CONTRACTS. 
 
 constitutionality of acts, 382, 415. 
 
 acts regulating mode of proceeding, 387. 
 
 acts which do not impair obligation, 408. 
 
 annulling legislative grants, 405. 
 
 contract, definition of, 382. 
 
 contract between states and individuals, 384. 
 
 contract between a state and a corporation, 385. 
 
 changing acts of incorporations, 397. 
 
 changing nature of estates, 412. 
 
 discharging or abrogating contract, 385. 
 
 dissolving marriage contracts, 415. 
 
 extent of constitutional restriction, 382. 
 
 giving value of improvements to tenants, 394. 
 
 includes all contracts at common law, 382. 
 
 includes executory and executed contracts, 384. 
 
 laws executed equivalent to contract, 385. 
 
 laws impairing grants by state, 394. 
 
 must be a contract conferring a right, 383. 
 
 must relate to an object of value, 383. 
 
 mere gift unexecuted not a contract, 384. 
 
 must not, under pretence of regulating a remedy, divest a vested 
 right, 388, 394. 
 
 rendering valid acts of officers, 409. 
 
 statutes of limitation, 406. 
 
 state laws, 389, 394. 
 
 suspending proceedings of corporations, 410. 
 
 subject matter of contract, 384. 
 
 taxing lands exempted from taxation, 404. 
 
 taxing private property for public use, 413. 
 
 where contract not executed and without consideration, 384, 385.
 
 964 INDEX. 
 
 IMPERIAL LEGISLATION, 2. 
 IMPLIED RESTRICTIONS. 
 
 upon powers of congress, 375. 
 INCIDENTS OF STATUTES, 594, 599, 622. 
 INDEMNITY FOR PRIVATE PROPERTY TAKEN FOR PUBLIC 
 
 USE, 468 to 478. 
 INDIANA. 
 
 legislature of, 198, 199. 
 
 power of legislature, 200, 201. 
 INHERENT POWER OF LEGISLATURE, 236, 309. 
 INSPECTION AND HEALTH LAWS, 
 
 constitutionality of, 331. 
 INTENT OF LEGISLATURE. 
 
 derived from aid of common law, 676, 678, 796. 
 
 how collected, 647. 
 INTERNAL COMMERCE. 
 
 defined, 336 to 345. 
 INTERPRETATION AND CONSTRUCTION, 600 to 738. 
 
 •authentic interpretation defined, 603. 
 
 close interpretation defined, 603. 
 
 conformable to general usage, 629. 
 
 derived from the civil law, 634, 639. 
 
 design of, 611, 612, 662. 
 
 doctrinalis, 626. 
 
 extensive interpretation defined, 603. 
 
 extravagant interpretation defined, 603. 
 
 governed by the intent of legislature, 628. 
 
 free and unrestricted interpretation defined, 603. 
 
 limited interpretation defined, 603. 
 
 Mackeldey's view of, 625 to 627. 
 
 nature of, 601, 600. 
 
 not to lead to an absurdity, 631. 
 
 not to be resorted when sense is clear, 627. 
 
 predestinated defined, 603. 
 
 technical terms, 630. 
 
 terms of art, 630. 
 
 uses of, when the language is obscure, 633. 
 
 uses of, when terms are obscure and equivocal, 633. 
 
 uses of, when words used are susceptible of different meaning, 631. 
 
 usualis, 627. 
 
 JEWS. 
 
 character and government, 20 to 22. 
 JUDICIAL INTERPRETATION, 577 to 593.
 
 INDEX. 965 
 
 JUDICIAL POWERS OF THE LEGISLATURE, 500 to 528. 
 
 acts judicial defined, 500. 
 
 acts appointing special administrator, 507. 
 
 acts awarding a new trial, 528. 
 
 authorizing sale of infants' estates, 502, 503, 51-1. 
 
 confirming sales of estates, 513. 
 
 granting a divorce, 515. 
 
 granting an appeal, 518. 
 
 granting a review, 521 to 528. 
 
 making partition, 509. 
 
 must not be exercised by the legislature, 500 to 528. 
 
 must not determine facts, 501. 
 
 Montesque's view, 501. 
 
 not judicial unless facts are ascertained and settled, 504. 
 
 reviving demands barred by statutes of limitation, 517, 518. 
 
 whether judicial or not determined from the circumstances of each 
 case, 517. 
 JURY TRIALS. 
 
 constitutionality of acts affecting this right, 550 to 569. 
 JUST COMPENSATION, 
 
 for private property taken for the public use, 467 to 478. 
 
 how to be ascertained, 473, 468. 
 
 how to be made, 467, 468. 
 
 when it must be made, 473 to 478. 
 
 K 
 
 KENTUCKY. 
 
 bill of rights, 183 to 187. 
 legislature of, 182. 
 
 LAWS IMPAIRING OBLIGATION OF CONTRACTS, 382 to 415. 
 
 annulling legislative grants, 405. 
 contracts defined, 382. 
 
 contracts between states and individuals, 384. 
 contracts between states and corporations, 385. 
 changing acts of incorporation, 397. 
 changing nature of estates, 412. 
 discharging and abrogating a contract, 385. 
 dissolving marriage contracts, 415. 
 extent of constitutional restriction, 382. 
 executory and executed contracts, 384. 
 includes all contracts at common law, 382. 
 includes executory and executed contracts, 385. 
 laws executed equivalent to contracts, 385. 
 laws impairing grants by a state, 394.
 
 966 INDEX. 
 
 LAWS IMPAIRING OBLIGATION OF CONTRACTS— Continued. 
 
 must be a contract conferring a right, 383. 
 
 must relate to an object of value, 383. 
 
 mere unexecuted gift is not a contract, 383. 
 
 must not, under pretence of changing a remedy, divest a vested 
 right, 388 to 394. 
 
 regulating mode of proceeding, 387. 
 
 rendering valid, acts of public officers, 409. 
 
 statutes of limitation, 406. 
 
 stay laws, 389. 394. 
 
 suspending proceedings of corporations, 410. 
 
 subject-matter of contract, 384. 
 
 taxing land exempted by statute, 405. 
 
 taking private property for public use, 413. 
 
 when contract is not executed, and is without consideration, 383, 385. 
 LAW MAKING POWER. 
 
 where vested, 236. 
 LAWS OF ATHENS. 
 
 mode of enactment, 11. 
 
 Anglo-Saxon, 23. 
 
 England, 26, 38. 
 LAW OF THE LAND. 
 
 construction of this term, 722. 
 LEGISLATION. 
 
 Anglo-Saxon, 23. 
 
 Egyptian, 13. 
 
 English, 38. 
 
 nature of, 1. 
 
 origin of, in the United States, 45. 
 
 New Plymouth colony, 56. 
 
 Virginia colony, 45. 
 LEGISLATIVE EXPOSITION. 
 
 what, 442. 
 
 weight of, in construing its own powers, 442. 
 LEGISLATIVE POWER, 107. 
 
 limitations of, 310. 
 
 constitutional restrictions upon, 310. 
 
 nature of, 443. 
 
 over private property, 466 to 500 
 
 to pass retrospective laws, 289, 309. 
 LEGISLATIVE DEPARTMENT. 
 
 powers of, 500. 
 LEGISLATIVE ACTS. 
 
 what, 500. 
 LEGISLATIVE AND JUDICIAL INTERPRETATION, 577 to 593. 
 LEGISLATURE. 
 
 inherent powers of, 236 to 309. 
 LEX EDICTALIS, 1.
 
 I N D E X . 967 
 
 LEX REGIA, 2. 
 
 LIEBER'S INTERPRETATION AND CONSTRUCTION, 600 to 604, 
 610,611. 
 
 LIMITATIONS TO LEGISLATIVE POWER, 310. 
 LIMITED INTERPRETATION, G03. 
 LITERAL INTERPRETATION, 604. 
 LOAF SUGAR. 
 
 construction of this term, 716. 
 LOCAL PURPOSE. 
 
 what, 419. 
 LOCK'S VIEW OF THE NATURE OF GOVERNMENT, 247. 
 LOUISIANA. 
 
 legislature of, 201 to 203. 
 LYCURGUS'S PLAN OF GOVERNMENT, 7. 
 
 M 
 
 MAINE. 
 
 bill of rights, 107, 108, 109, 110, 111. 
 
 legislature of, 111, 112. 
 MARYLAND. 
 
 bill of rights, 159, 167. 
 
 legislature of, 167, 168. 
 MASSACHUSETTS. 
 
 bill of rights of, 112 to 120. 
 
 legislature of, 120. 
 MASSACHUSETTS BAY COLONY. 
 
 body of liberties of, 72. 
 
 change of government of, 68. 
 
 charter of, 64. 
 
 civil and criminal laws of, 74. 
 
 court of assistance of, 68. 
 
 dissolution of charter of, 72. 
 
 fundamental laws of, 69. 
 
 general court powers of, 70. 
 
 governor of, 67. 
 
 history of, 64. 
 
 judgment against, 72, 
 
 laws of, 71. 
 
 legislative power of, 65. 
 
 nature of compact of, 73. 
 
 new governor for, 66. 
 
 quo warranto against, 72. 
 
 statutes of, 77, 78, 79. 
 MAY. 
 
 when construed must, 724 to 729. 
 MEANING OF WORDS. 
 
 when known to govern, 619.
 
 968 INDEX 
 
 MICHIGAN. 
 
 bill of rights of, 227 to 229. 
 
 legislature of, 229, 230. 
 MINOS. 
 
 model of government, 4. 
 MISSISSIPPI. 
 
 bill of rights of, 203 to 206. 
 
 legislature of, 206 to 208. 
 
 legislative power of, 208, 209. 
 MISSOURI. 
 
 bill of rights of, 222 to 225. 
 
 legislature of, 225 to 227. 
 MIXED INTERPRETATION. 
 
 what, 604 to 606. 
 MONTH. 
 
 how construed, 730. 
 
 N 
 
 NATURALIZATION LAWS. 
 
 power of congress over, 351. 
 NEW HAMPSHIRE. 
 
 bill of rights of, 122 to 130. 
 
 legislature of, 130, 131. 
 NEW JERSEY. 
 
 bill of rights of, 151 to 154. 
 
 legislature of, 154 to 158. 
 NEW PLYMOUTH COLONY, 55. 
 
 charter to, 58. 
 
 general court of, 61. 
 
 history of, 56. 
 
 laws of, 59. 
 
 legislation of, 55, 49. 
 
 origin of, 55. 
 
 publication of laws, 62, 63. 
 NEW YORK. 
 
 bill of rights of, 140 to 143. 
 
 legislature of, 143 to 145. 
 NOSCITUR A SOCIIS, 
 
 applied to construction of statutes, 656, 657. 
 NORTH CAROLINA. 
 
 legislature of, 177. 
 
 o 
 
 OBSCURE CLAUSES. 
 
 rule of construction of, 626, 657.
 
 INDEX'. 969 
 
 OBSCURITIES. 
 
 how solved, 618. 
 OHIO. 
 
 bill of rights of, 193 to 198. 
 
 legislature of, 192, 193. 
 OMISSIONS. 
 
 how supplied, 618. 
 OPINION OF ANCIENT WRITERS ON SOVEREIGNTY, 239. 
 " OR." 
 
 how construed, 732. 
 
 PALEY'S VIEW OF THE NATURE OF GOVERNMENT, 236. 
 PARI MATERIA STATUTES, 751. 
 
 acts of the same legislature, 75-5. 
 
 definition of, 751. 
 
 exception of specific things out of general, 766. 
 
 object of considering them, 655. 
 
 one part of a statute by another, 761. 
 
 public statutes in pari materia relating to distinct and independent 
 subjects, 659. 
 
 statutes dictated by some policy, why considered together, 757. 
 
 statutes continued and clauses added, 758. 
 
 the nature of, 751. 
 
 the object of, 753. 
 
 two acts passed at same time and relating to same subject, 752. 
 
 what are statutes in pari materia, 751. 
 
 when other parts of a statute to be considered, 763. 
 
 when general words are inconsistent with particular, 764. 
 
 when one section is a stranger to others, 770. 
 
 when words are susceptible of two meanings, are used in one part 
 generally, in another in a particular sense, 769. 
 PARLIAMENT. 
 
 constituent parts of, 40, 41. 
 
 how summoned, 33. 
 
 omnipotence, 243 to 258. 
 
 origin of, 30, 31. 
 
 powers of, 243. 
 
 restrained by public opinion, 255.« 
 PENAL STATUTES. 
 
 construction of, 854 to 878. 
 
 construed strictly, not enlarged by implication, 874 to 878. 
 
 construction not to be so strict as to defeat intent, 864. 
 
 courts not excluded from intent, 861. 
 
 equitable construction of, 839 to 853. 
 
 general words follow particular cases, 855. 
 
 122
 
 970 INDEX. 
 
 PENAL STATUTES.— Contined. 
 
 general words, how restrained, 855. 
 
 in derogation of common right, 857. 
 
 in defining facts and punishments, 855. 
 
 in favor of particular persons, 859. 
 
 not to be construed as affecting rights of others, 857. 
 
 illustration of preceding rules, 862, 866, 868, 870, 872, 873. 
 
 to be taken strictly or literally, 855. 
 
 illustration of rule, 856, 857, 859, 862, 866. 
 
 Marshall's view of the rule, 865. 
 
 Teason why not extended by construction, 861. 
 
 what are such statutes, 854, 
 
 what is meant when it is said they are to receive a strict conatrae- 
 tion, 861. 
 
 when construed equitably, 839, 860. 
 PENNSYLVANIA. 
 
 bill of rights of, 146 to 151. 
 
 legislature of, 145. 
 PERSIANS. 
 
 character of government of, 17 to 19. 
 PLATO'S VIEW OF GOVERNMENT, 5. 
 POWERS OF CONGRESS, 312. 
 
 as to direct taxes, 318, 
 
 borrow money, 318. 
 
 coin money, 353. 
 
 constitute courts, 357, 
 
 declare war, 357. 
 
 exercise exclusive legislation, 358. 
 
 make laws, 363. 
 
 organize the army, 358. 
 
 over naturalization and bankruptcy, 351 to 353. 
 
 over post offices and post roads, 356. 
 
 punish for counterfeiting coin, 353. 
 piracies, 357. 
 
 promote the arts and sciences, 357. 
 
 regulate commerce, 326. 
 taxes, 321. 
 POWERS OF LEGISLATURE, 
 
 independent of constitution, 236 to 309, 
 
 judicial power of, 500 to 517. 
 
 to grant an appeal, 518. 
 
 to grant a review, 521. 
 PREAMBLE, 
 
 when considered, and its influence in construction, 618, 700-709. 
 PREDESTINATED INTERPRETATION, 
 
 what, 603.
 
 INDEX. 971 
 
 PRIVATE PROPERTY FOR PUBLIC USE, 466 to 500. 
 can only be taken for public use, 478 to 486. 
 private purpose, what, 419. 
 public purpose, what, 418. 
 PROOF OF THE EXISTENCE OF STATUTES, 935 to 953. 
 ancient doctrine, 935, 93G. 
 act in secretary's office, 943 to 953. 
 journal of houses, how far evidence, 943 to 953. 
 statute books printed by authority, when evidence, 936 to 940. 
 cases under two-third bills in New York reviewed, 943 to 953. 
 of foreign statutes and laws, 941 to 943. 
 PROVISO. 
 
 how construed, 712. 
 PUBLIC PURPOSE. 
 
 what, 418. 
 PUBLIC AND PRIVATE ACTS. 
 
 public acts, judicial notice taken of, 913, 915 to 917. 
 
 definition of, 913. 
 
 when deemed public general acts, 913. 
 
 what acts are public, 913. 
 
 concerning government, 913. 
 
 concerning public officers, 913. 
 
 -concerning whole spirituality, 913. 
 
 concerning trade in general, or any specific trade, 913. 
 
 -concerning all subjects, 913. 
 
 concerning all persons generally, though relating to speci- 
 fic things, 913. 
 
 private acts recognized in public acts, 914, 922 to 924. 
 
 public general acts, 914. 
 
 public local acts, 914, 
 
 ■definition of public general and public local acts. 914. 
 
 concerning or affecting the government, 918, 920. 
 
 concerning public revenue, 925. 
 
 need not be applicable to all parts of the state, 917. 
 
 regards the whole community, 917. 
 
 containing provisions of a private nature with penalty to 
 the state, 918. ■ 
 
 illustration of latter rule, 918, 920. 
 
 turnpike acts, 920. 
 
 bank corporations, 921. 
 
 prescribing limits of towns and counties, 924, 925. 
 
 relating to and affecting co-erdinate departments of govern- 
 ment, when enacted in reference to a particular lo- 
 cality, 926. 
 
 made public by express enactment, 927. 
 
 when construed as other private acts, 927. 
 
 bind all persons, 929. 
 
 when construed by other statutes in pari materia, 93.
 
 972 INDEX. 
 
 PUBLIC AND PRIVATE ACTS.— Continued. 
 
 private acts, definition of, 913. 
 
 concerning particular species, or things, or persons, 914. 
 relating to divers particular species, things, or persons, 914. 
 private local acts, 914. 
 
 construed as other private acts, though made public by ex- 
 press enactment, 927. 
 do not bind or affect strangers or persons not named in 
 them, stand on footing of other private contracts, 931. 
 not binding on parties until accepted, 932. 
 exceptions to rule that they do not bind, those not named, 
 
 933. 
 not to be construed by other acts in pari materia, 933. 
 possess no additional weight by being declared public, 927. 
 PUBLIC USE OF POPERTY, 
 
 what, 499. 
 PUFFENDORF'S VIEW OF SOVEREIGNTY, 242. 
 PURVIEW OF AN ACT, 709. 
 
 a 
 
 QUALITIES OF STATUTES, 594 to 599. 
 
 R 
 
 RATIONAL INTERPRETATION, 604. 
 REGULATION OF COMMERCE, 
 
 what, 326 to 351. 
 REPEAL OF STATUTES, 879 to 912. 
 
 directing mode of prosecution by special act, and then general on 
 same subject, 899. 
 
 effect of a repeal of a jurisdictional act, 887. 
 
 effect of upon rights acquired under a statute, 895. 
 
 effect of upon rights acquired by gift under statute, 896. 
 
 effects of upon rights acquired by acts done in violation of it, 896. 
 
 effect of repeal generally, 890. 
 
 effect of acts changing nature of estates, 882. 
 
 effect of revision upon former remedies, 880. 
 
 effect of on vested civil rights, 881, 882. 
 
 effect of upon inchoate rights, 881. 
 
 effect of repeal upon penalties created or given, 892. 
 
 effect of upon statutes restraining rights, 896. 
 
 effect of upon statutes giving rights, 896. 
 
 effects of repeal of repealing acts, 909. 
 
 exceptions to rule that subsequent act repeals former ones, 905. 
 
 by giving an increased penalty, 899. 
 
 by giving a penalty to persons generally, ap.d subsequents acts giving
 
 INDEX 
 
 973 
 
 REPEAL OF STATUTES— Continued. 
 it to party injured, 898. 
 if both may they shall stand together, 879. 
 illustrations of rules, as to effects of repeal upon rights, 882, 883, 
 
 891, 892. 
 by not annulling a right, but giving same right to another, 902. 
 not to be by implication, 879. 
 
 positive enactments not to interfere with pre-existing contracts, 879- 
 proviso saving repeal, 903. 
 qualification of rule that when two acts conflict the latter repeals the 
 
 former, 879. 
 revising a statute to take effect at a future day, 902, 903. 
 revising act embracing all provisions of former act, 904. 
 revising common law, 904. 
 revising act omitting part of act revised, 903. 
 repeal by non-user not allowed, 908. 
 repeals not favored in law, 879. 
 
 rules of civil law respecting contrarient laws, 909 to 912. 
 subsequent act controlling former, 905. 
 statutes modifying a remedy, 881. 
 
 suspension of a statute for limited time not a repeal, 906. 
 when an act enacted in same term as former act is no repeal of an- 
 other by implication, 898. 
 when general provisions made in particular acts passed subsequent 
 
 to general acts, 900, 901. 
 when it imposes a new penalty repeals by implication a different 
 
 penalty, 896. 
 when one act grants a right and subsequent one gives a penalty 
 
 880. 
 when one act gives a penalty and another gives a different one 
 
 896. 
 when one act gives a right and a subsequent one gives a forfeiture 
 
 880. 
 when one action substituted for another, 880. 
 when not manifest intent former act not to control latter, 879. 
 when two acts contrarient latter repeals former, 879. 
 RESTRICTIONS ON LEGISLATIVE POWER, 310. 
 RESTRICTIONS UPON POWERS OF CONGRESS, 364. 
 RESTRICTIONS UPON STATE LEGISLATURE, 376. 
 RESTRICTIVE INTERPRETATION, 608. 
 
 nature of, 608. 
 RETROSPECTIVE LAWS, 
 
 can legislature legitimately pass them, 289 to 309. 
 conclusions upon the subject, 306. 
 constitutionality of, 408, 530 to 550. 
 definition of. 289. 
 doctrine of civil law, 297.
 
 974 INDEX. 
 
 RETROSPECTIVE LAWS— Continued. 
 
 English construction of legislative power in this respect, 291. 
 
 how construed under repealing acts, 879, 887. 
 
 how far sanctioned, 306. 
 
 how far sanctioned by precedents, 300. 
 
 illegality does not depend on constitution, 293 to 297. 
 
 inconsistent with idea of law, 292. 
 
 legislative power to pass retrospective laws, 290. 
 
 limitations upon such laws, 299. 
 
 not countenanced by civil law, 298. 
 
 not sanctioned by construction in England, 301. 
 
 not sanctioned by federal constitution, 302. 
 
 not prohibited by constitution of the United States, 543. 
 
 not within constitutional power of legislature, 540. 
 
 nova constitutio futuris, cj-c. ,291. 
 
 power of legislature to pass ihem, 289, 290. 
 
 remedial acts curing defective deeds, &c, 543 to 550. 
 
 remedial law may be retrospective, 293. 
 
 statutes of limitation, 303, 304. 
 
 statutes not to be construed retrospectively, 679. 
 
 unconstitutional, 292. 
 
 what a retrospective law for decision of civil causes, 531 to 536. 
 
 what acts deemed retrospective, 531. 
 
 what retrospective under the constitution of Tennessee, 536 to 540. 
 REVENUE LAWS, 
 
 construction of, 714 to 721. 
 ROME, 
 
 government of, 2. 
 
 SAVING CLAUSE, 
 
 how construed, 711, 
 SENSE, 
 
 when clear to govern, 619. 
 SOLON'S INSTITUTIONS, 9. 
 SOUTH CAROLINA, 
 
 bill of rights of, 177 to 179. 
 
 legislature of, 177. 
 SOVEREIGN STATE, 
 
 what, 236. 
 SOVEREIGNTY, 
 
 absolute nature of, 237. 
 
 definition of, 236. 
 SPARTAN GOVERNMENT, 6.
 
 975 
 
 INDEX. 
 
 STATUTES, 
 
 controlling force of, 236 to 289. 
 
 forbidding, 623, 910. 
 
 for public good, construction of, 620. 
 
 of England, 36. 
 
 efficacy of, 42, 43. 
 
 in pari materia, 751, 770. 
 
 in restraint of liberty, 621. 
 
 permissive, 623. 
 
 having reference to others, 622. 
 STRICT INTERPRETATION. 
 
 difference between it and large, 605. 
 SUFFETES, 
 
 powers of, 15. 
 
 TAXES, DUTIES, AND IMPOSTS, 317, 
 TAXING POWER OF STATES, 321. 
 TEAS, 
 
 construction of, 715. 
 TECHNICAL TERMS, 
 
 construction of, 630, 679. 
 TENNESSEE, 
 
 bill of rights of, 187, 188. 
 
 legislature of, 188 to 192. 
 THESEUS. 
 
 popular government, 9. 
 TIME, 
 
 construction of, 735. 
 TITLE, 
 
 construction of, 698 to 700. 
 TRADE, 
 
 construction of, 718. 
 TRANSCENDENT CONSTRUCTION, 604. 
 TWO-THIRD BILLS. 
 
 constitutional requirement, 417. 
 
 what a public purpose, 419. 
 
 what a local purpose, 419. 
 
 what a private purpose, 419. 
 
 reasons for author's definition, 421. 
 
 purpose to be public must tend to increase public revenue or enhance 
 
 value of public property, or diminish public expenses, 421. 
 
 not enough that use may be beneficial to public, 421. 
 
 distinction between public purpose and public use of property, 423, 
 424. 
 
 fallacy of different construction, 425, 426. 
 
 precedents sustain author's construction, 426.
 
 976 INDEX. 
 
 cases reviewed of two-third bills, 426 to 438. 
 
 a 
 
 contemporaneous exposition not in conflict with author's construc- 
 tion, 438. 
 
 review of the doctrine of legislative exposition upon its own powers, 
 and controlling force of it denied, 44:2 to 447. 
 
 releases upon condition not sufficient to elude constitutional re- 
 striction, 447 to 449. 
 
 two-third bills creating, &c. corporations, 449 to 465. 
 
 municipal corporation within constitutional restriction, 449 to 460. 
 
 indefinite number of corporations created by one act, 460, 466. 
 
 legislative precedent not entitled to much weight, 444, 447. 
 
 VATTEL'S RULES OF CONSTRUCTION, 627 to 646. 
 VERMONT. 
 
 bill of rights. 131 to 136. 
 
 legislation of, 136. 
 VIRGINIA. 
 
 bill of rights, 169 to 176. 
 
 charter of colony of, 45. 
 
 charter of 1623, 48. 
 
 charter, dissolved in 1624, 48i 
 
 constitution of, in 1610, 46. 
 
 general assembly of 1619, 47. 
 
 government charter to, 47. 
 
 laws of, 47. 
 
 legislature and laws, 51 to 54. 
 
 legislative powers, 43. 
 
 legislative power, how divided, 47. 
 
 political power of, 43. 
 
 state of colony, 48. 
 
 w 
 
 WODDESSON'S VIEW OF LEGISLATIVE POWER, 238. 
 WORDS, 
 
 when clear, interpretation unnecessary, 628. 
 
 unintelligible, how construed, 628.
 
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