;i:^!«a{3fe«w^y«M«^^^j363«^*^ 
 
 
 ^.*u»9'''-m^mm^
 
 O.J. DAVIES 
 
 v/ 
 
 » vi 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 GIFT OF 
 
 James R« Hutter 
 •i;7 Bus. Adm.
 
 
 <r
 
 A GENERAL 
 
 TREATISE ON STATUTES^: 
 
 RULES OF CONSTRUCTI^, ^.r^^^C 
 
 AND THE PROPER BOUNDARIES OF LEGISLATION AND 
 OF JUDICIAL INTERPRETATION. 
 
 By Sir Fortunatus Dwareis, Knt., 
 
 B. A., OXPOBD, F. B. S., F. S. A. 
 
 AVITII AMERICAN NOTES AND ADDITIONS, 
 
 AND ^^^TH 
 
 NOTES AND MAXIMS OF CONSTITUTIONAL AND OF 
 STATUTE CONSTRUCTION. 
 
 A TREATISE ON CONSTITUTIONAL LIMITATIONS UPON THE 
 NATIONAL AND STATE LEGISLATIVE POWER; 
 
 WrXH A CHAPTER ON 
 
 PAELIAilENTAEY LAW AND P.VELIAMENTARY PRWILEGES. 
 
 BY PLATT POTTER, LL. D., 
 
 ONE OF THE JUSTICES OF THE STJPKEME COtTET OF THE 
 STATE OF NEW YOEK. 
 
 ••£)p«77ia t&l kx quce minimum rdlnquit arUirio judicis, optlmus judex qui minimxim sibi 
 — Aphorism, 46, Bacon's Works, vol. vii, p. 148. 
 
 ALBANY: 
 WILLIAM GOULD & SON, 
 
 LAW BOOKSELLERS AXD PUBLISUEKS. 
 lS7n.
 
 CNTK&aD according to act of Congress, in the year one thousand eight hundred and seventy-ona 
 
 By WILLIAM GOULD & SONS, 
 
 in the office of the Librarian of Congress at Washington. 
 
 ^ / 
 
 
 ^s
 
 :^ 
 
 
 rREFACE, 
 
 The republication of the Treatise of " Dwarris on Statutes," re- 
 quires no apology. It is a standard work of the highest authority, 
 acknowledged by all the courts of this country, as well as in 
 England. It was out of print ; could not be suppUed at any price, 
 though greatly demanded. No law library, can be regarded as 
 complete, without it. Indeed, the student, who desu'es to pos- 
 sess a fair knowledge of the jurisprudence of the state and nation 
 of which the statute law forms so striking and material a portion, 
 .\ill remain deficient in the necessary qualifications for an honor- 
 ble profession, if found Avanting in the proper knowledge which 
 this work supplies, of the recognized parts and divisions of stat- 
 utes, and of the different rules of construction and interpretation 
 by which the different characters of statutes are governed. An 
 applicant for admission to the bar of the state, or nation, should 
 be debarred, who shall have advanced no further in the science of 
 the law, than to suppose the rule of interpretation of all statutes 
 was one uniform rule ; that a remedial and a j)GnoJ statute were to be 
 construed alike ; or who could not answer to the distinctions be- 
 tween, prospective and retrospective, public and private, enabling 
 and disabling, enlarging and restraining, affirmative and negative 
 statutes, and to the various other known divisions, as well as of 
 the particular rules of construction applicable to each division ; 
 md, as appHcable also to the various parts of the same statute ; to 
 the title ; the preamble ; the enacting part ; the clauses ; provisos 
 and exceptions ; and to the effect which each part bears upon 
 the whole, and upon its construction. This treatise may therefore 
 be regarded as elementaiy, and the necessary complement to the 
 professional life of the lawyer.
 
 IV PKEFACE. 
 
 This republication, lias preserved all tlie original text of its 
 autlior "vvliicli has application to the division and construction of 
 statutes, and has omitted only such portions of it, as relate exclu- 
 sivelvto the institutions of Great Britain, their origin and historv ; 
 the forms of summoning parliament ; the composition of that body; 
 the degrees of nobility and the powers possessed respectively by 
 each rank and order in that body. 
 
 In the volume here presented, the text of Dwarris will be found 
 distmguished from that of the American author, by being in what 
 is called solid printed matter without quotation marks ; that of the 
 Ainerican additions, by being in open leaded matter. 
 
 A republication of this work in America, would have failed of 
 meeting public expectation had it omitted to add, to it, the Amer- 
 ican authority upon the same subject, or to notice such changes 
 as our different theory of government, and the advance which 
 general legal intelligence has made necessary. He has therefore 
 added, by way of original text and commentary, as well as by 
 notes, what he regards as the American law, in the enactment and 
 construction of statutes. 
 
 Nor could a treatise upon American statutes, approach to any 
 degree of practical use here, without contrasting the power oi 
 enacting statutes in this country with that of. the mother country 
 whose statutes, as well as common law, we have so extensively 
 copied and adopted. To do this, it also became necessary to 
 show the source and extent of the law making power in this 
 country, and to introduce into the work, the effect of that new 
 feature in legislative power, not known in England ; of legislatures 
 restrained and limited in their powers to enact laws by written 
 constitutions, which, are the fundamental, superior and controll- 
 ing authority. It also became necessary to show the effect of laws 
 passed by legislatures, in cases where the legislatures have ex- 
 ceeded the constitutional limits. 
 
 The necessary distinction between statutes enacted by legisla- 
 tures under restricted constitutional power, and those which are 
 not, seemed to call for the American view of the statute construc- 
 tion, as distinguished from tlie English ; and this has been at- 
 tempted in this work. First, by a limited commentary upon the 
 theory of American constitutional governments. Second, upon the
 
 PREFACE. V 
 
 limitations and restraints upon the legislative power ; and, Third, 
 upon the rights, immunities and privileges of the citizen, secured to 
 him by these written constitutions, national and state. 
 
 These are divided into appropriate chapters, containing the 
 rules recognized in American jurisprudence, for the protection, as 
 well as the hmitation of the.constitutional-securities of the citizen. 
 
 The hmits of this work would not admit of an elaborate com- 
 mentary upon the national constitution, hke that of Justice Story, 
 in two volumes ; nor one extended enough to embrace an equally 
 elaborate treatise upon tlmiy-six several and vaiyiug state constitu- 
 tions, by showing the disparities between them, and the differences 
 of state pohcy and jurisprudence under them respectively ; but it is 
 beheved that the work is comprehensive enough, with the refer- 
 ences it contains to judicial decisions and to standard legal trea- 
 tises of established authority, to make it a convenient guide to the 
 student Avho desires to extend his knowledge of constitutional law, 
 and their limitations ; to inspire him to seek the more elaborate 
 and profound treatises upon the same subjects ; and to present in 
 a brief space, such elementary constitutional principles as are 
 common to all the state governments, as well as to the national, 
 iu their protection to the citizen. 
 
 In domg this, the author has endeavored, as a general rule, to 
 state established principles and adjudications, rather than his own 
 opinions of the law ; and he has not omitted to avail liimself to 
 some extent, of the views of those whom he regards as the ablest 
 of jm-ists, commentators and authors that have presented their 
 o^vTi views to the world. To Marshall, Kent, Story, and others, 
 as jurists and authors ; and including Smith, Sedgwick and Cooloy 
 as writers ; to a greater or loss extent upon the same subjects, he 
 is indebted for many of his views contained in this work, wdiich, 
 in some respects, may be regarded as an abridgement of the more 
 elaborate treatises ; in other respects, while he has ventured to 
 differ in some particulars from those authors, he has not done so 
 without diffidence, nor without support, by reference to the opin- 
 ions of others, whose authority he has cited to that end. Neither 
 the subject of construction of statutes, nor that of constitutional 
 power and limitations, has yet been exhausted by what has been 
 wTitten thereon. It is an extended field ; and each day, tlurough
 
 vi PREFACE. 
 
 our courts, new views of construction, new rules of application, 
 and new developments of constitutional power, or of restriction, 
 are judicially promulgated; so that new questions are arising, 
 winch, if they do not absolutely demand new treatises on the same 
 subject, will at least present temptations to other "mriters, to enter 
 the same jEield. 
 
 There has also been added to this work, a chapter on parlia- 
 mentary law, including parliamentary, or legislative privileges. 
 We have no elementary, or other treatise upon, or applicable to 
 that subject in this state, except a small compilation from Jeffer- 
 son's manual and from the practice of legislative bodies, containing 
 rales of proceeding in the legislature as to the order and govern- 
 ment of the two houses, and the rights, pri\aleges, and duties of 
 the President of the senate, the S23eaker of the house, and to the 
 members of each house as among themselves, in the transaction of 
 legislative duties, called " Croswell's Manual." As is claimed, 
 and admitted, the common law of parliament, including the law of 
 legislative privilege, in the state of New York, is almost identical 
 with that of England, and has been, ever since the day of the stat- 
 ute of 13 Geo. 3, of which, the Eevised Statutes of this state upon 
 the same subject are substantially a transcript. He has therefore 
 briefly but carefully compiled from the most authentic sources, the 
 modern Enghsh common law of the two houses of parliament, which 
 is beheved to be the law in force here ; so far as the same can be 
 made applicable to our system. To demonstrate that modern Eng- 
 lish parHamentary law is now identical wdth that of this state, we 
 have, in that chapter, shown the ancient, as well as the modern, 
 and the repudiation of the former, subsequent to the day of the 
 statutes which regulate it, and have cited as authority, the bold 
 and independent adjudications of the judiciary, as well as parlia- 
 ment itself, agamst these ancient parliamentary assumptions. 
 
 If an apology is needful for the imperfections of this work, it 
 may be stated that the whole labor has been performed, in such 
 leisure hours during a period of less than two years, as he has been 
 able to snatch from most pressing official duties, and even those 
 hours, greatly interrupted by answering to the public demands. 
 He cannot therefore hope to have escaped the commission of errors, 
 nor to have avoided defects.
 
 TREFACE. ^n 
 
 In the full belief, that the republicatiou of the work of a standard 
 autlior, will contribute to the diffusion of knowledge, and to public 
 good ; and in the hope that the other topics discussed, may con- 
 tribute something to the same end, and, that even fair criticism, 
 may discover in the work, sufficient of practical utility to justify ita 
 publication, is the ardent wish of the author. 
 
 Schenectady, June, 1871.
 
 CONTENTS. 
 
 CHAPTEB I. 
 
 PAGE. 
 Of statutes in General; their Definition, Origin, Source of 
 Authority. History- of the English System of Einactment. 
 Omnipotence of Parliament in that regard. Limitation of 
 American Legislative Power. - - - _ _ 33 
 
 CHAPTEPt II. 
 
 Of the General Interpretation of Statutes. Pubhc and Pri- 
 vate Statutes. Their Divisions. How they are Authenti- 
 cated. Power of Enacting Statutes. Legislative Power ; 
 its Eestrictions and Incidents. Who is to interpret them. 48 
 
 CHAPTER ni. 
 
 Of the Division of Statutes. Powers of the dififerent depart- 
 ments of Government in their Enactment and Intert^reta- 
 tion. The EngUsh System. The American System. - G8 
 
 CHAPTEPt lY. 
 
 Of the Form of Statutes. Their various parts — Title, Pre- 
 amble, Enacting Clauses. The ejBfect of each. Their m- 
 tent, how obtained. The effect of Words. Of their repeal. 
 Effect of Saving Clauses and of Provisos. - - > 99 
 
 CHAPTER Y. 
 
 Of the Qualities, Incidents and General Rules and Maxims 
 of Intei-pretatiou of Statutes. Rules of Dwarris. Rules 
 and Maxims of Yattel. Rules of Puffendorf. Rules and
 
 X CONTENTS. 
 
 Maxims of Grotius. Eules of Eutlierford. Eules and 
 Maxims of Domat. And American Rules. - - - 121 
 
 CHAPTER YL 
 
 Of the Exceptions to General Rules of Constniction ; and the 
 manner of pleading and taking advantage of particular 
 Statutes. Of the Repeal of Statutes, and its effect and 
 accidents. Effect of Prohibitory Statutes. Retrospective 
 Statutes, Ex post facto Laws. Time of tlieh taking effect. 147 
 
 CHAPTER YII. 
 
 Of General, Qualified and Particular Rules relating to the 
 Construction of Statutes. Constniction of Words. Affirm- 
 ative and Permissive Words. Declaratory Words. Di- 
 rectory and Imperative Statutes. Affirmative and Nega- 
 tive Statutes. Remedial Statutes. How Particular Stat- 
 utes are to be construed. What is Equitable Constniction. 
 Penal Statutes. Strict Construction; and Exceptions to 
 Strict Construction. - - - - - - - 173 
 
 CHAPTER VIIL 
 
 Of Particular Rules of Construction applicable to distinct 
 parts of Statutes — Title, Preamble, Clauses, Provisos. Ju- 
 dicial Exposition of the meaning of particular Words and 
 Passages to be found in Legislative Acts. Local, Particu- 
 lar and Special Acts. Statute Powers and Remedies. - 2G5 
 
 CHAPTER IX. 
 
 Of the Boundaries of Legislation, and of Judicial Interpreta- 
 tion sought to be ascertained. The instances of the exercise 
 of this branch of Judicature in the English and Erench 
 Courts re\icwed. Of Legitimate Construction, and Inter- 
 pretative Legislation irrespective of Constitutional Restric- 
 tions. History of Jurisprudence; its Power; distinguished 
 from Legislation. History of the Code Napoleon. Dis-
 
 CONTENTS. XI 
 
 cours Preliiiiiuaire. French JuiispruJonce. American 
 Theory. English, French and American Jurisprudence. 29G 
 
 CHAPTER X. 
 
 Of ^bnericau Constitutional Power. The DLstiibution of the 
 Sovereign Power into three Dei^artments. The Indepen- 
 dence of each Department of the others. The Functions 
 of each Department in the Administration of the Law. 
 What is Sovereignity. Where it resides in American 
 Constitutional Governments. Of Constitutional and Statute 
 Powers. Powers of the several Departments. Powers of 
 the Government, and the Eights of the Citizen. The hmi- 
 tations to Constitutional Power. Who determines tliis 
 Power. - . _ . 330 
 
 CHAPTER XL 
 
 Of the Limitation of Constitutional Power in taldug Private 
 Property for Public LTses, under the PJght of Eminent Do- 
 main. -___ 372 
 
 CHAPTER Xn. 
 
 Of the Constitutional Authority to take Private Property for 
 Pubhc Purposes under the Taxing Power. - - - 402 
 
 CHAPTER XIII. , 
 
 Of the 'Constitutional Protection, that Life, Liberty and Prop- 
 erty be not taken ■without Due Process of Law. What is 
 included in Due Process of Law. - _ _ _ 428 
 
 CH^iPTER XIV. 
 
 Of the Police Power of the Govermncnt under State Consti- 
 tutions, by which Piivate Property may be taken for the 
 benefit of others. From what source this power is derived. 
 By whom this power may be regulated. And what it in- 
 cludes, and what is not included. _ - _ _ 444
 
 ni CONTENTS. 
 
 CHAPTER XY. 
 
 Of Constitutional Protection to Personal Property. Due 
 Process of Law. Statute Eemedies. Bankrupt Laws. Im- 
 pairing Obligation of Contracts. _ _ _ _ 4.QQ 
 
 CHAPTER XVL 
 
 Of the Constitutional Protections to Personal Liberty. Ha- 
 beas Corpus. Power of Government over Personal Lib- 
 erty, Husband and Wife. Parent and Child. Guardian 
 and Ward. Master and Apprentice. Master and Servant. 
 Schoolmaster and Pupil. Principal and Surety. Creditor 
 and Debtor. - - - 493 
 
 CHAPTER XYII. 
 
 Of Constitut**>nal Protection to the Person of the Citizen other 
 than Personal Liberty, including Rights and Immuni- 
 ties of the Citizen. Quartering Soldiers in Private Houses. 
 Unreasonable Searches and Seizures. Accusation and 
 Trial for Crime. Excessive Baih Eines. Cruel and un- 
 usual Punishment. The Right to Eree Discussion and Pe- 
 tition. The Ereedom of Speech and of the Press. The 
 Eree Exercise of Religious Opinion. - - - - 525 
 
 CHAPTER XVIII. 
 
 Of Parliamentary Law, and of the Privileges and Incidental 
 Powers of Legislative Assembhes, including Breaches of 
 Privilege and Legislative Contempts. Who may be held 
 liable therefor. American Yiew of the Law of Privilege of 
 England, and of the State of New York. _ . - 566 
 
 CHAPTER XIX. 
 
 Of Constitutional Interpretation. American Rules and Max- 
 ims for Constitutional Construction ; and of Constitutional 
 Powers. --------- 654:
 
 TABLE OF CASES 
 
 EEFEERED TO IN THIS VOLUME. 
 
 AI)leTnnn v. Booth, 332. 
 Adams V Kivers, 394 
 
 " V. Ilanoroft, 190. 
 
 " Y. Field, 27-1. 
 Adams & Lambert's Case, 287. 
 Admiral GrilUn's Fisli Pond Case, G18. 
 Albany Northern IIK. Co. v. Browuell, 
 
 383. 
 Albee v. May, 79. 
 Alexander V. Maj-or, 19L 
 Almy V. Harris, 275. 
 Amis V. Smith, 353, 35-i. 
 Andrews v. United States, 245. 
 Anthony v. Cardigan, 227. 
 Andover, A'c, Turnpike v. Gould, 275. 
 Ankrim's Case, 158. 
 .Vrcher v. Bokeuham, 189. 
 Armstrong v. Carson's Executors, 3G0. 
 Ashley's Case, 111. 
 Ascough's Case, 152. 
 Attorney General v. Panter, 1 70. 
 
 " "V. Pougett, 172. 
 
 " V. Staggers, 252- 
 Atkins V. Kiujian, 22 !• 
 Atchison v. Everitt, 261 . 
 Atwater v. Woodbridge, 478. 
 Austin V. Stevens, 1G5. 
 
 B 
 
 Barn v. Cervallo, 170. 
 
 Bank of Savings v. Collector, 188. 
 
 Bailey v. Murin, 100. 
 
 Bank of Hamilton v. Dndly, 19G. 
 
 " of U. S. V. Daniel, 196, 346. 
 
 " of U.S. V. Lee, 240. 
 ]5arnes v. Badger, 223. 
 Baring V. Erdman, 203. 
 liarnard v. Vitch, 224. 
 Barber v. Dennis, 250. 
 B.irrell v. Darlington & Stockton, BE. 
 
 Co., 257. 
 Bassett v. Carlton, 275. 
 Barnes v. Cro'we, 289. 
 
 Barron v Maj-or of Baltimore, 351. 
 Baxley v. Linah, 359. 
 Balfour v. Chew, 359. 
 Baldwin v. Mayor of N. Y., G2. 
 Bank of Augusta v. Earle, 355, CO. 
 
 " " Chenango v. Brown, G2. 
 
 " " Utica V. Smedes, 53, 
 BallanHne v. Golding, 94, 98. 
 Bassett v. United States, 70. 
 Baker v. Lovett, 92. 
 Barrington's Case, 5G. 
 Baley v. llampacker, 1G3. 
 Barker v. Redding, 108. 
 Bates V Yoorhees, 149. 
 Baker v. Field, 359. 
 Bank of Alabama v. Dalton, 360. 
 
 " of Atigusta V. Earl, 361. 
 
 " of Rome v. Village of Rome, 426, 
 Baker v. Johnson, 395. 
 Barron v. The Mayor, 400. 
 Baker v. City of Boston, 451. 
 Bank of Columbia v. Okely, 4C9. 
 Baldwin v. Hale, 476. 
 Bachelder v. Bachelder, 482. 
 Barbour v. "Walls, 359. 
 Barber v. Root, 482, 483. 
 Bates V. Delavan, 485. 
 Beals V. Hale, 183. 
 Beach v. Viles, 196. 
 Bell V. Morrison, 196 
 Beers v. Haughton, 196, 197. 
 Beebe v. Griffin. 205. 
 Beauregard V. New Orleans, 196. 
 Bell V. The Hull & Selby RR. Co., 258. 
 Bennett v. Daniel, 218. 
 Beard v. Rowan, 108. 
 Beale v. "NVoodhull, 79. 
 Bentty v. Knowler, 55, 58, 
 Beebe V. State, 79. 
 Bell v. Morrison, 148. 
 Bennett v. Boggs, 424. 
 Beebe v. GrifKu, 144. 
 Beazely v. Beazely, 96. 
 Beekman v. Saratoga & Schenectady EB, 
 
 Co., 375. 
 Bennett v. Boyle, 383. 
 Bellinger v. N. Y. Central RR. Co. , 393. 
 Bennett v. Boggs, 80.
 
 XIV 
 
 T.\ELE OF CASES. 
 
 Bench v. Newbury, 431 . 
 
 Beuedict v. Vauclerbilt, -iGl. 
 
 Jieunett v. Daniel, 260. 
 
 Beuvon v. EveljTi, 615. 
 
 Bi-ssell V. Edwards, 350. 
 
 Biddis V. James, 359. 
 
 Bigg V. Commonwealth of Penn., 057. 
 
 Ulanchard v. Eussel, 60. 
 
 " V. Spraguc, 145, 183. 
 " V. Russell, 361. 
 Wleecker v. BaUow, 412. 
 Bloom V. Burdick, 222, 224. 
 
 " V. Richards, 466. 
 Bloomer v. StoUy, 157. 
 Blodgettv. Jordan, 359. 
 Bloxam Assignee v. Elsee, 124. 
 Blue V. McDuffee, 108. 
 Bloodgood V. IMohawk & Hudson RR. 
 
 Co., 362, 391, 392. 
 Bloodgood V. M. & H. RR. Co., 376, 415. 
 Bognrdus v. Trinity Church, 43, 55, 274. 
 Boyd V. Barringer, 165. 
 Bowen v. Lease, 155, 156. 
 Borrodaile v. Hunter, 197. 
 Bonham's Case, 197. 
 Bonaparte v. The Camden & Amboy RR. 
 
 Co., 417. 
 Borden v. Fiich, 482. 
 Bole V. Horton, 241. 
 Boyuton's Case, 235. 
 B>i- yle V. Arlege, 354. 
 Bradshaw v Rodgers, 390. 
 Bradley v. Heath, 542 . 
 Bradshaw v. Heath, 482. 
 Brashear v. "West, 196. 
 Brewer v. Blower, 81. 
 " V. Harbeck, 283. 
 " V. Blougher, 183. 
 Brisham v. Peabody, 224. 
 Bristol V. Newch&stcr, 37. 
 Brown v. County Commissioner, 73, 
 
 155. 
 Brown V. Buzan, 111. 
 
 " v. Pxiriy, 144, 150, 157, 257. 
 " V.Wright, 179. 
 " V. State of Maryland, 460. 
 Brunson v Kenzie, 472. 
 Bronson v. Kinzie, 472. 
 Brvant v. Hunters, 360. 
 Brunell v. Waide, 200. 
 Brace V. Schuyler, 167. 
 Burnham v. Acton, 106. 
 Butler V. Palmer, 163, 415. 
 Buffalo Plank E. Co. v. Commissioners, 
 
 220. 
 Buford V. Hickman, 359. 
 Butler V. Palmer, 362. 
 Buffalo & N. Y. C. RR. Co. v. Brainard 
 
 376. 
 Buckingham v. Smith, 379. 
 Bushnell's Cfl,se, 531. 
 B'oxLingame v. Burlingame, 544. 
 
 Buckner v. Finlay, 346. 
 Burnside v. Whitney, 244. 
 Butler & Baker's Case, 237, 289. 
 Bm-dett v. Abbott, 624, 630, 631. 
 Byron v. Sudbury, 228. 
 
 
 
 Calder v. Bull, 79, 80, Si, 165, 168, 370. 
 Calkin v. Baldwin, 392. 
 Calvert v. Makepeace, 159. 
 Call V. Hagger, 474. 
 Calkins v. CalkLas, 163. 
 Campbell v. Claudius, 196, 354. 
 Camden v. Anderson, 159. 
 Cancemi v. The People, 531. 
 Candee v. Heyward, 231. 
 Caniff V. The Mayor, &c., 223. 
 Canheld v. Ford, 284. 
 Carroll v. Olmstead, 488. 
 
 " V. Carroll, 167. 
 Caswell V. Allen, 223. 
 Cases of Leases, 293. 
 Case of Leases, 197. 
 " of Sheriff of Middlesex, 023. 
 " of Cope and Others, 025. 
 " of Howes, 158. 
 Cass V. Dillon, 188. 
 Castle's Case, 161. 
 Cates V. Knight, 260. 
 Catlin V. Underbill, 359, 360. 
 
 " V. Gunter, 149, 
 Catimer v. Sir E. Knatchbull, 644- 
 Cathcart v. Robinson, 42 . 
 Cawdrie's Case, 238. 
 Central Bridge Corporation v. City of 
 
 Lowell, 378. 
 Charleston v. Benjamin, 466. 
 Champlin v. Champlin, 289. 
 Cheval v. Nichols, 242. 
 Chicago City v. Robbins, 354. 
 Christie Benton's Case, 043. 
 Christy v. Pridgion, 143. 
 Chase v. N. Y. Cent. RR. Co., 203, 246. 
 " V. United States, 200. 
 " V. Chase, 482. 
 Chester v. Chester, 192. 
 Chegary V. Jenkins, 113. 
 Churchill V. Crease, 110, 117, 160, 273. 
 Citv of Bridgex^ort v. Housatonic RR. 
 
 Co., 426. 
 Cisco V. Roberts, 403. 
 City of Galena v. Armey, 220. 
 Clark V. Citv of Rochester, 421. 
 " V. Smith, 353. 
 " V. City of Utica, 272. 
 " V. Clark, 482. 
 " V. Bynum, 108. 
 " V. Crane, 225. 
 Clayton's Case, 294. 
 Cliquot Champagne, 251.
 
 TABLE OF CASES. 
 
 X7 
 
 Cochrane v Van Surlay, 487, 489. 
 Coe V. Shiiltz, 44r,. 
 Coffin y. Coffin, 007. 
 " V. Coffin, 51G. 
 Cohens v. Virginia, 198, 34G, 057, 074. 
 
 " V. Goss, 224. 
 Tolt V. Eves, 433, 435. 
 Columbian Manufacturing Co. v. Van 
 
 Derpool, 150. 
 Commonwealth v. Tewksbury, 4.54, 
 V. Alger, 448, 453. 
 " V. McWilliams, 424. 
 
 V. McCloskey, 424. 
 V. Hartman, 308, 424. 
 V. Hartwell, 274, 
 •' V. Elandiug, 540, 548. 
 
 «« V. Kueeland, 500. 
 
 " V. Baird, 517. 
 
 «« V. McCloskev, 80, 424. 
 
 V. Kimball, 202. 
 Commercial & Farmers Bank of Balti- 
 more V. Patterson, 358. 
 Commissioners v. Keith, 204. 
 Company of Cutlers, v. Eustin, 158. 
 Cone V. Bolles, 253. 
 Constanline v. Van Winkle, 108. 
 Conley v. Palmer, 100. 
 Cook V. Board of Police, 157. 
 
 " V. Moffiit, 475. 
 Tool V. Smith, lo5. 
 < lop.r V. Tilfair, 14-5. 
 V. Cooper, 483. 
 •' V. Shultz, 440, 455. 
 " V. Stone, 550. 
 •' V. Barber, 550, 
 " V. Greely, 550. 
 Corbet's Case, 234. 
 County Judge of Shelby Co. v. Shelby 
 
 EE.'Co., 419. 
 Corwin v. Merritt, 224. 
 Craig V. Brown, 190, 358, 359, 300. 
 Creswell v. Wittenoom, 108. 
 Crespigny V. Witteboon, 207, 269, 271. 
 Crittenton v. Wilson, 275. 
 Crossly V. Arkwright, 190. 
 Crowell V. Crane, 181. 
 Crosby's Case, 022. 
 Cruger v. Cruger, 255. 
 
 V. The Hudson EE. Co., 397. 
 Cummings v. Missouri, 108. 
 Cunningham v. Cassidy, 222. 
 Cubir V. Douglass, 400 
 
 D 
 
 Dash V. Van Kleeck, 09, 150, 107. 
 Davis V Fairbarn, 71, 155. 
 Darlington v. Mayor of New York, 148. 
 Dauks V. Quackenbush, 104. 
 Davison v. Johannot, 105. 
 V. Gill, 228. 
 
 Davis V. O'Farrell, 167. 
 
 " V. Mason, 353. 
 Dartmouth College Case, 430. 
 
 " V. Woodward, 408, 477. 
 Daws V. JIason, 190. 
 Davy V, Warren, 199. 
 D'Arcy v. Ketchum, 359, 300. 
 Dewolfv. Eaband, 190. 
 Devarrarique v. Fox, 371, 375. 
 Denny v. Mattoon, 492. 
 Denning v. Smith, 224. 
 Denn Dem Manifold v. Diamond, 255, 
 Ditson v. Dit^on, 483, 480. 
 District Township v. Dewolf, 224. 
 Diblee v. Turnip, 197. 
 Dorsey v. Dorsey, 483. 
 Dorrasseau v. United States, 202. 
 Douglas V. Eyre, 199. 
 Donne v. Parkhurst, 170. 
 Dougherty v. Snyder, 00. 
 Dodge v. Woolsey. 83. 
 Doe Dem Birthwhistle v. Vardcll, 97, 
 
 110. 
 Downing v. Eugcr, 140. 
 Dow V. Norri.s, 104. 
 Downell v. Columbian In.s. Co., 193. 
 Donaldson v. Wood, 203. 
 Douglas V. Eyre, 292. 
 Doe Dem Myatt v. St. Helena EE. Co., 
 
 294. 
 Doe Dem Tennyson v. Yarmouth, 295. 
 Dodge V. W oolsey, 330, 346, 351. 
 Donohoo V. Erannan, 359. 
 Dominus Eex v. Keller, 517. 
 Dole V. Lyon, 551. 
 Donne v. *Walsh, 012. 
 Drawbridge Co. v. Shepherd, 58. 
 Drummond v. Drummoud, 97. 
 Dubois V. McLean, 189. 
 " V. Hepburn, 240. 
 Dudley v. Mahew, 275. 
 Dutfy V. The People, 441, 442. 
 Dweily V. D welly, 244. 
 
 E 
 
 Earl of Wendrelsea v. Garrety, 97. 
 
 " " Aylesbui-y v. Patterson, 189. 
 East Hartford v. East Hartford Brie 
 
 Co., 196. 
 Edrich's Case, 207. 
 Edward v. Darley, 189. 
 Ely V. Ilolton, 1(55. 
 Elmendorf v. Ferry, 19G. 
 
 V. Tavlor, 197, 353. 
 Elliott V. PearsoU, 342. 
 Elmore v. Mills, 359. 
 Ennris v. Smith, 59. 
 Emerich v. Harris, 343, 436. 
 Embury v. Conner, 376, 399. 
 Englisbbee v. Helmuth, 01.
 
 XVI 
 
 TABLE or CASES. 
 
 Erb V. Sc'.tt. 3G0. 
 Ervine's Ai)]3eal, 480, 490, 
 Evsms, q. t v. Stephens, 288. 
 txi)jirte, Bollman & Swartout, 341, 077. 
 Povlill, 359, 
 Hall, 273. 
 Hill, 248. 
 Garland, 163. 
 " Diyden, ISJ. 
 " Newman. 61. 
 
 Heath, 223. 
 " Common Conncil of Albanj', 
 224. 
 Eyston v. Studd, 175, 233, 234, 236. 
 
 F 
 
 Fail-child v. Guinu, 164. 
 Falconer v. Campbell, (il. 
 Farauru v. Black Comal, 145. 
 Farmers' & Mechanics' Bank v. Jarvis, 
 
 53. 
 Ferguson v. Harwood, 360. 
 Fenton v. Garloch, 485. 
 Fellows V. Clay, 265. 
 Ferry v. Bank'of Cent. N. Y., 283. 
 Fish'v. Fisher. 247. 
 Fire Department v. Noble, 425. 
 i'isher v. Haldimau, 353. 
 Field V. Gibbs, 360. 
 Fletcher v. Peck, 82, 61, 02, 370, 390, 
 
 423, 478. 
 Foster's Ca.se, 72, 110, 117, 157, 240, 287. 
 Foster V. Essex Bank, 400. 
 
 V. Fiiller, 514. 
 Forth V. ( 'hainnan, 194. 
 Fort V. Bench, 272. 
 Fowler v. Challerton, 172. 
 Foxcraft v. Mallett, 198. 
 Frary v. Frary, 482. 
 Franklin Glass Co. v. "White, 275. 
 Freeman v. Kobiuson, 198. 
 French V. Braiuton Manufac. Co., 380. 
 Fry V. Bennett, 550. 
 
 G 
 
 Gardner V. Collins, 190, 353. 
 
 V. Newburgh, 382, 387, 391, 
 392. 
 Garrett v. Beaumont, 165. 
 
 " V. Stockton, 167. 
 Gelpeche v. City of Dubuque, 145. 
 Gibbons v. Ogdens, 462, 662, 670, 071. 
 Gilbert v. Th'e People, 544. 
 
 " V. Fletcher, 519. 
 Gillette V. Jones, 380. 
 
 " T. Moody, 74. 
 Gilmore v. Philadelphia, 464. 
 
 " V. Shuter, 103. 
 
 Gildwit v. Gladstone, 250. 
 Giezy v. C. W. & Z. E. R. Co., 380. 
 Gleasou v. Gleason, 483. 
 Gloucester Ins. Co. y. Younger, 354. 
 Golden v. Rice, 423. 
 
 " T. Prince, 352. 
 Goold T. John, 55 . 
 Goshen v. Stonnington, 80. 
 Gore V. Brazier, 202. 
 Gordon v. Cheltenham RR. Co . 258. 
 Governor V. Meredith, 445. 
 Grant v. Courter, 426. 
 Gray y. Shilling, 256. 
 Green v. Biddle, 472. 
 
 " V. Sarmi'ento, 360. 
 
 " V. Neal, 196, 354. 
 Greenlaw v. Greenlaw, 482. 
 Greenough v. Greenough, 70. 
 Gregory's Case, 110, 117, 274, 275. 
 Gregnon's Lessee v. Astor, '34'^y. 
 Griffith V. Indiana & Ohio R R. Co., 
 
 42(;. 
 Griesby's Case, 292 . 
 Gross V. Ogilive, 253. 
 Grantham v. The^ile, 254. 
 Guy V. Felton, 250. 
 Gurool V. Lafferty, 198. 
 Gwinn v. Burrell, 207. 
 
 H 
 
 Harrington v. The People, 224. 
 
 Hallett V. Novion, 249. 
 
 Hardman v. Whittacre, 252. 
 
 Hamilton v. Dudley, 353. 
 
 Hathaway v. Rooch, 354. 
 
 Hampton V. McConuell, 358, 300 
 
 Hay V. Cohoes, 381. 
 
 Hamjiden v. Commissioners, 400, 
 
 Hanson v. Vernon, 420. 
 
 Hart V. Mayor of Albany, 451, 454 
 
 Hanover v. Turner, 482, 483. 
 
 Harding v. Alden, 483. 
 
 Harrison v. Harrison, 483. 
 
 Harbeck v. The Mayor, &c., 157. 
 
 Hare v. dHare, 483. 
 
 Hartcanv. Hartcan, 483. 
 
 Hancock v. Hamstead, 513. 
 
 Harp V. Osgood, 522. 
 
 Hastings v. Liish, 546. 
 
 Halbert v. Skyles, 53. 
 
 Hadden v. Collector, 102. 
 
 Hart v. Cleis, 144, 183. 
 
 Hackley v. Spragiie, 145. 
 
 Harvey v. Tyler, 14.5, 146. 
 
 Hartford v. United States, 155. 
 
 Harrington v. Trustees of Rochestei 
 
 156. 
 Hartungv. The People, 157. 
 Hartford Bridge Co. v. Union Ferry Co., 
 
 179.
 
 T.VELE OF CASES. 
 
 XTll 
 
 PTadflpn v. Collector, 211. 
 
 Hatch V. Bentou, 223. 
 
 Henderson v. Grifliu, 3"i3, ly^. 
 
 Huywiird v. :Mayor of N. Y., 37G, O'Jo. 
 
 Hepbnrn v. Curts, 4U0. 
 
 Ilej,'(u-iuau V. West RR. Corporation, 
 4 ;')(). 
 
 Huald V. The State, 15S. 
 
 1 [eyden's Case, 187. 
 
 Head V. Ax'niorv, 223. 
 
 Herrick v.BorJt, 282. 
 
 Hindu V. Vallier, 353, 354. 
 
 Hill V. The People, 443. 
 
 Hosnier v. Loveland, 514. 
 
 Hoar V. Wood, 545, 540. 
 
 Hotchkiss V. Oliphant, 550. 
 
 Uodge.s V. Moore, 647. 
 
 Houston V. Moore, 6G9, 671, 072. 
 
 Hollowell V. Corporation of Bridge- 
 water, 117. 
 
 Holme.s v. Carley, 144, 203. 
 
 How V. Peckham, 145, 185. 
 
 Howard V. State, 158. 
 
 Ho])kins v. Lndlow, 359. 
 
 Hoke V. Henderson, 399. 
 
 Holloway v. Sherman, 400. 
 
 Howell V. City of Buffalo, 400, 40G. 
 
 Houston V. Moore, 464. 
 
 Hopkins v. Hopkins, 482. 
 
 Hollister v. Hollister, 483. 
 
 Howard V. Thompson, 542. 
 
 Hunt V. Bennett, 542. 
 
 iliilfv. Bennett, 549. 
 
 Ilubbell v. Weldon, 224. 
 
 Hunter v. Potts, 94, 98. 
 
 Iluvdkaper V. Burns, 119. 
 
 Hudson V. Mayor of N. Y., 220. 
 
 Hudler v. Golden, 231. 
 
 Hubbard V. Johnston, 251. 
 
 Hutchinson v. Manchester, &c., Hall- 
 way Co., 271. 
 
 Hubbard v. Northern EE. Co., 332. 
 
 Huntv. Lyle, 359. 
 
 Iloi^kins V. Ludlow, 359. 
 
 Hull V. Hull, 483. 
 
 HubbeU v. Hubbell, 483. 
 
 IngcrsoU v. Skinner, 24G. 
 Ingram v. Foote, 54. 
 lumanv. Foster, 552. 
 
 Jaekscu v. Bradt, 74, 275, 
 V. Gilchirst, 108. 
 V. Lewis, 126, 143, 208. 
 " V. Collins, 144. 
 
 V. Van Zandt, 145. 
 
 3 
 
 Jackson v. Colesworth, 254. 
 " V. Chew, 353. 
 
 V. The People, 433. 
 " V. Jackson, 482. 
 Jacob V. United States, 272. 
 Jacobi V. City of Louisville, 390. 
 Jarvis v. Jarvis, 163. 
 
 " V. Hatliaway, 544. 
 Jefferson Br. Bk. v. Shelby, 198, 352. 
 Jesson V. Wright, 199. 
 Jeukinson v. Thomas, 248. 
 Jones V. Walker, 371. 
 " V. Axen, 54. 
 " V. Van Zandt, 354. 
 '« V. Perry, 399. 
 Johns V. Johns, 74. 
 Johnson v. Commonwealth, 79. 
 " V. BuiTcU, 1G3. 
 
 V. Bird, 183. 
 " V. lleynold.s, 359. 
 Johues V. Johnes, 261. 
 
 K 
 
 Kayv. Gorden, 160. 
 Keau V. McLaughleu, 544. 
 
 " V. Bice, 359. 
 Kellogg V. Oshkosh, 157. 
 KeLsey v. Forsyth, 197. 
 Kemp V. The IBrighton ER. Co., 258. 
 Keany v. Farmers' & Mechanics' Bank, 
 
 3.54. 
 Kerry v. Merchants' Bank, 197. 
 Kerrison v. Cole, 249. 
 King of Spain v. Oliver, 341. 
 King V. Burrell, 199. 
 
 " V. Inhabitants of St. Gregory, 224. 
 
 " V. Carlisle, 548. 
 
 " V. Root, 550. 
 
 " V. Abingdon, 549, 554. 
 Kilbourne v. Woodworth, 486. 
 Kirldand v. Smith, 360. 
 Kirbv v. Show, 368. 
 Kimball v. Kirnball, 482. 
 Knight V. Crochford, 242. 
 
 Lane v. Dorman, 490. 
 
 " V. To\\Tisend, 35-L 
 Lansing v. Smith, 393. 
 Lanfeux v. Huntley, 54. 
 La Frombois v. Jackson, 149. 
 Lavague v. Stanley, 24.2. 
 Lee V. Milner, 258. 
 " V. Rodgers, 55. 
 Loavitt V. Blatchford, 144. 
 Lewis V. ^larshall, 148. 
 Lessee of Parish v. Ferris, 148. 
 Leversee v. Reynolds, 179.
 
 XAaii 
 
 TABLE OF CASES. 
 
 Legiijett V Hunter, 64, 415. 
 
 Le Graud v. Hampsed College,_ 53. 
 
 Lelaud v. Wilkinson. 54, 58, 358. 
 
 Lewis V. Owen, 94, 98. 
 
 Leneve v. Leneve, 242. 
 
 Lister v. Lobley, 257. 
 
 Litch V. Brotherson, 1G4. 
 
 Litchfield v. McOmber, 425. 
 
 Lindenmnller v. The People, 4Go. 
 
 Livingston v. :Maryland, 59. 
 
 '• V. Harris, 15fi. 
 
 " V. Moore, 196. 
 
 " V. Laiuin, 220. 
 
 " V. Mayor of New York, 391, 
 
 412. 
 Livingston v. The Mayor, 433. 
 
 " V. Moore, 435. 
 
 Lord V. Chadbourne, 400. 
 Lord Buckhart's Case, 237. 
 
 " Lovelace's Case, 72. 
 Lolly's Case, 96. 
 Locke V. Dane, 165. 
 Love V. Hinckley, 179. 
 Lowe V. Vick, 19S. 
 Looker v . Halcome. 255. 
 Loring v. Stone, 25G. 
 Lombard v. Bayard, 353. 
 Long V. Smith, 354. 
 Long "Wellesley's Case, 570. 
 Lothrop V. Blake, 359, 360. 
 Luke V. City of Brooklyn, 62. 
 Lucas V. Ensign, 220. 
 Ludlow V. Van Rensselaer, 246. 
 Luther v. Borden, 336. 
 Luycolm v. Battt'lle, 60. 
 Lyon v. Jerome, 382, 392. 
 
 M 
 
 Macomber v. Mayor of New York, 79. 
 
 Macarthy v. De Caix, 96 . 
 
 Mahurin v. Bicktord, 359. 
 
 Mason's Administrators v. Lawrason, 
 
 359. 
 Marbury v. Madison, 3G3. 
 Malcom v. Bodgers, 220, 224. 
 Maitland v. La:wrence, 200. 
 Mayo V. Simpson, 185. 
 Martin v. Mayor, &c., 224. 
 " V. Ford, 249. 
 " V. Hunter's Lessees, 350, 353. 
 " V. Hunter, 663. 
 Maillard v. Duke of Argj-le, 280.^ _ 
 Massingule v. Downs, 352, 353, 854. 
 Manice v. Hudson R. RR. Co., 280. 
 Manly V. Manly, 483. 
 Maas field v. Mclntyre, 483, 486. 
 Marsh v. Chestnut, 225. 
 
 " V. ShTite, 246. 
 Marshall v. Langworthy, 224. 
 Mallory's Case, 287. 
 
 Mason v. Boom, 119. 
 Maggs V. Hunt, 160. 
 Mapes V. "Weeks, 552. 
 Mathews V. Beach, 549. 
 " V. Zanes, 100. 
 Matter ot the Application of Rens. & 
 Sar. RR. Co. v. Davis, 384. 
 of Albany Street, 385. 
 " of Furman Street, 391. 
 " ol Bush wick Avenue, 401. 
 of Mayor of New York, 412. 
 of Trustees of N. Y. P. E, 
 School, 425 . 
 " of John and Cherry Street, 429. 
 " of Garland, 432. 
 ' ' of James De Vancene, 455 . 
 " of Cherry Street, 468. 
 
 of Empire City Bank, 481, 483, 
 
 484, 222. 
 of Jones, 488. 
 of Wilson, 62. 
 " of Richardson, 100. 
 of Wellman, 100. 
 of Tappan, 106. 
 " of Oliver Lee Bank, 163, 173, 
 348. 
 of A. H. Garland, 172. 
 of Wood, 277. 
 of Townsend, 380. 
 of Kerr, 382. 
 Mayor of New York v. Lord, 445, 448 . 
 Mayor, &c., v. Milne, 454, 460. 
 Mayor V. Colgate, 104. 
 
 " V. Foulmod, 354. 
 McCarter v. Orphan Asylum Society, 
 
 144, 145. 
 McCluskey v. Cromwell, 193, 144, 146, 
 
 205. 
 McCuUoch v. State, 111. 
 McCleeny v. Silliman, 148, 196, 354, 
 McCool V. Smith, 155, 257. 
 McCabe v. Emerson, 165. 
 McCulloch V. Maryland, 667, G71, 350, 
 
 351, 355, 405. 
 McCormickv. Rusch, 400. 
 McCarteev. Orphan Asylum, 189. 
 McClutchen v. Marshall, 196. 
 McDermott's Appeal, 483. 
 McDowell V. Payton, 196. 
 McElmoyne v. Crthen, 360. 
 McFarland v. Griffith, 354. 
 McGiftertv. McGift'ert, 482, 483. 
 McGuire v. McGuire, 483 . 
 McGlaughey v. Wetmore, 544, 
 McKeen v. Delaney, 196. 
 
 " V. Delaney's Lessees, 352, 355. 
 McMaster V. Commonwealth, 391. 
 McMillan v. Bench, 545. 
 McNiel V. liolbrook, 354. 
 Merchants' Bank v. Cook, 273. 
 Mewster v. Spalding, 360. 
 Metropolitan Bank v. Van Dyck, C67.
 
 TABLE OF CASES. 
 
 SIX 
 
 Mills' Case, 643. 
 
 Miller's Case, 153. 
 
 Mingo V. Gilmour, 79. 
 
 Milton V. Elliott, 118. 
 
 Minis V. United States, 118, 119. 
 
 Millard v. Lawrence, 1413. 
 
 Milne v. Huber, 150. 
 
 Miller v. Moore, 104. 
 
 " V. Finkle, 223. 
 
 " V. Taylor, 275. 
 ^lills V. St. Clair Co., 213. 
 Miner v. Mechanics' Bank, 220. 
 Millard v. Lake, 247. 
 Mitchell V. Mitchell, 205. 
 
 " V. Smith, 249. 
 Miles V. Cadwell, 353. 
 Mills V. Duryea, 358, 300. 
 Morgan v. Surman, 192. 
 
 '» V. Centenices, 198. 
 
 " V. King, 394. 
 Morgan, Ac, v. Horsman, &.C., 249. 
 Moser v. Newman, 198. 
 Morse v. Gould, 104, 471, 472. 
 
 " V. Williamson, 224. 
 Morris V. Miller, 218, 260. 
 
 " V. The People, 222. 
 Money v. Leach, 527. 
 Morrell v. Dicky ,_ 486. 
 Mouse's Case, 445. 
 Murray V. Gibson, 105, 107, 190. 
 Murray's Lessees v. Hobokeu Land 
 
 Impr. Co., 409. 
 Mun<^er v. Tonawanda RR. Co., 395. 
 Murphy v. The People, 433. 
 Mutual Safety Insur. Co. v. Cargo of 
 
 Geoi-ge Olcutt, 354. 
 
 N 
 
 Nash V. Allen, 267. 
 
 Nations v. Johnson, 481. 
 
 Nave V, Nave, 220. 
 
 Nelson v. The People, 111. 
 
 Nesmith v. Sheldon, 196, 352, 353. 
 
 Newburgh Turnpike Co. v. Miller, 220. 
 
 New York & Erie RR. Co. v. Coburn, 
 
 220. 
 Newell V. The People, 146, 203. 
 New England Screw Co. v. Blivin, 19G. 
 New River Co. v. Graves, 234. 
 Neves v. Scott, 354. 
 Nichols V. Bridgeport, 381. 
 Nicholson v. United States, 179. 
 N orris V. Clymer, 424. 
 
 " V. Croker, 157. 
 Notley V. Buck, 217. 
 
 o 
 
 Ogden V. Sanders, 475, 111. 
 
 Ogden V. Blackledgc, 111, 15C. 
 " V. Strong, 145, 1m8. 
 " V. Saunders, 002. 
 Ohio V. Hinchman, 359. 
 Opinion ot Judges, 489. 
 Orlord v. Ram-sey, 512. 
 Oriental Bank V. Freeze, 105. 
 Osboru V. United States Bank, G5. 
 
 " V. Humphrey, 478. 
 Owners of Ground Assessed v. Mayor ot 
 
 Albany, 412. 
 Owners of Brig Gray v. Owners of Ship 
 John Trasiu, 459. 
 
 Pacific Mail Steam Co. v. Jollifife, 157. 
 Palmer v. Conley, 158, 246. 
 Parsons v. Beckford, 354. 
 
 V. Bedford, 482. 
 Parker v. Bid well, 522. 
 Patterson v. Philbrook, 165. 
 
 v. Winn, 189. 
 Pawlins v. Bird's Execiitors, 485. 
 Pawling V. Wilson, 485. 
 Payson v. Payson. 482. 
 People V. Smith, 370. 
 
 V. Common Council, 220. 
 
 " V. Cook, 222, 223, 224. 
 
 " V. Allen, 222, 223. 
 
 " V. Holly, 223. 
 
 " V. Peek, 223. 
 
 " V. Dawson, 223. 
 
 " V. Common Council of Brooklyn, 
 224. 
 
 " V. Schemerhorn, 224, 225. 
 
 " V. Phelps, 275. 
 
 " V. Livingston, 275. 
 
 " v. Hays, 277. 
 
 " V. Schuyler, 282. 
 
 " V. Morrell, 302. 
 
 " V. Corning, 368. 
 
 " V. Supervisors of Orange, 368, 
 3G9, 111. 
 
 '• v. N. Y. Cent. RR. Co., 368, 380, 
 126, 143, 144, 208. 
 
 " v. JIayor, 374. 
 
 " v. Dcveliu, 01. 
 
 " v. Denniston, 62. 
 
 " v. Commissioners of Taxes, 62. 
 
 " V. Board of Supervisors of N. Y., 
 09. 
 
 " V. Runkle, 74. 
 
 " V. Huntington, 79. 
 
 " V. Moores, 92. 
 
 " v.McConn. 103. 
 
 " V. Kills, 104, 105. 
 
 '^ V. O'Brian, 104, 106. 
 
 " V. Failing, 104, 100. 
 People Ex Rel Herrick v. Smi. h, 3''7, 
 
 383, 420.
 
 sx 
 
 TABLE OF CASES. 
 
 I'eojjle V. L;i\\. •177, ■42G. 
 
 " V. Kerr, 377. 
 
 " V. Hayden, 392. 
 
 " V. Ciiual Appraisers, 393. 
 
 " V. Mayor of Brooklyn, 403, iOG, 
 408, 409, 375. 
 
 " V. Lawrence, 406, 425, 427. 
 
 " V. Morrill, 415. 
 
 " V.Mitchell, 422. 
 
 " V. Superv-isorsot Livingston, 425. 
 People Ex Eel The Detroit Sc Howell IL. 
 li. Co. V. The Township Board of 
 Salem, 420. 
 People V. Haws, 425. 
 
 " V. Fisher, 442. 
 
 " V. Hill, 442, 443. 
 
 " V. Draper, 433, 452, 454, 01, 65, 
 145, 3G2, 303, 380. 
 
 " V. Shepherd, 452. 
 
 " V. Nearing, 455. 
 
 " V. Mciriug, 464. 
 
 " V. Piatt, 477. 
 
 " V. Humphries, 509. 
 
 " V. Chigary, 509. 
 
 " V. Olmstead, 509. 
 
 " V. Mercien, 509. 
 
 " V. Mahaney, 105. 
 
 '« V. Stevens, 106. 
 
 " V. Utica Ins. Co., 141, 209. 
 
 " V. Supervisors of Columbia Co., 
 145, 163. 
 
 " V. Denning, 155, 156. 
 
 " V. Toynbee, 120, 368, 369. 
 Pearse v. Strood, 202. 
 Pearson v. Lovejov, 231. 
 Perine V. Ches. &"Del. Canal Co., 204, 
 
 213. 
 Perry v. Wilson, 387. 
 
 " V. City of Worcester, 394. 
 Pennock v. Dialogue, 42. 
 Penhallow v. Doane, 332. 
 Peck V. Pease, 159. 
 Pierce V. Delancaltu, 113. 
 
 " V. Hopper, 234. 
 Pilford's Case, 253. 
 Pickford v. Grand Junction E,. R. Co., 
 
 258. 
 Pitchard v. Heywood, 259. 
 Piscatequa Bridge v. TSew Hampshire 
 
 Bridge, 382. 
 Pitt's Case, 647. 
 Plumb V. Lawj-er, 165. 
 Pollard's Lessees v. Hagan, 374. 
 Polk V. Wendel, 196. 
 Poole V. Poole, 198. 
 .•' V. Neal, 2-59. 
 Pond V. Negers, 223. 
 Pontex Cun., 233. 
 Polk's Lessee v. Weudal, 353. 
 Pollard's Heirs v. Kibbe, 54. 
 Post Master General v. Early, 70. 
 Potter v. Brown, 91, 98. 
 
 Potter V. Hiscox, 48G. 
 
 Poulterer's Case, 102, 262. 
 
 Powell V. Tattle, 146. 
 
 Powers V. Bergen, 490. 
 
 Providence Bank v. Billings, 404, 424. 
 
 Prosseaux v. Welch, 156. 
 
 President, &.c. , of London v. Harrison, 
 
 158. 
 Proprietors of Kennebec Purchase v. 
 
 Laborer, 165. 
 Prince v. United States, 167. 
 Puckle V. Moore, 55. 
 Pulling V. People, 278. 
 Pugh V. Leeds, 294. 
 Purdy V. The People, 193. 
 Pyms V. Mitford, 211. 
 
 R 
 
 Ptatcliffs Case, 235. 
 
 Raynham v. Canton, 359. 
 
 Rector v. Smith, 544. 
 
 Reeside's Executors v. United States, 
 
 354. 
 Reiser v. Tell Association, 70. 
 Renwich v. Morris, 275. 
 Rexfordv. Knight, 14.5, 189, 392. 
 Regents of University v. Williams, 80. 
 Reg. V. Baines, 113. 
 
 " V. Inhabitants of St. Edmonds, 151. 
 Rex Downs, 158. 
 Rex V. Justices of Middlesex, 119. 
 
 " V. Rodgers, 158. 
 
 " V. McKenzie, IGO, 
 
 " V. Davis, 161. 
 
 " V. Saintsburgh, 161. 
 
 " V. Wright, 161, 209. 
 
 " V. Boyell, 101. 
 
 " V. Ever don, 180. 
 
 " v.Burchett, 110. 
 
 •' V. Archbishop of Armagle, 110, 117, 
 152. 
 
 " V. Shaw, 57. 
 
 " V. Jeffrie, 57. 
 
 " V. Ullerby, 57. 
 
 " V. Williams, 102. 
 
 " V. Althoes, 107. 
 
 " V. Bailey, 171. 
 
 " V. Loxdale, 190. 
 
 " V. Smith, 191. 
 
 " V. Marronetshire, 192. 
 
 " V. Justices of Kent, 196. 
 
 " V. Ditchett, 196. 
 
 " V. Bolton, 198. 
 
 " V. Stoke, 204. 
 
 " V. Ramsgate, 204. 
 
 " V. Inhabitants of Great Bcntley, 
 204. 
 
 " V. Rose, 207. 
 
 " V. Frost, 207, 208. 
 
 " V. Inhabitants of Banbury, 207.
 
 TABLE OF CASES. 
 
 XXI 
 
 Rex v.Larab, 210. 
 
 " V. Neale, 210. 
 
 ♦• V. Youuger, 211. 
 
 " V. Hawkswood, 211. 
 
 " V. Upper Passworth, 211. 
 
 «« V. Pembridge, 211. 
 
 " V. Preston, 211. 
 
 " V. Frauds, 211. 
 
 " V. Barham, 210. 
 
 " V. Justices of Shropshire, 21G. 
 
 " V. Gweuop, 218. 
 
 " V. Justices of Surrey, 218. 
 
 " V. Marks, 218. 
 
 '« V. AUeu, 219. 
 
 " V. Inhabitants of Cumberlaml, 219. 
 
 " V. Flockwood Inclosure Commis., 
 220. 
 
 " V. Barlow, 220. 
 
 " V. Cunningham, 221. 
 
 " V. ■\Voolstantou, 223. 
 
 " V. St. Nscholas in Ipswich, 223, 
 250. 
 
 " V. Locksdale, 224. 
 
 '« V. Inhabitants of St. Gregory, 226. 
 
 " V. Liecester, 228. 
 
 " V. Everdon, 229. 
 
 " V. Birmingham, 229. 
 
 " V. Bullock, 231. 
 
 " V. Ilymou, 252. 
 
 " V. Handy, 249. 
 
 " V. Evered, 250. 
 
 " V. Bleasdale, 252. 
 
 " V. Inhabitants of Glastourj', 253. 
 
 >« V. Sharpness, 255. 
 
 " V. Richards, «tc., 253. 
 
 " V. Croker, 257. 
 
 " V. Gwenop, 2G9. 
 
 " V. Morris, 270. 
 
 " V, Harris, 272. 
 
 " V. Jukes, 272. 
 
 " V. IMarsack, 286. 
 
 " V. Bland, 286. 
 
 " V. St. Laviour, 288. 
 
 '« V. Creevey, 548, 554, 628, 629. 
 
 '« V. Carlisle, 549. 
 
 " V. Fisher, 550. 
 
 " V. Kuggles, 560. 
 
 '« V. Abingdon, 628. 
 
 " V. Wright, 629. 
 
 " V, Flower', 630. 
 
 " V. Hobhouse, 631. 
 
 " V. Earl Fex-rers, 645. 
 Rice V. Parkman, 488. 
 
 " V. M. &N. W. RR. Co., 145, 213. 
 Richardson's Case, 158. 
 Richards v. Daggett, 202. 
 Riggers v. Witton, 274. 
 Ripple V. Ripple, 359. 
 Richmond RR. v. Louisa RR., 382. 
 Robinson v. Prescott, 359. 
 
 " V. Executors of Ward, 485. 
 V. Cliffon, 59. 
 
 Roe V. Hersey, 100. 
 
 Rodgers v. Bradshaw, 145, 189, 387 388, 
 392. 
 " V. Murry, 224. 
 
 V. Burns, 359, 360. 
 Rosier v. Hale, 400. 
 Ross V. Duval, 354. 
 " V. McCluny, 196. 
 " V. Barland, 353. 
 Rowan v. Runnel.s, 354. 
 Rockwell V. Hub bell, 400. 
 " V. Nearing, 481. 
 Root V. King, 542. 
 Roswelt V. Goddard, 111. 
 Rowan v. Runnell, 198. 
 Russell V. The Mayor, 378. 
 " V. Wheeler, 204. 
 '« V. The Mayor of N. Y., 445, 418. 
 Runger v. Fogassa, 209. 
 Rue V. Alter, 164. 
 Ruchamboye v. Mottichmed, 274. 
 Rundle v. Delaware & Raritan Can;\l, 
 353. 
 
 s 
 
 Salkeld v. Johnson, 200, 265. 
 Sandiman v. Breach, 236. 
 Sackett v. Andross, 163, 283. 
 Sampson v. Overton, 359. 
 Sands v. St. John, 55. 
 Salters V. Tobias, 70. 
 Salters Co. v. J., 108. 
 Savings Bank v. Makin, 119. 
 Sanchez v. The People, 157_. 
 Satterlee v. Mathewson, 165, 370. 
 Scott v. Cleveland, 359. 
 
 " V. Blanchard, 359. 
 
 " V. Reid, 183. 
 Scales V. Pickering, 257. 
 Schrertzell v. Young, 359. 
 Scrunshire v. Scrunshire, 94. 
 Seely v. Birdsall, 282. 
 Short V. Hubbard, 262. 
 Sheffield v. Radcliflfe. 224. 
 Sherwood v. Reade, 224, 146. 
 Sherman v. Dodge, 224. 
 Sharpless v. Mayor, 368, 369, 415, 416, 
 
 81. 
 Sheup V. Spier, 146, 224, 412. 
 Shepherd v. The People, 192. 
 Shelby v. Gay, 196, 354. 
 Sill V. Corning, 340, 362. 368, 369. 
 Sills y. AVarwick, 94, 98. 
 Sims V. Irvine, 353. 
 
 " v. Hundley, 354. 
 Silver Lake Bank v. Hardings, 359. 
 Sidaway V. Hay, 94,98. 
 Sixth Avenue RR. Co. v. Kerr, 382. 
 Slayton v. Hulings, 224. 
 Smith y. Schriver, 353.
 
 xxu 
 
 TABLE OF CASES. 
 
 Smith v.CoTulry, 19G. 
 " V. Moflfat, 247. 
 •' V. Lockwood, 275. 
 «« V. Strong, 53. 
 " V. Buchuuuan, 94, 98. 
 " V. Mayor of New York, lOG. 
 " V. Bryan, 400. 
 " V. Turner-, 460. 
 " V. Wilcox, 4C6. 
 «« V. Smith, 483. 
 Snyder v. Snyder, 145. 
 
 V. Wise, 359. 
 Snell V. Bridgwater & Co., 273. 
 Speer v. School Directors, 111. 
 Spiers v. Parker, 120. 
 Spicer v. Cooper, 177. 
 Sprague v. City of Worcester, 394. 
 Specht V. Commonwealth, 4GG, 5u4. 
 Striuson v. Pond, 245. 
 Stryker v. Kelly, 14G, 224, 412. 
 Stradliug v. Morgan, 190. 
 Stanton v. University of Oxford, 110, 
 
 117. 
 Stocking V. Hunt, 1G4. 
 Stephenson V. Doe, 55. 
 Stein's Case, 95. 
 Stowell V. Zouch, 188. 
 St. John V. Chew, 19G. 
 Stevens v. Middlesex Canal, 387. 
 Stone V. Mayor of N. Y., 445, 449. 
 "*' V. Cooper, 550. 
 " V. The Mayor, 371. 
 StUJ'^-esant v. The Mayor of N. Y., 451. 
 Stitwell V. Kaynor, 463. 
 Story V. Fnrman, 472. 
 State of New Jersey v. Wilson, 478. 
 State V. Barnhard, 507. 
 " V. Bendergrass, 519. 
 " V. Burnham, 544. 
 " V. McLean, 226. 
 Stanley V. Webb, 548, 549. 
 Stockdale v. Hemsard, 548. 
 Stuart V. Laird, 657. 
 Sternburgh v. Bertran, 512. 
 Stacey v. Nelson, 199. 
 Stocker v. Warner, 207. 
 Stewart V. Slater, 223. 
 Strong V. Stebbins, 246. 
 St. Peters, York, Dean «fc Ch. v. Middle- 
 borough, 261. 
 Stearns v. United States, 353. 
 Starkwether v. Loomis, 359. 
 Stephenson v. Bannister, 360. 
 Stewart v. Gray, 3G0. 
 Sturgis V. Crowninshield, 472, 475, 476, 
 
 477, 672, 118, 350. 
 Supervisors of Niagara v. The People, 
 
 146. 
 Sudbury & Erie EE,. Co. v. Cooper, 61. 
 Sun Mutual Ins. Co., 104. 
 Surtees V.Ellison, 160. 
 Sullivan V. Brewster, 1G4. 
 
 Suydam v. Wilkinson, 196, 198. 
 Sumner v. Hicks, 196, 352. 
 Supervisors v. United States, 220. 
 Sweet V. Hulburt, 415. 
 Swift Y. Tyson, 198, 352. 
 
 T 
 
 Talbot V. Simpson, 145, 185. 
 Taylor v. Blair, 150. 
 
 " V. United States. 251. 
 " V. Carpenter, 359. 
 " v. Porter, 373, 376, 396, 399, 430. 
 Thatcher v. Dartmouth Bridge, 387. 
 
 V. Powell, 196, 353. 
 The Warden of St. Pauls v. The Dean, 
 
 223, 218. 
 The Bishoi^s Case, 159. 
 The Dean of Ely v. Bliss, 155. 
 The King v. Airey, 150. 
 The Protector v. Ashfield, 123 . 
 The Chancellor of Oxford's Case, 147. 
 The Prince's Case, 148. 
 The City of London v. Wood, 150. 
 The Irresistable, 157. 
 The Fashion v. Ward, 179. 
 The Hunter, 183. 
 The Case of Fines, 182. 
 The Stafford Justices, 188. 
 The Harriet, 189, 245. 
 The Forrester, 180. 
 The Providence Ins. Co., 223. 
 The Salpetre Case, 449. 
 The Enterprise, 245. 
 The Queen v. King and Amr., 252. 
 The Clarence PiailwayCo. v. Great N. of 
 
 England Junction RR. Co., 270. 
 The Society for the Propogation of the 
 
 Gospel v. Wheeler, 353. 
 The Independence, 354. 
 The State v. Slade, 359. 
 The Boston & Roxbury Milldam Corpo- 
 ration V. Newman, 380. 
 The Railroad Bridge Co., 426. 
 The Cincinnati, &c., RR. Co. v. Com- 
 missioners of Clinton Co., 426. 
 The Derby Turnpike Co. v. Parks, 478. 
 Thomas v. Walker, 93. 
 V. Hatch, 198. 
 " V. Robinson, 359. 
 
 V. Leland, 412, 425, 426. 
 " V. Croswell, 548. 
 Thompson V. Howe, 160. 
 ' ' V. Sergeant, 223 . 
 
 V. Philips, 353. 
 " V. Lee County, 422. 
 
 V. State, 483. 
 Thorn V. Blanchard, 542. 
 Thorpe v.R. & B. RR. Co., 451, 456. 
 Thorpe's Case, 613. 
 Todd v. Kerr, 483, 486.
 
 TABLE OF CASES. 
 
 xxm 
 
 Toleu V. Tolen, 482. 
 
 Torriugton V. Haregraves, 110, 117, ICO. 
 
 Torry v. Milbury, 225. 
 
 Tookcr V. Thompson, 359, 300. 
 
 Towusend v. Brown, 111). 
 
 Tolson V. KaKO, 148. 
 
 Tracy v. Snydliam, 148. 
 
 Trist V. Cubeuas, 104. 
 
 Trigg V. Conway, 300. 
 
 Troy & Boston EK. Co. v. Northern 
 
 Turnpike Co., 393. 
 Trustees of Cuyahoga v. McKaughey, 
 
 105. 
 Twenty-eight Casks of Wine, 251. 
 Twine's Case, 202. 
 Tyte V. Glowden, 254. 
 
 u 
 
 United States v. Porte, 54. 
 
 " V. Amedy, 58, 358. 
 " " V. Johnson, 58. 
 
 " " V. Balmer, 102. 
 
 " V. Fisher, 102, 143. 
 " V. Webster, 108, 205. 
 " '• V. Pickson, 118. 
 
 " V. Babbitt, 145. 
 " " V. Hewes, 151. 
 
 " " V. Case of Hair Tencils, 
 
 155, 228. 
 " •' V. Mann, 157. 
 
 " " V. Passamore, 157. 
 
 " V. Bright, 179. 
 " " V. Warner, 179. 
 
 " " V. The llecorder, 179. 
 
 " V. Bassett, 188. 
 «' " T. llerves, 189. 
 
 "V. Sarchett, 190. 
 " '* V. Twenty-lour Coils Cor- 
 
 dage, 190. 
 << << y_ "VVegglesworth, 190. 
 
 " V. Colm, 191. 
 " V. Hann, 199. 
 ♦' " V. Ten Cases of Shawls, 
 
 199, 245, 240, 292. 
 " " V. Freeman, 201. 
 
 " " V. Sharp, 210. 
 
 " V. Moore, 213. 
 " " V. Dichron, 214. 
 
 United States Trust Co. v. U. S. Fire 
 
 Ins. Co., 222. 
 United States v, Winn, 245. 
 " " V. Wilson, 245. 
 
 " " V. Wilberger, 245. 
 
 " " V. Ragsdale, 245. 
 
 " " V. Morris, 245. 
 
 " " V. Probasco, 251. 
 
 " " V. Irvin, 272. 
 
 " " V. Jones, 273. 
 
 '• "V. Bailroad Bridge, 292, 
 
 377, 420. 
 
 United States v. More, 351. 
 " " V. Hart, 352. 
 
 " V. Kathbone, 352. 
 «' " V. Morrison, 353. 
 
 " V. Mandel, 353. 
 " " V. Backus, 354, 
 
 " " V. Iteid, 354. 
 
 " V. Mundell, 354. 
 " " V. Johns, 358. 
 
 Upton V. Northbridge, 512. 
 Updegraff V. Commonwealth, 559, 5G1. 
 Usher v. Leverauce, 549. 
 
 Van Home v. Dorrance, 145, 185, 242, 
 
 257, 337, 390, 403. 
 Van Rensselaer v. Snyder, 155, 472, 473. 
 
 " " V. Livingston, 103. 
 
 " " V. Kearnej', 353. 
 
 Van Schaick v. Edwards, 240. 
 Van Wormer v. Mayor of Albany, U.7. 
 Van Wyck v. Aspinwall, 542. 
 Vandcrcar v. Hen. <t Sar. HE. Co., 158. 
 Vanderpool v. Allen, 288. 
 Vanderbilt v. Adams, 458. 
 Varick v. Smith, 375, 450. 
 Vedder v. Alkenbrack, 103. 
 Vernon's Case, 235, 292. 
 Vidal V. Girard, 559. 
 Vischer v. Vischer, 482, 483. 
 Voorhees and Wife v. Presbyterian 
 
 Church of Amsterdam, 287. 
 Voorhees v. Bank of United States, 119. 
 
 " V. Voorhees, 55. 
 Vrooman v. Jones, 02. 
 
 "W 
 
 Wallis V. Hodson, 191. 
 Walwin v. Smith, 252. 
 Walker v. Sherman, 288. 
 
 " T. Earl Grosvenor, 644. 
 Waltz V. Waltz, 483. 
 Waller v. Harris, 144, 184, 193. 
 Wallace v. Bassett, 156. 
 Walter v. Bacon, 105. 
 Waring V. Jackson, 190, 353. 
 Warner v. Hadner, 247. 
 Warno v. Varley, 249. 
 Wardv. Snell, 254. 
 Waterhouse v. Kean, 256, 286. 
 Watson V. Tarpley, 354. 
 Way man v. Southard, 354. 
 Warren v. Flagg, 359. 
 
 V. Windle, 159. 
 Warren Manufac. Co. v. Aetna Lis. Co., 
 
 163, 300. 
 Wager v. Troy & Union ER. Co., 375, 
 
 377.
 
 XXIV 
 
 TABLE OF CASES. 
 
 "Warrender v. Warrencler, 06. 
 Waterlord <.t "Whitehall Turnpike Co . v . 
 
 The People, 126, 143, IS'J. 
 Webster v. Freuch, 226. 
 
 " V. Cooper, 353, IGo. 
 Webb V. The Manchester & Leeds EE. 
 
 Co., 258. 
 Webb V. riomer, 177. 
 Wernbish v. Tallboys, 23 i. 
 Weston V. City of Charleston, 350. 
 Westervelt v. Lewis, 360. 
 
 V. Gregg, 396, 436, 16G, 430. 
 West Eiver Bridge Co. v, Dix-, 372, 382. 
 Wells V. Somerset, 382. 
 Weeks v. The Citv of Milwaukie, 426. 
 Weil V. Schultz, 455. 
 Well man's Case, 158. 
 White V. How, 61. 
 Wheatlv T. Daniel, 218. 
 Whiting V. Sheboygan EE. Co., 426. 
 Whitmore v. Bedford, 236. 
 Whittnker v. Bramson, 360. 
 Wheelock v. Young, 3S2. 
 Wiseman v. Colton, 101. 
 Willison V. Watkins, 148. 
 Wills V. Wilkins, 102. 
 Williams V. Williams, 102, 107. 
 
 V. Pritchard, 110, 117. 
 
 v. Potter, 155, 150. 
 
 V. Wilcox, 206. 
 
 V. Buckley, 237. 
 " V. Sangar, 256. 
 
 V. N. Y. Cent. EE. Co., 375, 
 377. 
 Wiesler v. Hade, 368, 369. 
 Winchester's Case, 231. 
 Winchcourt v. Winchester, 250. 
 Wilcox V. Jackson, 353. 
 
 Wilcox V. Wilcox, 482. 
 
 Williamson v. Berry, 354. 
 
 Wilson V. The Blackbird Marsh Creek 
 
 Co., 378. 
 Wilson V. Mayor of New Y'ork, 425. 
 Wittiers v. Buckley, 400. 
 Wires v. Farr, 165. 
 Wigg V. United States, 200. • 
 Wilkinson v. Leland, 429, 489. 
 Willis V. Long Island EE. Co., 433. 
 Wood V. United States, 155. 
 
 " V. Oakley, 163. 
 
 " V. Adams, 208. 
 
 " V. Chapin, 222. 
 Woodworth v. Spring, 486. 
 AVoodgate v. KnatchbuU, 254. 
 Woolsey v. Dodge, 353, 354. 
 Woart V. Winnich, 164. 
 Wolfkill V. Mason, 164. 
 Wolcottv. Pond, 231. 
 Worseley v. Demattos, 242. 
 Wyman v. Southard, 1 1 8. 
 Wyndham v. The People, 395, 405, 431, 
 
 437, 441, 442. 
 Wynshamer v. The People, 450, 470. 
 
 Yates V. Yates, 483. 
 Young V. Bank of Alexandria, 54. 
 " V. Beardsley, 69. 
 
 z 
 
 Zouch V. Stowell, 179, 234
 
 k GENE1{AL TKEATISE ON STATUTES. 
 
 CHAPTER I. 
 
 INTRODUCTORY COMMENTARY. 
 
 OF THE DEFINITION OF STATUTES, ANCIENT AND JIODEKN. THEIB 
 ORIGIN, INCIDENTS, &c. 
 
 Statute L.vws, their definition, origin, manner of enactment, 
 forms, authentication, promulgation, force, intei-pretation, limita- 
 tions, variety and incidents, are the subject of this work.^ 
 
 History, as well as experience, has taught us, that in every civili- 
 zed community, however high or low it may rank in the scale o 
 intelligence, there is an absolute necessity for the existence of a 
 power for the administration of justice. This necessity is so abso- 
 lute and indispensable, that all social institutions, whatever may be 
 then- object, seek to provide some recognized authority to admin- 
 
 NoTE 1. — "Whilo the dcsigu of this woik is to present to the profession, an 
 American treatise on statutes and constitutional law, the labor assumed, is greatly 
 relieved, and the performance of the duty, (it is believed) more satisfactorily dis- 
 charged, by adopting, as far as it is practicable, a work of approved and stand- 
 ard authoritj', in all the courts of England and America, upon the subject of 
 statutes. There is, pei-haps, no writei-, in either country, whose work upon the 
 construction of statutes, has been more universally regarded by the courts and 
 bar, as authority, than the "Treatise upon Statutes, by Sir Fortunatis Dwarris, 
 Kut. B. A. of Oxford, F. R. S., F. S. A. of England." The text of this author, in that 
 part of his treatise, which has application to statutes generally, will be adoj^ted 
 in this work. This will supplj' an almost importunate demand by the profes- 
 sion, for a republication in America, of that standard, and greatly desired work. 
 To this original of Dwarris, will bo added by original text, and also by notes of 
 authority, such views of American law on the construction of statutes, as can be 
 brnught within the scope of the work, with American authority upon Constitu- 
 tional limitations, and legislative powers ; and also, views of construction upon 
 such subjects of statute law as have no existence in England, or such as remain 
 untouched by the English author, with a chapter upon parliamentary law and the 
 law of parliamentary privilege. 
 5
 
 d-1 INTEODUCTOEY COMMENTAEY. 
 
 ister justice. It requii-cs imifoi-m rules ; rules ■wliicli sliaU he 
 piomulgated, and kno-uTi by all the members of such social com- 
 mimitj. It becomes a necessity, which lies at the foundation of 
 all ci^■il society, otherwise, each individual of the community 
 would attempt to administer justice for himself. 
 
 These uniform rules, so adopted by a commvmity, are to a gTeat 
 extent, the rules of conduct by which its members are to be gov- 
 erned, and are therefore denominated its laws ; and laws are 
 regarded as the rules of right ; as the measure of justice between 
 man and man ; and are generally found existing to a greater or 
 less extent in an authentic form, either "VNTitten or printed. But, 
 in order to give binding force to laws, nothing is more certain 
 than the indispensable necessity of Government. And it is equally 
 undeniable, " that wherever and howsoever goveiTiment is institu- 
 ted, the people must cede to it some of their natural rights, in 
 order to vest it with requisite powers." a 
 
 Government, imphes the power of making laws. It is essential 
 to the idea of a law, that it be attended with a sanction ; or in 
 other words, a penalty or punishment for disobedience. If there 
 be no penalty annexed to disobedience, the commands which pre- 
 tend to be laws, will in fact amount to nothing more than advice 
 or recommendation. This would not be government. Among 
 the necessary powers of government, is that of legislation, which 
 is the power in the government to make laws, not only, but to 
 make the lavrs so made, the means of executing the legislative 
 power. 
 
 *' A law by the very meaning of the term, includes supremacy. 
 It is a rale, which those by whom it is presented are bound to 
 observe. This results from every poKtical association. If indi- 
 viduals enter into a state of society, the laws of that society must 
 be the supreme regulator of their conduct. If a number of 
 pohtical societies enter into a larger political society, the laws which 
 the latter may enact pursuant to the powers entrusted to it by 
 the terms of the compact, or constitution, must necessarily be 
 supreme over the societies so united, and over the individuals of 
 which they are composed. It would otherwise be a mere treaty, 
 dependent upon tlie good faith of the parties, and not a govcrn- 
 
 a Fudcralist, Letter 2.
 
 IIsTnODUCTOrA' COMMENTAT.y. 35 
 
 niciit, wliicli is oiil}- another word for political power and supre- 
 macy," (I. 
 
 The gi-eat aim and object then, of the pohtical institution called 
 government, is to provide for the safety and happiness of the 
 society, and the individual members of which it is composed, and 
 justice is the end to be secured. It is government that secures tlie 
 weaker against the violence and oppression of the stronger, and 
 secures itself, by the possession of the power conferred by all. 
 
 When laws are made, and promulgated in their most authorita- 
 tive form, namely, by legislation, they are then denominated stat- 
 utes. Other authorities of law, arc usages and 'customs ; these 
 are supposed to be based upon the precepts of natural right, and 
 are also intended to l)e the measure of justice. 
 
 Statute law, b}' American definitions, is an act which is pre- 
 scribed by the legislature, or supreme power of the State ; it 
 extends its binding force to all the citizens or subjects of that 
 State, h 
 
 This definition, applies as well to the State in its national 
 capacity, as to the several sovereign states, whose union compose 
 the national body politic. These statutes, State and National, 
 are equally the expressions in writing, of the sovereign or legisla- 
 tive will, known in ancient and elementary law books, as "leges 
 Scripta," c or written laws, as distinguished from the ''leges non 
 Scri'pta" the unwritten or common law. The latter, owe their 
 binding force to the principles of justice as declared by the coiu'ts, 
 and to long usage and consent of the nation, or people. The 
 former, to the positive command or declaration of the supreme 
 power. 
 
 Statute law, in a repubUcan form of government, is commonly 
 apphed to the acts of a legislative body, consisting of representa- 
 tives chosen by the people. In monarchies, they are the written 
 will of the sovereign power, whether -expressed by absolute will of 
 the king alone, or by a union of wills, of king, nobles and com- 
 mons, when the commons act in a representative character. 
 "When expressed by the king alone, they are sometimes called 
 edicts, decrees, ordinances, rescripts, d:c. 
 
 a Federalist, No. 31. h 1 Kent Com. 417 ; 2a iil. 150. 
 
 c 1 Black Com. 85.
 
 36 INTKODUCTOrvY COMMENTAEY. 
 
 Statutes are of both Diviue," and human origin ; the former, 
 having God, the latter man for their authority. 
 
 It is not within the scope or object of this work to discuss the 
 question of tlie true origin of governments in either then' ethical 
 or pohtical bearing ; nor whether governments are based upon 
 divine or human authority, but only assume that every duly orga- 
 nized government possesses the power to ordain and estabhsh the 
 laws by which its subjects shall be controlled ; and confine this 
 treatise chiefly to the subject of the "svTritten or statute laws. 
 
 The municipal laws of nations and of communities, are there- 
 fore, in their origin and intrinsic force, no other than the rules of 
 being, given to man by God. But as the heavenly wisdom must 
 flow through the impure channel of humanity, it is necessarily 
 mingled with the provisions of human invention, and there must 
 necessarily be some conflict with the primary perfection. Indeed, 
 the divine rule itself, provides for human modifications. So that 
 laws may be adapted to the particular circumstances, views, and 
 vv^ants of the subjects to whom, and to whose interests they are to 
 be applied, and whether human modifications accord with the 
 original right and perfection or not, they are ahke j^G'^^^'^'f^ific^i as 
 laws ; and become so essential to human association, that men 
 cannot live in communities without them. 
 
 Human laws, which are intended to be an approach toward the 
 perfection and majesty of the law of God, are entitled to a corre- 
 sponding dignity and respect ; they are entitled to the strongest 
 affection ; and should be enshrined in the hearts of a people who 
 are the subjects of tlie government, and whose pubhc sentiment 
 they are supposed to express. They cannot be held in too high 
 
 Note 2. — "Because they had not executed my judgments ; but bad despised my 
 staiu^es ; and had i^olluted my Sabbaths, and their eyes were after their fathers 
 idols. Whereiore I gave them statutes, also that were not good." Ezekiel 20, 24. 
 If the wicked restore the jiledge, give again that he had robbed, walk in the 
 statutes of life without committing iniquity, he shall surely live, he shall not die . 
 Ezekiel 33, 15. The statutes of the Lord are right, rejoicing the heart. Psalms 
 19, 9. Thou comest down also upon Mount Sinai, and si:)eakest with them from 
 Heaven, and gavest them right judgements, true laws, good statutes and com- 
 mands ; and madest known to them thy holy Sabbath, and commanded them pre- 
 cepts, statutes and laws by the hand of Moses thy servant, Nehemiah 9, 13, 14. 
 See also Exodus 15, 26. Deut. 6, 17 ; 2 Kings 17, 15 ; 1 Chron. 29, 19 ; Micah 
 6, 16 ; Psalms 18, 22 : Id. 119, 12, 1(5, 23, 20, 33, 54, G4, G8, 71, 117.
 
 INTRODUCTORY COMMENTARY. 37 
 
 honor, or too jealously guarded and preserved, as the safeguard 
 of all peace and security. 
 
 It is certain that no human authority can rightfully mfiiDgc or 
 abrogate the smallest particle of natural or divine law ; and yet wo 
 cannot expect that all acts of legislators will, or can be, entirely 
 good, or ethically perfect ; but if their goodness and bmdmg 
 quality in this respect, is to be determined by the subjects upon 
 whom they are intended to operate, government, and subordina- 
 tion would cease ; there must, therefore, be magistrates clothed 
 ^nth the power to enjoin their autliority. 
 
 When therefore, the supreme jjower of a community decrees 
 anything which may even be injurious to one, or to a few of its 
 subjects, it is their duty to acquiesce, and not to disturb the peace 
 of society ; attempt to subvert the constitution of their coun- 
 try, or to diminish the veneration for its laws, which would bo 
 bringing a greater evil upon the whole community. 
 
 This expresses what is generally understood to be the signifi- 
 cation of law, to wit : "A nile of action dictated by some supe- 
 rior being."a It will therefore be our duty in this work to con- 
 sider only human laws so dictated. Justinian, the gi-eat law-giver, 
 reduced the prmciples of law to three general precepts. First, that 
 we should Uve honestly. Second, that Ave should hui-t nobody. 
 And third, that we should render to every one his due. h This 
 includes the whole doctrine of the law. 
 
 Statute law, is sometimes by law writers included in the more 
 general term, "Municipal Law," though this extends it to states 
 or nations. But it is well defined by Blackstono, mider the head 
 of mimicipal law, as bemg " a rule of civil conduct prescribed by 
 the supreme power in a state, commanding w^hat is right, and 
 prohibiting what is wrong." c Municipal laAv, in its technical 
 meaning, also rests for its authority upon judicial decisions, d 
 
 But Chancellor Kent has given a more accurate definition of 
 mmiicipal law. He says : " It is composed of wjitten, and 
 unA\Titten, or of statute and common law. Statute law being the 
 express written will of the legislature, rendered authentic by cer- 
 tain prescribed forms and solemnities."e Statute law becomes 
 
 a 1 Black, Com. 39. v. 1 Com. 44. 
 
 h 2 Just. 1, 13. d 2 Kent's Com. -koC. 
 
 c 1 Com. 447.
 
 38 UsTFlODUCTOEY commentahy. 
 
 iinuiicipal, wlieu its force is confined to a particular community, 
 district or State. 
 
 It may be said, that a nations progress in morality, philoso- 
 phy, letters, arts, science, trade and commerce, civilization and 
 refinement, may be jDretty accurately ascertained from their 
 written, or statute laws. Their spuit, should, and doubtless 
 does, enter into the language in which they are drawn. Just in 
 proportion as these laws are grounded in natural justice, and 
 speak a language, evincing moral and intellectual progi'ess, they 
 exalt and adorn the character of her people. 
 
 In our own, as in every system of jurispradence, the statute 
 law forms but a part of the law of the system ; and it may be 
 safely asserted, that no system of jurisprudence would be perfect, 
 that should be confined to legislative enactments. It is not with- 
 in the power of the human mind, or in any combination of minds, 
 to foresee and provide rules beforehand, to regulate the conduct 
 of men in ever}' change and variety of circumstances and condi- 
 tions, so that when individuals neglect, or violate rules thus pre- 
 scribed, the departure from right, finds its exact description, and 
 finds a recognized laile to be apphed to it, which shall restore the 
 legal relations of the parties. 
 
 Therefore it follows, that the laws of every community, con- 
 sists of two elements. First, those rules of conduct which are 
 introduced by the law making power in an express and positive 
 form ; which control the particular cases and circumstances to 
 which they relate or describe, and which are called statutes, made 
 by legislation; and Second, those precepts of natural r^ght 
 which are not superceded by statute law, and vrhich, there- 
 fore, remain in fuU force as to all other circumstances 'c-A\d 
 cases, and which forever continue in force as the measure of jus- 
 tice until superceded or changed by legislation ; and while \v 
 force, controlled by the rudiments of legal science and the pro- 
 foundest of human wisdom and experience, remain at all times' 
 the highest s'ecurity and ])rotection of the citizen. 
 
 Perhaps in no feature of a nation's character, more; than in her 
 Avritten laAVS, is her moral and industrial character made Uiani- 
 ifest. They mthcate the progress of her civihzed development by 
 their relative fitness and simplicity ; and they afford materials
 
 INTRODUCTOllY COMMENT AKY. 30 
 
 for forming a judgment as to licr lettered skill and intellective 
 wisdom. Next to inspired revelation, the book which contains a 
 nations laws, is most important. From this, the citizen learns the 
 extent of his rights, and the nature of his pohtical and social 
 duties. In a country which has adopted it as one of its maxims, 
 tliat " ignorance of law excuses nobody," it should be the aim of 
 the lawmaker, that its statutes should be drawn in language clear 
 and simple ; that their meaning should bo plain and unmistaka- 
 ble ; and if ambiguity or doubt do seem to appear ; its maxims 
 and i-ules of mterpretation should be formed in the soundest wis- 
 dom. 
 
 Of all the degrees of authority which man exercises over man, 
 that of legislation is the most august and supreme. Statutes, gen- 
 erally, are made in affirmance of natural rights and duties, and 
 are declarative of them. Sometimes, they are positive regula- 
 tions for political reasons, for matters otherwise in themselves 
 indififerent.ft In an early stage of civil society, when laws were 
 few and defective, and the execution of them feeble and precari- 
 ous, much was necessarily left to the authority of the sovereign 
 power ; and this sovereign power was the king, who not only in- 
 terpreted and administered the laAv, but explained and adopted it 
 as a remedy to an existing case. Sometimes lords and prelates 
 were called in, to aid in dehberation, when the king was over- 
 tasked, but all petitions for rehef were then usually addressed to 
 the king. 
 
 ^ It was soon felt to be too much, " that the king should make, or 
 even alter laws of his own mere pleasiu-e, to suit his own private 
 purposes,"/; It began first to be disputed, when the laws, or the 
 alterations thereof, affected imfavorably the persons, or estates of 
 the great barons, but it now excites no surprise, that in this rade 
 age, the limits of executive, legislative and judicial authority 
 were left undefined, as they were all alike combined in the person 
 of the sovereign ; and it is believed that it was the love of pomp 
 and parade ; a desire to increase his supports in this display ; 
 and to gratify this pride, that induced the sovereign to call these 
 great chief barons mto a coimcil, or parliament. But the origin 
 of parliaments is not a part of this work. 
 
 a 1 Smith's Com. Cha. 1 & 5. 6 1 Reeve's History of English Laxr, 85,
 
 40 INTRODUCTORY COMMEXTAEY. 
 
 lu an American treatise upon statutes, it will not be practically 
 useful to devote much space in giving the origin, or in tracing 
 the history and progress of the statute laws of England, though 
 it is fi'om that country that many of our statutes are borrowed ; 
 and it may indeed be conceded, that many of our wisest enact- 
 ments are found to bo nearly accurate transcripts of English 
 statutes. 
 
 Though modern Eughsh writers now concur in definii)g their 
 statutes to be " the written will of Parliament, composed of King, 
 (Queen) Lords and Commons," it has been a cpicstion greatly 
 mooted in history, as to the period of time when statutes, that 
 are now expressly held to be such, were first passed in that coun- 
 try. The earhest statutes extant m j.)r/»te? hoohi, are those of 
 Henry III. a. During those of this reign, are Afagna Charta, and 
 Charta de Fovesta. 
 
 Before that period, what was some':imos called statutes, but 
 more commonly known by the name of ''assisr," or " (onsfifv- 
 iiones,'" were mere ordinances of the king, who usually provided and 
 ordained them. This was sometimes done by the advice of his 
 council ; sometimes the advice and consent of barons and dig- 
 nified ecclesiastics were added ; and in some instances, the con- 
 sent of the whole commonalty was expressed, h 
 
 There is great diversity of opinion among English autliors, and 
 of course, much uncertainty as to the fact, as to the extent of the 
 powers that were exercised at an carl}' day by the Kings of Eng- 
 land, with, or without the aid of parliament. Whether the lords, 
 spiritual and temporal aided in framing statutes and ordinances, 
 or were merely called in as councillors of the sovereign, is not 
 quite certain. Ruffhead, in his preface to the English statutes, 
 asserts, that down to the 23d of Edward the First, so little regard 
 was paid to the authority of the commons, that their assent was 
 not deemed essential to the passage of a law ; and that Peers 
 were considered merely counsellors ; that the high authority of 
 passing laws or ordinances was exercissd by the king, or by the 
 king and his justices. Sir Edward Coke, is of opinion, that pro- 
 visions made by two branches only, of the legislature, were ordi- 
 nances, and not statutes ; that .si a lutes were designed for perma- 
 
 a Dwarris ch vii. h Id.
 
 INTRODUCTORY COMMENTARY. 41 
 
 uent law, and ordinances were merely temporary experiments, 
 framed with a view to future and occasional amendment, a l3ut 
 it appears, that in the second year of Henry the Fifth, the com 
 mons being dissatisfied with the limited influence allowed to them 
 l)y the king, presented to him a strong memorial, then claiming, 
 that it had ever been tlieir freedom, that no statute or law sliould 
 be juadc Avithout their assent. To this, it Avas answered by the 
 king, " that the king, of his grace, especially gi-anteth, that from 
 henceforth, nothing be enacted to the petitions of his commons, 
 contrary to their asldng, whereby they should be bound without 
 their assent; saving alway, our Hege lord his prerogative, to grant 
 and deny as he should please, such petitions." h 
 
 This petition of the commons, and the response of the king, was 
 regarded as a complete change ; and was claimed to be the first vic- 
 tory on the part of the commons. Their power from thence, 
 became an integral and intlispensablo part of the legislatiu-e, 
 which they had long been laboring to estabhsh, and which they 
 now regarded as firmly consolidated and effectually secured against 
 any future violations of their legislative rights. 
 
 When these councils became characterized by the name of par- 
 liament, it then became necessary to devise a plan for authenti- 
 cating, preserving, and transmitting their decisions, or acts. This 
 was done by entering them upon what was called the rolls of par- 
 liament, which contained an account of all proceedings, legislative 
 and judicial. It was not until the reign of Edward III, that the 
 constitutional principle was established, that the long and two 
 houses of parliament in conjunction, were required in the enact- 
 ment of statutes, and that they in conjunction, possessed exclu- 
 sively the power of legislation. 
 
 After the commencement of the reign of Henry III, statutes 
 began to be published in solemn form, with captions, which 
 began: " Our Lord the King, etc., at his Parliament holden at, 
 etc., by the advice and assent of the Lords, Spiritual and Temporal, 
 and at the special request of the Commons of the realm bemg in 
 the same Parliament, hath caused to be made divers statutes and 
 ordinances," etc. 
 
 A reference, to this extent, to these Enghsh statutes and ordi- 
 
 a 4 Inst. 26. b Dwarris, 37. 
 
 6
 
 42 INTKODUCTOIIY COMJIENTARY. 
 
 nances, seems to bo necessary, iu order to sliow what was tlieir 
 -vdew of statutes ; wlien our colonies first enacted laws, Avhile yet 
 subject to tlie British government ; and also, at the time of our 
 separation fi'om them, and since ; because the judicial interpreta- 
 tion given at that time by Enghsh law writers to statutes, was a 
 part of the common law, which we also borrowed from that covm- 
 try, and then adopted as our own ; and except in so far as we 
 have wrought changes in this common law either by legislation or 
 by finding it inapplicable to our changed form of government, and 
 substituted changes more suited to the condition of a free 
 people, we still follow in practice, the interpretations of those 
 venerated sages of the English law whose mitings we regard as 
 standard authority.^ 
 
 These law writers, and also distinguished jurists, inform us, that 
 much of the common law which we so borrowed and adopted, is 
 nothing else but ancient statutes and ordinances worn out by 
 time ; a that all our law began by the consent of the legislature ; 
 that many of those things' that we take for the common law, were 
 undoubtedly acts of parhament, though not now to be found of 
 record, h 
 
 It would hardly be profitable in this work, nor within its 
 design, to trace the antiquity of the statutes of other nations than 
 that of England, for the reason that our early laws are in a large 
 degree copied from those of that country, or adopted into our 
 system. 
 
 The scholar, or curious student of the history of early legisla- , 
 tion who desires further research into this branch of law-making 
 power, is referred to the twelve tables of the Eoman repubHc, to 
 their fi'equent revisions of statute laws, and their forms of codifi- 
 cation ; especially as we have adopted into our jimsprudence 
 some ideas derived from the civil law. 
 
 a Wilmot, cli. j. 2 Wils. E. 348. 
 b Hale's History of the Common L:uv, Gfi. 
 Note 3.— Where the English statutes are ado];)tcd into our own legislation, the 
 known and settled construction of them, by the courts of law, is considered as 
 silently incorporated into the acts; or is received with all the weight of authority. 
 Pennochv. Dialogue, 2 Peters, 2. It is proper, that the construction given to 
 statutes in the country where they have been enacted, should follow the same 
 statutes when adopted here. Cathcart v. Eobinson, 5 Peters, 263.
 
 INTEODUCTORY COMMENTARY. 43 
 
 The common law of England, as modified by positive enact- 
 ment, together with the statute laws which were in force at tlio 
 time of the emigration of the colonists, became in fact, the com- 
 mon law, rather than the common and statute law of the colony. 
 The stahdf law of the mother country, therefore, when introduced 
 into the colony of New York', by common consent, (because it wa.'; 
 applicable to the colonists in their new situation and nc^t by leg- 
 islative enactment,) bcscame the common law of tlu; province.rt 
 
 Such i)artG of tho common law, as with acts of the legislature 
 of the colony o£ New York, formed the law of the colony on the 
 19th of April, 1775, which have not been altered, continue the 
 law of the State, subject to alteration by the legislature. Such 
 parts 0/5 are repugnant to the constitution, are abrogated. Const, 
 of N. Y. 1777 § 35 ; Const, of N. Y. of 1822, Ai't. 7, § 13 ; Const, 
 of N. Y. 1816, Art. 1, § 17. 
 
 New statutes in America, became necessary at once, upon our 
 reparation from the mother country. The old customs and models 
 of business in England, were in many respects, imsuited to our 
 new condition, and theory of government. But such of the 
 English statutes as guarded and secured to the people at large, 
 and to the individual, rights against the usurpations of power, 
 were re-enacted here, with but slight changes. Among these, are 
 the Jiaheus corpus, the statute of frauds, the statute of wills, 
 etc. The right of petition, and bill of rights were seciu'ed by 
 the fundamental law, the wiitten constitutions. 
 
 The best English definition of a statute, to be collected from 
 cpproved authors, is "such acts as are made by the king's 
 majesty, by and with the advice and consent of the lords spii'itual 
 and temporal, and commons in parliament assembled." This is 
 the written will of parliament. 
 
 Our American statutes are made by like solemnities of form, 
 and become the express written will of the legislature ; and they 
 are rendered authentic by prescribed constitutional and legal 
 forms and requu-ements. 
 
 While it is trae that our American legislatui'es, are in a great 
 degi-ee, modelled after the parhament of Great Britain ; and, that 
 the usages and customs of legislation here, are derived from the 
 a Bogardus v. Trinity church, 4 Paige, 498, 1 Mass. E, 60 ; 2 id. 534.
 
 44 INTEODUCTORY COMMENTARY. 
 
 parliamentaiy, or common law of England ; we are met at once 
 with a striking contrast, between the powers which may be exer- 
 cised by an American legislature, and those which are exercised 
 by the British parliament. 
 
 " The authority of the Enghsh parhament, in the enactment of 
 laws has no bounds ; it is transcendant. It is possessed of sov- 
 ereign and imcontrollable power." By the constitution of that 
 kingdom, this power, which is there despotic, runs without hmit, 
 and rises above all control. The vahdity of an act of parliament 
 cannot be di-awn in question by the judicial department." a 
 
 " It hath (says Sir Wm. Blackstone) sovereign and uncontrolla- 
 ble authority in the making, confirming, enlarging, restraining, 
 abrogating, repealing, reviving and expounding of laws, concern- 
 ing matters of all possible denominations, ecclesiastical or tem- 
 poral, civil, military, maritime or criminal. This being the place 
 where that absolute despotic power, which must in all govern- 
 ments reside somewhere, is entrusted by the constitution of these 
 kingdoms. All mischiefs and gTievances, operations and remedies, 
 that transcend the ordinary course of the laws, are within the 
 reach of this extraordinary tribunal. It can regulate, or new 
 model the succession to the crowoi ; as was done in the reign of 
 Henry YIII, and Wilham III. It can alter the established reh- 
 gion of the land ; as "was done in a variety of instances in the 
 reign of Henry YIII, and his three childi'en. It can change and 
 create afresh, even the constitution of the kingdom, and of the 
 parliaments themselves ; as was done by the act of union, and 
 the several statutes for triennial and septennial elections. It can, 
 in short, do everything that is not naturally impossible ; and there- 
 fore, some have not scrupled to call its power by a figure, rather 
 too bold ; the omnipotence of parliament." h 
 
 Though they boast of a constitution, they have no written con- 
 stitution. What is called the British constitution, consists of 
 the fundamentals of British polity, laid down in customs, prece- 
 dents, decisions, and statutes. The common law in it, is a 
 far greater portion of it, even than the statutes of parhament. 
 Their constitution depends upon the caprice of parhament. It 
 can be changed by them ; and it is changed by them from time to 
 
 a Dwarris. 5 1 Black. Com. IGl.
 
 INTEODUCTORY COMMENTARY. 45 
 
 time to meet emergencies. They have actually, in several instan- 
 ces, changed by legislative acts, some of the most fimdameiital 
 articles of government, and yet in no country, are the constitu- 
 tional principles, of civil and pohtical liberty, more discussed ; 
 and held to bo sacred, than in Great Britain, 
 
 With us in America it is different. Such strong expressions of 
 power, is entirely inappKcable to the idea of legislative authority 
 in American States. This difl'erence springs fi'om the different 
 theories upon which the two governments rest. In England, par- 
 Uament is recognized as possessing the sovereign power of the 
 country. The American legislature possesses but a portion of 
 the sovereign power. The sovereignty is in the people ; and the 
 legislatures wliom they create, can oidy discharge a tnist, (guarded 
 with restrictions, well defined) of which the people have made 
 them the depository. "When in a rt^publican, or other form of 
 government, it is asserted that the natural and necessary source 
 of civil authority is in the people ; it is intended that this is so, 
 until the govei'nmcnt has been formed ; for before the formation 
 of a government, it cannot be said the people have pohtical rights. 
 So that primarily, it may be asserted, that sovereignty resides in 
 God himself, wdio is the source of all order, power, right, and au- 
 thority. " By me kings reign, and princess decree justice ;"a and 
 St. Paul instructs us, that " there is no power but of God, that 
 the powers that be, are ordained of God."Z> As therefore, the 
 Deity liimself, does not condescend, directly to achninister the 
 government of States ; those upon whom the sovereignty rests, 
 are His depositories of the civil power. " There is one law-giver, "c 
 It is m this qualified sense then, that we speak of human, or 
 governmental sovereignty, and it is this sense that we say in our 
 repubhcan form of government, that the people are the source of 
 power. 
 
 The national and State governments, all have constitutions 
 reduced to writing. These constitutions emenate fi'om the peo- 
 ple, who are the original source of all political power. The peo- 
 ple in their sovereign capacity, ordain and establish this funda- 
 mental law, which is paramount to the power of the legislature, 
 and is the supreme law of the land. The powers of the legisla- 
 
 a 1 Proverbs 8, lo. h 2 llomaus 13, 1. c 3 James 4, 12.
 
 4<5 INTPiODUCTOEY COMMENTAEY. 
 
 ture are derived fi'om tlie constitution, and are subordinate to 
 it. They are but one branch of the sovereignty, their acts de- 
 pend upon, are hmited by, and must be conformable to the con- 
 stitution. Every act of the legislature repugnant to tliis -written 
 fundamental law, is absolutely void. 
 
 Notwithstanding the difference in power and effect, as we have 
 shown, between the statutes passed by the English parhament, 
 and those passed by the legislature of the American States, the 
 law of interpretation of statutes in most respects, is in both coun- 
 tries, substantially in accord and harmony. 
 
 Note. — It is in regard to tliis liarinony of views, and to the prescntatiou of 
 variances, "n-lierever they are found to exist between the laws of the two coun- 
 tries, that much of this work v/ill be devoted.
 
 GENEKAL KsTErJT.ETATION OF STATUTES. 47 
 
 CIIAPTErt II. 
 
 GENERAL DsTEIirRETATIOX OF STATUTES. TURLIC AND TRR'ATE 
 STATUTES. ]\IANNER OF AUTHENTICATION OF STATUTES. DIS- 
 TINCTION BETWEEN AMERICAN AND ENGLISH STATUTES. OF 
 LEGISLATIVE POWER -ENGLISH AND AilERICAN. OF JUDICIAL 
 POWER. 
 
 The consideration, and the interpretation of American statutes, 
 enacted under written constitutions which Hmit the legislative 
 power, presents another, and a distinct branch of law for examina- 
 tion, not known to the law of England, and is not therefore, neces- 
 sarily treated of by Dwarris and other EngUsh writers. Farticu- 
 hir rules of intei-pretation, laid down by distinguished authors 
 on municipal and civil law, as well in England as elsewhere, inclu- 
 ding American law, will be found in a subsequent chapter. Before 
 proceedmg to the general consideration of the different divisions 
 a.ul characteristics of statutes, a few general rules for their inter- 
 pretation may not be inappropriate. 
 
 Professor Lieber in his work on " Legal and PoUtical Herme- 
 neuties,"a lays down this sound proposition ; " that the very 
 basis of all interpretation is, that no sentence or form of words can 
 have more than one true sense." So that a statute enacted by 
 t1i(^ legislature, like the utterances of an individual, or of any 
 otlior body of individuals, in the use of words, does so, to convey 
 some certain meaning ; and to find their precise meaning, is 
 (he AA'liole object of interpretation. If words used, arc so 
 employed, that they are capable of two meanuigs, equally sensi- 
 l)h', it amounts to such an absurclit}', that it is equivalent to having 
 no meaning at all. " Even if a man use words, from kmdness or 
 malice, in such a way that they may signify one or the other 
 thing, according to the view of him to whom they are addressed, 
 tlie utterer's meaning is not two-fold; his meaning is, simply, imt 
 
 a Chap, i, § 2.
 
 48 GEKElu\L IN'TEEPKETATION OF STATUTES. 
 
 to express his opmion.'' Tliis prmcij)le of interpretation, may witli 
 equal propriety, be carried into a statute, where fi'om its letter, 
 sueli must be lield to be its design. 
 
 In no case of human life in which we are called upon to act, 
 to apply rules, or to understand what others say, can we dispense 
 with common sense, and good faith ; a but they are pecuUarly 
 requisite in interpretation, because its object is, to discover some- 
 tliing that is doubtful, obscure, veiled ; which, therefore, may 
 admit of different explanations. If without common sense we 
 may make even of strict syllogism, an insti-ument, apparently, to 
 prove absurdities, how much more are those two ingredients of 
 all honesty, necessary in interpretation. Common sense and good 
 faith, are the leading and principal characteristics of all interpre- 
 tation. The object must not be, to bend, twist, or shape the text 
 until it can be forced into the mould of preconceived ideas ; but 
 simply and solely, to fix upon the true sense, whatever that maj- be. 
 
 Good faith in interpretation, means, that we conscientiously 
 desire to arrive at truth ; that we honestly use all means to do so ; 
 and that we strictly adhere to it ; when known to us, it mean=!, 
 the shunning of subterfuges, quibbles and political shuffling ; it 
 means that we take words fairly as they were meant. 
 
 If good faith be not the guiding star to direct in the construe 
 tion of solemn instruments, hke constitutions and statutes, no 
 human wisdom can devise an instrument of this character that 
 may not be interpreted so as to effect any thing but that for 
 which it was intended. We gain nothing by verbosity, or a mi- 
 nute enumeration of details ; for the instmment, especially if it be 
 a constitution, is to embrace all branches, and to hold good for 
 many generations. If we attempt then to detail for every thing 
 oefore hand, we only impede, fetter and obstruct. This has been 
 fully proved by experience ; if on the other hand the instrument 
 contains only the great principles and general outlines of the 
 power conferred, then faithless interpretation has free play. Con- 
 stitutions are useful and indispensible for the clear understanding 
 of citizens on the most important subjects affecting their rights ; 
 to give them a fair and intelligent knowledge of the all iui- 
 portant elements of their rights to civil liberty ; of the relation 
 
 a LieLers Political Ethics, vol. I, Book 1, chap. G.
 
 GENERAL INTERPRETATION OF STATUTES. 49 
 
 of the citizen to society iu the aggi-egate, the State; and to 
 furnish an independent judiciary a fulcrum, to rest its lever upon 
 against hiws hostile to that true relation of tlio individual to the 
 State ; laws, which might otherwise oppress him. 
 
 " It is not constitutions that make liberty. Liberty is not secured 
 by a certam number of words written on parchment. The parch- 
 ment, with its ink upon it, may be eaten by the worms ; it may 
 be torn to shreds by any daring hand ; but if an independent 
 judiciary shall pronounce the solemn expression of its trae spirit, 
 as the law of the nation, or of the State, the li^^ng words of their 
 judicial interpretation, shall be perpetuated. "a 
 
 Let all such judicial determinations bear the impress of good 
 faith, with hberal vie^vs of construction in favor of ci\il hberty. 
 " Let everything that is in favor of power be closely construed ; 
 everything in favor of the security of the citizen, and the protec- 
 tion of the individual, be hberally and comprehensively intei-pre- 
 ted ; for the simple reason, tliat power is power, and therefore 
 able to take care of itself, as well as tending by its nature to 
 increase, while the citizen may need protection." 
 
 For the same reason says Mr. Liebcr,« ought we always to be 
 ready to construe comprehensively, in favor of the indej)endence 
 of the judiciary, and against the executive, because, it is all 
 important that the judiciary be independent, while it has none 
 of those many influential means of the executive ; no pageantry ; 
 no honors to bestow ; no salaries to dispense ; no army, navy, or 
 grants of land at their disposal. It rests only on opinion, a 
 mighty power indeed, in an honest and faithful administration of 
 its department of the government. Hence it should be shielded." 
 
 All new laws, though penned Avith the greatest technical skill, 
 and passed upon the fullest and most mature deliberation, are 
 considered as more or less obscure and equivocal until their 
 meaning be fixed and ascertained by a series of particular dis- 
 cussions and adjudications. Besides the obscurity arising from 
 the complexity of the objects and the imperfection of human fac- 
 ulties; the medium through which the conceptions of men are 
 conveyed to each other adds a fresh embarrassment, the use of 
 words is to express ideas. Perspicuity, therefore, requires not 
 
 a Lieber's Polilicul Ilermonouties, chap. G, § 10. h Id. 
 
 7
 
 60 GENERAL INTEEPEETATION OF STATUTES. 
 
 only that tlie ideas sLould be distinctly formed, but tliat they 
 should be expressed by words distinctly and exclusively appro- 
 priated to them. But no language is so copious as to supply 
 ^\'ords and phrases for every complex idea, or so correct as not to 
 include many, equivocally denoting different ideas. Hence it 
 must happen; that however accurately objects may be discrimi- 
 nated in themselves ; and however accurately the discrimination 
 may be considered ; the definition of them may be rendered inac- 
 curate ; by the inaccuracy of the terms in which it is delivered. 
 And this unavoidable inaccuracy must be greater or less, accord- 
 ing to the complexity and novelty of the objects defined. " When 
 the Almighty himself condescends to address mankind in their 
 o^Ti language. His meaning, luminous as it must be, is rendered 
 dim and doubtful by the cloudy medium through which it is com- 
 municated."a 
 
 Here then are three sources of vague and incoiTect defini- 
 tions ; indistinctness of the object, imperfection of the organ of 
 conception, and inadequateness of the vehicle of ideas. Any one 
 of these must produce a certain degree of obscurity. 
 
 No human wisdom can prepare a law in such a form, and in 
 such simplicity of language, as that it shall meet every possible 
 complex case that may afterward arise. "Whatever skill and fore- 
 thought the most profound of human law-makers may have called 
 to his aid, it will be found that even such law-giver, though he 
 may possess the highest of intellectual gifts, will not possess 
 grasp of mind, enough to draw up a constitution, or an enactment 
 so perfect at the time it is drawn, that no doubtful case shall not 
 afterwards arise as to its meaning. And as time wears on, and 
 the wants and habits of society become changed, as they ever 
 will change with the progressive march of 'inteUigence, especially 
 in a land enjoying the blessings of civil and rehgious freedom ; 
 the interpretations, suitable to a past age, will become more and 
 more impracticable to the present, as to all new questions. 
 
 These are propositions so well confirmed by experience, that 
 statesmen and la^-j^ers now agree upon the wisdom of preparing 
 such instruments with general outhnes, in language clear and 
 easily understood, rather than of attempting minute details, how- 
 
 a Federalist, No. 36.
 
 GENERAL INTERrRETATION OF STATUTES. 51 
 
 ever elaborately extended ; the tendency of uliich is found in ex- 
 perience to contract, and often to confuse the expression of intent. 
 It is found to be far easier to obtain the intent of the legislator, 
 when laws are brief and clear, and to rely upon good faith and 
 common sense for their construction, than to bo embarrassed at 
 every step with di-tails, which prevent the application of general 
 principles, because the specific case has not been enumerated and 
 singled out by the hiAV-makers. It is, however, a well known 
 maxim of jimsprudencc, that the certainty of the law, is next in 
 importance to its justice. I>y certainty of the laAV is meant, that 
 it be well defmed, known, and unchangeable, and also that its pen- 
 alties fall with unerring certainty upon those who deserve them. 
 
 It has been slioAvn that it is impossible to word laws in such 
 a manner as to absolutely exclude all doubt, or to allow us to dis- 
 pense with construction, even if they were worded with absolute 
 (mathematical) precision, for the time for which they were made ; 
 because things and relations change, and because different inter- 
 ests conflict wdth each other. The very object of general laws, 
 is to estabhsh general rules beforehand ; for if we w^ould attempt 
 to settle each case, according to the views, which, with the momen- 
 tary interest it might itself suggest, we would establish at once 
 the most insufferable tjTanny or anarchy. This inherent gener- 
 ahty, however, is likewise the reason why the application of laws 
 require construction, since most cases occurring are of a com- 
 plex character. It is in vain, therefore, to beheve in the possi- 
 bility of forming a code of laws absolutely distinct, like mathe- 
 matical theories. All that true wisdom requires is to make laws 
 as distinct and perfect as possible, following both the dictates of 
 reason and the suggestions of experience, and carefully to estab- 
 lish rules of interpretation and construction, or legal hermeneu- 
 tics.a 
 
 " Yet it is my settled conviction, that the clearest possible laws 
 are an incalculable blessing to a community extending much far- 
 ther than merely to the avoiding of unnecessary litigation, whilst 
 obscure or imnecessarily intricate laws are a very curse to a 
 nation, and serve to unite the lawyers into a compact, formidable 
 and privileged class."Z» 
 
 a Lieber, cliap. G, sec. 7. b Id.
 
 52 PUBLIC AKD TErVATE STATUTES. 
 
 Statutes admit of a variety of di\isions, namely, public and 
 private, declaratory and remedial, preceptive, prohibitive, per- 
 missive and penal, temporary and perpetual, affirmative and neg- 
 ative, prospective and retrospective, constitutional and unconsti- 
 tutional. 
 
 In treating of the division of statutes, we shall omit that dis- 
 tinction which exists in England, but which has no apj)hcation 
 here, to wit, between ancient and modern statutes ; those dating 
 before and those after a certain period in Enghsh history.a Ameri- 
 can statutes that have not been repealed, or are not in some way 
 abrogated, do not become impaired by mere lapse of time, but 
 are all equally in force ; and though here, as in England, we have 
 acts known as 2^vl>Uc, and private acts, and also, as local and 
 personal acts, unhke the Enghsh, our statutes are all printed 
 and pubhshed.?> Each of these divisions will be noticed in their 
 appropriate place. 
 
 We might in this place refer to another division of statutes 
 that exist here, which is imknown in England, to wit : stat- 
 utes of the United States or federal government passed by 
 Congress; statutes of the several States passed by the legis- 
 ' latures of the several States ; and colonial statutes passed by 
 the several colonial governments before their separation ; to 
 which it may perhaps be added, territorial acts, passed by the 
 new territories before their admission in the Union as States. 
 But this last division is of little practical importance, and calls for 
 no special consideration. 
 
 The first division of statutes that I propose to notice, is that 
 of general, or puhUc acts, and such as are special or private. 
 
 AjJuUic act is a universal rule, that regards the whole commu- 
 nity ; and of this, courts of law are bound to take notice judi- 
 cially, and ex officio, without the statute being particularly pleaded, 
 or formerly set forth by the party who claims advantage under 
 it. c Private acts are those which concern only a particular 
 
 a The antiquari.in or student who may be curious to learn the history of early 
 ordinances of the King and his Council, is referred to the iirst volume of Dwarris 
 ■which is chiefly devoted to such early history. 
 
 I) Art. 6, Const. N. Y. of 184G,§ 22; Const. U. S., art. 4, § 1 ; Statutes at Large, vol. 
 1; 122; vol. 9, 75. 
 
 c 1 Black. Com. 80. Com. Dig. tit. rarliumcut, E, 7.
 
 rUBLIC AND riUVATE STATUTES. 53 
 
 species, thing, or person ; of which the judges will not take notice 
 without pleading them ; as acts relating to any particular place ; 
 or to divers particular towns; or to one or divers particular 
 counties; or to a college or university; etc' It is sometimes 
 difficult to draw the line between a pubHc and private act, for 
 statutes fi'cqucntly relate to matters and things that are partly 
 pubUc and partly private. Generally speaking, statutes are 
 public ; and a private statute may rather be considered an excep- 
 tion to the general nile.a The most comprehensive, if not the 
 most precise definition, is that given by Dwarris ; " that public 
 acts relate to the pubhc at large, and private acts concern the 
 particular interest or benefit of certain individuals, or of particu- 
 lar classes of men." 
 
 In a general act, there may be a private clause, b So, a statute 
 which concerns the public revenue is a iniUic statute, but some 
 clauses therein, may, if they relate to private persons only, be 
 private ; for a statute may be public in one part, and private in 
 another, c * 
 
 A general or public act, then, regards the whole community ; 
 special or private acts relate only to j)articular persons, or to pri- 
 vate concerns. Public acts, the courts of justice are bound ex 
 officio to notice, without their being formally set forth. Of pri- 
 vate acts, the judges are not bound to take notice unless they be 
 formally shown and pleaded. And this is the doctrine, though 
 the private act should make void all proceedings to the contrary 
 in such place, d 
 
 As the judges are bound to take notice of a general law, so it 
 is their province to determine Avhether it be a statute or not, and 
 whether pubhc or private. It was held upon one e occasion that 
 
 a 1 Kent Com. 459. d Skin., 350. 
 
 6 4 Cowen. 79. e Lord Kaym., 709. 
 
 c Dwarris. 
 
 Note 1. — The exceptions to this rule are in the State of Virginia. These pri- 
 vate statutes need not be pleaded, yet they must bo exhibited in court as docu- 
 ments. Even there, they will not be noticed judicially like public statutes. Le 
 Grand v. Hamp. Sid. College, 5 Munf. K 32-4. And in Kentucky, the courts judi- 
 cially notice private as well as public statutes, if printed without their being form- 
 ally pleaded. Ilalbert v. Skyles, 1 Marsh. Ken. K 3G8. Farmers and Mechanica 
 Dank v. Jervis, 1 Munroe, K. 4, 5. 
 
 Note 2. — Laws creating banks of issue, though not declaring themselves public, 
 are public laws. Smith v. Strong, 2 Hill, 241 ; Bank of Utica v. Smedes, 3 Cowen 
 662.
 
 54 PUBLIC AND rWVATE STATUTES. 
 
 the judges are not obliged to take notice of a statute of general 
 liar don, unless tliey are by such statute itself directed to do so ;a 
 for as a "-eneral pardon only relates to offenders, it is not a public 
 statute. For it is added, it is by no means a consequence that 
 because a man is enabled to give such statute in evidence upon 
 the general issue, that the judges must take notice of it for any 
 other piu'xjose. But this appears to be a harsh constniction, and 
 such as would scarcely be supported at the present day. Accord- 
 ino'lv, another case will be found, h decided about the same time, 
 iu^'hich a statute for the chscharge of poor prisoners was rehed 
 upon by the defendant, and an exception taken that it should have 
 been pleaded at large (being a private statute), as not extending 
 to aU prisoners, but to such only as were in prison at a time men- 
 tioned in the act. The court, however, constraed it to be a pub- 
 he statute, holding that all the people of England might be inter- 
 ested as creditors ; that, as a mercifid act, it should have a favor- 
 able construction ; and that poor prisoners ought not to be put 
 to the difficulty and expense of pleading it speciahy :— three 
 grounds, which were sound, merciful and just. 
 
 The probable gi'ounds of the declared difference in tlie judicial 
 notice of statutes, pubhc and private, may be {besides the solem- 
 nity and intrinsic authority of a public act of the legislature, and 
 tl^e supposed greater notoriety of a matter of universal concern), 
 the extreme inconvenience of a contrary rule, and the difficulty 
 and uncertainty of which it would be productive. 
 
 The i-ule which wo have given, however, without regard to the 
 supposed reasons for its adoption, depends on positive law, and 
 not on conjectural expediency. Accordmgly, the existence of a 
 pubhc act must be tried by the judges, who are to inform them- 
 selves of this, in the best way they can. A private act may bo 
 put in issue and shall be tried by the record.' 
 
 a Ingram and Foot, 12 Mod. 613. h Lord Eaym. 120, Jones v. Axcn. 
 
 j^oTE 3. A private act that confirms a Lmd claim, is presumed to have been 
 
 passed with reference to the particular claims of the individuals who so claim to 
 be interested, and to the situation of the land embraced in the law at the time it 
 was passed; but such an act does not enlarge the parties rights as against adverse 
 claimants, nor conclude them. Pollard's heirs v. Kibbe, 14 Pet. 353; Laufear v. 
 Huntly, 4 Wall. 204. Though an act confirming a deed given by an executrix on 
 a sale of land in order to pay the testators debts, will be held good as against the 
 heirs at law of the testator. Leland v. Wilkinson, 10 Pet. 294. 
 
 2. It has been held that vrhere a statute makes it felony to steal the notes of a 
 particular bank, its act of incorporation thereby becomes a public statute,* U. S. 
 v. Porte, 1 Cranch. C. C. Pi. 3C9 ; and in Young v. Bank of Alexandria, 4 Cranch. 
 R. 388, an act of the State of Virginia, incorporating the Bank of Virginia was 
 declared a public act. 
 
 * What is a public act? 4 Pet. 16G.
 
 DIVISION OF STATUTES. 55 
 
 To both the general mlcs, that general or public acts are to be 
 noticed judicially without pleading, and that special acts must be 
 shown by pleading, there will be found in this country some other 
 exceptions. Among these exceptions, are those that rejate to the 
 particular character of the statute, and among these, are the 
 statutes of limitations, and the statute against usury. These are 
 pubhc and general statutes, yet the party who intends to avail 
 himself of their benefits, must plead them, or he will not be per- 
 mitted to give the defence arising under 8uch statutes in evidence. 
 
 And though a cause of action appear in the declaration or com- 
 plaint to have accrued upwards of six years before the commence- 
 ment of the action, a defendant can only have the advantage of 
 it by plea, or answer.ft 
 
 But in pleading in a case which is to be governed by the prin- 
 ciple of a statute of the mother countiy which became a pai*t of 
 the colonial common law, it is not necessary to refer to the statute; 
 it is enough to plead the facts which bring the case within it as a 
 part of the common law of the State.& 
 
 Acts of Parliament are, again, declakatory of the old law, or 
 introductory of new, or both, as by the addition of greater pen- 
 alties, the destruction of particular customs, and the like. Declar- 
 atory, are necessarily in their terms, filJirmativc or negative. Both 
 kinds of laws, those declared and aHirmcd, as well as those newly 
 enacted, may be tenal ; the affirmance of the anterior law can- 
 not properly be styled remedial. A subordinate division of 
 remedlUj acts has been made into enabling and disabling — 
 ENLARGING and RESTRAINING — statutes. Tliosc against natural law 
 and reason are said to be void. 
 
 It is proposed to examine the natiire of each successively ; the 
 rules with regard to their construction wiU be more fitly consid- 
 ered at a future period. 
 
 a See 2 CLitty, PI. -loO and notes; Puckle v. Moor, 1 Vents. 191; Lee v. Eodgers, 
 1 Lev. 110; Gooldv. John, 2 Ld. Kaym. 838; N. Y. Code, § § 7-1, 119, 150; Voor- 
 hees V. Voorhees, 24 Barb. 150; Sands v. St John, 3G Barb. G28. 
 6 Bogardus v. Trinity Cliiircli, 2 Paige E 198. 
 
 3. A iirivate act of incorporation is to be regarded as in the nature of a con- 
 tract, and cannot eSect the rights of individuals who do not assent to it ; but 
 their assent may be inferred from their acts, such as taking benefits under it 
 Beatly v. Knowler, 4 Pet. 166. 
 
 4. An act prescribing the boundaries of a county is a public act. Steiihenson 
 V. Doe, 8 Black. 508.
 
 56 DIVISION OF STATUTES. 
 
 And first of declaeatory acts. These are made wLere tlie eld 
 custom of tlie kingdom is almost fallen into disuse, or become 
 disputable, in wliicli case the Parhament has thought proper, in 
 Iterpetmnn rei testimonium, and for avoiding all doubts and diffi- 
 culties, to declare what the common law is and ever hath been. 
 And such statutes are expressed affirmatively, or in negative terms. 
 A statute made in the affirmative, without any negative expressed 
 or implied, does not take away the common law. It follows, that 
 it does not effect any prescriptions or customs clashing with it, 
 -.i-hich were before aUowed ; in other words, the common law con- 
 I'.nues to be construed as it was before the recognition by Parha- 
 ment. 
 
 The next difference observable between public and private 
 statutes, is, that particular, as opposed to general acts, will not 
 bind strangers ; though they should not contain any savmg of 
 their rights. A general saving of the rights and interests of all 
 ]:>ersons whatsoever, except those whose consent was given or pur- 
 chased, and who were particularly named in the act, used to be 
 constantly added to all private bills ; but it was held, that, even 
 if such sa\dng w^ere omitted, the act would bind none but the 
 parties. At present, it is usual a in preparing modern private 
 acts, to insert, ex cautela, a special saving clause, explaining how 
 far the rights of strangers are intended to be affected. 
 
 The reason of the rale is apparent, and the rule itself is founded 
 in wisdom and justice. Every person is considered as assenting 
 to a public act ; b but it is a ride, that private acts of Parliament, 
 introduced only for the settlement of particular estates, ought to 
 be considered merely as common conveyances, and directed by 
 the same rules of law ; and therefore they cannot be taken^ to 
 extend as a discharge of any person's right not mentioned in the 
 act. This, says the judicious and candid commentator on the 
 laws of the United States of America c is a safe and just rule, 
 and it was it was adopted by the English Courts in very early 
 times,cZ and does great credit to their hberality and spirit of 
 justice. It is supported by the opinion of Sir Matthew Hale, in 
 Lucy and Levington, o where he lays down the rule to be, that 
 " though every man be so far a party to a private act of Parha- 
 ment as not to gainsay it, yet he is not so far a party as to give 
 up his interest." It is the great question in Bamngton's case, 8 
 Eep.. " The matter of the act there directsMt to be, between the 
 foresters and the proprietors of the soil ; and therefore it shall 
 not extend to the commoners, to take aAvay their common. Sup- 
 pose a statute recites, that whereas there was a controversy con- 
 cerning land between A. and B., and enacts, that A. shall enjoy 
 
 a See Hargrave and Butler's note to Co. Litt. 98. c 1 Kent, 427. 
 h Per Lord Hardwicke, And. 40, 1 T. E. 93. el Ventris, 175. 
 
 d Bro. Pari. pi. 27; Barrington's case, 8 Rep. 138.
 
 PUBLIC AND PRIVATE STATUTES. 57 
 
 it, this would not bind the interest of tliird persons in that land, 
 because they arc not strictly parties to the act, but strangers ; 
 and it would be manifest injustice that the statute should affect 
 them." This rule as to limiting the operation of private statutes, 
 is adopted l)v the Courts of the United States of America.a 
 
 Anotlier diflerence has prevailed in England with regard to 
 offering these different statutes in evidence. The printed statute 
 book has been at all times admitted as evidence of a ^>//W/r statute 
 of Parliament, not as an authentic copy of the record itself, but 
 as (so it is gravely said) hints of that which is supposed to be 
 lodged in every man's mind already, b And now by the statute 
 41 Geo. 3 Ch. 90, § 9, made for the better and more effectual 
 proof of the statute law, it has been enacted that the copies of 
 the statutes of Great Britain and Ireland prior to the Union, 
 printed by the i)rinter duly authorized, shall be received as con- 
 clusive evidence of the several statutes in the courts of either 
 kingdom. But as we have before stated, a 2>nva(e act may con- 
 tain clauses of a public nature ; and then, the act, so far as those 
 are concerned, is to be regarded as a public act.c The public are 
 not generally considered as affected by the contents of a private 
 act ; and facts recited in the preamble of a private act, is not 
 proof of those facts as against a stranger, a tliird party, or the 
 pul)lic." 
 
 The regular proof of private acts of Parliament, is by an 
 examined copy compared with the original in the Parliament 
 office at Westminster.^^ But gi'eat inconvenience having been 
 foimd to result fi'om the necessity of such strict proof, a special 
 clause has now, usually been inserted, providing that the act shall 
 be deemed public, or pro\dding that they should be printed by 
 the King's prmter, and that a copy so prmted, shall be admitted 
 as evidence of the act. In such cases, a copy purporting to be 
 printed by the King's printer, will be admissible in e^ddence ; it 
 is not necessary to prove that the act was printed at the King's 
 printers.e 
 
 "Where the copy of an act is incorrect, the court will be gov- 
 erned by the Parliament Roll./' 
 
 It should also be remarked, that there is a diflerence between 
 pro-s-ing private acts to a jury, and proving them on the issue of 
 
 a Kent's Comm. on American Law, voL 1, 428. d Phil. Ev. 30G. 
 
 b Gilbert's Ev. 10. e 2 Phil. Ev. 129, R. v. Shaw. 12, East. R. -179. 
 
 c R. V. Utterby, 2 Phil. Ev. 127. /Rex v. Jeflfrie, 1 Str. U6. 
 
 Note 5. — Every subject of a govcrumcut, is, in judgment of law, privy to the 
 making oi a public statute, and is supposed to know them. The passing of a 
 jDublic legislative act, is a public iiroceeding in all its stages, and when it is 
 passed, it is in contemplation of law, the act of the whole body of the State. But 
 recitals, even in a public act are not conclusive evidence of the facts therein 
 stated. 2 Phil. ev. 272. 
 
 s
 
 58 AUTHENTICATION OF STATUTES. 
 
 nul tiel record, wliicli never goes to a jury ; nothing less tlian an 
 Exemplification nndcr tlic Great Seal being sufficient in the latter 
 case. 
 
 And so much for the division of statutes into public and 
 private acts, with their respective incidents. 
 
 Statutes are either declaratory of the common law, or remedial 
 of some defects therein.a Declaratory statutes are generally 
 introductory of a new law ; remedial statutes, are generally men- 
 tioned in contradistinction to penal statutes. In the consti-uction 
 of remedial statutes, three points are to be considered. 1st, the 
 old law, 2d, the mischief, and 3d the remedy. That is, 1st, how 
 the common law stood at the time of the making of the act ; 2d, 
 what the mischief was for which the common law did not provide, 
 and 3d, what remedy the statute hath provided to cure this mis- 
 chief. And it is the duty of Judges, so to construe the act, as to 
 suppress the mischief, and advance the remedy.6 
 
 The authentication of our national statutes is now declared by 
 an act of Congress, passed August 8, 1846, (Statutes at Large, 
 Vol. 9, 75) ; by which it is enacted, that the laws and treaties of 
 the United States, published by Little & Brown, shall be compe- 
 tent evidence of the several jnihlic and private acts of Congress, 
 and the several treaties therein contained, in all the courts of law 
 and equity, and of maritime jurisdiction, and in all the tribunals 
 and public offices of the United States, and of the several States, 
 A\dthout any further proof or authentication thereof. 
 
 By another act of congress, passed May 26, 1790, (1 Statutes 
 at Large, Vol. 1, 122,) it is declared, that the acts of the legisla- 
 tures of the several States shall be authenticated by having the 
 seal of their respective States affixed thereto. Courts will pre- 
 sume that the person who affixed the seal had authority to do so.c 
 
 But these authentications, so far as they relate to the courts of 
 the United States, ipefer only to jpublic statutes. Private statutes, 
 and laws, and special proceedings, are governed by a different 
 rule. They are matters of fact, to be proved as such in the ordi- 
 nary manner, d 
 
 An act of a State legislature, which contains a provision declar- 
 ing it a pubhc act, must be noticed by the courts of the United 
 States without being specially pleaded,e otherwise not. 
 
 a 1 Black. Wm. 86, E. 22. 5 Co. Litt. 11, 42. 
 
 c United States v. Amedy, 11 AVheat. 392 ; Same v. John.son 4 Dallas, 412, 416. 
 d Leland v. Wilkinson, 6 Peters 617. 
 e Beatty V. Knowler, 4 Pet. 152; Drawbridge Co. y. Shepherd, 20 How. 232.
 
 AUTHENTICATION OF STATUTES. 59 
 
 Statutes and edicts of foreign countries must be produced in 
 evidence.a If it does not appear tliat foreign laws in question 
 were in uriiiiu/ as puJiJic edicts or statutes, they may be proved 
 by parol. 6 
 
 A copy of the Civil Code of France, presented to the Supreme 
 Court of the United States with this endorsement : " Le Garde 
 dcs Scmux de France a la Cocur Supreme Dcs Mats Uriis" has 
 been admited as evidence of the written laws of France/; The 
 court held, that the endorsement was a sufficient authentication, 
 inasmuch as it was given in reciprocation of a donation made by 
 congress, to France, of the laws, resolutions and treaties of the 
 United States. 
 
 In the State of New York, the Pievised Statutes, (/ provide for 
 the formahties of enacting laws by the legislature, the duty of 
 the Secretary of State in certifying them, and indorsing on them 
 the day of their passage, delivering such laws to the printer, 
 and the time when it became a law ; and if certified by the pre- 
 siding officers of the senate and assembly to have been passed 
 by a vote of two-thirds of the members elected to each house, 
 then the secretary shall add to his certificate the words, " hj a iico- 
 tJiird vote," and which certificate is made presumptive evidence of 
 such fact. If not so certified, the presumption is that the act was 
 not passed by two-thirds of the legislature. Each volume of 
 laws printed and pubHshed for the State shall contain the certi- 
 ficate of the Secretary of State, to the effect, that the said volume 
 was printed imder his direction. And all laws passed by the leg- 
 islature, so certified, may be read in evidence fi'om the volumes 
 so printed under the directions of the Secretary of State. 
 
 By the provisions of the Code of Procedure of this State (§ 426), 
 it is enacted, that printed copies in volumes of statutes. Code, or 
 other written laws, and of the proclamations, edicts, decrees and 
 ordinances by the executive power of any State or tenitory,' or 
 foreign government, when printed in books or publications piu-- 
 porting or proved to have been pubhshed by the authority thereof, 
 or proved to be commonly admitted as evidence of the existing 
 
 o Robinson v. Cliffon, 2 Wash. C. C. E. 1. cEnnis v. Smith, 11 How. 401. 
 b Livingston v. Maryland Ins. Co. G Cranch. G74. 
 d 1 Kevised Statutes, Marg. p. 157, 158.
 
 60 STATUTES A^T> THE EYTDENCE OF THEM. 
 
 law in tlie courts and judicial tribunals of such State, territory, or 
 government, sliaU be admitted by tlie courts and officers of this 
 State, on all occasions, as presumptive evidence of such laws, pro- 
 clamations, edicts, decrees and ordinances. 
 
 A similar provision has been adopted by a large proportion of 
 the States of the union. It will hardly be useful to go through 
 with an examination of the enactments of the diflfereut States in 
 this respect. It may suffice to say, that before these statutes of 
 comity were passed, and in those States where no similar statute 
 has yet been enacted, both public and private statutes at common 
 law, could be proved by the seal of the State, or country whose 
 law is thus sought to be proved, a 
 
 These mutual pro%isions of statute, on the part of the national 
 and State legislatures, are supposed to arise from mutual interest 
 and utihty, as a kind of coui"tesy and comity between States, and 
 from a sense of the gi'eat inconveniences that would result from a 
 contrary doctrine. This inconvenience creates a kind of moral 
 and reciprocal necessity between independent States, to do jus- 
 tice to others, that justice may be done to them inretui'n. Espe- 
 cially does this seem to be demanded between sovereign States, 
 between whom commerce has introduced frequent and intimate 
 relations of extensive intercourse.?^ The intimate union of these 
 States, as members of the same gi'eat pohtical family, mutually 
 dependent on each other in various ways ; the deep and vital 
 interests which bind them so closely together, all recognizing one 
 common sovereign; would natm-ally create a greater degree of 
 comity and friendship than is felt between foreign nations. 
 Therefore, these provisions of statute comity between States. It 
 is more than doubtful, however, whether the courts, independent 
 of statute provisions, could declare or establish a common law 
 comity between independent States. 
 
 The law-making power of the United States, and of the several 
 States, (as in most other civiHzed governments,) is vested in the 
 legislatures or representatives of the people, in the manner pre- 
 
 a Dougherty v. Snyder, 15 Searg & Eawle, 87 ; Story on Conft. of Laws, 530. A 
 sworn copy is also admissible. Lincoln v. Battelle, 6 Wend. 482 ; 15 S. & K. 87. 
 
 b Blanchard v. Eussel, 13 Mass. 4 ; Story on Confl. of L. § 25 ; Bank of Augusta 
 V. Earle, 13 Peters, 519.
 
 POWER OF ENACTING STATUTES. Gl 
 
 scribed by theu' fundamental law. This power of enacting laws, 
 is sometimes called tlie sovereign power, but it is not, as we liave 
 seen, absolute sovereign power, in every sense or meaning of 
 the word sovereignty, when appUed to the authority of legislation 
 under American written constitutions." When ai:)plicd to other 
 States of the union in relation to each other ; or to the national 
 government in relation to foreign governments ; so far as it con- 
 cerns the question of independence, the legislative power may be 
 called sovereign. So too under our improved system of govern- 
 ment, hmited by constitutional restrictions, when the legislature 
 is acting upon subjects within its constitutional limits, it is pos- 
 sessed of power competent to regulate, control and direct the w'iU 
 of the whole and eveiy subordinate member of the commvmity; 
 and in this respect it is beheved it possesses absolute and unlim- 
 ited power, incapable of being controlled.' Such an exercise of 
 
 Note 6. — Sovereignty, as applied to States, imports the supreme, absolute, 
 nncoutrollable power by which auy State is governed. * 
 
 • 1 Black. Com. 49 ; 2 Dallas R. 471 ; Story on Const. § 207. 
 
 Note 7. — Coi;rts arc not at liberty to inquire into the proper exercise of power 
 by the legislature, in a case where the latter have been acting within their con- 
 stitutional limits. They are bound to presume that the legislatures have exercised 
 the proper discretion. It is no part of the duty of the courts to enquire iuto the 
 motives which actuated the legislature in the passage of a given act, though fraud 
 and corruption be alleged. The courts have no right to impute to the legislature 
 any other but public motives for their acts. In People v. Draper, 15 N. Y. E. 545, 
 the court said, " We are not made judges of the motives of the legislature, and the 
 court will not usurp the inquisitorial office of inquiry iuto the bona fides of that 
 body in discharging its duties." See also. The Sudbury and Erie R. E. Co. v. 
 Cooper, 33 Penn. St. E. 282 ; Ex parte Newmann, 9 Cal. 503. 
 
 Fraud, in procuring an act of the legislature, either by means of fraudnkut 
 representations, or by concealment from that body of material facts, whether the 
 act be public or jirivate, cannot be impeached in the courts. Englishbee v. Hel- 
 muth, 7 N. Y. Legal Obs. 18G. Nor can the courts, for the purpose of impeaching 
 a statute, go behind the records to enquire iuto the regularity of the proceedings 
 of the legislature in passing an act. The People v. Develin, 33 N. Y. E. 2G9, and 
 authorities cited. 
 
 Note 8. — K a law bear upon its face the requisite authentication, it is jjresumed 
 to have been passed by the necessary constitutional majority. The vote by which 
 it passed cannot bo enquired into. Falconer v. Campbell, 2 McLean E. 195 ; 
 White V. How, 3 id. 111. 
 
 Note 9. — If an act be constitutional, and clothed with the forms of law, the 
 courts cannot inquire into the motives of the members of the legislature in pass- 
 ing it. Fletcher v. Peck, C Cranch. 87.
 
 G2 rOWER OF ENACTING STATUTES. 
 
 powor, it lias been held, is so conclusive, tliat tliougli the legisla- 
 ture should, through misrepresentation or other cause, do injustice 
 to an iudi>-idual, there is no court or other power in the govern- 
 ment, that can apply a remedy, or administer relief, a Chancel- 
 lor Kent, in his commentaries b notices this distinction between 
 the British parliament and our own legislature. He says, " the 
 principle in the English government, that parliament is omniijo- 
 tent, 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 other form of government." 
 
 The whole law-maldng power of the State is vested in the leg- 
 islature, wdiich is omnipotent, unless restricted by the express or 
 imphed provisions of the State or national constitutions, and 
 where the power is so vested in the legislature, and unrestrained 
 by the fundamental law, its unvrise legislation affords no ground 
 for the courts to nullify it.c But their power is restrained, not 
 only by the provisions of the State constitution, but by the j^ow- 
 ers granted by the people of the several States to the general 
 government ; embodied in the federal constitution, which be- 
 comes the supreme power, within the scope and operation of 
 the general government. The latter government may exercise 
 these powers in its appropriate departments, free and unobstruc- 
 ted by any State legislation or authority ; and any interference 
 by the State governments, tending to the interruption of the full 
 legitimate exercise of the powers thus granted, is in conflict with 
 a clause in the federal constitution which makes that constitution 
 and the laws of the United States made in pursuance thereof, the 
 supreme law of the land, d The State legislatures, however, have 
 power under their constitutions, to alter the common law of their 
 States ;e but, no power to interfere with, or adjudicate upon claims 
 of private persons or municipal corporations,/ nor to pass any 
 act impairing the obligation of contracts, or to interfere with the 
 vested rights of individuals.^ 
 
 aNott & McCord'sR. 401 ; 1 Bald. C. C. E. 71 ; Fletcher v. Peck, G Crancb. 171. 
 
 h 1 Kent Com. 488 ; Smith's Com. 2G2. 
 
 c People V. Denniston, 23 N. Y. 247 ; Bank of Chenango v. Brown, 2G N. Y. 4G7; 
 Luke V. City of Brooklyn, 43 Barb. 54 ; Mr-tter of Wilson, 4 City Hall Eec. 47. 
 
 d People V. Commissioners of Taxes, 2 Black. 620. e 1 Code Rep. 49. 
 
 /Baldwin v. Mayor of N. Y. 42 Barb. 549. g Vroonum v. Jones, 5 How. Pr. R.SGO.
 
 LEGISLATIVE rOV.'ER AND ITS RESTRICTIONS. bo 
 
 The wliolo doctrine ou this subject of legislation under tlie 
 American system, is reduced to this ; if the legislature pur- 
 sue the authority delegated to them in passing statutes, their 
 acts are valid and conclusively binding ; if they transcend the 
 bounds of that authority, their acts are invalid, and of no force. 
 In the former case, they exercise the discretion vested in them by 
 the people, to whom, (and not to the courts,) they are responsible 
 for the faithful discharge of their trust. In the performance of 
 this duty, the right to the exercise of their opinions on the ques- 
 tions of natural rights, is not subordinate to the judicial will ; in 
 the other case, if they violate the fundamental law, of which the 
 courts may judge ; the validity or invalidity of the act is to be 
 determined by the judges.a 
 
 But the legislatm-e of each sovereign State of the union, has 
 also restrictions of its sovereign power imposed upon it, as has 
 been stated, other than such as may be found in its own consti- 
 tution. She is also a member of the American union, and that 
 union has also a constitution, the supremacy of which all acknow- 
 ledge, which imposes hmits to the legislative powers of the seve- 
 ral States, and which, none can claim a right to pass, h Besides 
 conferring specified powers upon the national government, the 
 constitution of the United States contains also certain prohibitions 
 upon the action of the States, a portion of them designed to pre- 
 vent encroachments upon the national authority, and another 
 portion, to protect individual rights against possible abuse of 
 State power, c 
 
 The people of the United States, in adopting that instrument, 
 doubtless, had the object in view of shielding themselves and their 
 property from the effect of sudden and violent acts, to which they 
 might be exposed, arising from local or party feeling, that might 
 aliect legislative power in the several States. The constitution of 
 the United States also contains what may be deemed a bill of 
 rights for the people of each State. To this limited extent, the 
 several States of the union, cannot be absolutely sovereign. 
 
 The theory of our pohtical system is, that the ultimate sover- 
 eignty is in the people, fi'om whom spring all legitimate authority.rZ 
 
 o SmitU's Com. 2G7. c Const. U. S. Art. 1, § 10. U. Art. 4. 
 
 h Marshall, Ch. J. G Cvaucli. 13G. tZ Jameson on Const. Conventions, Cli. 8.
 
 64 LEGISLATIVE ^O^YER AND ITS EESTKICTIONS. 
 
 They created the national constitution, and conferred upon it 
 powers of sovereignty over certain subjects. Upon those subjects, 
 it is supreme. They have also created State governments, upon 
 which they conferred the remaining powers of sovereignty, so far 
 as they allow them to be exercised at all. a 
 
 To this extent only, it seems to have been necessary in this 
 place, to have examined the authority with which American leg- 
 islatiu'es are invested in the enactment of statutes ; this being one 
 of the special subjects of this work. We start then, with this 
 conceded proposition ; that the people, originally, were possessed 
 of aU legislative power ; this power they committed to theii* res- 
 pective State legislatures, in unUmited terms, except only as to 
 such hmitations as are imposed by the particular constitution of 
 the State itself, and by the superior restrictions of the constitu- 
 tion of the United States, h 
 
 We cannot better express this idea of the powers and restric- 
 tions of the law-making power, than in the language of Denio, late 
 Chief judge of the Court of Appeals of this State. He says, " The 
 people, in framing the constitution, committed to the legislature 
 the whole law-making powers of the State Avliieh they did not 
 expressly or impliedly withhold. Plenary jiower in the legislature 
 is the laile. A prohibition to exercise a particular power, is an 
 exception. In inquuing, therefore, whether a given statute j.s 
 constitutional, it is for those who question its vahdity to show 
 that it is forbidden. I do not mean that the power must be 
 expressly inhibited, for there are but few positive restraints upon 
 the legislative power contained in the instrument. The first arti- 
 cle lays down the ancient limitations which have always been con- 
 sidered essential in a constitutional government, whether mon- 
 archical or popular ; and there are scattered through the instru- 
 ment a few other provisions in restraint of legislative authority. 
 But the affirmative prescriptions, and the general arrangements 
 of the constitution, are far more fruitful of restraints upon tlie 
 legislature. Every positive direction contains an imj)lication 
 against everything contrary to it, or, which would frustrate or 
 disappoint the purpose of that provision. The frame of the gov- 
 ernment, the grant of legislative power itself ; the organization of 
 
 a Cooloy on Const. Lim. 8. h Leggett v. Hunter, 19 N. Y. E, 4.G3.
 
 LEGISI^\.TI\T POWER AND ITS KESTRICTIONS. 65 
 
 executive authority ; the erection of the principle courts of 
 justice; create iniphed limitations upon the law-making authority, 
 as strong, as though a negative was expressed in each instance ; 
 but independently of these restraints, express or implied, every 
 subject within the scope of civil government, is liable to be dealt 
 with by the legislature, a 
 
 The question, whether a law is void for repugnacy to the con- 
 stitution, is at all times a question of dehcacy, which ought sel- 
 dom, if ever, to be decided in the affirmative in a doubtful case. 
 But a collet, when impelled by duty, would be unworthy of its 
 station, if it should be unmindful of the solemn obhgations which 
 that station imposes. But it is not upon shght implication and 
 vague conjecture, that it is to be pronoimced, that the legislatiu-e 
 has transcended its power, and that its acts are to be deemed void. 
 The opposition between the constitution and the law should be 
 such, that the judge feels a clear and strong conviction of their 
 incompatibility with each other.Z> But this branch of the subject 
 will be discussed more at length hereafter. 
 
 It is not unusual for a legislative act to involve consequences 
 which are not expressed in it; and it is the judicial power, which 
 is an instrument employed by government, to determine how those 
 consequences affect individuals, and how they are to be directed 
 and controlled for the security of the agents who are called upon 
 to execute the act. " Judicial power, as contradistinguished from 
 the power of the laws, has no existence. Courts, of themselves, 
 are mere instruments of the law, and of the government, and can 
 will nothing. When they are said to exercise a discretion, it is a 
 mere legal discretion ; a discretion to be exercised in discerning 
 the course prescribed by law ; and when that is discerned, it is 
 the duty of the court to follo^\' it. Judicial power is never exer- 
 cised for the pui-pose of giving effect to the will of the judge ; 
 always for the purpose of giving cHect to the will of the legisla- 
 ture ; or in other words to the will of the law." c 
 
 It would be a task which no law writer would undertake, to 
 define what are the precise hmits within which a legislature, in 
 its discretion, is Umited, when they keep within theii' constitu- 
 
 a People v. Draper, 15 N. Y. E. 543, 1. h C Cranch. 128. 
 
 cPer Marshall, Ch. J., Osborn v. U. S. Bank, 9 Wheat. 3GG. 
 
 9
 
 G6 LEGISL.\.TIM3 TOYt'ER AND ITS EESTKICTIONS. 
 
 tional bounds. But every government sliould possess, and every 
 constitutional government does possess, tlie means of protecting 
 itseK and its citizens, against encroachments, of even the legisla- 
 tive po-^-er, upon the other departments, and against violations of 
 the fundamental law"; and this means, is the judicial power. 
 
 Every government must, in its essence, be imsai'e, and unfit for 
 a free people, where such a department as the judicial does not 
 exist, with powers co-extensive with those of the legislative depart- 
 ment. "What for instance, would avail restrictions upon the 
 authority of State legislatures, without some constitutfonal mode 
 of enforcing the observance of them ? a No man famihar with the 
 exercise of power, whose experience has taught him the frequency 
 with which the legislatm'e have overstepped the boundaries of 
 their power, can do otherwise than admire the pohtical v/isdom 
 of that system, which has provided a department, whose powers 
 are co-extensive with that of the legislature, and whose duty it is 
 to restrain and correct all infractions of the fundamental law." 
 Where there is no judicial department to interpret, pronounce, 
 and execute the law ; to decide controversies, and to enforce 
 rights, the government must either j^erish by its own imbecility, 
 or the other departments of government must usurp powers, for 
 the purpose of commanding obedience, and this would be the 
 destruction of hberty. h 
 
 " Laws, however wholesome or necessary, are frequently the 
 object of temporary aversion, and sometimes of popular resist- 
 ance," It requires that courts of justice should be able at aU 
 times to present a determined countenance against ah. Hcentious 
 acts ; to deal impartially and truly, according to law, between 
 suitors of every description, or whether the cause, the question, 
 or the party, be popular or unpopular." Nor is an independent 
 judiciary less useful as a check upon the legislative power, which 
 is sometimes disposed, from the force of party, or the temptations 
 of interest, to make a sacrifice of constitutional rights ; and it is a 
 wise and necessary principle of our government, that legislative 
 acts are subject to the severe scrutiny, and impartial interpreta- 
 tion of the courts of justice, who are bound to regard the consti- 
 
 aFederalist, Ko. fcU. b 1 Kent's Com. 29G.
 
 W'UO TO INTERrRET STATUTES. 67 
 
 tutiou aa the i^aramomit law, and the highest eviclence of the will 
 of the people." a 
 
 The power of interpreting laws, involves, necessarily, the func- 
 tion to ascertain, whether they are conformable to the constitu- 
 tion, or not ; and if not so conformable, to declare them void and 
 inoperative. As the constitution is the supreme law of the land, 
 in a conflict between that and the laws, either of Congress, or of 
 the States, it becomes the judiciary to follow that only, which is 
 of paramount obhgation. This results from the very theory of a 
 repubhcan constitution of government ; for otherwise, the acts of 
 the legislature and executive would, in effect, become supreme and 
 iincontrolable, notwithstanding any prohibitions or limitations 
 contained m the constitution ; and usurpations of the most une- 
 quivocal and dangerous character might be assumed, without any 
 remedy within the reach of the citizen, h The people would thus 
 be at the mercy of their rulers in the State and national govern- 
 ments ; and an omnipotence would practically exist, like that 
 claimed for the British Parhament. 
 
 To the people at large, therefore, the institution of the judicial 
 department is j)eculiarly valuable ; and it ought to be eminently 
 cherished by them. On its firm and independent structure, they 
 may repose with safety, while they perceive in it a faculty, which 
 is only set in motion when applied to ; but which, when thus 
 brought into action, must proceed with competent power, if 
 required, to correct tlio error or subdue the oppression of the 
 other branches of govemment.c But to insure a complete admin- 
 istration of public justice through this department, and to give 
 permanency to the government, the judiciary should be so organ- 
 ized as to carry into complete effect, all the purposes of its estab- 
 hshment. It must possess wisdom, learning, integi'ity, independ- 
 ence and firmness. It must at once possess the power and the 
 means to check usurpation, and enforce execution of its judg- 
 ment.cZ 
 
 ' Hence it is, that there are but few men in society who will have 
 sufficient sldll, learning, firmness, and integi'ity, qualities all com- 
 bined in one person, to qualify them for the stations of judges. 
 
 a Id. 29i. c Eawle, ou the Const ch. 21. 
 
 h Federalist, No. 78 d Story, on Const. § 1577.
 
 G8 DIVISIONS OF STATUTES. 
 
 CnAPTER III. 
 
 DIVISIONS OF STATUTES. DIFFEKENCE IN CONSTEUCTION BETWEEN 
 AJIERICAN AND FOEEIGN COUNTEIES. 
 
 Acts of parliament are, it may be said, again, declaratory of 
 the old law, or introductive of new, or both ; as by the addition 
 of greater penalties, the destniction of particular customs, and the 
 hke. Declaratory, are necessarily in their terms, affirmative or 
 negative. Both kinds of laws, those declared and affirmed, as well 
 as those newly enacted, maybe penal; the affirmance of the ante- 
 rior law cannot properly be styled remedial. A subordinate 
 division of remedial acts has been made into enabling and Dis- 
 
 AJ3LING — ENLARGING and RESTRAIOTNG — statutes. 
 
 And first of declaratory acts. These {in England ) are made 
 where the old custom of the kingdom is almost fallen into disuse, 
 or become disputable, in which case the parHament has thought 
 proper, in perpetaum rei teslirnonivm, and for avoiding all doubts 
 and difficulties, to declare what the common law is and ever hath 
 been. And such statutes are expressed affirmatively or in nega- 
 tive terms. A statute made in the affirmative, without any nega- 
 tive expressed or implied, does not take away the common law. a 
 It follows that it does not affect any prescriptions or customs 
 clashing with it which were before allowed ; in other words, the 
 common law continues to be construed as it was before the recog- 
 nition by j)arliament.^ 
 
 a 2 Inst. 200 ; 1 Inst. Ill, 115 ; Harg. & Butler's notes, Co. Litt. 115. 
 
 Note 1. — A declaratory statute, is sometimes intended to declare the meaning 
 and intent of a pre-existing statute. This kind of legislation is apt to create a 
 conflict between the proper functions of the legislative and-judicial departments 
 of the government ; because .<^.iich statutes are, necessarily, to a certain extent, 
 retrospective. It assumes the exercise of judicial power, in determining what the 
 law was before the declaratory statute was passed.. In this they exceed their 
 power, and invade the domain of judicial authority. This kind of legislation, 
 sometimes happens after the courts in the due exercise of their legitimate autho- 
 rity, as interpreters of the law, have declared the meaning and intent of the stat- 
 ute to be otherwise than such as the new statute d eclares . Without referring to other 
 cases, a single instance may suffice. The legislature of New York, in 1853, passed 
 an act in relation to the liability of certain insurance companies to taxation, the 
 construction of which, was a question litigated end determined in the courts. In
 
 DIYISIOKS OF STATUTES. 69 
 
 The party may waive his benefit by such affirmative statute, 
 and take his remedy by the common hiw,a -wliich however docs 
 not mean that the statute is not Ijindin;:!;, I»ut that the party may 
 take his election which to jjroctjcd ujx))!. lu hke manner an 
 affirmative statute docs not repeal an affirmative statute ; and if 
 the substance be tliat botli may stand tof^cthcr, they shall have a 
 concurrent efficacy. But if the latter be contrary to the former, 
 it amounts to a repeal of the former, for it is a general principle, 
 
 a Bi-o. Tarl. Tl. 70; 1 Rep. CI; Cro. Eliz, 101, 
 1855, the legislature cuacted a law dcclariug the iuteut of the act of 1853, to be 
 different from the iuteut as declared by the courts ; such judicial decisions had 
 been prououuced and were pending on appeal to the highest court, at the time 
 of the enactment of the declaratory law. The Court of Appeals declared as fol- 
 lows : "All the judgments of the Supreme Court now under review, were rendered 
 at the special term before the enactment of this statute. The cases since that 
 time have been pending on appeal before the general term, and in this court ; and 
 were so pending when the statute was enacted. As regards these cases, the man- 
 date of the legislature, if it has any api)lication, miist be regarded as addressed 
 to the ai^pellate tribunals. "We habitually look with great respect upon all acts 
 of the legislature, and never refuse to give them effect, except where, upon the 
 fullest consideration, we find that thej' conflict with the constitution. The act in 
 question, considered as a persuasive argument for a particular construction of 
 the statute of 1853, loses much of its weight from the consideration that the leg- 
 islative bodies had been rel^ewed in the interval between the two enactments, and 
 that but a few of the members of the legislature of 1853 sat in that of 1855. But, 
 if that were otherwise, we should feel constrained to rely upon the language of 
 the statute which we arc called upon to interpret, rather than any personal assu- 
 rance as to the intention of its members. The acts of the legislature do not rest 
 in any respect upon oral tradition. They are committed to writing, and it is by 
 the written language that their sense is to be ascertained. As an authoritative 
 mandate in favor of the construction claimed by the insurance Company, we can- 
 not accord to it any force whatever. In the division of power among the great 
 departments of the government, the duty of expounding icritten laws, has been 
 committed to the judiciary. The legislature has no judicial power; and cannot 
 upon any pretence, interpose its authority respecting questions of interpretation 
 depending in the courts." People v. Board of Supervisors of New York, 16 N. 
 Y. E. 431, 2 ; Dash v. Van Kleeck. 7 John. E. 477. Nor have the legislature the 
 power to make the opinion of the Attorney General binding upon a contractor, as 
 agent of the state prison, upon a contract previously made. Y'oung v. Beardslej', 
 11 Paige, 93. 
 
 Note 2. — Nor would a statute declaratorj- of the common law, retroact upon 
 past controversies, or reverse decisions which the courts in the exercise of their 
 undoubted authority have made. Cooley on Const. Lim. 9-i. This would be a 
 like exercise of judicial power, which if tolerated, might constitute the legislature 
 a court of review in all cases where disappointed partisans could obtain a hoarintr. 
 after being dissatisfied with the rulings of the court. Id.
 
 70 DIYISIONS or STATUTES. 
 
 that " leges posteriores, priorefi contrarias ahroganf." But this is 
 meant of a case where a statute by its matter necessarily imphes 
 a negative, for an act of parKament may be repealed by the ex- 
 press words of a subsequent statute, or by impHcation. 
 
 Next arises the consideration of those statutes which obtain the 
 name of negative statutes, because they are penned in negative 
 terms ; as the statute of Marlbridge, which is " Non idea pnniatur 
 Dominus per redemptionem ;" and Magna Cliarta, " Null us capiahir 
 ant imprisonctury And here, the rule prevails, that if a subsequent 
 statute, contrary to a former, have negative words, it shall be a 
 repeal of the former ; and a negative statute it is said too, so binds 
 the common law, that a man cannot afterwards have recourse to 
 the latter a. 
 
 The different operation of affiimative and negative statutes is 
 thus illustrated : If a statute were to provide that it slioidd be 
 lawful for tenant in fee simple to make a lease for twenty-one 
 years, and that such lease should be good ; this affirmative stat- 
 ute could not restrain him from making a lease for sixty years ; 
 but the lease for more than twenty-one years would be good, 
 because it was good by the common law, and to restrain him, it 
 ought to have words negative ; as, that it shcdl no\ be lawful for 
 
 a Bro. Pari. pi. 72.. 
 
 The legisla ure may within their legitimate powers, declare what the law shall 
 be in future, but to declare what the law is, or has been, is the province of the 
 judiciary. See Greenhough v. Greenhough, 11 Penn. St. E. 494, and Eeiser v. 
 Tell Association, 39 id. 137. In the latter case, the court say in relation to such a 
 declaratory act, "It is the interpretation by one legislature of a written statute 
 by another, and therefore an adjudication of private rights that have arisen under 
 it. And yet the former legislature said nothing like this, and nothing from which 
 it can be inferred. The legislature have no such authority over us, to change the 
 laws of language. If given language does not express a given meaning, they may 
 give us other language that does ; but this will not change the meaning of former 
 language. In the very nature of language, this is impossible. It is with, and by 
 virtue of the new expressions, that we get the new meaning, and the meaning of 
 the law is the law itself, and the law can be no older than the effectual expression 
 of it. 
 
 Note 3. — A decl-VEAToey law, founded upon a mistaken opinion of the legisla- 
 ture, though inoperative as to the past, may operate in the future. P. M. Gen'l 
 V. Early, 12 "Wheat. 148. A declaration of the legislature as to what they intend- 
 ed for the time in the past by a law, docs not make the law what they intended 
 it, if they are in error. It only affects it in the future; the pa.st law is to be deter- 
 mined by the judiciary; but it is the duty of the courts to give to a construing 
 act its intended practical operation, as far as is possible. Bassett v. U. S. Nott 
 & Huntington E. 418. In this country, where the legislative power is limited, 
 declaratory laws, so far as they operate on vested rights, cannot change the rule of 
 construction ftj< to a pre-existing law. Salters v. Tobias, 3 Paige, 388.
 
 DIYISIOXS OF STAITTES. 71 
 
 liim to make a lease for above tAvent^'-one }cais ; or that a lease 
 for more, shall not he good.* 
 
 Upon the nile itself, a nice, abstniso, and diflicult question, and 
 one much litigated, arises. 
 
 A man might have alleged a custom against the common law ; 
 if the statute be only declavutory of the common law, shall ho 
 not, in like manner, prescril)e against the statute? Lord Coke 
 remarks it as an important distinction between negative statutes 
 of different kinds, that where they are only aiUrmative of the 
 ancient, that is of the common law, there, a custom will equally 
 ■prevail against the statute, as it bt^fore obtained against the com- 
 mon law. a Such negative statutes, according to him, cannot 
 extend the common law, and no more effect is given to them than 
 if the statut(?s were expressed in afKrmative terms. If the statute 
 be a mere affirmance, or declaration of the common hnv — whether 
 the words used be affirmative or negative, can, it might be thought, 
 substantially, make no tlifierence. The one it is reasonably to be 
 presumed, cannot have an operation more extended than the 
 other. An affirmative statute, it is unqualifiedly laid down, does 
 not take away a custom./; Thus, says Lord Coke, the statutes of 
 Wills of 82 and 3-i H. 8, do not take away a custom to devise 
 lands, as it hath been often adjudged ; so, a negative statute, in 
 affirmation or declaration of the common law, may be prescribed 
 against. " As the Statute of Magna Charta provideth that no 
 lect shall be holden but twice in the year, yet a man may pre- 
 scribe to hold it offener at other times ; for that the statute was but 
 in affirmance of the common law." This instance of Lord Coke 
 has been questioned, and seems Hable to exception ; it possibly 
 may not be apt ; but gi-anting that it is doubtful, the objection 
 applies to the fitness of the example, and not to the force of the 
 rule. Another illustration is (h'awn by Lord Coke from the forest 
 laws. " The statute of 34 E. 1, provideth that none shall cut 
 down any trees of his own within a forest, without the view of 
 the forester ; but inasmuch as this act is in affirmance of the 
 common law, a man may prescribe to cut down his woods within 
 a forest without the view of the forester." This case also has 
 been impeached, but still the reason and good sense of Lord 
 Coke's tlistinction remains unimpaired. The pertinent inquiry 
 still to be made is, whether the provision of the act be contrary 
 to the former law ? If not, the common laAV continues as in the 
 case of affirmative statutes, to be constnied as before its recogni- 
 tion, and the maxim consuctudo lorivat communcm legem still 
 
 a 1 lust. 115. 6 1 Inst. 111. 
 
 Note 4. — Where there are two q^rmoiire statutes, siich parts of the prior stat 
 lite as may be iucorporated into the subsequent statute, as consistent with it 
 must be considered in force. Davies v. Fairbairn, .3 How. U. S. K. G36.
 
 72 DIVISIONS OF STATUTES. 
 
 applies." Tliis is wliere tlic statute and tlie common law agree , 
 where they difier, the rule is clear and certain. But a statute, it 
 is api^rehended, (and hence, perhaps, some confusion of ideas 
 upon the subject,) may be at the same time declaratory of the 
 ancient law and introductive of a new. AVhile it affirms the ccm 
 mon law, it may annihilate particular customs which were bei'oic; 
 allowed in derogation of that general law. The distinction, justly 
 taken, is confined to such statutes as, though expressed in nega- 
 tive terms, are merely in affirmance of, or declaratoiy of, the 
 common law. Cases in which the terms of the statute, fairly 
 taken, import something more ; enlarging — restraining — qualify- 
 iiig — or in anywise varying the law, — do not apply. But this 
 view of the case, consonant as it is to reason, and not unsuppor- 
 ted by authority,rt cannot fearlessly be pronounced to be the law. 
 It must be deHvered as doubtful. It is the questionable doctrine 
 of the latter cases,6 that no prescription or custom is good against 
 a negative statute, whether it be declaratory of the common law, 
 or introductive of a new law ; and this is the latest decision. 
 
 It is, as a maxim, generally true, that if an affirmative statute, 
 which is introductive of a new law, direct a thing to be done in a 
 cfiiain maimer, that thing shall not, even although there are no 
 negative words, be done in any other manner.c But where the 
 question was, whether an appointment of overseers made after 
 the expiration of the time limited by the statute for such an 
 appointment was valid ? It was held to be so, for the statute (43 
 Eliz. cli. 4,) ought to receive a liberal construction ; it was not in 
 the power of the jiarish to compel the justices to make an appoint- 
 ment within the time. Although the statute be introductory of a 
 new law, no negative ought to be implied.'^/ 
 
 If a new power be given by an affirmative statute to a certain 
 person, by the designation of that one person, although it be an 
 affirmative statute, all other persons are in general excluded from 
 the exercise of the power ; since expressio unins est exdnsio alterhis. 
 Thus, if an action founded upon a statute be directed to be brought 
 before the justice of Glamorgan in his sessions, it cannot be 
 brought before any other person, or in any other place.c So, by 
 the Scotch law : " statutory provisions cannot be supphed by 
 eqnipollents.''/" 
 
 But the designation of a certain person, to whom a new power 
 is given, does not exclude another person who was by a precedent 
 statute authorized to do it, from doing the same thing, (j 
 
 a Harg. and Butl. Co. Litt. 115, (a) note 9. 2 Hawk. P. C. c. 10, s. 8. 
 
 h Lord Lovelace's case, 1 Jon. 271; 2 Bulstr. 36; Shower, 420. 
 
 c Ilob. 298; Sid. 56; Stra. 1125; 2 T. E. 395. c/R. v. Sparrow, Bott. 11. 
 
 e 11 Hep. 59. Foster's case, id. 61. /Alison's Practice Scotch Law. 
 
 q Foster's case, 11 Kep. 39. 
 * So the Spanish law holds that a custom being general and immemorial, may 
 alter the anterior law. L. 6, Tit. 2 Partid. 1.
 
 DIYISIONS OF STATUTES. 73 
 
 Laws declaratory in name, are often imperative in effect : leg- 
 islative, like judicial intei-jiretation bein<^ i'reqiiently decejotive, 
 and establisliiiig new law under ^lise of expounding the old. Acts 
 to explain laws, ai'e properly, acts of interpretati(m l)y legislative 
 authorit}', or to l)orrow an expression fi'om tlio writers on tlie 
 lioman law, they are acts of auHientic interpretation. a 
 
 liepeal acts, are revocations of former statutory laws, authori- 
 zing or permitting the parties, to whom the repeal extends, to for- 
 bear from acts, which they were before commanded to do. Hence, 
 they are often named permissive laws ; or more briefly poi'mis- 
 sions.^ 
 
 Remedial acts are made from tinie to time, to supply the defects 
 discovered in the anterior law, whether they arise from the gene- 
 ral imperfection of all human laws ; from change of time and cir- 
 cumstances ; from mistakes and unadvised determinations, or 
 from any other cause. And this being done, either by enlarging 
 the ancient law when it was found too narroAv, or restraining it 
 where it was too luxuriant, occasioned the other subdivision into 
 enlarging or restraining statutes. 
 
 A rcmedidl sialulc, is one which supplies such defects, and 
 abridges such superfluities in the common law as may have been 
 discovered,?^ such as may arise either from the imperfection of 
 all human laws, from change of time and circumstances, from mis- 
 takes, and uuad\'ised determinations of unlearned (or even learn- 
 ed) judges, or from any other cause whatsoever ;c and this being 
 done either by enlarging the common law, where it was too nar- 
 row and circumscribed, or by restraining it where it was too lax 
 and luxuriant, has occasioned another subordinate division of 
 remedial acts into enlarging and restraining statutes. So, it seems, 
 that a remedial statute may also have its apphcation to, and effect 
 upon other existing statutes, and gives the party injured a rem- 
 edy; in other words; and for a more general definition, "it is a 
 statute giving a party a mode of remedy for a wrong where he 
 had none, or a different one before."cZ 
 
 Such a statute, it is universally held, is to be liberally construed, 
 and that everything is to be done in advancement of the remedy 
 
 a Austiu ou Jurisprudence. 61 Black. Com. 86. 
 
 c Id. d Cliitt. Black. Com. note to p. 8G. 
 
 Note 5. — Though the provisions of two acts be different, a general statnto 
 without negative wxi is will not repeal a previous one, which is particulur. 
 Brown v. County Commissioners, 9 Harris, Penn. 37. 
 
 10
 
 74: DIVISIONS OF STATUTES. 
 
 that can be given consistently vith any construction that can be 
 put upon it.a 
 
 A. preceptive statute, is one which commancTs certain, and it 
 regulates the forms and acts which ought to accompany them.& 
 
 A prohibitive statute is one that forbids all actions which disturb 
 the pubhc repose, or injmy to the rights of others, or crimes and 
 misdemeanors ; or when it forbids certain acts in relation to the 
 transmission of estates, or the capacity of persons and other 
 objects, c 
 
 A p-'r missive statute, is one which allows certain actions or 
 things to be done without commanding them, as for example — 
 when it allows persons of a certain description, or indeed any 
 person, to make a will. 
 
 A penal statute, is one which imposes a forfeiture or penalty for 
 transgressing its provisions, or for doing a thing prohibited. 
 
 A temporary statute, is one which is limited in its duration at 
 the time of its enactment. It continues in force until the time of 
 its Hmitation has expired, unless sooner repealed. c^ 
 
 A perpetual statute, is one for the continuance of which there 
 is no limited time, although it be not expressly declared to be so. 
 If, however, a statute which does not in itself contain any limita- 
 tion, is to be governed by another which is temporary only, the 
 former will also be temporary and dependant upon its existence 
 of the latter.^ 
 
 An affirmative statute, is one which is enacted in affirmative 
 terms. Such a statute does not take away the common law in 
 relation to the same matter./ 
 
 A negative statute, is one expressed in negative terms, and so 
 controls the common law, that it has no force in opposition to the 
 statute.^/ 
 
 A prosjyectivc statute, is one which regulates the future, and is 
 the only one which can be just, for no man can conform himself 
 to the law which is yet unknown to him.h 
 
 a Johns V. Johns, 3 Dow. 15 ; Gillettv. Moody, 3 N. Y. 479; People v. Euuklc, 
 9 John. E. 147. 
 
 h 1 Bouviers Inst. 48. c Id. 
 
 d Id. e Bac. Abr. Statute D. 
 
 /Jackson v. Bradt, 2 Caines R. 1C9. g-Bac. Abr. Statute G. 
 
 ?. Bouvier's Inst. 49.
 
 DI^^SIO^'s of statutes. 75 
 
 A retrosjjcdive statute, is one "wliicli is made to operate upon 
 some subject, contract, or crime, which existed before its enact- 
 ment. 
 
 These laAvs arc generally considered unjust, and are, to a cer- 
 tain extent, forbidden by that article of the constitution of tJio 
 United States which prohibits the passage of cxpod fur to laws, 
 or laws ini])airing the obligation of contracts. 
 
 "We shall have occasion hereafter, to notice the incidents of 
 these several divisions or classes of statutes, when we come to 
 treat of their power and effect, and the nilcs of construction by 
 which they are governed. 
 
 A statute which gave bishops and other sole ecclesiastical cor- 
 porations, (except i^arsons and vicars,) a pov/er of leasing, which 
 they did not possess before, viz., stat. 32 Hen. 8, c. 38, w-as an 
 enabling statute. The stat. 13 Ehz. c. 10, which afterwards lim- 
 ited that power, is, on the contrary, a disabling statute. 
 
 Penal statutes are acts of Parliament, by wliicli a forfeiture is 
 inflicted for transgressing the provision therein contained. 
 
 A ])enal statute may also be a remedial law ;« and a statute 
 may be penal in one part, and remedial in another part.6 
 
 Of no vaHdity and void are, it is alleged : 1st, such acts as aiffect 
 to bind future Parliaments f 2dly, such as are contrary to the 
 laws of God and nature, and to right reason. But the latter doc- 
 trine is not admitted as excepting acts fi'om constraction, though 
 it mil decide their construction. 
 
 As to the former proposition it is clearl}^ maintainable : Subse- 
 quent Parhaments cannot be restrained by the acts of former 
 ones. It is only necessary to repeal the ordinance to destroy the 
 prohibition ; and without a formal repeal, it seems that the act is 
 ipso facto void. Some parts of Magna Charta, although it be ex- 
 pressly declared by the 42 Ed. 3, c. 2, that all statutes contrary 
 thereto shall be void, have been repealed, and other parts have 
 been altered by subsequent statutes ; yet such latter statutes, 
 instead of being thus made void are said in Jenkin's Centuiies, to 
 have been constantly held to be in force.c 
 
 By construction, and that not ahvays sound, things declared 
 void by statute are often, it will be seen, only voidable at the 
 
 a 1 Wils. 12G. h Dong], 702- c Jenk. Cent. 2. 
 
 Note G. — The principle cannot be controverted, that one legislature is compe- 
 tent to repeal any act which a former legislature was competent to pass. One 
 legislatiire cannot abridge the powers of a succeeding one.* Kut if an act be 
 done under a law a siicceeding legislature cannot undo it. The past cannot be 
 recalled by the most absolute power. 
 
 * Jlarshall. Ch. J. G Cranch 135 ; ruffendorff, B. 1, Chap. 1, § G.
 
 76 DIYISIONS OF STATUTES. 
 
 election, or on the active motion of tlie party to be affected by 
 them. 
 
 An act of Parhament shall not change the laws of nature,a for 
 jura naturae sunt iimmdaUlia, and they are leges legem. ^^'' Nee 
 vero 2'x^y scnatum cad per jMjndum, solvi hoc lege ;possimns" says 
 Cicero. " The law of nature stands as an eternal rule to all men," 
 says Locke, " legislators as well as others, and the rules that they 
 make for other men's actions must, as well as then' own and other 
 men's actions, be conformable to the will of God, of which tliat is 
 a declaration. If a statute says that a man shall be a judge in 
 his own cause,- such a law being contrary to natural equity, shall 
 be void. Such was the (at least intrepid,) opinion of Lord Chief 
 Justice Hobart, in Day and Savage. Influenced by the same 
 powerful sense of justice, Lord Coke, when Chief Justice, in Bon- 
 ham's case,6 unguardedly, perhaps, but fearlessly, declared, that 
 where an act of Parhament is against common right or reason, or 
 repugnant, or impossible to bo performed, the common law shall 
 cont?ol it, and adjudge it to be void. And Lord Holt, in the case 
 of the City of Londonc and Wood, to the dismay of all mere law- 
 yers, manfully expressed an opinion, that the observation of Lord 
 Coke was not extravagant, but was a very reasonable and true 
 saying. There is reason to believe that what Lord Coke said in 
 his Pieports upon this sul^ject, is part of what King James alluded 
 to, when he said that " in Coke's lieports were many dangerous 
 conceits of his own, uttered for law, to the prejudice of the crown, 
 parhament, and subjects." Lord Ellesmere, in his observations 
 on Lord Coke's Pieports, calls this passage " a paradox which 
 derogateth much from the wisdom and power of Parhament, that 
 when the three estates. King, Lords, and Commons, have spent 
 their- labor in making a law, three judges on the bench shah de- 
 stroy and frustrate their pains, advancing the reason of a partic- 
 ular court above the judgment of aU the realm. Besides, more 
 temperately, did that reverend Chief Justice, Herle, temp. E. 3, 
 dehver his opinion, 8 E. 3, cited by Co. Rep. 11, /. 98, when he 
 said — some acts of Parhament are made against law and right ; 
 which they that made them percei^dng, would not put them into 
 execution ; for it is magis congrunm that acts of Parhament should 
 be con-ected by the same pen that drew them, than be dashed to 
 pieces by the opmion of a few judges." So, Sir W. Blackstonec? con- 
 hnes the i-ule of avoidance of unreasonable statutes, to any absm^d 
 consequences which arise out of them collaterally. The judges, 
 he says, are in decency to conclude that this consequence was not 
 foreseen by the Parhament, and only quoad hoc to disregard it. 
 
 a Hobart, 87, c 12 Mod. 687. 
 
 6 8Kcp. 116. dlComm.91. 
 
 * Lib. 2, C. 11, § 35, and see Hooker's Ecclesiastical Polity, 1, and Bishop Cum- 
 berland's Be Luge Naturae.
 
 /ya/^^^^ 
 
 DIVISIONS OF STATUTES. "T? 
 
 If the Parliament will positivelj enact anything to be done wliicli 
 is unreasonable, ho knows, he says of no power in the ordinary 
 forms of the constitution that is vested with authority to control 
 it. 
 
 But the advocate of natural, as opposed to positive or instituted 
 law, may inquire what is intended by contrarij to reason ? Is not 
 Lord Coke to be taken to mean, not merely capricious and with- 
 out cause ; absurd and even mischievous ; but contrary to the 
 law of nature, which wo discover by the use of reason; to that 
 light, distinct fi'om revelation, by which wo discern the bounda- 
 ries of right and wrong? and then, our admirable commentator 
 has himself, in another place, declared : " No human laws are of 
 any validity if contrary to the huvs of natui-e." An instance is 
 fomid in the books, m Avhich on the general doctrine that statutes 
 contrary to common right and reason, Sec, are void, and the posi- 
 tion from B[ol)!irt being cited,a the judges observed, that they 
 would not hold a statute to be void, unless it were clearly con- 
 trary to natural equity ; adding with more of force perhaps, than 
 of dignity, that they would strain hard rather than hold a statute 
 to be void. Does it not follow as an irresistible inference, that if 
 the statute he clearly contrary to natural equity, — if it impugn 
 that original law" which is coeval with our nature, and has God 
 for its author, the judges, (according, at least, to the feelings of 
 those presiding on that occasion,) must, with whatever reluctance 
 — however averse to defeat a statute, their duty requires them — 
 to declare it void ! Jiut sa}' their enUghtened opjionents, to do 
 this would be to set the judicial power above the legislative. 
 Upon which two observations may be made : first, this argument 
 seems to prove too much ; for it applies as strongly to setting 
 aside the collateral as the direct consequences of an act ; and if 
 the one take place, (barring the objection to the indecency of sup- 
 posing it necessary,) why not the other : secondly, Lord Coke 
 does not leave the decision to be governed " by the crooked cord 
 of the discretion of the judges ; " but it is to be " measured by V^JM^ 
 the gol den^ metwand of the law;" — he says it shall be controlled p'C^ , 
 by the common law. To pronounce such a decision is, on the part <^ 
 of the judges, notlimg more than to say, vast as is the power of '^-''' 
 an act of Parliament, there are some things which it cannot do. 
 It can do no wrong ; it cannot abrogate those hving laws imprin- 
 led in our hearts from the commencement of our being. In the 
 conceivable and barely possible case of a statute directing the 
 commission of an offence against the law of natui'e, can there be 
 a doubt that, in such instance, no human laws would be in any 
 degree binding? or, what amounts to tile same thing, that there 
 exists a precedent and paramount obligation to disobey them ? 
 A statute cannot make it lawful to commit adultery with the T\dfe 
 
 a 10 Mod. 115.
 
 78 DIVISIONS or statutes. 
 
 of B., for the law of God forbids it. Neitlier arc positive laws, 
 even in matters seemingly indifferent, any fiu'ther binding than as 
 they are agreeable to the laws of God and nature.a 
 
 On the other hand, it is said, that though the imnciple asserted 
 above is undeniably true, yet the application of it, and the con- 
 clusion, are most dangerous.6 It is certain that no human author- 
 ity can rightfully infringe or abrogate the smallest particle of nat- 
 ural or divine law;"^-' but we must distinguish, it is observed, 
 between right and power, between moral iitness and political 
 authority. It must not be entertained as a question of ethics, 
 but of the bounds and hmits of legislative power. All that can 
 be done, it seems, is to follow the philosophical advice of Locke, 
 who says, that if the magistrate shall enjoin anything unlawful to 
 the conscience of a private person, such private person is to 
 abstain from the action that he judges unlawful, and he is to 
 undergo the punishment, which it is not unlawful for him to bear. 
 The same acquiescence in the laws is enjoined in the admirable 
 dialogue of Plato, entitled Crito. 
 
 The English lawyers adopt a more ca,utious and a very character- 
 istic mode of proceeding. They do not inculcate implicit obedience 
 to a law wliich leads to absui'd consequences, or to an infraction 
 of the natural or Divine law ; neither do they proclaim the law 
 itseh', (which may be immoral, but cannot be illegal), of no valid- 
 ity, and null and void. They only hold it inappHcable, and de- 
 clare that the particular case is " excepted out of the statute." A 
 practical mode of deahng with cases where statutes collaterally 
 give rise to absurd consequences, on the ground of such conse- 
 quences being unforeseen, which cannot be denied to be reason- 
 able. 
 
 The general and received doctrine certamly fs, that an act of 
 Parhament, of which the terms are exphcit and the meaning 
 plain, cannot be questioned, or its authority controlled, in any 
 court of justice. Yet Sir Edward Coke, manfuUy, if not convinc- 
 ingly, defended his opinion before the council, and said : " If an 
 act of Parliament, were to give to the lord of a manor, conusance 
 of all pleas arising within his manor, yet he shall hold no plea 
 whereunto himself is a party ; for iniquum est aliquem sicce rei, 
 essejudicem.''' Now, Sir E. Coke had, in his Second Institute, put 
 the same case, enlarged upon and illustrated it ; and successfully 
 
 a Fonbl. cli. 1, s. 3. Jurispradence, 36 and 43. — Bl. Com. vol. i. 
 
 h 1 Woodison's Lect. — do Elements of a?ife. 
 
 * Among the seven maxims or virtues essential to the written law of Spain, one 
 is, "that its precepts ought to be respecting things r/ood, reasonable, just, and not 
 opposed to tlie law of God," to attain its only object, justice, which is rooted virtue 
 — ra'ujada virtud.—Ll. 1 and ^, Tit. 1 Fatrld. 1, L. 1, Tit. 1, P. 3 —So, the unwrit- 
 ten law, {nso, cosiumhre, yfuero) receiving its authority Irom the express or tacit 
 consent of the supreme power, that consent cannot be supijosed or presumed 
 when the custom is opi^osed to Hie law of God, to good reason ; to the laic of the 
 kingdom, and to natural laic. — L. 5, Tit. 2, Patrid. 1. — L. 3, 37/. 1, Lib. 2, liecob.
 
 POWERS OF THE SEVEE.\X, DEr.UlTMENTS. 79 
 
 contended, that the case must bo coiTcctly interpreted to be ex- 
 empted out of the provisions of the statute ; that a contrary con- 
 struction could not be within the meaning of the act. The law, 
 therefore, was to be properly construed not to apply to such cases ; 
 but the law itself was not to be held void. See post, " Cases 
 excepted out of statutes," " Fit autein, mm tollendo Icjis obliga- 
 tloucin, svd dcdarando l('(/a)it in a-rto casu, non op plica re." a 
 
 The principle as to the binding efficacy of statutes, does not 
 prevail in the United States of America. There they hold, that 
 as there is a written constitution, designating the powers and 
 duties of the legislative, as well as of the other departments of 
 the government, an act of the legislature may be void, as being 
 against the constitution. /> The judicial department, say they, is 
 the proper power in the government to determine whether a stat- 
 ute, be or be not constitutional. The inteiiDretation or construc- 
 tion of the constitution, is as much a judicial act, and requires the 
 exercise of the same legal discretion as the interpretation or con- 
 struction of a law. To contend that the courts of justice must 
 obey the requisitions of an act of the legislature, 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 the latter, and to 
 i-egard it as the paramount law. It has accordingly become a 
 settled principle in the legal policy of the United States, that it 
 belongs to the judicial power, as a matter of right and of duty, to 
 declare every act of the legislatm-e made in violation of the con- 
 stitution, or any provision of it, null and void.o But this question 
 will be more appropriately examined ifi a futm'e chapter. 
 
 So, also, in the United States, the rale is, that the courts cannot 
 declare a legislative act void, because it conflicts with their opin- 
 ion of natural rights, of policy, expediency, or justice.' The 
 
 a Grotius. h Kent Com. 
 
 c 1 Kent Com. 318 ; Id. 330, 423, C. 
 
 XoTE 7.— If Congress or a State legislature, pass a law, within the general scope 
 of their constitutional power, the courts cannot pronounce it void, merely because 
 in their judgment it is contrary to the principles of natural justice. Calder v. 
 Bull 3 Dall. 399; Mingo v. Gilmour, 1 Car. L. Kepos. 34 ; Albee v. May, 2 Paine, 
 71; Bealev. Woodhull, Pet. C. C. E. 2; Macomber v. Mayor of New York, 17, 
 Abbott 35; People v. Huntington, 4N. Y. Leg. Observ. 182.^ 
 
 8. — " All the courts can do with odious statutes, is to chasten their hardness by 
 construction. Such is the imperfection of the best human institutions, that, 
 mould them as we may, p- large discretion miistbe reposed somewhere. The safest, 
 and in many cases the best security, is in the wisdom and integrity of public 
 servants, and their identity with the people." Beebe V. State, 6 Ind. E. 528; 
 Johnson V. Commonwealth, 1 Bibb. E. 603. "If the legislature should pass a 
 law, in x^lain and unequivocal language, within the scope of their constitutional
 
 80 POWERS OF THE SETEILVL. DEPiUlTMENTS. 
 
 courts are not guardians of tlie rights of tlie people of tlie State 
 in tlicsc respects unless those rights are secured by some consti- 
 tutional provision which comes within their judicial cognizance. 
 The only remedy left to the people for imreasonable, unwise, or 
 oppressive legislation, is by appeal to the justice and patriotism 
 of the representatives of the people. If this appeal fails, the 
 evil remains, imtil the people in their sovereign capacity correct 
 it, by selecting more just and faithful representatives.a 
 
 We have no code of laws, supreme, and paramount to the leg- 
 islative power, which defines the laws of nature, and by virtue of 
 which, the . courts can declare a legislative act void for its want 
 of conformity to such natural law.& If it was in the power of 
 the courts to declare a State law void, which conflicts with no 
 constitutional provision on account of its supposed injustice, or 
 oppressive operation, or its conflict with natural rights, the courts 
 would become makers mstead of expounders of the law. Their 
 opmions would not be a judgment upon what was the prcrcxisting 
 law, but upon what it is after they have, amended or modified it 
 so as to meet their ideas of reason, of justice, policy, or wise leg- 
 islation. This could only be done by a direct usurpation of the 
 legislative power, and a flagrant violation of judicial duty.c 
 
 There are, it is true, in our books of reports, various dicta, fol- 
 lowing the Enghsh rule, that acts, contrary to the principles of 
 right and reason are void, d but they are not now followed as 
 authority. In the highest court of the State of New York, in the 
 case of Cochran v. Van Surlay, e it was declared in the leading 
 opinion, " that it was only in express constitutional provisions, 
 
 a 1 Baldwin Pi. 7-i. & Bennett v. Boggs, 1 Baldwin, 74. 
 
 c Smith's Com. 261. 
 d Eegents of University v. Williams, 9 Gill, and Johnson 3G5; also, opinion of 
 Chase J. in Calderv. Bull, 3 Dallas, 388 ; 1 Bay. 152. Goshen v. Stonnington, 4 
 Conn. 22.3. 
 
 e 20 Wend. 382. 
 power-s, I know of no authority in this government to pronounce such an act void, 
 merely because in the opinion of the judicial tribunals, it was contrary to the 
 Ijrinciples of natural justice; for this would be vesting in the court a latitudina- 
 rian authority which might be abused, and would necessarily lead to collisions 
 between the legislative and judicial departments, dangerous to the well-being of 
 society, or at least not in harmony with the structure of our ideas of natural gov- 
 ernment." Commonwealth v. McCloskey, 2 Eawle. E. 374.
 
 POWERS OF THE SEMiRAL DEPARTMENTS. 81 
 
 iimitiijg legislative power, and coutroling the temporary will of 
 the majority by a permanent and paramount law settled by the 
 deliberate wisdom of the nation, that a safe and solid gi-ound f<n- 
 the authority of courts of justice could be found, to declare void 
 any legislative enactment. Any assumption of authority beyond 
 this, would be to place in the hands of the judiciary, powers too 
 great and too undefined, either for its own secm'ity, or for the 
 pn^tection of private rights." In order to guard against .so gi-eat 
 an evil, it has been the policy of all the American States that 
 have formed written constitutions since the revolution, and of the 
 people of the United States when they framed the federal con- 
 stitution, to define with jorecision, the objects of legislative power, 
 and to restrain its exercise within marked and settled boundaries. 
 
 The ideas of natural justice, are not, and cannot be, regulated 
 by a fixed standard. The ablest and purest men have difTered, 
 and ever will differ, on such a subject. The legislature possess, 
 certainly an equal, if not a superior right, to the coui'ts, to deter- 
 mine, by tlidr opinion, what laws arc consistent with the abstract 
 principles of natural justice. That the necessity, and degree of 
 necessity, for passing a law, not prohibited by the constitution, 
 is a question of legislative discretion, and not of judicial cogni- 
 zance, was held by Ch. J. Marshall, in McCulloch v. State of 
 Maryland, a It is not a sufficient argument that this power may 
 be abused by the legislature. It is an equally forcible argument 
 to say the same thmg as to the power of the courts. Such is the 
 nature of all power. The abuse of power, is the tendency of all 
 human institutions. We must be content to Umit power where 
 we can. Under our system of regulated power, as well as of reg- 
 ulated liberty ; we must be content to repose in the confidence, 
 that in our American government, we are as free fi'om danger of 
 abuse, as imder any other form of government that ever did 
 exist. Z>' 
 
 Chief Justice Marshall, at an early day, expressed his views on 
 this question, in an action between two indi^'iduals, claiming under 
 an act of the legislature, in which action, corruption on the part 
 
 a 4 Wheat R. 316. h Cakier v. Bull, 3 Dall. 4U0. 
 
 Note 9 . — The moral tendency and inexpediency of a statute is a question lor 
 the legislature, not for the court. Per Taney Ch. .J. Brevrerv. Blougher, 14. Pet. 198. 
 11
 
 82 rOWEKS OF THE SEVERAL DEPARTMENTS. 
 
 of the legislature was alleged, in the passage of the act. He 
 said,«. " This solemn question cannot be brought thus collaterally 
 before the court. It would be indecent, in the extreme, upon a 
 private contract between two individuals, to enter iato an enquiry 
 respecting the corruption of the sovereign power of a State. If 
 the title be plainly deduced from a legislative act, which the leg- 
 islature might constitutionally pass ; if the act be clothed with all 
 the requisite powers of a law ; a court, sitting as a court of law, 
 cannot sustain a suit brought by one individual against another, 
 founded on the allegation that the act is a nullity, in consequence 
 of the impure motives which influenced certain members of the 
 legislature who passed the law." 
 
 The wisdom of man has never conceived of a government with 
 power sufficient to its legitimate ends, and at the same time inca- 
 pable of mischief. No political system can be made so perfect 
 that its rulers will always hold it to the true course. In the very 
 best, a great deal must be trusted to the discretion of those who 
 administer it. In ours, the people have given larger powers to 
 the legislature, and rehed for the faithful execution of them, on 
 the wisdom and honesty of that department, and on the direct 
 accountability of the members to their constituents. There is no 
 shadow of reason tor supposing that the mere abuse of power was 
 meant to be corrected by the judiciary.?* 
 
 The soundest rule on this subject, it is beheved, is, that the 
 legislative departments of government are co-ordinate, and of 
 equal dignity with the executive and the judicial departments ; 
 each is alike supreme in the exercise of its proper functions ; and 
 cannot directly or indirectly, while acting within the limits of its 
 authority, be subjected to the control or supervision of the other, 
 without an unwarrantable assumption by that other, of power, 
 which, by the constitution, is not conferred upon it." 
 
 The American constitutions are supposed to apportion the 
 powers of government between the three departments, executive, 
 
 aFletclicr v. Peck, G Cranch. 131. 
 
 h Sharpless v. Mayor, &c. 21 Penn. St. R. 102. 
 
 Note 10. — A prudent and discreet judge, is one that does not judge statutes to (jt> 
 void because lie considers them against common right and reason, but leaves Par- 
 liament to judge what is common right and reason. Dwarris, 481.
 
 POWELS OF THE SEYEILVL DEPAETMENTS. 83 
 
 legislative, and judicial ; l)ut does not make either subordinate to 
 the other when exercising the trust committed to it. The courts, 
 it is true, may declare legislative enactments unconstitutional and 
 void, in some cases, — not because they are against natural reason 
 — nor because the judicial power is superior to the legislative ; 
 but because they are required to declare what the law is in tlie 
 case before them. They are bound to enforce the constitution as 
 the paramount law, whenever a legislative enactment comes in 
 conflict with it.a Inasmuch as statutes are either enacted, inter- 
 preted, or enforced by one or the other of these three co-ordinate 
 departments of the sovereign power, or by a union of all of them, 
 a brief discussion of their respective powers, and the influence of 
 each, in the control of government, here, may not be inappropri- 
 ate. 
 
 In the establishment of our national and State governments, 
 the highest evidence of wisdom, of patriotism, and statesmanship 
 is manifest, in the policy of dividing the powers of the govern- 
 ments into the three departments, the executive, the legislative, 
 and the judicial ; and, that their respective functions should be 
 liept separate and distinct ; and w'hile they should be co-ordinate 
 in rank and power, and all be acting in harmony, yet, wdthin their 
 respective spheres, each should be independent of the other, and 
 be so organized, that, the proper exercise of their respective func- 
 tions, in tho powers of each, would be a conservative check 
 upon the others, and so confine each in its action, to its legitimate 
 sphere." 
 
 While the equality and separate independence of these depart- 
 ments is to be implied in all these constitutions, several of the 
 States made the gi-ant of power to each, express ; with a prohibition 
 to each department, against the exercise of poAvers intended for the 
 others. In Massachusetts, for instance, it was declared that, " in the 
 government of this commonwealth, the legislative department shall 
 never exercise the executive or judicial powers, or of either of them; 
 
 L' a Cooley, on Constitutiouul Limitation. 
 
 Note 11. — The legislative, executive, and judicial departments are co-ordinate 
 iu degree, to the extent of the powers delegated to each of them. Each in the 
 exercise of its powers, is independent of the other, but all rightfully done by 
 cither, is binding upon the others. Dodge v. Woolsey, 18 How. U.S. R. 347.
 
 S4z rOWEES OF THE SE'STKAL DEP^VETMENTS. 
 
 tlie executive shall never exercise tlie legislative and judicial 
 powers, or of either of tliem ; tlie judicial shall never exercise the 
 lef^islative and executive powers, or of either of them ; to the end, 
 that it may be a government of laws and not of men."a The 
 same idea, in eflcct, is carried into other State constitutions. 
 
 Mr. Madison, one of the ablest and most distinguished of con- 
 stitutional expoiinders, said, h " It is agreed on all sides that the 
 powers properly belonging to one of the departments, ought not 
 to be du-ectly and completely administered by either of the other 
 departments. It is equally evident that neither of them ought to 
 possess, directly or indirectly, an overruling influence over the 
 others, in the administration of their respective powers. It will 
 not be denied, that power is of an encroaching nature, and that 
 it ought to be effectually restrained, from passing the hmits 
 assigned to it." 
 
 Montesquieu, in his work on the Spirit of the Laws, says, c 
 " When the legislative and executive x^owers are united in the 
 Bame person, or in the same body of magistrates, there can be no 
 liberty, because apprehensions may arise, lest the same monarch 
 or senate should enact tyrannical laws, to execute them in a tyr- 
 rannical manner. Again, there is no liberty, if the judiciary power 
 be not separated from the legislative and executive. Were it 
 joined with the legislative, thehfe and liberty of the subject would 
 be exposed to arbitrary control ; for the judge would be the legis- 
 lator. Were it joined to the executive power, the judge might 
 behave with violence and oppression. There would be an end of 
 everything, were the same man or the same body, whether of the 
 nobles or of the people, to exercise these three powers, that of 
 enacting law^s, that of executing the pubhc resolutions, and of 
 trying the causes of individuals." 
 
 And Blackstone, who T\Tote his commentaries in regard to the 
 laws of a monarchial government, says :d "In all t;)Tannical gov- 
 ernments, the supreme magistracy, or the right of both maldng 
 and enforcing laws, is vested in the same man, or in one and the 
 same body of men ; and where ever these two powers are united 
 together, there can bo no public liberty. The magistrate may 
 
 a Bill of Eights, Art. 30. h Federalist. No. 47. 
 
 c Book XI, Chap. G. dl Com. 146.
 
 rOWEES OF THE SEN'EKAL Dlli'MiTMENTS. 85 
 
 enact tyrannical laws and execute them in a tyrannical manner, 
 since lie is possessed, in quality of dispenser of justice, witli all 
 the power, wliicli lie, as legislator, thinks proper to give himself. 
 But when the legislative and executive authority are in distinct 
 hands, the former will take care not to entrust the latter with so 
 large a power, as may tend to the subversion of its own inde- 
 pendence, and therewith of the hberty of the subject." Again, 
 he says : a " In the distinct and separate existence of the judicial 
 power in a pecuhar body of men, nominated indeed by, but not 
 removable at the pleasure of the crown, consists one main pres- 
 ervation of the public liberty ; which cannot long subsist in 
 any State, unless the administration of common justice be iu 
 some degree separated from the legislative, and also the executive 
 power. Were it joined with the legislative, the life, liberty, and 
 ^rroperty of the subject woiild be iu the hands of arbitrary 
 judges, whose decisions would then be regulated only by their 
 opinions, and not by any fundamental principles of law ; which, 
 though legislators may depart from, yet judges are bound to 
 observe. Were it joined with the executive, this imion might 
 soon be an overbalance for the legislative." 
 
 But when we speak of the necessity of this division of power 
 between these departments of government as indispensable to 
 pubhc hberty, it is not nu^ant to affirm that they must be kept so 
 separate and distinct as to have no common link of connection or 
 dependence, in any sense whatever, but, that the whole power of 
 these departments should not be exercised by the same hands 
 which shall possess the whole power of either of the other depart- 
 ments ; and that such exercise of the whole, would subvert the 
 principle of a fi'ee constitution, h 
 
 The hne which separates the powers and functions of one 
 department fi'om the other, is not clearly expressed, or accurately 
 defined ; the practical result, must be, the occasional invasions of 
 the one upon the other, and a usurjoation of fimctions which 
 belong to the one, by the other. Minds of the ablest men will 
 differ, as to the nature and extent of the prohibition. So long as 
 these powers respectively, depend upon mterpretation ; the dif- 
 ferent constitutions of the minds of men, more or less influenced 
 
 a Id. 269. J, story on Const. § 525.
 
 86 POWERS OF THE SE^'EEAL DEPAETMENTS. 
 
 by interest, faction, an apparent necessity to meet a particular 
 case, or a temporarily existing popular sentiment, the judgments 
 and reasoning of men partake of some of the bias of pubhc opin- 
 ion. Practically, we Iniow, that usui-pations of power by one 
 dejjartment upon another, have been assumed, and have had a 
 temporary sympathy from popular favor, a 
 
 Mr. Story, says : " that in order to preserve in full vigor the 
 constitutional barrier between each department when they are 
 entirely separated, it is obviously indispensable, that each should 
 possess, equally, and in the same degree, the means of self-pro- 
 tection. Now, in point of theory, this woidd be almost imprac- 
 ticable, if not impossible ; and in point of fact, it is well known, 
 that the means of self-protection in the different departments are 
 immeasurably disproportionate. The judiciary, is incomparably 
 the weakest of either, and must forever, in a considerable meas- 
 ure, be subjected to the legislative power. And the latter has, 
 and must have, a controlhng influence over the executive power, 
 since it holds, at its ova\ command, all the resources, by which a 
 chief magistrate could make himself formidable. It possesses 
 the power over the purse, and the property of the people. It can 
 grant, or withhold suj)plies ; it can levy, or withdraw taxes ; it 
 can unnerve the power of the sword by striking down the arm 
 which wields it."/> 
 
 " It is, without doubt," says DeLolme, a writer upon the English 
 constitution, " absolutely necessary for securing the constitution 
 of a State, to restrain the executive power. But, it is still more 
 necessary to restrain the legislative. What the former can do by 
 successive steps, (I mean subvert the laws,) and through a longer 
 or shorter train of enterprises, the latter does, in a moment, as 
 its bare will can give being to laws, so its bare will can also anni- 
 hilate them ; and if I may be permitted the expression, the legis- 
 lative power can change the constitution, as God created the hght. 
 In order therefore, to insure stability to the constitution of a 
 State, it is indispensably necessary to restrain the legislative 
 authority." c He then proceeds to say, that he regards the divi- 
 sion of the legislative power into two bodies, as an important aid 
 in the restraining power. 
 
 a Federalist, No. 48. h Story, on Const. § 531 
 
 c DeLolme's Book 2, ch. 3.
 
 TOWERS OF THE SEVERAL DEPARTMENTS. 87 
 
 Tlie truth is, says Judge Stoiy, " that the legislative power is 
 the great and overruling power in every free government. It has 
 been remarked with equal power and sagacity, that the legislative 
 power is everywhere extending the sphere of its activity, and 
 drawing all power into its impetuous vortex."a And he adds, the 
 opinion, that the founders of our government, Avere so impressed 
 with dread of the royal prerogative, that they seemed not to have 
 remembered the danger from legislative usurjiations. The repre- 
 sentatives of the' people, Avill watcli witli jealousy every encroach- 
 ment of the executive magistrate, for it entrenches upon their own 
 authority. But who shall watch the encroachments of the repre- 
 sentatives ? Will they be as jealous of the exercise of power by 
 themselves, as by others ?" h In a representative republic, when 
 the executive magistrate is carefully limited, both in the extent 
 and duration of its power ; and where the legislative power is exer- 
 cised by an assembly which is inspired by a supposed influence over 
 the people, with an intrepid confidence in its own strength ; and 
 which is sufficiently numerous to feel all the passions which actu- 
 ate the multitude ; yet so numerous, as to be incapable of pursu- 
 ing the objects of its i)assions by means which reason prescribes ; 
 it is easy to see, that the tendency to the usui'pation of power, is, 
 if not constant, at least probable ; and that it is against the enter- 
 prising ambition of this department, that the people may well 
 indulge all their jealousy and exhaust all their precautions.c 
 
 There are many reasons which may be assigned for the engi'os- 
 sing influence of the legislative department. In the first place, 
 its constitutional powders are more extensive, and less capable of 
 being Ijrought within precise hmits, than those of either of the 
 other departments. 
 
 The bounds of the executive authority are easily marked out, 
 and defined. It reaches few objects, and those are known. It 
 cannot transcend them, without being brought into contact with 
 the other department. Laws may check, and bound, and restrain 
 its exercise. 
 
 The same remarks apply wdth still greater force to the judic- 
 iary. Its jurisdiction is, or may be, bounded 'to a few objects or 
 
 a Story on Const. § 532. h Id. 
 
 c See Federalist, Nos. 48 and 49.
 
 88 POWERS OF THE SEVERAL DEPARTMENTS. 
 
 persons ; or however general and unlimited, its operations are 
 necessarily confined to the mere administration of private and 
 public justice. It cannot punish without law. It cannot create 
 controversies to act upon. It can decide only the rights and 
 cases as they are brought by others before it. It can do nothing 
 of itself. It must do everything for others. It must obey the 
 laws ; and if it con'uptly administer them, it is subjected to the 
 power of impeachment. 
 
 On the other hand, the legislative power, except in a few 
 cases of constitutional prohibition, is unlimited. It is forever 
 varying its means and its ends. It governs the institutions, and 
 laws, and pubhc pohcy of the country. It regulates all its vast 
 interests. It disposes of aU of its property. Look but at the 
 exercise but of two or three of its ordinary powers. It levies all 
 taxes ; it directs and appropriates all sujDplies ; it gives the rules 
 for the descent, distribution, and devises of all property held by 
 individuals. It controls the sources and resources of wealth. It 
 changes at its will the whole fabric of the laws. It moulds at its 
 pleasure almost all the institutions, which give strength, and com- 
 fort, and dignity to society.a It is the direct visible representa- 
 tive of the people in all the changes of times and circumstances. 
 It has the pride as well as the power of numbers. It is easily 
 moved, and steadily moved by the strong impulses of popular feel- 
 ing, and popular odium. It obeys, without reluctance, the wishes 
 and the will of the majority of the body for the time being. The 
 path to pubhc favor lies open by such obedience ; and it finds not 
 only support, but impunity, in whatever measure the majority 
 advises, even though they transcend the constitutional limits. It 
 has no motive, therefore, to be jealous, or scnipulous, in its own 
 use of power ; and it finds its ambition stimulated, and its arm 
 strengthened by the countenance and courage of numbers. 
 
 It has been supposed, that the right of appeal to the people to 
 change the fundamental law, is an adequate protection to all the 
 c^dls that such body may inflict. Judge Story doubts this, in the 
 following language : " Whoever has been present in any assembly, 
 convened for such a purpose, must have perceived the great diver- 
 sities of opinion upon the most vital questions ; and tlie extreme 
 
 a Story. § 534.
 
 rOWEItS OF THE SEVEILVL DErAKTMENTS. 89 
 
 dLfficiiltj iu bringing a majority to concur in the long-sighted wis- 
 dom of the soundest provisions. Temporary feehngs and excite- 
 ments, popular prejudices, an ardent love of theory, an enthusi- 
 astic temperament, inexperience, and ignorance, as -well as pre- 
 conceived opinions, operate wonderfully to blind the judgment, 
 seduce the understanding.a 
 
 But, if the other two departments, the executive and judiciary 
 could make this appeal to the people, even then, in the opinion 
 of Mr. Madison, they would not enjoy equal advantages on a trial. 
 He says : h " the members of the executive and judiciary depart- 
 ments, are few in number, and can be personally known to a 
 small part only, of the people. The judiciary, are removed too 
 far fi'om the people to share much in their prepossessions. The 
 executive is generally the object of jealous}', and their adminis- 
 trations alwaj's liable to be discolored, and rendered unpopular. 
 The members of the legislative department, on the other hand, 
 are numerous. They are distributed and dwell among the people 
 at large. Their connections of blood, of friendship, and of ac- 
 quaintance, embrace a great proportion of the most influential 
 part of society. The nature of their public tnist implies a perso- 
 nal influence among the people. With these advantages, it can 
 hardly be supposed that the adverse party would have an equal 
 chance for a favorable issue. But the legislative party would not 
 only be able to plead their cause most successfully with the peo- 
 ple ; they would probably be constituted themselves the judges. 
 The same influence which had gained them an election into the 
 legislature, would give them a seat in the convention. If this 
 should not be the case with all, it woidd probably be the case 
 with many, and pretty certainly with those leading characters on 
 whom everything depends, in such bodies. The convention, in 
 short, would be composed chiefly of men, who had been, who 
 actually were, or who expected to be, members of the department 
 whose conduct was arraigned. They would consequently be par- 
 ties to the very question to be decided by them." 
 
 Not so, in any degi"ee, is the case of the judiciary department. 
 " It is never brought into contact with the people, by constant 
 appeals and solicitations, and private intercourse which belongs 
 
 a Id. § 537. . b Federalist, No. 48. 
 
 12
 
 90 DIVISIONS OF STATUTES. 
 
 to tliG other departments of government. It is seen only in contro- 
 rersies, or in trials and punishments. Its rigid justice and impar- 
 tiahties give it no c-laims to favor, however they may to respect. 
 It stands sohtary and unsupported, except by that portion of 
 pubhc opinion which is interested only in the strict administration 
 of justice. It can rarely secure the sympathy or zealous support 
 either of the executive or the legislature. If they are not, (as is 
 not unfi-equently the case) jealous of its prerogatives, the constant 
 necessity of scratinizing the acts of each, upon the application of 
 any private person, and the painfrd duty of pronouncing judg- 
 ment that these are a departure from the law or constitution ; can 
 have no tendency to conciliate kindness, or nourish influence." 
 
 It may here be allowable, (and not without its use and practi- 
 cal advantage), to state shortly the di\dsion of statutes, according 
 to the foreign jurists ; with a brief sketch of their general nature 
 and distinctive quahties. 
 
 But it is necessary to premise^ in order to guard against a mis- 
 conception lying in the path of the English lawyer, that by 
 statutes the civilians mean, not the positive legislation, which in 
 England and America is known by the same name, viz._ ; the acts 
 of Parhament and of other legislative bodies as contradistinguisli- 
 ed fi-om the common law ; but the whole municipal law of the 
 particular state, from whatever source arising a. Sometimes, the 
 word is used by civilians, in contradistinction to the Eoman 
 Imperial Law, which they are accustomed to style, by way of 
 eminence, "The Common Law ;" since it constitutes the genera] 
 basis of the jurisprudence of all continental Europe, modified and 
 resti-ained by local customs and usages, and positive legislation. 
 
 Statutes are divided by civilians into personal, real and mixed. 
 
 Personal statutes are those which act upon the person directly 
 as their subject or object ; by fixing and determining iis state either 
 universally or particularly ; without mentioning things, except with 
 reference to the state with which the person is afiected. Of univer- 
 sal quahties, some take effect from birth, as nobility h legitimacy, 
 bastardy ; and these can only be affixed by the law of the domicil of 
 origin. Some take effect at a stated time after birth ; as the period 
 of majority, and the time when the civil capacity to contract com- 
 mences. These are governed by the laws of the domicil of origin ; 
 each state being the most capable of judging fi-om the physical 
 circumstances of chmate and otherwise, at what time the faculties 
 of its subjects are to be considered morally and civilly perfect for 
 the pm-poses of society. Other quahties are universal, so far as 
 
 a story on the Conflict of Laws, p. 10. b Not in America.
 
 . PERSONAL STATUTES. 91 
 
 the comity of nations extend, but take eflect at an indelominato 
 time after birth, cv letters of iiolnllty, judgments or decrees of 
 competent tribunals declaring any person an idiot, lunatic or 
 bankrupt. Tlie relation of marriage also seems of this nature as 
 to its i)ersonal qualities, (the marital power,) however it may 
 differ as to its consequences Avitli respect to real property situate 
 out of the territory where the act of marriage is celebrated, a 
 
 Thus an act done by a minor in regard to his property situate 
 in the place of his domicil, ^vithout the consent of his guardian, 
 is mvalid there, and will be held invalid in every other place. So, 
 if a married woman, Avho is disabled by the law of the place of 
 her domicil from enteiing into any contract, or from transferring 
 any property therein, without the consent of her husband, should 
 make a contract or transfer property situate therein, the transac- 
 tion will be held invahd, and a nulUty in every other country, h 
 " Qiiando lex iii 'personam dirigitur respicienda est ad leges illius civ- 
 itatis, quce personam hahat su/jjectam.c " Qualitas pcrsoimm, sicut 
 umbra, sequitnr." 
 
 But, as to acts done, rights acquired, and contracts made, by 
 persons not declaied incapable, in other countries, the lex loci 
 contractus ought to prevail, and not the lex loci dojiucilii. And as 
 the validity of the contract may depend upon the capacity of the 
 contracting party, in regard to questions of minority and niajority ; 
 competency or incomptency to many ; incapacities mcident to 
 coverture ; guardianship, <fec. ; as a rule in other countrie-s, the law 
 of the domicil of birth or habitation is not generally to prevail, 
 but the lex loci contractus ant actus. Such ([ualities as are last 
 spoken of, can only be affixed by the sovereign or judge of the 
 actual or real domicil. Great confusion and mischief, it is ap- 
 parent, would arise, if the effects of judgments and decrees of 
 idiocy, lunacy, <fcc., were not to be general and universal, and if 
 the same person could be considered as capable to contract in 
 one place, and incapable in another. Here, d therefore, one 
 independent state will, by the comity of nations, and for the 
 general convenience of mankind, give effect to the laws and 
 judicial acts of another, so far as it "can be done without prejudice 
 to the fimdamental princi])les of its own internal poHcy. e 
 
 Tersonal jxirticular qiialities, are those whereby a person general- 
 ly incapable by his civil state, is rendered capable for some par- 
 ticular act ; or a person generally capable by his civil, state, is 
 
 a Modern statutes, in several of the states of this government, have changed this 
 marital jiower. It is not proposed to review in this work, the variations from the 
 common law which have heeu effected by such statutes in different states. 
 
 b Henry on Foreign Law, p. 4 ; Bullenois Pri. Genl. 6. 
 
 c 1 Hertii Op. Do CoUis. Leg. § 4, art. 8, p. 123. 
 
 d Huber de jure civitatis, 1, 3, c. 10; Voet ad Pandectas, lib.l, tit. 4, par. 2, n. 11 
 
 e Henry on Foreign Law, p. 2.
 
 92 liE^Mj STATUTES. 
 
 rendered incapable for some particular act.'- Of the first class 
 is the statute 7 Anue, c. 19, enabling infant trustees to convey ; of 
 the second is the act 1 Jac. 1, c. 15, s. 5, disabhng persons subject 
 to the banknipt laws from conveying or transferring their lands 
 to their childi'cn or others, except in a particular way. 
 
 If the object be of a personal nature, as to contract or become 
 security, the statute iB])\ii'elj personal, and the quality accompanies 
 the person everywhere. If the object be of a real nature, as to 
 ahenate or settle lands, and the subject matter real property, 
 then the person is only affected with respect to this species of 
 property locally, and it is confined to the domicile ; of which 
 dower in England is an example. Personal disqualifications, the 
 creatures of positive law, and especiaUy such as are of a penal 
 nature are not generally regarded in other countries. Hence the 
 disqualifications arising from heresy, excommunication, popish 
 recusancy, &c., are not enforced in any country except in that in 
 which they originate. The acts of idiots, lunatics and married 
 women escaping into foreign countries, are not deemed obligatory 
 as regards property there, even if sanctioned by the foreign law, 
 unless the law of their own country adopt such foreign law as a 
 rule to govern in such cases. 
 
 Ileal statutes, are those which affect directly things as their 
 object or motive, wdiether movable or immoveable, and indepen- 
 dently of the personal state of him Avho is to exercise the acts of 
 o^\^lersllip on them. According to this description, the statute of 
 22 ct 23 C. 2, c. 10, regulating the distribution of the personal 
 property of intestates, is as much a real statute as that which 
 declares that no lands in England shall pass by a will not attested 
 by three witnesses. But there is nevertheless a marked difference 
 in the powers and operations of a real statute in these two cases. 
 With respect to immovable property, the law of the situation does 
 not defer by comity to the law of the actual domicile, which may, 
 
 NoTi 12. — "Where the statute obliges an infant to indemnify the city, town or 
 county against the expense of supporting his illegitimate child, and makes it nec- 
 essary for him to enter into a bond with sureties, for the purpose, as the only 
 means by which he can obtain a discharge from arrest ; that provision, without 
 further words, gives the infant a legal capacity to make a binding obligation, and 
 his infancy is no defence to an action on the bond. People v. Moores, 4 Denio, 
 518; Baker v. Lovett, 6 Mass. 80, 4 Mass. 376, 1 Mason 83. Any disability crea- 
 ted by the common law, is removed by the enactment of a statute. The compe- 
 tency of an infant to do all acts within the purview of such statute, is as comj^lete 
 as that of a person of full age. And whenever a statute has authorized a contract 
 tor the public service, which, from its nature and objects, is manifestly intended 
 to be performed by infants, such a contract must, in point of law, be deemed to be 
 for their benefit, and for the public benefit, so that when bona fide made, it is nei- 
 ther void nor voidable, but is strictly obligatory upon them.
 
 DIVISIONS OF STATUTES. 93 
 
 perhaps, be content with two witnesses in the devise of lands fa 
 while a will made abroad, according to the law of the testator's 
 domicile, is allowed to pass personal, or even funded i)roperty in 
 England ;6 and the statute ot distriljutions gives Avay, with respect 
 to the personal property of intestates in England, to the laws of 
 the; foreign domicile, in the case whei'e a person dies intestate 
 abroad ;c and this by favor of the liction of law that mohilia 
 .sajxHufur personam. 
 
 Whether a given statute be personal, real or mixed, and if 
 mixed, whether the personalty or realty prevail, is often a subject 
 of learned debate. The rules for distinguishing the several kinds, 
 and the application of those rules to the particular case, are often 
 keenly controverted among th(>, civilians who seem to agi*ee in 
 nothing but that the matter is full of dithculty and uncertainty.^/ 
 
 When the law of the donn'cile of the creditor and debtor differs 
 as to classing delfts and rights, and rights of action, the law of the 
 debtor must prevail, in suits thereon, according to the maxims 
 actio sequitur forum ret, and dehita sequiintur jiersonam debiforis. It 
 is indeed a maxim, that debts and rights of action, inhaemrd ossi- 
 hus crediforis, attend the person of a creditor, but to recover them 
 he must follow the for x)ii rei, and the person of the creditor. The 
 explanation of this seeming contradiction is, that personal actions 
 ai-isiug from debts or obligations, have two characters ; active as 
 the}' resj)ect the right of the creditor, and passiLX as they regard 
 the obligation of the debtor. If the (}ucstion regard the distribu- 
 tion of the creditors estate, the law of his domicil is to be observed ; 
 if the question be in what degree or j^roportion the representa- 
 tives of the debtor should be charged with payments fi-om his 
 effects, then it is of a passive nature, and the law of the domicile 
 of the debtor slioidd be foUowed. The extent of the vinculum 
 ()bJi(/afioncs of a contract, is regulated by the law of the place of 
 contract. A legal discharge of a debt in the coimtry where it is 
 contracted, will operate as a discharge in all others. The place 
 where the banknipt is arrested, taken in execution, or commits 
 an act of bankruptcy, or where the concursos of creditors, or pro', 
 and concurrcntiae, are held in the proper place of distribution. All 
 other claimants must be drawn to the locus concursus crediforum ; 
 its law {jus domicilii) is binding, and the equitable doctrine of ces- 
 sion and discharge is now become a general principle acted upon 
 
 a Qy. Voet, contra. 
 
 b Thomas v. Walker, 2 Ves, 33, Fonblanque, vol, 2, 44G; Heury on For. Law, 11 
 
 c Lord Annandale's case before the House of Lords, 1828. 
 
 d Ilertius de CoUisione legem, § 4. 
 
 *rrofossor Voot, Zi6. 1, 2'i(. 4:, jmrt 2, sect. 13, considers "ad validilafem actus 
 cujusqxie, sitfficere adhibitionem solemnitaium quos lex loci in quo actus geuitur prci'. 
 scrijjserlt observandas," and he assigns as a reason that tndustria exqiusiiissima 
 would be insuflSciont to acquire a knowledge of the laws of different countries.
 
 94 MIXED STATUTES. 
 
 in every coimtry.a It is otherwise wlien tlic debt is contracted 
 m a foreign conntry.6 A foreign bankruptcy is no bar to tlie 
 demand of a debt contracted in England ; but by a decision not 
 (ounded on any general principle, but upon the effect of the par- 
 ticular statute (5-1. Geo. 3 C. 137) a debt contracted m England 
 by a trader residing in Scotland, is barred by a discharge under 
 II sequestration, in like manner as debts contracted in Scotland/; 
 
 Mixed statutes affect both persons and things, and constitute a 
 third class, which (after spending much time and profuse ink in 
 uuprohtable disputes) it was found absolutely necessary to admit ; 
 there being so many statutes which are not either purely personal 
 or purely real. Whether a given statute be personal, real, or 
 mixed ; and if mixed, whether the personalty or realty prevail, is 
 often a subject of learned debate. The rules for distinguishing 
 the several kinds, and the application of those rules to the partic- 
 ular case, are often keenly controverted among the civilians, who 
 seem to agi-ee in nothing, but that the matter is full of difficulty 
 and uncertainty. " Li iis definiendes mirum est quam sudant doc- 
 toresyd 
 
 In the case of the conflict of statutes, the following maxims 
 seem to obtain : 
 
 Where the personal statutes of the domicil of origin or birth, 
 and those of the actual domicil, are discrepant, the latter give 
 way to the former, by comity, and for the reciprocal advantage of 
 sovereigns, that each may preserve his authority over his own 
 subjects. Thus the statute fixing the majority at twenty-one, 
 habihtates the party in another domicil where the age of 
 twenty-five is required. 
 
 When the domicil of origin gives a personal capacity, but that 
 of the situation of the real property is different and prohibitory, 
 the lex loci rei sitce prevails. 
 
 But when statutes real, differ in degree, each has its effect pro 
 
 iauto. If a man has possessions in difierent states, in one of 
 
 which he is allowed by the law to dispose by will of a third, and 
 
 in another only of a fifth, he may dispose of his properties sever- 
 
 ' ally, in conformity with each. 
 
 Marriage contracts are juris c/enfiurn.o Where there is a mar- 
 riage contract, regulating the rights and properties of the parties, 
 that wiU be held equally valid everywhere/ 
 
 a Hunter v. Potts, 4 T. K. 182 ; Sills and Warwick, 2 H. Black. E. 402 ; Ballan- 
 tine and Golding, Cooke's Bankrupt Laws, 499. 
 
 h Smith V. Buchanan, 1 East. K. IG ; Potter v. Brown, 5 East. 124, 2 H. Bl. 
 553, 8 T. Pt. C09 ; Lewis and Owen, 4, B. and A. 654. 
 
 c Sidaway v. Hay, 3 B. and C. 13. 
 
 d Hertius de CoUisione legum, § 4. 
 
 e Scrimshire v. Scrimshire, 2 Hagg. Consist. Piep. p. 412. 
 
 /Story on Conflict of Laws, p. 159.
 
 MIXED STATUTES. 95 
 
 Where there is a change of domicil, the law of the actual dom- 
 icil will govcru the rights of the parties as to all future acquisi- 
 tion s.a 
 
 Where there is no express contract, the law of the matrimonial 
 domicil will govern as to present, — and where there is no change 
 of domicil, — as to future acquired property in that place ; and as 
 to personal property everywhere. As to immovable property, the 
 lex rcl fiifffi will prevail. 
 
 Sup])osc a husband and wife, married in, and subjects of, Eng- 
 land, should become permanently domiciled in France, would a 
 will of the wife in France (which she could not make in Enghuidj 
 in regard to her property in England, made in favor of her hus- 
 band or others, be held valid in England ? h Hertius, Paul Yoet, 
 eTolin Voet, Burgundus, Ftodenburg, Pothier and Merlin, hold 
 that the law of the new domicil must, in all cases of a change of 
 domicil, govern the capacities and rights of property of married 
 women, as well as their obligations and duties; but the law of 
 England is singiilarly reluctant to admit, by comity, any doctrine 
 which is repugnant to the settled principles and policy of its own 
 laws. 
 
 There is no doubt, that, where there is a change of domicil, the 
 law of the actual domicil, and not of the matrimonial domicil, 
 will govern futm'e acquisitions of movable property, c provided 
 always, that the law of the place do not prohibit such arrangc- 
 ments.fZ For though in general the hiAV of the matrimonial dom- 
 ical is to govern in relation to the incidents and eftects of mar- 
 riage, the doctrine must be received with many quahfications. 
 
 A marriage in France or Prussia may be dissolved for incom- 
 patibility of temper ; but no divorce would be gi'anted for such a 
 cause in England, Scotland, or America. " If," said a learned 
 Scotch judge,e " a man in this country (Scotland) were to confine 
 his wife in a cage, or beat her with a rod of the thickness of the 
 judge's finger ; woidd it be any justification, in any court, to allege 
 that these were powers which the laws of England conferred on a 
 husband? and that he was entitled to exercise them because his 
 man-iage was celebrated in that country?" 
 
 "As to the constitution of maniage," says the same learned 
 scotch judge, " as it is merely a personal consensual contract, it 
 must be valid everywhere, if celebrated according to the lex loci; 
 but with regard to the rights, duties and obhgations thence arising, 
 the law of the domicil must be looked to." 
 
 a Ibid. 
 
 h Merlin. Eepert. Testament, s. 1. 0, art. 1, p. 309. 
 
 c Stein's case, 1 Kose, Rank. Ca. Appx. 481 ; Henry on Foreign Law, 48 ; 
 Burge Comm. on Col. and Foreign Law, pt. 1, c. 7, s. 18, p. CI 8. 
 .dHuber, lib. 1, tit. 3, s. 2. 
 e Ferguson on Marriage and Divorce 399, per Lord Robinson.
 
 96 MIXED STATUTES. 
 
 The mle tliat a marriage wliicli is valid where it is celebrated, 
 is valid everywhere,rt ^and if invalid there, is invalid everywhere, 
 has three exceptions. First those marriages involving polygamy, 
 and incest. Secondly, those publicly prohibited by the law of a 
 coimtry from motives of pohcy. Thirdly, those celebrated in for- 
 eign countries, by subjects entithng themselves under special cir- 
 cumstances to the benefits of the laws of their own country. 
 
 " The doctrine of the English courts in regard to the indisso- 
 lubiHty of Enghsli marriages, celebrated in England, notwith- 
 standing a subsequent divorce in a foreign country, affords," says 
 Story, "a still more striking illustration ; as, in its practical effects, 
 it may render the issue of a second marriage illegitimate ; so that 
 a son, the issue of a second marriage in Scotland, may be legiti- 
 mate there, and illegitimate in England; he may be a lawful 
 Scotch peer, and yet lose the English estates which support his 
 peerage. "6 
 
 Marriages in foreign factories, in conquered places, in desert or 
 barbarous countries, — at the embassador's hotel, by the resident 
 chaplain, etc., are cases illustrating the third exception. But 
 though the rale of international law certainly is, that betAveen 
 persons sui juris, marriage is to be decided by the law of the 
 place where it is celebrated ; in France, where parental restraints 
 upon the marriage of minors are carried to the greatest extent, it 
 is broadly laid down that the marriages of Frenchmen in foreign 
 countries shall not be deemed valid, if the parties are not, by its 
 own law, competent to contract, by reason of their being under 
 parental power ; that is, if they be under twenty-five years of 
 age. Majority, in France, is now fixed at twenty-one, in all 
 other cases, except for the sake of contracting marriage ; when it 
 is not attained until twenty-five.c 
 
 It w^as decided in Lolly s case, that a second mamage after a 
 divorce in Scotland fit'om a marriage originally celebrated in Eng- 
 land between English subjects is void in England, although such 
 divorce and second marriage would be good by the law of Scot- 
 land.cZ But in Warrender v. Warrender, it was held that the 
 Courts of Scotland had a clear jurisdiction to decide a divorce 
 Ijetween parties actually domiciled in Scotland, notwithstanding 
 that the marriage was contracted in England ; and that the House 
 of Lords, sitting as a Court of Appeal, in a case coming from 
 Scotland, were bound to administer the law of Scotland.e 
 
 a 1 Burge Com. on Col. & For. Law, cb. 5, § 3, p. 188. 
 
 h Story on Conflict of Laws, 108 ; citing Beazley v. Beazloy, 3 Hagg. Ecc. R. C39. 
 
 c Code Civil, art. 148, 448. 
 
 (Z Lolly's Ca. 1 Euss. and Eyau, 23G. Warrender v. Warrender, 8 Bligb. E. 
 891. And see 2 Clarke and Fin. E. 5G7, note. Macarthy v. De Caix, 2 Euss. and 
 Mylne, 614. 
 
 e 8 Bligb, 891.
 
 DIVISIONS OF STATUTES. 97 
 
 The (loctrino in the Englisli courts that the lex loci contractus 
 shall not be permitted to prevail where it is contra honos mores, 
 or is repugnant to the settled principles and policy of our own 
 laws, is sup})()rted in other instances. Where a question arose in 
 the Court of King's Bench, whether a person boni before mar- 
 riage in Scotland, of Scotish parents, who afterwards intermar- 
 ried there, and thereby became legitimate in Scotland, could 
 inherit real property, as a legitimate heir in England, it was held 
 by the Court, and afterwards contirmed in Error, that he could 
 not.r;. 
 
 When the law of the domicil of the creditor and debtor, differs, 
 as to classing debts and rights of action, the law of the domicil 
 of the debtor must prevail in suits thereon, according to the 
 maxims actio scquitur forum rci and dcbiia sequKutcr jjet^onarii debi- 
 toris. It is, indeed, a maxim that debts and rights of action, 
 inhcerent ossihus crcdiforis, attend the i)erson of a creditor ; but to 
 recover them, ho must follow the foritvi rci and person of the 
 debtor. The explanation of this seeming contradiction, is, that 
 personal actions arising from debts or obligations have two char- 
 acters, active as they respect the right of the creditor, and passive 
 as they regard the obligation of the debtor. If the question 
 regard the distribution of the creditor's estate, the law of his 
 domicil is to be observed ; if the c[u-estion be in what degree or 
 proportion the rei3resentatives of the debtor should be charged 
 with payments from Jiis effects, then it is of a passire nature, 
 and the law of the domicil of the debtor should be followed. 
 
 The extent of the vincuhnn ()hli<jnli<))n's of a contract is regulated 
 by the law of the j^ittce of contract./; The law of the place of con- 
 tract, in the case of foreign contracts, is to govern, as to the 
 nature, the obhgation, and the interpretation of the contract ; locus 
 contractus regit actum. " This," said Lord Brougham, in deliver- 
 ing his judgment in Warrender v. AVarrender, " is sometimes ex- 
 pressed ; and I take leave to say, inaccurately expressed ; by say- 
 ing that there is a comitas shewn by the tribunals of one country 
 towards the laws of the otln^r country. AVliere the laws of one 
 country consider the laws of another, in which any contract has 
 been made, in construing its meaning or ascertaining its existence, 
 they can hardly be said to act from courtesy, comitas ; for it is of 
 the essence of the subject-matter to ascertain the meaning of the 
 parties, and that they did solemnly bind themselves. Therefore 
 the courts resort to the law of the country where the contract was 
 made, not ex comitate, but ex debitoJustitia'"c 
 
 a Doe Dem. BirtliwListle v. Yardell, 5 B autl Cres. 438 , S. C. 9 Bligli E. 32. 
 
 h 1 Emerig. Assur. ch. -1, s. 8, p. 1'22 ; Casaregis Disc. 179, Heury on Foreign 
 Law, 139. And see Earl of "Winchelsea v. Garctty, 2 Keaue Hep. 298. Dnnn- 
 moudv. Drummoud, G Bro. I'. K. 5uO. 
 
 c 8 Bligh K. 891. 
 
 13
 
 08 DIVISIONS OF STATUTES. 
 
 A legal discliarge of a debt in the country where it is contracted, 
 will operate as a discharge in all others.a The place where the 
 bankrupt is aiTested, taken in execution, or commits an act of 
 bankruptcy, or where the concursos of creditors, or prcp. and con- 
 furrcntm are held, is the proper place of distribution. All other 
 claimants must be di'awn to the locus concursos crcdiforum ; Us law 
 {jus domicilii) is binding, and the equitable doctrine of cession 
 and discharge, is now become a general principle acted upon in 
 every country.^ 
 
 It is otherwise c when the debt is contracted in a foreign coun- 
 try. A foreign bankruptcy is no bar to the demand of a debt 
 contracted in England ; but by a decision not founded on any 
 general principle, but upon the effect of the particular statute, 
 54: Geo. o, c. 137, a debt contracted in England by a trader resi- 
 ding in Scotland, was deemed to be barred by a discharge under 
 a sequestration, in like manner as debts contracted in Scotland.^ 
 
 a Potter v. Brown, 5 East, 124. 
 
 b Hunter v. Potts, 4 Term Reports, Sills and Warwicke, 2 H. Bl. 402 ; Ballan- 
 tine V. Goldiug, Cooke's Bankrupt Laws, 499. 
 
 c Smith V. Buchanan, 1 East, 6 ; Potter v. Brown, 5 East, 124 ; 2 H. Bl. 553, 8 
 T. K. 609 ; Lewis v. Owen, 4 B. & A. 654. 
 
 d Sidaway V, Hay, 3 B. & C. 13.
 
 FORM OF STATUTES. 99 
 
 CnAPTER IV. 
 
 OF THE FORM OF STATUTES. THEIR PARTS. QU.U.ITIES. AUTHO- 
 RITY AND RELATION. 
 
 A STATUTE, it lias been akeady seen, is a written law, made by 
 tlie King, with tlie advice and consent of the tAvo Houses of Par- 
 hament.' The mode of stating the enacting authority has varied 
 at different tnncs. 
 
 The estabhshed form of a statute is, " Be it enacted ey the 
 King's most excellent Majesty, by and with the advice and 
 
 CONSENT OF THE LORDS SpIRITU.VL AND I'EMPOR.VL, AND COMMONS IN 
 THIS PRESENT PARLIAMENT ASSEMBLED, THAT," &C.'- 
 
 It is impossible to dissent from the doctrine of Lord Coke, that 
 acts of Parhament ought to be plainly and clearly, and not cun- 
 ningly and darkly, penned, especially in penal matters ; and tho 
 rather when, (duly honoring the memory of Sir Thomas More, 
 and other victims of conscientious scruples,) wo regard Lord 
 Coke's illustration of that maxim. " In times past," says thai 
 great and honest lawyer, " I find that the Houses of Parliament 
 
 Note 1.— In America, it is, the written law of tlie people, made by their choaei 
 representatives, having the assent of the executive of the State, who is als« 
 chosen by the people. 
 
 Note 2.-^The enacting clause of a statute of congress, is thus expressed. 
 "Be it enacted by the Senate and House of Representatives in Congress assem- 
 bled." In a New York statute, it is: " The people of the State of New York, rep- 
 resented in Senate and Assembly, do enact as follows." In other States of tlu! 
 union, the form is substantially the same. 
 
 The constitutional requisites to the proper creation of a statute, in the National, 
 and in the several State legislatures, are in substance and eflfect, so nearly similar, 
 that it would be Tlseless to do more than to give the outline of one. 
 
 By the constitution of the United States, (Art. 1,) the legislative pon-er is vested 
 in the Senate and House of Representatives, but before any bill can become a 
 law, it must bo presented to the President; if he approve he shall sign it; if not, 
 he shall return it with his objections, to the house in which it .shall have origina- 
 ted; who shall enter such objections at large upon their journal, and proceed to 
 reconsider it. If alter such reconsideration, two-thirds of that house shall agree 
 to pass the bill, it shall be sent, together with tno objections to the other house, 
 by which it shall also bo rccohsidereu. If apprcved by two-thirds of that house, 
 it shall become a law.
 
 100 FORM OF STATUTES. 
 
 have not been faii'lj dealt witlial, but by cunning artifice of words, 
 utterly deceived ; and that, too, in cases of the greatest moment, 
 even in high treason.a 
 
 Lord Coke b commends some acts for being " shortly and arti- 
 ficially penned," and says, " it was the wisdom of ancierft Parlia- 
 ments to comprehend much matter in few words ; " but this 
 express recommendation (as it is) of brevity and compression, 
 where the true legal efi"ect, and real force and meaning of words, 
 is duly understood, must not mislead. He c elsewhere pointedly 
 says, ''abundans cautcla non nocet, and the ancient sages of the law 
 did ever make things, as plain, and leave as httle to construction, 
 as might be." 
 
 The parts of statutes are — in a popular, though not legal, sense : 
 
 The Title ; The Preamble ; 
 
 The Pur\dew or Body of the Act ; 
 
 Clauses ; Provisos ; Exceptions ; 
 
 The date, or day of its receiving the royal assent.' 
 
 a i Inst. 42. h 2 Inst. 30G; id. 401. 
 
 c 2 Inst. 375. 
 Note 3. — ^By the constitution of the United States, Art. 1, Section 7, "every 
 bill shall take effect as a law from the time it is approved by the President." This 
 plain provision, as applicable to different cases, has had various interpretation. 
 In Matthews v. Zanes, 7 "Wheat. 164, it was declared that an act of Congress was 
 operative irom the date of its enactment, if no other time is fixed in the act. In 
 such case the effect is prospective, and not retrospective. Matter of Eichardson, 
 2 Story, C. C. E. 571. But it was held, in the Matter of Welman, in U. S. Dist. 
 Court of Vermont, by Prentiss J., following the English decisions, that a statute 
 which takes effect from, and after its "passage, goes into operation the day on 
 which it is approved, and has relation to the first moment of that day; 20 Vt. E. 
 653. This may be very well as a general rule, but] it is a construction by mere 
 fiction of law, and is not truth. By siich a fiction, a law might relate back and 
 take effect before it was actually signed by the President. A more sensible view 
 was taken by Story J., in the "Matter of Eichardson," supra. He said: "I am 
 aware it has often been laid down, that in law there are no fractions of a day. 
 Dut this doctrine is only true sub modo, and in a limited sense, where it will pro- 
 mote the right and justice of the case, pro hono publico. It is a mere legal fiction, 
 n.nd, therefore, like all other legal fictions, is never allowed to operate against the 
 right and justice of the case. On the contrary, the very truth and facts in jjoint 
 of time, may always be averred and proved in furtherance of the right and jus- 
 tice of the case; and there may even be priority in an instant of time; or in other 
 words, it may have a beginning and an end." Even in England, this rule of 
 fiction was made to yield to the promotion of justice between parties, and, it was 
 held that the fact could be alleged and proved to overturn this fiction. Eoe v. 
 Hersey, 3 "Wils. E. 275. In illustration of the injustice of the fiction, the Court 
 6aid: " Someb"mes by a like fiction, the whole session of Parliament is considered 
 fts one day." All acts of Parliament of one session, are regarded as passed on 
 (he first day ^f the session.
 
 TIME WHEN STATUTES TAKE EFFECT. 101 
 
 The custom of prefixing titles to statutes did not begin tiJ] 
 about the eleventh year of the reign of Hcnr}^ Vll, though particu- 
 lar instances may have occurred before that time. a 
 
 Common sense, and common justice, equally sustain the pro- 
 priety of allowing fractions of a day, Ashenever it will promote 
 the purposes of substantial justice. The tiiue of the approval 
 of an act, is a question of fact. The constitution declares iliat 
 to be the time, when the law takes effect. This act of approval 
 cannot look backward, and by relation, or fiction, make that a 
 law at any antecedent period of the same day, -which was not so 
 before the approval. The constitution cannot be abrogated by 
 constmction. The law prescribes a rule for the futui'e, not for 
 the past. And this in a republican government, is a doctrine of 
 vital importance to the security and protection of the citizen. 
 This is in accordance with the spirit of another provision of the 
 constitution, that no cxpost facto law shall be passed. Take the 
 supposed case of filing a banknipt petition on a certain day at 
 noon, when the law was in full force ; and an act repealing the 
 bankrupt law at eleven o'clock in the evening of the same day, or, 
 the case of an act performed in the morning of a day, an act, that 
 was innocent when performed, and a statute approved in the even- 
 ing of the same day making such act an offence ; could the party 
 performing the act be punished? clearly not. Here the law would 
 regard the fractions of a day, and allow the fact to be alleged, and 
 evidence to be given of the fact in furtherance of justice, and the 
 matter of fact would overcome, even if the fiction stood against it. 
 
 In the State of Xew York, all fictions and presumptions of law 
 on this subject, are changed by the Eev. Stat. (vol. 1, 157, § 12,) 
 which provides that every law, unless a different time be pre- 
 scribed therein, shall commence and take effect throughout the 
 State, on, and not before the twentieth day after the day of its 
 final '^ passage." In Mississippi, they have a constitutional pro- 
 vision, that no law of a general nature, unless otherwise pro%-ided 
 for, shall be enforced, until sixty days after its passage, (Const, 
 Art. VII, § G.) In Michigan, by a Uke constitutional provision, nc 
 public act shall be in force, until ninety days from the end of the 
 session of the legislature at which it was passed. (Const. Art. 4, 
 
 « Wisemaa v. Gotten, Lord Kaj-m. 77 ; Chance v. Adams, Hard. 324.
 
 102 TITLES OF STATUTES. 
 
 § 20). lu States where no constitutional or legal provision is 
 made on tlie subject, the common law rule prevails ; each State 
 determining its otvti rule of interpretation. This is a question of 
 great moment, inasmuch as the common law presumption, is : — 
 " that every citizen knows the law, and according to the maxim — 
 ' ignoraniia lecjis neminem excused.^ " 
 
 It is impossible that the citizens or subjects of an extensive 
 and populous country, can obtain any accurate knowledge of the 
 pui-port of an act on the day of its passage ; and the doctrine, 
 that the last act signed, is to prevail over, and to abrogate or 
 nullify one duly enacted a few hours previous, is arbitrary, unre- 
 liable, and may be oppressive. These evils are obviated by the 
 provisions of this, and other States above mentioned. 
 
 The title should properly distinguish the act, by such a name 
 as expresses, in general terms, its main intent ; and if not perpet- 
 ual, its temporary duration. 
 
 The title of a statute, it has been a repeatedly held, is no part 
 or parcel of the statute ; for it is usually framed only by the clerk 
 of that House in which the bill first passes, and is seldom read 
 more than once.?/' In Wills v. Wilkins, Holt chief justice, said, 
 " It is true that the title of an act of parliament, is no part of the 
 law or enacting part, no more than the title of a book is part of 
 a book ; for the title is not the law, but the name or description 
 given to it by the makers."c 
 
 aBarrington on Stnt. 449, hoils; 1 W. Bl. 85, R. v. Williams. 
 
 h 3 Eep. 33, Poulter's case. c Wills v. Wilkins, 6 Mod. 62. 
 
 Note 4, — It is otherwise in American legislation; here the representatives pro- 
 pare the whole statute, title, preamble, (if any,) and. body of the statute. 
 
 Though the title of an act cannot control plain words in the body of the stat- 
 ute, yet, taken with other parts, it may assist in removing ambiguities. Whero 
 the intent is plaiti, nothing is left to construction; but where the mind labors to 
 discover the design of the law-making power, everything w^hich can aid 'this 
 object, may be resorted to, and even the title of the act, in such case, may receive 
 a due share of consideration. United States v, Fisher, 2 Cranch 386. The inien- 
 I'wn of the law-maker it has always been held, is the best guide in the construction 
 of statutes. United States v. Palmer, 3 AVheat. 631. "Williams v. Williams, 8 N. 
 Y. R. 535. 
 
 In doubtful cases, the title of an act may serve to explain its general purport, 
 i\nd the inducement that led to its enactment^ but even then it has little weight : 
 Iladden v. Collector, 5 Wallace, 107, mjd when the title is at variance with its 
 provisions, it is entitled to no consideration, though it may tend to explain a 
 doubtful meaning of a part of it. id. It cannot be used to extend or restrain any 
 positive provisions contained in the body of it. id, A law may be good, though 
 it is in conflict with the title.
 
 TITLES OF STATUTES. 103 
 
 Being tlius no part of the act, tlic title is said to afford " no 
 legislative import." « 
 
 The mere title of an act is, therefore, a very insufficient anil 
 unsafe guide to assist us in ascertaining, even in the most general 
 way, the scope and purport of the act; yet Avhen the mmd labors 
 to discover the intention of the legislature, it naturally seizes upon 
 every thing, even the title, from which aid may be derived. As 
 an example of an act gi'catly " more spacious than its title," Lord 
 Coke refers to the Statute of Us(is, " which extends to jointures 
 and dowers of women." The title to an act then, though no part 
 of an act, is not to be wholly disregarded in ])utting a construc- 
 tion upon the statute. The object of the legislature is very often 
 avowed in the title to an act, as well as in the ])reamblc. lint 
 being no part of the act, in a legal sense, it would be preposter- 
 ous to attempt to use it, in restraining or coutroling any provision 
 of the act ; it can only be used for the fact, of the makers having 
 given the law a certain name ; if that fact, can render any assis- 
 tance in doubtful cases. 
 
 Titles, to legislative acts in the State of New York, and in sev- 
 eral other of the States of the union, are matters of very great 
 moment,, in a constitutional view of the statute. By section 16 of 
 article 3, of the constitution of New York of 1810, " no private or 
 local bill which may be passed by the Icgislatui'c, shall embrace 
 more than one subject, and that shall he expressed . in the title." 
 Acts passed by the legislature in violation of this pro\dsion, have 
 been declared by the courts to be null and void. It v/as well said 
 in an opinion in the supreme court of this State as foUows : "In- 
 stances had occurred in Avhich important enactments had been 
 smuggled through the legislature, imder the cover of some bill 
 with a modest and unpretending title. To guard the legislature as 
 well as the public, against this kind of imposition, the framers of 
 the constitution adopted the above provision." " I am persuaded 
 that such a provision (which was referred to in a statute) could 
 only have made its way through the various forms of legislation, 
 by clothing itself with the guise of a local measure, thus eluding 
 the scrutiny which its own importance demands."^ The act in 
 question was an act entitled, " An act to enlarge the jurisdiction 
 of the coiu'ts of general and special sessions of the peace, in and 
 for the city and county of New York." The body of the act pro- 
 
 al Ambler, 22. 
 
 h People V. McCoun, 3 Parker Crim. K. 2)9, 300; per H;uris, J.
 
 104 TITLES OF STATUTES. 
 
 videcl bringing conyictions for capital offences before the Supreme 
 Com-t and Com-t of Appeals of the State. This proA'ision was de- 
 clared to be void, because this general object was not expressed 
 in the title. In another case, in the court of appeals, it was 
 repeated, " that it was notorious, that the discrepancy between 
 the headings, and the subjects of our laws was so frequent, that a 
 constitutional proAdsion was deemed necessary to guard against 
 imposition upon a class of legislators, whose knowledge of bills 
 Avas supposed to be gathered principally from the title."^ " The 
 purpose of this constitutional provision was, that neither the mem- 
 bers of the legislature nor the public should be misled by the 
 title."c So in another case, under the provisions of an act enti- 
 tled " An act to amend and consolidate the several acts relatintr 
 to the city of Eochester," was adjudged to be a local act ; but 
 among its provisions, was one, to increase the number of directors 
 Avhich the common council of the city of Eochester Avas entitled 
 to elect, to compose the board of directors of the Eochester and 
 Genesee Valley Eaihoad company. The court said, "No human 
 ingenuity would ever discover that subject from the title of the 
 bill." "We are clearly of opinion that, in regard to the law in 
 question in this case, the subject, or object, is not embraced in its 
 title, and must therefore be held to have been passed in violation 
 of this provision of the constitution.tZ 
 
 The same provisions in substance, are found contained in the 
 constitutions of the following States : Ohio, Pennsylvania, Mich- 
 igan, Minnesota, Maryland, Kansas, Kentucky, Nebraska, Louisi- 
 ana, Texas, South Carolina, California, Alabama, Missouri, loAva, 
 Illinois, Indiana, Wisconsin, and Ncav Jersey. The variations are 
 slight and immaterial, some requiring the ohject, others — the srih- 
 ject of the act to be expressed in the title. Some declaring the 
 whole enactment void, others — only so much thereof as is not so 
 expressed. 
 
 The courts of these several States, Avitli great uniformity have 
 concurred in sustaining their constitutions, and in the condcmna- 
 
 a Mayor, &c. v. Colgate, 2 Kern. HO. 
 
 b The Sun Mutual Ins. Co. v. The Mayor, &c. 8 N. Y. K. 253. 
 c People V. Hills, 35 N. Y. 452, 3 ; People v. O'Brien, 38 N. Y. E. 195 ; People. 
 ex rel. Failing v. Com. of Highways, 53 Barb. 70; People v. Allen, N. Y. Trans.
 
 TITLES OF STATUTES. 105 
 
 tion ol tliis vicious character of legislation, in violation of such 
 provisions. The Supreme Court of Michigan say : " The history 
 and puipose of this constitutional provision, are too well under- 
 stood to require any elucidation at our hands. The practice ot 
 bringing together into one bill, subjects diverse in their natui'e, 
 and having no necessary connection, Avitli a view to combine in 
 their favor, the advocates of all, and thus secure the passage of 
 several measui*es, no one of which could succeed upon its own 
 merits, was one both corruptive of the legislator, and dangerous 
 to the State. It was scarcely more so, however, than another 
 practice, also intended to be remedied by this provision, by which, 
 through dexterous management, clauses were inserted in bills, 
 of which the titles gave no intimation, and their passage secm-ed 
 through legislative bodies, whose members were not generally 
 aware of their intention and eflect. This clause was not designed 
 to embarrass legislation by multiplying the number of bills, but 
 it w-as intended to put an end to vicious legislation, which was 
 Uttle better than a fi-aud on the pubhc, and to require, that in 
 every case, the proposed measure should stand upon its own mer- 
 its.ft This is the substance of all judicial interpretation of this 
 provision. It is not witliin the scope of this chapter to bring up 
 in array, the great number of cases which have been held to b(j 
 obnoxious or otherwise, to this constitutional pro\'ision ; nor to 
 show the effect upon the act in whole, or in part, where in a local 
 act, more than one subject or object was embraced in the bill, 
 though not expressed in the title. The provisions are variant in 
 different constitutions, and the adjudications have been accord- 
 ingly variant.^ 
 
 a People v. Maliany, 13 Mich. E. 49i. 
 
 Note 5.— In this State, in several recent cases, the courts have been strict, to 
 sustain the integrity and spirit of this constitutional securitj\ In an act of tbo 
 legislature passed in 1851, chapter 389, entitled, "An act to amend and consoli- 
 date the several acts relating to the city of Rochester,"' M-as held first, to be a 
 local act. In 1865, the legislature passed another act entitled, "An act to amend 
 chapter 389, of the laws of 1851." By the former act, the common council of the 
 city of Rochester were in a certain event authorized to choose four directors of 
 the Rochester and Gencssee Valley Railroad company. By the latter act, the 
 said common council were authorized to choose seven directors in said company, 
 instead of four. The title gave no intimation of such an object. It was held 
 unconstitutional. People v. Hills, 35 N. Y. 4'19. 
 
 An act for the amendment of the charter of the city of New York was also held 
 
 u
 
 106 TITLES OF STATUTES. 
 
 In England, witli a constitntional provision similar to our own, 
 the Parliament, in avoiding the abuse above complained of, "ran 
 into an almost equal abuse by getting up bills, called hedge 
 podge acts, in which all varieties of subjects of legislation was 
 mixed up — in one act. The following is a specimen of the title 
 to such an act passed in the 17 Geo. 11, ch. 40. "An act to con- 
 tinue the several laws therein mentioned, for preventing theft and 
 rapme on the northern borders of England ; for the more effectual 
 punishing wicked and e^dl disposed persons going around in dis- 
 guise, and doing injimes and violences to the persons and prop- 
 erties of his Majesty's subjects, and for the more speedy brmgmg 
 the offenders to justice ; for continuing two clauses ; to prevent 
 the cutting or breaking down the bank of any river or sea-bank ; 
 and to prevent the mahcious cutting of hop-binds ; and for the 
 more effectual punishment of persons mahciously setting on fire 
 any mine, int, or delph of coal, or cannel coal ; and of persons 
 unlawfully hunting or taking any red or fallow deer in forests or 
 chafes, or beating or wounding the keepers or other officers in 
 forests, chafes, or parks ; and for granting ahberty to carry sugars 
 of the growth, produce, or manufactui-e of any of his Majesty's 
 sugar colonies in America, from the said colonies directly to for- 
 eign ports, in ships built in Great Britain, and navigated accord- 
 ing to law ; and to explain two acts relating to the prosecution of 
 offenders for embezzling naval stores, or stores of war ; and to 
 
 to be a local act. In an act entitled, "An act to enable the board of supervisors 
 of the city of New York to raise money by tax, for the use of the cori^oration of 
 the city of New York, and in relation to the expenditure thereof, and to provide 
 for the auditing and payment of unsettled claims against the city, and in relation 
 to actions at law against said corporation." There was inserted a provision, amend- 
 ing the charter of the corporation, in relation to the term of office, and time of 
 electing councilmen. This was held to be in violation of the constitution. Peo- 
 ple v. O'Brien, 38 N. Y. 193. 
 
 So, in an act, entitled " An act to regulate a highway in the town of Palatine," 
 where the purview of the act, provided the reducing of the width of a particular 
 highway, involving in effect, a donation of the land relinquished to the adjoining 
 owner, it was held— that the object of the act was not stated in the title, and was 
 unconstitutional. People v. Com. of Highways of Palatine, 53 Barb. 70; see 
 also, Smith v. Mayor of New York, 34 How. Pr. E. 508; also, see cases not coming 
 within the principle of this objection. Pe'ople v. Stevens, 2 Abb. Pr. R. N. Y. 
 348; Matter of Tappen, 36 How. Pr. R. 390; Buruam v. Acton, 4 Abb. Pr. II. N. 
 Y. 1; People v. McCann, 16 N. Y. 60.
 
 THE PRE^VMBLE. 107 
 
 prevent the retailing of wine -witliin either of the Universities in 
 that part of Great Britain called England, -vvithont license." 
 
 Taken in connection \vith -what are acknowledged parts of the 
 statute, (which it is not) the title, where the intent is not plain, 
 may slightly assist in removing aiabigiiities, although it frequently 
 alludes to the subject matter of the act, only in tliti most general 
 or SAVceping terms, and very often is not co-extensive with the 
 provisions of the act. 
 
 The preamljle to a statute usually contains the motives and 
 inducements to the making of it ; but it also has been held to be 
 no part of the statute ; or, rather, it is not an essential part, and 
 is frequently omitted.*^ 
 
 A preamble is not only not essential, and often omitted, but it 
 is, strictly sjieaking, Avithout force in a legislative sense ; being 
 but a guide to, and not the vehicle of, the import of the statute.^ 
 And to what is it properl}^ a guide, to tlie meaniiig of the enact- 
 ment? No; but to the intentions of the IVamer, which is only 
 the first stage on the road, in the construction of statiitcs. 
 
 " The influence of the preamble," says Story, in his Commen- 
 tary on the constitution of the United States ox America, - has ;» 
 foimdation in the ex}iosition of every code cf \VTitten lav^, — upou 
 the universal principle of interpretation, — thac the will and in ten- 
 tion of the legislature is to be regnrdcd aivd followed." 
 
 The preamble, is entitled to rieat consideration. It is, indeed 
 that introductory statcmerxt fproanniuin,) to which both reasoii 
 and authority i^omt, for ascertaining the intention of the enact- 
 ment. 
 
 " The preamble is properly referred to," says the American 
 commentator, " when doubts or ambiguities arise upon the wordii 
 0? the enacting part. The preamble can never enlarge ; it can- 
 
 C.R. V. Altboos, 8 Mod. lU; G Mod. 62; Wills and Wilkins, 6 Mod. 14-1. 
 
 iToTE 6. — The preamble of an act, is the recital by way of introduction, or 
 inducement to the enacting part, of the reasons upon which the enactment is 
 founded. The preamble of a public statute recites the inconveniences ■which it 
 proposes to remedy, — as that doubts exist as to what tbe law is, — or that some 
 form of ofience has been of frequent occiirence, which it is necessary to punish 
 with additional severity; or, the advantages which it proposes to effect; as in the 
 New York Code; "whereas, it is expedient that the present forms of actions and 
 pleadings in cases at common law should be abolished, that the distinction 
 between legal and equitable remedies should no longer continue, and that an uni- 
 form course of proceedings in all cases should be established," therefore, etc. 
 The reasons upon which a public statute is passed, are not generally of siich a 
 nature that they can be fully set forth with precision, and are too numerous to be 
 recited, and they arc, therefore, generally omitted. The preamble to a i^rivate 
 statute, if used, should set forth the tacts upon which it is founded. "With iis, in 
 this country, in both public and private statutes, preambles are now omitted, as 
 the general rule.
 
 108 PEEAMBLE TO STATUTES. 
 
 not confer any powers, j^er se. Its true office is to expound 
 powers conferred, not substantially to create tliem."a 
 
 In doubtfnl cases, recourse may be liad to the preamble, to dis- 
 cover the inducements the legislature had to the making of the 
 statute ; but where the terms of the enacting clause are clear and 
 positive, the preamble cannot be resorted to.' Lord Coke con- 
 sidered the rehearsal or preamble, a key to open the understand- 
 ing of the statute, and it is properly considered b a good mean for 
 collecting the intent and showing the mischiefs which the makers 
 of the act intended to remedy. Tlie civilians say, ccssanie Icgis 
 proccmio, cessat et ipsa lex, but English law^^ers are aware how sel- 
 dom, at least in the older statutes, the key will unlock the casket ; 
 how rarely the preamble is found to state the real occasion of the 
 law, and the full views of the proposer of it. " It is nothing unu- 
 sual in acts of Parliament," says Lawrence, J., in the case of the 
 King and Marks, " for the enacting part to go beyond the pre- 
 amble ; the remedy often extends beyond the particular act or 
 mischief which first suggested the necessity of the law." " Some- 
 times," it is well expressed by another reporter, " the legislature 
 having a particular mischief in view, which was the primary 
 object of the statute, merely state tliai 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, neither 
 expressed in the preamble, nor, perhaps, then in immediate con- 
 templation." Lideed, Lord Coke's manner of expressing himself 
 is very observable. Instead of saying that the preamble should 
 control the enacting clauses, or of limiting precisely how far it 
 should have that effect, which w^ould have been attempting to 
 mark a line, where, it is to be feared, one cannot be drawn, he 
 cautiously says, that it is a good mean to find out the intention. 
 In a late case, it was decided that a preamble may be important 
 when the enactment which follows is capable of tw^o senses. But, 
 it is added, " though it may assist in construing ambiguous expres- 
 sions, it cannot control clear ones."c Indeed, what sort of influ- 
 ence the preamble ought to have in expounding statutes, will be 
 best explained by examples, at a future time, when the rules of 
 
 a Story's Com. Kules of interpretation of the Constitution, etc. 
 
 h 4 Inst. 330. c The Salters Co. v. J., 3, 2 B. E. 109. 
 
 Note 7. — The preamble may be resorted to in aid of the construction of the 
 enacting clause, if any ambiguity exists. Beard v. Eowan, 9 Peters, 301; Cres- 
 pignyv. Witteboom, 4 T. E. 793; Sir Wm. Jones, 163; Barker v. Eedding, Pal- 
 mer 485; Bac. Abr. 380; Jackson v. Gilchrist, 15 John. E. 89, id. 116; Coustp.n- 
 tine V. Van Winkle, 6 Hill, 184; Clark v. Bynum, 3 McCord, 298; United States 
 V. Webster, Davies E. 38; Blue v. McDuffie, Busbee Law, N. C. 131. 
 
 It is properly referred to, when doubts and ambiguities arise upon the words 
 of the enacting part. It can never enlarge; it cannot confer any power per se. 
 Its true office is to expound powers conferred; not to create them.
 
 PREAMBLE TO STATUTES. 109 
 
 construction applicable to distinct parts of statutes are taken 
 into consideration. 
 
 It will, perhaps, bo found, that tlie rule is stated at once 
 broadly, and with the ^a-eatest accuracy, by two of the judges, 
 (Mr. Justice Buller, and Mr. Justice Grose,) in the case of Cres- 
 pigny V. Wittenooin ;a that the preamble may be compared with 
 the different clauses of the act, to collect the intention of the 
 legislature ; aud where the intention is a])])arent not t<j extend 
 the act, the in-eaniljlo may be used in restraint of the generality 
 of the enacting clause, where it would Ije inconvenient if not 
 restrained; or it may ]>e rosortt-d to in explanation of the enact- 
 ing clause, if it be doul)tfal. 
 
 Such is the whole extent of the influence of the title and pre- 
 amble. Barrington has shewn in his observations on the statutes, 
 by many instances, that a statute frequently recites that, which 
 was not the real occasion of the law ; or states that douljts existed 
 as to the law, when in fact none were entertained. The most 
 common recital for the introduction of any new regulation, lias 
 been to set forth that doubts have arisen at the conmion law. 
 Frequently these alleged doubts never existed at all ; and such 
 preambles are supposed, therefore, to have much weakened the 
 force of the common law, in several instances. 
 
 The preamble of an act of Parliament, recitiiig that certain out- 
 rages had been committed in particular ]iarts of the kingdom, Avas 
 adjudged by the court of King's Bench/* to be admissible in evi- 
 dence for the purpose of proving an introductor}^ averment in an 
 information for a libel, that outrages of that description had ex- 
 isted. Pubhc acts of Parliament, it was said, are binding upon 
 every subject ; the judges are bound to take judicial notice of 
 their contents ; every subject is, in judgment of law, privy to the 
 making of them, and supposed to know them ; the passing of an 
 act of Parhament is a public proceeding in all its stages, and when 
 the act is passed, it is, in contemplation of law, the act of the 
 whole body of the kingdom. The court of King's Bench, for 
 these reasons, were of opinion that the preamble in question had 
 been properly admitted in e\ddence. 
 
 A preamble is often prefixed to a particular clause, whose tenor 
 is to be guided by it. 
 
 The true meaning of the statute is generally and properly to be 
 sought from the 2nu'view, jn-ovuUm/ part, or body of the avt\ The 
 preamble of a statute is no more ithan a recital of some inconve- 
 niences which by no means excludes any other, for which a rem- 
 edy is given by the enacting part of thft statute. Great doubts 
 have existed how far the preamble should control the enacting 
 part of a statute ; but abundant cases have established that where 
 the words in the enacting part are strong enough to take in the 
 
 a 4 T. E. 193. h 3 Atk. 204; Cowp. Co3.
 
 110 INTENTION OF STATUTES. 
 
 miscliief intended to be prevented, they sliall be extended for that 
 pui-pose, tbongli tlie preamble does not warrant it ; in other words, 
 the enacting part of the statute may extend the act beyond the 
 preamble. 
 
 It will be found also, to be an established rule in the exposition ' 
 of statutes, that the intention of the lawgiver is to be deduced 
 fi-oni a view of the whole and of every part of the statute, taken 
 and compared together. In construing acts of Parliament the 
 courts are not to look only at the language of the preamble, or of 
 any particular clause. If they hnd in the preamble, or in any 
 particular clause, an expression not so large and extensive in its 
 import as those used in other parts of the act, kc, it is their duty 
 to give effect to the larger expressions.a Indeed a statute ought, 
 upon the whole, to be so construed, that, if it can be prevented, 
 no clause, sentence, or word, should be superfluous, void, or insig- 
 nificant.6 
 
 But the general words in one clause of a statute may be restrain- 
 ed by the particular words in 9, subsequent clause of the same 
 statute. c Where a general intention is expressed, and the act 
 also expresses a particular intention incompatible with the gene- 
 ral intention, the particular intention is to be considered in the 
 nature of an exception.*:^ While, if a particular thing be given or 
 limited in the preceding parts of a statute, this shall not be taken 
 away or altered by any subsequent general words of the same 
 statute. e Indeed, where the intention of the legislature is not 
 apparent to that purpose, the general words of another and later 
 statute shall not repeal the particular provisions of a former one. /" 
 "It cannot be contended," says Lord Kenyon, " that a subsequent 
 act of Parliament will not control the provisions of a prior statute, 
 if it were intended to have that operation ; but there are several 
 cases in the books to show, that when the intention of the legis- 
 lature was apparent that the subsec^uent act should not have such 
 an operation, there, even though the words of such statute taken 
 strictly and grammatically would repeal a former act, the courts 
 of law, judging for the benefit of the subject, have held that they 
 ought not to recieve such a construction.7 And, if in the same 
 act of Parliament, there be one clause which applies to a partic- 
 ular case, and another which is conceived in general terms, the 
 former shall not restrain the signification of the latter./i 
 
 a Per Lord Tenterden, Doe dem Bywater and Brandling, 7 B. & C. C13. 
 h 1 Show. 108, E. V. Burcliett, Hard. 344. 
 c E. V. Arclibislaop of Armagh, 8 Mod. 8. 
 
 d Churchill v. Crease, 5 Bing. 180; referred to in Terrington and Ilargraves, 
 ib. 492, 3. 
 e Stanton v. The University of Oxford, 1 Jon. 2G. 
 / Gregorj-'s case, G Eep. 19 b. ; Foster's case, 11 Bep. C8 b. 
 (J ^Villiams v. Britchard, 4 T, E.. 2, 4. h 2 T. E. 104.
 
 EFFECT OF WORDS. Ill _ 
 
 " Every word importing the plural number, shall extend and bo 
 apphed to one person or thiii^, as well as to sereral persons and 
 things ; and every word importing tho masculine gender only, 
 sliall extend and bo applied to a fenude as well as to a male, «kc." 
 
 Whether this arbitrary enlargement or contraction, of the ordi- 
 nary meaning of words, has answercnl its intended purpose, is at 
 the best, very doubtful. It nuist often l^o a question, whether 
 the context does reasonably admit of the arbitrary construction of 
 the words used. Amendments introduced on the sudden, will be 
 often made by members of the legislature who are inexpeiienced, 
 and little aware of the arbitrary chang(! in the sense of ordinary 
 terms. Definitions are not always found to render the meaning 
 more clear ; and they are sometimes, perhaps invidiously, sus- 
 pected of being used to disguise the meaning. AVlieu a proposi- 
 tion is wanted which cannot be opeidy pro])osed, inquiry is cen- 
 soriously said, to be oftentimes made, whether it cannot be con- 
 cealed in a constniction clause. In Courts of law, the interpreta- 
 tion clause is too often found to require an interpreter ; and it 
 may be questioned, ■whether it ever succeeds in giving an improved 
 expression of the will of the lawgiver. 
 
 Interpretation clauses arc by no nutans to be strictl}' construed, 
 and convenience seems likely to lead to their being practically 
 disregarded.* 
 
 Note 8. — A legislature cannot authoritatively inter^jret, or declare what the law 
 is, or has been, but only what it shall be. It is the province of the court to 
 declare the law of an existing statute. Ogdeu v. Blackledge, 2 Cranch 272 ; Ash- 
 ley's case, 4 Pick. 23. 
 
 "When the constitutional validity of a law is in controversy, and tho law itself 
 may be ambiguous in its import, that construction must be given to it which will 
 sustain its validity, rather than the one which will render it inoperative and void. 
 Rosevelt V, Goddard, 52 Barb. 533, 5iS; Ogdenv. Saunder.s, 12 Wheat. 270. 
 
 The presumption is always in favor of tho constitutionality of a law, and before 
 declaring it Toid, the court must be satisfied that it violates the constitution, 
 clearly, plainly, palpably. Speer v. School Directors, 50 Penn. St. R. 150; Brown 
 V. Buzan, 24 Ind. 194. This, however, is only a presumistion, and is not to be 
 indulged to the extent of making all statutes constitutional, on the ground that 
 we must presume the legislature intended to make all their acts effective, but only 
 that the court, if possible, must give the statute such construction as will enable 
 it to have effect, and to uphold it when not in conflict with the constitution. Peo- 
 l)le V. Supervisors of Orange, 17 N. Y. 241. And this rule, I understand is the 
 same whether applied to a part, or to tho whole of a statute, when the whole is 
 assailed; it is void only as to the excess of power. Nelson v. the People, 33 111. 
 390; MoCullock v. State, 11 Ind. 424. 
 
 It is a curious, as weU as an interesting study, to watch the progressive spirit 
 of the periods, and to see how just in proportion, as the natural rights of man 
 are understood, just in the same proi^ortion are restraints imposed upon absolute 
 and arbitrary acts of tho government; and just in degree, as rights become
 
 112 EFFECT OF WOEDS. 
 
 In Eeg. V. Justices of Cambridgesliire ; Eeg. v. Justices of 
 Shropshire, and Keg. v. Justices of Gloucestershire, Lord Den- 
 man said : " We cannot refrain from expressing a serious doubt 
 whether interpretation clauses will not rather embarrass the 
 coui'ts in their decision, than afford that assistance which they 
 contemplate. For the principles on which they are themselves 
 to be interpreted, may become matter of controversy ; and the 
 application of them to particular cases may give rise to endless 
 doubts. a 
 
 When for the purpose of a more than usually comprehensive 
 enactment, it is deemed necessary to include the intended mean- 
 ing of numerous words in the arbitrary import of one ; or, that 
 there should be numerous words bearing the same constructive 
 import, that end should be attained b}' means of a schedule 
 annexed to the act. 
 
 And notice should be taken of such schedule at this stage of 
 
 the act in the following : " The word , shall be interpreted, 
 
 as fully signifying its import, the meaning of each of the several 
 words in schedule marked A, which is to this act annexed, as well 
 in their singular as in their plural sense, etc." Schedules are dis- 
 
 a 7 A. andE. 480. 
 secured and protected, and astlie science of true jurisprudence acquires form and 
 certainty, just, in the same degree does the law and its ministers rise in influence 
 and importance. Look back to the day, when Justinian, the Emperor and great 
 lawgiver of the Koman government, exercised all the powers of sovereignty, and 
 made, modified and interpreted the law. In a rescript to his prefect, he uses this 
 language : "We declare the imperial construction of laws, whether made on peti- 
 tion or in suits, or in any way whatever, to be absolute and final. Fcr, if the 
 sovereign alone can make laws, he alone should interpret them ; why else, when 
 questions have arisen in controversies, have they been brought to us ? and why, 
 too, have judicial doubts reached our ears, if interpretation does not i^roceed 
 from us alone ? Who, indeed, is competent to solve the enigmas of the law, 
 except he to whom the power of legislation is conceded ? These absurd cavilings 
 are, therefore, to cease, and the Emperor to be regarded as the only interpretor, 
 as he is the only maker of laws." Cod. DeLegibus, Lib. 1, Tit. 14, § 12. Such 
 was the language, that the master of the world of civil law, could, with impunity 
 make use of. Where now, in Christendom, is the monarch that dares to emjiloy 
 such language, or that dares to assume this despotic power ? 
 
 It should be the pride of the citizen under the system of a free government, to 
 compare his protections under a government of written constitutions, with the 
 despotic power of the Roman Emperor over the people of his empire. Here, this 
 power is distributed to three independent, co-ordinate departments; the law 
 making power is exclusively confided to one, to the legislative department; which 
 possesses no power to construe or enforce its own acts. Their construction is 
 exclusively confided to the judiciary; and their enforcement to the execxitive. 
 And the powers of each department so conferred and distributed, as that each 
 acts as a check upon the other.
 
 REPEAL OF STATUTES. 113 
 
 tmguisliingly marked with difterent letters of the alphabet ; and 
 tlie different parts of the same schedule by means of different 
 numbers. A. 1, B. 1, etc. 
 
 But the a(;t of Parliament, and the schedule are sometimes 
 found to differ, and what will be the result of such discrepancy? 
 "If there be any contradiction between the two, and they cannot 
 be reconciled," then, said Lord Denman, "upon ordinary princi- 
 ples, the form, which is made to suit rather the generality of 
 cases, than all cases, must give ■w'ay."a " Words in schedules 
 nmst be received as examples, not as overruUng provisions," said 
 Tindal, C. J. 
 
 The next clause in order, in those cases in which it is used, 
 should be the repealing clause ; showing what prior acts are 
 totally repealed ; " save so far as they repeal any other act or 
 acts, or part or parts thereof ; and what acts are partially 
 repealed ; and what statutes are recognized as being in full force, 
 and as having immediate connection with the enactments of such 
 former act.* 
 
 a Iveg. V. Baiues, 12 A. aud E. 227. 
 
 Note 9. — Where a statute is intended to be repealed, its title is generally inser- 
 ted in the repealing act; and therefore, the repeal of a statute is not to be inferred 
 from a general and uncertain allusion to it in a repealing act. Chegary v. Jen- 
 kins, 3 Sand. Sup. C. E. 409. 
 
 A statute may be repealed by necessary implication, aud without any express- 
 words; the leaning of the courts is against the doctrine, if it be possible to recon- 
 cile the two acts of the legislature together, though a statute may be repealed by 
 the abrogation of a State constitution. A statute enacted under the constitution 
 of this State, of 1821, prohibited the judges of appellate courts to take part in 
 the decisions of causes determined by them, when sitting as the judges of any 
 other court; this was held to be virtually repealed by the constitution of 18-16, 
 which abrogated the constitution of 1821. Pierce v. Delamatter, 1 N. Y. 17. So, 
 loo, if the latter part of a statute be repugnant to a former part of it, the latter 
 l)art shall stand, and, so far as it is repugnant, be a repeal of the former part, 
 because it was last agreed to by the legislature. 
 
 In 1828 the legislature of this State enacted a general statute in relation to 
 repeals of particular acts, which was made a part of the Revised Statutes, and 
 which contained also, general jirovisions as to the efitect of statute repeals. So 
 much of it as relates to that subject is transcribed, aud is as follows : 
 
 § 3. None of the statutes of England or Great Britain shall be considered as 
 laws of this state ; nor shall they be deemed to have had any force or etiect in 
 this state, since the first day of May, in the year one thousand seven hundred and 
 ighty-eight. 
 
 § 4. No statute passed by the governmcut of the late colony of New- York, shall 
 be considered as a law of this state. 
 
 § 5. The repeal of any statutory provision l)y (his pct, shall not affect any act 
 done, or right accrued or establislu-d. or any proceeding, suit or prosecution had 
 or commenced in any civil case, i)revious to' the time when such repeal shall take 
 effect ; but every such act, right and proceeding, shall remain as valid and efft-c- 
 tunl, as if the provision so repealed, had remained in force. 
 
 15
 
 Ill repe.Mj of statutes. 
 
 The i)i'aisewoitliy object of tins clause, is to point out that 
 either it is the only statute of force upon the subject, by the 
 repeal of all others ; or to show what other statutes are to be 
 considered in connection with it ; so that the reader may be pre- 
 pared with the auxiliary statutes at hand, l)efore he enter on_ the 
 consideration of the legislative details in the statute reciting 
 
 them. XI • 
 
 Where there are many statutes to be repealed, or otherwise 
 mentioned, they should be arranged chronologically in a schedule, 
 with a column sliowing the extent of the repeal ; and they should 
 be referred to in this part of an act. 
 
 The number of clauses in a statute, depends on the subject to 
 be legislated upon. The remaining chiuses in most general use, 
 are, besides those already mentioned, a Saving clause ; an Appeal 
 clause ; a clause showing" to what places the operation of the act 
 shall extend ; a clause showing fi'om what date, the operation of 
 the act is to commence and how long it shall continue in force ; 
 
 ^ f). No offence committed, and no penalty or forfeiture incurred previous to 
 the time wlien any statutory provision shall be repealed, shall be affected by such 
 repeal ; except that where any punishment, forfeiture or penalty shall have been 
 mitigated by the provisions of the Revised Statutes, such provisions shall apply 
 to and control any judgment to be pronounced after the said statutes shall take 
 etfect, for anv offence committed before that time. 
 
 6 7. No prosecution for any offence, or for the recovery of any penalty or for- 
 feiture, pending at the time at any statutory provision shall be repealed, shall be 
 affected by such repeal ; but the same shall proceed in all respects, as if such 
 provision had not been repealed ; except that all such proceedings had after the 
 time when the Revised Statutes take effect, shall be conducted according to the 
 provisions ot the said statutes, and shall be in all respects subject to the said pro- 
 visions. , T ' X T 1 
 
 § 8. All statutes and parts of statutes wnich were repealed or abrogated by, or 
 were repugnant to, any law hereby repealed, and which have not been re-enacted 
 and consolidated in tlie Revised Statutes, shall continue to be so repealed, and 
 shall be deemed abrogated. 
 
 § 9. The repeal by this act, or any statiite or part of a statute heretofore repeal- 
 ed, shall not be construed as a declaration or implication that such statute or 
 part of a statute has been in force at any time subsecp;ent to such first repeal. 
 
 § 10. Where any statute not hereby repealed, refers to and adopts any statute 
 or part of a statute which is herein repealed, the statute or part of a statute so 
 referred to and adopted, shall not be deemed rei)ealed by the provisions of this 
 act, but shall be in force so far only as the same shall have been so adopted, and 
 for'no other purpose, and subject to the provisions of the two next sections. 
 
 § 11. But if the statute or part of a statute so referred to and adopted, shall 
 have been revised and consolidated in the Revised Statutes, all provisions con- 
 tained therein repugnant to or inconsistent with those ot the said Revised Stat- 
 utes, shall be deemed repealed at the time specified in this act ; and every such 
 provision so referred to and adopted, which shall be moditied by the Revised 
 Statutes, shall be deemed to be so modi, ed in respect to any use or purpose, for 
 which such provision is herein declared to be in force, from and alter the time 
 when the Revised Statutes shall take effect. 
 
 § 12. "Where any statute or part of a stAtute, which is not hereby repealed, refers 
 to and adopts any provision or rule of law which is abrogated or modified by the 
 Revised Statutes,' such provision or rule shall be deemed to be so abrogated or 
 modified, as the case may be, as vv'ell in respect to such statute or part of a stat- 
 ute not repealed, as otherwise, from and alter the time when the Revised Statutes 
 shall take effect ?
 
 CODIFICATION OF STATUTES. 115 
 
 und lastly, llio coneludiiig clause of a public general act, the 
 clause providing that the act may be altered and repealed in the 
 same session of Parliament. 
 
 The d(;i"ect of legislative language is found in its intricacy aiic' 
 complication ; and in confoimdicg the cases for facultative and 
 i nperative lungiiuge, " maij," and " shall /" and in the number of 
 limitations, conditions and provisions interposed between the 
 nominative case and its verb, or any other two dependent words. 
 As a question of composition and interi^retation, apart from par- 
 liamentary considerations, great inconvenience results fi-om this 
 accumulation of materials in one clause, from the constant com- 
 bination of distinct enactments. Two or more distinct legal sub- 
 jects are brought together in the same sentence, by means of the 
 same copula. This always renders the meaning obscure, and 
 causes the frequent necessity for the application of the intei-pre- 
 tative process, redcloidi swgula, singulis. 
 
 It has not escaped the observation of lawgivers and jurists. 
 of other nations as well as of our own, that owing to different 
 interpretation put upon laws, expressed in the same general terms, 
 much vexation and trouble arise. In fact, " the imcertainty of 
 the law," w^hicli originates in a great measure, from the different 
 intei-pretation to which one and the same law may be subject, has 
 become proverbial. It has therefore, been the anxious desire of 
 well disposed, and intelhgent legislators in other coimtries, to avoid 
 all intei-pretation, and consequent commentaries, by framing codes 
 of law so exact, so perfect and complete, as to render interpretation 
 superfluous. It was one of the great objects of the Prussian code, 
 promulgated by Frederick the Great, as was therein declared, "to 
 diminish legislation, and to make lawyers comparatively useless." 
 As we arc informed by Las Cases, Napoleon said that he, once 
 entertained the idea that all principles of law might be reduced 
 to a few concise forms, which ought to be combined according to 
 iixed rules, similar to those of mathematics ; and that thus, sim- 
 plicity and certainty of law might be established. He soon, how- 
 ever, gave up this idea, when he came to discuss the various parts 
 of the French Civil Code, with the other members of the com- 
 mittee appointed to draw up that work. In Bavaria, commenta- 
 ries upon tlieii' penal code, were actually prohibited. The king's
 
 116 CODIFICATION OF STATUTES. 
 
 privy cGQueil under the sanction of the government, attempted, 
 with true wisdom, to pubhsh officially, the motives and explanations 
 (something after the manner of the notes of the revisors of our 
 statutes,) which were given in the course of the discussions in the 
 council, for adopting the various laws. These motives, reasons, 
 etc., were drawn up by them, reduced to a systematic whole, and 
 published in three volumes, in 1813, 1814. But they did not find 
 it equally wise to prohibit commentaries ; for those who advised 
 the king so to do, forgot, that as they felt bound, and attempted 
 to explain the various provisions of the code, it would be found, that 
 theii' own explanations, w'ould carr}^ along with them also, the nec- 
 essity of being explained ; and this, simply, because they were 
 drawn up in human language. No code can possibly provide, by 
 any attainable perfection and simplicity of language, for all spe- 
 cific cases, which most frequently consist of a combination of 
 simple elements. Nearly every case is, in reality, a complex one, 
 and because the various relations of men are forever changing, a 
 and because the individuality of utterances, with expression of 
 ideas, is dependent upon uniformity of mental endowments, as 
 well as uniformity of culture, which are seldom, or never to be 
 found. Interpretation never has been, it never can be dispensed 
 with. It is a necessity that lies in the very nature of things, and 
 wiU remain, so long as the character of the human mind is diver- 
 sified, and language remains imperfect. 
 
 If it could be made to be generally recognized that the essen- 
 tials of every law are simple ; and that their direct expression is 
 the perfection of law waiting, the greatest defect of our statute 
 law would cease. It is beyond a doubt, that the casus legis which 
 can be described in a ])rovision, or in a phrase interpolated into 
 other matter by way of limitation, can be more easily expressed 
 alone, and at the beginning of the enactment. It is equally be- 
 yond a doubt, that its proper place is, at the beginning, and that 
 it is a misleading the reader to commence an enactment as if it 
 were universal, and wind it up by a parenthetical quahfication or 
 proviso, which limits it to certain occasions oiily.?> 
 
 After these general, but it is trusted not misplaced remarks 
 
 a Leibers Hermeneuties, cb. 2, § 12. 
 
 ?>It was proposed by a local act of Parliament to pave tbe town of JJrigbton and 
 to manage its poor. The act was entitled, "To manage and j^ave tbe town ol 
 Brighton and tbe poor tbereof."
 
 SAYING CLAUSE. 117 
 
 upon the imperfect expression of tlic Avill of ilic Liwgivcr, it uill 
 bo proper to proceed with the exact cninncaution of the parts of 
 a statute. 
 
 And first of the saving clause. 
 
 The purview of an act may be qualified or restrained by a sav- 
 ing in the statute. a A saving ni a statute, is only an exception of 
 a special thing out of the general things nieutioued in the; statute.// 
 But a saving clause in a statute, wliere it is diicctly repugnant t(j 
 the purview or body of the act, and eainiot stand a\ ithout render- 
 ing the act inconisistent, and destructive of itself, is to be rejected. r; 
 But ajjart from a direct repugnacy, and short of a destructive 
 saving, the general words in one clause of a statute may be re- 
 strained by the particular words in a subsequent part of the same 
 statute.cZ 
 
 AVhere a general intention is expressed, and the act also expres- 
 ses a partieidar intention incompatibU; with tlu^ general intention, 
 the particular intention is to be considi'icd in the nature of an 
 exception. r While, if a ])articular tiling be given or limited ni 
 the precetling parts of a statute, this shall not be taken away or 
 altered by any subsequent general Avords of the same statute^ 
 Indeed, where the intention of the legislature is not apparent to 
 that purpose, the general words of another and later statute shall 
 not repeal the particidar provisions of a former one. 7 " It cannot 
 be contended," said Lord Kenyon, tliat a subsequent act of Par- 
 liament will not control the provisions of a prior statute, if it were 
 intended to have that operation ; but there are several cases in 
 the books to shew, that when the intention of the legislature was 
 apparent that the subsequent act should not have such an opera- 
 tion, there, even though the words of such statute taken strictly 
 and gi'ammatically would repeal a former act, the courts of law, 
 judging for the benefit of the subject, hav(; held that they ought 
 not to receive such a construction."// And if, in the same act of 
 Parliament, there be one clause wliich applies to a particular 
 case, and another which is conceivcnl in general terms, the former 
 shall not restrain the signification of the latter, i'" 
 
 a 10 Mod. 155. 
 
 ?>Hollowell V. Cori.oriilion of Bri(lj,'f\vattr. 2 Aiul. E. 1^2. 
 
 c Plowd. 5G5. d Hex v. Archbishop of .Vrmagh, 8 Mod. 8. 
 
 e Churchill v. Crease, 5 Bing. 180; referred to iu Terrington and Hargravcs. 
 ib. 492-3. 
 
 /Stanton v. the University of Oxfoi-d, 1 Jon. 20. 
 
 rf Gregory's case, 6 Kcp. 19 b; Foster's case, 11 Eep. G8 I). 
 
 h Williams v. Pritchard, 4 T. R. 2, 4. i 2 T. R. 1G4. 
 
 Note 10. — A saving clause in an act of Congress, saving State laws then in 
 force, does not confine or validate such State law. If such State law contains a 
 provision impairing the obligation of contracts, the act of congi-ess merelj' leaves
 
 lis A TROYISO. 
 
 A proriso is something engrafted upon a preceding enactment, a 
 and is legitimately used, for the piupose of taking special cases 
 out of the general enactments, and providing specially for them. 
 In its abuse, it contains all unconnected matters ; and disposes 
 of whatever is incapable of combination with the rest of any 
 clause. It was held by all the Barons of the Exchequer, in the 
 case of the Attornoy-Creneral v. The Governor and Company of 
 the Chelsea AVaterworks, h that where the proviso of an act of 
 Parliament was directly repugnant to the purview of it, the pro- 
 viso should stand and be held a repeal of the purview, because it 
 was said, it speaks the last intention of the lawgiver. It was 
 compared to a will, in which the latter part, if inconsistent with 
 the former, supersedes and revokes it. It has been remarked c 
 upon this case in Fitzgibbon, that a 7,) roy /.so repugnant to the pur- 
 view, renders it equally nugatory and void as a repugnant sadnr/ 
 I 'la use; 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 
 sa-sdng clause, when inconsistent with the body of the act, should 
 not both of them be equally rejected. The distinction in the effect 
 and operation of a saving clause and of a proviso in a statute, 
 will be found in the books, laid down as positive, and wdthout 
 quahtication ; but the reason of the distinction, is certainly not 
 very apparent." 
 
 a 9 B. & C. 835. h Fitzg. 195; Bacon, Ab. tit. Statute. 
 
 c Kent's Comm. on American Law, vol, 1, p. 430. 
 them bj' snch saving clause, to operate so far as constitutionally they may. Stur- 
 ges V. Crowninsliield, 4 Wlieat. 12'2. A saving clause in a statute is to be rejected 
 when it is directly rei3ugnant to the purview or body of the act, and £ould not 
 stand, without rendering the act inconsistent and destructive of itself. 1 Kent 
 Com. 462; Plowd."565, 8 Taunt. 13, 18. 
 
 The purview of an act may be qualilied or restrained by a saving clause con- 
 tained in it. This clause is only an exemption of some special thing, out of the 
 qenernl things mentioned in the act; but a saving clause therein which is directly 
 repugnant to the purview of the act, and cannot stand without rendering the act 
 inconsistent and destructive of itself, is to be rejected. Milton v. Elliot, 8 Taunt, 
 13. This, however, is not the rule as regards provisos. 
 
 XoTE 11. — The oflice of a proviso, generally, is either to except something 
 from the enacting clause, to restrain its generality, or to exclude some jjossi- 
 ble ground of misinterpretation of it, as extending to cases not intended by the 
 legislature to be brought within its purview. Minis v. United States, 15 Peters, 
 i23; Wyman v. Southard, 10 Wheat. 1-30. 
 
 A proviso in a statute, is to be .strictly construed; it takes no case out of the 
 enacting clause which is not lairly within the terms of the proviso. U. S. v. 
 Dickson, 15 Pet. 141. The office of a proviso, generally is, eilh&rto except some- 
 thing from the enacting clause, to qualify or restrain its generality, or to 
 exclude some possible ground of misinterpretation of its extending to cases not
 
 A riioviso. 119 
 
 There is a known distinction in the l;l^\ Lc.wi in an exception 
 in the purview of tlie act and a pr(niso. If there be an excep- 
 tion in the enacting; chiuse of a statute, it nnist be nef^atived in 
 pleading ; a separate i)roviso need not ; c ami that, altJiough it is 
 found in the same section of the avi, if it be not referred to, and 
 engrafted on, tlie enacting clause.^/ " Tlu^ rule is," said Mr. Jus- 
 tice Ashurst, in Spiers v. Parker, " that any man who will In-ing 
 an action for a penalty on an act of Parliament, must show him- 
 self entitled under the enacting clause ; but if there bo a subse- 
 quent exemption, that is a matter of defence, and the other party 
 must show it, to exempt himself from the penalty." Mr. Justice 
 BuUor said, " I do not know any case for a i>enalty on a statutes 
 Avliere there is an exception in the enacting elausej that tlu; plain- 
 tifi' must not show that the i)arty wliom lie sues, is not within it." 
 So, in a crinnial case. Lord Mansfield said, "what comes by way 
 of proviso in a statute, must be insisted on for the pmi^oses of 
 defence by the party accu.sed ; but where exceptions are in the 
 enacting part of the law% it must in the indictment charge that 
 the defendant is not Avithin any of them."'/ " 
 
 rt 1 T. E. 141 ; 8 T. R. 542. h 1 15. and A. 94. 
 
 c Fost. 430, 1 East E. GG4; Burr E. 148, Eiist. V. C. 1G7. 
 
 intended to be brought within its purview. Minis v. U. S. lo Pet. 423; Huydka- 
 per V. Burrus, 1 Wash. C. C. E. 119. 
 
 If a proviso in a statute, be directlj- contrary lo the jnirview ot the statute, the 
 proviso is good, and not the purview. Townseud v. Brown, 4 Zabrisb, (N. J.) 
 80; Eex v. Justices of Middlesex, 2 B. and Adol. 818. But contra, — "a proviso 
 repugnant to the purview of the statute, renders it equally nugatory and void, as 
 a repugnant saving clause; and it is difficult to see why the act should be des- 
 troyed by the oue, and not by the other, or why the proviso and the saving clause 
 when inconsistent with the body of the act, should not both of them be equally 
 rejected." 1 Kent Com. 463. And it is a settled rule, that where there is a pro- 
 viso to a grant which is repugnant to the grant itself, the grant shall be good, and 
 the proviso only void. Mason v. Boom Co. 3 Wall. Jr. C. C. E. A proviso is a 
 limitation or exception, to the authority conferred, the effect of which is to 
 declare, that the one shall not operate, or the other be exercised, unless in tho 
 case provided. Voorhees v. Bank of United States, 10 Peters, 471. 
 
 So it seems, that a saving clause in a statute in the fonn of a proviso, restricting 
 in certain cases tho operation of the general language of tho enacting clause, 
 was not void, though the proviso be repuguant to the general language of tho 
 enacting clause. Tho true principle undoubtedly is, that the sound interpretation 
 and meaning of the statute, on a view of the enacting clause and proviso, taken 
 and construed together, is to prevail. If the in-iuciple object of the act can be 
 accomplished and stand, under tho restriction of the saving clause or pro^^so, 
 tho same is not to bo held void for repugnancy. 1 Kent Com. 463, note a ; Savings 
 Bank v. Makin, 23 Maine E. 360. 
 
 Note 12. — It may be as well here, to notice the distinction between a proviso 
 and an exception contained in the purview of an act, although the excej^tiou is a
 
 120 A PROVISO. 
 
 By the statute, 33 Geo. 3, c. 13, the indorsement by that act 
 du-ected to be made by the clerk of the ParUaments, on every act 
 of Parliament, of the day, month, and year, when the same shall 
 have passed, and shall have received the royal assent, shall be 
 taken to be A paet op such act, &c. 
 
 Such are the parts of a statute ; the next chapter will be a con- 
 sideration of its quahties and incidents. 
 
 question that relates chiefly to pleading. An exception in the statute, must be 
 negatived in pleading, but a proviso need not, and this seems to be upon the 
 ground that an exemption is matter of defence which a party must show, to exempt 
 himself from the liability or penalty. Spiers v. Parker, 1 Tenn. R. 141. So, too 
 it has been held, in case of an exception, the plaintiff who sues, must show that 
 the party whom he sues, does not come within it. 1 Kent Com. 4.63; People v. 
 Toynbee, 11 How Pr. E. 333; 1 Chitt. Cr. L. 284.
 
 QUALITIES AND INXIDENTS. 121 
 
 CIIAPTEU V 
 
 OF THE QU.VLITIES, INCIDENTS, AND GENEIIAL RULES AND MAXIMS 
 OF INTEKPRETATION OF STATUTES. 
 
 Among all civilized nations, we have always seen, formed by 
 the side of the sanctuary of the laws, and under the controling 
 guidance of judicial and legislative wisdom, a fund of maxims, 
 rules, and decisions of doctrine, which have been sifted by the 
 constant practice, and the collision, consequent upon judicial 
 debates. These nilcs and maxims have been incessantly increas- 
 ing the store of wisdom and knowledge thus acquired, until they 
 have become the supplement of legislation in the estabhshment 
 of law, and are regarded as the highest attainment towards the 
 perfection of human reason, in the exposition of law. 
 
 The judicial power established to declare and apply the laws, 
 needs, and is gi'eatly aided, by such a fund of rales and maxims. 
 These maxims apply equally to all men. They regard men in the 
 aggregate, never as individuals. They are rules as proper to be 
 known to the legislator, as to the magistrate, though their duties 
 are variant. The science of the legislator, and his consequent 
 duty, consists in searching in each case for principles most favor- 
 able to the common welfare ; that of the judge, is to put these 
 principles in action ; to extend them by a wise and thoughtful 
 application to private assumptions ; and to study the spirit of the 
 law, when perhaps, the letter destroys. 
 
 Perhaps no wiser man than Lord Bacon, ever graced the legal 
 profession. In the exercise of his wisdom, he left a collection 
 of legal maxims for study, to those who should come after him. 
 His reasons for making the collection are so profound, it may be 
 of advantage for all to study them. We have adopted his rea- 
 sons. He says : " having, from the beginning, come to the study 
 of the laws of this realm, with a mind and desire no less that the 
 same laws should be the better by my industry, than that myself 
 1(5
 
 122 GEKEEAL IIULES AND MAXIMS OF IN'TEErRETATION. 
 
 should be the better bj' the knowledge of them ; I do not find 
 that, Anthout the help of anthority, I can in any kind, confer so 
 profitable an addition nnto that science, as by the collecting the 
 rules and gromids dispersed throughout the body of the same 
 laws. For hereby', no small light will be given. In new cases, 
 such wherein there is no direct authority, to sound into the true 
 conceit of the law, by depth of reason. In cases wherein the 
 authorities do square and vary, to confirm the law, and make it 
 received one way. And in cases where the law is cleared by 
 authority ; yet, nevertheless, to see more profoundly into the rea- 
 sons of such judgments and ruled cases, and thereby to make 
 more use of them for the decision of other cases, more doubtful. 
 So that the uncertainty of the law, which is the principle and 
 most just challenge that is made to the laws of our nation at 
 this time, will, by this new strength laid to the foundation, some- 
 what the more settle, and be corrected. Neither wall the use 
 hereof be only in the deciding of doubts, and helping .soundness 
 of judgment, but further, in gracing of argument, — in correcting 
 unprofitable subtlety, — and in reducing the same to a more sound 
 and substantial sense of law ; in reclaiming vulgar errors, and 
 generally, in the amendment, in some measm-e, of the very nature 
 and complexion of the whole law." 
 
 DwAREis' Maxims. 
 
 I. "An act of Parhament" (says Dwarris) binds all persons, 
 but such as are specially saved by it. '_' As if," says Sir E. Ander- 
 son, " a person be tenant in tail, and it is enacted that he shall 
 have his land to him and his heirs, he has the fee and the tail is 
 determined." Such is the example given ; and it is to be hoped, 
 it illustrates the rule ; but then foUows another case, of a statute, 
 " taking his land from A. and giving it to B." simxMciter ; the land 
 goes from A. et touts ses droits queux il avet devant, sount extinct, 
 sinon que sont save esijecialment jmr Us irrovises en le act.''a 
 
 II. A statute which gives corporal punishment does not bind 
 an infant: contra of other statutes, if they do not except infants./; 
 
 III. Every statute made against an injury, gives a remedy by 
 action, expressly or impliedly.c 
 
 IV. An act of Parhament cannot alter by reason of time ; but 
 the common law may, since ccssante ratione cessat Icx.d 
 
 a Aud. 1 18, pi. 82. c 2 Inst. 55. 
 
 'jDoctr i- Student, lib. 2 fol. 113. dStr. 190.
 
 DWAltltlS KUIJ;S AND MAXIMS. 123 
 
 V. When statutes arc made, tliero are some things Avhich are 
 exempted and fore-prized out of the provisions thereof, by the 
 Law of reason, though not expressly mentioned : thus, things for 
 necessity's sake, or to prevent a faihire (jf justice, are excepted 
 out of statutes. a 
 
 VI. Whenever an act gives any thing generally and Avithout any 
 special intention declaretl, or rationally to be inferred, it gives it 
 always subject to the general control and order of the common 
 law" h 
 
 VII. Wlunicver a statute gives or jn-ovides any thing, the com- 
 mon law provides all necessary remedies and recpiisites. c 
 
 VIII. In statutes, incidents arc always supplied 1 )y intendments; 
 in other words, whenever a power is given by a statute, every 
 thing necessary to the making of it effectual, is given by impHca- 
 tion ; for the maxim is Qutnulo lex aliqaid concedif, conccderc 
 videtur et id, 2K'r quod dcvenitur ad illud. d 
 
 The statute of Gloucester, C. 5. giving an action of waste against 
 tenant for life and tenant for years, doth impliedly give authori- 
 ty to' him in the reversion, by himself or by another, to enter, to 
 see if any Avaste l)e don(\ 
 
 If an action of waste should now be given by a statute against 
 tenant in tail after possibility extinct, treble damages would, 
 although not mentioned, be recoverable, c for such damages are 
 recoverable under a former statute, by which an action of waste 
 is given ; and wherever an old action is given in a new case, all 
 that before appertained to the action is likewise given. 
 
 IX. Quando aUquid, 'prohihetur, jn'ohihetur et omne, per quod 
 dcvenitur ad illud. 
 
 X. Wherever the provision of a statute is general, every thing 
 which is necessary to make such provision effectual, is supphed 
 by the common law/ 
 
 XI. If an offence be made felony by a statute, such statute 
 does by necessary congequence, subject the offender, to the like 
 attainder and forfeitiu'e, and does require the like constuction as 
 to those who shall be accounted accessaries before or after the 
 fact, and to all other intents and purposes, as a felony at the com- 
 mon law does, g 
 
 XII. Misprision of felony is as well incidental to a felony crea- 
 ted by a statute, as to one at the common law. 
 
 XIII. Lex lino ore omncs alloquitnr ; h a maxim Avhich does not 
 require illustration, but which Lord Coke says 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 per- 
 
 aPlow. Comm. 13 b.; 2 Inst. 118. h Show. 455. 
 
 c The Protector v. Ashfield, Hard. (\2. d 2 lust. 306 ; 12 Ecp. 130, 131. 
 
 e Bro. Wast. pL 68. / 2 lust. 48. 
 
 g 1 Inst. 235; 2 Inst- 222, Bac. Abridg. tit. Statute. h 2 Inst. 184.
 
 124 D^YAl;l;Is kules and maxims. 
 
 sons, and is both known and invariable. For, the written and 
 statute hiw, being of old duly and formally promulgated to the 
 people, could never be what Lord Bacon says of lienry VII's 
 laws, " as a nemo scif ;" and of these rules of conduct, no judge, 
 producing a manuscript decision of some former sage of the law, 
 an unreported case, can say : " Lo ! I have the law in my side- 
 pocket !" e 
 
 XIV. Nemo pnnifHr sine injuria, facto, sen defalto. 
 
 The statute of Gloucester pro\aded, that in the case of a dis- 
 seisor ahening lands and not being able to satisfy the damages, 
 they, to whose hands the tenements shall come, shall be charged 
 with the damages, <tc. Now, if the tenant cometh to the land by 
 act of law which he cannot withstand, and where there is no act 
 or default in him, he shall not be charged. As if the disseisor 
 alien to A. and his heirs, and A. dieth without heir, the law (that 
 there may be a tenant to the pra'cijic) casts the land upon the lord. 
 In this case, if the lord doth not take any profits of the land, m a 
 writ brought against him for the land, the lord may plead the spe- 
 cial matter, and so discharge himself from the damages ; for albeit 
 he be a tenant of the land, j'et is he no tenant (against his will) 
 within the meaning of this law, because there is no Avrong or 
 default in liim.a 
 
 XV. Actus legis nemini est damnosns : — An act for enlarging the 
 term granted to a patentee for the enjoyment of his patent, pro- 
 vided that in eacli case the power, privilege, or authority gi-anted 
 by the letters patent should become vested in more than five per- 
 sons or then" representatives, at any one time, otherwise than by 
 devise or succession, all liberties, privileges, &c., should cease. 
 The patentees having become bankrupts, it was held that this 
 clause apphed only to an assignment by act of the party, and not 
 to an assignment or transfer by operation of loAv.b 
 
 XVI. Absoluta sententia exjjositore non iyuliget : " this is the case," 
 says Lord Coke, c " where the words are plain without any scru- 
 ple, and absolute without any saving." 
 
 XVII. Expressio eorum quce tacite insunt, nihil operatiir : as where 
 an advowson descending to divers coparceners, they do make 
 composition to present by turns ; being no more than the law 
 doth appoint, iit West' mr. 2, c. 5.(1 
 
 XVIII. Qucecunrfic intra rationcm legis inveniiiniur, inira ipsam 
 legem, esse judicanttir. 
 
 XIX. So, Lex henejicialis rei consimili remedium prcestcd ; max- 
 ims too obvious in their application to need any enforcement. 
 
 a 3 Inst, 47, 49, 50; 1 Hawk. c. 41, § 4. h Watkins ou Couveyancing. 
 
 c 2 Inst. 
 
 (1 Bloxain and another, assignees, v. Elsee, 6 B. and C. 1G9. 
 
 e 2 Inst. 533. / 2 Inst. 365.
 
 QUALITIES AND INCIDENTS OF STATUTES. 125 
 
 The qualities, and incidents of statutes, as stated in the fore- 
 going nineteen rules by Mr. Dwams, which give their nature, 
 parts, and properties, with incidental rules of inteqiretation, may 
 be ai)propriately followed by the nxlcs of interpretation of other 
 distinguished writers on the same subject. Grotius, Puffendorf, 
 Vattel, Eutherford, and Domat, have each devoted a chapter to 
 this subject of inteii)retation ; the doctrine and manifest equit}' 
 and justice of which, have obtained general approbation, and are 
 cited by commentators and distinguished jurists, as being wise 
 and well established ; rules, containing a combination of profound 
 reasoning, with perspicuous and logical arrangement. 
 
 By interpretation, we speak of a necessity arising from the 
 imperfection of language as a medium of expressing the inten- 
 tion. Interpretation, is the life of what would otherwise be the 
 dead letter. Necessity, therefore, demands rules or laws of inter- 
 pretation. These rules are fixed principles, deduced from right 
 reason and rational equity, and are adopted by universal consent 
 of nations, states, and lawgivers. In all treaties, conventions, 
 and statutes, inasmuch as language is the instrument or medium 
 of expressing the intent ; circumstances, not the time forseen, 
 give rise to different views, and sometimes to apparent contradic- 
 tions, arising from the language of the same instniment. This 
 creates a necessity for interpretation. Sometimes the language 
 of a treaty, statute, or compact is obscure, sometimes the words 
 are ambiguous, sometimes they express the meaning so imper- 
 fectly as either to fall short of expressing the true intention, or 
 as not to express the whole of it, or else exceed the intention and 
 express more than was designed. Both the end and the means 
 of interpretation, will distinguish it from crifieism. The end which 
 criticism alms at, is to find out what arc the words of the instru- 
 ment or wi'iter ; whether for instance, it is forged or genuine ; 
 whether material parts have been added, or omitted, erased or 
 altei'cd. The end inteiTiretation aims at, is to find out the intent 
 of the statute, instniment, or WTiter ; to clear up the meaning of 
 words if they are obscm-e ; to ascertain tlieii* sense if they arc 
 ambiguous ; and to determine the design where the words express 
 it imperfectly. We must not confound the two. The interprdor s 
 work does not begin till the critic's is euded.a 
 a Rutherford's lust. 4.02.
 
 I.2G tattel's rules. 
 
 We make tlie following extracts, being forty-five maxims, fi'om 
 V^attel, which he apphes as well to treaties and statutes, as to 
 Dther compacts. He saj's : 
 
 "It is necessary to estabhsh rules founded on reason, and 
 authoiized by thelaw of nature, capable of di£l\ising light over 
 what is obscure, of determining what is uncertain, and, of frus- 
 trating the attempts of a contracting power void of good faith ; 
 beginning with maxims of justice and equity," 
 
 1. " The first general maxim of interpretation is, that it is not 
 permitted to interpret what has 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 this treaty naturally presents. To go 
 elsewhere in search of conjectures, in order to restrain or extin- 
 guish it, is to endeavor to elude it." ' • 
 
 2. " If he who can, and ought to have explained himself clearly 
 and plainly, and has not done it, it is worse for him ; he cannot 
 be allowed to introduce subsequent restrictions Avhich he has not 
 expressed." 
 
 8. " Neither the one or the otlu^r of the interested parties or 
 contracting powers, has a right to intei-pret the act for himself." 
 
 4. " On every occasion when a person has, and ought to have 
 shown his intention, w^e take it for true against him what he has 
 sufficintly declared. In order to know the true sense of the con- 
 tract, attention ought principally to be paid to the words of him 
 who promises, for he voluntarUy binds himself by his words. If 
 the words of him who accepts the conditions, relate to the words 
 of him who offers them, we ought to regulate ourselves by the 
 latter." 
 
 5. " It is a c[uestion to know what the contracting powers have 
 agreed upon, in order to determine precisely on any particular 
 occasion, wdiat has been promised and accepted ; not only what 
 one of the parties has had the intention to promise ; but also what 
 the other has reasonably and sincerely thought to be promised, 
 
 Note 1.— This maxim or rule has been adopted in this State, in the adjudica- 
 tions of. the courts. Jackson v. Lewis, 17 John. 477 ; Waterford and "Whitehall 
 Turnpike Co. v. People, 9 Barb. 170 ; People v. N. Y. Cent, E. E. Co. 13 N. Y. 
 Pw. 80.
 
 vattel's ituuis. 127 
 
 aud upon uliicli lie must have regulated Lis acceplanee. Tlio 
 interpretation of every act, aud of evei-y treaty ought to be made 
 according to certain rules, proper to determine tlie sense of tliena, 
 such as the parties concerned must naturally have understood 
 when the act was prepared and accepted." 
 
 G. " Since the lawful inteiioretation, ought to tend only to the 
 discovery of the thoughts of the author ; as soon as we meet with 
 any obscurity, we should seek for what was 2^i'^>l^'djly in tin; 
 thoughts of those who diuw it up, and to inteqiret it accordingly. 
 This is the general rule of all interpretations. It jiarticularly 
 serves to hx the sense of certain ■ expressions, the signification of 
 which is not sufficiently determined." 
 
 7. " The contracting powers are obliged to express themselves 
 in such a manner, as that they mutually understand each other. 
 This is manifest from the nature even of the act. Those who con- 
 tracted concurred in the same will ; they agreed to desire tlui 
 same thing ; and how could they agree, if they did not understand 
 it perfectly." 
 
 S. " In interpretation, we ought not to deviate from the common 
 -. .>()!' the language, at least if we have not very strong reasons 
 for it. In all human afiairs, where there is a want of certainty? 
 we ought to follow probability." 
 
 !). "Languages vary incessantly, and the. signification and force 
 of words change with time ; therefore, when an ancient act is to bo 
 interpreted, we should know the common use of terms at the time 
 when it w'as WTitten ; and this is known by carefully comparing 
 with each other, an act of the same date, and cotemporary wri- 
 ters." 
 
 10. " Words, are only designed to express the thoughts ; thus, 
 the true signification of an expression in common use, is the true 
 idea which custom has affixed to that expression." 
 
 11. " Technical terms, or terms proper to the arts and sciences, 
 ought commonly to be interpreted according to the definition 
 given of them by the masters of the art, or persons versed in the 
 knowledge of the art or science to which the term belongs." 
 
 12. " Interpretation should only tend to the discovery of the 
 will of the contracting power. We should then attribute to each 
 term, the sense which he who speaks had probably in his mind."
 
 128 VATTELS IIULES. 
 
 13. " "We ought always to give to expressions, the seuse most 
 suitable to the subject, or to the matter to whicli they relate." 
 
 14. " If any one of those expressions that have many different 
 sigTiifications, are found more than once in the same piece, -we 
 cannot make it a law, to take it every where in the same signifi- 
 cation." 
 
 15. " Every interpretation that leads to an absurdity, ought to 
 be rejected." 
 
 IG. " The interpretation which renders a treaty (or statute) null 
 and void, cannot be admitted ; it is an absurdity to suppose that 
 after it is reduced to terms, it means nothing. It ought to be 
 interpreted in such a manner, as that it may have effect, and not 
 to be found vain and illusive." 
 
 17. " If he who has expressed himself in an obscure or equiv- 
 ocal manner, has spoken elsewhere more clearly on the same sub- 
 ject, he is the best interpretor of himself. We ought to interpret 
 his obscure or vague expressions in such a manner, that they may 
 agree with those terms that are clear and without ambiguity 
 which he has used elsewdiere, eitlier in the same treaty or some 
 other of the like kind." 
 
 18. "The connection and train of the discourse, is another source 
 of interpretation. We ought to consider the discourse together, 
 and in order perfectly to conceive of the sense of it, and to give 
 to each expression not so much signification as it may receive in 
 itself alone, as that it ought to have from the thread and si:)irit 
 of the discourse." 
 
 19. " The interpretation ought to be made in such a manner, 
 that all the parts appear consonant to each other ; that what fol- 
 lows, with what went before ; unless it manifestly appear that by 
 the last clauses something is changed that went before." 
 
 20. " The reason of the law or treaty, that is, the motive which 
 led to making of it, is one of the most certain means of estabHsh- 
 ing the time sense ; and great attention ought to be paid to it 
 whenever it is required to explain an obscure, equivocal, and unde- 
 termined point, or to make an application of them to a particular 
 case. As soon as we certainly know the reason, which alone has 
 determined the will of him who speaks, we ought to interpret his 
 words, and to apx)ly them in a manner suitable to that reason alone."
 
 vattel's uules. 129 
 
 21. " Wc ought to be so much the more circumspect in this 
 kind of interpretation, as frequently several motives concur to 
 determine the will of him who speaks, in a law, or promise. It is 
 possible, that he was influenced only by the union of all these 
 motives, or each taken apart might have been sufficient to deter- 
 mine him. lu the Ih'st case, if we are very certain that the legis- 
 lature, or powers that formed the laws or the contract, had only 
 in consideration one of many motives and many reasons taken 
 together, the intei-pretation and appUcation ought to be made in 
 a manner agi'eeable to all these united reasons ; and none of them 
 ought to be neglected. But in the second case, when it is evident 
 that each of the reasons that have concun-ed to determine the 
 will, was sufficient to jn-oduce that efibct, so that the author of 
 the piece would, for each of these reasons taken separately, have 
 done the same, as for them altogether, his words ought to be 
 interpreted and applied in such a manner as they may agree with 
 these reasons separately taken." 
 
 22. "When the sufficient, and only reason of a disposition, 
 either of a law or a promise is very certain, and well known, we 
 understand this disposition in the case where the same reason is 
 applicable, though it is not comprehended withm the signification 
 of the terms. This is what is called extensive intcrin-etatiou. AYe 
 ought to apply rather to the spirit, than to the letter." 
 
 23. " To violate the spirit of the law, by pretending to respect 
 the letter, is a fi'aud no less criminal than an open violation of it. 
 It is not less contrary to the intention of the legislature, and only 
 shows a more artful and more dehberate mahce." 
 
 2-4. " When a case arises in which it would be too prejudicial 
 to any one to take a law or promise awarding to the rigor of the 
 terms, a restrictive interpretation is also then used, and we except 
 the case, agreeably to the intention of the legislature, or of him 
 who made the promise." 
 
 25. " If the subject, or matter treated of, will not allow that 
 the terms of a disposition should be taken in their fuU extent, we 
 should limit the sense according as the subject requii-es." 
 
 2G. " If it bo certain and manifest that the consideration of the 
 present state of things was one of the reasons wliich occasioned 
 the x^i'omise ; that the promise has been made in consideration, 
 17
 
 130 vattel's eules. 
 
 or iu consequence of that state of things, it depends on the pres- 
 ervation of things in the same state." 
 
 27. " In imforseen cases, -we should rather follow intention than 
 words, and interpret the act as the party himscK would have 
 interpreted it, had he been present, or conformably to what he 
 would have done if he had forseeu the thing that happened." 
 
 28. " When things which enter into the reason of a law are 
 considered, not as actually existing, but only as possible ; or 
 when the fear of an event, is the reason of the law, we can only 
 except those cases where it is shown that the event is really 
 impossible." 
 
 29. " Everything that contains a penalty is odious with respect 
 to laws ; in case of doubt, the judge ought to be inclined to the 
 merciful side ; and that it is indisputably better to suffer a guilty 
 man to escaj^e, than to punish one who is innocent." 
 
 30. " What tends to render an act null and without effect, either 
 in the whole or in part, and consequently everything that intro- 
 duces any change already agreed upon ; is odious." 
 
 31. " When the subject relates to things favorable, we ought to 
 give the terms all the extent they are capable of in common use ; 
 and if a term has many significations, the most extensive ought 
 to be preferred ; for equity ought to be the rule of all men 
 wherever a perfect right is not exactly determined and known 
 with precision. When the legislature have not expressed their 
 wall in terms that are precise and perfectly determinable, it is to 
 be presumed that they desire what is most equitable." 
 
 32. " In things favorable, the terms of art ought to be taken 
 in the fullest extent they are capable of ; not only according to 
 common use, but also as technical terms, if he who speaks under- 
 stands the art as to wliich those terms belong, or if he conducts 
 himself by the advice of men who understand that art." 
 
 33. " But we ought not from the single reason that a thing is 
 favorable, to take the terms in an improper signification ; this is 
 only allowable to be done, to avoid absui'dity, injustice, or the 
 nulUty of the act." 
 
 34. " Though a thing appears favorable when viewed in one 
 particular hght, yet if the propriety of the terms, in then- full
 
 VATTEL'S RULES. 131 
 
 extent, lead to absurdity or iujusticc, tlieir siguificatiou ought to 
 be limited accordiug to the rules above given." 
 
 35. " If there flows neither absurdity or injustice from the 
 strict propriety of the terms, but a manifest equity, or a great 
 common utility requires a restriction, wo ought to adhere to the 
 most limited sense which the proper signification can admit, even 
 in an ufiair that ajjpears favorable in its own natui'c." 
 
 30. " In all cases, where what is only permitted, is found incom- 
 patible with Avhat is prescribed, the latter has the advantage.^' 
 
 37. " The law or treaty Avhicli permits, ought to yield to the 
 law or treaty which forbids." 
 
 38. " Everything being otherwise equal, the law or treaty which 
 ordains, yields to the law or treaty wdiich forbids." 
 
 39. " If opposition is found between two affirmative laws or 
 treaties, concluded between the same persons or States, the last 
 date is to be preferred to the more ancient." 
 
 40. " Of two laws or conventions, in all other things equal, we 
 ought to prefer that which is the least general, and which 
 approaches nearest to the affair to which it relates." 
 
 41. " "What will suffer no delay, ought to be prefeiTed to what 
 may be done at another time." 
 
 42. " When two duties are found incompatible, the most con- 
 siderable, and that which comprehends the higher degree of hon- 
 esty and utihty, merits the preference." 
 
 43. " If wc cannot acquit ourselves at the same time of two 
 things, promised to the same person, he is to choose, w^hich, we 
 ought to accomphsh." 
 
 44. " Since the strongest obligation has the advantage over the 
 weaker, if it happen that a treaty confirmed with an oath comes 
 in opposition to a treaty that is not sworn to, everything else 
 being equal, the first has the advantage." 
 
 45. " All other things being equal, Avliat is imposed under a 
 penalt}', has the advantage of what is not enforced by one ; and 
 w hat bears a gi'cater penalty, over what bears a less." 
 
 In these rales as copied, wc have omitted the author's illustra- 
 tions and examples. We have also intentionally omitted such of 
 his rules of interpretation as are not in harmony with the spirit 
 of a republican form of government, and which seem to be in
 
 132 rUFFENDOEFS EULES. 
 
 conflict %vitli the ndes of Story, Kent, and other distinguished 
 American commentators upon written constitutions, estabHshed 
 bj the people. He adds : " all these rules, ought to be combined 
 tof^ether ; and the interpretation made in such a manner, that it 
 may be accommodated to all, so far as they are apphcable to the 
 case. "Wlien these rules appear opposite, they reciprocally bal- 
 ance and Hmit each other according to their strength and impor- 
 tance, and according as they more particularly belong to the case 
 in question." 
 
 Puffendgef's Eules. 
 
 Puffendorf has also given in his treatise on the law of nature 
 and of nations, a set of rules for the interpretation of laws, (some 
 of which he copies from Grotius.) A few of which that have 
 some apphcation, we copy. He says : 
 
 " The true end and design of interpretation, is, to gather the 
 intent fi'om the most probable signs, which are of two sorts ; 
 words and conjectures." 
 
 " As for ivorcls, the rule is,— unless there be reasonable objec- 
 tions against it, they are to be understood in their proper and 
 most Imown signification ; not so much according to grammar, as 
 to the general use of them." 
 
 " As for terms of art, which are above the reach of the com- 
 mon people, the rule is, that they be taken according to the defi- 
 nition of the learned in each art." 
 
 " When a single tvord or sentence is capable of several signifi- 
 cations; conjectures are necessary to find out the true. Both 
 these cases rhetoricians call arnhiguous. But logicians are more 
 nice, who, if the variety of significations hes in a u-ord, call it 
 equivocal ; if in a sentence, ambiguous." 
 
 " When we meet with a seeming repugnancy in the terms, con- 
 jectures are necessary to work out the genuine sense, by recon- 
 cihng it if possible, to those terms that seem to be repugnant. 
 But if there be a clear, evident rei^ugnancy, the latter vacates the 
 former. This rule appHes to the making of laws, wills, and con- 
 tracts." 
 
 " The effects and consequence, do very often point out the gen- 
 uine meaning of woids. If by taking them hterally, they bear
 
 GROTIUS' EULES. 133 
 
 none, or a very absurd signification, to avoid such an inconven- 
 ience, we must a little deviate lV(nn the received sense of them." 
 
 " It gives gi-eat light to the intei-pretation of obscure passages, 
 to compare them ■with others that have some affinity with them ; 
 or to compare them with Avhat goes before or follows in the con- 
 text." 
 
 " Where laws are really repugnant, the judges should embrace 
 that which is clear, in preference to that which is obscure." 
 
 " That which helj^s us most in the discovery of the true mean- 
 ing of the law, is the rcdson 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 moaning of 
 it ; for the finding out of which, we call in the reason of it to om* 
 assistance." 
 
 " In promises and facts, as also in privileges, some things are 
 favorable, some odious, and others of a mixed natiu'c." 
 
 GROTitrs' KULES. 
 
 The following rales we take from Grotius : 
 
 " In cases that are not odioxs, words are to be understood ac- 
 cording to the full propriety of popular use ; and if in popular 
 use there be several significations of the same word, the largest 
 is to be taken ; as the masculine may be taken for the common 
 gender." 
 
 " In a matter of favor, if he tliat speaks be learned in the law, 
 or speaks by the advice of those that are, his words are to be 
 taken in the most comprehensive signification, so as not only to 
 import as much as they do in common use, but to include that 
 signification also which is used among lawyers." 
 
 " On the other hand, words shall be taken in a stricter sense 
 than the propriety requires, if otherwise, injustice or an absurdity 
 would follow." 
 
 " If it be not absolutely necessary to avoid injustice, to take 
 the words in a stricter sense than their propriety demands, yet ii 
 there be a manifest advantage in such a restriction, we ought to 
 stop at the narrowest limits of their proper signification, unless 
 circumstances direct otherwise."
 
 134 GROTIUS' TlULES. 
 
 " In an odious matter, a figurative speech may be admitted to 
 avoid a grievance." 
 
 " Sometimes the meaning of words are to be restrained, and 
 although general terms be made use of, yet they ought to be taken 
 with some exception or limitation ; either, 1st, because of some 
 original defect in the wiU of the speaker ; or 2d, because of some 
 accident which happens inconsistent with his design." 
 
 " 1st. An original defect is in the will. First, When an absur- 
 dity proceeds from it, for no man in his wits can be supposed to 
 will absm-dities. Secondly, The will is supposed to be originally 
 defective, when the reason ceases which alone fully and effica- 
 ciously moved the will." 
 
 " That which is only permitted, gives place to that which is 
 commanded ; for permission includes a liberty, but a command 
 canies along with it necessity of acting." 
 
 " That which ought to be done at this present time, is prefera- 
 ble to that which may be done at any other time." 
 
 " An affirmative precept gives Avay to a negative." 
 
 " In covenants and lavv'S that are in other respects equal, that 
 which is particular and applicable to the present case, takes the 
 place of that which is general." 
 
 "When two duties happen to interfere at the same point of 
 time, that which is the more honest and profitable, is to be pre- 
 fen-ed." 
 
 " When two covenants, one upon oath, the other not, cannot 
 both be performed together, the former ought to take place of the 
 latter, unless the latter was added as an exception and limitation 
 to the other." 
 
 "An obhgation imperfectly mutual, gives place to one that is 
 perfectly mutual, and binding on both sides." 
 
 " The law of generosity, gives place to the law of gi'atitude ; 
 cateris paribus y 
 
 " AVliere laws are made by subordinate powers ; that of the 
 inferior, yields to that of the superior if both cannot be obeyed. 
 Thus we ought to obey God rather than man." 
 
 " The more noble, useful or necessary the matter of one law is 
 than that of another, the greater weight ought the law to have 
 with us."
 
 RUTHERFOKD's liULES. 135 
 
 We have also selected from Eutheiford's lectures or institutes, 
 several niles of interpretation, omitting such as arc copied from 
 Grotius and Puffendorf, and such as relate only to the intei"preta- 
 tion of contracts. Ho says p. lO-l. 
 
 " The "svay to ascertain our claims as they arise fi'om promises, 
 contracts, or wills, and our obligations as they arise from instituted 
 laws, is to collect the meaning and intention of the promisor, con- 
 tractor, testator, or lawmaker, from some outward signs or marks. 
 The collecting of such intention, from such signs or marks, is 
 called interpretation." 
 
 " Words are the common signs that mankind make use of to 
 declare their intention to one another ; and when the words of a 
 man express his meaning plainly, distinctly, and perfectly, we 
 have no occasion to have recourse to any other means of inter- 
 pretation." 
 
 " Interpretation consists in finding out, or collecting, the inten- 
 tion of a speaker or of a writer either from his words, or fi-om 
 other conjectures or from both. It may therefore be divided into 
 three sorts, according to the different means that it makes use of 
 for obtaining its end. These three sorts of interpretation are 
 literal, rational and mixed." 
 
 " Where we collect the intention from the clear and plain words 
 of the law, or of the writer, this is literal interpretation." 
 
 " Where words do not express the intention perfectly, but either 
 exceed or fall short of it, so that we are to collect it fi'om proba- 
 ble or rational conjectures, this is rational interpretation." 
 
 "Where words, though they do express the intention when 
 rightly understood, are in themselves of doubtful meaning, and 
 we are forced to have recourse to like conjectures to find out in 
 what sense they were used, this is mixed interpretation ; it is 
 partly Hteral and partly rational. We collect the intention from 
 the words indeed, but not without the help of other conjectures." 
 
 " Wliere the words of a contract, or of a will, or of a law, may 
 be so strained as to admit of a sense, which, though it does not 
 hurt the grammar, and is not inconsistent with the letter, is such 
 a sense as common usage will not justify ; we can scarcely call 
 these words ambicnious. For words are then onlv to be looked
 
 136 eutheefoed's eules. 
 
 upon as ambiguous, when tliey will admit of two or more senses, 
 either of which is equally agi'eeable to common usage." 
 
 " The ambiguity of a writing, whether it is a law, a will or a 
 contract, depends sometimes upon the doubtful sense of a single 
 word ; sometimes upon the doubtful construction of a sentence ; 
 and sometimes upon a comparison of one part of the same writing 
 with another, or of the writing which is before us with some 
 other writing which came from the same hand." 
 
 " When words or expressions are of doubtful meaning, the first 
 rule in mixed interpretation is, to give them such a sense as is 
 agreeable to the subject matter, of which the writer is treating. 
 For we are sure on the one hand, that this subject matter was in 
 his mind, and can on the other hand, have no reason for thinking 
 that he intended anything which is different from it, and much 
 less, that he intended anything which is inconsistent with it." 
 
 " The second rule in mixed interpretation is, to give all doubt- 
 ful words or expressions that sense which makes them produce 
 some efi'ect ; this effect, must in general be a reasonable one ; and 
 it must likewise, be the same that the lawmaker, or testator, or 
 contractor intended to produce." 
 
 "There are numberless circumstances of laws, wiUs and con- 
 tracts, which may help to ascertain their meaning, where use has 
 been made of ambiguous words or expressions. These are divi- 
 ded into two sorts ; into such as are connected with the instru- 
 ment in origin only ; and such as are connected with it in place 
 as well as origin. To these two sorts, we may add a third ; for 
 there are some c'rcums'an^es which seem to be connected with a 
 law, contract, or will, rather in time, than either in origin, or in 
 place." 
 
 " When the words of a law, contract or will are capable of two 
 or more senses, so that the meaning of the writer is left doubtful ; 
 what has been spoken or written by the same lawmaker, testa- 
 tor or contractor upon some other occasion, is a circumstance ol 
 the doubtful wTiting." 
 
 " When we explain a doubtful part of the law, Avill, or contract, 
 by the help of some other part of it, the clause which we make 
 use of for this purpose, is a circumstance which is connected with 
 the clause to be explained in place, as well as in origin ; as they
 
 DOMAT's liUIJES. 137 
 
 both came from tlie same Land, so tliej are both found together 
 in the same "writing." 
 
 " Cotemporary practice, is a circumstance wliich is connected 
 with a hiw in time, and not only in time Ijut in phice too ; for it 
 consists in what Avas usually done in the place where the law was 
 made, at or near the time of making it." 
 
 Domat's Kules. 
 
 Domat's rules of law and of interpretation are appropriately 
 selected to follow those of the preceding authors. We do not 
 copy them in full, but extract such portions of them, as will be 
 found useful in this connection, from Yol. 1, Cushing's edition, 
 beginning at page 108. He says : 
 
 "Laws ought to be written to the end that the Avriting may fix 
 the sense of the law, and determine the mind to conceive a just 
 idea of that Avhich is established by the law, and that it be not 
 left free for every one to frame the law as he himself is pleased to 
 understand it. We may, therefore, distinguish two ideas, which 
 the words laio and rule form in our minds. One, is the idea of 
 what we concieve to be just, without making any reflection 
 on the terms of the law ; the other is the idea of the terms of the 
 law' ; and according to this second idea, we give the name of rule 
 or law, to the expression of the laicgivcr.'' 
 
 " Laws are of two sorts ; one is of those Avhicli flow from the 
 law of natiu'e and equity, and the other is of such as derive their 
 origin from the positive law, which is otherwise called human and 
 arbitrary laws, because they have been estabhshed by men."* 
 
 " The rales of the law of nature, are those which God liimseH 
 hath established, and which He communicates to mankind by the 
 hght of reason. These are the laws which have in ihem a justice 
 that cannot be changed ; which is the same at all times, and in 
 all places ; and whether they are set down in MTiting or not, no 
 human authority can abolish them, or make any alteration in 
 them." 
 
 " Ai-bitrary rules, are all those that have been established by 
 men, and which are such, that without oftending natui'al equity, 
 they may either prescribe one thing, or a thing quite different." 
 
 " All laws ought either to be known, or at least laid open to 
 18
 
 138 domat's rules. 
 
 the knowledge of all the world, in sncli a manner, that no one may 
 with impunity, offend against them, under pretence of ignorance.* 
 Thus, the natural law being truth that is unchangeable ; the 
 knowledge of which is essential to reason, nobody can pretend 
 ignorance of it, since they cannot say that they are destitute of 
 common reason, which makes this law known. But arbitrary laws 
 have not their effect till the lawgiver has done all that is possible 
 to make them known ; and this is done, by the ways that are 
 commonly practiced for the publication of these kinds of laws ; 
 and after they are promulged in due from, it is presumed that 
 they are known to every body, and they obhge as well those who 
 pretend ignorance of them, as those who know them." 
 
 "The laws of nature being highly just, and then- authority 
 always the same, they determine equally all that is to cpme, and 
 all that is past which remains undecided." 
 
 " Laws restrain and punish not only what is evidently contrary 
 to the sense of their words, but likewise everything that is directly 
 or indirectly against their intent, although it seem to have nothing 
 contrary to the terms of the laws, and also that everything that 
 is done in fraud of the law, and to elude it." 
 
 " If any case could happen that were not regulated by some 
 express and -WTitten law, it would have for a law, the natural prin- 
 ciples of equity ; which is the universal law that extends to every- 
 thing." 
 
 " It happens in two sorts of cases, that it is necessary to inter- 
 pret the laws. One is when we find in a law some obscurity, 
 ambiguity, or other defect of expression ; for in this case, it is 
 necessary to interpret the law in order to discover its true mean- 
 ing. 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 however it may appear 
 in the words, would lead us to false consequences, and to deci- 
 sions that Avould be unjust, if the laws were indifferently apphed 
 to everything that is contained within the exj)ression. For in 
 this case, the palpable injustice that would follow from this appar- 
 ent sense, obliges us to discover by some kind of interpretation, 
 not Avhat the law says, but what it means ; and to judge by its
 
 domat's rules. 139 
 
 meaning, how far it ouglit to bo extended, and what are tho 
 bounds that ought to be set to its sense." 
 
 " This principle of interpreting the laws by equity, docs not 
 only respect the laws of nature, but roaches likewise to arbitrary 
 laws, they being all of them founded upon the laws of nature. If 
 they are natural laws, we arc to reconcile them by the extent and 
 limits of their tiiith, if arbitrary, we are to fix their equity by 
 the intention of the lawgiver." 
 
 " All rules, whether natural or arbitrary, have their use ; such 
 as is assigned to every one of them by universal justice, which is 
 the spirit of them all. Thus the application of laws is to bo 
 made, by discerning what it is that this spirit demands ; which, in 
 natural law, is cquifij; in arbitrary laws, the intention of the law 
 giver. It is in this discerning faculty, that the science of tho 
 law does chiefly consist." 
 
 " If a rule of natural justice being applied to a case that it 
 seems to embrace, shows a result contrary to equity, we are bound 
 to conclude that the rule has been improperly apphed, and that 
 the case should fall under some other law." 
 
 " If an arbitrary, or positive rule, is applied to a case which it 
 apparently embraces, and the result is contrary to the intent of 
 the legislator, the rule should not be apphed to the case. 
 
 " But we must not consider as unjust and repugnant to equity, 
 or the legislators intention, those decisions which appear rigorous 
 and severe, when it is evident that rigor and severity, is the 
 essential characteristic of the law in question ; and that it could 
 not be mitigated without impairing its effect ; as for example, the 
 law in regard to the formahties prescribed relating to the execu- 
 tion of wills ; the severity and arbitrary character of the rule 
 which annuls all wills ■olicre these formalities are neglected, is, in 
 those cases an indispensable part of the law." 
 
 " If however, the severity of the law is not a necessary and 
 indispensable part of it, but can be earned into effect by a milder 
 interpretation and one more conformable to equity and natural 
 justice ; then this is to be preferred to the severe and strict con- 
 struction." 
 
 " It follows from these rules, that the rule of interpretion is not 
 fixed and invariable ; that sometimes strictness, and sometimes a
 
 1-10 domat's rules. 
 
 milder and nioie equitable interpretation is to be followed. Eigor 
 becomes injustice when tlie law will bear an equitable interpreta- 
 tion, and rigor should be practiced when an equitable construc- 
 tion would defeat the law. This rigor or strictness is either an 
 unjust and odious severity, contrary to the spirit of the law, or, 
 it furnishes a just but inflexible rule. These t'N\'o ideas are never 
 to be confounded ; and the strict, or equitable construction ought 
 to be adhered to according to the i*ules here given." 
 
 " It is never a matter of indifference whether we apply a strict 
 or a hberal constniction. In each case we are to enquire whether 
 the rule in question calls for a strict interpretation, or will bear 
 a hberal one ; and then decide accordingly." 
 
 " Although the strictness of law appears at first sight opposed 
 to equity, it is nevertheless true that where it ought to be apphed, 
 it is only on account of its inherent justice. "W hat is equitable 
 cannot be contrary to justice ; and so what is just cannot be con- 
 trary to equity." 
 
 *' The obscurities, ambiguities, and other defects of expression 
 which may render the meaning of a law doubtful, and all other 
 difficulties in its construction and apphcation should be resolved 
 by the natural sense of the language, according to the nature of 
 the subject, so as if possible at once to conform to the intent of 
 the legislator and to equity. This is to be arrived at by the dif- 
 ferent consideration of the nature of the law, its object, its con- 
 nection with other laws, the exceptions to which it may be sub- 
 ject, and other similar considerations." 
 
 " To arrive at the meaning of a law, we are to weigh its terms 
 and examine its preamble, if there be one, in order to judge of 
 its provisions by its object and the whole context, and not to 
 limit its interpretation to what would appear different from its 
 intention, either in a single portion of the law or in a single 
 defective expression. We must prefer the evident meaning of 
 the whole law, to the inconsistent meaning of a defective expres- 
 sion." 
 
 " If in any law we find the omission of something essential to 
 it, or which is a necessary result of its provisions, and requisite 
 to give the law its full effect, Ave may supply what is wanting bur
 
 domat's rules. 14J 
 
 not expressed, and extend the law to wliat it was manifestly 
 intended to embrace, but in its terms does not include." 
 
 " If the language of a law clearly expresses its meaning and 
 intention, that intention must be earned out ; but if the tuie 
 sense of the law cannot be arrived at bj the interpretation which 
 may be made according to the rules here given, or the meaning 
 be clear, and inconvenience appear to result, then we must haVe 
 recourse to the sovereign to interpret, to declare, or to modify 
 the law." 
 
 " If the i^rovisions of a law arc clear, but its object not under- 
 stood, and in its application inconveniences ajipear to result, we 
 are bound to presume tliat the law is useful and just ; and its 
 meaning and authority are to be preferred to mere abstract rea- 
 soning. Otherwise, many useful and well contrived rules would 
 be overtimied on grounds of alleged equity, or ingenious argu- 
 ment." 
 
 " Laws A\hich favor what public utility, humanit}', religion, free- 
 dom of intercourse, and other similar interests regard favorably, 
 as well as those intended to favor particular individuals, ought to 
 be interpreted with all the liberalit}' to whicli these interests are 
 justly entitled, in an equitable point of view, and ought not to be 
 interpreted severely, nor be applied in a manner calculated to 
 prejudice the persons intended to be fayored." 
 
 "Laws. which restrain natural liberty, as those which prohibit 
 what is not of itself illicit, or which derogate otherwise from 
 common right ; laws fixing the punishment of crimes and offences, 
 or penalties in matters of a civil natui'o which prescribe formal- 
 ities that seem severe ; those wliich permit parents to disinherit 
 childi-en ; and others of a similar character ; ought not to be so 
 interpreted as to extend their provisions to cases which they do 
 not embrace ; and, on the contrary, they should receive all prac- 
 tical mitigation of equity and humanity." 
 
 " If any law or custom is established for particlar reasons con- 
 trary to other rules of common right, it ought not to be applied 
 (.'xcept to those cases for which it is expressly intended. 
 
 " The gi-ants and gifts of sovereigns are to be favorably regarded, 
 and to have that extension to which they are entitled from the 
 natural presumption of princely liberaHty, provided however.
 
 142 domat's rules. 
 
 that tliey are not to bo so liberally construed as to injure other 
 individuals." 
 
 " If the doubts or difficulties in regard to the interpretation of 
 a law or a custom are solved by an old usage which has fixed the 
 meanings, and which is supported by a imiform series of adjudi- 
 cations, we should adhere to the usage, which is the best inter- 
 pr6ter of laws." 
 
 " In case any provinces or districts are without certain rules to 
 decide difficulties in regard to matters which are there governed 
 by usage ; if these difficulties are not determined by natural jus- 
 tice, or by ■VNTitten law, but dej)end on custom and usage, we 
 ought to adopt the principles which result from the customs and 
 usages of the province or district," 
 
 " AU laws necessarily bear with them aU the powers or inci- 
 dents necessary to fully carry out their intention. Thus, as the 
 law permits boys to contract marriage at the age of fourteen, and 
 girls at the age of twelve, it necessarily results from this laAV that 
 those who marry, can, although infants, and not of full age, bind 
 themselves in regard to the settlement, community of goods and 
 the like." 
 
 " In laws which confer power, the greater authority implies the 
 less. Thus those wdio possess their property have with still 
 gi-eater reason the right to sell it." 
 
 " In laws which 'prohibit acts, the lesser prohibition includes 
 the greater. Those who are forbidden to manage or control their 
 property, with stronger reason cannot alienate it." 
 
 " The implications arising from the two preceding sections, are 
 to be restricted to subjects of the same nature as those to W'liich 
 the law applies according to those rules. Thus, the hberty that 
 a minor adult enjoys, to make a donatio causa mortis, will not be 
 extended so as to sustain a gift inter vivos.'' 
 
 " If a law gi-ants an amnesty or pardon for past offences, it is 
 to be understood as prohibiting similar acts in future." 
 
 " When a right comes to a person by reason of a law, this 
 right is equally vested in him, whether he knows the fact or not ; 
 as a son is heir to his father, and owns the estate though he be 
 ignorant of his father's death, and also ignorant of the law of 
 succession."
 
 AMERICAN RULES. 143 
 
 " Persons competent by law to act upon their rights, may waive 
 the benefit or privilege created by law in their favor. But they 
 cannot by renunciation or waiver effect the rights of thud per- 
 sons, nor can they waive or renounce in cases contrary to equity, 
 good morals, or to any other law." 
 
 " No person by contract, testament, or otherwise, can hinder 
 the effect of the hiw. Thus a testator cannot dispose of his 
 estate to be controled or managed contrary to law." 
 
 " It is necessary to possess an ample knowledge of the rules of 
 interpretation of lav/s in order to make the proper apphcation of 
 them." 
 
 American Eules. 
 The following few rules and maxims of intori:)retation, may be 
 regarded as general rules in the American standards. They have 
 been selected fi'om approved American authority, and this includes 
 such of the English rules as have been adopted by our courts. 
 They'also include the rules of interpreting State laws by the 
 national courts. 
 
 1. The interpretation by the United States courts within the 
 jurisdiction of a State, of a local law, becomes a part of that 
 law ; as much so, as if it was incorporated in the body of it, by 
 the legislature. If different interpretations are given in different 
 States to a similar law, that law, in effect, becomes by interpret- 
 ation, so far as it is a rule for action by the federal courts, a dif- 
 ferent law in one State, from what it is in the other.a 
 
 2. It is not permitted to interpret what has no need of inter- 
 pretation. When an act is expressed in clear and precise terms ; 
 when the sense is manifest and leads to nothing absui'd, there 
 can be no reason not to adopt the sense which it naturally pre- 
 sents. To go elsewhere in search of conjectures in order to 
 restrain or extinguish it, is to elude it.h 
 
 3. The popular, or received import of words, furnishes the gen- 
 eral rule for the interpretation of statutes.c 
 
 a Christy v. Pridgion, 4 "Wall. 19G. 
 
 h Jackson v. Lewis, 17 John. 475; People r. N. Y. Cent. E. K. Co. 13 N. Y. It. 
 78; Watcrford and "WTiitehall Turnpike Co. 9 Barb. IGl; Vattcl, B. 2 ch. 17, '^ 
 2(53; United States v, Fisher, 2 Cranch, 358. 
 
 c Maillard v. Lawrence, IG How. U. S. K. 251.
 
 144 AMEEICAN RULES. • 
 
 ■i. It is the duty of courts so to construe statutes as to meet 
 the mischief and to advance the remedy, and not to violate fund- 
 amental principles.a 
 
 5. Where there is a discrepancy or disagreement between two 
 statutes, such interpretation should be given, that both may, if 
 possible, stand together.6 
 
 G. Statutes must be interpreted according to the intent and 
 meaning, and not always according to the Icttcr.c 
 
 7. The intention of the legislature may be found from the act 
 itself ; fi'om other acts in fari materia ; and sometimes from the 
 cause or necessity of the statute, and wherever the intent can be 
 discovered, it should be followed with reason and discretion, 
 though such construction seem contrary to the letter of the stat- 
 ute ; this is the rule where the words of the statute are obscure.cZ 
 
 8. A thing within the intention, is v/ithin the statute, though not 
 within the letter ; and a thing within the letter, is not within the 
 statute, unless witliin the intention, e 
 
 9. Statutes should be interpreted according to the most natu- 
 ral and obvious import of their language, without resorting to 
 subtle or forced construction for the piu-pose either of limiting or 
 extending their oj)eration. Courts cannot correct supposed errors, 
 omissions or excesses, of the legislature./ 
 
 10. The ofi&ce of interpretation is to bring the sense out of the 
 words used, and not to bring a sense into them, g 
 
 11. The spirit of a law may be referred to in order to interpret 
 words admitting of tw^o meanings ; but not to extend a law to a 
 case not within its fair meaning./i 
 
 12. In the construction of a statute, every part of it must be 
 viewed in connection with the whole, so as to make all its parts 
 
 a Hart v. Cleis, 8 John. E. 44. 
 
 h McCartee v. Orphan Asylum Society, 9 Cow. K. 437. 
 
 c People V. N. Y. Cent. K. K. Co. 13 N. Y.'E. 81; Leavittv. Blatchford, 5 Barb. 
 13, Plowd. 205; Holmes v. Carley, 31 N. Y. E. 280, 290; Brown v. Barry, 3 Ball. 
 3G5, 1 Pet. 4G, 2 id. C27. 
 
 d 1 Kent Com. 4G2, Bac. Abr. Lit. Statute J. 5, 10. 
 
 e People V. Utica Ins. Co. 15 John. 380-1; Jackson v. Collins, 3 Cow. 80, au<? 
 authorities sujjra. 
 
 /Waller v. Harris, 20 Wend.SGl, 5G2 ; McCluskey v. Cromwill, 11 N. Y. COl-2. 
 
 g Lieber's Polit. Hermeneuties, 87 ; 11 N. Y. E. supra 601-2. 
 
 h Bcebe v. Griffin^, 14 N. Y. E. 244.
 
 AMERICAN RULES. 145 
 
 haiuioiiizc if practicable, and give a sensible and intelligent effect 
 
 to each. It is not to be presumed that the legislature intended 
 
 any part of a statute to be without meanmg. a 
 
 llj. Every legislative act must have reasonable constmction. h 
 1-1. That which is implied in a statute, is as ranch a part of it 
 
 as what is expressed. <■ 
 
 15. The presumption must ahvajs be in favor of the vahdity of 
 laws, unless the contrary is clearly demonstrated, d 
 
 16. Statutes are to be constraed to operate prospectively, unless 
 a retrospective effect be clearly intended, c 
 
 17. All statutes in pa>-4 materia arc to be read and construed 
 together, as if they formed parts of the same statute, and were 
 enacted fit the same time./ 
 
 18. Statutes arc to be interpreted with reference to the princi- 
 ples of the common law in force at the time of their passage, ex- 
 cept when the statute itself, or the courts have otherwise deter- 
 mined, and this rule is the same in courts of equity as of law. (j 
 
 19. Whether courts are interpreting an agreement between par- 
 ties, a statute, or a constitution, the thing to seek, is, tlic tJiougJd 
 ichirh it cxjyresscs. To ascertain this, the first resort in aU cases 
 is to the natural signification of the words employed, in the order 
 and grammatical arrangement in which they stand. If thus 
 regarded, the words embody a definite meaning, which involves 
 no absurdity, and no contradiction between different parts of the 
 same writing ; then that meaning apparent upon the face of the 
 instrament, is the one which aJo:^ we are at hberty to say was 
 intended to be conveyed. In such case there is no room for con- 
 
 a Ogden v. Strong, 2 Paiuc E, 584 ; 1 Kent Com. 1G2 ; People v. Draper, 15 X. 
 Y. 532. 
 
 h Famurn v- Black Comal. 1 Sum. 4G. 
 
 c U. S. V. Babbitt, 1 Black. Gl ; Gelpecke v. City of Dubuque, 1 Wall. 221. 
 
 d Cooper v. Telfair, 4 Cranch. 1G7. 
 
 e Jackson v. Van Zandt, 12 Johns. 17G ; Hackley v. Spragiie, 10 "Wend. IIG , 
 Tcople V. Supervisors of Columbia, id. 3G5 ; Snyder v. Snyder, 3 Barb. 621 ; Har- 
 vey V. Tyler, 2 Wall. 3i7 ; Blancbard v. Sprague, 3 Sum. 535. 
 
 /I Kent Com. 4G3 ; Smith's Com. § 039 ; 9 Barb. IGl ; Rogers v.Bradshaw, 20 
 John, 735 ; ilcCartee v. Orphan Asylum, 9 Coav-. 437 ; Eexford v. Knight, 15 
 Barb. 627. 
 
 g nice v. M. &, N. W. Bailroad Co. 1 Blatch- 359 ; Talbot v. Simpson, Beters C 
 C. E. 188 ; Van Home v. Dorrance,' 2 Dallas, 316 ; How v. Beckham, G How. Pr 
 E. 229. 
 
 10
 
 146 AMERICAN r.ULES. 
 
 struction. That -svliicli the words declare, is the meanmg of the 
 iustrument ; and neither the courts nor the legislature have a 
 right to add to, or take away fi'om that meaning.a 
 
 20. In the enactment of statutes, the rule of interpretation is, 
 in respect to the intention of the legislature, that where the lan- 
 guage is exphcit, the courts are bound to seek for the intention in 
 the words of the act itself, and they are not at liberty to suppose 
 or to hold, that the legislature intended anything different fi'om 
 what their language imports.?; 
 
 21. Statutes, by the authority of which a citizen may be 
 deprived of his estate, must have the strictest construction, and 
 the power conferred must be executed precisely as it is given, and 
 any departure from it will vitiate the proceeding, and this is so 
 whether it be in the exercise of a public or private authority, 
 whether it be ministerial or judicial.c 
 
 a Xewell v. the People, 7 N. Y. 99; McCluchey v. Cromwell, 11 N. Y. 593. 
 h Superrisors of Niagara v. tlio People, 7 Hill, 513. 
 
 c Sherwood v. Eeacle, 7 Hill 431; Striker v. Kelly, 2 Denio 323; Sheup v. Spier, 
 4 Hill 76; Downing v. Euger, 21 Wend. 178; Powell v. Tuttle, 3 N. Y. 396.
 
 QDALITIES AND INCIDENTS. 147 
 
 CIIAPTEU VL 
 
 OF THE EXCErTIONS TO GENERAL RULES OF CONSTRUCTION, AND 
 THE MANNER OF PLEADING OR TAKING ADVANTAGE OF PARTIC- 
 ULAR STATUTES. REPEAL OF STATUTES AND ITS EFFECTS, AND 
 ACCIDENTS. 
 
 The rules and maxims in the preceding chapter as to the gen- 
 eral interpretation of statutes, as will be seen, have been selected 
 from the books of tlie most approved authors, and the adjudica- 
 tions of courts and jurists upon that branch of law. They 
 embrace all that can be regarded as ncedfid on that subject. The 
 law in regard to the interpretation of contracts, wills, covenants, 
 and other facts, by the writers on those subjects, is not brought 
 within the scope of this treatise, except in so far as their inter- 
 pretation is identical with that of statutes. The rules of con- 
 struction applicable to special cases, and to distinct parts of stat- 
 utes with judicial exposition, selected from American and other 
 authority as to the effect of the title, preamble, clauses, and pro- 
 visos in statutes ; with the meaning of particular words and 
 expressions therein, will be found in a subsequent chapter ; as 
 will also the interpretation of written constitutions by the sound- 
 est of American wTiters. 
 
 The nature, parts, and properties of a statute having been 
 thus considered, the next inqury is, what are its accidents ; how 
 can it be pleaded, or in Avhat way taken advantage of ? 
 
 In an action founded on a statute, the plaintiff ought a to aver 
 every fact necessary to inform the court that his case is within 
 the statute, concluding in general \\\i\i an express reference to the 
 statute. A pubhc statute it is never advisable to set forth, since 
 by reciting the act and concluding contra formam statuti, the risk 
 of a fatal variance is incurred. 
 
 If part of a statute be public, and the residue thereof private, 
 there is no necessity that the part which is public should bo 
 recited in plcading.6 
 
 a And. G2; Lut. 1089. 
 
 h 10 Rep. 57, the Chancellor of Oxford's case, Hob. 227, Sid. 24.
 
 148 MANNER OF TLEiVDING STATUTES. 
 
 If a private statute be pleaded, it must be recited, and md tiel 
 record may be replied ; but if the exemplification of a private 
 statute under the great seal be pleaded, mil tiel record cannot be 
 rei^lied. « ^ 
 
 In pleading a statute it is not necessary to recite the title or 
 the preamble. The title, said Lord Holt, is no more a jjart of 
 the law than a title of a book is part of the book, and there is, 
 for that reason, no necessity to recite it ; but if a party do take 
 upon him to recite the title of a statute, he thereby ties himself 
 to an act so entitled, and if he cannot produce it, he is gone.?* 
 
 We have said in a previous chapter that certain statutes, such 
 as the statute of limitations, and the statutes to prevent usury, 
 though x^ublic statutes, are required to be set up in pleading by the 
 party who desires to iutei-posc them as defences, and heretofore in 
 practice, the courts have been disposed to look upon such defences 
 with disfavor, especially in cases of latches, on the ground that 
 such defences are inequitable and immoral. This is, with more 
 modern views, believed to be a mistaken pohcy for the judiciary. 
 The pohcy of the government, is for the legislature to direct ; that of 
 the duty of the judiciary is, to give full effect to the legislative will ; 
 and every effort by them to throw discredit on statutory provis- " 
 ions as unjust, as inexpedient, and is but to arrogate to themselves 
 a censorship over the law-making power which our constitutions 
 have nowhere entrusted to them. " All laws emanate fi'om the 
 same supreme power ; and while they remain on the statute books 
 are all entitled to equal respect and obedience." a" 
 
 a The Prince's case, 8 Kep. 28, Hale's H. C. L. IG. h (S Mod. 62. 
 
 c SedgwiclL on Const. Law, 109. 
 
 Note 1.— The objection, that a statute was not constitutionally passed, in order 
 to be available, must be set up in an answer by way ot defence. Darlington v. 
 Mayor, &c., of New York, 31 N. Y. 1G4, 2 Robertson 274. 
 
 Note 2.— Statutes of limitation are now regarded favorably in all courts of jus- 
 tice. They are called " statutes of repose." Usually they are founded in a wise 
 and salutai-y policy, and promote the ends of justice. Lessee of Parish v. Perris, 
 2 Black. COG ; Tolson v. Kage, 2 Brod. & Bing. 217 ; Lewis v. Marshall, 5 Peters, 
 470. They are entitled to the same respect as other statutes and ought not to 
 receive unfavorable construction or to bo explained away. Bell v. Morrison, 1 
 Peters, 3G0 ; Willisou v. Watkins, 3 Pet. 54 ; McCleny v. Silliman, id. 270. They 
 rest upon sound policy and tend to the peace and welfare of society. They are 
 often a very meritorious defence. Tracy v. Suydam, 30 Barb. 117. No one who 
 has reflected upon the subject, and whose observation and experience qualify him 
 to judge, but will sanction and applaud the wisdom and policy of a statute, the
 
 MANNER OF PLEADING STATL'TES. 149 
 
 A misrccital of the day on which the parHament was hoi Jen, or 
 of the session, (as of the 29th of Eliz., when tlie session commen- 
 ced the 28th Ehz.,) a or of the ])lace of niakiiij^' the statute, or a 
 repugnancy in reciting tlie day of its making, will be fatal ; so, if 
 any material part be omitted en- misreeited. h But tritliug varia- 
 ti(ms which do not alter the sense, of the material parts of the 
 statute would not, it is apprehended, now, be considered fatal. ^■ 
 It is no fault in the recital of a statute to omit altogether the day 
 on which the parliament was liolden ; for the judges are bound to 
 take notice of the commencement of a session, and it is a safer 
 course to omit it, to avoid the risk of a misreeital. If a mistake 
 be made in reciting even a material part of a jmljlic statute, the 
 defect, it seems, will not be fatal, uidess the indictment conclude 
 " against the form of the said statute ;"r/ for if it conclude^" against 
 the form of the statute in such case made and provided," the mis- 
 recital will be rejected as surplusage, and the court will give 
 judgment upon that statute which wan-ants it. But where an 
 indictment is founded upon a private statute, such a defect 
 will not be cured by a general conclusion, e In civd actions, mis- 
 recitals of a private statute can only be taken advantage of by ])lea 
 of nnl tiel record, or, in assumpsit, under the general issue ;/' while 
 the time or place of holding the parliament being misstated, is 
 gi-ound of demurrcr.7 In pleading upon statutes, it has already 
 been stated, that where there is an exception in the enacting 
 clause, the plaintiff must show that the defendant is not withm 
 the exception; but if there be an exception in a subsequent 
 clause, that is matter of defence, and the other party must show 
 it, to exempt himself from the penalty. U AVhen a temporary 
 
 a 2 M. & S. 121 ; 2 Biugliam, 255. 
 
 h Lord Eaym. 382 ; Cro. Eliz. 18G ; Cro. Car. 522. 
 
 c 2 Haw, C. 25, s. 109. d Lord Kaym. 210 ; Liitw. 1-10, 
 
 e2 Haw. c. 25, s. 101 ; 2 Hale, 173. /Lord Eaym, 381. 
 
 g Cow. 171. h 1 Term. Eep. 1-11. 
 
 object and obvious teudeucy of wLicb is to promote the peace and good order of 
 society, by quieting possessions and estates, and avoiding litigation. La From- 
 bois V. Jackson, 8 Cow. G15, GIG, per Yiele, Senator. 
 
 "We are not warranted in applying a diflerent rule to the defence of usunj, from 
 that which we would hold applicable in other cases. It is a defence allowed and 
 provided by law. The defendant (in that case) did not claim any indulgence 
 from the court, but simply asked for the indulgence of those rules which the leg- 
 islature has provided for all cases indiscriminately, whether the party invoking 
 (heir exercise was seeking to visit his adversary with a forfeiture or not. The 
 law has not made any distinction between such defences, and those where no for 
 foiturc is involved ; and the court can make none. If the sense of the legislature 
 is plainly expressed, the court has no judgment to pass upon the policy of its pro- 
 visions. Catlin V. Gunter, 11 N. Y. 375, per Johnson. J. Bates v. Voorhees, 7 
 How. Pr. E. 235,
 
 150 lUlsTvER or TLEADING STATUTES. 
 
 statute -wliicli has expired, is continued by taking notice of the 
 latter, a 
 
 It one statute have prohibited the subsequent statute, it is 
 suthcient to plead the former without doing of an act, and 
 another be afterwards made which inflicts a forfeiture on the 
 person who shall do the act ; the person who sues for the forfeiture 
 uuTst plead both statutes, h 
 
 No person is obliged to recite in pleading, any more of the stat- 
 ute than the clause which makes for himself, subject to the rule 
 l)eft)re stated, that if any proviso or exception is parcel of the 
 clause which is pleaded, the exception must not be omitted, or it 
 would be a misrecital of the clause. But, if one party have only 
 [)leaded such part of a statute as it was for his interest to plead, 
 the other party may plead any other part of the statute, c 
 
 An act of Parliament sometimes directs the manner in which 
 a defendant shall be entitled to take advantage of the enactment, 
 as by pleading the statute in bar ; in such cases the party must 
 pursue the remedy pointed out, or if he do not avail himself of 
 it at the proper time, and in the manner and form prescribed, he 
 cannot take advantage of it aftcrwards.f/ 
 
 If a statute in any case direct, what shall be pleaded, the plea 
 must be in the words of the statute, and all indictments upon 
 penal statutes must, it has been said, strictly pursue the statute ; 
 that is, when properly understood, every indictment must contain 
 all the circumstances necessary to constitute the crime ; and 
 those circumstances must be stated positively, " without any peri- 
 phrasis or intendment." But unless where technical words have 
 l)een long established to be necessary in the description of par- 
 ticular offences, (and Lord Kenyon said he was not inclined to 
 multiply the instances,) it is sufficient that the substance of the 
 offence be charged with certainty, and by positive allegations 
 contained in some (and it matters not in what) parts of the 
 indictment brought within the words and meaning of the act. 
 Thus it has been held sufficient to aver pretences to be false 
 without charging that the defendant falsely pretended, e 
 
 The authority of a statute may be considered with reference to 
 its extent, duration, and sanction. 
 
 1. It is the highest authority which this kingdom acknowledges 
 upon earth./ It has power to bind every subject in the land, and 
 the dominions thereunto belonging ; nay, even the King himself, 
 if particularly named therein. It can discharge a person from 
 his allegiance, and restore him to a state of nature, g It can 
 niake his estate to cease in the same manner as if the x>arty pos- 
 
 a Stra. lOGG. h PIo-.vd. 20G, Bac. Abr. title statute 1. 
 
 c Cro. Jac. 240 ; L. Eaym. 120 ; 11 Mod. 207 ; 2 Hale 170. 
 d Taylor v. Blair, 3 Tenn. E. 452. e The King v. Airey, 2 East, 20. 
 
 /I Bl. Com. 185. g 12 Mod. Rep 88; The City of London v. Wood.
 
 AUTHORITY AND EFFECT OF STATUTES. 151 
 
 sessing it were dead ; as is doue by the 21 H. 8, c. 13, -wliicli 
 declares, that if a person accept a second benefice, the first shall 
 be void, in the same manner as if the incumbent had died.a It 
 can dissolve a marriage, and enal)le the adulteress to intermarry 
 Avith her paramour.?^ It can enable a man to have, or be, an 
 heir, who could not otherwise have, or be, an heir.r; An estate 
 tail may be limited by a statute without a donor: and the valid- 
 ity of such a hmitation is not to be measured by the rules of the 
 common law ; for the statute can control the rules of of the com- 
 mon law.f^ It can do no wrong ; but " it may do several things that 
 look 2>ri'{ti/ <>(hJ," (Lord Holt's expression ;) it can make Malta ni 
 Europe, and can make a woman a mayor, or a justice of the peace.e 
 
 It is the rule that the King shall not be restrained of a liberty 
 or a right he had before, by the gisneral words (jf an act of Par- 
 liament, if the King is not named in the act/ But if the statute 
 bo intended to give a remedy against a wrong/ to prevent fraud, o 
 tortious usurpations, or the decay of rehgion, the King, though 
 not named, shall be boimd by it. So, the King, though not spe- 
 cially named, is bound by acts for the advancement of rehgion or 
 of learning, or for providing for the poor ; as by the act 10 Car. 
 for uniting livings in Ireland. So the general words of the stat- 
 utes which tend to ])erforni the will of the founder or donor, shall 
 bind the King, // although he be not named, i These instances, 
 which are adduced in the books as exceptions to the rule, cer- 
 tainly open the door to great latitude of construction, and^ leave 
 the rights of the Crown very unsettled in such matters. Yet the 
 authorities which support the doctrine are mostly taken from 
 times in which the prerogative was highly favored. They are 
 collected in the case of Willion v. Berkley. / It was there held, 
 by the Court of Common Pleas, that the King was bound by the 
 Stat, dedonis. 
 
 It was said in the Magdalen College case,A; that where the King 
 has any prerogative, estate, right, title, or interest ; that by the 
 general words of an act of ParHament, he shall not be barred of 
 them. In later instances the claim is only asserted, that the 
 King shall not be divested of any of his prerogatives but by 
 plain and express words for that purpose, though all his other 
 
 a 6 Eep. 48; Mildmay's case. h 12 Mod. supra. 
 
 c 1 Lev. 75. d 1 Jon- 105; Eaym. 355. 
 
 e 2 Jon. 12. /2Inst. C81. 
 
 (I 5 Rep. 14. (b.) '• h Str. 516. 
 
 'i 11 Eep. 73. j Plowden, 239, 214. 
 
 A; 11 Een. 74. 
 
 HsoTE 3.— A similar rule of construction is found in this country. It has been 
 held that the general words of a statute, do not include the government or effect 
 its rights, unless such intention be clear and indisputable, upon the face of the 
 act. United States v. Hewes, Crabbe. E. 307.
 
 152 AUTHORITY AND EFFECT OF STATUTES. 
 
 rights arc no more favored in law than the rights of his subjects.a 
 The sensible conclusion seems to be, that in such cases he may 
 be precluded of such inferior claims as might belong indifferently 
 to the King or to a subject (as the title to an advowson or to a 
 hmded estate,) but not stripped of any part of his ancient pre- 
 rogative, nor of those rights Avhich are incommunicable, and are 
 appropriated to him as essential to his regal capacity.^ 
 
 In a modern case, arising upon the "act for the more effectual 
 administration of justice in England and Wales," the court said, 
 " In an act of Parhament, passed -expressly for the further 
 advancement of justice, and in its particidar enactments using 
 terras so comprehensive as to include all cases brought up by 
 writ of error, we think there is neither authority nor principle for 
 implying the exception of criminal cases, upon the ground that 
 the king, as the public prosecutor, is not expressly mentioned in 
 the act." 
 
 If an act speak of the Ivuig generally and indefiuitely, naming 
 him in his poHtic capacity, it extends to all his successors ; and 
 to a Queen, if the crown descend to a female, c 
 
 A statute beginning " Bex perpcndens;'' &c ; so, a statute saying, 
 " the King commandeth that no man shall disturb any electors to 
 make free election," are instances where tlie King, bemg named, 
 is bound, d 
 
 And though it is said that the King shall not be bound by a 
 statute (whether affirmative or negative) which does not expresslj 
 name him,r? yet if there be equivalent words, or if the preroga- 
 tive be included by necessary im23lication, it would seem to admit 
 a different construction. Thus the stat. 7 H. 4, c. 4, provided 
 that protection should not lie for a warden of a prison, in debt 
 l)rought against him upon an escape. " See," it is said, " that 
 this is a statute which shcdl bind the King ; for none can gi-ant 
 protection but the King only, and therefore that the statute says 
 that the protection shall not lie, is as much as to say, that the 
 King shall not dispense with the statute ; quod nota.''' 
 
 Statutes often affect matters of subsequent creation,/ in hke 
 manner as an immemorial custom v.'ill embrace matters arising 
 within the time of legal memory.f/ 
 
 Eeliefs of dignities are provided for by DIcujna Charta ; digni- 
 ties subsequently created, have been held to be within that pro- 
 vision. 
 
 Some statutes are temporary, others are perpetual. Every stat- 
 ute, for the continuance of whicli no time is limited, is perpetual, 
 although it be not expressly declared to be so. A temporary 
 
 a Eex. V. Archbishop of Armagh, 8 Mod. 8. /; 1 Woodis, 31. 
 
 c 12 Eep. 110. a 2 Inst. 31. 
 
 e Br. Pari. pi. 6; Cro. C. 52G; Ascough's case, 2 Hawk. PI. C. 411, c, 42, § 3. 
 
 /Br. Pari. 30, cites 39 H. G, 39. rj 12 Mod. 485.
 
 rAETICLTLS.E STATUTES. 153 
 
 Statute continues in force (unless it be sooner repealed) until the 
 time for wliich it is made expires ; a per|")etual one until it is 
 repealed. 
 
 Acts of [)arlianient altering other acts in force in the colonies, 
 (of Great Britain) arc considered as themselves applying there. 
 
 If an act be penal and temporary by the terms or nature of iir,- 
 the paily oiiV'nding must be prosecuted and punished before the 
 act expires. Although the olience should have been committed 
 before the expiration of the act, the party cannot be punished 
 after it has expu'ed, unless a particular provision be made by 
 hiAV for the purpose. On this account, a temporary statute is 
 sometimes a made to continue in force, after it has ceased to ope- 
 rate substantially, for the purpose of supporting prosecutions 
 against those -who have violated it during the term assigned for 
 its contmuance. 
 
 If a statute be temporary, and limited to a given number of 
 years, and before the expiration of the time it be made perpetual 
 by another act, it was formerly a question, under which statute 
 offences were to be laid to have been committed. In the case of 
 the College of Plrrsicians it was laid down, that if a statute, which 
 was to have continuance only for seven years, have been after- 
 M'ards, by another statute, made pei^ietual, only the latter statute 
 is to be considered in force. ]5ut this decision was erroneous, 
 and contrary botli to former h and to latter adjudications ; which 
 sufficiently establish, that if a statute be permitted even to expire, 
 and afterwards be revived by another statute, proceedings ought 
 to be referred to the first act, the law deriving its force from the 
 first statute. " When a statute is continued," said Lord Hard- 
 wiche, in Hex v. Morgan, c "every person is estopped to say that 
 it is not in force." And the Com-t of King's Bench, in Shipman 
 v. Henbest, d held that the statute of 21 Jac. 1, c. 4, extends to 
 statutes made since, which revive statutes made before it ; in 
 other words, that if an expired statute be aftei*T\' ards revived by 
 another statute, the law derives its force from the first act, which 
 is to be considered as in operation by means of tliis revival. If, 
 however, a temporary act be revived after it has expired, without 
 a special pro^•ision reaching to the intermediate time, the mter- 
 mediate time is lost. Ko proceedings can be pursued under a 
 repealed statute, though commenced before the repeal, unless by 
 special exception.t^ 
 
 Statutes of the realm, {(jiue cdida ct statuia sunt,) are the decla- 
 red will of the supreme power in the state, which, unless they are 
 repugnant to the laws of God, all subjects are bound to obey. 
 
 a 29 Geo. 3, c. 6-1 ; 33 Geo. 3, c. 66 ; 31 Geo. 3, c. 80, &c. 
 I Cro. Eliz. 750. c Strange, 10G6. 
 
 d 4 Term Kep. 109 ; ex parte Dryden, 5 T. E. 418. 
 e Miller's case, 3 Wils. 420 ; S. C. 1, W. Black. 451. 
 20
 
 154 EEPEAL OF STATUTES. 
 
 Created bj an exercise of the highest authority which the consti- 
 tution of this country acknowledges, they cannot be dispensed 
 with, altered, amended, suspended or repealed, but by the same 
 authority of parliament by Avhicli they were made. For it is a 
 maxim of law, that it is cunverdem naturali cvqitati miumquodque 
 dissolfi €0 Ugarnine, quo ligatum est. 
 
 An act of parliament cannot be repealed by non user, a The 
 Scotch lawyers hold, that a statute Joses its force by desuetude, 
 if it hath not been put in execution for sixty years. Other wri- 
 ters have extended this term to a century, and make a distinction 
 between statutes half obsolete, and those in viridi observantia. 
 
 An act of Parliament'-'" may be repealed by the express words 
 of a subsequent statute, or by necessary irresistible "impHcation. 
 ijut an act, according to the j)ositive rules of both Houses of 
 ParKament, cannot be altered or repealed in the same session of 
 Parliament in which it was passed, unless there be a clause 
 inserted, expressly reserving a poAver to do so. 
 
 If a subsequent statute, contrary to a former act, have nega- 
 tive words, it shall be a repeal of the former act. 
 
 Every affirmative statute is a repeal of a precedent affirmative 
 statute, where its matter necessarily inq^hcs a negative ; but only 
 so far as it is clearly and indisputably contradictory and contrary 
 to the former act "in the very matter" (Foster s case;) and the 
 repugnancy such, that the two acts cannot be reconciled; for 
 then " leges 'posteriores, priores contrarias cihrogant." The leaning 
 of the courts is so strong against repeahng the positive provis- 
 ions of a former statute by construction, as almost to establish 
 the doctrine of "no repeal by implication." But this goes beyond 
 the Hmits of Fosters case, that " such repeal is not to be favored ;" 
 and, in a recent case. Lord Denman said, " while we hold that a 
 positive enactment is not to be restrained by inference, we must 
 also act on the maxim, ' leges posteriores jjr lores contrarias ahrogant,' 
 whenever it comes in operation."?) * 
 
 o 2 T. E. 275. 
 
 6 2 Q. B. Eep. Eeg. v. Inhabitants of St. Edmund's, Salisbury, p. 84. 
 
 * The following are the observations of the framers of the Code Napoleon: — 
 "Xes Ms conservent leureffef, iant qiCelles ne sont point ahrogees par (Tautres Ms, on 
 qu'elles ne sont point tombees en desuetude. Si nous n'avons pas formellement auiorise 
 le mode d'abrogation par la desuetude ou le non-usage, c'est qiC'd eutpeut-etre ete danger- 
 eux de lefaire. Ilais peut-on, se dissimuler I' influence ee rutilite de ce concert indelibere, 
 de ceite puissance invisible, par laquelle, sans secousse et sans commotion, les peuples se 
 font justice des mauvaises Ms, et qui semUent proteger la societe conire les surprises 
 faites au legislateur, et le legislateur contre lui meme." — Discours preliminaire du pre- 
 mier projet du Code Civil. 
 
 It is elsewhere, in the same admirable dissertation, philosophically observed, 
 " Les codes depeupjles sefont avec le temps ; mais, a proprement parler, on ne les faV 
 pas. " 
 
 Note 4. — The American authorities are substantially to the same effect. A 
 ctatute can be repealed, only by an express provision of a subsequent law, or by
 
 IlEPEAL OF STATUTES. 155 
 
 " If two inconsistent acts be passed at different times, the last," 
 said the Master of the Eolls, " is to be oljcyed, and if obedience 
 cannot bo observed witliout derogating from tlie first, it is the 
 first which must give way. Every act of Parhament must be 
 considered with reference to the state of the law subsisting when 
 it came into operation, and wlion it is to be applied ; it cannot 
 otherwise bo rationally construed. Every act is made, either for 
 the purpose of making a change in the law, or for the purpose of 
 better declaring the law, and its operation is not to be impeded 
 by the mere fact that it is inconsistent with some pre^dous enact- 
 ment, "a^ 
 
 a The Dean of Ely v. Bliss, 5 Beav. 582. 
 
 necessary implication. To repeal a statute by implication, there must be such a 
 positive I'epugnancy between the provisions of the new law and the old, that they 
 cannot stand together, or be consistently reconciled. Cool v. Smith, 1 Black. 
 459; Woodv. U. S. 16 Pet. 342, 10 Barr. E. 448; Hartford v. United States, 8 
 Cranch, 109; Brown v. County Commissioners, 21 Penn. 37; Street v. Common- 
 wealth, G Watts and Serj. 209; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 
 Barb. 31C; People v. Deming, 1 Hilt. 271. In McCool v. Smith, 1 Black. U. S. 
 R. 470, Justice Swayne said, "a repeal by implication is not favored; the leaning 
 of the courts is against the doctrine, if it be possible to reconcile the two acts ol 
 the legislature together." Where a late statute, is absolutely repugnant to a for- 
 mer one, only in part, it repeals the former only so far as the repugnancy extends, 
 and leaves all the remainder in force. Van Rensselaer v. Snj'der, 9 Barb. 308, 
 and cases su])ra. 
 
 Note 5. — The more natiiral, if not necessary inference in all such cases is, thai 
 the legislature intend the new law to be auxiliary to, and in aid, of the purposes 
 of the oM law. There should be therefore, a manifest and total repugnancy in 
 the provisions of a new law to lead to the conclusion that the latter law abroga- 
 ted, and was designed to abrogate the former. There are cases however, where, 
 though the latter statute be not repugnant to a former one, and no express pro- 
 vision in the latter repealing the former, if the latter prescribe the only rules 
 which shall govern, it repeals the former one in all those respects in which it dif- 
 fers from the latter as to the governing rule. Daviess v. Fairborn, 3 How. U. S 
 E. 636. If the latter statute is upon the same subject matter with the former, and 
 introduces some new qualification or modification, so that it is imiDossible both 
 should be in force, then the latter repeals the former, but if it be possible that 
 both can stand, by construction, the question resolves itself into an inquiry, 
 what was the intention of the legislature ? Did it mean to repeal, or take away 
 the former law, or was the new statute intended to be merely cumulative ? U. S. 
 V. Case of Hair Pencils, 1 Paine, 400. 
 
 A rej)ealing statute, is a total abrogatioa of the law repealed, but rights acquired, 
 and which became perfect under the law before its repeal, are not afiected by the 
 repeal . Prusseaux v. Welch, 2 Western Law Monthly, 209. 
 
 A repealing act, and another act passed at the same session, suspending the 
 eflfect of the repealing act fo;.- a limited period, leaves the former law in force
 
 156 KEPE^VL OF STATUTES. 
 
 It is a general rale tliat subsequent statutes, wliicli add accu- 
 mulative penalties, and institute new methods of proceeding, do 
 not repeal former penalties and methods of proceeding ordained 
 by precetling statutes, without negative words. Nor hath a latter 
 act of parliament ever been construed to repeal a prior act, unless 
 there be a contrariety or repugnancy in them, or, at least, some 
 notice taken of the former act, so as to indicate an intention in 
 the lawgiver to repeal it. Neither is a bare recital in a statute 
 witliout a clause of rej)eal, sufficient to repeal the positive pro- 
 visions of a former statute, a The law does not favor a repeal by 
 implication, imless the repugnance be quite plain; and such 
 
 a Doro & Grey, 2 T. E. 365. 
 
 duriug the period the repealing act is suspended. This was held in relation to 
 statutes of the state of Virginia ; that state having adopted the British rule of 
 construction, that all statutes passed at the same session, take effect from the first 
 day of the session ; so that both statutes are to be regarded as parts of the same 
 act. Brown V. Barry, 3 Dallas, 367. 
 
 Where a statute is repealed by a subsequent one, and a third act is then passed 
 declaring the first not to have been repealed by the second ; the third is inopera- 
 tive as to all cases occurring before its passage. Ogdenv. Blacldedge, 2 Cranch. 
 194. 
 
 In the state of Ohio, the repeal of a repealing act does not revive the original 
 statute ; nor does the repeal of a prohibitory act, make a valid contract entered 
 into in violation of the act repealed. Milne v. Huber, 3 McLean, 212. 
 
 A subsequent act making a different provision on the same subject, is not to be 
 construed as an explanatory act, but an implied repeal of the former, if the latter 
 act be incompatible with the former. Dash v. Van Kleeck, 7 John. 497 ; Colum- 
 bian Manufac. Co. v. Vanderpool, 4 Cow. 55G ; Livingston v. Harris, 11 "VVend. 329. 
 
 If the latter part of a statute is repugnant to the former part, it shall stand, and 
 so far as it is repugnant, shall operate as a repeal of the former part. So if there 
 are two statutes on the same subject which are repugnant, the latest operates as a 
 repeal of the first, so far as the repugnancy extends, but no farther. The latest 
 expression of the legislative will must i^revail. Harrington v. Trustees of Koch- 
 es-ter, 10 Wend. 550 ; Bac. Abr. tit. statutes D ; Bowen v. Lease, 5 Hill, 225, and 
 note; Williams v. Potter, 2 Barb. 316; People v. Deming, 1 Hilton 271; Van 
 Eonsselaer v. Snyder, 9 Barb. 302 . 
 
 Piepeals by implication, are not favored in law, and are never allowed but in 
 cases where inconsistency and repugnancy are plain and unavoidable. Cases 
 last, supra, and Wallace v. Bassett, 41 Barb. 92. 
 
 In a criminal case, where the judgment was pending for review upon a writ of 
 error, and between the rendition of the judgment, and the healing Tijion the 
 writ, the statute upon which the judgment was rendered, was repealed, it was 
 held that the judgment shoiild be reversed, notwithstanding the judgment was 
 correct upon the law when it was pronounced, on the ground that the repeal of 
 the law imposing the penalty, though it took place after conviction, arrested the 
 judgment, on the ground, that there was then no law that authorized the execu-
 
 REPE.\L OF STATUTES. 157 
 
 repeal carrying -with it a reflection on the -wisdom of former par- 
 liaments, it has ever been confined to repealing as little as possi- 
 l)le of the preceding statutes, a Althongh, then, two acts of par- 
 liament are seemingly repugnant, yet if there Ije no clause of non 
 oh.slanle in the latter, they shall, if possible, have; such constmc- 
 tion, that the latter may not be a repeal of the former by impli- 
 cation. The same view has been taken where powers under sev- 
 eral acts are such as may well subsist together, h A sul)sequent 
 act, too, which can be reconciled with a former act, shall not be 
 a repeal of it, though there be negative words ; as the 1 & 2 Ph. 
 tt M. c. 10, that all trials for treason shall be according to the 
 course of the common law, and not otherwise, does not take away 
 35 H. 8, c. 2, for trial of treason beyond sea. c 
 
 a 11 Eep. G3; Dyer, 31?! h 15 East. 377. 
 
 c For.slor's case, 11 Hep. G3. 
 tiou of the judgment. In a civil ca.se it would it seems be othenvi.se. Hartung 
 V. the People, 22 N. Y. 11. 'J5; Sauchoz v. the People, id. 155. 
 
 The repeal of a statiite creating an offence before trial for such offence, is a bar 
 to a conviction. Cook v. Board of Police, 16 Abbott, Pr. E. 473, S. C. 40, Barb. 
 C2C. 
 
 Where some of the provisions of a statute arc void for unconstitutionality, a 
 general I'epealing clause in such statute ■which repeals all provisions of law in 
 conflict with it, does not repeal provisions which conflict only with that part 
 \rhichis void. Harbeck v. Mayor, «fcc. 10 Bosw. 36G, 
 
 "When a new statute covers the whole subject matter of an old one, and adds 
 offences and prescribes different penalties from those enumerated in the old law, 
 it is, by necessarj^ implication, a repeal of the former statute. Korris v. Croker, 
 13 How. U. S. 11. 429. 
 
 The suspension of an act, cannot be construed to be a repeal of it. Brown v, 
 Barry, 3 Dall. 365, note 15. All legislative acts are repealable. The most inju- 
 rious consequences would be the result of a contrary doctrine. Bloomer t. 
 Stoll}', 5 McLean, IGl ; Kellogg v. Oshkosh, 14 Wis. 623. 
 
 Where a perfect right of action has accrued on a contract which is authorized 
 by a statute, neither the contract, nor a suit pending for its enforcement will be 
 atfectcd by a repeal of the statute. Pacific Mail Steam Co. v. JoUiffe, 2 Wallace, 
 450. This is based upon the reason that there was a vested right independent of 
 the statute. But it is otherwise in a case where a party is prosecuting for a pen- 
 alty. . A party has no vested right in a penalty until after judgment obtained. 
 The legislatiare may discharge a defendant by repealing the law. Korris v. 
 Crocker, 13 How. 429. And a prosecution for an offence punishable by fine and 
 imi^risonment, is barred by a repeal of the act creating it; and a saving clause in 
 the repealing act, excepting sidisfor "penalties and forfeitures " does not reach the 
 case. U. S. v. Mann, 1 Gallison, 177. So too, an indictment connot be sustained 
 under a statute which has been repealed without a saving clause. U. S. v. Pas- 
 samore, 4 Dallas, 372. So it was held by Ch. J. Marshall in the case of the 
 " Irresistable " 7 Wheat. 552, that an offence against a temporary act, cannot be
 
 158 REPEAL OF STATUTES. 
 
 When there is a difference in the whole purview of two statutes, 
 apparently relating to the same subject, the former remains in 
 force, a 
 
 It has been held, however, that clauses which limit in any way 
 the right of the crown, must be considered as repealed by subse- 
 quent statutes, unless expressly re-enacted, h 
 
 It has been before seen, that by a decision of the Court of Ex- 
 chequer, if tlie latter part of the statute be repugnant to the 
 former part thereof, it shall stand, and so far as it is rej^ugnant, 
 be a repeal of the former part ; because it was last agreed to by 
 the makers of the statute, c 
 
 On every act professing to repeal, or interfere with, the provis- 
 ions of a former law, it is a question of construction, whether it 
 operate as a total, or partial, or temporary repeal. The word 
 " repeal " is not to be taken in an absolute, if it appear upon the 
 whole act to be used in a limited, sense, d Where several acts of 
 parhament upon the same subject had been totally repealed, and 
 
 a Rex V. Downes, 3 T. E. 569. h Atty. Gen. v. Newman, 1 Price, 438. 
 
 c Fitzgib. 195. d Eex v. Rogers, 10 East. 573. 
 
 punished after the expiration of the act, unless there be a i^articular provision 
 made by law for the purpose. 
 
 A repealing act, like other acts, only takes effect from its approval by the Pres- 
 ident, or Governor. All prior proceedings on the same day are valid, and the 
 jorecise time of executive approval it seems, may be inquired into as a question 
 of fact. Richardson's case, 2 Story R. 571 ; Aukrim's case, 3 McLean, 571. The 
 contrary of this, however, was held in Welman's case, 20 Vt. R. G53, and in the 
 case of Howes, 21 Vt. 619. I think sound reason, and the highest demands of 
 justice, are against the Vermont rule. 
 
 Where a statute imposes a penalty for an act done, injurious to the rights of 
 others, such penalty to be recovered by the party aggrieved, the penalty is in the 
 nature of a satisfaction to him, as well as a punishment to the offender. In such 
 case the jilaintiff has acquired a vested right to the penalty, as soon as the offence 
 is committed; and a general repeal of the statute after action brought does not 
 affect that right. President, &c., of London v. Harrison, 9 Barn, and Ores. 524; 
 Company of Cutlers v. Euslin, Skinner R. 365; Palmer v. Conly, 4 Denio, 
 374-5. 
 
 The repeal of a statute does not take away the plaintiff's cause of action under 
 it for damages for an injury to his property. Vandekar v. Rensselaer & Sar. R. 
 R. Co. 13 Barb. 390. 
 
 Where a right to damages has vested, under a statute, its repeal, attempting to 
 destroy that right, is void, it is beyond the scope of legislative power. People v. 
 Supervisors of Westchester Co. 4 Barb. 64. 
 
 Where a statute creating an offence is repealed, it is a bar to a subsequent 
 action, for an offence committed before the repeal. Howard v. State, 5 lud. 
 (Porter) 183. The right to recover a penalty is lost by a repeal of the act, unless 
 saved in the repealing act. Id. 535; Heald v. State, 36 Maine, 62.
 
 REPEAL OJ? STATUTES. lo'J 
 
 others repealed in part, it was held that it must have been the 
 clear intention of the legislature that only the part of an act par- 
 ticularly pointed o\it, should be repealed, a 
 
 If a statute, before peri)etu;d, be continued by an aflirniative 
 statute for a limited time, this does not amount to a repeal thereof 
 at the end of that time, h But e ccmtra where a statute professes 
 to repeal absolutely a prior law, and substitutes other provisions 
 on the same subject, which are hmited to continue only till a cer- 
 tain time, the prior law does not revive after the repealing statute 
 is spent, unless the intention of the legislature to that effect is 
 exi)ressed. c 
 
 Where one statute is repealed by another statute, acts done in 
 the meantime, while it was in force, shall endure and stand, and 
 be good and effectual ; but not so, it has been said {quaere lamen) 
 if the former act be declared null and void, d 
 
 By the repeal of a repeahng statute, (the new law containing 
 nothing in it that manifests the intention of the legislature that 
 the former act shall continue repealed), the original statute is 
 revived ; but if a statute be repealed by several acts, a repeal of 
 one act or two, and not of all, does not revive the first statute, e 
 If a repealing statute, and part of the original statute, be repealed 
 by a subsequent act, the residue of the origuial statute is revived/ 
 If an act of parliament be revived, all acts explanatory of that so 
 revived, are revived also. 7 
 
 Where the words are, that " no statute, not expressly mentioned, 
 shall be revived;" but, by the repeal of the repeahng statute, a 
 statute is re^dved, which mentions another to be in force, this 
 sliall also operate as a re\ivor of the last-mentioned statute ; as 
 was the case with the stat. 21 Hen. 8, of pliu'ahties, mentioned to 
 be in force by the stat. 25 Hen. 8, c. 21, w hich,was revived by the 
 stat. 1 EUz. 1, though that act says that no statute repealed by 1 & 2 
 Ph. & M. stat. ^, shall be in force, if it be not specially revived, h^ ' 
 
 a Camdeu v. Anderson, 6 T. K. 723. h Ravm. 397. 
 
 c "NVarren v. Windle, 3 East. 205. d Jenk. Cent, 283, pi. 6. 
 
 e The Bishop's case, 12 Kep. 7 ; Tattle v. Grimwood, 4 Bing. 496. 
 /• 9 B & C. 354. g 2 Burr. 747. h 1 Vent. 22. 
 
 Note 6. — "Where a statute reviving a statute which has been repealed, is itself 
 repealed, the statute which was revived stands as it did before the revival. Cal- 
 vert v. Makepeace, 1 Smith, (Ind.) 86. 
 
 Note 7.— Congress may make the revival of an act dependent upon a future 
 event, and direct that event to be made known by proclamation. 7 Cranch, R. 
 332. Id 570. 
 
 When a statute is revived by a subsequent act, it is revived precisely in the form 
 and with the effect which it had when it expired. Peck v. Pease, 5 McLean R. 
 480, and though there be an interval between the expired act, and the act reviving 
 it, the rights of parties under the original act are preserved, unless the rights of 
 third parties have intervened during the interval. Stevens v. McCargo,9 Wheat.502.
 
 IGU EErE.VL OF STATUTES. 
 
 AYheii an act of parliament is repealed, it must be considered 
 (except as to transactions past and closed,) as if it bad never ex- 
 isted. The stat. 5 Geo. 4, c. 98, repealed all former bankrupt 
 acts. That was repealed hj G Geo. 4, c. IG, which repeal had the 
 eti'ect of setting up the old acts from the 2d of May, 1825, when 
 the G Geo. 4, c. IG, passed, until the 1st of September, 1825, when 
 the last mentioned act came into operation ; but they then ceased 
 to exist, and the powers given by them were extinguished, the 
 legislature having made no provision for issuing commissions after 
 the G Geo. 4 took effect, upon acts of bankruptcy previously com- 
 mitted. " We are to look," said Lord Tenterden, a " at the stat. 
 G Geo. 4, c. IG, as if it were the first that had ever been passed 
 upon the subject of bankruptcy." So, in a criminal case, h an 
 act, from its passing, repealed a former act, which ousted clergy 
 from a certain offence, and imposed a new penalty on the same 
 oHence from and after its passing. It was held that an offence 
 committed before the passing of the new act, but not tried till 
 after, was not liable to be punished under either of these statutes. 
 For the former act was repealed ; and as to the latter, the pro- 
 visions cannot be retrospective, unless declared to be so by express 
 words ; either by an enumeration of the cases in which the act is 
 to have a retrospective operation, or by words which can have no- 
 meaning unless such construction is adopted, c 
 
 If an act be to have continuance for three years, and from 
 thence to the end of the next session of parliament, it shall con- 
 tinue to the end of a session which begins after the three years, 
 tliough a session within three years continue several months after 
 the three years. 
 
 As every statute made against an injury, mischief or grievance, 
 impliedly gives a remedy, the party injured, if no remedy be ex- 
 pressly given, may have an action upon the statute, d If a pen- 
 alty be given by a statute, but no action for the^^ecovery thereof 
 be given, an action of debt will lie for the penalty, e ' 
 
 a Surtees v. Ellison, 9 B. & C. 752; and see Maggs v. Huut, 4 Biiig. 212; Kay 
 V. Gordon, 6 Bing. 582. 
 
 b Eex V, Mackenzie, B. & B. C. C. 429. 
 
 c Churcliill v. Crease, .5 Bing. 178; Torringtou v. Hargravep, id. 492. 
 
 d 2 lust. 53; 10 Bep. 75. e Popli. 175, 
 
 Note 8. — In the Bevised Statutes of this State, Vol. 2, 480, § 1, it is i^rovided, 
 that where a joecuniary penalty or forfeiture is si^ecially granted bj'' law to any 
 person injured or aggrieved by the act or omission of another, the same may bo 
 sued for in an action of debt or assumpsit. Under this statute it has been held, 
 that in the absence of any provision to the contrary, the party injured or aggriev- 
 ed by such act, may bring an action in his own name ; the implication of law is 
 that the right so to sue is thereby given to the party so injured. Thompson v. 
 Howe, 46 Barb. 287; Conly v. Palmer, 2 Comst. 182. The penalty when recov- 
 ered is in the nature of satisfaction for the wrong done.
 
 EFFECTS OF rilOHIBITOEY GTATUTES, IGl 
 
 \Vlicn a statute commaiuL-; or prohibits a tiling of i^ublic cou 
 cern, the person guilty of disobedience to the statute, besides 
 being answerable in an action to the pai-ty injured, is likewise 
 liable to be indicted for the disobedience, a "Wherever a statute 
 forbids the doing of a thing, the doing it wilfully, although without 
 any corrupt motive, is indictable, h If a statute enjoin an act to 
 be done without pointing out any mode of punishment, an indict- 
 ment will lie for disobeying the injunction of the legislature, c 
 Thus where a statute conmiands a matter of puljlic convenience, 
 as the repairing of the connnon streets of a town, an ohender 
 against such statute is punishable, not only at the suit of the 
 party grieved, but also by way of indictment for his contempt of 
 the statute, unless such method of proceeding do manifestly 
 appear to be excluded by it. 
 
 But if the thing commanded or in-ohibited by a statute can only 
 be prejudicial to one or two persons, as if it be to repair the banks 
 of a river, from want of havmg done which the ground of a cer- 
 tain person has been overflowed, no indictment lies ; the remedy 
 being by an action upon the case, d So, if a statute, although it 
 extend to all persons, chiefly concerns disputes of a private natui'e, 
 as those between landlords and tenants relating to distresses, an 
 offence against the statute is not indictable, e 
 
 If a statute inflicts a penalty for doing an act, the penalty im- 
 plies a prohibition, and the thing is unlawful, though there be no 
 prohibitory words in the statute. This rule applies to the case ot 
 a statute inflicting a penalty for making a ])articular contract, as 
 a simoniacal or usurious contract,/" in which it has been held that 
 the contract was void under the statute, though there was a pen- 
 alty imposed for making it. A question has been made, whether, 
 where a statute creating a new offence, gives a penalty, and 
 directs how it shall be recovered, the offence can be punished in 
 any other way than that directed by the statute, r/ Upon which, 
 the proper inquiiy to be made is, 1st, Was the doing of the thing, 
 for which the penalty is inflicted, lawful or unlawful before the 
 passing of the act? 2dly, Is there a general prohibitory clause 
 in such statute, or no '? 
 
 When the statute, making the new ofl'ence, is not prohibitory, 
 but only inflicts the forfeiture and specifics the remedy, an indict- 
 ment will not lie./i The true rule was laid down by Lord Mansfield 
 in the case of the King v. Eobinson, i that where the offence was 
 punishable before the statute prescribing a particular method of 
 punishing it, then such particular remedy is cumulative, and does 
 
 a Cro, Eliz. C35; 2 Inst. 131, 103. h R. v. Saiutsbury, d T. E. 457. 
 
 c K. V. Davis, Say. 133. d Sid. 209. 
 
 c 1 Hod. 71. /rcr Lord Holt, Carth. 251; Skiu. 222. 
 
 ;/ Castle's Case, Cro. Jac. G13, h R. v. Wright, 1 Burr. 513. 
 
 i 2 Burr. 805; R. v. Boycll, 2 Burr. 832; Cowu. 521, G5G. 
 -11
 
 162 EFFECTS OF rEOHIBITOEY STATUTES. 
 
 not take away the common law punishment, and eitlier remedy 
 may be pursued. Thus in Beekford and Hood, the question was, 
 whether the right of property being vested in authors for certain 
 periods, the common hiw remedy for a violation of it, attaches 
 within the times limited by the act of parliament, there being 
 certain penalties affixed for transgressing the law ? " But it has 
 been argued," said Lord Kenyon, " that as the statute, a in the 
 same clatise that enacts the right, has .prescribed a particular 
 remedy, that that and no other can be resorted to. And if such 
 appeared 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, certainly was to give an accumulative rem- 
 edy ; nothing could bo more incomplete as a remedy than those 
 penalties alone," &c. 
 
 This doctrine was recognized in a modern case : " The general 
 rule of law and construction undoubtedly is, that where an act of 
 parhament does not create a duty or offence, but only adds a 
 remedy in respect of a duty or offence wdiich existed before, it is 
 to be construed as cumulative,; but this rule must in all cases be 
 apphed with due attention to the language of each act of parha- 
 ment." h 
 
 But where the statute only enacts, that the doing any act not 
 punishable he/ore, shall for the future be i)unishable in such and 
 such a particular manner; there the particular method prescribed' 
 by the act must be specifically pursued, and not the common law 
 method of proceeding. The mention of one method of proceed- 
 ing, impliedly excludes that of indictment. 
 
 " It is in the general true," say the books, " that no statute is 
 to have a retrospect beyond the time of its commencement;" for 
 the rule and law of parliament is, that nova constitutiofiituris,for- 
 mam debet imponere, non lyrccteritis. And not only is it the doc- 
 trine of the English law that a statute is not to have a I'etrospec- 
 tive effect, but it is also founded on the principles of general 
 jurisprudence.* A retroactive statute would partake in its char- 
 acter of the mischiefs of an ex post facto law, as to all cases of 
 crimes and i^enalties ; and in matters relating to contracts or 
 property, w^ould violate every sound principle.'' Before the day 
 
 a 7 T. E. C20; C East. 327. h Per Tindal, C. J. 8 Bing. 391. 
 
 * " En general, les lol.'! n'unt point deffet retroacUf. Ze pr'nicipe est inconiesiible," etc, 
 Discours IPreliminaire du premier Projec du Code Civil. 
 
 Article 2 — Titee peeliminaiee de la publication des lois : La lot ne dispose 
 que pour Vavenir; elle n'a point d'effet rdroadif. " 
 
 Note 9. — The American authorities are quite luiiform on the retroactive effect 
 of statutes. The general rule is, that no statute, however positive in its terms, is 
 to be construed as designed to interfere with existing contracts, rights of action 
 or suits, and especiallj' vested rights, unless the intention that it shall so operate
 
 RETEOSPECTIVE STATUTES, 163 
 
 on which the statute of frauds took effect (the 24th day of June, 
 1097), a verbal promise was made to give or bequeath a sum of 
 money in consideration of marriage, a On an action against the 
 executors, the (juestion made, u})on a special verdict, Avas, Avhe- 
 ther this promise, not being in writing, was Avithin th(! 20 Cur. 2, 
 c. o ? By the court : " It cannot be presumed that the statute 
 was to have a retrospect, so as to take away a right of action 
 which the ])laiiitilf was entitled to before the time of its com- 
 mencement." And the court put the case of a will executed with- 
 out the formalities re(|uired, which they said, would bo valid, if 
 uuide before the act, although the testator survived the passing of 
 the act. In the case of Ashburnham and Bradshaw, a devise to 
 charitable uses was made by a Avill dated in 1731. The testator 
 lived till July, 17oG, a month after the Mortmain Act had passed; 
 and, upon a case, the judges certified that the devise was good ; h 
 notwithstanding the statute. 
 
 a Gilmore v, Sliutcr, 2 Luv, 227; S, C, 2 Mod, 210: 1 Veut, 330. 
 b 2 Atk, 3G, 
 
 is expressly dccliii-cd, and courts will apply ucw statutes only to future cases, 
 unless there is sometbiuj^ in the very nature of the case, or iu the language of the 
 new provision, which shows that they Avere intended to have a retroactive opera- 
 tion. And although the words of the statnte are broad enough in their literal 
 extent to' comprehend existing cr.scs, they must j'et be construed as applicable 
 only to cases that maj' thereafter arise, unless a contrary intention is unequivo- 
 cally expressed therein. Wood v. Oakley, 11 Paige, 403; Butler v. Palmer 1 Hill, 
 32.j; Johnson v. Burrell, 2 Hill, 238; Dash v. Van Kleeck. 7 John. 499; Berley v. 
 Ivampacher, 5 Duer, 183; Calkins v. Calkins, 3 Barb. 20G; Sackett v. Audross, 5 
 Hill 334; Veddcr v. Alkcubrack, G Barb. 328; People v. Supervisors of Columbia 
 Co. 10 Wend. 3G2; Van Ecnsselacr v. Livingston, 12 id. 490. Indeed some of the 
 cases have gone even farther than this, and hold, that where vested rights are iu 
 question, that even express words in a statute giving in terms a retroactive eflfeet 
 to an enactment, cannot work that eflcct. In the case of Warren Manufacturing 
 Co. V. The Etna Insurance Co. in the United States Circuit Court of Connecticut, 
 Thompson, J., in an opinion reported in 2 Paines C. C. K. 517, says, in relation 
 to a law purporting to have a retrosjiectivc operation, "But the law in question 
 although it purports upon its face to have a retrospective operation, cannot be 
 considered as having such effect and operation. It is a sound, general principle, 
 that no statute ought to have a retrospective effect. It is the general rule that a 
 statute takes effect from its date, when no time is lixed ; and it cannot upon sound 
 principles be admitted, that a statute shall, by any fiction or relation, have any 
 effect before it was actually passed. A retroactive statute isartakes, in its charac- 
 ter, c^ ihe mischiefs of an cxpost facto law, and when applied to contracts or pro- 
 perty, would be equally unjust and unsound in princii^le as ex jmst facto laws 
 when applied to crimes and penalties." The rule of interpretation by which that 
 construction of a statute is to be avoided, which gives it a retrospective operation, 
 has little or no application in construing the organic law. Matter of Oliver Lee 
 & Co. Bank, 21 N. Y. 9. In the case of Jarvis v. Jarvis, 3 Edw. Ch. 46G, the Vice
 
 1G4 LETEOSPECTIVE STATUTES, 
 
 The question -wlietlicr a retrospective act lias any binding force, 
 involves the question of legislative power. We have before said 
 that the legislation of a state possesses all legislative power not 
 prohibited by the constitution. But, by all known rules of inter- 
 pretation, the general rule as to their power, by its very nature, is 
 prospective. They are invested with the power to enact laws. 
 Laws are rules of civil conduct, prescribed for, and, attaching 
 themselves to the future actions of men. They must from neces- 
 sity, and fi'om their nature, be prospective ; otherwise they cannot 
 bo rules of civil conduct. Laws cannot attach themselves to con- 
 duct antecedent to the creation of the rules themselves. This 
 would be a thing impossible; for, at the time the particular 
 transaction took place, there being no rule, a law subsequently 
 passed, was not, and from the nature of the case, could not liave 
 
 CbaDcellor approved of the rule laid down in the case last cited. Chancellor Kent, 
 in 1 Com. 455, saj's, " a retrospective statute, afifecting and changing vested rights, 
 is very generally considered, in this country, as founded on unconstitutional 
 principles, and consequently inoiierative and void." "But this doctrine is not 
 understood to apply to remedial statutes, which may be of a retrospective nature, 
 provided they do not impair contracts, or disturb absolute vested rights already 
 existing, and in furtherance of the remedy, by curing defects, and adding to the 
 means of enforcing existing obligations. Such statutes have been held valid 
 when clearly just and reasonable, and conducive to the general welfare." 
 
 In the constitution of the State of New HamiDshire, part 1, § 23, it is declared, 
 " Eetrospective laws are highly injurious, opi^ressive and unjust. No such laws 
 should, therefore, be made, either for the decision of civil cases or the piinish- 
 ment of offences." See Woart v. "Wiunich, 3 N. H. K. 473, and Dow v. Norris, 4 
 N. H. E. IG. 
 
 It is within the jiower of the legislature to pass an act which suspends the rem- 
 edy upon the contract, provided it does not impair the ultimate liability. Stock- 
 ing v. Hunt, 3 Denio, 274; Wolf kill v. Mason, G Abb. Pr. H. 221; Sullivan v. 
 Brewster, 1 E. D. Smith, C81; Miller v. Moore, id. G30. And when the object of 
 a statute is to correct an abuse, it is remedial, and the intent of the legislature may 
 be gathered from cotemporaneous circumstances ; and these should govern in 
 case of ambiguity. Fairchild v. Gwynn, 16 Abbot Pr. E. 31. But even remedial 
 statutes are to be deemed prospective in their operation, and are not to be applied 
 to proceedings pending at the time of their enactment, unless a contrary intent 
 appears. Trist v. Cabenas, 18 Abb. Pr. 143. See Litch v. Brotherson, 2-') How. 
 Pr. E. 41 C, and cases there cited. 
 
 The act exempting certain property from levy by execution, to satisfy debts 
 contracted before its passage, is an ex post facio law, and is in conflict with the 
 constitution of the United htatcs. Morse v. Gould, 11 N. Y. E. 281; (overruling 
 Danks v. Quackcnbu;,h, 1 id. 129); Euc v. Alter, 5 Denio, 119.
 
 RETBOSPECTR'E STATUTES. 165 
 
 been, an existing rule governing snc-h Ji transaction; it Avould not 
 then be, in that case, ainle of civil conJuct. The conduct of the 
 past nni8t stand acquitted or condemned; be hnvful or unhuvful 
 when judged by rules -which had existence, at the time the trans- 
 action took place. It -would be monstrous, -were it otherwise. 
 The future alone, can bo called upon to observe the dictates of 
 ne-w rules. It has been justly said, "To establish a rule by -which 
 a person should be required to shape his jx'^f conduct, -would be 
 to legislate an ohs/inlif// ; to grant -wliat -would be an utter ijiipos- 
 sibihty." a 
 
 "But retrospective laws are not only inconsistent v/ith the idea 
 of a la-w as a rule of civil conduct, but they are in many instan- 
 ces, only the exercise of powers which are in their nature strictly 
 judicial, instead of legislative. Such laAvs, when they are only 
 such, look not upon the futiu'e, but upon the past : or in other 
 
 a Smith's Com 291. 
 
 Where au amendment of a statute is made Ly dechiriug it shall be amended so 
 as to read ju a given way, the amondmeut has no retroactive lorce ; the new pro- 
 vision is to be iinderstood as taking effect at the time the amended act would 
 otherwise become the law. Ely v. Holton, 15 N. Y. E. 595. 
 
 The Supreme Court of the United States, I think, have drawn a distinction, 
 which may be regarded as the rule both in England and this country, (except in 
 States that have adopted a constitutional provision prohibitory of such laws,) 
 which is as follows : " Ectrospcctive law-s, which do not imi:)air the obligation ot 
 contracts, or partake of the character of ex post facto laws, are not condemned or 
 forbidden by any part of the constitution of the United States." Satterlee v. 
 Mathewson, 2 Peters, 380. 
 
 For the adjudications upon this subject, in other States, which are in harmony 
 with the cases above cited, see : In Pennsylvania, IMcCabe v. Emerson, G Har. 
 Penn, 111. 
 
 In Maine, Proprietors of Kennebec Purchase v. Laboree and others, 2 Green R. 
 275; Oriental Bank v. Freese, 18 Maine, 109; Aiisten v. Stevens, 24 id. 520; Web- 
 ster V. Cooper, M How. U. S. 11- 504. 
 
 In Vermont, Wires v. Farr, 25 Vermont -41. 
 
 In Connecticut, Plumb v. Lawyer, 21 Conn. 351. 
 
 In Massachusetts, Walter v. Bacon, 8 Mass- 4G8; Davison v. Johonnot, 7 Sltt. 
 389; Patterson v. Philbrook, 9 Mass. 151; Locke v. Dane, id. 360; Calder v. Bull, 
 3 Ball. 391. 
 
 In Mississippi, Boyd v. Barrenger, 23 Miss. 270; Garrett v. Beaumont, 21 id. 
 377; Murray v. Gibson, 15 How. U. S. E. 431. 
 
 In Ohio, Trustees of Cuyahoga v. McKaughcy, 22 Ohio St. E. 152, and cases 
 there cited. 
 
 But in drawing; the precise line between cases that interfere with vested i-ights,
 
 16G EETKOSrECTIVE STATUTES. 
 
 woicls, pionoimce judgment upon acts clone antecedent to their 
 adoption ; and. in this respect, assnnie a judicial power, as contra- 
 distinguished, 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 depending on laws as they existed before the act was 
 passed, by new principles created and applied by the retrospec- 
 II »c act having no existence antecedent to the time of its passage, 
 which then, and not till then, sprang into being." 
 
 But it is not intended to lay down the proposition that the leg- 
 islature cannot under any circumstances pass a mere remedial 
 
 and cases that cTo not, the authorities are abundant, and not entirely in harmony; 
 some of the States having constitutional provisions and regulations in this res- 
 pect, and others not, and it is not deemed to be within the scope of this work, to 
 i-eview the adjudication, and give the various reasons which have controlled the 
 courts in this regard. 
 
 It is, however, a fair conclusion from the view of all the cases, to hold and say, 
 that the legislatures of the several States, have power, excej^t where i^rohibitedby 
 the local constitutions, to enact retrospective statutes in certain cases ; and it 
 belongs to the courts to determine, whether such acts come within the spirit of 
 the constitution which limits the legislative power, and whether a retroactive 
 effect of such statute, interferes with vested rights. That all doubtful provisions 
 of legislative enactment arc for the judiciary to expound and to interpret, is no 
 longer an open question. 
 
 A good illustration of this question arose directly, in this State, ^^pon the stat- 
 utes of 1848 and 1849, for the more effectual protection of the property of married 
 women, which declared that the real and personal property of any female then 
 married, should be her sole and separate property. A legacy had been bequeath- 
 ed to a married woman, and the testator had died before the passing of those 
 statutes, but the legacy had not been reduced to i^ossession before that act took 
 effect. The question presented was, to whom this legacy belonged, whether to 
 the husband, or the wife. Denio, J. said, "The application of this statute to 
 this case, would be a violation of the constitution of this State, which declares, 
 " that no person shall be deprived of life, liberty or property without due process 
 of law." (Const. Ai't. 1, § 6.) Before the act of 1848 took effect the husband had 
 a right to this legacy, subject to certain contingencies which had not haiDpened. 
 By the terms of that act this legacy belonged to the wife, and it was held that the 
 legislature had not the constitutional right to d(>prive the husband of this legacy. 
 Westervelt v. Gregg, 12 N. Y. 202. 
 
 This case perhaps, as well as any other, expresses the spirit of the multitude of 
 adjudications in which it is held that a statute a cannot have retroaction upon 
 vested rights. 
 
 Every statute M-hich takes away or imjiairs a vested right, required under pre-
 
 EX POST FACTO LAWS. 1G7 
 
 act, wliich iu its effect, or by Avay of definitjoi), may have a retro- 
 active operation by way of relation to past events. Such acts of 
 legislation as we have stated, when limited within the approp- 
 riate sphere, may, undoubtedly, be within the legislative power, 
 and such acts have received judicial sanctiou. 
 
 It is sometimes difficult to distii)guisli, if really there be any 
 distinction, between retrospective, and ex i^at fado laws, except 
 that the constitution expressly prohibits the latter, and if the 
 former are not inhibited, it is because there is a hair splitting 
 difference, most difficult to define. In a general, literal sense, an 
 ex iMst facto law, is one passed in regard to an act, after the act is 
 done ; but in its most comprehensive definition, it includes all 
 retrospective laws, or laws governing or controlhng past transac- 
 tions, whether they are of a civil or criminal nature. Laws, how- 
 ever, which mitigate the character or punishment of a crime al- 
 ready committed, though retrospective, may not fall within the 
 prohibition of the constitution, for the}- are in favor of the citizen. 
 Ex post facto laws, it is held, relate only to penal and criminial 
 proceedings, and not to civil proceedings which affect private 
 rights retrospectively.a This is claimed to be the distinction. 
 So that by this distinction, all acts legalizing past proceedings ; 
 all acts of relief, or pardon, or indemnity ; all acts that mitigate the 
 malignity of an offence, or modify tlie rigor of the criminal law, 
 though retrospective; are not in the constitutional sense ex post/ado. 
 a Dash v. Yau Kleck, 7 Jobu. 477. 
 
 vious laws, is retrospective and objectionable on that gronnd. Davis v. OTarrell, 
 4 Greene (Iowa) 1G8. 
 
 An act releasing a portion of the dxities on prize goods captured by private 
 armed vessels, was held not to apply to captures previous to its passage, though 
 the condemnation took place subsequentlj-. Prince v. U. S. 2 Gall. 204. So a 
 statiite concerning the effect of wills upon after acquired lands, was held not to 
 apply to a will previously executed, the testator having died subsequently. Car- 
 rol v. Carrol, IG Howard, 275. 
 
 A statute limiting suits on foreign judgments, was held not to apply to judg- 
 ments recovered before its passage. Murray v. Gibson, 15 How. 421. 
 
 A statute making valid a certificate of a proof of a deed, after a decree rendered 
 iu a court of equity, is void ; it cannot change the then existing rights of the par- 
 ties. Garrett v. Stockton, 7 Humph. 84. 
 
 Although the remedy of a party to a contract may be modified by subsequent 
 statutes, yet a statute which takes away all remedy impairs its obligation. Bruce 
 V. Schuyler, 4 Gilra. 221.
 
 168 EX rOST FACTO LAWS. 
 
 Justice Cliasc divides qx jjost fado laws into four classes, a 
 1st. Eveij law that makes an action done before tlie passing of 
 a law, and wliicli Avas innocent when done criminal, and punishes 
 the action. 2d, Every law that aggravates a crime, or that makes 
 it greater than it was when committed. 3d, Every law that 
 changes the punishment, and inflicts a greater ]ounishment than 
 the law annexed to the crime when committed. 4th, Every law 
 that alters the legal rules of evidence, and receives less or dif- 
 ferent testimony than the law required at the time of the com- 
 mission of the offence in order to convict the offender. 
 
 The provisions of the second article of the new constitution of 
 Missouri, which forbid any priest or clergj^man from teaching or 
 preaching, unless he shall first take "the oath of loyalty" declar- 
 ing that he has never been in armed hostility to the United States 
 &c, &c, that he has never by act or word manifested his adherence 
 to the cause of the enemies of the United States, or his desire 
 for their triumph ; or his sympathy with those engaged in rebel- 
 lion ; that he has never come into or left the state for the purpose 
 of avoiding enrolment or di-aft into the military service ; was held, 
 to be in effect a bill of attainder, and ex jjost facto law. h So too, 
 the act of congress of 2d July, 18G2, providing that after its passage 
 no person should be admitted to the bar of the Supreme Court of 
 the United States, or, after a certain day specified, to the bar of 
 any circuit or district court, or of the court of claims, as an 
 attorney or counsellor, without having first taken the oath prescrib- 
 ed in said act, declaring that the deponent has never voluntarily 
 borne arms against the United States since he has been a citizen 
 thereof; that he has not given aid, &c., to persons engaged in 
 armed hostility thereto ; or sought to exercise any office in hostility 
 thereto, or yielding a voluntary support to any pretended govern- 
 ment within, and hostile to the United States, &c, is within the 
 prohibition of the constitution against bills of attainder, and <x 
 postjacfo. c 
 
 But the following cases, which are put in books, may certainly 
 happen in practice : A man may covenant not to do an act which 
 is lawful, and a statu'.e may be afterv/ards made which compels 
 
 a Calder v. Bull, 3 Dall. 38G. h Cummiiigs v. Missouri 4 Wall. 277. 
 
 cExparte, Garland, id. 333.
 
 TIMLl OF STATUTES TAKING EF^CT. 169 
 
 him to do the act : or, a man may covenant to do an act wliicli is 
 lawful, and by a statute made afterwards, he may be forbidden to 
 do the act ; in both these cases it has been said, the statute re- 
 peals (or rescinds) the covenant, a But this doctrine has been 
 impugned in a latter case, where it was held that the sense of the 
 words of a statute passed subsequently, ought not to be strained, 
 so as to avoid th(5 contract ; to the benefit whereof some person 
 was entitled, at the time the statute was made. /> And in an ac- 
 tion for a penalty, where the defendant had jjaid the duties under 
 a new act discharging the pcnialty on such payment by a given 
 day. Lord Manslicld said : "Here is a right vested, and it is not 
 to be imagined that the Legislature could by general words take 
 it away ; they certainly meant future actions." c 
 
 But these cases (actual or suppositious) do not apply, where, in 
 order to prevent the mischief there contemplated, the statute gives 
 due notice that the law shall not have any Operation till after a 
 definite and extended period, and time is given to bring their ac- 
 tions previously to its commg into operation. On this ground 
 Fowler and Chatterton was decided. There the plaintiif sued in 
 Hilary term, 18-0, on a debt accrued six years before : held that 
 the 9 Geo. 4, c. 14, which came into operation on January 1, 1829, 
 precluded him from recovering on an oral promise to pay the debt 
 made by defendant in Febuary, 1828 ; d because the operation of 
 that act was postponed to give persons time to bring their actions. 
 
 The rule formerly v/as, that when the commencement of an act 
 was not directed to be from any particular time, it took effect 
 from the fn-st 'day of the session in which the act was passed ; 
 which might bo weeks, if not months, before the act received the 
 royal sanction, or even before the bill was brought into parlia- 
 ment. This was an extraordinary instance of the doctrme of 
 relation working gross injustice, as well asbeing full of absurdity. 
 Yet the rule was plainly declared as early as the time of Henry 
 VI, e and uniformly adhered to, though the consequence of it, was 
 sometimes, to render an act mui'der, which would not have been 
 so without such relation./' The case of the Attorney General v. 
 Panter is a strong instance of the application of this rigorous and 
 unjust rale of the common law, even at so late a period as the 
 year 1772. An act for laying a duty on the exportation of rice, 
 ihereafter to he exported, received the royal assent on the 29th of 
 June, 1767, and on the 10th of June of that year, the defendants 
 had exported rice. After the act passed, a duty was demanded upoii 
 the prior exportation, and it was adjudged, in the Irish Court of 
 Exchequer, to be payable. The cause Avas carried by appeal to 
 the British House of Lords, on the ground of the palpable injus- 
 
 a Salk. 19S. h Lord Eavmoud, 1352. 
 
 c 4 Burr, 2-i60. d 6 Bing. 258. 
 
 e 33 H. 6, 18; Bro. 33. /I Lev. 91. 
 29
 
 170 TIME OF STATUTES TAKING EFFECT. 
 
 tice of punisliing the party ior an act innocent and lawful when it 
 was done ; but the decree was affirmed upon the opinion of the 
 twelve judges, tliat the statute by legal relation commenced from 
 the tirst day of the session, a So, in the case of Latless v. Homes,r/ 
 the judges held that they could not take notice of the great hard- 
 ship of the case. The rule, indeed, was so firmly settled, ai;d 
 sanctioned by so many decisions, as to require the interference ol 
 the legislature to control it. Accordingly the stat, 33 Geo. 3, c. 
 13, enacts, that the clerk of the parliament shall endorse on every 
 act the time it receives the royal assent, which shall be the date 
 of its commencement, where no other is provided; thus abolishing 
 the ancient rule, as liable to produce manifest injustice, c and sub- 
 stituting another rule designed to prevent the mischief that a 
 statute should, by any fiction, or relation, have any effect before 
 it was actually passed. 
 
 Although in an act of parliament, it is expressly enacted that 
 it shall commence and take efi'ect from a day named, yet if the 
 royal assent be not obtained until a day subsequent, the provis- 
 ions of a particular section, in its terms prospective, do not take 
 effect till subsequent day. d In Eex v. Justices of Middlesex, p 
 two acts of parliament which passed during the same session, and 
 were to come into operation on the same day, were repugnant to 
 each other, and the question was which was to take effect. (The 
 case of the Attorney General v. The Chelsea Water Works com- 
 pany was cited from 2 Dwarris on Statutes, 675,) Lord Tenterden 
 said, " We are of opinion that the act which last received 
 the royal assent must prevail. Our decision is conformable 
 with the doctrine laid down in the case cited. There it was 
 resolved, that where the proviso of an act of parliament is 
 directly repugnant to the provision of it, the proviso shall stand, 
 and be held a repeal of the purview, as it speaks the last 
 intention of the makers. At the time that resolution was come 
 to, it was not possible to know which of the two acts, passed in 
 the same session, received the royal assent first ; for there was 
 then no endorsement on the roll, of the day on which bills received 
 the royal assent ; and all acts passed in the same session, were 
 considered as having received the royal assent on the same day, 
 and were referred to the first day of the session. Now, however, 
 it is known on what day each bill receives the royal assent by the 
 provisions of stat. 33, Geo. 3, ch. 13. 
 
 There is nevertheless some, and that not inconsiderable hard- 
 ship in the rule as it now stands ; for a statute is to operate from 
 the very day it passes, if the law itself does not appoint the time. 
 
 a Attorney General v. Panter, G Bro. A. C. 553. 6 4 T. E. G60. 
 
 c Words of preamble to 33 Geo. 3, c. 13. 
 
 d Barn v. Oavallo, (in error) 4 Nev. & M. 803. 
 
 e 2 B & A. S18, 2 Bing, N, D, 682,
 
 TIME OF STATUTES TAKING EFFECT. 171 
 
 It is impossible, in the distant parts of the United Kingdom, to 
 have notice of tlie existence of the hiw, until some time after it 
 has passed ; and in America in the wide spread dominion of the 
 United States, "where the same rule is adopted, this inconvenience 
 is strongly felt, a It Avould be no more than reasonable, that the 
 statute should not be deemed to operate upon the persons and 
 property of individuals, or impose pains and penalties for acts 
 done in contravention of it, till such time had elapsed as would 
 enable the party, Avith proper dihgence, to ascertain the existence 
 of a law, of which theri; is now no formal promulgation or publi- 
 cation, ''•■ on the ])rincipl(! of — "/>'' viotle pr(Mjrcssif,r(iJc>de en roison 
 dcs dishniccs.'" Tlu; Cod(! Napoleon, after much discussion and 
 an enlightened consideration of the whole question, adopted the 
 true rule : It declared that laws were binding from the moment 
 their ])romulgatiou could be known : and that the promulgation 
 should be considered as known in the department of the consular 
 (afterwards imperial) residence one day after that promulgation, 
 and in each of the departments of the French Empire, after the 
 expiration of the same space of time, augmented by as many days 
 as there were distanc(\s of tAV en ty leagues between the seat of gov- 
 ernment and the place. — See Conference du Code Civil, Titre Prelim- 
 enaire : de Ja puhlieedion, des cffets and de rapj^tJieafion dcs lois en 
 general. This projet Avas three times revised and essentially alte- 
 red, the first Consul taldng an actiA-e and intelligent part in the 
 deliberations. On the lieduction communique au Tribunal, the 
 I'olloAviug Avere some of the " Observations du Tribunat :" Cet arti- 
 cle donne lieu a la discussion des differents modes de publication des 
 lois, jjour choiser cclui que doit etre j9?'<;>/<?/'e. Le section se prononce 
 pour le mode progressif ccdcule en reason des disiances. Le mode 
 ■progressifestfonde sur la ncdure : ilfcmt rcndre la hi cxecidoire au 
 moment ou on la conncdt, d'c — jjj). 19, 20. 
 
 To illustrate the inconsistency of our doctrine and practice : A 
 prisoner was indicted for maliciously shooting ; the offence was 
 Avitliin a feAv Aveeks after the 39 Geo. 4, c. 37, passed, and before 
 notice of it could have reached the j^lace Avdiere the offence was 
 committed. The judges thought the prisoner could not have been 
 tried if that statute had not passed, and as he could not know of 
 
 a R. V. Bailey, E. aud E. C. C. 1; 1 Euss. C. aud M. 109. 
 
 * " Les lois ne pouvent ohliger sans etre cnnnnes' ; noits 7ious sommes occupes deUi 
 forme de leur promithjation. Elks nepeuvent etre notifiees a chaque Indivklu. On est 
 ^orce de se contenter d'une puhllcUe rclidive, qui, si elle ne peid produire a temps dans 
 clmque cltoyen la connoisance de la loi a laquelle it doit se conformer, suffit au moins pour 
 prevenir tout arbitraire sur le moment ou la loi doit etre executee." — Discours prelimiuaire 
 du premier projot du Code Civil, p, 30, 
 
 In Spain, the written law, " that is, the reading (Jegenda) in which there exists 
 {pace) written instruction and chastisement," is not oljligatory, unless published 
 bv proclamation or edict; then it is universally binding, because all are bound to 
 know or study it.— L. 4, title 1, part 1; 1, 12, t 2, lib. 3, Xov. Bee.
 
 172 TIME OF STATUTES TAKING EFFECT. 
 
 that act, ulthongli strictly it did not excuse him, they thought it 
 right that he should have a pardon, a 
 
 Such is still the operation of the ne^v laic, a later fact, a cir- 
 cumstance of matter s;ibsequent, the law does not allow to extend 
 or amplify an oli'ence, " though laid together with the beginning, 
 it should seem to draw it to a higher nature." (Estimatio iwade- 
 riti delicti ex jMsfrcmo facto mmqiiam crcseit. " The law," says 
 Bacon, " eonstnieth neither penal laws nor penal facts by intend- 
 ment, so as to be aggi-avated by matter subsequent ; but consid- 
 ereth the offence in degree, as it standeth at the time when it is 
 committeth."* Therefore, if a man deliver goods to one to keep, 
 and after retain the same person into his service, who afterwards 
 goeth away with his goods, this is no felony by the statute 21 H. 
 8, because he was no servant at that time." h 
 
 An act of parliament made to correct an eri'or by omission in 
 a former statute of the same session, relates back to the time 
 when the first act passed, and the two must be taken together, as 
 if they were one and the same act, and the first must be read as 
 contaming in itself, in Avords, the amendment supplied by the 
 last ; therefore, goods exported before the second act passed, but 
 only shipped on hoeoxl before the first passed, were held liable to 
 duties subsecpiently imposed on the exportaiion of goods. A case 
 certainly of extreme hardship ; and admitted by the then Chief 
 Baron, c to resemble the Attorney General v. Panter, which, he 
 added, notwithstanding its hardship, is certainly good law. d. But 
 then it should be remembered that the provoking injustice of the 
 former case occasioned that law, however " good," to be altered. 
 The relation in bankruptcy has been greatly curtailed in its extent 
 and operation ; e the relation of statutes, though restrained by the 
 33 Geo. 3, c. 13, is still capable of working extensive mischief and 
 injustice. The mischief, however, is greatly ob\dated, as was be- 
 fore observed, where the .statute provides that the law shall not 
 have any operation till after a definite and extended period ; as 
 was the case with the stat. 9 Geo. 4, c. 14, commonly called Lord 
 Tenterden's act, and the stat. 1 Wm. 4, c. 70, for the more effec- 
 tual administration of justice in England and Wales. 
 
 a Bacon's Maxims, 39, 40. h Thompson, C. B. 
 
 c Atty General V, Pougett, 2 Price 381. d Eden's Bankrupt Law, 2G0. 
 
 e Fowler v. Chatterton, 6 Bing. 203. 
 
 Note 10. — A statute wliich imposes a punishment for acts sf)ecifie(l, which were 
 not, or may not have been punishable when the acts were committed, and for all 
 acts that add new punishment is within the constitutional inhibition against the 
 passage of C.T pos< /ac/o laws. Matter of A. H. Garland, 32 How. U. S. E. 241. So 
 also, a law which makes an act punishable in a manner in which it was not pun- 
 ishable when committed, or which increases the original punishment, is ex pos' 
 fado and void. Shepherd v. The People, 25 N. Y. 406.
 
 TIME OF STATUTES TAKING EFFECT. i73 
 
 By stat. 48 Geo. 4, c. 13G, uliere any bill shall be introduced 
 into any session of parliament, for the continuance of any act 
 ■which Avould expire in such session, and such act shaU have ex- 
 pired before the bill for continuing the same shall have received 
 tlie nnal assent, sucli continuing act shall be deemed to have 
 etlect from the date of the ex])iration of the act intended to be 
 continued, except it shall be ot]ler^vise provided in such continu- 
 ing act. But nothing therein contained shall extend to allect 
 such person with any punishment, })enalty, or forfeiture, by reason 
 of anything done contrary to the provisions of the act continued, 
 between the expiration of the same, and the date at which that 
 continuing the same shall receive the royal assent.
 
 L7 4 KULES OF INTERPRETATION. 
 
 CHAPTER VII. 
 
 GENERAL, QUALIFIED AND PARTICULAR RULES RELATING TO THE 
 CONSTRUCTION OF STATUTES. 
 
 Having enumerated the various kinds of acts of Parliament 
 and distributed them according to the most received and most 
 satisfactory division of statutes,— having investigated minutely 
 their nature, form, parts, qualities, authority, and relation, — it is 
 next proposed to consider the rules for their interpretation. 
 
 The rules of exposition as to grants and pleadings, that " Verba 
 fortius accipiurdur contra j^ro/ere^ifcm /" " Ver/,a aliquid operari de- 
 bent ;" " Verba cum effectu sunt accifyienda ;' Divinatio non interprc- 
 fatio est, quce omnino recedit a litera,'' d'c. , are rules which have no 
 place at all a in acts of Parhament, which are not icords of joarties : 
 neither in devises and wills, upon several reasons. Words of par- 
 ties in deeds or grants are taken most strongly against the con- 
 tractor, because men are supposed sufficiently careful not to pre- 
 judice their own interests by the too extensive meaning of their 
 words. Acts of Parhament are not within the reason of the rales. 
 The case is the same wdth some of the reasons for those maxims 
 which obtain with respect to wills. It is said that the last will of 
 a party is to be favorably construed, because the testator is inop'ri 
 consilii. "This we cannot say of the legislature," obserbed Lord 
 Tenterden, (when lamenting that the last bankrupt act- should 
 have been framed with so little attention to the consequences of 
 of some of its provisions,) "but we may say that it is 'rnarjnas 
 inter opes inops' " h 
 
 The constraction of a statute indeed, like the operation of a 
 devise, depends upon the apparent intention of the maker, to be 
 collected either from the particular provision or the general con- 
 text ; acts of Parhament and wills ought to be alike construed, 
 according to the intentions of the parties that make them ; so far, 
 instead of a dissimilarity, there is a resemblance. 
 
 The rules before mentioned being rules of some strictness and 
 i-igour, are qualified by other rules of more ecpity and Immanity ; 
 as that " Verba generalia restringuntur ad, iLubilitatem personce vel, ad 
 aptitudinem rei ;" " Verba ita sunt intelligenda ut res magnus valeat 
 guam pereat .-" "Ea est accipienda interpret atio, qiice vitio careat ;" 
 (i. e. which does not intend a wrong,) and these latter and more 
 
 a Bacon's Maxims, 01. & 9 B. .t C 738.
 
 RULES OF INTERrRETATION. 176 
 
 beuiguant rules of constniction seem to admit a more extended 
 api)lication. " For all words," says Lord Bacon, " whether they be 
 in deeds or statutes, or otherwise, if they be general, and not ex- 
 [)ress or precise, shall be restruined unto the fitness of the matter 
 ov person." As in the statute; of wrecks, the provision that goods 
 ivrecked, if any live domestic ci-euture remains in a vessel, shall 
 be preserved to the use of the owner who shall make his claim 
 within the space of a year, doth not extend to fresh victuals or 
 perishable commodities ; for, "in these and like cases, general 
 words may be taken to a foreign intent, but never to an unreason- 
 able, or impertinent, or repugnant intent. "a 
 
 No doubt certain fundamental rules founded u})on the universal 
 ])rineiples of criticism, and the grammatical sense and meaning of 
 words, must be alike, applica])le to the exposition of deeds, grants 
 and other written instruments, and to the construction of wills and 
 statutes. 
 
 But the philosophical inquirer into the theory of laws, maj', it 
 lias been contended, ascend still higher, and extend his views be- 
 yond the most comprehensive canons of verbal criticism. " It is 
 not the words of the law," saj's the ancient Plowdeu, " but the in- 
 ternal sense of it, that makes the law : the letter of the law is the 
 body ; the sensp and reason of the law is the soul." A Every stat- 
 ute ought to be expounded, not according to the letter, but accord- 
 ing to the meaning : qui hcerct in litera, hcx'ret in cortlce." c The 
 enlarged interpretation of a law, will penetrate the soul and spirit 
 ol" a law, and reach the intent and meaning of a legislator. 
 
 Is it then, a lex Icr/nm, a geneval rule ; an universal maxim ; that 
 in all cases, the design and intent of the fi'amcr, when it can be 
 indisputably ascertained, shall prevail: quod verha inttutioui in- 
 .srrrire ilcJtenf ? If such be the case, as a maxim of universal juris- 
 prudence it will be of constant application ; it will extend, under 
 [>artial motlilications, to the interpretation of all instruments ; 
 wills, deeds and grants, equally with the construction of statutes. 
 The subject deserves a brief and compendious examination, and 
 will repay inquiry ; for if ascertained to be well founded, it estab- 
 lishes a principle; it ascends to causes; "djjh'nius et mdias cd 
 }n'terc foutes, quani sedari rivulos.'" If the doctrine be unsound, 
 it ought to be exploded ; if it be only partially true, it should be 
 ([ualilied ; and its just limits require to be discovered, defined, and 
 ilistinguished. 
 
 It may be advanced then, as a proposition, more guarded than 
 the alleged governing maxim — "the intention shall prevail ;" that 
 efVect ought to be given to the intention of the parties to instru- 
 ments, or to the object, spirit, and meaning of an enactment. 
 
 To take first, the case of a will. The intention of a testator, it 
 
 a Bacon's Maxims, p 52. h Eystou v. Studd, Plowd. 
 
 c 11 Rep. 73.
 
 17G EULES OF DsTERP;RETATION. 
 
 is always held, is to be tlie only guide iii the iuterpretation of 
 Ills will ; and that intention when it can be ascertained, must 
 prevail. "Where the words used in a will were " all my personal 
 estate," but it was clear the testator meant to give the real prop- 
 erty over which he had an absolute personal ])ower of disposi- 
 tion, the freehold has passed by that misdescription, rt So, 
 where it clearly appeared a testator's intention to bequeath his 
 leaseholds and mere chattel interests, under the description of 
 his " real estates ;" such intention was carried into effect, b Nay, 
 where the intention of a testator is clear and obvious, it has been 
 held that it will control the legal operation even of technical 
 words. 
 
 E confra, whore the words of a will, aided by evidence of the 
 material facts of the case, are insufficient to determine the testa- 
 tor's meaning, the wiU will be void for uncertainty, c 
 
 In the construction of deeds also, although tliej-e greater regu- 
 larity and strictness are required, such exposition should, if pos- 
 sible, be made, as is most agreeable to the intention of the 
 grantor. " The words," said Chief Justice WiUs, " are not the 
 principal things in a deed, but the intent and design of the grantor. 
 These are the rules laid down by PloAvdcn, Coke, and Hale ; and 
 the law commends the astidia of the jiidges, in construing the 
 words in such a manner as shall best answer the intent." d 
 " Those judges," it is said in the Earl of Clanricarde's case, " are 
 exceedingly commended, who are curious, and almost subtlo^ to 
 invent reasons and means, to make acts according to the just 
 intent of the parties." e 
 
 So, in the construction of instruments in general, if the mean- 
 mg can be coUected, the courts will give full effect to the inten- 
 tions of the parties. And any words by which the intention of 
 the parties can appear, are held sufficient, however incorrect and 
 ungTammatically expressed, if the meaning be clear. Thus, 
 where a note had the words : " I promise not to pay," the court 
 held it be a promisory note./ Where the condition, of the bond, 
 was made void upon certain terms by the words of the condition, 
 the court held that they must be taken in the same sense, as if 
 the condition had been, that the bond itself should be void. <i 
 Where in a bargain and sale, the words " hath granted" were 
 found without a nominative case, the court supplie'd the grantor, 
 and this holding was affirmed in the House of Lords, k In a 
 
 a 11 East, 240 ; IG East, 221 ; G Ad. &E. 1C7 ; id. 180. 
 h 1 Mylne &K. 57l"; 2 Euss. & M. 54G. 
 
 c "Wif^ram's Apijlication of Extrinsic Evidence to the Interpretation of V.'llls, 
 Proposition G, p. 83. 
 d In Donne v. Parkhurst, 3 Atk. 13G. 
 
 e Hob. 277. /Cayley on Bills, p. 6. 
 
 rf 2 Saoind. 78, h 10 Mod. 40.
 
 QUALIFIED INTERmETATION. 177 
 
 recent case, the court supplied after the word " thousand, " the 
 immensely material word "pounds." a 
 
 I'J. roidiu, the courts have constantly rejected clauses, of which 
 they were unable to ascertain the meaning, b In Doe dem Wynd- 
 ham V. Carew, Lord Denman said, " The court is not bound to 
 find out a meaning for a proviso framed as this is." c This is, 
 where the words are insensible, and the purpose cannot be col- 
 lected. AVhere the real intention can bo ascertained from the 
 context, every intendment is made to give it eftect. 
 
 As regards contracts, the Digest says, "/?i convention ihus, con- 
 trahcnliioii voli'itlas, 'jxtlius qnaiii vcrha, spedarijAacint.'" d "There 
 are certain general rules t)f interpretation," says Story, treating 
 of the conflict of laws, " recognized l)y all nations ; which form 
 the basis of all reasonings on the subject of contracts. The ob- 
 ject is to ascertain the real intention of the parties in their stipu- 
 lations ; and when these arc silent or ambiguous, to ascertain 
 what is the true sense of the words used, and what ought to be 
 implied, in order to give them their true force and efiect." e 
 
 If the full and entire intention of the parties docs not appear 
 from the words of the contract, and if the contract can be inter- 
 preted by any custom or usage of the place where it is made 
 (custom of the country) that course is to he adopted : " Scqiiamur 
 quod in rcgione, in qua actum est, frcqiientur." f The same where 
 it can be construed by the usage of trade, g Indeed " in contrac- 
 tibus tacite veniunt ca, quce sunt moris ct consuctudhus" h Thus if 
 a tenant is, by custom, to have the outgoing or waygoing crop,_ 
 he will bo entitled to it, although not expressed in the lease, i 
 And if a lease bo entirely silent as to the time of the tenant's 
 quitting the premises, the custom of the country will fix it.,/ 
 
 It is in order to discover the intention, and then, upon the 
 pratical notion, that all writings tacitly refer to the existing cii'- 
 cumstances under which they are made, that.coiu'ts of law admit 
 evidence of particular customs and usages in aid of the interpre- 
 tation of written instruments, whether ancient or modern, when- 
 ever from the nature of the case a knoAvledgc of such customs 
 and usages is necessary to a right understanding of the instru- 
 ment k. The law, it is said, is not so unreasonable as to deny to 
 tho reader of any instrument the same light which the writer en- 
 joyed. I 
 
 a 8 B. & C. 5G8. h i M. & S. 2Go. 
 
 2 Q. B. Eep. 317. d Dig. Lib. 50, tit. IG, 1. 219 
 e Story on Conflict of Laws, 22G. / Dig. Lib. 50, tit. 17, 1. 3-i. 
 rj Spiccr V. Cooper, 1 Q. B. Rep. 428. 
 
 h Totbier Oblig., n. 95, Merlin Eepertorie Couveutiou, G7. 
 
 i Wigglcsworth v. Dallison, Dougl. Eep. 201, 207. 
 
 j Webb. V. Plomcr, 2 B. Sc A. 7-lG. A; 1 Phill. on Evidence, 558. 
 
 1 "Wigram, Prop. 5, pp. 02, 71. 
 
 23
 
 178 QUiVLIFIED INTEEPEETATION. 
 
 It is on the same ground, tliat, in construing a will, it must 
 always be remembered, that the words of a testator, like those 
 of every other person, tacitly refer to the circumstances, by which 
 at the time of expressing himself, he his surrounded. Hence it is, 
 that, for the purpose of determining the object of a testator's 
 bounty, or the subject of disposition, or the quantity of interest 
 intended to be given by the will, a court may inquire into every 
 material fact relating to the person who claims to be interested 
 under the will, and to the property which is claimed as the sub- 
 ject of disposition, and to the circumstances of the testator, and 
 of his family and affairs. But still the object and governing 
 principle is to discover the intention, with all aids. 
 
 A court is bound to apply itself with all diligence and attention 
 to find the meaning of a testator, if it can possibly be found, 
 however difficult and obscure. But if, after every effort to find 
 that meaning, it becomes impossible to solve the difficulty and 
 dispel the obscurity ; if no judicial certainty can be obtained of 
 his real meaning, then the court is not to supply a meaning by 
 conjecture, or to adopt an arbitrary meaning for the purpose of 
 gi\ing some effect to unmeaning and ambiguous clauses a. In the 
 words of Wigram, V. C, in his admirable work on Extrinsic Evi- 
 dence, " the court is not to allow conjectural interpretation to 
 usurp the place of judicial exposition." These remarks are cited 
 to establish and to iUustrate the general rules of construction, for 
 they will be found equally apj^licable to the interpretation of 
 Btatutes. 
 
 " In applying rules for interpreting statutes to questions on the 
 effect of an enactment, Ave can never, says Vatell, safely lose sight 
 of its object. That must be the truest exposition of a law, which 
 best harmonises with its design, its objects, and its general struc- 
 ture." i 
 
 To a quahfied extent, and with certain restrictions as to the 
 use of astuteness and the exercise of invention, (which had better 
 not be applied to acts of Parliament) the observations before 
 cited as to the construction of deeds and wills, hold good in the 
 construction of statutes. There, also, the great object of the 
 mles and maxims of interpretation is to discover the true inten- 
 tion of the law ; and whenever that intention can be indubitably 
 ascertained from allowed signs and by admitted means, courts are 
 bound to give it effect, whatever may be their opinion of its wis- 
 dom or policy. "Whatever doubts I may have in my own breast," 
 said Lord Mansfield, in the case of Pray v. Edie, c " Avith respect 
 to the policy and expediency of this law, yet as long as it continues 
 in force, I am bound to see it executed according to its meaning ; 
 and however I may think that this is not a commendable defence 
 
 a Per Lord Abinger, C. B. 1 C, M. & R. 
 
 h Vatell, Ek. 2. cb. 17, § 285. c 1 T. K. 313,
 
 QUALIFIED INl-ERrHETATION. 179 
 
 iu the underwriter, yd tliat is a laatter for his coni5iderati(jn, and 
 not for mine. Let us consider, ^vhat are the mischiefs intended 
 to be remedied, and the provisions of the act for remedying them." 
 
 The real intention, too, when collected with certainty, will al- 
 ways, in statiites, prevail over the literal sense of terms. For 
 " every statute oufi;ht to be expounded, not according to the letter 
 but according to the meaning." a When the stat. 18 Edw. 1, (/ida 
 ciiijh'orcfi fcrraridn, S:c., HnyH; Everyman shall hold of the lord 
 irciYiimonut sccmidnm qncDitHalem icrroi; this shall be consti-ued 
 according to the value, ior so was the intent, b Hence, too, son 
 fait deme,s)ic was interjireted son fort demesne ; and perdra la chose 
 hath ever been rendered amif tot locum, c 
 
 "Whenever the intention which the makers of a statute enter- 
 tained can bo discovered by tit signs, it ought to be followed in 
 its construction, in a course consonant to reason and discretion." 
 What are to l)c the guides in such course will lie considered here- 
 after, \n\i it is proposed at present, to state and to illustrate the 
 subordinate branches of tlie general rul(>. 
 
 A thing, which is Avithin the object, spirit, and meaning, of a stat- 
 ute, is as much within the statute, as if it were within the letter, d ' 
 
 a Sec post, Stat. Glonc. cap. 5. ?^ 11 Ecp. 73. 
 
 c PI. Com. 10u7 b. d Zoucli and Stowell, Plow. 366 ; 10 Eep. 101. 
 
 Note 1.-^ In a previous chapter* we appended by -way of notes, certain gen- 
 eral maxims of interpretation, compiled from distinguished and acknowledged 
 authors, and from Americaii judicial authority. It is seen, that the present chap- 
 ter also treats somewhat of general rules of interpretation, as well as such as are 
 qualified and particular ; and as we did not in the iirevious notes exhaust the 
 American view of construction, we propose to follow our author still further with 
 our general rules, as well as such as are qualified and particular. 
 
 The best rule by which to arrive at the meaning and intention of a law, is to 
 abide by the words which the lawmaker hasiised. U. S. v. Bright, Brightly, R. Q. 
 same V. Warner, 5 McLean ITS; Nicholson v. U. S. Devercavix C. C. E. lo8. If 
 from the view of the whole law, the intent is diff"ereut from the whole literal ini" 
 port of some of its terms, the intent is to prevail. Brown v. Wright, 1 Green, 2-10. 
 
 Words, in a statrite are never to be construed as unmeaning, and surplusage if 
 a construction can be legitimately found which will give force to and preserve all 
 the words in the act. Leversee v. Eeyuolds 13, Iowa 310; Hartford Bridge Co. 
 V. Union Ferry, 29 Conn. 210. 
 
 Doubtful words, if not scientific or technical, are to be interpreted according 
 to their familiar iise and acceptation. The Fashion v. Ward 6 McLean 152. 
 If they are found in a general statute they may be construed with reference to 
 general iisage ; and when a statute is applicable to a particular place only, such 
 doubtful words may be interpreted by the i;sage at that place. Love v. Hinch- 
 loy, 1 Abbott 430. 
 
 In the construction of a doubtful law the cotemperaneous constmction of per- 
 sons appointed to execute it, is entitled to great respect. Edward v. Darby, 12 
 Wheat. 210 ; XJ. S. v. The recorder, 1 Blatchford C. C. E. 218. 
 
 * Chap. 5.
 
 ISO QU^VLIFIED INTEEPEETATION. 
 
 By the 4 H. 7, c. 24, it is provided, that the right of a person, 
 who was -within the age of twenty-one years at the time of levy- 
 ing a line, shall not be thereby bound ; yet, if the disseissee die, 
 leaving a wiio with child, and the disseissor levy a fine, and after- 
 wards the ciiild be born, the child, although not within the letter 
 of the fttakite, (because, as the age of a child begins only from its 
 birth, it cannot be said to have been, at the time the fine was 
 levied, tcithia ihe arje of i went y -one years,) is within the meaning ; 
 and his right sliall be saved. 
 
 The words of 2 Westm. 2, c. 23, are in casu quando vir amisitper 
 defaltam tenementum quod j'ldt jus uxoris succ, ctr. Only a loss by 
 default of the husband is within the letter of the statute ; but the 
 construction has been, a that a woman shall have a right of cid 
 in vita, although the loss was by default of both herself and hus- 
 band ; because, as she is presumed to have acted under the coer- 
 cion of her husband, this case is within the intention of the makers 
 of the statute. 
 
 The stat. 35 Geo. 3, c. 101, gave justices jurisdiction to suspend 
 an order of removal made by them, on account of sickness, &c., 
 of the pauper, "in case any poor person shall be brought before 
 them." etc., the object of which remedial law would have been en- 
 tirely frustrated by a literal construction of the words of it. The 
 court, therefore, gave effect to the plain intention, by an imdis- 
 guised departui-e'from the strict letter of the act, and construed 
 tlie words to mean " in case the question concerning the removal 
 of any j)oor person shall be brought, &c." h 
 
 A thing which is in the letter of a statute, is not within the 
 statute, unless it be within the intention of the makers, c 
 
 The statute of Maiibridge, c. 4, prohibits generally the driving 
 of a distress taken in one county, into another. It has however 
 been adjudged, that if land holden of a manor in one county, lie 
 in another county, the lord may distrain upon the land, and drive 
 the distress into the county where the manor lies ; for as it woiild 
 be inconvenient and a great loss to the lord, if he could not drive 
 the distress to his manor, d this case, although Avithin the letter, 
 is not within the meaning of the statute. And this decision, 
 further considered, will every way be supported, as agreeable to 
 right reason. For the tenant, by doing suit and service to the 
 manor, knows where the pound i's, to give his beasts sustenance ; 
 and further knows where to have his replevy : so that this case 
 is out of the mischief intended to be remedied. 
 
 The stat. Westm. 2, c. 12, gave damages to an appeUee upon 
 his acquittal ; but if his hfe was never in jeopardy, (by reason of 
 erroneous process or otherwise), held, that though this be within 
 
 a Plo-n-den 57. l> Kexis Evcrdon 5 Eust., 11. 101, 
 
 c Bac. Abr. tit. Statute 1. d 2 Inst. 107.
 
 QUALIFIED INTELrPiETATION. 181 
 
 the letter of the law, yet it is out of the meaning, and the defend- 
 ant shall recover no damages, a 
 
 It will be rememl)ered, that in a former luirt of this work, under 
 the head of " Clauses how controlled l>y clauses," " Prior Acts by 
 subsequent acts," the case of AViUiams and Pritchard was cited, 
 to this etl'ect ; that where it is manifestly the intention of the leg- 
 islature that a subsequent act of parliament shall not control the 
 provisions of a former act, the subsequent act shall not have such 
 operation, even though tlie words of it, t:dven strictly and gi-am- 
 matically, Avould repeal the foinieraet. - Jn Jiro. Tit. Purhament, 
 52, "where a statute is, that the merchant shull import bullion ol 
 two marks for eveiy saek of wool exported ; and then unother 
 statute was made that the merchant should not be charged ex- 
 cept for the ancient custom, this does not repeal the first statute. 
 (Vide Causain, 4 K 4, 12.)" And the reason is, that though the 
 words would have that operation per se, it clearly was not the in- 
 tent of the legislature that the act should have that efiect. The 
 principal case itself, of AVilhams v. Pritchard, h decided that the 
 land-tax act 27 Geo. ;}, though the Avords were sufficiently large 
 for the purpose, yet should not, (because it could not have been 
 intended that it should) repeal the provisions of an act 7 Geo. o, 
 which exempted certain lands embanked from the Thames fi'om 
 land tax. t 
 
 It thus manifestly appears, that in the interpretation of all in- 
 struments, whether wills, deeds, contracts and agreements, oi 
 statutes, a very great desire is felt, and constant endeavors used, 
 to ascertain and to give eit'ect to, the intention of their makers 
 and framers. As applied to the construction of statutes, the doc- 
 trine is advisedly not enounced in the terms commonly employed, 
 that " the intention must prevail." For over what, shall it be said 
 the intention is to prevail ? Over the declared sense of the legis- 
 lature ? The presumed meaning over the expressed sense ! That 
 is siu-ely impossible. The rule will it is apprehended, be more 
 correctly stated in the guarded terms : — That effect shall be given 
 to the intention, whenever such intention can be indubitably as- 
 certained by permitted legal means. 
 
 And what are the allowed means, the recognized signs, by 
 which the interpreters of statutes are to explore the intentions of 
 the legislature? Suppose it gi-anted, that the primary object of 
 construction is to ascertain the sense and intention of the law- 
 
 a 2 Inst. 386, citing 9 H, o, 2. hi T. E. 2. 
 
 Note 2. — An alteration in the phraseology, or the omission or addition of words 
 in the revision of statutes, does not necessarily alter the construction of the act, 
 or imply an intention to do so. Such intent, must be evident, or the change in 
 language be palpable, before the courts Mill hold the coustructiou to be changed 
 Crowell V. Crane, 7 Barb. 191.
 
 182 QUALIFIED INTEEPEETATION. 
 
 maker, and the spiiit and meaning of the law, it remains to ascer- 
 tain how are the intention and meaning to be collected. 
 
 In the construction of a will, the first C[uestion asked is, "What 
 was the intention of the testator ? The second must ahvays be : 
 Has he used proper language to carry his intentions into efiect ? 
 The intention of a testator, is to be collected from the words em- 
 ployed by himself, in his wiU. No surmise or conjecture of any 
 object which the testator may be supposed to have had in view, 
 can be alloAved to have any weight in the construction of his will ; 
 imless such object can be ascertained from the plain language of 
 the will itself. And not only ought the courts to look to the words 
 of the will alone, to determine the operation and effect of a devise, 
 l)ut they ought to disregard altogether the legal consequences 
 which may follow their construction. 
 
 The judgment of a court, in expounding a Avill should be sim- 
 ply declaratory of what is in the instrument, a At the same time 
 Courts of Law, though precluded from ascribing to a testator, 
 any intention not expressed in his will, admit their obhgation to 
 give effect to every intention which the will, i^roperly expounded, 
 contains. The cjuestion in expounding a will, is not what the 
 testator meant, as distinguished from what his words express, bvit 
 simply, what is the meaning of the words. 
 
 In enforcement of this doctrine, Parke, B. said, in Doe dem. 
 GwiUim :b "It is often extremely difficult to say what the actual 
 intent of a testator was. The court is to ascertain, not what the 
 testator actually intended, but what is the meaning of the words 
 he has used. It must l)e often matter of mere conjecture what 
 he actually meant to be done, but there can be no doubt, what- 
 ever, w'hat is the meaning of tlie words he has used." The doc- 
 trine was admitted and extended by Lord Denman in Ptickman v. 
 Carstairs, in which case, the Chief Justice said, " The question 
 in this and other cases of construction of written instruments is, 
 not what w^as the intention of the parties, but what is the mean- 
 ing of the words they have used." c 
 
 In the exposition of a statute, the intention of the Legislature 
 may be discovered from different signs ; but as a leading clue to 
 construction to be made, it is to be collected fi'om the words used. 
 And while, as before stated it is a fundamental maxim that effect 
 ought to be given to the intention and object of the framers, it 
 must now be added, in order to give such rule its full significa- 
 ation ; that it must be such an intention as the legislature have 
 used fit words to express. "Although the spirit of an instru- 
 ment," says Story, " is to be regarded no less than its letter, yei 
 the spirit is to be collected from the letter. •' It would be dan- 
 
 a Wigram's Examination of Rules as to Extrinsic Evidence, Introd. p. 9. 
 
 b 5B.&A. 12d. c lb. G63. 
 
 Note 3. — It is only in cases where the meaning of a statute is doubtful, that
 
 QUALIFIED INTERI'RETATION. 183 
 
 gerous in the extreme to infer from extrinsic circumstances, that 
 a case, for which the words expressly provide, shall be exempted 
 from their operation, &c." a 
 
 To " try out tlie ri^dit intendment of a law," Lord Coke's usual 
 course is, first to consider the trae import of the words them- 
 selves, and then to refer to the old books and authors that wrote 
 soon after the passing of the law. And this, he says, is bencdicla 
 expositio ; a good and sound construction ; when our ancient 
 authors (text writers) and our year books (reportsj, together witli 
 constant experience (practice), do agree. /> ' 
 
 It is this view, and chiefly, if not solely, with the object of dis- 
 covering, if possible, the intention of the legislators, that, when 
 the words of an act are obscure or douljtful, considerable stress 
 is laid upon the hglit in which it was received and held by the 
 
 a Story on the Conflict of Laws, lulrod. Remarks, p. 10. 
 b 2 Inst. 11, 136, 181. » 
 
 courts are aiatborized to indulge in conjectures as to the intention of the legisla- 
 ture, or to look to consequences in the construction of the law. When the mean- 
 ing is plain and unambiguous the act must be carried into effect according to its 
 language, or the courts would be assuming legislative authority ;* and it is not for 
 the court to say as to such clear langur.ge, that it embraces cases not described, 
 because no reason is seen why they were not included. Scott v, Ileid, 10 Pet. 5:^-1. 
 
 Note 4. — The best rule of interpretation to be adapted by the courts, is, to 
 ascertain the meaning of the legislature from the words used in a statute, and the 
 subject matter to which it relates, and to restrain its operation within narrower 
 limits than its words import, if satisfied that the literal meaning would extend it 
 to cases which the legislature never designed to include. Brewer v. Blougher, 
 UPet. 178." 
 
 Note 5. — If by the words of a statute the intention of the legislature be improba- 
 ble, the court must then giver it construction. The Hunter, Peters, C, C. Pi. 
 
 If, in a statute, there be a mistake ai:)pareut on its face, it may be corrected by 
 other language in the act itself, and such mistake will not be fatal ; nor wiU any 
 misnomer of a person named in the act be fatal, if the person really intended can 
 be collected from the terms of the act itself. Blanchard v. Sprague, 3 Sumner, 279 . 
 But where the descriptive words constitute the very essence of the act, unless the 
 description be so clear and accurate as to refer to the particular object intended, 
 and bo incapable of being applied to anj' other, the mistake will be fatal. Id. 
 
 Statutes that are apparentlj' in conflict, should be so construed that both may 
 stand if possible. Johnson v. Byrd, Hempstead R. i34, and they are to be recon- 
 ciled so far as they may be on any fair hypothesis, and validity given to each of 
 them, if it can be, and is necessary to conform to usages under them, or to pre- 
 serve titles to property undistributed. Beals v. Hale, 4 How. U. S. R. 37. 
 
 The best, safest, and most reasonable, policy, in the American judicial depart- 
 ments, is, to adopt a liberal construction for statutes, and a strict construction oJ 
 constitutional provisions. 
 
 » 2 Paiue, 584.
 
 IS-i QUALIFIED INTERPEETATION. 
 
 contemporary members of tlie i^rof ession ; "conlcmjwranca cxpositio 
 est/ortissima in lege.'' Great regard, says Lord Coke, " ought, in 
 construing a statute, to be paid to the construction which the 
 sages of the hrw, who hved about the time, or soon after it was 
 made, put upon it ; because they were best able to judge of the 
 hitentions of tlie makers at the time when the haw was made." 
 
 In the exposition of a statute then, the intention of a legislator 
 may be discovered from different signs. As a primary rule it is 
 to he collected from the words ; when the words are not explicit, 
 it is to be gathered from the occasion and necessity of the law, 
 the defect in the former law and the designed remedy ; being 
 the causes which moved the legislature to enact it. But "in arriv- 
 ing at a conclusion from these last mentioned premises, the gi-eat- 
 est care and circumspection, and the exercise of the soundest 
 judicial discretion, are reciuired ; an attention, it will be seen, 
 directed not only to the pro])er application of the rule, but to the 
 reason upon which the rule is founded. 
 
 The rides by which the sages of the law, according to Plowden,a 
 have ever been guided in searching for the intention of the Legis- 
 lature, are maxims of sound interpretation, which have been ac- 
 cumulated by the experience, and ratified by the approbation of 
 ages. The resolutions of the Barons of the Exchequer in Hey- 
 don's case were the following : — h 
 
 " For the sure and true interpretation of all statutes in gen- 
 eral, be they penal or beneficial, restrictive or enlarging of the 
 common law, four things are to be discerned and considered : — 
 
 " 1. What was the common law before the making of the act ? 
 
 " 2. What was the mischief and defect against which the com- 
 mon law did not provide ? 
 
 " 3. What remedy the parliament hath resolved and appointed 
 to cure the disease of the commonwealth ? 
 
 " And 4thly, the true reason of the remedy. •"' 
 
 " It was then held to be the duty of the judges at all times, to 
 make such construction as should suppress the mischief and ad- 
 vance the remedy ; putting down all subtle inventions and eva- 
 sions for continuance of the mischief, et pro j>rivato commodo ; 
 and adding force and life to the cure and remedy, according to 
 the true intent of the makers of the act, jjro bono puUico'' 
 
 a Plowd. Eep. p. 205. h 3 Eep. 7. 
 
 Note G. — It is the duty of courts so to construe statutes, as to meet the mis- 
 chief; to advance the remedy, and not to violate fundamental princiiDles. Hart 
 V. Cleis, 8 John. 44. 
 
 In this State the rule is, to read statutes accordiuf? to the most natural and obvi- 
 ous import of the language, without resorting to subtle and forced construction for 
 the purpose of cither limiting or extending their operation. Waller v. Harris, 
 20 WeDd.5Gl-2.
 
 QUALIFIED INTERPRETATION. 185 
 
 Nor is this an antiquated doctrine : it is recognized and acted 
 upon in modern cases. In Lyde v. Bernard, a Parke, B., said : 
 " 1 admit that Avords may be construed in a sense different from 
 their ordinary one when the context recpiircs it, or wlien the act 
 is intended to remedy some existing mischief, and such a con- 
 struction IS required to render the remedy ellectual For we must 
 always constnie an act so as to suppress the mischief and advance 
 the remedy." 
 
 To guard against misconception, it becomes necessary to ob- 
 serve in this place, that the eidarged inter})retation of statutes, — 
 " to apply the remedy to the mischief;" said by Lord Coke "to 
 have been ever the practice of the ancient sages of the law ;" ex- 
 pounding a statute so as to give a right of action contrary to the 
 letter of the enactment, is not now admitted ; at least, it is said 
 such principles of interpretation are applicable to old statues 
 only, which were shortly worded ; a topic treated hereafter. 
 
 First in importance, according to these able and experienced 
 judges, is the consideration of what was the rule at the common 
 law. " To know what the common law was, before the making of 
 a statute, whereby it may be seen wh(?ther the statute be intro- 
 ductory of a new law, or only affirmative of the common law, is 
 the very lock and key to set open the windows of the statute." h 
 
 Further, as a rale 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 tlian the case absolutely required, 
 The law rather infers that the act did not intend to make any al- 
 teration, other than what is specified, and hesides what has beer 
 plainly pronounced ; for if tlio parliament had had that design, i1 
 is natui'ally 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 statute to approach 
 as near as they could, to the reason of the common law. c The 
 best interpretation of a statute, say other cases, is to constnie il 
 as near to the rule and reason of the common law as may be, and 
 
 rt 1 M. & W. 113. h 2 Inst. 301 ; 3 Eep. 31 ; 13 Hob. 83. 
 
 c Plowd. 365. 
 
 Note 7. — The same rule of iuterpretatiou is adopted by our courts, federal and 
 state ; reference is bad to the common law in force at the time of their passage. 
 Mayo V. Wilson, 1 New Hamp. 55; How v. Peckham, G How. Pr. E. 229; Yau 
 Home V. Dorrance, 2 Dall. 316; Rice v. M. & N. AV. R. R. Co., 1 Blatch 359; 
 Talbot V. Simpson, Peters C. C. R. 188. 
 
 Chancellor Kent says, " this has been the language of courts in every age, and 
 when we consider the constant, vehement and exalted 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." 
 24
 
 186 QUALIFIED INTERniETATION. 
 
 by the course, wliicli that observes in other cases, a Such, m- 
 deed, has been the language of the courts in every age ; and when 
 we consider the constant, vehement, and exalted 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, h 
 
 By the stat. de donis it was enacted, that a line levied of entailed 
 lands, "ipsojnrre sit nidlus ; " yet the construction was, that such 
 line should not be a nullity, but only a discontinuance ; because, 
 at the common law, if a bishop, seised in right of his church, or 
 a husband in right of his wife, had aliened by a fine, it was only 
 a discontinuance, c 
 
 Though the assignee of tenant by courtesy or dower, is within 
 the letter of the stat. of Gloucester, c. 5, for he holdeth in some 
 manner for life, and the words are oii en aider maner a terme de 
 vie ; yet no action of waste shall be brought by the heir against 
 the assignee, but only against the tenant by courtesy or dower, 
 these being the sole persons against whom it lay at the common 
 law, cZ 
 
 When a statute alters the common law, the meaning shall not 
 be strained beyond the words, except in cases of public utility, 
 when the end of the act appears to be larger than the enacting 
 words. 
 
 The stat. of Westmr. 1, c. 20, de malefactorihus in parcis et vivo- 
 riis, shall not be extended to forests, because this act is in restraint 
 of the common law. 
 
 If a statute make use of a word, the meaning of which is well 
 known, and has certain definite sense at the common law, the word 
 shall be expounded and received in the same sense in which it is 
 understood at the common law. e Thus, the term "cottages" 
 (which is used in stat. 31 EHz. c. 7,) has the same signification 
 there, as it had at the common law, and as is applied to it in Do- 
 mesday Book. /' 
 
 Secondly, The intention of the makers of a statute is some- 
 times to be discovered fi'om the cause or necessity of making the 
 act : hence, the direction to inquire into the mischief against 
 which the common law had not pro\ided. Thus, in Hey don's 
 case, the common law was, that religious and ecclesiastical per- 
 sons might have made leases for as many years as they pleased ; 
 the mischief was, that when they perceived their houses would 
 be dissolved, they made long and unreasonable leases. Before 
 the first Marriage Act, 26 Geo. 2, c. 33, the mischief was, that 
 
 a IT. Wms. 252 ; 2 Inst. 148, 301 ; 1 Sand. 240. 
 
 h 1 Kent's Comm. on Laws of America, 434. 
 
 3 Kep. 83 ; the case of Fines, Hob. 97. d 2 Inst. 300. 
 
 e G Mod. 143. f 2 Inst. 736.
 
 QUALIFIED IKTERPEETATION. 187 
 
 clandestine maniages, though illegal, not being vacated, but only 
 ])unished by a committal to i)iison, "which -was found ridiculous 
 and ineilectual, the practiet; still continued. 
 
 This cause and reason of the act (or, in other words, the mis- 
 chief requiring a remedy) may either be collected from the stat- 
 ute itself, or discovered from circumstances extrinsic of the act, 
 such as the state of the ancient hnv. To detect the mischief or 
 defect in tlu^ former law "which was the occasion of the act, re- 
 course 2nay be fairly and legitimately had to the title and the 
 preamble ; as these, from their custom of reciting the grievance, 
 or part of it, may often serve to show the general scope and i)ur- 
 port of the act, and the inducements which led to its enactment. 
 
 Thirdl}', The remedy is to be gathered from the act itself. The 
 remedy provided in the case before mentioned (Heydon's case,) 
 was afforded by the stat. 31 Hen. 8, which provided " that all 
 leases by any abbott, Sec, or any other religious and ecclesiastical 
 house, etc., of any land, whereof any estate or interest for life or 
 years was then in being, should be utterly void." 
 
 And, fourthly, its reason was*, that it was not necessaiy for them 
 to make a new lease, so long as a former one had continuance, 
 and therefore the intent of the act was to avoid doubling of 
 estates, and to hUve but one single estate in being at a time. 
 " For doubling of estates," says Lord Coke, "implies in itself 
 deceit and private respect, to prevent the intention of the Parlia- 
 ment. If," (which was the question in that case) " the copyhold 
 estate for tAvo lives, and the lease for eighty years shall stand to- 
 gether, here will be doubling of estates siinul et semel, which will 
 bo against the true meaning of Parliament." a 
 
 In the case also before stated for illustration, of the Marriage 
 Act, the "remedy" was, that its enactments required the consent 
 of the father, guardian, or mother to the marriage of persons who 
 were under age, the marriage not being by banns. Illegitimate 
 children being within the mischief and within the "reason" of 
 the remedy, were held also, in Pi. v. Hodnett, h to be within the 
 meanmg of the act. 
 
 Again, as regards the reason of the law, it is a maxim that Uhi 
 lex est sjxciciUs et ratio ejus generalis, genevaliter accijnencla est : 
 thus the stat. 5 Hen. 4, that none be imprisoned by anj justice of 
 the peace but in the common gaol, to the end that they may ha^^e 
 their trial at the next gaol delivery or sessions of the peace, has 
 been thought to extend to all other judges and justices ; for the 
 same general reason applies in. the case of all functionaries, upon 
 whom it is equally incumbent to afford a prisoner speedy justice 
 by duo trial, Avithout detaining him long in prison, c Here the 
 reason of the rule is general, though the provision is special ; it 
 lias therefore a general acceptation. 
 
 a Heydon's case, 3 Kep. 8. 6 1 T. E. 96 ; ib. 313. c 2 Inst. 33.
 
 188 QUALiriED INTEErRETATION. 
 
 Tlie mischief, it lias been already stated, may be discovered 
 aliunde , that is to say, the former haw may legitimately be re- 
 garded, and the title, preamble, and recitals referred to ; the 
 remedy is to be collected from the act itself ; and then the safe 
 and established rule of construction is, that the intention of the 
 law-giver and the meaning of the law, are to be discovered and 
 deduced from a view of the tchole and of every part of a statute 
 taken and compared together. 
 
 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 expresses the meaning of the makers ; and such construc- 
 tion is ex vm-eribiis actus, a And this, construction of itself im- 
 ports ; ex vi termini If, therefore, any part of a statute be in- 
 tricate, obscure, or doubtful, the proper way to discover the in- 
 tent, is to consider the other parts of the act ; for the words and 
 meaning of one part of a statute frequently lead to the sense of 
 another, h and in the construction of one part of a statute, every 
 other part ought to be taken into consideration. " Thus, in the 
 construction of cap. 9 of the statute of Gloucester, " Purvieio est, 
 que nul appeale soit alaftu,'' d'-r. ; this clause, taken by itself, is 
 general ; and literally, as some have taken it, extendeth to all ap- 
 peals, as of death, robbery, rape, felony, &c., bi»t ex antecederdilms 
 et consequciitihus ft optiwa interprefatio, and all the antecedent 
 clauses do concern the death of man (murder) ; it was therefore- 
 held, that the appeals of robbery, rape, felony, etc., are not with- 
 in this act. c " In doubtful cases," said Trevor, C. J., "we may 
 
 a 1 Inst. 381. h Stowell and Zoncb, PloAvd. 305. 
 
 c 2 Inst. 310. 
 
 Note 8. — In the construction of statutes one part must bo construed by an- 
 other ; to collect the legislative intention the whole must be insi^ected. The 
 Stafford Justices, Brock. E. 162, and recourse may be had for this purpose to a 
 proviso which has been repeated by a subsequent act. Bk. of Savings v. Collec- 
 tor, 3. Wall. 495. 
 
 Statutes are to be interi:)reted so as to give effect to all the words therein, if 
 such interpretation be reasonable, and be neither repugnant to the provisions, 
 nor inconsistent with the objects of the statute. U. S. v. Bassett. 2, Story E. 389. 
 But it is otherwise if such an interpretation require the introduction of new pro- 
 visions and clauses to render it sensible or j^racticable, ib. Every part of the 
 statute must be viewed in connection with the whole, so as to make all its parts 
 harmonious, if this be practicable ; and if it will admit of a construction which 
 will give effect and operation to every part, it ought never to be construed, so as 
 to draw after it unnecessary and superfluous i^rovisions. Ogden v. Strong, 2 
 Paine 584. It is not to be presumed, that the legislature intended that any part 
 oi a statute should be without its proper meaning, force or effect, and when a 
 state changes its constitution, all the laws continue in force not inconsistent with 
 it. All laws repugnant to it are repealed by implication. Cass v. Dillon, 2 Ohio 
 (N. S.) 607.
 
 QUALIFIED INTEErEETATION. 180 
 
 enlarge the constniction of acts of parliament according to the rea- 
 son and sense of the lawmakers expressed in other ])arts of tlie act, 
 or guessed by considering the frame and design of the whole." a 
 
 It is another rale of interpretation, which is mentioned here, 
 on account of its close affinity with the maxim last under consid- 
 eration, that one part of a statute must be so construed by an- 
 other, that the whole may, if possible, stand ; itt res riiagis vaJcat 
 (inain i)ereat. As, if land be vested in the king and his lieu's by 
 act of })arliament, sa\ing the right of A., and A. has at that time 
 a lease of it for three j'ears ; here A. sliall hold it tor his term of 
 three years, and afterwards it shall go to tlie king. For this in- 
 terpretation furnishes matter for every clause of the statute to 
 work and operate upon ; A while, as has before been shown, o a 
 saving totally repugnant to the body of the act, and which would 
 render the statute nugatory, is rejected as void. Accordingly, it 
 is a rule, that such exposition of a statute is to be favored, as 
 hhiders the statute from being eluded. <l 
 
 Again, when words are capable of a twofold constniction, 
 whether in deeds or wills, or statutes ; the rule is to adopt such 
 an interpretation, ut res viagis vahat quam pcreat ; but " this," 
 says Story, " is a rule of mere common sense." 
 
 As one part of a statute is properly called in, to help the con- 
 struction of another part, and is litly so expounded, as to support 
 and give effect, if possible, to the wdiole.; so is the comparison of 
 one law with other laws made by the same legislatiu'e, or upon 
 the same subject, or relating expressly to the same point, en- 
 joined for the same reason, and attended with a like advantage. 
 In a})plying the maxims of interiDretation, the object is throu<^h- 
 out, first, to ascertain by legitimate means ; and next to cany in- 
 to effect ; the intentions of the framer. It is to be infened, that 
 a code of statutes relating to one subject, was governed by one 
 spirit and pohc}', and was intended to be consistent and harm- 
 onious in its several parts and provisions. It is therefore an 
 estabhshede rule of laAv, that all acts in ^Mri mater ie are to be 
 taken together, as if they were one law ; and they are directed to 
 be compared in the construction of statutes, because they are con- 
 sidered as fi'amed^. upon one system, and having one object in 
 view. ^ If one statute prohibit the doing a thing, and another 
 
 a Archer and Bokenliam, 11 Mod. 161. h 1 Bl. Com. 89. 
 
 r. Auto, p. 513. a 2 llol. 127. 
 
 e 4 T. 11. 447; 5 T. E. 417; Earl of Ailesbiiry v. Patterson, Dougl. 30. 
 
 Note 9 .— Several statutes that are in 7)ari materia are to be construed as ono 
 statiito. in exphiiniufr their meaning and import. Patterson v. Winn, 11 "Wheat. 
 •Mi); li The Harriet, 1 Story K. 251 ; U. S. v. Hervcs, Crabbe E. 307; Dubois v. 
 McLean, 4. McLean E. 489, 3 Blatchford C. C. E. 325, and cotemporaneous, an- 
 tooedeut and subsequent statutes on the same subject matter may be examined and 
 considered in construing the said act. Eodgers v. Bradshaw, 20 John 744: Mc- 
 Cartce v. Orphan Asvhim, 9 Cow, 507; Eexford v. Knight, 15 Barb. ('.42, 1 Kent 
 Com. 4G3; "Waterford & W. Turnpike Co. v. People, 9. Barb. 161.
 
 190 QUALIFIED INTERrEETATION. 
 
 statute be afterwards made, whereby a forfeiture is inflicted upon 
 die person doing that thing, both are considered as one statute, a 
 When an action founded upon one statute, is given by a subse- 
 L^uent statute in a new case, everything annexed to the action by 
 the lirst statute is hkewise given, h _ Indeed, tlio latter act may be 
 considered as incorporated with the former. 
 
 The stamp acts are revenue hiws, aU made in pari maferic, and 
 to be taken together. Tliough they say, therefore, that an un- 
 stamped paper shall be void, yet they also make a provision to 
 make it good ; there being clauses in some of them to enable the 
 party wlio has made a contract on unstamped paper, to get it 
 stamped after it is made, on paying a certain penalty. So that 
 if it be stamped at the time it is produced, it is sufficient, c '" 
 
 And the rule, it is said, equally applies, though some of the 
 statutes may have expired, or are not referred to, in the other acts. 
 "It is a rule in the construction of statutes," said Lord Mansfield, d 
 "that all which relates to the same subject, notwithstanding 
 Bome of them may be expired or are not referred to, must be 
 taken to be one system, and construed consistently ;" and the 
 practice has been so to do, in cases of bankruptcy, church leases, 
 poor laws, and in other cases. Thus, — 
 
 The 13 Ehz. c. 10, concerning leases made by spirituahpersons, 
 being enlarged by the 14tli Eliz. e. 11, although only the former 
 of these statutes be recited in the 18 Eliz. c. 11, it has been holden, - 
 that the latter is virtually recited therein, e 
 
 In the same case it has been laid down, that there is such a 
 connection betwixt all the statutes concerning leases made by 
 ecclesiastical persons, that they are all to be taken into consider- 
 ation in the construction of any one of them. The 32 Hen. 8. c. 28, 
 is not recited in the 1 Eliz. c. 19, nor in the 13 Ehz. c. 10 ; yet a 
 lease is not warranted by either of these statutes, imless it have 
 the qualfications required by the 32 Hen. 8, c. 28. 
 
 The 22 and 23 Car. 2,.c. lO, for the better settlmg of intestate's 
 
 a Rtradling v. Mercian, Plow. 20fi. h Bro. Waste, PL C8. 
 
 c Crossly v. Arkwright, 2 Term Kep. f\()9. 
 
 d Piex V. Loxdale and others. 1 Burr. 447, Bac. Abr. tit. Statutes, 1, 3. 
 e Bailey v. Murin, 1 Vent. 24G. 
 
 Note 10. — Laws imposing duties, are not construed beyond the natural im- 
 port of language, and they are never to be construed as imposing burthens upon 
 citizens, upon doubtful interpretations. Adams v. Bancroft, 3 Ham. 384; U. S. 
 V. Wigglesworth, 2 Story E. 369, 
 
 In construing laws relating to trade and commerce, the vocabulary of merchants 
 is to be adopted in preference to that of mechanics. U. S.v. Sarchet, Gilp. P. 
 273, and the word imjKjrt is also to be used in its commercial sense. The Fores- 
 ter, Newberry E. 81. All mercantile terms used in a law are to be taken in the 
 sense intended which is to be ascertained by laws in pari materia. U. S. v. 
 Twenty-four Coils of Cordage, Baldwin E. 502.
 
 QUALIFIED INTEErRETATION. 191 
 
 estates, is coutimied, with some additional clauses, by tlie 1 Jac. 
 2, c. 17. It was Iioldcn by Lord Hardwicke, Chancellor, that for 
 this reason the hitter statute nuist ha construed as if the former 
 had been therein recited. a 
 
 AV'here acts are in 'jxirl inalcrlc, if the same word be used in both 
 statutes, a distinction made in the one, is a legislative exposition 
 of the sense in which it is to be understood in the other. //' 
 
 In the 1st sect, of stat. 53 Geo. 3, c. 151), upon which the case 
 of Gale and Laurie depended the word "ship" only is used. But 
 that act and the 7 Geo. 2, c. 15, and 2(5 Geo. 8, c. 8G, arc all in pari 
 viaferic. "There can be no doubt," said Lord Tenderden, "that 
 the first section of the act on whicli this question arises, is to be 
 understood as if the words v;i/h (ill her <ii>pnr(eiinnres were used 
 therein, sujiposing these words sliould make any difference in the 
 sense." c 
 
 But as an act of Parliament, Avhen repealed, " must l)e consi- 
 dered as if it had never existed," a doubt has been felt, how a 
 subsequent statute can bo taken to be incorporated with such 
 act, not 1)1 esse or fuisse. And if an act, not a subsisting act, 
 may be referred to, to assist in the construction of another act 
 upon the same subject, yet how can an act, whicli is sui)posed to 
 have never existed, be said to be in pari materie with any other 
 act? It -is a still broader proposition, that words can be used, 
 borrowed from an act not subsisting ; although for a collateral 
 purpose it may bo deemed competent to call in aid a repealed 
 statute to assist in the construction of another statute. 
 
 To be sure, as a most profound and accurate judge has recently 
 remarked '.d " The courts do not deal in definitions." To stated 
 tacts, they apply the settled law in the particular case. 
 
 But it is ditlerent with the text writer. It is his province and 
 duty to apply himself to the discovery and apphcation of prin- 
 
 a WiiUis V. Hodson, Barn. Chan. Eep. 27G. 
 
 b King q. t. v. Smith, 4 T. E. 419, 
 
 5 B & C. 1G2. d Maule, J., 7 Scott, N. C. 9 G5. 
 
 Note 11 — In the construction of a statute, the courts -nill look out of it to other 
 statutes in pari materia, or statutes of a similar import, which may be regarded as 
 one sj'stem in which the construction of any separate act may be aided by the 
 examination of other provisions which compose the system. United States v. 
 Collin, 3 Blatch. 325. 
 
 If in a subsequent clause of the same act, provisions are introduced which show 
 the sense in which the legislature employed doubtful i^hrases previously used, that 
 ;;euse is to be adopted in construing those phrases. 
 
 Consequently, if a subsequent act on the same subject afibrds complete demon- 
 stration ofthe legislative sense of its own language, the rule already stated, re- 
 qiiiring that the subsequent act should be incorporated into the prior or foregoing 
 act, is a direction to guide the courts in expounding the provisions of a law. — 
 Alexander v. Mayor, &c, 5 Cranch. 1 .
 
 192 QUALHTED IKl^EPEETATION. 
 
 ciples. Without analysis, or without geuerahzatioii, he can be 
 only a compiler of re2:)orted cases. However, as he is less prac- 
 tically occupied in dealing with facts, he often incurs the danger 
 uf falhug into unnecessary refinement. 
 
 " It certainly appears strange," said Williams, J., in a late case, 
 " that when an act of Parliament is j:er se abolished, it shall vir- 
 tually have effect through another act." But, in that case, the 
 former act was substantially re-enacted, a It docs indeed- seem 
 to be the prevailing doctrine (and it is more rational in itself, ■ 
 than consistent with coeval maxims ;) that, where one statute re- 
 fers to another which is repealed, the words of the former act 
 must still be considered as if introduced into the latter statute. 
 " The objection arising from the repeal of the former statute," 
 said Lord Denman , in Eeg. v. Stock, " is not insisted on, and 
 does not seem to be tenable." h In the case of Bussey v. Story, 
 4 B. & A. Parke, J., said : " This act of Parhanient repeals those 
 of 32 Geo. 3 and 41 Geo. 3, the j)rovisions of which are only so 
 far material, as they may aid in the construction of the enact- 
 ments of the existing statute, &c." c 
 
 According then to the received doctrine, a repealed act " oblit- 
 erated " from the judicial mind, and " considered as if it had never 
 passed," d will often have more legal import a century later, from 
 aiding the construction of subsequent statutes, than it ever pos- 
 sessed itself, Avhile in viridi ohservantia. "This is shocking,"." 
 as said by Mansfield, C. J., of a certain construction on wills, 
 " but it has been followed in a hundred cases." 
 
 Hitherto, it has been shown, that in the construction of stat- 
 utes, effect ought to be given to the intention of the legislature 
 and the object of an enactment ; in like manner as in wills, deeds 
 contracts and other written instruments, regard is constantly had 
 to the just intent of the parties. But a necessary qualification 
 lias been annexed to that proposition ; that the intention, to 
 ftiiich such effect is to be given, must be such an intention and 
 object, as the legislature have used fit words to express. 
 
 To a clear and logical consideration of the subject, next in or- 
 ler should foUow the inquiry, how ; in what sense ; with what 
 atitude, or under wiiat restrictions, the words used are to be 
 :eceived and understood ? 
 
 a Eeg. V. Merioucthshire, G Q. B. Kep. .343. h 8 Ad. & Ellis, 405. 
 c Page 98. d Expressions of Lord Tenterden, cited ante. 
 
 * The doctrine that shocked the Chief Justice of the Common Pleas, was this : 
 —"That a remote reversion in fee of other lands, passed ninder a general devise" 
 on the ground, that it was a forced construction to hold property to pass by a will 
 which clearly was not at the time, in the contemplation of the testator. Morgan 
 dem. Surman v. Surman, 1 Taunt. 292, speaking of Chester v. Chester, 3 P. Wnis. 
 56. The doctrine in Chester v. Chester was, nevertheless, supported by Lords 
 Thurlow and Eldon ; and when Sir W. Grant entertained a different opinion, his 
 decision was afterwards reversed on appeal, 15 Ves. 39(J.
 
 QUALIFIED INTEEPRETATION. 193 
 
 And lastly, after a full investigatiou Avliat constitutes the com- 
 petent or inefficient expression of the -will of the lawgiver, the 
 concluding proposition Avill be enounced ; that eflcct cannot be 
 given to an intention not expressed. 
 
 Subordinate to these principal divisions of the entire subject, 
 will have to be discussed some particular topics ; the letter of 
 the law, (whether words are to be received in their popular or 
 technical sense ;) the context ; the spirit of the act (whether stat- 
 utes be in their nature remedial or penal ;) the subject-matter and 
 the provisions of acts. 
 
 And first of the language of an act ; exploring the intention of 
 the legislature, by the commonest and most natural of signs ; — 
 the words and the context. '■ 
 
 The Avords of a statute are to be taken in their ordinary and 
 familiar signification and import, and regard is to be had to their 
 general and jn-opcr use ; iovjns ct norma loqucndi is governed by 
 usage ; and the meaning of words, spoken or written, ought to be 
 allowed as it has constantly been taken : "loqucndum est ut vulgus^a 
 But if the usage have been, to construe the words of a statute 
 contrary to their obvious meaning by the vulgar tongue, and the 
 common acceptation of terms, such usage is not to be regarded ; 
 it being rather, say the books, an oppression of those concerned 
 (to force upon them a conventional meaning ;) than a construction 
 of the statute, h And though, where the Avords of a statute are 
 doubtful, general usage may be called in to explain them, for op- 
 timus legum interpret est consuetiido, c usages that can control the 
 words of an act of Parliament, must be universal, and not the 
 usage of any particular place, d, 
 
 And first, what language is to be regarded ? 
 
 The intent of the legislature is not to be "collected fi'om any 
 particular expression, but from a general view of the icliole of an 
 act of Parliament, e 
 
 a 4 Rep. 47. d 1 T. E. 728. 
 
 b Vaughan, 169 ; Tarker, 41. e Per Best, C. J , 4 Bing. 19G. 
 
 c 2 Kep. 81. 
 
 Note 12. — While it is the duty of courts iu construing statutes, to give effect to 
 the intent of the law making power, and to seek for that intent in every legitim- 
 ate way, yet it is to be sought first of all in the words and language employed, 
 and if the words are free from ambiguity, and express clearly the sense of the 
 framers, there is no occasion to resort to other means of interi^retation. Purdy 
 V. The People, 4 Hill, 397, per Paige, Senator, id. 403; McClusky v. Cromwell, 
 11 N. Y. GOl, G04; WaUer v. Harris, 20 Wend. 561-2; Story const. § 392. The na. 
 tural import of the words of any statute, 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 legislature, unless the intention so resulting from the ordinary 
 import of the words be repugnant to sound acknowledged principles of national 
 or state policy. Opinion of Sup. court. 7 Mass. 523-4. • 
 
 25
 
 194: QUALIFIED INTEKPKETATION. 
 
 In cqnstruiiig acts of Parliament, judges are to look at tlie 
 language of the whole act, and if they 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, they can collect from the more large and extensive expres- 
 sions used in other parts, the real intention of the legislature, it 
 is their dxitj to give eflfect to the larger expressions, a For, as 
 has been before stated, the court is to give effect to every clause, 
 section, and word, if an effect can be given to it. 
 
 As the construction is to be made upon the entire instrument, 
 whole wiU, or complete statute, and not upon disjointed parts of 
 it, consequently all its parts are to be compared, considered, and 
 construed, with reference to each other : — " 
 
 Hence, general words may be restrained ; hence, clauses may 
 be controlled by clauses ; hence, if the same words occur in dif- 
 ferent parts of a statute or will, they must be taken to have been 
 everywhere used in the same sense ; subject, perhaps, to the same 
 qualification, in acts of Parliament, as in the case of a will ; that 
 the coiu't may put a difi'erent construction upon the same words, 
 when applied to diflerent subject-matter, as v/as held by Lord 
 Macclesfield, in Forth v. Chapman, where words were applied 
 to different estates of realty and personalty. & In Sheffield v. 
 Lord Orrery, c and again in Southby v. Stonehouse, d Lord Hard- 
 wicke recognized the doctrine of Lord Macclesfield in Forth v. 
 Chapman, that the same words may have different constructions 
 to effectuate the intention of the party. 
 
 In the case of Porter v. Bradley, Lord Kenyon said : " It would 
 be very strange, if words had o. diflerent meaning when applied 
 to real and personal property. If such a distinction existed in 
 the law, it certainly would not agree with the rule, " lex 'plus lau- 
 \latur, quando ratione prohaiur ;" but it is not founded in law " e 
 Again, in Ptoe. dem. Sheen v. Jeffery, Lord Kenyon made the 
 «ame remark as in Porter v. Bradley, " That the very same words 
 
 a Per Lord Tenterden, 7 B. & C. 643. c 3 Atk. 382. 
 
 h I'P. Wms. G67 ; Forth v. Chapman. d 2 Ves.Seu. Gil. 
 
 e 3 T. E. 143. 
 
 Note 13. — It is an established rule in the exposition of statutes, that the iuten- 
 rion of the lawgiver is to be deduced from a view of the whole and every part of a 
 statute, taken and compared together. When the words of the statute are not 
 explicit, the intention is to be collected from the context — from the occasion and 
 necessity of the law — from the mischief felt — and the object and remedy in view; 
 and the intention is to be taken or presumed, according to what is consonant to 
 reason and good discretion. This was the rule laid down by Plowden, p. 10, 57, 
 205, 3C3, and by which Chancellor Kent says : " the sages of the laws have ever 
 been guided in seeking lor the intention of the legislature ; " and which he ap- 
 proves, "as maxims of sound interpretations, which have been accumulated by 
 the experience, and ratified by the apjirobatiou of ages." 1 Kent Com. 402.
 
 QUALIFIED INTERPRETAnON. 195 
 
 m the same clause in a will should receive one construction, as 
 apphed to one species of property, and another construction as 
 applied to another, is not reconcileable with reason ; " but lie 
 added, that it' it had become a settled rule, it might Ije danger- 
 ous to (overturn it. a 
 
 But in the case of Crooke v. De Vandes, b Lord Eldon remarks, 
 that he had heard tlie case of Forth v. Chapman cited for years, 
 and repeatedly l)y Lord Kenyou himself ; and that lie never knew 
 it shaken. In Elton v. Easun, Sir AV'illiam Grant, Master of the 
 Rolls, thus begins his judgment : " There is no reason why the 
 same words may not be dilierently construed, when they apply to 
 different descriptions of property, governed by different rules. 
 The case of Crooko v. De Vandes, in which the Lord Chancellor 
 expresses his o})inion very strt)ngly in favor of the distinction in 
 Forth v. Chapman, (and Lord Hardwicke has repeatedly recog- 
 nised it,) appears to ho just as strong as this." c And see Tenny 
 dem. Agar v. Agar, d Dansoy v. Griffiths, c Doe dem. Cadogan v. 
 Ewart, /■, Doe dem. Blcsard v. Simpson, rj and Lees v. Morley. h 
 
 But though words maybe taken in a different sense in the same 
 will or statute, when they apply to different descriptions of prop- 
 erty, " it does not seem at all consistent wdtli principle," said 
 Lord Brougam in Doe dem. Winter v. Perratt, " that, in order to 
 put a construction upon words, we should take some of them in a 
 tecnnical, and others in a popular sense, and even the same words 
 in a popular sense to a certain extent, and a technical for the 
 residue." So, Lord Cottenham observed in the same case : " It 
 does not seem reasonable to adopt the strict legal sense as to 
 part, and the popular sense as to any other part of the same de- 
 scription." i 
 
 In Reg. v. The Commissioners of the Poor Laws, Holborn 
 Union, LordDenman says, " We disclaim altogether the assump- 
 tion of any right to assign different meanings to the same words 
 in an act of parliament, on the ground of a supposed general in- 
 tention in the act. We think it necessary to give a fair and rea- 
 sonable construction to the language used by the legislature ; but 
 we are not to assume the unwarrantable liberty of var}'ing that 
 constmction for the purpose of making the act consistent with 
 any views of our o^^^l." 
 
 According to Yattel, it is by no means a correct rule of inter- 
 pretation, to construe the same word in the same sense wherever 
 it occurs in the same enactment. " It does not follow," he says, 
 " either logically or grammatically, that, because a word occurs 
 in one section with a definite sense, that therefore the same sense 
 
 a 7 T. E. 589. b 9 Yes. 197. 
 
 c 19 Ves. 77. d 12 East. 253. 
 
 e-4M. &S. 61. f7A.&E. G57. 
 
 g 3 Scott, N, C. 774. 'h 1 Youngs & Collier, 589. 
 
 i 6 M. & G. 379.
 
 190 CONSTRUCTION OF WORDS. 
 
 is to be adopted in every otlier section in wliicli it occurs. The 
 framers of laws do not weigli only the force of single words, as 
 philologists and critics, but of whole clauses and designated ob- 
 jects, as statesmen and practical reasoners. In common language 
 the same word has often various meanings."« '* 
 
 The peculiar sense in which a word is used in any section is to 
 be determined by the" context. 
 
 Words used in a consolidation act may have a different mean- 
 ing fi'om that of the same words when used in any of the acts 
 comprehended, h ^' 
 
 If the words of a statute are plain, they must be strictly fol- 
 lowed ; but if they are ambiguous, the whole context must be 
 looked to, for their explanation, c 
 
 The correct rule is to construe acts of parliament according to 
 their grammatical and natural sense, unless the context show 
 clearly that a different sense was intended, d 
 
 a Yattcl, Bk. 2, cli. 17, § 285. 
 
 h Per Coleridge, J., in Eeg. v. Justices of Kent, 2 Q. B. Kep. G92. 
 
 c Per Lord Abiuger, 3 A. & E. 89G. 
 
 d Per Parke, J., R. v. Ditclieatt, 9 B. & C. 18G. 
 
 Note 14. — The statutes of one State or country, when they become the subject 
 of adjudication in another, are to receive the same construction that is given to 
 them in the courts of the former. Elmendorf v Ferry Co. 10 Wheat. 153; Smith 
 V. Coudry, 1 How. 28. 
 
 Note 15. — In cases depending upon the statutes of one of the states, the lederal 
 courts follow the construction given to those statutes by the State court. Especi- 
 ally if the law relate to real property. Polk v. Wendal, 9 Cro. 87; Thatcher v. 
 Powell, 6 Wheat. 119; McDowell v. Peyton, 10 Wheat, 454; Shelby v. Guy, 11 
 "Wheat. 367; Bell v. Morrison, 1 Pet. 352; DeWolf v. Eabaud, id. 47G; Daws v. 
 Mason, ib. 503; Waring v. Jackson, ib. 570; Gardner v. Collins, 2 Pet. 58; Beach 
 V. Yiles, ib. 675; McCluny v. Silliman, 3 Pet. 270; Bk. of U. S, v. Daniel, 12 Pet. 
 33; Nesmith v. Sheldon, 7 How. 812; Suydam v. Williamson, 24 How. 427. And 
 they follow this rule also as to the decisions of the highest courts of the states, 
 whether it is founded upon the constitution of a statute, or on the unwritten law 
 of the state. St. John v. Chew, 12 Wheat 153; Bk. of Hamilton v. Dudley, 2 Pet. 
 492; Henderson V. Griffin, 5 Pet. 151; Boss v. McClung, G Pet. 283; Green v. 
 Neal, ib. 291; Livingston v. Moore, 7 Pet. 542; Brashear v. West. ib. G09; Mc- 
 Cutchen v. Marshall, 8 Pet. 220; Murray v. Gibson, 15 How. 425; Beauregard v. 
 N. Orleans; 18 How. 497; Sumner v. Hicks, 2 Blatch. 532; East Hartford v. E. 
 Hartford Bridge Co., 10 How. 511, 541, 14 id. 489. And the lederal courts will 
 BO hold, though it be not in accordance with their own opinion. M^Keen v. Dc- 
 laney, 5 Cranch. 22. 
 
 State laws are rules of decision in the federal courts, when they prescribe a law 
 governing the right in litigation; but they do not govern as to the mode of pro- 
 ceedure. New England Screw Co. v. Bliven, 3 Blatch. C.C. 240; Campbell v. 
 Claudius, Peters C. C. R. 481; Craig v. Brown, 3 W^xsh. C. C. E. 503; Beers v.
 
 CONSTRUCTION OF WORDS. 197 
 
 It is proper, first, to consider wliat is the meaning of the words 
 used, in the largest ordinary sense, Avhicli, according to the com- 
 mon use of language belongs to them. <i But where words are so 
 general that they nuist receive .some limitation in constniction, 
 and cannot be construed literally, what is the restriction that 
 ought to be imposed upon them V This is to be learned from the 
 context and from the general purview of the act. The object of 
 all rules of construction being to ascertain the meaning of the 
 language used, and it being unreasonal>le to im})ute to the legis- 
 lature incon.sistent intents upon tlie 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 another. The court must apply 
 in such a case the same rules Avliich it would use in construing 
 the limitation of a deed ; it nmst look to the whole context, anil 
 endeavor to give efiect to the provisions, enlarging or restraining, 
 if need be, for that purpose, the literal interpretation of any par- 
 ticular part, h 
 
 " The good expositor," says Lord Coke, " makes every sentence 
 have its operation to suppress all the mischiefs ; he gives effect 
 to every Avcn-d in the statute ; ho does not construe it so, that any 
 thing should be vain and superfluous, nor yet makes exposition 
 against express words, for viperina est cxpositio quce corrodit vis- 
 cera textus,c but so expounds it, that one part of the act may 
 agree with the other, and all may stand together. For the best 
 expositors of all acts of parliament, in all cases, are the acts of 
 parliament themselves, — ^by construction and conferring all the 
 parts of them together ; " Optima statin interprelatrix est (omni- 
 bus paiiienlis cjustem. inspertis,) ipsum statidum." d All acts of 
 parliament shall bo taken by a reasonable construction to be col- 
 lected out of the words of the acts themselves, according to the 
 true intent and meaning of the makers." e 
 
 a Per Tiudul, C. J., 5 M. & G. 80. Aud see Maule, J., iu Borradaile v. Hunter, 
 5 M. & G. G53. 
 b Per Coleridge, J., G A. ctE. 7. 
 c 11 Rep. 3-1, citing 2 liulstr. 179 ; 10 Et-p. 105. 
 d Bonham's case, 8 Rep. 117. e Case of Leases, 5 Rep. C. 
 
 Haughton, 9 Pet. 329; Keery v. Morch. Bk., IG Pet. 89; Kelsey r. Porsytli, 21 
 How. 85. 
 
 A state law wliicli permits parties to be examined as witnesses iu their own be- 
 half, is a rule of decision, and as such, is obligatory upon the federal courts. 
 Diblee v. Furniss, 4 Blatch. C. C. R. 
 
 State courts are bound by the decisions of the federal court in construing the 
 constitution of the United States, its laws, and treaties of the Union. Elmendorf 
 V. Taylor, 10 Wheat. 153. 
 
 The construction of a state law having been settled. by a series of decisions ol 
 the highest state court, dififerently from a former decision of the federal court, 
 the later construction of such law by the state court will be followed by the led-
 
 198 CONSTKUCTION OF WORDS. 
 
 It is a safe iiietliod. of interpreting statutes to give effect to the 
 particular Avorcls of the enacting clauses. For when the legisla- 
 ture in the same sentence uses different words, the courts of law 
 will presume that they were used in order to express different 
 ideas, a So, if there be a material alteration in the language 
 used in the different clauses, it is to be inferred, that the legisla- 
 ture knew how to use terms applicable to the subject-matter. 
 " The several inditing and penning of the different branches," 
 said the Judges in Edrick's case, "doth argue that the maker did 
 intend a difference of the purview and remedies." h 
 
 Again, when in several statutes in pari maferte, the legislature 
 is found sometimes inserting and sometimes omitting a clause of 
 relation, it is to be presumed that their attention has been drawn 
 to the point, and that the omission is designed, c 
 
 If terms of art are used, they are to be taken in their technical 
 sense. Thus, the expression " heirs of the body " conveys to 
 
 a E. V. Bolton, 8 E. & C. 74. 
 
 b o Eep. 119. 
 
 c Moser v. Newman, G Bing. 5G1. 
 
 eral conrt. Green v. Xeal, G Pet. 291; Suydam v. Williamson, 24 How. 427. But 
 a circuit court of the United States, having adopted the construction cf a state 
 law placed upon it by the state court, its judgment will not be reversed because 
 the state court subsequently overruled its own former decision. Morgan v. Cen- 
 tenices, 20 How. 1. Nor will the federal court alter its construction of a contract 
 deliberately decided to be a valid one, because the state courts have since declared 
 fimilar contracts to be invalid under the state constitution. Eowanv. Eumul, 
 r, How. 134. 
 
 The federal courts are not bound by the construction placed upon a state law 
 by the state courts, where the question is whether it be in violation of the consti- 
 tution. Jefferson Br. Bk. V. Skelly, 1 Blatch. 43G. Nor does the federal court hold 
 itself bound by the construction of a will made by the state court, unless it arise 
 from a settled rule of property. Lowe v. Vick, 3 How. 4G4. 
 
 The decisions of the state courts as to the construction of contracts, or on 
 questions of general commercial law, are not binding on the federal courts. 
 Swift V. Tyson, 16 Pet. 1; Donnell v. Columbian Ins. Co., 2 Sum. 367; Thomas v. 
 Hatch, 3 Sum. 367. Nor are the decisions of a state court, construing a deed by 
 the rules of a common laAv, binding on the federal court. Foxcroft v. Mallctt, 4 
 How. 3o3; Thomas v. Hatch, 3 Sum. 170. 
 
 The constitution and laws of a state, so far as they are repugnant to the con- 
 stitution and laws of the United States, are absolutely void. Cohens v. \'irgiuia, 
 Wheat. 414. 
 
 In cases of concurrent authority, when the lavv's of the United States and the 
 laws of a separate state are in conflict, the state law must yield, but only so far 
 as the conflict extends. Freeman v. Robinson, 7 Ind. 321. 
 
 The state courts are bound by a decision of the supreme court of the United 
 States, deciding that a state law is in violation of the constitution of the United 
 States Guroot v. Lnfferty, 2 Gilman 383.
 
 CONSTRUCTION OF WOllDS. 199 
 
 )awyers a precise idea, as comprising, in a legal sense, only cer- 
 tain lineal descendants. 
 
 It is a rule of construction, njiuided in reason and suppoiied 
 i.\y many authorities, that words in a -svill, or statute, are to bo 
 construed according to their strict and proper acceptation, unless 
 there be something to show that wucli a ccmstniction is not in- 
 tended. Words of known legal import are to Ije considered as 
 having been used in their technical sense, or according to their 
 strict acceptation, unless there appear a manifest intention of 
 using them in their pojjular sense, a Thus, an heir, properly and 
 strictly, means a jjcrson -whose ancestor is dead, nemo est /loeres 
 viventis ; but the famihar expressions, "heir to the throne," "heir 
 to a title," — "heir aj)parent," — " heir presumptive," — "prove," 
 said Lord Cottenham, in Doedem. AVinter v. Perratt, " that the 
 existence of a parent is quite consistent with the popular idea of 
 heirship in the child ; and an heir apparent may take under the 
 description of heir, if that be the sense in which the testator used 
 the term." 6 
 
 Words may be transposed in construction, c or words may be 
 interposed, or read as if in a parenthesis ; c? the word " or" may bo 
 read " and ;" and in the interpretation of both statutes and wills, 
 " if" may be expounded " when ;•" as in the rule on legacies bor- 
 rowed fi'om the civil law, where cum and si are precisely equiva- 
 lent. '' 
 
 Words cannot be inserted ; "Every day," said Patteson, J., in 
 a late case, " I see the necessity of not importing into statutes, 
 words which are not to be found tliere. Such a mode of inter- 
 pretation only gives occasion to endless difficulties." e In Lamond 
 v. Eifie, /' Lord Denman said, " AVe are requu-ed to add some 
 arbitrary words to the section, which would exclude us from act- 
 ing in certain cases. We cannot introduce any such quahj&ca- 
 tions ; and I cannot help thinknig that the introduction of quah- 
 
 a Poole V. Poole, 3 B. & P. G20, per Lord Alvanlej'. Jesson v. "Wrigbt, 2 Bligh, 
 per Lord Redesdale. 
 b 6 M. &. G. 379 ; 1 P. Wins. 229 ; 2 W. Bl. 1010. 
 (,• Stacey v. Nelson, 12 Mees. & W. 541. 
 d Davey V. Warren, 14 Mees. & W. 207. 
 e King v. Burrell, 12 A. & E. 4G8. / 3 Q. B. Eep. 910. 
 
 XoTE 16 — The word or, in its ordinarj' signification, corresponds to the word 
 and, and equally to each if the sense of the statute requires it, but not to both. 
 It has sometimes been construed to mean and, in order to give effect to a clause 
 in a statute, will, or contract; but never to change a contract at pleasure. The 
 inaccuracy of using and for or, requires that there should be strong reasons, in 
 conformity with a clear intention. But or has been changed, or removed, and and 
 substituted in its place. Douglass v. Eyre, Gilp. E. 149; Compare United States 
 V. Ilann, Amer. Law Keg. 663. But in a penal statute, it has been held that the 
 word and cannot be substituted, and construed to mean or. United States v. Ten 
 Cases of Shawls, 2 Paine. C. C. R. 166.
 
 200 CONSTEUCTION OF WORDS. 
 
 fying words in the mtei*pretation of statutes is frequently a great 
 reproach to the law, Kone of the distinctions suggested are con- 
 tained in the plain words of the act ; and we cannot qualify them 
 by any arbitrary introductions." So, in Everett and Mills, a Tin- 
 dal, C. J., said, "It is the duty of all courts to confine themselves 
 to the words of the legislature; notJibuj adding thereto, nothing 
 diminishing. "\Ye must not import into an act a condition or 
 qualification which we do not find there." 
 
 The enabling statute, 11 Hen. 7, c. 12, entitled, "A Mean to 
 Help and Speed Poor Persons in their suits," admits a plaintiff 
 to sue in forma pauperis. It does not say he shall be admitted 
 before he comm'ences his suit, and therefore the court of common 
 pleas (dift'ering from Lord Abinger's inclination, rather than deci- 
 sion in the Exchequer,) " would not say it, when the act did not." & 
 
 It had been supposed, that, under stat. 5 Ehz. c. 4, s. 3(5, justi- 
 ces might not only order the discharge of an apprentice from his 
 apprenticeship, but might also order a restitution of the premium 
 or any part of it ; but in the case pi Pt. v. Vandeleur, c the court 
 (although reluctantly, on the ground that it would be an encour- 
 agement to masters to illtreat their apprentices) held, that the 
 statute being silent, the order, directing a return of the premium, 
 must be cpashed. And the same was held in a modern case in 
 the Court of Exchequer, East v. Pell.t? " The court cannot insert 
 or leave out words ;" P. v. Pereira. e 
 
 But in one case. In re Scott, upon the 9 Geo. 4, c. 32, the words 
 " within three months after the determination of such petition," 
 were qualified in construction, to mean if such determination shoidd 
 take place, {expressio eorum quoe. tacite insnni ;) the court, in that 
 case, modifying the language of the section, as a construction most 
 consistent with the object of the legislature, and as giving effect 
 to every enactment of the statute. /' 
 
 For, the words of an act are, it is always said, to be modified 
 by reference to the subject about which it is conversant. " 
 
 " In construing an act of parliament, the same rule of construc- 
 tion must be applied as in the construction of other writings ; and 
 if the subject-matter to which an act of parliament applies, be such 
 as to make a given construction of its clauses impossible or irra- 
 tional, I cannot," said WigTam, V. C.,f/ "for a moment, doubt the 
 
 a 4 Scott. N. C. 531. h Brunei v. -Wardle, 4 Scott, N C. 188. 
 
 c 1 Str. GO. d 4 M. & W. GG5. 
 
 e 2 A. & E. 375. / 4 M. & W. 2G1. 
 
 g Salkeld v. Johnston, 1 Hare, 210. 
 
 Note 17. — The general rule, however, is, that wojrds are to be received and in- 
 terpreted according to their common or popular imjiort, or their plain and ac- 
 tual meaning, and in such a way as to carry into effect, if possible, the whole of 
 the statute, Maillard v. Lawrence, IG IIow. U. S. E. 2G0-1; Wiggv. United 
 States, Dev. 157, (Court of Claims 1855-6;) Chase v. Same, id. 158.
 
 CONSTRUCTION OF WORDS. 201 
 
 right, or the duty, of a court, to have regard to such subject-mat- 
 ter, as necessarily bearing upon the legal construction of the act. 
 This is invariably done in the construction of -wlUs and deeds ; 
 and the same principles are correctly apphcable to the construc- 
 tion of an act of i)arhament." 
 
 In construing the words of an act of Parliament, and collecting 
 from them the intentions of the legislatm-e, the terms are always 
 to be understood as having a regard to the subject-matter ; lor 
 that, it is to be remembered, will always be in the eye of the fra- 
 mer of the law, and all his expressions directed to that end. '" 
 Thus the term " maintenance," is, in itself and abstractedly, equi- 
 vocal ; but when we find the statutes in which it occurs, a du'ected 
 against the encouragement of litigation, and the upholdmg of 
 parties to suits, we easily perceive what was designed to be pre- 
 vented. The same with the terms, "evil procurers of dozens," 
 upon which many fancifid interpretations might be put, as of 
 dozens of wine, &c. ; yet in a statute relating to juries, there is 
 no dithculty in untlerstanding that the persons meant are " u/Aler- 
 hand instructors, n.ud leaders of jurors returned." Malveifi jjro- 
 curers des douseius, is "imderstood of such, as use to pack 'in'ies 
 by nomination.or other practice." h 
 
 80, where the term " English money" is used in the sliitutes 
 of employments, which relate to the circulation and employment 
 of money with which " the stranger who brings merchandize into 
 the realms of England, is to be paid and contented in hand, and 
 to bestow the same money upon other merchandizes of England : " 
 — the design and policy considered, it becomes clear, that what 
 is intended, is all money current within England, although not 
 corned in England, c 
 
 Other trades of skill and knowledge, besides those which are 
 enumerated in the stat. 5 EHz. c. 4, are held within it, if they were 
 in use at the time; although the act being in restraint of the com- 
 mon law, is, in other respects, construed strictly. 
 
 " I think," said Maule, J., in Dewhurst, appellant, and FiokUn, 
 
 a West. 1, c. 25 ; "West. 2, c. 43 ; Artie, sup. Chartas, cap. 11. 
 b Articuli super Chartas, cap. x. ; 2 lust. 561. 
 c 2 Inst. 741. 
 
 Note 18. — Whenever any words of a statute are doubtful or obscure, the inten- 
 tion of tho legislature is to be resorted to, in order to find the meaning of the 
 ^YO^ds. Tho meaning of the legislature may be extended beyond the precise 
 ■words used in the law, from the reason or motive upon which the legislature pro- 
 ceeded, — from tho end in view, — or tho purpose which was designed ; the limita- 
 tion of the rule being, that to extend the meaning to any case not included in the 
 words, the case must be shown to come within the same reason upon which the 
 lawmaker proceeded ; and not only within a like reason. United States v. Free- 
 man, 3 How. U. S. K. 565. 
 
 26
 
 202 CONSTRUCTION OF T\OEDS. 
 
 respondent, a " we should not in these appeals (registration cases), 
 emban-ass ourselves with the decisions on settlement cases. I 
 also think it would be convenient that we should be spared dis- 
 cussions upon the tenement acts, which are not at all analogous 
 to the reform and registration acts," 
 
 As regard must alwaj-s be had to the subject-matter ; so, in 
 constiTLUig a statute, wc must never lose sight of its object and 
 intent. Provisions in acts of Parhament are to be expounded 
 according to the ordinary sense of the words, unless such con- 
 struction" would lead to some unreasonable result, or be inconsis- 
 tent with, or contrary to, the declared or implied intention of the 
 framer of the law ; in which case the grammatical sense of the 
 words may be modified, restricted or extended, to meet the plain 
 policy and purview of the act. But, in such case, the intent must 
 be obvious, and must be collected from the words of the act. " 
 " The court," said Coleridge, J., b " will not attempt to mould the 
 language of an act for the sake of an apparent convenience, with- 
 out the clearest evidence of a corresponding intention in the legis- 
 lature." In another place, c the same learned judge observed : 
 " If I thought the construction w^e are adopting put any force on 
 the meaning of the act, I should be the last to concur in it ; for 
 the longer I sit here the more I feel the importance of seeking 
 only the meaning of a statute according to a fair interpretation 
 of the words, and acting upon that." Again :d "it is, m my 
 opinion, so important for the court, in construing 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 convenience or an alleged equity, upon doubtful evid- 
 ence of intention, that nothing will induce me to withdraw a case 
 
 a Scott's New Cases, vol. 8, p. 1013 ; 7 M. & Gr. 187. 
 
 6 6A.&E. p.7. c Riicl. cZ Ibid. 
 
 Note 19. — The -whole spirit, as well as the letter of a statute must be respected, 
 and when the whole context of the law demonstrates a particular intent of the 
 legislature to effect a certain object, some degree of implication may be called in 
 to aid that intent. Dorousseau v. United States, 6 Cranch. 314, 323. But the 
 statute is always to be so construed that it may have a reasonable effect, agree- 
 ably to the intent of the legislature, especially if the language is obscure. Gore 
 V. Brazier, 3 Mass. 539, 540 ; opinion of Justices 22 Pick. 573. Richards v. Dag- 
 gett, 4 Mass. 537 ; and it is always to be presumed that the legislature have in- 
 tended the most reasonable and beneficial construction of their acts, if the words 
 of the act are not precise and clear. Pearce v. Atwood, 13 Mass. 343, and such 
 construction will be adopted as appears most reasonable, and best suited to ac- 
 comjjlish the objects of the statute; and where any particular construction would 
 lead to an absurd consequence, it will be presumed that some exception or quali- 
 fication was intended by the legislature to avoid such conclusion. Commonwealth 
 V. Kimball, 24 Pick. 370.
 
 CONSTRUCTION OF WORDS. 203 
 
 from the operation of a section, wliicli is widiin its words, but 
 clear and iinanibigous evidence, but so to do is to fulfil the general 
 intent of tlic statute, and also that to adhere to the literal inter- 
 pretation, is to decide inconsistently with (jther and overruling 
 provisions of the same statute." 
 
 It has been hitherto propounded, that words are to be taken 
 in their ordinary sense ; it now requires to be added : And not to 
 bo extended beyond it, to comprehend a case within the supposed 
 meaning of the legislature, -" 
 
 In interpreting the law, judges are to explore the intentions ol 
 the legislature ; yet the construction to be put upon an act oJ 
 parhament nuist be such as is warranted by, or at least not re- 
 pugnant to, the Avords of the act. Where the object of the legis- 
 lature is plain and unequivocal, courts ought, without violence to 
 the words, to adt)pt such a construction as will best effectuate the 
 intentions of the lawgiver. But they must not, in order to give 
 
 Note 20. — The avoi-Js of a statute, if of common use, i\Te to be taken in theii 
 natural, plain, obvious and ordinary signification; audit is an established rule 
 in giving constructiun to a statute, lirst, to ascertain its intent. This may be de- 
 termined from the language of the whole, and every part of the statute; and some- 
 times from the cause or necessity of making the statute. "When ascertained, it 
 should be followed with reason and discretion; though such construction may 
 seem contrary to the letter of the statute, for it is the intent which often gives 
 meaning to words otherwise obscure and doubtful. A thing which is within the 
 intention of the makers of a statute, is as much within the statute as if it v.'er€ 
 within the letter; and a thing which is within the letter, is not -within the statute, 
 unless it be within the intention of the makers. Holmes v. Carley, 31 N. Y. K. 
 290; Chase v. N. Y. C. E. E. Co. 26 N. Y. 523. But all the provisions of th( 
 statute to this end, should be taken into consideration, and no interpretatioi: 
 should be given confined to a part of the statute, or to a separate section alone. 
 Newell V. The People, 7 N. Y. E. 97. 
 
 A construction which is contrary to natural justice and equitj', or which wili 
 be necessarily productive of practical inconvenience to the community, is to be 
 rejected, unless the language of the lawgiver is bo plain as not to admit of a dif- 
 ferent construction. To give a correct interpretation to the legislative will, where 
 a statute was intended to remedy the injurious operation of a previous rule oi 
 principle of law, the court should place itself in the situation of the legislature 
 which passed the statute; that is, to contemplate in the first place, the law as it 
 previously existed, and the necessity and probable object of the change, and then 
 give such construction to the language used by the lawmakers in providing the 
 remedy, as to carry their intention into eflect, so far as it can be ascertained from 
 the terms of the statute itself. Opinion of Chan. "Walworth in Court of Errors; 
 Donaldson v. Wood, 22 "Wend. 397. 
 
 Statutes tending to effect an object of great public utility, ought to receive the 
 most liberal and benign interpretation, in accordance with the maxim id res magis 
 vc.leat quam pereit. Baring v. Erdman, Hazards Penn. Eeg. The court in such
 
 20i CONSTEUCTION OF -WORDS. 
 
 eifect to what tliey may suppose to be the intention of the legisla- 
 ture, put upon the provisions of a statute a constiTiction not sup- 
 ported by the Avords, though the consequence should be to defeat 
 the object of the act. a AVhere 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 holding that 
 the legislature did not mean what it has expressed. The fittest 
 course in all cases Avhere the intention of the legislature is brought 
 into question, is to adhere to the words of the statute, construing 
 them according to their natural import, in the order in which they 
 stand in the act of parliament, b The most enlightened and ex- 
 perienced 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 any in- 
 quiry as to the supposed intention of the parties who fi'amed the 
 act. c They are not (as the most learned members of a learned 
 body best know), to presume the intentions of the legislature, but 
 to collect tJiem from the words of the act of parhament ; and they 
 have nothing to do with the policy of the law. This is the true 
 sense in which it is so often impressively repeated, that judges are 
 not to construe statutes by equity, or views of policy, but to col- 
 lect the sense of the legislature by a sound interpretation of its 
 language, according to reason and grammatical correctness. 
 
 In the case of Green v. Wood, in the very latest number of the 
 Queen's Bench Keports, cl Lord Denman said : " We are bound to 
 give to the acts of the legislature all possible meaning, which is 
 consistent with the clear language used. But if we find language 
 used which is incapable of a meaning, we cannot supply one. It 
 is tnie that the words, as they stand, are useless, (a case, perhaps, 
 not infi'equent.) It is extremely probable that the alteration sug- 
 gested would express what the legislature meant ; but we, look- 
 ing at the words, as judges, are no more justified to introduce 
 
 a Rex V. Stoke Damerel, 7 B. & C. 569. h Rex v. Ramsgate, 6 B. & C. 712. 
 c Rex V. Inhabitants of Great Bentley, 10 B. & C. 527. 
 tZ 7 Q. B. Rep. 178. 
 
 case, will look into the object of passing the law, and if it can be discovered in 
 its provisions, will not suffer it to be defeated. Russel v. Wheeler, Hemp. R. 3. 
 
 Where a limited jurisdiction is conferred by statutes, the construction ought to 
 be strict as to the extent of jurisdiction; but liberal as to the mode of proceeding. 
 Russel V. Wheeler, Hemp. R. 3. 
 
 AVords intending to limit the powers of a corporation, cannot be construed to 
 describe and so limit the rights of the public. Ferine v. Ches. & Del. Canal Co., 
 9 How. 172. 
 
 A limitation of authority in a statute by a proviso, is a negp.tion thereof. Com- 
 missioners v. Keith, 2Barr. 218.
 
 CONSTRUCTION OF WORDS. 205 
 
 that meaning, than "wo should be it" we added any other provi- 
 sions. Wo can do no more than give such a meaning as the words 
 authorize." 
 
 In Sanniol v. Nettleship, a Patteson, J., said : " I cannot specu- 
 late as to the intentions of the legislature : the words a])peiir to 
 me to be quite plain." 
 
 The rule that words iire to be taken in their ordinary sense, and 
 not extended to comprehend cases within the supposed intention 
 of the legislature, admits of some exceptions. 
 
 And tirst, in the case of ancient statutes ; Avliich were accus- 
 tomed, in the fewest words, to proi)ound rules of the utmost pos- 
 sible generality. The rule and unbending character of these in- 
 discriminate, general, rules of written law, constantly required 
 mitigation. It received it through the medium of judicial con- 
 struction. Pemberton, C. J., boasted that he had, since he was 
 born, for his o^\^^ share, made more law than King, Lords, and 
 Commons. And, whatever may be said of judge-made law at 
 ])resent, when legislation is specific and difiuse, and aims at pro- 
 viding for every variety of case, there can be no doubt of the 
 valuable improvements introduced by the judges at an earher 
 period of our history, Avhen short statutory rules of universal 
 operation, were found so harsh and unjust, as to make it indis- 
 ])ensable for the judges, in such manner to modify and adjust the 
 general rule, as to make it include particular cases — within the 
 mischief, but perhaps opposed to the expressions of the law. -' 
 Speculative men complain of the unwritten law, and of the cap- 
 ricioiisness and uncertainty of judge-made law ; it may always 
 be doubtful, whether more is not, necessarily, left to inference, 
 under a rule of very extensive and remote generahties. 
 
 The extending a statute to advance the remedy contrary to the 
 letter of an enactment, has been said, it will be remembered, to 
 be applicable to old statutes only, which were shortly worded. In 
 Gwynn v. Burrell, h Lord Brougham said : " The extreme con- 
 ciseness of an ancient statute was the sole ground for the sort of 
 legislative inteipretation put upon the words." In another case, 
 it was said, " Considering the concise language of statutes of an 
 
 o 3 Q. B. Tiep. 188. h 1 Scott, N. C. 810 
 
 Note 21. — The natural aud obvious iiieauing should be taken, •without resorting 
 to subtle and forced construction. Courts cannot correct supposed errors, omis- 
 sions or defects. The office of interpretation is to bring a sense out of the words 
 and not to bring a sense into them. Though the spirit of a law may be referred 
 to in order to interpret words admitting of two meanings ; but never to extend ft 
 liiw to a case not within its fair meanings. Bcebe v. Griffin, 14 N. Y., 211: ; Mc- 
 Chiskoy V. Cromwell, 11 N. Y., 593. Statutes made relating to the administration 
 of justice, are to receive liberal construction for the attainment of that important 
 object. Mitchell v. Mitchell, 1 Gill. 66.
 
 206 CONSTEUCTION OF WORDS. 
 
 early period, it seems to be considered that tliey ought to receive 
 an enlarged construction." a In Eeg. v. Frost, b Lord Abinger 
 said : " More than a himdred years ago, acts of Parliament were 
 very short, and were to bo applied to a variety of cases. It is 
 said that we now construe acts of Parliament more literally than 
 judges did formerly, and perhaps that is so. Now, they are very 
 long (and variously elaborated and embellished, etc.), but still some' 
 of them, if construed literally, would lead to much absurdity." 
 
 So, in Patrick v. Stubbs, Lord Abinger said : " I never doubted 
 that Lord Coke was right, when he says of the stat. Westminster 
 2, ' Here be five kinds of improvments expressed, and these five 
 knids are put for examples ; and besides these enumerated, there 
 may be others, and yet it is not within the letter of the law.' 
 And his observations apply to several ancient statutes, the fra- 
 mers of which were not so prolific of words as the authors of mo- 
 dern acts of Parhament. In the present day, in framing a statute 
 the course is to employ all the rhetoric of conveyancers and special 
 pleaders, and to provide for every case that suggests itself to the 
 imagination of the person who draws the act. Formerly it was 
 otherwise, and courts of law were left to interpret the meaning 
 of the legislature." c 
 
 " Sometimes," says Lord Coke, " the makers of a statute put 
 the strongest case, and by construction the lesser shall be included. 
 In these cases they are put by way of example, and not as ex- 
 cluding other things of a similar nature. Thus, in the statute of 
 Gloucester ; trespass, (as has been held by construction,) is put 
 for debt, detinue, and covenant ; so, county court for hundred 
 court and court baron ; so, father for mother," &c. d 
 
 Sometimes things or places are named for excellency ; as Lon- 
 don, of cities and burghs privileged ; Thames, of rivers, &c. This 
 generality of expression induces an imphcation of other particu- 
 lars not expressed. 
 
 At an earlier period. Lord EUenborough thus expressed liim- 
 Belf, speaking of an ancient statute : " That, it must be remem- 
 bered, is a very ancient statute, passed at a period when no gTeat 
 precision of language prevailed. Where words are general and 
 loose, they will admit of a more extended construction ; when 
 they are precise, they exclude it." " In construing ancient stat- 
 utes," said Lawrence, J., " attention is always to be paid to the 
 language of the times." e 
 
 " Old acts of parliament," said Coleridge, J., in a case before 
 cited, " are framed with generahty and conciseness. In modern 
 statutes, the legislature is careful to express aU it intends, in so 
 many words, that to go beyond their necessary implication is to 
 
 a Williams v. Wilcock, C A. & E. 335. b 9 Carr. & P. 129. 
 
 c 9 IL & W. 830. d Co. Comm.,stat. Gloucester, c.ll. 
 
 e 7 East, 134.
 
 CONSTRUCTION OP WORDS. 207 
 
 make, and not to interpret law." a In another case he says, " In 
 a modem act, and one so full of words as this, the literal con- 
 struction is the safe one." b 
 
 The second exception is, where there will be absurdity, incon- 
 venience, and injustice, in giving efl'cct to the plain words of the 
 act. For words are to be construed " accorduig to grammatical 
 construction, avoiding absurdity." c 
 
 First, " the graniniatical sense of the words used, should be ad- 
 hered to ; but if that bo contrary to, or inconsistent with, any 
 declared purpose of the statute, or involve any inconsistency or 
 absurdity, the grammatical sense must be modified so far as to 
 avoid inconveniences, d 
 
 " No interpretation can be admitted which is inconsistent with 
 the language of the act fairly understood, and considered with 
 reference to the previous state of the law ; nor any which, al- 
 though consistent with the Avords used, cannot give them some 
 reasonable operation." c 
 
 In Perry v. Skinner, /' Parke, 13., said : " The rule by which we 
 are to be guided, is to look at the precise words and to constnie 
 tliem in their ordinary sense, unless it would lead to any absur- 
 dity or manifest injustice ; and if it should, so to vary and modify 
 them as to avoid tliat which certainly could not have been the 
 intention of the legislature. "We must put a reasonable constnic- 
 ti.on upon their words." 
 
 The determination of the judges in Edrick's case, g is very de- 
 - rving of attention. " And the Judges said : They ought not 
 (.:•> make any construction against the express letter of the stat- 
 w'w ; for nothing can so express the meaning of the makers of an 
 ;ic-t, as their own direct words, for index animi scrmo. And it 
 would be dangerous to give scope to make a construction in any 
 (;ase against the express words, when the meaning of the makers 
 doth not appear to the contrary, and when no inconvenience will 
 thereupoii follow ; " and therefore, in such cases, ^' a verbis legis 
 noil est reddendum^ — " Divinatio est, non interpret at io, quce omnino 
 rci'cdit a litcra." 
 
 " The right rule of construction is to intend the legislature to 
 have meant what they have actually expressed, unless some man- 
 ifest incongruity would result from doing so, or unless the con- 
 text clearly shows that such a construction would not be the righl 
 one." A " 
 
 a Gwyun v. Burroll, 2 Scott, N. C. IG. c Per Parke. B. 
 
 .'< Pteg. V. Eose, 6 Q. B. Eep. 157. e Per Coleridge, J. 
 
 ./ Per Alderson, B ; Keg. v. Frost, 9 Carr. & P. 129. 
 
 f 2 JI. <t 'W. 471 ; and .see Stocker v. "Warner, 1 Q. B. Eep. 14S. 
 
 (I 8ee Butler and Baker's case, 3 Eep. 27 ; Edrich's case, 5 Co. p. 118. 
 
 /* Per Parke, J., E. v. Inhabitants of Banbury, 1 A. <fc E. 1-12. 
 
 Note 22. — ^TVhen a statute is expressed in clear and precise terms, when the 
 sense is manifest and leads to nothing absurd, there can be no reason to refuse
 
 208 CONSTEUCTION OF WORDS. 
 
 The fii-st question to be asked, is, whether the words used in an 
 act of parUament have a clear and intelligible sense and mean- 
 ing? All acts of parliament are to be constraed according to 
 their exact meaning, if they have any which can be discovered ; 
 unless that construction would lead to some manifest absurdity. 
 But where the meaning is ambiguous ; where the clauses are con- 
 fused and contradictory, and the words such as admit of two sen- 
 ses ; the court will adopt that construction which will best carry 
 the just and reasonable intention of the legislature into effect. 
 
 In Frost's case, the question was, whether the words, "at the 
 same time,"_in the statute, meant simnl et semel ; at the same in- 
 stant; or within the same interval of time. The delivery of the 
 lists required, had, in point of fact, been made within tlie time 
 i-eqaired (ten days,) but not mio Jlutu with other instruments. It 
 was contended, on the part of the crown, that the words admit- 
 ting of two interpretations, that construction should be adopted 
 nhich would best effectuate the intention of the legislature, — 
 that a mere literal interi)retation would lead to inconvenient con- 
 sequences. On the other side, it was urged that there was no 
 absui'dity, to which the language could lead ; and therefore that 
 the court was bound to obey the plain language of the act. The 
 judges were divided in o])inion upon the point, a 
 
 "Where words conflict with each other," says Story, h "where 
 the_ different clauses of an act bear upon each other, and would 
 be inconsistent, unless the natural and common import of words be 
 varied, construction becomes necessary, and a departure from the 
 obvious meaning of words, is justifiable. But if, in any case, the 
 plain meaning of a provision, not contradicted by any other pro- 
 visions in the same instrument, is to be disregarded, because we 
 beheve the framers of that instrument, could not intend, what 
 they say ; it must be one, where the absurdity and injustice of 
 applying the provision to the case, would be so monstrous, that 
 all mankind would, without hesitation, unite in rejecting the ap- 
 phcation." 
 
 a Eeg. V. Frost, 9 Car. & P. 129. 
 
 h Story on the Conflict of Laws, lutrod. Eemarks, p. 10. 
 
 the sense which it naturally presents. To go elsewhere in search of conjectures 
 in order to restrain or extinguish it, is to endeavor to elude it. Jackson v. Lewis 
 17 John 475 ; People v. N. Y. Cent. E. K. Co., 13 N. Y. 78. The great object of 
 llie maxims of interpretation is, to discover the true intention of the law ; and 
 when that intention can be indubitably ascertained, and it be not a violation of 
 fonstitutional right, the courts are bound to obey it, whatever may be their opin- 
 ion of its wisdom or policy. 1 Kent. Com. 468. 
 
 It is only when a statute is ambiguous in its terms, that courts may rightfully 
 exercise the power of controlling its language so as to give effect to what they 
 may suppose to have been the intention of the lawmakers, Wood v. Adams, 35 
 N Hamp. R 3G.
 
 CONSTRUCTION OF WORDS. 209 
 
 To effectuate the real intentions of the Icgislatui-e, and to give 
 a reasonable operation to the Avords thej have used, it has thus, 
 sometimes, become necessary, to put a constniction, not strictly 
 contrary to the words, but totally dillcrent to the mere literal con- 
 struction of the clauses of an act of parliament. -'■" 
 
 The statute of Avrecks has been already referred to, and the 
 provision that all gcjods are to bo carefully kept for a year and a 
 day, det-larcd to bu inapplicable to perishal)le commodities, which 
 in i)opular language, will not keep a long time. Here, according 
 to l>acon, the Avords are to be restrained atZ aptitudinem rei. 
 
 The stat. 1 E. 2, de frangentibus prisonam, says, that a prisoner, 
 who breaks prison, shall be guilty of felony ; yet, if a prison be on 
 tire, and a prisoner break it in order to save his life, he shall be 
 excused, a He is not to be hanged, because he would not stay to 
 be burnt. 
 
 The stat. 2 Geo. 3, c. 19, s. 1, enacts that " no person shall, 
 upon any pretence A\hatsoever, take, kill, or have in his posses- 
 sion, any partridge, between the 12th day of February (altered by 
 the 39 Geo. 3, c. 31, to the 1st of February), and the 1st day of 
 September." The defendant (a quahfied person) in the case of 
 Simpson v. Unwin, h had some partridges in his possession, sev- 
 eral days after February 1st. " Although this case," said Lord 
 Tenderden, "may be within the literal meaning of the words 
 taken b}^ themselves, we must not give to them a constniction, 
 which will not only be contrary to the general intention of the 
 legislature, but which will lead to this absurd consequence ; that 
 a party who might, at the last moment of the day on the 1st of 
 Febi-uary, lawfully kill a partridge, would be guilty of an oftence 
 by haAing the same partridge in his possession, at the earliest 
 moment of the 2d." Fer Patteson, J., " The statute must re- 
 ceive a reasonable construction ; I think it would be absurd to 
 say that a party who Idlls game within the time when he may 
 lawfully do so, nmst consume it all upon the last dav." 
 
 In Chapman v. Beecham, c LordDenman said : " The objection 
 on the words 'next ensuing,' cannot prevail ; we cannot refer the 
 words to the last antecedent, when by so doing, we turn the whole 
 into nonsense." In Finch's Discourse of Law, book 1, chapter 1, 
 
 ft llcniRcr v. Fopassa, Plow. 13. /« 3 13. & A. 131. 
 
 c 3 Q. B. Hep. 733. 11. v. Wright, 1 A. i E. 131. 
 
 Note 23.— Sometimes, when the words of a statute are obscure, the inteiiliou of 
 the legislature is to be collected from the cause or necessity of the statute, and 
 sometimes from other circumstances ; and whenever it can be discovered, it ought 
 to be followed with reason and discretion in the interpretation, although such in- 
 terpretation seem contrary to the strict letter of the statute, for what is within the 
 intention, is within the statute, and what seems to be within the letter, is not 
 within the statute, unless it be within the intention. Teople v. Utica Ins. Co. 
 15 John. 358, 1 Kent. Com. 4G2. 
 27
 
 210 CONSTRUCTION OF WORDS. 
 
 it is said : " Words of construction must be referred to the last 
 antecedent, — where the matter itself doth not hinder it." And 
 this necessary qualification is illustrated by a striking case. In 
 Guier's case, a an indictment for murder had the words : " John 
 Guier husband to the said Emehn Guier of Hambridge aforesaid, 
 in the county aforesaid, 3'eoman ;" and it was held that as " j-eo- 
 man" nmst refer to John Guier, and not to Emelin Guier, the 
 county also, related to the husband. -' 
 
 If sensible matter be alleged, insensible matter following, may 
 be rejected. If there be no uncertainty in the case, a word may 
 be referred to the only antecedent which can make sense of it. 
 R. Y. Wright, b And see Stracey v. Nelson, c that the relative 
 need not be, of necessity, referred to all the antecedents ; and the 
 judgment of Eolfe, B., that the relative may be referred to such 
 antecedents only, as -will give the clause a sensible and reasonable 
 construction, d 
 
 " When words, per se, are repugnant and very absurd, what is 
 necessary," it has been said, " may be supplied, by reasonable 
 intendment and good construction." Ijut it must be so supplied 
 ex viscerihus actus. A new term cannot be added to an act ; a 
 new sense may. 
 
 But where a sense can be added, the addition must be a neces- 
 sary implication from the words already used, in order to give 
 them a sensible meaning and effect. It proceeds upon the ground, 
 that the proposed addition is already necessarily contained, al- 
 though not expressed, in the statiite ; in which case it is not less 
 cogent, because not expressed. For, as the intention is generally 
 declared by words expressed and written, it also may be, bywords 
 necessarily implied, and therefore virtually written ; if imphca- 
 tion be needed to render the construction sensible. 
 
 A statute 5 Geo. 2, c. 20, imposed a penalty on persons piloting 
 ships " down the Thames." This was held by the court, not to 
 extend to vessels, which, having performed their foreign vogages, 
 are steered from one Avharf to another on the river for the purpose 
 of unloading their cargoes ; otherwise this absurdity would have 
 followed, that no person would have been liable to a penalty for 
 moving his vessel vp the Thames without a pilot ; but he could 
 not with impunity, move a yard down without a pilot, e 
 
 The stat. 29 Car. 2, c. 7, it was held, does not prohibit a baker 
 baking dinners for his customers on a Sunday. Lord Kenyon 
 said : " We should construe the statute so, that it may answer the 
 
 a 1 Dyer, 46 b. ?>]A. &E. 448. 
 
 cl2 M. &W.541. dlOM. &W. 728, 
 
 e K. V. Lamb, C T. E. 7C; K v. Neale, 8 T, 11, 241. 
 
 Note 24. — Laws which create crimes, ought to be so explicit in themselves, or 
 by reference to some known standard, that all may know what they prohibit. 
 United States v. Sha^-p, Tet. C. C. R. 118.
 
 CONSTRUCnON OF WORDS. 211 
 
 purposes of ])nLlic convenience, taking care at the same time that 
 Sunday should not bo jn-ofaiicd. The day will 1)C better observed 
 than if we adjudge this to be an oflence. It falls within the rea- 
 son of the exception." Ashurst, J.: " Though l)y this means, some 
 few journciyman bakers are kept to work on a Sunday, it enables 
 the rest of the community to attend public worship, which they 
 could not have an opptntunity of doing, if they had no means of 
 having their dinners drest from home." a 
 
 The stat. 23 Geo. 3, c. 40, imposing a duty on such instraments, 
 expressly says, that "no bill of exchange shall l^e received in 
 t^vidence, unless it be lirst duly stamped." On an indictment for 
 forging a bill of exchange, the objection was taken that it could 
 not be received in evidence unless it were first duly stamped. All 
 the judges held that it need not be stamped. It is not produced 
 as a good instrument, but as a false one ; and it is not competent 
 to the person making such false instrument, to say on a crimmal 
 inquiry, that it is not good on another account, h 
 
 The stat. 5 & G "\Vm. 4, c. 50, s. 08, confers a power of certify- 
 ing for the costs of a special jury, on the court before which an 
 indictment shall be "preferred." The correspontling clause in a 
 former act, 13 Geo. 3, c. 78, s. Go, said : " The court before which 
 any such indictment shall be iricd.'' Held by the court that the 
 word " preferred," must be understood to mean " tried." Per 
 Lord Deuman : " If we were to decide against it, we should de- 
 termine that the legislature have been guilty of a very extraor- 
 dinary omission ; for in a great nuijority of cases, the indictment 
 is preferred before a different court from that by which it is tried. 
 I am of opinion, therefore, that we may give to sect. 08 the con- 
 struction contended for." Per Coleridge, J.: " The different con- 
 stniction, would in three cases out of four, take away altogether 
 the effect of the clause." c 
 
 By the 2nd sect, of 3 & 4 Vict. c. 24, a judge's certificate, that 
 an action was really brought " to try a right" must be given im- 
 mediately after the verdict is delivered. The Court of Exchequer 
 in the cases of Thompson v. Gibson, (/ and of Page v. Pearce, e 
 have determmed that the word " immediately" does not mean as 
 soon as ever the verdict is delivered, but that the judge must 
 necessarily have some little time for consideration ; and, therefore, 
 that the word must mean, within a convenient time reasonably 
 estimated. And a decision by Lord Hardwicke, and other author- 
 ities support this construction of the word " immediately."/ But 
 
 a E . V. Younger, 5 T. R. 4.",!. 
 
 h W. V. Hawkeswood, E. 23. Geo. 3; 1 Leacli, 257; 2 East, T. C. 955. 
 
 c E. V. Upper Papworth, 2 East, 413; Eeg. v. Peiubritlge. 2 Law Journal, 1842, 
 coHim, Eeg. v. Preston, 2 Dowl, P. C. 593, 
 
 (?8M.&W. 288. elb. G77. 
 
 f lu strictness, " immediately" exchules all intermediate time and action, yet 
 sliall be construed "such convenient time as is reasonably requisite for doing a 
 thing." E. V. Francis, Ca. temp. Hardw. 114. Pynis v. Mittbrd, 2 Leon. 77.
 
 212 CONSTRUCTION OF WORDS. 
 
 see the case of Grace v. Clincli. a Where the judge had gone to 
 another assize town, it might be too late to grant the certificate. 
 In Shuttleworth v. Cocker, Maule, J., said : " It seems to be the 
 intention of the act to exckide any impression being made upon 
 the mind of the judge except what was produced at the trial ;" b 
 and Lord Abinger said, in a later case, that he apj^roved of, and 
 was ready to adopt, this principle. But in Page v. Pearce, the 
 same Chief Baron said, " If acts of parliament could be construed 
 literall}', consistently with common sense and justice, undoubtedly 
 they ought, and, if I could see upon this act of parliament, that 
 it was the intention of the legislature, that not a single moment's 
 interval should take place before the granting of the certificate, I 
 should think myself bound to defer to that declared intention." 
 
 But where the intention of the framers of a law cannot be clear- 
 ly seen, and where the meaning of the words used is obscure and 
 doubtful, in such cases, it is said, the consequences of a particular 
 exposition, may be considered in the construction. The legisla- 
 ture did not mean the statute to be inoi:)erative beyond all ques- 
 tion ; its design is not to be defeated, if it can be helped ; verba 
 debent intelligi cum effeclu. In construing a statute, if it be pos- 
 sible, no part of it, should be made void ; full sense and meaning 
 must be given to every clause and provision. So in a will, " one 
 spells as it were," said Lord Kenyon, " every word to get at the in- 
 tention." But where the intention of a testator is, as is expressed 
 in one of the old cases, " caxu et sicca, and senseless, and cannot 
 be known," the courts find out for him, the very last intention he 
 was likely to have entertained when he sat down to make a will, 
 viz : that he meant to die intestate ; and the will is held void. 
 
 In the construction of a statute it is the office of an expositor 
 to put such a sense upon the words, " that no innocent person 
 shall receive any damage by a literal construction." " Where a 
 statute Avill bear two inter])retations, one contrary to plain sense, 
 the other agreeable to it, the latter shall prevail." If Avords liter- 
 ally understood, bear only a verj absurd signification, it is neces- 
 sary to deviate a little from their primary sense ; and Blackstone 
 admits, that if, out of acts of parliament, there arise, collaterally, 
 any absurd consequences, manifestly contradictory to common 
 reason, acts are, with regard to those collateral consequences only, 
 held void. Such cases, indeed, are excepted out of the statute by 
 common sense, and the nonsensical words are said to be " con- 
 trolled by the common law." 
 
 Again, " 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, no fine levied by the husband 
 and wife, which is lawful, — and not, no fine levied by the husband 
 alone, which would work a wrong to the wife. 
 
 a 4 Q. E.Eep. 606. h 1 M. & G. 840.
 
 CONSTRUCTION OF WOIiDS. 213 
 
 TVTieie the meaning of a statute is doubtful the consequences, 
 may be considered in the construction ; but -where the meaning 
 is plain, no consequences it is said arc to ])e regarded in the in- 
 terpretation ; for this would be assuming a U'gislative authority, (i 
 The consequences are to be considered ; iov the courts will not 
 constnie acts oi parhament so as to admit of any absurd conse- 
 quences. " 
 
 But it may be asked, how is this doctrine to be reconciled witli 
 the dicta frequently occuring in decided cases, that the judges are 
 to expound tlie words of an act, according to their plain gi-am- 
 matical sense, without any regard to tlie consequences that ma} 
 follow from tlieir interpretation V 
 
 The answer is, that, /// the act of construction, and during the 
 ])eriod and gestation t)f interpretation, the consequences of an} 
 particular exposition, will be most unexceptionably, and properl}', 
 considered and weighed, for the sake of avoiding absurdity ; but 
 that after the court has arrived at a determinate conclusion, what 
 is the fit construction that the meaning and context require them 
 to put upon an act of parliament, the judges have nothing to do 
 with the consequences of their decision. In Pieg. v. The Justices 
 of Lancashire, b Patteson, J., said, " I cannot tell what conse- 
 quences may result from the construction which we must put 
 upon the statute ; bvit if mischievous, they must be remedied by 
 the legislature." In Rhodes v. Smethurst, c Lord Abinger said, 
 " A coiu't of law ought not to be influenced or governed by any 
 notions of hardship : cases may require legislative interference, 
 but judges cannot modify the niles of law." In Hall v. Franklin, d 
 Lord Abinger said, " AVe have been strongly pressed with the in- 
 conveniences that may result from the construction of the statute. 
 We are not insensible to them ; but the only proper cllect of that 
 argument, is to make the court cautious in forming its judgment ; 
 we cannot on that account put a forced construction upon the act 
 of parhament." 
 
 Other difficulties present themselves not so easy of solution ; 
 and other discrepancies will be found to occur, much harder to be 
 reconciled. 
 
 In treating of the construction of statutes by foreign jurists, a 
 
 a 10 Mod. 344. c 4 Mee. & W. G3. 
 
 b 11 A. & E. 157. d 3 M. & W. 259. 
 
 Note 25. — Where tho -n'ortls of a statute fixing the compeusatiou of a publia 
 officer are loose and obscure, and admit of two interpretations, they should ha 
 construed in favor of the officer. U. S. v. Moore, 3 Story 87. 
 
 If the grant of a franchise admit of two interpretations, that is to be adopted 
 which least restricts the public rights. Mills v. St. Clair Co., 8 How. 569; Ferine 
 V. Ches. & Del. Canal Co., 9 How. 172; Eice v. Min. & N. W. E. E. Co., IBlatch 
 360.
 
 214 CONSTRUCTION OF T^•OEDS. 
 
 passage "s\-as cited, containing tlie remark: " oniriim estmiisdc 
 Jini€77dis, quam siidant docfores." a And when the difficulties are 
 considered, not only of making peace and atonement between the 
 several disagreeing clauses and j)rovisos in statutes, but also of 
 reconciling apparently conflicting general principles, the observa- 
 tion will ajipear no less pertinent and just, as regards the inter- 
 pretation of acts of parliament. The great difficulty in the ex- 
 position of statutes, is the same, as is felt in the construction of 
 wills. In Counder v. Clark, Hobart, C. J., says, " AVe must pass 
 between two main grounds, so as to offend neither ; one, that the 
 devise must be taken according to the intention of the devisor ; 
 the other, that the intention must be so expressed in the will 
 written, that it may be certain to the court, and not against laAV." h 
 
 The difficulties arising in the construction of statutes, may be 
 illustrated by two recent cases (among many others), arising on 
 the construction of the late statute of Avills, 1 Yict. c. 26, ss. 3, 24 
 and 33. Johnson v. Johnson, c ajid Winter v. Winter, d The 
 former decision, seems to have proceeded on the gi'ound of a clear 
 and plain intention, expressed in, and upon the face of the act. 
 In the case of Winter v. Winter, Wigram, V. C, says, " Upon the 
 face of the act itself, I certainly can find nothing to exclude the 
 latter construction, in favor of the former ; and in the absence of 
 anything upon the face of the act to fix the meaning of the words, 
 I am bound, as well as I can, to fix that meaning, by considering 
 the policy of the act, and the objects it was intended to accom- 
 phsh." 
 
 Consulting the text writers and the reporters, it will be dis- 
 covered, that there are few subjects on which more contradictory 
 maxims and doctrines have been ventilated; than upon the re- 
 gard to be paid in construction, to the " pohcy of the act." -" 
 
 It is said in Avorks of authority e to be a sound general principle 
 in the exposition of statutes, that less regard is to be paid to the 
 words that are used, than to the ]-)olicy which dictates the act : 
 The King v. Hale ; /' The King v. The Mayor of Liverpool, g And 
 see a case decided on the policy. and provisions of the municipal 
 corporation act. Hine and Eeynolds.// 
 
 In the case of the The Inhabitants of St. Gregory, Taunton, J., 
 said, speaking of the case of The King v. Hipswell : " The judg- 
 
 a Ante, p. r 3 Hare Eep. p. 157. 
 
 6 Hob. 32. c/5 Hare, 30fi. 
 
 ^ 1 B. & C. 123. f Cro. Car. 330; 3 Lev. 82. 
 
 r/ c 1 A. &E. 176. 'h 2 Scott Eep. N. C. p. 419. 
 
 Note 26. — "What is called the policy of the government, with reference to any 
 IjarticTilar legislation, is too unstable a ground upon which to rest the judgment 
 of the court in the interpretation of statutes. Hadden v. Collector, 5 Wall. 107. 
 
 The courts are not bound by the construction placed upon a statute by one of 
 the executive departments, though such construction is entitled to respect. IT. 
 S. V. Dichron, 15 Pet. 161.
 
 CONSTRUCTION OF WORDS. 215 
 
 ment was rested by Mr. Justice liayley, partly on the considera- 
 tion of public policy; a very questionable and unsatisfactory 
 ground, because men's minds dilier much on the nature and ex- 
 tent of public policy." Williams, J., added : " The ground of pub- 
 lic policy, is a very unsafe one : it is best to adhere to the words 
 used in the act of parliament." 
 
 Deciding upon the jiolicy of an act, was called Ijy another 
 learned Judge (Burrough), " riding an unruly horse." 
 
 "Arguments," says Htory, " drawn from im])olicy or inconveni- 
 ence, ought to have little Aveight. The only sound princi]jle is to 
 declare iUi lex scripta est, to follow and to ol)ey. Nor if a princii)le 
 so just could be overlooked, could there be well found a more un- 
 safe guide in practice, than mt're policy and convenience. Men, 
 on such subjects complexionally differ from each other : the same 
 men differ from themselves at different times. The policy of one 
 age may ill suit the Avishes or the policy of another. The law is 
 not to be subject to such tiuctuatioiis."(/ 
 
 It has been shown, that etl'ect is to be given to the intentions of 
 the legislature, whenever the object of the framers of a law is ex- 
 pressed in apt terms, or can be clearly collected from the language; 
 they have used. The language of acts has been adverted to, and 
 it has been seen that when technical terms are used, they are to 
 be taken in a, technical sense; unless there be something in the 
 context to show that a different meaning Avas intended. In other 
 cases, Avords are to be taken in their ordinary sense, according to 
 grammatical construction ; and not extended beyond it, to com- 
 prehend cases Avithin the supposed meaning of the makers. To 
 this rule, there are tAvo exceptions : 1st, in the case of ancient 
 statutes ; and, 2ndly, Avhere a literal construction, Avould lead to 
 absurdity and mischief. 
 
 It remains to illustrate the rule — that effect cannot be given to 
 an intention not expressed. 
 
 Of this rule there seem to be Iavo branches. The first instance 
 that may be stated, is, Avhere the legislature may haA^e intended 
 to provide for a particular case, and yet not have earned its in- 
 tention into effect. " We can only say of the legislature," said 
 Lord Ellenborough in Eex v. 8hone, quod voluit noii dixit.'" b "If 
 the legislature intended more," said Lord Denman in Haworth v. 
 Ormerod, c " Ave can only say, that according to our o[)inion, they 
 have not expressed it." 
 
 Again, the subject may have been entirely overlooked by the 
 legislature. 
 
 A casus omissus can in no case be supplied by a court of law ; 
 for that would be, to make laws. Judges are bound to take the 
 act of parliament as the legislature have made it. d 
 
 a Conflict of Laws, Story 17. h 6 East, 518. 
 
 c 6 Q. B. Kep. 307. d 1 T. R. 52.
 
 216 CONSTRUCTION OF WORDS. 
 
 In E. T. Powell, as to what owners of carts driven in London 
 were liable to forfeiture, Ashurst, J., said, " The mischief which 
 the legislatiu'e wished to remedy, is the improper behavior of per- 
 sons driving carts in London, or the adjoining places. That mis- 
 chief is as much to be apprehended when the OAvner lives at a dis- 
 tance as when he resides in Loudon. However, the legislature 
 coutines the operation of the act to persons residing within pre- 
 scribed limits, and as the defendant does not live within those 
 liuiits he is not liable to the penalties of the act." a 
 
 " It is safer," said Mr. J. Ashurst, in a judgment on the game 
 laws, " to adopt what the legislature have actually said, than to 
 suppose what they meant to say. The heir apparent they have 
 qualified, from a supposition that the esquire was so already. I 
 cannot think it was their intention purposely to exclude the 
 father, but in fact they have done it." h 
 
 In Brandling v. Barringion, Bayley, J., said, "I certainly think 
 that the present case comes within tlie mischief intended to be 
 remedied by the stat. 8 Ann c. 14, s. 1, and I should have been 
 better satisfied if it could have been brought within the fair con- 
 struction of the words of that enactment. But I think we should 
 be attributing too comprehensive a meaning to the words of the 
 statute." Holroyd, 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 the 8 Anu. 
 c. 14." c 
 
 The result is, that to bring a case within the statute, it should 
 be not only wdthin the mischief contemplated by the legislature, 
 but also within the plain intelligible import of the words of the 
 act of parhament. 
 
 In a late case on the municipal corporation act, Lord Denman 
 said, " The legislature might have intended to give a concurrent 
 jurisdiction to the county and l)orough sessions, however mis- 
 chievous ; or it might have intended to prevent the evils, but not 
 •jarried its intention into efiect ; or the whole subject might have 
 f^scaped attention. In any one of these cases, we should be bound 
 to discover what the law is, and to declare it, without any regard 
 to the consequences of its imperfection." d 
 
 So, if words go beyond the intention, it rests with the legisla- 
 ture to make an alteration. " Our decision," said Lord Tenter- 
 den in a late judgment, " may, perhaps in this jiarticular 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 give efiect to Avhat 
 we may suppose to be the intention of the legislature." e In 
 another case, the same distinguished judge said, " The words may 
 
 a -IT. E.572. 6 1 T. R. 52. 
 
 c 6 B. & C. 475. d Reg. v. Justices of Shropshire, 2 Q. B. Eep. 04. 
 
 e E. V. Barham, 8 B. <t C. 104.
 
 CONSTRUCTION OF WORDS. 217 
 
 probably go beyond the intention, but if tlioy do, it rests with 
 the legislature to make an alteration ; tlie duty of the court is 
 only to construe and give eilect to the provisions." (t 
 
 An early instance of the courts giving effect to the jorovisions 
 of an act, wliich probably went beyond the intention of the legis- 
 lature, will be found in the construction put upon cap. 2 of the 
 statute of Mailbridgc ; it was there enacted, that in certain cases, 
 the distress being delivered up immediately, " ?/o/t 'piiniatar domi- 
 nmpcr rrdniiii/ioncin.'" "This brancli," says Lord Coke, "is in- 
 terpreted that the lord shall pay no line, and therefore, since this 
 act, by a consequent, (most probably not the design of the makers,) 
 no action of trespass ri ct ar)itis, lieth against the lord in this 
 case ; for then, he should pay a fine." (> 
 
 Although the intent of the legislature, is not to be collected from 
 any particular expression, l)ut from a general view of the whole of 
 an act of parliament, c it is often material to attend to the collo- 
 cation of words in a sentence. 
 
 When words are at the beginning of a sentence, they may gov- 
 ern the Avhole (/ as " Xidlus' liber homo ,-" — " All Avidows ;" — " Ense- 
 ment et en mcme le nutnere" <fec. e 
 
 When words are at the end of a sentence, they may refer to the 
 whole, g Thus the Avovds, per ler/em terrce, in cap. 29 of Magna 
 Cliarta, being towards the end of the chapter, have been always 
 held to refer to all the precedent matter. 
 
 But if words are in the middle of a sentence, /" and sensiblj- ap- 
 ply to a particular branch of it, can they be extended to that 
 which follows ? Agreeably to reason, and in gi-ammatical con- 
 struction, it should seem not ; but as statutes are read Avithout 
 breaks and stops, it is not any time clear, that words belong to 
 any particular branch of a sentence ; it must be collected fi'om the 
 context, to what they relate ; and they are often, as Avill be seen, 
 to be read distributively — reddendo singula f>in(juH>^. 
 
 An expression which has precedence in the order of the words, 
 must be taken to have been used with reference to things or per- 
 sons of a higher order, or superior rank. Thus where by the 
 London tithe act, the houses of three classes of persons are ex- 
 empt, to wit, the houses of great men, (magnafesj, noblemen and 
 noblewomen, (and it was no uncommon thing for the nobility to 
 reside in the city in those da3's) ; Eichards, cliief baron, said, " I 
 inchno to think that the order of the words, (which is, by the 
 i*ules of grammar a criterion of construction,) imports, that gi-eat 
 men must mean persons superior in certain respects to noblemen 
 and noblewomen, of which description there are certainly persons 
 
 a Notley v. Buck, 8 B. & C. 1G4. f< 2 Inst. 105. 
 
 c See ante, p. 573. d 2 Inst. 45; id. 18. 
 
 e See post. Mag. Char. Merton. Glouc. /2 Inst. 50. 
 
 3 8 B. & C. 94. 
 
 28
 
 218 CONSTEUCTION OF WOEDS. 
 
 in this country. This defendant, (the Dean of St. Paul's) is how- 
 ever, not one of either chxss of those privileged persons." a 
 
 Though used in their plan and ordinary sense, general words 
 nia}' be limited by the relative word " such," to a particular de- 
 scription of thing contained in a preceding section, h Thus, the 
 •ith section of the stat. 3 Geo. 4, c. 39, which requires the defeas- 
 ance to a warrant of attorney to be written on the paper or parch- 
 meut on which the instrument itself is written, has been twice 
 held to apply only to such warrants of attorney as fall within the 
 former sections of the act, and which are void against the as- 
 signees of a bankrupt, and has been consequently held not to be 
 void betAveen the parties, c " Alwaj's in statutes, relation shall 
 be made according to the matter precedent." d 
 
 Eelative words in an act of parliament (words of reference in a 
 subsequent statute) will make a thing pass as well as if it had 
 been particularly expressed in the act itself ; e Verba illata inesse 
 vidottKr. Clauses of reference, incorporating provisions of former 
 statutes, take eiiect as fully as if they had been repeated, and re- 
 enacted in the body of the latter act, with relation thereto. " It 
 is a sound rule of construction, but applicable," said Lord Den- 
 man in a recent case, " to modern as well as to ancient statutes, 
 (perhaps indeed more so, from necessity, in consequence of the 
 looseness of expression which now prevails ;) that ' in the con- 
 stniction of general references in acts of parliament, such refer- 
 ence must be made only as will stand with reason and right.' "/ 
 " Where a provision is, in its original and natural application 
 limited in respect to time and place, it is to give to general words 
 of incorporation, a meaning contrary to reason, and it may be to 
 justice, to hold that they apply to it." r/ A clause of reference in 
 an excise statute was held to extend only to the general powers 
 and provisions of that law, and not to every particular clause. 
 
 " The fair construction," said Ashurst, J., " to put upon the 
 clause of reference in question, (which was a general clause), 
 seems to be this : — that all the general powers and provisions 
 given and made in acts in pari maferie, shall be virtually incor- 
 porated in this, but that such provisions as are always considered 
 as special provisions, shall not. The power of appealing from the 
 judgment of the justices seems to be this kind, and does not at- 
 tach without being expressly given, h 
 
 a The Warden of St. Paul's v. the Dean, 4 Price G5. 
 
 6K. V. Gwenop, 3 T. E. 135; R. v. Marks, 13 EastlG5; and for the effect of 
 "such," 2 Inst. Ill; 11 Eep. 33. 
 
 c Morris v. Mellor, 6B. & C. 41G. Holroyd, J. diss.; and Bennet y. Daniel, 10 
 B. &C. ; Parke, J. diss. 
 
 d 6 Eep. 76 b. /2 Inst. 287. 
 
 e Wheatley v. Thomas, Eaym. 54. ^ 6 Q. B. Eep. 343. .^ 
 
 h E. V. Justices of Surrey, 2 T. E. 504.
 
 ATFIRMATIVE AND rEEMISSrVE WOEDS. 219 
 
 An iustance of the ill effect of the incoq^oration of provisions 
 by reference to another act, niay be seen in lieg. v. The llecorder 
 of Bath, a in which case Lord Dennian says : " As it seems to us 
 hardly possible to suppose it to have been the intention of the 
 legislatm-o, that an individual, interested and aggrieved should not 
 have the power of qut^stioniiig the validity of a vote at the ses- 
 sions, we cannot avoid noticing with regret, that recourse should 
 have been had to the method of giving an appeal by reference to 
 another statute, instead of giving it i)lainly and directly by the 
 statute itself." Sei; also the (^ueen v. Stock, /> that a right (;f ap- 
 peal cannot be implied, but nnist be given by express words. 
 
 The rights of the crown can never be taken away by doubtful 
 wdrds, or ambiguous expressions, but only by express terms. 
 Thus, a statute saying in general terms that the decision of the 
 sessions shall be hnal, or that the proceedings shall not be re- 
 moved by cerfiordfi, or the like ; will not take away the certiorari 
 at the instance of the crown, unless there be some words in the 
 act to show that the legislature intended that the crown should 
 bo barred. <■ 
 
 If a statute prohibit contraband goods under a penalty, a sub- 
 sequent statute declaring goods contraband, will draw the penalt} 
 after it. d 
 
 Allusion was before made to the manner in which prior acts 
 may be controlled (either enlarged or restrained) by subsequent 
 acts. This doctrine may be further illustrated by the case of li. 
 v. Gwenop. e The 22 Geo. 3, c. 44, was passed to protect soldiers, 
 setting up trades, from incurring the penalties of the 5 Eliz. c. 4. 
 The stat. 24 Geo. 3, c. G, enlarging the privileges by the former 
 act 22 Geo. 3, c. 44, declared that they should be in*emovable 
 during the time they exercised any trade. 
 
 It is generally to be taken that the legislature only meant to 
 modify or repeal the provision of any former statute, in those cases 
 where such its objects is expressly declared. 
 
 It is always to be presumed that the legislature, when it enter- 
 tains an intention, will express it, and that too, in clear and ex- 
 pHcit terms. 
 
 Affirmative words, it has been already seen, do not take away 
 the common law, — a former custom, — or a former statute. So, 
 general words do not take away a particular benefit or privilege ; 
 as the stat. West, 2. c. 18, wliich gives an defjit, does not take away 
 the privilege an infant has that ho shall not be sued during his 
 nonage, if an ehgit be against the heir of a conusor being an in- 
 fant./ 
 
 a 9 A. & E. 877. 6 8 A. & E. 405. 
 
 c K. V. Allen, 15 East, 310. E. v. Inhab. of Cumberlaml, G T. E. 194; 3 B. & 
 P. 354. 
 
 d 1 Price. 182. e 3 T. E. 135. 
 
 / 2 Inst. 395.
 
 220 ATFIEMATIYE AND TEEMISSn^E WORDS. 
 
 "Words of permission sliall in certain cases be obligatory. Where 
 a statute directs the doing of a thing for the sake of justice, the 
 "svord may means the same as the word sliall. The stat. 23 Hen. G, 
 0. 10, says the sheriff, Ac, may take bail; but the construction has 
 been, that he shall be bcnmd to take bail. So, if a statute says, 
 that a tiling may be done which is for the public benefit, it shall 
 be constiiied that it nmst be done. Exception was taken to an in- 
 chctment, (upon the stat. 14 Chas. 2, c. 12j, against churchwardens 
 and overseers, for not havmg made a rate to reimburse a constable, 
 and it was urged, that the statute only puts it in their power, by 
 the word may, to make such a rate, biit does not require the doing 
 it as a duty, for the omission of which they are punishable. The 
 exception was not allowed ; and the court hold that an indictment 
 hes against them, if they refuse it. a "' 
 
 Sometimes words and sections are governed and explained by 
 conjoined words or clauses : Noscitur a socio. Where of words or 
 clauses in conjmiction, one has received a natural, or a technical, — 
 a strict or enlarged interpretation, it is often contended that the 
 others shall be taken m a Uke sense. 
 
 Where the words are general, and a statute is only declarator}^ 
 of the common law, it shall extend to others, besides the persons or 
 
 all. V. Flockwoia Inclosmre Commrs., 2 Chitty 251. K. v. Barlow, Salk. fi09; 
 Vern. 154. 
 
 Note 27. — With us, the word may, is sometimes a permlss[\:6 and sometimes a 
 directory word in the construction of a statute. May, in a statute, means must, 
 whene-ver third persons or the public have an interest in having the act done 
 which is authorized by such permissive language. Lucas v. Ensign, 4N. Y. Leg. 
 Ob. 142, N. Y. Com. Pleas. It may be construed to mean shall, when the i^ublic 
 or individuals have a claim dejure, that the jjower shall be exercised. Newburgh 
 Turnpike Co. v. Miller, 5 John Ch. 113; Malcolm v. Eodgers, 5 Cow. 188. But 
 no general rule can be laid down on this subject, further than that such exposi- 
 tion ought to be adopted as shall carry into effect the true intent and object of the 
 enactment The ordinary meaning of the word, which is permissive, ought to be 
 adopted, and must be presumed to be intended, unless it would manifestly defeat 
 the object of the provision. Miner v. Mechanics' Bank, <tc., 1 Pet. 64; N. Y. & 
 Erie K. Pt. Co. v. Coburn, C How. Pr. E. 224; Buffalo Plank EoadCo. v. Commis- 
 sioners of Highways, 10 How. Pr. E. 239 . In this last case it was held, that if the 
 rights and interests are not concerned, or private persons have no lawful claim 
 or interest in the exercise of the power, the -word may, by which the power was 
 conferred, should receive its ordinary meaning, and should be construed as con- 
 ferring a discretionary power upon the ofBcer or public body. See also Supervi- 
 sors V. United States, 4 W^all. 435; City of Galena v. Army, 5 Wall. 705; Nave v. 
 Nave, 7 Ind. 91; Livingston v. Lamin, 14 N. Y. E. 67; Hutson v. Mayor of New 
 York, 9 N. Y. 169. The vfovd shall, it has also been held, can be substituted for 
 may, in the interpretation of a statute, when the good sense of the entire enact- 
 ment req^uires the change. People v. Common Council of Brooklyn, 22 Barb. 404.
 
 DECLAILVTORY WORDS. 221 
 
 things named ; a the stronger cases only are put, the weaker in- 
 chided : — thus where the king's bench oiJy is mentioned, the pro- 
 vision was hekl to extend to the other principal couiis. -' 
 
 Hometimes, on the contrary, the expressions used are restrictive, 
 and intended to exckide all thmgs which are not enumerated — "cx- 
 ]>res.sio nnius est exdusio alterms." As exception strengthens the 
 force of a laAv in cases not excepted, so, according to Lord Bacon, 
 tinumeration weakens it in cases not enumerated. Thus, coal-mines 
 are rateable by the exjn-ess words of the stat. 43 Eliz. c. 2; l)ut it 
 lias been held, that, as other mines v.-ere known in the countr'S' 
 •when the statute passed, the menti(m of this inferior species of mhie 
 amounts to a tacit exemption or exclusion of all others, such as 
 lead, tin, copper, ii'on or any other but coal mhies. h Where cer- 
 tam specific tilings are taxed, or subjected to any charge, it seems 
 probable that it Avas intended to exclude everything else, even of a 
 shnilar nature; and a fortiori, all things different in genxs and de- 
 scription, fi'om those which are enumerated : as slate or lime (piar- 
 ries, where coal mines arc named. 
 
 Where a general act of parliament confers innnunities which ex- 
 pressly exempt certam persons from the eflect and operation of its 
 provisions, it excludes all exemi)tions to which the subject might 
 Jiave been before entitled at common law. The introduction of the 
 exemption is necessarily exclusive of all other independent, extiin- 
 sic exceptions, c The maxim is clear, "expi-essum facit cessarc 
 r' •ihiiii.'" d Affirmative specification excludes unplication. 
 
 Statutes also are sometimes only directoiy what is to be done ; 
 at other tunes compulsory : that is, according to theu' provisions 
 discretionary or imperative. The stat. 43 EKz. c. 2, s. 5, enacted 
 that male apprentices should be bound out by the parish till the 
 age of twenty-fom- : yet a binding till twenty-one was held to confer 
 a settlement ; for the statute is only du-ectory, and not compulsory 
 in this respect, e 
 
 In Pearse v. Monice, Taunton, J., said, " I understand the dis- 
 tinction between directoiy and imperative statutes to be that a 
 
 a 2 lust. 25G; Stat. West. 1, cap. 4G. 
 
 h 11. V. Cuuuiugham, 5 East, 478. 
 
 c The Warden of St. Paul's v. The Dcau, 4 Price, 78. 
 
 d 3 T. E. 442. • e K. v. Woolstanton, 1 Bolt. CIO. 
 
 Note 28.— Declaratory statutes arc not common, or of much expediency in this 
 country. They were resorted to in England to revive old customs, which had 
 fallen into disuse, or which had become disputable; sometimes to resolve doiabts 
 or difficulties, and to declare what the common law is; and sometimes to explain 
 doubts in regard to old or modern statutes, and in these respects, parliament as- 
 sumed the judicial power of giving authentic interpretation. Such powers can 
 only be exercised here by virtue of the legislative power, which is limited; and as 
 we have r.lready shown, (page ), cannot act retroactively upon statutes which 
 have had judicial interpretation from the courts, nor upon vested rights.
 
 222 DIEECTOEY AXD IMPEEATIVE STATUTES. 
 
 clause is directory, wlien the provisions contain mere matter of dii'ec- 
 tion and nothing more ; but not so, where they are followed by 
 such words as are used here, viz : that auytlmig done contrary to 
 such provisions shall be null and void to all intents. These words 
 give a ch'rect, positive, and absolute prohibition. If they are not 
 obhgatory, I cannot conceive to myself, any words which can have 
 a prohibitory force." « ■"■' 
 
 a 2 A. ct E. 94. 
 
 Note 29. — The provisions of a law wliich are merelj' directory, ai'e not to be con- 
 strued into conditions precedent. Whitney v. Emmott, 1 Bald. 303. When the 
 terms of a statute leave room for any administrative discretion to be exercised, it 
 cannot be interpreted to be mandatorj^ or to be a condition precedent. But in 
 a case where the salary of an officer is fixed by statute, which declares it to be a 
 county charge, and that the si;pervisors shall audit and allow it as it becomes 
 due, the statute is imperative, and the supervisors have no discretion. Morris v. 
 The People, 3 Denio 381. A statute directing the mode of proceeding bypublic 
 officers, is to be deemed directory, and a precise compliance is not to be deemed 
 essential to the validity of the proceedings, unless so declared by statute. People 
 V. Cook, 8 N. Y. 67. So too, the provisions of a law fixing the time for interme- 
 diate steps, after jurisdiction has been once acquired, are to be deemed directory, 
 and a disregard of them does not avoid the proceedings. U. S. Trust Co. v. U. S. 
 Fire Ins. Co., 18 N. Y. 199. Generally, the rule is, when a statute specifies the 
 time within which a public officer is to perform an act regarding the rights and 
 duties of others, it will be considered as directory merely, unless the natujre of the 
 act to be performed, or the language of the statute shows that the designation of 
 time was intended as a limitation of power. People v. Allen, 6 Wend. 487; Jack- 
 son V. I'oung, 5 Cow. 2G9. 
 
 The statute which requires the officer before whom proceedings are had against 
 an absconding, concealed, or non-resident debtor to make and file his report 
 within twenty days after the appointment of trustees, and the latter to cause their 
 appointment within thirty days, (2 K. S. 12, §§ 61, G8), is directory merely, and 
 the omission to comply with these requirements within the prescribed time, will 
 not vitiate the proceedings, or invalidate a conveyance of property made hy the 
 trustees. AVood v. Chapin, 13 N. Y. 509. 
 
 The provision in the statute limiting the time for a referee to make his rejiort, 
 itc, is merely directory. An extension of the period beyond a year, does not 
 work a discontinuance of the proceedings. Matter of Empire City Bank, 18 N. 
 Y. 200. 
 
 The statute (2 Pu S. 369, § 38), which requires the sale of land under execution, 
 where it consists of known lots or parcels, to be made separately and not in gross, 
 is directory, and though a sale made in gross is voidable at the instance of the 
 party aggrieved, it is not void. Cunningham v. Cassidy, 17 N. Y. 276. 
 
 A surrogate is required by 1 E. S. 447, § 10, on granting letters of administra- 
 tion, to take from the applicant a bond with two or more sureties ; yet the omis- 
 sion to do so is not jurisdictional, and can be amended. Bloom v. Burdich, 1 
 Hill. 130.
 
 DIRECTORY AND IJIPERATm: STATUTES. 223 
 
 The stat. 5 Eliz. c. 4, requires the binding of an apprentice to be 
 for seven years ; and the 41st chiuse avoicls all mdentures made 
 otherwise than according to that law; yet it is estabUshed by de- 
 cisions, that indentures lor a less time are voidable only, as between 
 the parties.^' ]n the case before cited of Pearse v. Monice, Lord 
 Denman said : " It is extraordinary tliat there should be cases in 
 
 a It. V. Ht. Nicholas, iii Ipswich, IBiirr. S. C. 91. 
 
 ^Vhcl■l', by a statute, deeds executed by commissioner of loans are required to 
 be subscribed by two witnesses, and but one witness subscribed as such, but the 
 deed was duly acknowledged, it was held good. Hatch v. Benton, 6 Barb. 37. 
 
 A provision of the statute (Code. § 289), that an execution against a married 
 woman, shall direct the levy and collection of the amount against her from her 
 separate property, and not otherwise, is directory merel}'. Thompson v. Ser- 
 geant, 15 Abbott. 452. And iu general, whore a statute requires an official act to 
 be done by a given day, for a public })urpose, it shall be construed as merelj' di- 
 rectory in regard to the time. Ex parte Heath, 3 Hill. 42. 
 
 The provision of the Code which requires a judge by whom a cause is tried 
 without a jury, to file his decision, in writing within twenty days after the trial, 
 is simply directory. Stewart v. Slater, 6 Duer. 84. 
 
 The provision of the city charter of New York, that every person ai^pointed to 
 office under the citj' government shall take the oath of office before the mayor, has 
 been held to be merely directory; if it cannot be so taken, it may be adminis- 
 tered by some other officer. Caniff v. The Mayor, &c., 4 E. D. Smith, 430. 
 
 A statute requiring the court to limit the time of the sentence of a convict, so 
 that his imprisonment in the state prison shall expire between May and Novem- 
 ber, is merely directorj^; and a failure to comply with such requirement does not 
 render the sentence void. Miller v. Fiukle, 1 Parker Crim. R. 374. 
 
 This class of cases must not be confoi;nded with those where a power or fran- 
 chise has been created by statute which fixes or jjrescribes the mode of its exer- 
 cise. In such cases, the power must be exercised in the mode pointed out in the 
 act, and iu no other, and those upon whom it is conferred, are confined strictly to 
 the act creating it. Head v. Armory, The Providence Ins. Co., 2 Cranch. 127. 
 In such cases, the act is the enabling statute ; it creates all the power that is pos- 
 sessed, and all who act under it, must clothe their proceedings with all the solem- 
 nities jn-cscribed by the power which the act demands. When a statute directs a 
 person to do a thing in a certain time, without any negative words restraining him 
 from doing it afterwards, the naming of the time will be considered as directory 
 to him, and not a limitation of his authority. Pond v. Negus, 3 Mass. 232; 
 People V. Peck, 11 Wend. C04; Ex parte Heath, &c:, 3 Hill. 42; People v. Holley, 
 12 Wend. 486; Gale v. Mead, 2 Denio 232; The People v. Allen, 6 Wend. 480; 
 People v. Dawson, 25 N. Y. 399; The People v. Cook, 14 Barb. 290, 2; Barnes v. 
 Badger, 41 Barb. 98, 9. 
 
 A statute however, which declares " it shall be the duty of the supervisors, &c., 
 to raise a certain sum of money by tax for the county buiHings," is mandatory, 
 and the courts can compel them to execute it. Caswell v. Allen, 7 John. 63. 
 
 The words shall or may, when used in a statute, are imperative only when the
 
 224 DHIECTOEY AND IMPEHATR'E STATUTES. 
 
 wliieli it has been held, that the words ' null and void,' should not 
 have their usual meaning ; but the word ' void' has certainly been 
 constiiied as ' voidable' where the pro\iso was mtroduced in faror 
 of the pai-ty who did not wish to avoid the instrument, etc." 
 (" Volenti non Jit iujuria.) Per Patteson, J., "In Pv. v. Hipswell 
 and Pi. V. Gravesend, the court has refused to carry that mode of 
 constniction fiu'ther, and has given the words ' null and void,' tlieii- 
 
 public iuterests or rights are conceruecl. Malcolm v. Rodgers, 5 Cow. 188. And 
 the rule is general, that where a duty is imposed upon officers by statute, whether 
 by words, which are peremptory in themselves, or merely permissive, they have no 
 discretion to refuse its performance as against a party having an absolute interest 
 in it. Martin v. Mayor, &c., 1 Hill. 545. 
 
 And in all cases, in the courts, and especially in courts of inferior jurisdiction, 
 where the authority to proceed is conferred by statute, and where the manner of 
 obtaining jurisdiction is prescribed by the statute; and in all cases where one 
 may be divested of his estate by a proceeding under statute- authority, the mode 
 of proceeding directed, is mandatory, and must be strictly complied with, or the 
 proceeding will be utterly void. Corwin v. Merritt, 3 Barb. 341; Harrington v. 
 The People, 6 Barb. G07; The People v. Common Council of Brooklyn, 22 Barb. 
 405; Bloom v. Burdick, 1 Hill. 130; People v. Schermerhoru, 19 Barb. 541; Ex 
 parte Common Council of Albany, 3 Cow. 358; Barnard v. Vich, 21 Wend. 8U; 
 Brisbane v. Peabody, 3 How. Pr. E. 109; Eodgers v. Murray, 3 Paige 390; At- 
 kins v. Kiunan, 20 Wend. 249; Sherwood v. Eeade, 7 Hill. 431; Sharp v. Spier, 4 
 Hill. 7C; Morse v. "Williamson, 35 Barb. 472; Sherman v. Dodge, G John. Ch. 107; 
 Denning v. Smith, 3 id. 331; Cohoes Co. v. Goss, 13 Barb. 138; Hubbell v. Wel- 
 don, Lalor lb9. The true distinction is this: where the provision of the statute 
 is the essence of the thing required to be done, and by which jurisdiction to do it 
 is obtained, it is mandatory; otherwise when it relates to form and manner, and 
 where an act is incident, or after jurisdiction has been obtained, it is dlreciory. 
 Marshall v. Langworthy, 6 Hill. 046; Striker v. Kelly, 7 Hill. 9. 
 
 There is a class of cases which hold, that whether a statute is to be regarded as 
 directory omoi, is made to depend upon the employment, or failing to employ 
 negative words which import that an act shall be done in a partictilar manner or 
 time, and not otherwise. Slayton v. Hulings, 7 lud. 144; King v. Inhabitants of 
 St. Gregory, 2 Ad. & El. 99. This rule does not appear to be universal. The 
 use of negative words, is very often conclusive of an intent to impose a limitation, 
 but their absence is by no means equally conchasive that the statiite was not 
 destined to be mandatory; this was held in District Township v. Dubuque, 7 
 Iowa 284. Lord Mansfield's rule is doubtless a better one, that whether the 
 statute was mandatory or not, depended upon whether the thing directed to be 
 done was the essence of the thing required. Eex v. Locksdale, 1 Burr. 447. This 
 is doubtless the general New York rule, as to the duties of public officers. A 
 htatute directing the mode of proceeding, is directory, and not to be regarded as 
 essential to the validity of the jiroceedings themselves, unless it be so declared in 
 the statute. People v. Cook, 14 Barb. 290, S. C. 8 N. Y. 67. In other cases they 
 are directory, when they relate to some immaterial matter where a compliance is
 
 DIRECTORY AND IMrERATIVE STATUTES, 225 
 
 full effect." Per WLllianis, J., " No instance of that constniction of 
 'void' as voidable, has been given except in settlement cases:" (srd 
 qmvrc) ; " and in these, I do not know why the obtaining of a set- 
 tlement should not have been held to be 'an intent and purpose' 
 witliin tlie meanuig of the enactments then in question." See Gov- 
 ernors of Bristol Poor v. Wait, a And in Pveg. v. The Inhabitants 
 of Fordham, b Coleridge, J., said, " I decline puttmg any constrac- 
 tion upon the words ' of no forc^e and validity.' AVords as strmgent 
 as these, have been modified in many of the old cases; but I 
 should be soiTy to extend that mode of inteipretation. But Avhere 
 the efiect niay"^be grannnatically confined to the clause immechate- 
 ly preceduig, and there is as good reason (so far as the language is 
 concemed), for one inteqiretation as the other, one may fahiy look 
 at the consequences of each intei-pretation, in order to determine 
 
 al A.&E. IGl. Ml A. & B. 88. 
 
 matter of convenience rather than substance. People v. Schermerliorn, 19 Barb. 
 558. But when a power to affect property is conferred by statute upon those who 
 have no personal interest in it, such power can be exercised only in the manner 
 and under the circumstances specified ; the power must be strictly pursued, id. 
 Strict compliance is necessary to confer jurisdiction, id. 559. This makes it 
 mandator}'. 
 
 A similar rule seems to have been adopted in the state ol Michigan, in a case 
 involving the validity of proceedings in the sale of lauds for taxes, which is : 
 " What the law requires to be done for the protection of the taxpayer is nianda- 
 iory, and cannot be regarded as directory merely. Clark v. Crane, 5 Mich. 154. 
 I understand the same rule prevails in Illinois; see Marsh v. Chestnut, 1-i HI. 223. 
 In Massachusetts, Chief J. Shaw laid down the rule, in a case involving the legal- 
 ity of a tax under the provisions of a statute, as follows: " One rule is very plain 
 and well settled, that all those measures which are intended for the security of 
 the citizen; for securing an equality of taxation; and to enable every one to know 
 with reasonable certainty, for what real and i^ersonal estate he is taxed, are con- 
 ditions precedent; and if they are not observed, he is not legally taxed, and he 
 may resist it in any of the modes authorized by law for contesting the validity of 
 the tax. But many regulations are made by statute, designed for the information 
 of assessors and officers, and intended to promote method, system and uniform- 
 ity in the modes of proceeding, the compliance or noncompliance with which 
 does in no respect affect the rights of fcaxi;)aying citizens. These may be con- 
 sidered as directory; officers may be liable to animadversion, perhaps to punish- 
 ment, for not observing them, but yet their observance is not a condition prece- 
 dent to the validity of the tax." Torry v. Milbury, 21 Pick. G7. In Wisconsin, 
 the rule as to what are directory statutes, is this: " Where there is no substantial 
 reason why the thing to be done might as well be done after the time prescribed 
 as before; no presumption that allowing it to be so done, it may work an injui*}' 
 or wrong; nothing in the act itself, or in other acts relating to the same subject 
 matter, indicating that the legislature did not intend that it should rather be 
 done after the time prescribed, than not to be done at all; there the courts as- 
 
 29
 
 22G DIEECTOEY AND IMrEEATnT]: STATUTES. 
 
 tlie clioicc. It is said that the whole rate shall be mill and void if 
 the form fail to satisf}' any one of numerous requisites prescribed. 
 But if you confine the clause of avoidance to the last requisite, the 
 enactment becomes so reasonable and easy m practice, that one is 
 glad to find the construction admissible." Per Lord Denman : 
 "Perhaps, this discussion, and others on similar phrases, may in- 
 duce the legislature to say on future occasions, in Avliat respects 
 they mean any particular provisions to be void, which they declare 
 to be so, in general terms ; and what consequences they uitend, 
 should result from this invahdity. In the absence of this, we have 
 gi'eat ditficulty in all such cases." 
 
 Yet, wlien a local statute enacted that certain guardians should 
 have power to bmd children apprentices, " provided such chikben 
 be not bound for a longer term than until they shall liave' attained 
 certain specified ages," it was held, that an indenture binding a 
 boy for a longer term than that allowed by the act, was not abso- 
 lutely void, but only voidable, a Per Lord Denman : "This is as 
 mild a form of dh-ecting, and only directing, as can be." Taunton, 
 -T., thought " the enactment of a iDcrmissive nature, &c." 
 
 It will be seen hereafter under the head of penal statutes, and the 
 strict rales of constniction applied to such cases, that the words 
 " utterly void," and "utterly null and void," have been restrained 
 and cut down in other cases besides those relating to the settlement 
 of the poor, to which Mr. J. Williams confined them m his obser- 
 vations in the case of Pearse v, Monice before cited. True it is, 
 that the most nimierous instances of a wide and spirited departure 
 from the words of the statute occur in this branch of the law ; 
 whicii as being directed by the constitution of the country to be ad- 
 mmistered by country gentlemen, ought to have been more entirely 
 free fi-om evasions of its letter, and nice and subtle distinctions. 
 
 The statute 43 of Ehzabeth, c. 2, passed in IGOl, never receii^ed 
 a just construction, foimded upon the ^^■ords of the act, " asinhabi- 
 
 a E. V. The Inhabitants of St. Gregory, 2 A. & E. 99. 
 
 Bume, that the intent was, that if not done within the time prescribed, it might be 
 done afterwards. But when any of these reasons intervene, then the limit is 
 established. State v. McLean, 9 Wis. 292. 
 
 In Illinois, it is held, that under a directory statute, a duty should be performed 
 at the time specified, but may be valid if performed afterwards. Under a per- 
 emptory statute, the act m\i8t be performed at the time specified. Webster v. 
 French, 12 111. 302. 
 
 And in general, it may be laid down as a rule, that when a statute directs cer- 
 tain proceedings to be done in a certain way, or at a certain time, and the form, 
 or period, does not appear essential to the judicial mind, the law will be regarded 
 as directory, and the proceedings under it will be held valid, though the com- 
 mand of the statute as to form and time has not been strictly obeyed; the tiiae 
 and manner not being the essence of the thing required to be done.
 
 DIRECTORY AND IJirERATIVE STATUTES. 227 
 
 tujit" aiul " occupier," till the year 1810, iii the cases of Rex. v. 
 Nicliolson, and AVilliams v. Jones, « when the law upon this subject 
 was for the lirst time settled. Li the case of liex v. The Mei-sey 
 and Irwell Navigation Company, Parke, J., says, "Many of the 
 early cases of rateability seem to have proceeded upon a disposi-- 
 tion of the court, (pardonable, but perhajxs not strictly coiTect,) to 
 extend the operaticjn of the statute of Elizabeth, so as to include 
 as large a fund as possible in the rate." h 
 
 Tlie stat. 3 Wni. and Mary, c. 11, s. 7, says that any unmanied 
 person /(o^ IkicIjkj child or c/illdicn, may gain a settlement by hiring 
 and service for a year ; and yet a Avidower, having chikh'en who 
 have gained settlements in their own rights, has been deemed com- 
 petent to gain a settlement, c 
 
 The stat. 8 and 9 Wm. 3, c. 70, declares, that no sciTant shall 
 gain a settlement in any parish, " unless he shall continue and a])ide 
 in the same service for one whole year." In the case of E. v. Clay- 
 hydon. Lord Kenyon said : " It is now too late to say that a con- 
 structive service pursuant to a Iming for a year wUl not confer a 
 settlement, although I very nnich doubt whether a gi'eater certain- 
 ty on this subject would not have been obtamed by attending strictly 
 to the words of the act ." And again in II. v. St. Maiy Lambeth : 
 — "If this point were not encumbered with decisions, and we were 
 to revert to the words of the act of Parliament," etc. So in E. v. 
 King Pyon's, Lord Ellenborough said, "I do not mean to dis- 
 turb any of the cases which have been already decided, but I am 
 not inclined to cany any of the decisions fini/ier sfill froui. the 
 l^lain luords of the ad.'' 
 
 The words, "poor person who shall be brought before any justice 
 for the purpose of being removed," it was stated before, have been 
 construed to mean "the question concerning the removal of any 
 poor person;" being, says Lord Ellenborough, "the plain sense and 
 spirit of the act, though somewhat straming upon words of it." d And 
 Le Blanc, J. says, " a contrary constniction would give effect to 
 the letter by the repeal of the very object of the statute ; though I 
 cannot agi'ee that every case, where a constniction has been put 
 upon a statute, in some instances directly contrary to the words of 
 it, is a fit precedent to be followed by us." e 
 
 In the King v. The Justices of Leicester, the question arose, 
 whether the stat. 54 Geo. 3, c. 81, was imperative. It was conten- 
 ded on one side, that before the 54 Geo. 3, for regulating the time 
 of hokluig the Michealmas quarter sessions was passed, all tlie 
 (juarter sessions were holden under certain ancient statutes, which 
 were deemed merely directory ; mid quarter sessions holden at other 
 times than specified in the statutes, were always considered good. 
 
 a 12 East, 34G. c Anthony v. Cardigan, 2 Bott. 172. 
 
 hdB.&C. 111. d Ante, p. 5o8. 
 
 eR. V. Everdon, 9 East, 101.
 
 228 AITIEMATR-E AXD NEGATR-E STATUTES. 
 
 The stat. otfc Geo. 3, merely changed the tune for holding the 
 Michaelmas quarter sessions fi-om the week after Michaelmas to 
 the week after the lltli of October : it should therefore receive a 
 construction similar to that Avliich had been put upon the earlier 
 statutes made in pari materie, viz. that it is directory only, and 
 not imperative. To this it was answered : — That Stat. 54 Geo. 3, 
 is imperative : That, admitting the former acts to have been di- 
 rectory, this statute seems to take away the discretionary power 
 of the justices : for it appoints a new time instead of that formerly 
 fixed. That, tliis must (if any language can) be considered imper- 
 ative. 
 
 In giving judgment, Lord Tenterden said, "Looking at the 
 earlier statutes upon this subject, we find that, by the 12 Eich. 2, 
 c. 10, the justices are required to keep theu* sessions in every 
 quarter of the year at least, but no particular days are specified. 
 By the 2 Hen. 5, s. 1, c. 4, they shall make their sessions four 
 times in the year, Michealmas, Epiphany, Easter, and the Trans- 
 lation of St. Thomas the Martyr, and oftener if need be. The 
 modern statute merely substitutes the week after Michaelmas, &c. 
 So long ago as the time of Lord Hale, the earlier statutes were 
 considered directory : — 'It is very plain,' Lord Hale says, 'that the 
 quarter sessions are variously held in several counties, yet those 
 are each of them good quarter sessions ; for these acts, especially 
 that of 2 Hen. 5, are only directive and in the affirmative.' "It has 
 been asked," proceeds Lord Tenterden. "what language will make 
 a statute unperative, if the 54 Geo. 3, c. 84, be not so ? Negative 
 words would have given it that efiect, but those used are in the 
 afiirmative only." a 
 
 Erom these expressions the conclusion is sometimes drawn, that 
 "negative words will make a statute imperative," which is incon- 
 testable ; adding "words in the affirmative are du-ectory only." b 
 But where affirmative words are peremptory, as that "the forms of 
 proceedings set forth in the schedule annexed shall be used;" 
 Lord Kenyon observed, "I cannot say that these words are merely 
 directory ;" and a material variance from the form prescribed was 
 in that case held fatal, the justices not having pursued the author- 
 ity of the statute, c '" 
 
 Negative words will make a statute imperative ; and it is appre- 
 hended, affirmative mcuj, if they are absolute, explicit, and peremp- 
 
 a E. V. Leicester, 7B. & C. 12. c Davison & Gill, 1 East, G4. 
 
 b Harrison's Index. 
 
 Note 30. — Affirmative words in a statute may be construed as a negative of 
 wLat is not affirmed. Byron v. Sundburgh, 5 Texas R. 428. 
 
 Affirmatives in statutes that introduce new laws, imply a negative of all that is 
 not in purview. So that a law directing a thing to be done in a certain manner, 
 imijlies that it shall not be done in any other manner. U. S. v. Case of Haa 
 Tenals, 1 Paine 40G, Danes Abr. vol. C, 5'Jl to 593, and cases cited.
 
 AFFIRMATIVE AND NEGATTV'E STATUTES. 229 
 
 tory, and show that no discretion is intended to be given ; and 
 especially so, where jmisdiction is confci-red. 
 
 And with rog;ird to a form presciiljed by i\ie act, it should be 
 observed that where a statute directs a pai-ticuLir mode of proceed- 
 ing or gives a particular f(;rm, that fonn nmst be observed ; — '^A^oii 
 ohnervata forma infertur adinillatio actus /" a Ou recoverie est clone 
 en especial case "per estatnt, il coveit que home aver touts voles accord 
 al statut."b But, says Lord Mansfield in li. v. Loxdale, c "there 
 is a known distinction between circumstances which are of the 
 essence of atlihig recjuiredto be done by an act of Parliament, and 
 clauses merely directory. The precise timi", in many cases, is not 
 of the essence, while on the 43 Lli/. c. '2, nobody ever thought tlie 
 number of overseers discretionary." 
 
 The 1-lth sect, of 4 Geo. 4, c. 75, (the Maniage Act,; pomts out 
 the mode in which licenses are to be obtamed, and the matters to 
 be sworn to by the parties or one of them ; and one of those mat- 
 ters, where either of the parties, not being a widower or widow, 
 shall bo imder the age of twenty-one years, is, that the consent of 
 the jjerson or persons, whoso consent to such man-iage is required 
 under the provisions of this act, has been obtained thereto. Then 
 the 16th section specifies the persons who shall have jiower to 
 consent; and proceeds: — "and such consent is hereby required 
 for the man'iage of such person so under age, luiless there shall be 
 no person authorized to give such consent." The language of 
 this section, Lord Tenterden observes, is merely to reqidre consent ; 
 it does not proceed to make the maniage void, if solemnized with- 
 out consent. The 23d section enacts, not that the maniage shall 
 be void, but that all the property accruing from the maniage shall 
 be fort'eited, and shall be secured for the benefit of the mnocent 
 party, on the issue of the maniage, etc., d and the act was held to 
 be onlv dhectoiy. 
 
 "Wliere the superior courts have a juiisdiction, it can only be 
 taken from them by the express words of an act of parliament, or 
 by_ necessary unpiication."e But in 8 Bing. 394, Tindal, C. J., 
 said, "Yet where the object and intent of the statute manifestly re- 
 quire it, words that appear to be i)crmissive onlv, shall be con- 
 strued as obhgatorv', and shall have the efi"ect of ousting courts of 
 their jurisdiction." Li that case, on a full analysis of the statute 
 in question, the courts thought the jurisdiction was taken away. 
 
 The words "it shall be laAvful" are imperative, where, and "only 
 where, public duty requires the thing to be done./ 
 
 The words "shall and lawfully may," were held ia Blewett v. 
 Gordon, r/ as explained by the context, not to be obhgatory ; and 
 see 10 Sim. 470. 
 
 a 2 Inst. 388. c 1 Burr. 447. 
 
 h Stat. Gloucester, cap. 4. d R. v. Birmingham, 8 B. it C. 20. 
 
 e Per Ashurst, J., 4 T. E. 109. / See ante, p. 604. 
 
 g 1 Dowl. P. C, N. S.
 
 230 AJFFIEMATKE A^B NEGATRTE STATUTES. 
 
 The same words in Steward v. Graves a were held imperative, in 
 accordance with the views of the framers of the act then under con- 
 sideration, (7 Geo. 4, c. 66). But the acts under which the respec- 
 tive companies were consituted, were very different. 
 
 "Words sometimes var}^ m their import, accordmg to tlie subject 
 to which tliej are appHed. Hence it is often said they are to be 
 understood in a certam sense, "u-'dlnn the vieauwg of a pariicidnr 
 ad ;" that is, they are to be construed with reference to the sub- 
 ject-matter to which they are there appHed : so that the same 
 words receive a different construction in different statutes. 
 
 In Staniland v. Hopldns, b Lord Abinger said, " The court is well 
 aware of the difficulty of puttmg a construction free fi-om doubt 
 and perplexity on this act of parliament (the municipal corpora- 
 tion act) arising fi'om the endeavou.r to frame by one act of parlia- 
 ment one universal charter for all municipal corporations and to 
 combine with that object, all the prmciples of cor^wration law that 
 are to be found in a long series of juihcial decisions." 
 
 General words in an act of parliament are often, where the sense 
 requires it, and m furtherance of the intention, to be taken dis- 
 tributely, "reddendo singula singulis.''' Tliey are thus applied to 
 the subject-matter to which they appear by tlie context most 
 properly to relate, and to which they are really most applicable. 
 Thus the words " according to the provisions of the said act, and 
 of this act," obviously import that the requisitions of two acts, (that 
 act itself, and another act therein before-mentioned,) in then- re- 
 spective particulars are to be duly complied with; as if the one un- 
 der its circimistances require signature to an instrument only, and 
 the other that it be under hand seal, c 
 
 Thus also, in the construction of the words, "for money or other 
 good consideration paid or given" in the stat. 13 Eliz. c. 5, "paid" 
 is refen-ed to money, and " given" to "consideration." A man de- 
 vised to "A. B. 100 sheep, ten bullocks, and 10/. payable quarter- 
 ly ;" these words payable cjuarterly, have reference to the rent ; 
 for ten bullocks per aimimi camiot be dehvered quarterly. 
 
 In Keg. V. Cumbervvoiih Half, d where the words were, "the feed- 
 ing of a cow by and on the land." Patteson, J., said : " I think 
 we must say ' reddendo singula singulis,' that the feeding was to be 
 'on' the land while there was food on it, and by the owner of the 
 land with hay, at other times." 
 
 In Ft. V. Faulkner, the words of an act were made to have a sen- 
 sible constniction, by being taken chstribu lively. A power of com 
 mitment for contempt is not to be vested by an inferential con- 
 struction of an act of parliament, because, in a general clause, it 
 invests a commissioner with the character of a judge of record, e 
 
 a 2 M. & G. 7C0. /; 9 M. & W.195. 
 
 c 7 B. & C. 570. d 2 Q. B. Rep. p. 49. 
 
 el C, M. &E.525.
 
 REMEDIAL STATUTES. 231 
 
 Though a statute gives inaccurate iifimes to things, if the court 
 can discover its meaning, it will so expound it, as to give force to 
 tlie intention of the k'gishiture ; thus it seems a statuable requisi- 
 tion of tlio "gi'eat seal of Great jhitain" (used improperly, since 
 the old great seal was, soon after the union with Ireland, destroyed 
 in the presence of the Lord Chancellor), is substantially satisfied 
 by the use of the great seal of the United Kingdom, a 
 
 So much for the text, or letter, which has largely engaged our 
 attention. The sense and spirit of an act, however, — its scope and 
 intention, are i)rimarily to be regarded in the constiniction of 
 statutes, and it matters not that the terms us(;d l)y the legislature 
 in deliveruig its commands, are not the UKJst a])t to express its 
 meaning, j)rovided the object be plain and intclligiljle, and ex- 
 pressed with sufhcient distinctness, to enable the judge to collect it 
 from any part of the act. The object once understood, judges are 
 so to construe an act, as to suppress the mischief or advance the 
 remedy. But yet the court is not at lil)erty,even for that purpose, 
 to introduce or exclude Avords from any clause of a statute.', but is 
 bound to construe the words which the clause contauis, with refer- 
 ence always to that which appears to be plamlj^ and manifestly its 
 object, b 
 
 A remedial act shall be so construed as most eifectually to meet ^. 
 the beneficial end in view, and to prevent a failure of the remedy, y 
 As a general rule, a remedial statute ought to be construed hber- 
 ally. Receiving an equitable, or rather a benignant, interpreta- 
 tion, the letter of the act will be sometimes enlarged, sometimes 
 restrained, and sometimes it has been said, the construction made 
 is contrary to the letter : which should l)e read — ultra the letter, 
 and confined to ancient statutes. ^' 
 
 Thus, it is laid down, that a statute may be extended by con- 
 struction, to of her cases within the same mischief and occasion of 
 the act, though not expressly within the words. The stat. 9 Eich. 
 2, c. 3, gives a wi-it of error to him in reversion, "if tenant for 
 life, tenant by curtesy, &c., lose in a '' pixvcipe ;" resolved, that 
 although the statute speaks only of reversions, yet remainders are 
 also taken to be within the purview thereof, c 
 
 a R. V. Bullock, 1 Taunt. 80. c Winchester's case, 3 Rep. 4. 
 
 h Bloxam & Elsce, 6 B. & C. 174. 
 
 Note 31.— In construing a remedial statute, which has for its end the jiromo- 
 tion of important and beneficial public objects, a large construction is to be given, 
 ■when it can be done without doing violence to its terms. Wolcott v. Pond, 19 
 Conn. 597. 
 
 This rule applies especially in statutes giving a right to appeal, which are to bo 
 liberally construed as in furtherance of justice. Pearson v. Lovejoj-, 53 Barb. 
 407. So public statutes, in regard to public improvements. Hudler v. Golden, 
 36 N. Y. 446; Candee v. Hey ward, 37 N. Y. 653.
 
 232 EEMEDIAL STATUTES. 
 
 The stat. of Marlbridge, cap. 29, gives a remedy to tlie succes- 
 sors of abbots, priors, &c., ^Uid bona eccleske repetenda." Bona ec- 
 desice suce are the words of the statute, upon which Lord Coke ob- 
 serves : " 1st. If an obligation be taken from the predecessor, it 
 is within this statute. 2d. The successor shall have, by the 
 equity of this statute, an action of trespass for cutting down of 
 trees, and carrying them away. Wherein it is to be observed, that 
 acts that give remedy for wrongs done, shall be taken by equity." a 
 
 Everythmg that can, by the most beneficial interpretation, be 
 comprehended under the word "goods" in its most enlarged sense, 
 ought, in this case, to have been embraced by that act ; but to in- 
 clude anything which could not, by the most indulgent accepta- 
 tion, under any favorable ch'cumstances, answer to the legal de- 
 scription of "goods,"* was, it is humbly conceived, to supply what 
 the legislature had omitted, (whether designedly or otherwise), and 
 therefore to make, and not interpret, law. 
 
 The same statute had provided before, (cap. G), that " in feoff- 
 ments to the heir, to defraud the lords of the fee of their ward- 
 ships, no chief lord should leese (lose) his ward." The act was 
 construed to extend equally to a grant, fine, recovery, lease and 
 release, confirmation, or other conveyance. But then the words 
 of the statute are pe?" Imjusmodifraudem nvllus capiialiH,&:c. By 
 such fraud, hujusmodi, "that is," says Lord Coke, "such in mis- 
 chief, or such in inconveniency ; and therefore, all other fraudu- 
 lent feofiments, tending to the same end, are within the statute, 
 whatsoever colorable pretext they have." h 
 
 Such statutes, it is laid down, as give remedy which was not at 
 common law, shall be taken by equity ; as writ of entry in casu 
 proviso is given by the stat. of Gloucester, cap. 6. And by the 
 equity of the statute, a man shall have a writ of entry ?w consimili 
 casu. c The words of the 13 Eliz. of fraudulent grants are, " Be 
 it therefore declared, ordained, and enacted," &c. ; and therefore 
 Hke cases in semhiahle mischief shall be taken within the mischief 
 of this act. But why ? — by reason, it is added, of this word (de- 
 clared), whereby it appears what the law was before the making 
 of this act. d In Glover v. Cope, Lord Holt extended the 32 Hen. 
 8, c. 34, perhaps somewhat questionably, by equity, e 
 
 The reason why a case, not within the letter of a statute, is 
 sometimes held by an equitable constraction to be within the 
 meaning of it, is, first, that the lawgiver could not set dovm. every 
 
 a 2 Inst. 152. 6 2 lust. 111. 
 
 c Bro. Pari. pi. 20; Kelw. 96 a, pi. 6. d Co. Litt. 290 b. 
 e 3 Lev. 326; Show. 281. 
 
 * A chose in action, as an obligation, &c., is not within the stat. 21 Hen. 8, con- 
 cerning larceny by servants in going away with, or embezzling their master's 
 goods to the value of 40s. Bonds, indeed, are now liable to be taken in execxi- 
 tion by statute, 1 & 2 Vict. c. 110, s. 12.
 
 REMEDIAL STATUTES. 233 
 
 case in express terms ; and, secondly, that a case within the mis- 
 chief must have been intended to be within the remedy of an act. a 
 
 Plowden (after Aristotle) points it out as the best way to form a 
 right judgment whether a case be within the equity of a statute, 
 to suppose the hiwmaker present, and that you have asked him the 
 question, Did you intend to comprehend tliis oaseV Then you 
 must give yourself such answer as you suppose he, lacing an up- 
 right and reasonable man, would have given. If this be, — " that 
 he did mean to embrace it," you may safely hold the case to be 
 within the equity of the statute ; for while you do no more than he 
 would have done, you do not act contrary to the statute, but in 
 conformity thereto, h 
 
 But nnist not such a doctruie necessarily lead to speculations 
 the most vague, and reasoning the most desultory ; to the most 
 arbitrary and the most convicting decisions? Every judge is un- 
 fortunately in the case here supposed, to answer for himself, and 
 not, as Cicero expresses it, " Jaihere in, consilio Ic^jan.'' Is he not 
 sure to make the answer favorable, whenever he inclmes to think 
 a case within the mischief? Such a notion surely, could only be 
 supported, by admitting at once as a piinciple, (what has been 
 broadly stated, spealdng of old statutes which laid down general 
 rales in the fewest words), that "judges have power over statute 
 laws, to mould them to the truest and best use, according to rea- 
 son and best convenience ;" c as if the legislature had abdicated 
 its functions, delegating all its powers and duties to the judges. 
 
 Much sounder, applied to acts of our own times, seems the doc- 
 trine of Jones, J., in the case of James and Finney, that "It is too 
 general a ground, to put cases upon statutes, where tilings shall be 
 taken by equity ; but eveiy statute stands upon its particular rea- 
 son, upon consideration of the parts of the statute, — the mischief 
 before, and what tilings are intended to be remedied by the same 
 statute.'V^ So, when a statute commences with a particular enum- 
 eration, no other thing shall be taken by equity. Unfortunately, 
 many cases are extant as authorities, which are inconsistent with 
 the juster views of the province and duties of judges at present en- 
 tertained. Lord Tenderden obsers^ed : " There is alw'ays danger 
 in giving efifect to what is called the equity of a statute ; it is much 
 safer and better to rely on and abide by the plain words, although 
 the legislature might have provided for other cases, had their at- 
 tention been directed to them." c The legislature, as was once well 
 observed by Mr. Justice Heath, " is always at hand," to supply 
 deficiencies, or to correct mistakes. 
 
 Again, a remedial statute shall be extended by equity to other 
 persons besides those expressly named. /' The statute of Circum' 
 specie agatis, <fcc., names only the bishop of Norwich, but has been 
 
 a 1 Inst. 2i. b Eyston v. Studd, Plow. 467. 
 
 c Sheffield & Eatcliffe, Hob. 3iG. d Jones, 422, 423. 
 
 e 6 B & C. 475. / Porter's case, 1 Eep. 25. 
 
 30
 
 234 REMEDIAL S^TATUTES. 
 
 always extended, by an equitable construction, to other bisliojDs. 
 Upon "v^'lLicll doctrine the foUowmg observations were made in 
 Piatt's case : a "It is not unusual in acts of parhament, especiaUj- 
 in the more ancient ones, to comprehend by construction a gcner- 
 aJitij, M'here express mention is made only of a parficukir; the 
 particular instances being taken only as examples of all that want 
 redress in the kind, whereof the mention is made." Thus the act 
 1 Eich. 2, c. 12, orders that the Avarden of the Fleet shall not per- 
 mit prisoners in execution to go out of the prison by bail or baston, 
 yet it has been adjudged that this act extends to all gaolers, b 
 
 The remedy given by the 9 Ed. 3, c. 3, against executors, has 
 been always extended, by an equitable constniction, to adminis- 
 trators. And the gTound is plain, that it reaches to all others in 
 like degi'ees. Thus, where a statute gives action of waste against 
 tenant for life or years, — by the equity of the statute, the action lies 
 by tenant for half a year or less, c In the matter of Briant, clerk of 
 the day rules in the king's bench prison, the court held, that though 
 the clause requiring the residence of the marshal, did not in terms 
 extend to the other officers, yet, considering the duties of those 
 officers, in whom the public reposed a considerable confidence and 
 trust, etc., (fee, it Avas evident that the legislature intended to re- 
 quhe the personal residence of these officers, and jiarticularly of 
 this person.f^ 
 
 Again, a remedial statute shall be constmed by equity to ex- 
 tend to other things besides those expressly named. Uses were 
 not within the stat. de donis, but " are taken within the equity ;" e 
 and in Chudleigh's case, Lord Coke furnishes numerous instances 
 of acts made " against the fraud of uses," having been construed 
 hberally and by equity, beyond the letter./ 
 
 A statute made jjw bono publico, shall be construed in such man- 
 ner that it may, as far as possible, attam the end proposed, g 
 Therefore the New Eiver water act was holden, although only the 
 city of London be therein mentioned, to extend to places adjacent ; 
 because all statutes made for the convenience of the pubHc, ought 
 to have a hberal construction, — to be expounded largely, and not 
 with restrictions, h 
 
 Again, it is, (somewhat too generally), laid down, that all 
 statutes made to redress fraud, and to give a speedier remedy for 
 right, being in advancement of justice, and beneficial to the pub- 
 lic, shall for that reason be extended by equity, i 
 
 Again, a remedial statute will be extended by equity to other 
 places than those mentioned within a statute. Thus, in a question 
 
 a Plow 30. ^ 2 Jo. 02, in Plummcr and Whichcot. 
 
 Eyston v'. Studd, Plowd. 407. d 5 T. E. 509. 
 
 e Corbet's case, 1 Eep. 88. _^ /I Kep. 131. 
 
 fj Pierce and Hopper, Str. 253. 
 
 'h New Paver Company v. Graves, 2 Vern. 431; Sty. 302. 
 
 i Wembish and Tallboys, Plow. 59.
 
 REMEDIAL STATUTES. ^ 235 
 
 as to tho riglitfiil custody of a ward, thoiigli it was found by tlio 
 verdict that the ward in that case bad in fact departed out of the 
 house of lier mother, yet in judgment of hiw it was held the mother 
 still had the custody of her ; such custody being inseparably an- 
 nexed to the i^erson of the mother, _/«?-e nalune. a If one in exe- 
 cution makes his escape, and fhes into another county, it may be 
 argued that this shall bo an escape, although he be taken on a 
 fresh suit, because the sheriii' cannot have the custody of him in 
 another county, his authority not extending thither f Ijut it was 
 adjudged no escape, h 
 
 In like manner, statutes have been made to extend by constrac- 
 tion to a finte not mentioned ; or to another time than what is 
 mentioned, in the statute. Tho stat. Westm. 2, cap. 11, limits no 
 time within which the accountant therein mentioned shall l)e im- 
 prisoned ; yet it ought to be done presentl//, (27 H. G, 8, a.) and 
 the reason is given in Fogassa's case, that the generality of tho 
 time shall be restrained to the present time, for the benetit of him 
 upon whom the pain may be inflicted. And a justice of the peace 
 upon view of the force, ought to connuit the offender presenllij. c 
 
 So, a remedial statute shall be extended to later provisions by 
 subsequent statutes. It was before stated, and explained by in- 
 stances, that statutes may extend to matters of subsequent crea- 
 tion ; but it is also propounded and remains to be illustrated, that 
 a subsequent statute may be, as the expressions vary, " taken 
 within the meaning," or " holden within the equity," of former 
 statutes. Thus, a devise to a woman, of land, for term of her life 
 or in tail for her jointure and in satisfaction of dower, is a join- 
 ture witliin the act 27 Hen. 8, although land was not de%'isable till 
 32 Hen. 8. " And it is frequent in our books," says Lord Coke, 
 " that an act made of late time, shall be taken within the equity 
 of an act made long before. As the stat. of Marlbridge, w^hicli 
 was made 52 Hen. 3, gave the wardship of the heir of the tenant 
 who held by knight's ser\'ice, notwithstanding a feoflfment made 
 by collusion ; at which time and two Imndred years more after ; 
 that is to say, till the 4 Hen. 7, c. 17, which gave the wardship of 
 the heir of cestui/ que trust, the heir of cestuy que use, was not in 
 ward; and yet it is held in 27 Hen. 8, 9 a. b., that if cestuy que 
 use after tho stat. of 4 Hen. 7, makes a feoflfment in fee by collu- 
 sion to defraud the lord of his ward, it is taken within the equity 
 of the stat. of Marlbridge." (/ 
 
 With a lilvo-view, to promote the object of an act, the letter of 
 a statute is sometimes restrained by an equitable construction; 
 and it is held that a case out of the mischief intended to be rem- 
 edied by a statute, shall be construed to be out of the piu'view, 
 though it be within the words of the statute, e The words of the 
 
 a Eatclifi"s case, 3 Rep. 39. b Boytou's case, 3 Eep. 44. 
 
 c Plow. 45. (i Vernon's case, 4 Eep. 4. 
 
 e 2 Inst. 386.
 
 236 REMEDUL STATUTES. 
 
 statute lately quoted, of 2 Westm. c. 11, are general, that all 
 baililis and receivers, who, in passing their accounts before audi- 
 tors assigned, shall be found in arrear, may be committed to the 
 next gaol : yet, if an infant bailili' or receiver be found in arrear, 
 he shall not be committed, for he is not, by reason of his want of 
 discretion, within the equity of the statute.a 
 
 If a law be made, that whoever does a certain act, shall be ad- 
 judged a felon, and suffer death, yet, if a madman do tliis,he shall 
 be excused ; for, as the action is not to be imputed to him, but to 
 an involuntary ignorance brought upon him by the hand of God, 
 he is not within the reason of the law. h 
 
 " Though the words be general," savs the ancient Plowden, 
 " they are to be reduced to a particularity by exposition made ac- 
 cording to the intent of the act. Those statutes which compre- 
 hend all things in the letter, the sages of the law have expounded 
 to extend but to some things ; those which generally prohibit all 
 people from doing such an act, they have inteqjreted to pennit 
 some persons to do it ; and those which include every person in 
 the letter, they have adjudged to reach some persons only : all 
 founded upon the intent ; collected, by considering the cause and 
 necessity of the act, and comparing one part with another, and 
 sometimes by foreign circumstamces." 
 
 Where particular words are followed by general ones, the latter 
 are to be held as applying to persons and things of the same kind 
 with those which precede, c The right of voting in cities and 
 boroughs is conferred on the occupiers " of any house, warehouse, 
 counting-house, shop, or other building ;" a cowhouse is within 
 the act. The term building is not to be taken in its largest accep- 
 tation, but must be explained by the accompanying words. It 
 w^ould not include a wall or bridge, though they are "buildings ;" 
 but it will, a cowhouse or a stable.*:? So, the large general words 
 " other tenements and hereditaments," will have to be restrained 
 to things ejusdem generis with those before specified. See the 
 cases of Eex. v. The Manchester "Water Works, e and R. v. Mos- 
 ley, /" where it was adjudged that the word "hereditaments" was 
 to be construed with reference to the words previously used. 
 Those words shewed, that the legislature in the act in question, 
 referred to things of a corporal nature only. 
 
 Thus it appears, that the letter of a remedial statute may be 
 enlarged or restrained by a liberal, or what is called an equitable 
 construction, and there are also certain cases which are of neces- 
 sity, by construction, excepted out of statutes. Such are cases out 
 of the meaning of the law, and therefore not held to be within its 
 operation, though included in the terms of it. It is principally 
 
 a Zouch and Stowell, Plow. 305. h Evston and Studd, Plow. 465. 
 
 c Sandiman v. Breach, 7 B. & C. 96; 6 A. & E. 729; 1 N. & P. 791. 
 d Whitmore V. Bedford, 5 M. & G. 13. e 3 D. & E. 20; 1 B. & C. 680. 
 f3D. &R. 335; 2 B. & C. 226.
 
 HOW BTATTTES AKE TO BE CONSTRUED. 237 
 
 with reference to such cases that, lastly, it is said, that a remedial 
 statute shall be ex])ouiided "contrary to the words, ' or ''contrary 
 to the general Avords," or merely " contrary to the text ;" in all its 
 shapes, a questionable doctrine, — in its stricter sense, quite incon- 
 sistent with the sounder principles of judicial interpretation, and 
 requirinf^, it is apprehcndod, to be greatly modilied, before it can 
 be at all admitted as a rule of construction. 
 
 In the great case of the Posnati, Lord Ellesmere's rule was : 
 " Words are to be taken and construed : 1. Sometimes by exten- 
 sion ; 2, sometimes by restriction ; 3, sometimes by imphcatiou ; 
 4, sometimes a disjunctive for a copulative ; 5, a copulative for a 
 disjunctive ; G, the present tense for the future ; 7, the future for 
 the present ; 8, sometimes by equity, out of the reach of the 
 words ; I), sometimes words taken in a contrary sense ; 10, some- 
 times figuratively ; 11, and many otlier hke constructions. And 
 of all these, examples be infinite, as well in the civil, as common 
 law." 
 
 " Now," says Petyt in his Jus Parliamentarium, " any one that 
 reads this, will easily judge what the scope and consequences of 
 the chancellor's rule may be. And he may as easily thscern, how 
 far it is capable of being improved, to baffle and elude any law 
 whatsoever, and wrest it from its genuine and native sense to 
 Avliat you please." 
 
 • The judges in Edrich's case declared, that it would be danger- 
 ous to give scope to make a construction in any case against the 
 express words, but they added the qualifying words, "when the 
 meaning of the makers doth not appear to the contrary, and when 
 no inconvenience will thereupon follow." a 
 
 The true intent and meaning of a statute is no doubt always to 
 be regarded ; and to such purpose only, says one of the sages of 
 the law, ought the words to be construed. 6 Constructions, botli 
 of statutes and of wills, are to be made according to the intent of 
 the fi-amers, and not by any strict or strained inteii:)retations ; c 
 and sometimes acts of parhament are to be expounded difierently 
 in sex, name, number, person, occasion, degi-ee, kc, from the let- 
 ter, in order to preserve the intent. " All acts are to be taken by 
 reasonable construction ; and in doubtful cases, judges may enlarge 
 or restrain the constniction of acts of parliament, according to the 
 sense of the law-makers."(Z For many times, things which are with- 
 in the words of statutes, are not within the j^urview of them. Bene- 
 fieial statutes, therefore, have always been taken and expounded by 
 equity ;e vltra the strict letter, but not, it is well and wisely said, 
 contra the letter. In the language of Lord Bacon, before cited, 
 words in a statute may be taken to a foreign, but never to an un- 
 
 a 5 Hop. 119. h Williams andBerkely, Plow. C. 231. 
 
 c Butler and Baker's case, 3 Eep. 27. d Per Trevor, J., 11 Mod. IGl. 
 e Lord Buckhart's case, 37 & 38 Eliz.
 
 238 HOW STATUTES AEE TO BE CONSTEUED. 
 
 reasonable or a repugnant intent. " A person ongbt not to think, 
 if lie have the letter on his side that he hath the law, in all cases," 
 .sa3-s the ancient Plowden ; " words are only verberations of the 
 an"." " No statute shall be interpreted so as to be inconvenient 
 and against reasou."a " Words of a statute ought not to be ex- 
 pounded to destroy natural justice." b 
 
 For, there will be some things necessarily and in their nature, 
 exempt fi'om and excepted out of all statutes ; dispensations al- 
 lowed by law and reason, and prevailing over any form of words. 
 Thus, for instance : — A man shall never be a judge in his own 
 cause. Magna Charta, cap. 12, says, " Assisce non cojnantur nisi 
 in suis comitatibusf' but if a man be disseised of a commote in the 
 marshes of Wales, — that there be not a failure of justice,— not- 
 withstanding this negative statute, the assize shall be taken in the 
 county of Gloucester. For the lord marcher could not do justice 
 in his own case ; and if he should not have remedy in this case by 
 the king's writ out of the chancery in England, he should have 
 right, and no remedy by the law given for the wrong done unto 
 hnn, which the law will not suffer. Therefore this case, of neces- 
 sity, is by constraction excepted out of the statute, r 
 
 80, for a like reason, the stat. of Westm. 1, cap. 3, which gives 
 a re-disseism to be tried per jyrimos juratores, has been so con- 
 strued, that where there was no first jury, it shall be tried by 
 others ; regarding it as an excepted case out of the meaning and 
 purview of the act, though within the words. "For the statute," 
 says Lord Coke, " albeit it be penal, shall not be so literally ex- 
 pounded, that, if it cannot be tried per 2^nmos jurntor€f<, it shall 
 not be tried at all ; for verba intellir/i debent cum effedu. The case 
 of there being no jurors at all in the former assize, was, it is plain, 
 never contemplated, and the provision was not meant to apply to 
 such a case ; — while justice is promoted by its taking effect upon 
 the alios, whom the statute likcAvise speaks of." d 
 
 The case of a distress driven out of the county, where the manor 
 is in another county, before cited, is another instance of beneficial 
 construction, shewing that the statute does not extend to a case 
 within the bare words, if it be clearly out of the true meaning of 
 the statute ; the purview not extending beyond the intent of the 
 makers of the act. e 
 
 In Rex V. The Inhabitants of Cumberland, / — an indictment for 
 not repairing a county bridge, — the question was, whether the 
 certiorari were taken away from the prosecutor by the stat. 1 
 Ann. c. 18, s. 5 ; Lord Kenyon said : " The words of this act are 
 very general : but if in their construction we were to read them 
 in their full extent, it would introduce a solecism in the law ; for 
 
 a 5 Rep. Cawdrie's case. h Sty. 81. 
 
 c 2 Inst. 25. d 2 Inst. 84. 
 
 e St. Marlbridgc, c. 4, Inst. 107. /6 T. R. 154.
 
 EQUITABLE CONSTRUCTION. 239 
 
 it Must be remembered, that iu these cases the defendants are the 
 inhabitants of a county, and if the indictment cannot be removed 
 l>y ced'iorari, and a suggestion entered on the record, ' that the 
 inhabitants of this county are interested,' in order to have a trial 
 elsewhere, the indictment nmst bo tried by the very persons, who 
 are the parties in the cause. If this were res irdcgra, we should 
 consider whether the extensive wonls of this statute ought not to 
 bi; naiTOwed in their construction, in order to aiTive at that point 
 which is the object of all laws, — the attainment of justice. AVe 
 should have been anxious, for reasons of substantial justice, to 
 control the extensive operation of the general words of the statute 
 of Ann." 
 
 In law, all cases cannot be foreseen or expressed ; the object of 
 iiiterpretmg laws by Avhat is called equity, is to supply as far as 
 possible, this deficiency, by a recuiTcnce to natural principles of 
 justice. It is the same with cases excepted by reason and neces- 
 sity, out of the prescribed rules. 
 
 There are other maxims of interpretation relating to this sub- 
 ject of expoimdmg statutes by equity, deserving notice ; though 
 such doctrines, founded sometimes upon principle or adjudged 
 cases, sometimes also depend upon mere dicta, or very question- 
 al.)le. authorities. 
 
 Thus, it is wan-antably said, statutes which " give remedy for 
 wrongs" shall be liberally construed or taken by equity. The 
 statutes de Eschaetoribus, — et Artkuli super chartas, cap. 19, for 
 " restoring the mesne profits where a seisure had turned out un- 
 lawful," speak only of an ouster le mayne; yet being both bene- 
 ficial laAvs, for restitution to be made to the party grieved, by 
 equity they extend to hveries, amovcas manus upon petitions, and 
 nionstrons de droit, and by like equity to ouster le maynes iipou 
 traverses ; although traverses were not in use at the time of the 
 making of these statutes." a 
 
 Again, statutes which " oust delay, and for expedition of justice" 
 shall be benignly construed and are extended by equity. Thus, 
 the stat. Westm. 2, c. 18, which gave an elegit, said, the " sheiifi' 
 shall dehver ;" yet being a beneficial law, by equity it is extended 
 to e-^ery other immediate oflicer to every other court of record. 1) 
 So, in the stat. of Westm. 1, where " ancestor" is said ; predeces- 
 sors is taken by equity ;c and again, where "tenant" is said, 
 vouchee and tenant by receipt, (who are tenants in lair,) have been 
 included; for acts of parhament made for suppression of false- 
 hood practised for delay, as these false vouchci-s and assigns were, 
 shall have a benign inteipretation. 
 
 Where a contrary constniction would lead to future disputes 
 and constant hgitation, it should be remembered, that "bonijudicis 
 
 a 2 Inst. 572. i 2 Inst. 391, cap. 40. 
 
 c Cap. 42.
 
 240 EQUiTABij;: construction. 
 
 est causas Jit i urn dlrimerc.'\i Tims, iu a modem case, of Gale and 
 LawTie, Lord Tenterden said : " This construction (that — what- 
 ever is on board a vessel for the purposes of the voyage, belonging 
 to the owner, constitutes a ship's appurtenances,) furnishes a plain 
 and intelligible general rule ; whereas, if it should be held that 
 nothing is to be considered as part of the ship that is not neces- 
 sary for her navigation or motion on the water, a door would be 
 opened to many nice questions, and much discussion and cavil." b 
 
 No statute where the letter is ambiguous, shall be taken by 
 equity, to maintain a mischief contrary to the letter and intent of 
 the statute ; " but it shall be taken in the better intent, and large- 
 ly, to toll and destroy the mischiefs and " inconveniences." This 
 doctrine is illustrated by the case before mentioned, in which the 
 stat. 1 & 2 Ph. & Mary, was held not to extend to treason com- 
 mitted out of the realm ; but such cases were to be triable as be- 
 fore, c 
 
 A statute which is to take away the common law ought never to 
 iiave an equitable constniction. See the stat. Westm. 2, cap. 35, 
 abridging the six months in which proclamation should be made 
 in a certain case, to three months. This branch restraining the 
 connnon law, was held to extend only to the defendant in deed, 
 and not to the defendant in law. d 
 
 A statute shall never have an equitable construction to over- 
 throw an estate, e ^- 
 
 As regards the case of an inconvenience which rarely happens, 
 opposed to mischiefs " qure frequentius ace id unt, " tlieve is some 
 nicety ; and upon the construction of explanatory statutes, the 
 authorities are painfully conflicting. 
 
 If the words of a statute do not reach to an inconvenience rarely 
 happening, they shall not be extended to it by an equitable con- 
 stniction ; for the objects of statutes are mischiefs qme frequentius 
 accidunt. It is good reason in such case, and therefore somid con- 
 stniction, not to strain the words farther than they reach ; but the 
 case is to be considered as a casus omissus. It was resolved by 
 the judges in Su' George Curzon's case, upon the construction of 
 the stat. 32 Hen. 8, giving power to dispose of two-thirds of a 
 man's land, &c., " to and for the advancement of his wife, prefer- 
 ment of his children, and payment of his debts," &c., that, if there 
 be gi-andfather, father, and divers sons, and the gi-andfather, in 
 the life of the father, conveys his lands to any of the sous, it is out 
 of the said act of 32 Hen. 8; for it is not common nor usual, et ad 
 
 a 2 Inst. 306. 6 5 B. & C 162. 
 
 c Forster's case, 11 Eep. 78, ante, p. 552. d 2 And. 149. 
 e 2 Inst. 442. 
 
 Note 32. — A statute giving a right to redeem land sold for taxes should receive 
 a liberal construction. Dubors v. Hepburn, 1 Pet. 1. So also should a statute 
 avoiding fraudulent conveyances. Bk. of U. S. v. Lee, 13 Pet. 107.
 
 EQUITABLE CONSTEUCTION. 241 
 
 ca quefrcqncii/iK.s (iccldind,jitra adaplanlur, and tlio father oiif^lit 
 to have the innnediate care of his sous and issue. ]jiit if tlie fatla-r 
 be dead, then the care of them belon{^s to the grandfather, and 
 then, if lie conveys any of his hinds to any of the said sons, it is 
 Avitldn the statute, a 
 
 \j\\i it is no reason, when the -wijrds of an act do sufficiently ex- 
 tend to an inconvenience rarely happcnuig, that they should not 
 extend to it, as well as it' it had happened niore frequently, because 
 it ha})pens but seldom./* 
 
 Statutes of explanation shidl be construed only according to the 
 words, and not by any manner of intendment ; for it is incongru- 
 (jus, it is said, for an explanation to be explained, c An explan- 
 atory statute Ijeing a legislative exposition of the meaning of 
 words used in a former statute, ought not to be extended by an 
 equitable construction. For it Avas said by the court in the case 
 of Butler and leaker, d "if any exposition should be made against 
 t lie direct letter of the exposition made b}^ parliament, there will 
 l)e no end of expositions." AVhcn one act is made explanatory of 
 another, the court cannot carry the explanation farther than is 
 expressed in that act ; c it must be constnied precisely, and no new 
 interpretation can be made of it. /' 
 
 j^c'o/i/yY/, this rule of exposition, that statutes of explanation 
 shall always be taken literally, is peremptorily denied by Ch. J. 
 Hobart. " For no statute "law," he says, " should exclude all 
 equity ; it is impossible that an act of parliament should provide for 
 every inconvenience which happens ; equity must necessaril}- take 
 ] ilace in the exposition of statutes." g 
 
 In the case of the Dean and Chapter of Norwich; it is said ar- 
 guendo, and seems to be admitted by the court. It that statutes of 
 explanation are always to be inter[)reted beneficially. The result 
 seems to be that, on the one htmd explanatory statutes shall not 
 be extended by equity to new cases, and on the other, wliilst the 
 words are not to be strained beyond their fair import and meaning, 
 tjicy shall yet have such reasonal)le construction as will stand with 
 the scope and intention of the makers. 
 
 Equitable construction has been frequently illustrated by the 
 doctrines laid down in the case of the registry acts for giving pri- 
 oi-ity to deeds and mortgages, according to the date of the registry, 
 if a person claiming under a registered deed or mortgage had no- 
 tice of the unregistered prior deed when he took his deed, and]n'o- 
 cured the regishy of it, in order to defeat the prior deed, he shall 
 not, it is held, prevail with his prior registry ; because that would 
 
 a G Hep. 77. h Bole autl Ilorlon, Yaiiglian, 373. 
 
 Cro. Car. 23; Plowd. 363. (/ 3 llcp. 31 a. 
 
 e Garth. 396. /Jo. 3o; W'iucb. 85. 
 
 <j 2 Roll. Eep. 500; "Wiuch. 123; Sir W. Jones, 39. 
 
 /i3Eep.'75. 
 
 31
 
 242 eqxjttabt:e construction. 
 
 be to counteract the iutent aud ]3olicy of the statutes, "U'liich were 
 made to j)reYeut, and not to uphold frauds. '■' 
 
 That notice of a deed, even the most actual and direct, should 
 ever have been admitted to supply the want of its registration, has 
 been thought unwise and improper, and opposed to the policy of 
 other countries. A more decisive opinion has been expressed, 
 that the equity decisions dispensing with registry upon the ground 
 of constnictive notice, have led to many inconveniences, and much 
 uncertainty and htigation. The greatest English lawyers have ex- 
 pressed then- regret that either the registr}^ act or the statute of 
 frauds should have been broken in upon, and had their utihty 
 chminished, by construction. 
 
 The decisions upon the registry act, stat. 7 Ann. c. 20, s. 1, and 
 upon the statute of enrolments, 27 Hen. 8, c. 16, a have proceeded 
 upon the ground that statutes which were designed to prevent 
 fi-auds, should never be used as a means to cover them, h 
 
 Upon the statute of frauds, the view taken was, that as it was 
 made with a design to prevent uncertainty, perjury, and contrariety 
 of evidence, either in marriage or any other treaties, the cases not 
 liable to these inconveniences could not be within it. c But upon 
 this statute (of frauds), there can be little doubt in the mind of any 
 sound lawyer, that there are several decisions m which the courts, 
 in their anxiety to defeat injustice, have a little stretched the lan- 
 guage of the legislature, d 
 
 Upon the fonner subject (of registry), a case Doe dem. Eobin- 
 son against Alkop, e came before the court of king's bench in 
 1821. In that case there were two assignments of the same lease, — 
 of premises within the county of Middlesex, and that executed 
 last, was registered first. The party claiming under the second 
 assignment had full knoAvledge, when it was executed, of the prior 
 execution of the lirst assignments. Abbott, C. J., said : " A court 
 of law is now called upon for the first time, to put a construction 
 on the words of this statute, by which it is enacted that every deed 
 or conveyance that shall, after the 29tli of September, 1709, be 
 made and executed, shall be adjudged fraudulent and void, against 
 any subsequent purchaser or mortgagee for valuable considera- 
 tion, unless a memorial thereof be registered before the registering 
 of the memorial of the deed or conveyance under which such sub- 
 sequent purchaser or mortgagee shall claim. Now it is impossible 
 that plamer words could be used ; and I think, that, sitting m a 
 
 a Eqii. Cases Al)ri(lt;o(l, 29. 
 
 b Cheval v. NicboUs, 1 Str. CC4. ■ Worsley v. Demattos, 1 Burr. 4G7. Le Neve 
 V. Le Neve, 3 Atk. G4G. 
 
 c Bac. Ab. Tit. Stat. G. 
 
 d Knight v. Crocldbrd, 1 Esp. 190. Lavaguc v. Staiilcj', 3 Lev. 1. 
 
 eSB. &A. 142. 
 
 Note 33. — A statute shall never ha-ve an equitable construction in order to 
 ovcrthrov,' or divest an estate. Van Home v. Dorrance, 2 Dallas 31G.
 
 EQUITABLE CON.STllUCTION. 243 
 
 court of law, we arc bound to give cflbct to them, and tliat -wo can- 
 not say, that this deed is not fraudulent, and void within the mean- 
 ing of this act, because possibly it may timi out upon examinati(jn, 
 that the defendant is entitled to some relief in equity. If there bo 
 ;iny such ground, a court of e(|uity may interfere, and this case 
 shows clearly how inconvenient it wouhl be, if this court were to 
 outer into any equitable considerations. For here, it is clear, that 
 ihe lessor of the plamtii'f had, at all events, a lien on the instru- 
 ment of conveyance. AVhat effect that might have on a court of 
 equity, I camiot say, Init I think it, at least, is a fit matter for its 
 consideration. We, however, in a court of law, must give effect to 
 the Avords of the act." 
 
 Baylcy, J. — "I think tliat we are l)ound, in a court of law, to 
 give elh'ct to the words of the statute. That seems to have been 
 the opinion of the judges in the cases cited, although they thought 
 that a court of equity would, in some cases, interfere to relieve the 
 ]>arty. It is so laid down by Lord Hardwicke,a in Le Neve. v. Le 
 Neve, and the words of Lord Mansfield, in Doe v. Iloutledge, are : 
 — ' Equity says, if the party knew of the imregistered deed, his 
 registered deed shall not set it aside, because he has had that no- 
 tice which the act of parliament intended he shoidd have.' He, 
 therefore, puts it as a case in which ecpiity "would interfere ; and 
 the circumstances of this case, show the propriety of oui' adhering 
 to the words of the act ; for I am by no means clear, that "\\e 
 should not work great injustice, if we were to decide in favor of 
 the defendant." 
 
 This decision is in perfect accordance with the constraction put 
 upon the stat. 27 Elii^. c. 4, that voluntary conversances are void 
 agauist subsequent purchasers even with notice ; and with /Ao.se de- 
 cisions at law, the courts of ecpiity have liot interfered ; wliile in 
 the case of the registry acts, ecpiit}^ has introduced a consti-uction 
 nearly, if not entirely, subversive of the objects of such latter 
 statutes. In Gooch's case, h Wray, C. J., said : " If A. seised of 
 laud in fee, make a fi'audulent conveyance, to the intent to deceive 
 and defraud purchasers, against the statute of 27 Eliz. c. 4, and 
 continues in possession, and is reputed as owner, B. enters into 
 discourse with A. for the purchase of it, and b}^ accident B. has 
 notice and knoAvledge of this fraudulent conveyance, and, notwith- 
 standuig, concludes with A. and takes his assurance of him ; in 
 this case B. shall avoid the said fraudulent conveyance b}' the 
 said act, noth withstanding his notice ; for the act has by express 
 ■words made the fraudulent conveyance void as to a purchaser ; 
 and forasmuch as it is within the express purview of the act, it 
 ought to be so taken and expounded in suppression of fraud." 
 
 And, according to the opinion of Lord AVray, it was imanimously 
 agreed and resolved by the whole court of common pleas (Pasch. 
 
 a Cowp. 712. b 5 licp. GO.
 
 244: EQUITABLE CONSTRUCTION. 
 
 3 Jacobi), in evidence to a jnrv in an ejedione frmcp, on a lease 
 made by Standen to Howse plaintiff, against Biillock defendant, 
 that T\liere one Bullock had made a fraudulent conveyance of his 
 land witliin the said act of 27 Eliz. to A. B. and C. and afterwards 
 notwithstanding offered to sell the said land to Standen, and be- 
 fore assurance thereof made by Bullock, Standen had notice of the 
 said fraudulent conveyance, and notwithsanding proceeded, and 
 took his assurance of Bullock, that Standen should avoid by the 
 same act, the said fraudulent conveyance ; for the notice of the 
 purchaser cannot make that good,"' which an act of parliament 
 has made void as to him. " And true it is, ' quod ncn dedpitur, qui 
 scit se decipi.' But in that case, the purchaser is not deceived ; for 
 the fi-audulent conveyance, whereof he has notice, is void as to 
 him, by the said act, and therefore shall not hurt him, nor is he, 
 as to that, m any manner deceived." 
 
 Whatever doiibts may be entertained of the propriety of extend- 
 ing the words of statutes 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 constnied largely and beneficially, so as to suppress the mis- 
 chief and advance the remedy. '' "It is by no means unusual m 
 construing a remedial statute," says a late case, "to extend the en- 
 actino- words beyond their natural import and effect, in order to 
 include cases wfthin the same mischiefs." a 
 
 It is true with us, only of remedial statutes, what Cicero says of 
 all laws : " cas ex ufilitate communi, — von ex scripiione, qvce in Uteris 
 est, interpretari.'' Premising that this, and the opposite course 
 followed \\ith penal statutes, are only secondary rules, we proceed 
 to illustrate the doctrine that remedial acts are to be hberally con- 
 strued. . 1 .1 i.1 
 
 In the Magdalen College case, the question was, whether_ the 
 queen was bound by the general words of the statute 13 Ehz. c. 
 10, avoiding " all leases, gifts, grants, feoffment, conveyances, or 
 estates to be made, had, done, or suffered, by any master and fel- 
 ■ low of a college to any person, or persons, bodies politic or corpo- 
 rate, other than for the term of twenty-one years, or tliree lives," 
 &c. The master and fellows had granted certain premises by in- 
 denture to the queen, her heirs and successors for ever, with con- 
 dition that she should, before a specified day, convey and assure 
 the same to B. Spinola, a merchant of Genoa. " It was held that 
 th& queen was bound by the act. She is a person,— ^r^x est per- 
 sona mixta;) and a body pohtic, (the case of the Duchy of Lan- 
 
 a 2 Y. & J, 190. 
 KoTE 34— statutes in derogatiou of the commou law can not be extended by 
 construction to embrace cases not fairly witbin the scope of the language used. 
 Curnside v. Wbitiuy, 21 N. Y. 1 18; Dwelly v. Dwclly, 4C. Jlaine. 377.
 
 PENAL STATUTES. 245 
 
 caster.) The act being general, and made to suppress fraud, shall 
 biud the queen, and the queen being included within the words, 
 if she shall be exenipt, it ought to be by constniction of law ; and 
 as this case is, the law will not make such constniction, for rea- 
 sons api)arent in the act itself; .srilirrf the parhament have ad- 
 judged ' long leases made by colh^ges,'' to be ' unreasonable,' and 
 the law, whieh is tlu^ perfection of reason, will never expound the 
 words of the act against reason. It was never seen, that an act 
 made for the maintenance of religion, advancen:ent of learning, 
 and exhibition of poor scholars, (and therefore to be favorably ex- 
 l)ounded) ; should be so construed, that a bye-way should l)e left, 
 l)y which the said great and dangerous mischief should be left 
 open, and the necessary and ])rotitable rem<'dv be suppressed, and 
 the queen made an instrument of injury and wrong." 
 
 Lord Coke adds, "that this act has been always constraed-bene- 
 licially to prevent all inventions and evasions against its true in- 
 tention : that Avhere the statute says — ' masters and fellows of any 
 college,' be the college incor}iorated by that name, or of ' warden 
 and fellows,' or of ' provost, fellows, and students,' and be the col- 
 lege temporal, for the advancement of liberal arts and sciences, or 
 merely ecclesiastical, or mixt : every such college is within the 
 ])rovision of this act, and the constniction is the same with all man- 
 ner of hospitals ; for this act has always had a benign and favor- 
 able construction." a 
 
 Penal statutes receive a strict interpretation. The general words 
 of a penal statute shall be restrained, for the benefit of him against 
 whom the penalty is inflicted. ''^ 
 
 a 11 Kep. G7. 
 
 Note 33.— Peual statutes must be strictly coustiued, aud never extended by 
 implication. Andrews v. U. S., 2 Story 203; Strinson v. Pond, 2 Curt. 502; U. S. 
 V. Ten Cases of Shawls, 2 Paine 162; Ferris v. Atwill, 1 Blatcli. C. C. Pu 151. The 
 proper course is, in their construction, to search out and follow the trtie intent of 
 the legislature, and to adopt that sense which harmonizes best with the context, 
 and promotes in the fullest manner the apparent policy and objects of the legis- 
 lature. U.S. V. Winn, 3 Sum. 209; The Enterprise, 1 Paine 32. They must 
 l)ring the case within the definition of the law, but not so strictly as to exclude a 
 case within its words in their ordinary acceptation. U. S. v. "SVilson, Bald. H. 
 70. Nor so as to defeat the obvious intention of the legislature. American Fur 
 Co. V. U. S., 2 Pet. 366; U. S. v. Willberger, 5 "Wheat. 56; U. S. v. Morris, li 
 Pet. 464. All its provisions must be taken together, and interpreted according to 
 the import of the words, so as to give eSect to.its object and intent. The Harriet, 
 1 Story 11. 251. And a further rule is, that an offender who is protected by its 
 U'tter, cannot be deprived of its benefit on the ground that his case is not within 
 Its spirit. U. S. v. Eagsdale, Hemp. R. 497. "Where there is such an ambiguity 
 as to leave reasonable doubts of its meaning, the courts will not inflict the pen- 
 alty. The Enterprise, 1 Paine 32. In such a statute, the word ami cannot bo
 
 246 PENAL STATUTES. 
 
 It is a maxim of the common law, that " rcceditur a placilis juris, 
 pofiiis quam injurue ef dclicfa maneant impunita," but this applies 
 ouly to positive maxims, pJaclta juris rather than reqvhe juris, a 
 
 If the rale be one of the higher sort of maxims that are reqidcc 
 ratiouak'S and not jwsitivce, then the law will rather endure a par- 
 ticular offence to escape without i)unishment, than violate such a 
 rule. Of this latter Idnd (regulm rationcdes) is the rule that j)enal 
 statutes shall not be taken by equity. Thus the stat. 1 Ed. 6, c. 
 12, having enacted that those who were convicted of stealmg 
 liorses should not have the benefit of clergy, the judges conceived 
 that this did not extend to him that should steal but one horse ; 
 and therefore procured a new act for that purpose, in the follow- 
 ing year. 
 
 Yet penal statutes are taken strictl}' and literally only in the 
 point of defining and setting down the crime and the jninishmenf; 
 and not generally " in words that are but circumstances and con- 
 veyance in the putting of the case." Thus, upon the statute of 
 Gloucester, that gives the action of waste against him that holds 
 2Jro termino vike vel aimorum, if a man holds but for a year he is 
 
 « Bacou's Muxims, 51. 
 
 coustrued to mean or. U.S. v. Ten Cases of Shawls, 2 Paine 1G2. Penal statutes 
 are also local in their character, and there can be no recovery under them for of- 
 fences, committed beyond the territorial jurisdiction of the state. 1 Philemore 
 on International law 35G; Ludlow t. Van Piensselaer, 1 John. 93; Van Schaick v. 
 Edwards, 2 Caines 3G3. And in all cases under penal statutes, where there is a 
 question of doubt, the pariy of whom the penalty is claimed, is entitled to the 
 benefit of the doubt. Chase v. N. Y. Cent. Pt. E. Co., 26 N. Y. 523. 
 
 A statute which imposed a penalty xipon any persuii who knowingly, Ac, 
 should aid or assist a tenant in removing goods," kc, it was held, by strict con- 
 struction, to have contemj^lated physical aid or assistance, and that merely ad- 
 vising the removal, was not within the provisions of the act, nor was one who con- 
 cealed a portion of the goods. Strong v. Stebbins, 5 Cow. 211; Palmer v. Conley, 
 4 Denio 375. So too under the same statute, where two persons concur, in the 
 act of aiding, but one penalty attaches, and they may be sued jointlj'. Where the 
 offence in its nature is one, the penalty will be held to be one, and several penal- 
 ties cannot be imposed upon the several offenders. The true inquiry is, under a 
 penal statute, can the single offence created, be committed by several persons. 
 Ingersoll v. Skinner, 1 Denio 540. But if by the terms of the statute imposing a 
 penalty, it provides a several penalty upon each person offending, a penalty may 
 be recovered against each, and in such case, a joint action does not lie. Marsh 
 V. Shute, 1 Denio 230. The better test is: What was the legislative intent? Al- 
 though in general, offences are several, and each offender liable to a several pun- 
 ishment, yet, if by the terms of the statute the penalty is single, though several 
 persons unite in the act prohibited, but one penalty can be recovered; this is 
 Kometimts by way of compensation to the individual injured by the offence. 
 Palmer v. Conley, 2 N. Y. 182, S. C. 4 Denio 375.
 
 I'KNAL STATUTES. 247 
 
 witliin tlic statute ; while if the law Ijc, that lor m certain offence a 
 man shall lose his right hand, and the ollender hath had his right 
 hand before cut off hi the wars, he sliall not h^se liis left hand, but 
 the crime shall rather pass -without the punishment which the law 
 assigned, than the letter of the law shall be extended.^', 
 
 A penal law then, shall not be extended by equit}' ; that is, 
 things which do not come within the words, shall not be brought 
 within it, by construction. The law of England does not allow of 
 constructive offences, or of arbitrary punisliments. No man in- 
 curs a penalty unless the act which subjects him to it, is clearly 
 both within the spiiit and the letter of the statute imposing such 
 [jcnalty. " If these rules are violated," said Best, C. J., in the 
 case of Fletcher v. Lord Sondes, h " the fate of accused persons 
 is decided by the arbitrary discretion of judges, and not by the 
 express authority of the laws." 
 
 But, still, the intent is to be regarded ; which is a primary rule, 
 and that occasioned it to bo said, that " equity knows no difference 
 between penal laws and others." "^ The question is, does a case 
 come witliin the meaning of the words ? Thus, the enactment that 
 made kilUng a master, treason, was held to include a mistress, c 
 
 If the statute 1 Ed. G, had been, that he, that should steal one 
 horse, should be ousted of his clergy, then there had been no ques- 
 tion at all if a man had stolen more horses than one, but that he 
 had been within the statute ; for omiie majm continct in se minus, d 
 
 Neither is it true, as it has been sometimes put, that the Court, 
 in the exposition of penal statutes, are to narrow the construc- 
 tion, e " We are to look to the words in the first instance," said 
 Bullcr, J., in B. v. Hodnett, /' "and where they are plain, we are 
 to decide on them. If they be doul)tl'ul, we have then to have 
 recourse to the- subject matter." 
 
 In construing penal statutes, we must not, by refining, defeat 
 the obvious intention of the Legislature. Thus, on the Bribery 
 Acts, to satisfy the term "procuring," it is necessary that the 
 vote should be actually given : but as to "corrupting," that is not 
 necessary ; the corruption has been held complete, without the 
 vote being given.'/ 
 
 By another restrictive rule of construing i)enal statutes, if gen- 
 eral words follow an enumeration of particular cases, such general 
 
 a Bacon's Maxims, 58, 59. 6 3 Bing. 580. 
 
 ^ Hard. 208 ; Plowd. 8G. d Bacon's Maxims, 59. 
 
 V. Per Bnllor, J. / 1 T. K. 9G. 
 
 ;/ 3 Burr. 1235. 
 
 Note 36. — The same statute may be regarded as peuai iu cue part or aspect, 
 and demand strict construction, and in another part be remedial, and require a 
 liberal interpretation. Fish v. Fisher, 2 John Cas. 89. Smith v. Moffat, IBarb. 
 05. Millend v. Lake, Ontario E. R Co., 9 How. E. B. 233. "W'arucr v. Hadner 
 E. E. Co , 5 Barb. 45J[,
 
 2-i8 PEN.VL STATUTES. 
 
 words are licld to appl}' only to cases of the same land as those 
 V, hich are expressly mentioned. By the 14 Geo. 2, c. 1, persons 
 \\\\o should steal shee}), or any other cattle, were deprived of the 
 l)enetit of clergy. The stealing of any cattle, whether common- 
 able, or not commonable, seems to be embraced by these general 
 words, " any other cattle," yet they were looked upon as too loose 
 to create a capital offence. B}^ the 15 Geo. 2, c. 34, the legisla- 
 ture declared that it was doubtful to what sort of cattle the former 
 :ict extended besides sheep, and enacted and declared that the 
 act was meant to extend to any bull, cow, ox, steer, bullock, . 
 heifer, caK and lamb, as well as sheep, and to no other cattle 
 whatsoever. Until the Legislatnr(^ distinctly specified what cattle 
 were meant to be included, the judges felt that they could not ap- 
 ply the statute to any other cattle but sheep. The legislature by 
 the last act says, that it was not to be extended to horses, pigs, or 
 goats, although all these are cattle, a Yet horses are cattle within 
 the Blaek Act, & and bulls are not cattle within 3 Geo. 4, c. 71. c 
 
 An instance of a statute penal upon particular persons, being 
 taken stridi juris, was before mentioned in the statute c/ema/e/ac- 
 torihns in loarcis, not extending to those offending in forests, d So 
 a curate of an augmented curacy (by Queen Anne's bounty) was 
 held not to be liable to the penalties of the 21 Hen. 8, c. 13, for 
 non-residence, c " If we had the power of Degislation," said 
 Lord Kenyon in that case, " perhaps we should thuik it proper to 
 extend the penalties created by the statute of Hen. 8, to all bene- 
 fices with cure of souls ; but as it is our duty to expound, and not 
 to make acts of parliament, we must not extend a penal law to 
 other cases than those intended by the legislature, even though we 
 think they come within the mischief intended to be remedied. The 
 words of the statute of Hen. 8, are, ' Beneficed with any parsonage,' 
 or ' vicarage ;' but this is neither a parsonage, nor a vicarage. [For 
 wise purposes, augmented curacies are made perpetual cures and 
 l)enefices, by a subsequent statute, 1 G-eo. 1, in order that such 
 curates may be perpetual corporations ; but the act does not go on 
 to say that they shall be considered as parsonages or vicarages ; 
 if it had, the former lavr would have extended to them. These 
 curates are still boimd b}' the canon law to reside on then' bene- 
 fices ; but I do not think that they are liable to the penalties of 
 the statute of Hen. 8, for non-residence." 
 
 By the stat. 2 Jas. 1, c. 22, searchers of leather, appointed under 
 that act, are authorized to seize leather insvfjicienthj dried, in order 
 to cany it before other ofiicers, called triers. They are liable to 
 an action for seizing that which is sufficiently dried, though in then- 
 judgment it is not so, and though they arc subject to a penalty for 
 allowing leather which is insufficiently dried. The act of parlia- 
 
 a 3 Bing. 581. d PI. Com. 124, a. 
 
 h 2 W. Bl. 723 e Jenkinsou v. Thomas, 4 T. E- 
 
 c JScpar/eHill, 3 C. & P. 225.
 
 TENAL STATUTES. 249 
 
 ment only authorizes the searchers to seize goods of a certain 
 denomination ; the goods in question in that case were not of that 
 description. <i/''' 
 
 Tumbling is not an entertaiimient of the stage disallowed witliiii 
 the words of 10 Geo. '2, c. 28. " Tliis is a penal act of parliament, 
 and Ave canncjt," said Lord Konyon, " extend it to entertainments^ 
 tliTit did not exist when thc^ statute was made, though, perhaps, it 
 is desira])le that the prohibitions should be extended," etc. /> 
 
 The stat. [) Ann. c. 10, s. 40, inflicts a penalty on persons who 
 wilfully open or detaui letters after they have been delivered at 
 the post-office. There are v.'ords at the end of the clause creatuig 
 the forfeiture, which show that the legislature intended to restrain 
 the operation of the general words, " no j)erson, or persons," to 
 those employe'd in the post-oilice ; and it was held accordingly, a 
 
 When a gooil thing and a void thing, are i)ut together in the 
 same grant, the common law makes such a construction that the 
 grant shall be good for that which is good, and void for that which 
 is void, f/ ]>ut according to Hobart, r; followed by Wihnot, J., in 
 Collins V. Blantorn,/' where an instrument is void in part by the 
 statute law, it is void for the whole. " The statute law is like a 
 tyrant ; where he comes he makes all void ; but the common law 
 is like a nursing father, makes only void that part where the fault 
 is, and preserves the rtist." Tluis sherifts' bonds are only autho- 
 rized to be taken with a certain condition, and therefore if they 
 are taken with any other condition, they are void i)i. to'o, and can- 
 not stand good in part only, g 
 
 But this rule which is one of rigour, does not apply to different 
 and independent covenants in the same instrument, which may 
 be good in part, and bad in part. Thus, in Mowys v. Leake, It 
 where a rector had granted an annuity out of his benefice, which 
 was void by the statute lo Eliz. c. 20, Avhicli saj's, " that all charg- 
 ings of benefices with any person shall be utterly void," he was 
 yet held liable upon his personal covenant to pay it, contained in 
 the same deed, and Lord Ellenborough afterwards said : i " The 
 case of MoAvys and Leake is founded on admirable good sense and 
 sound law : the court there held that it did not affect the personal 
 covenant to pay the rent-charge, but only defeated the security of 
 such rent-charge upon the living." 
 
 a Warue v. Yarley, G T. R. 443. c Martiu v. Ford, 5 T. R. 101. 
 ?> R. V. Haudy, 6 T. R. 286. 
 
 d Per Iluttou, J. Ley's Rep. 79. e Hob. Rep. 14. 
 / 2 Wils. 351. 
 
 <; Per Lawrence, J., in Kerrison and Cole, 8 East, 231; and see Morgan and 
 
 Others v. Horseman and Others, 3 Taunt. 241. 
 
 /i 8 T. R. 411. i Kerrison v. Cole, 8 East, 234. 
 
 Note 37. — A statute giving a penaltj', implies a prohibition of that act rendered 
 penal, and an act committed against it is consequently void, and amounts to no 
 legal defence. Hallett v. Noviou, 14 John. 273; Mitchell v. Smith, 1 Binn. 110. 
 32
 
 250 TEXAL STATUTES. 
 
 And the court adopted tlie same construction in a later case 
 upon tlie sliip registry act, where a bill of sale transferred a sliip 
 by Tray of mortgage, without reciting the certificate of registry. « 
 The words of the act 26 Geo. 3, c. 60, s. 17, are, that " the bill, or U 
 other instrument of sale, shall be utterly null and void to all in- ^^ 
 tents and purposes," — if the certificate of registry be not truly re- i 
 cited therein. It was held that the object of the act was suffi- ^' 
 ciently answered by holding void so much of the instrument as was ' ) 
 meant to convey the projierty m the ship, " that part of it only ^ i 
 which operated as a bill of sale;" and that the mortgagor might 
 be sued upon his personal covenant contained in the same instru-o 
 ment for the repayment of the money lent. For, to go further than ' -4 
 to hold that the transfer shall be void, and to vacate the coUaterar^y^ 
 covenant for the payment of the money lent, would be going be- 
 yond the reason and object of the legislature, in order to work in- 
 justice, r 
 The stat. 5 Eliz. c. 4, s. 41, says, all indentures of apprenticeship ' 
 made otherAvise than is by that act directed, shall be " clearly 
 void m law to all intents and purposes whatsoever." In an action , 
 for harbormg an apprentice, as such, a it was contended that many ^ 
 f ases have determined that the objection to the validity of the in- '^1 
 dentures for want of compliance with the requisites of the act, can ,^ ^ 
 only be taken by the parties themselves : upon which Mansfield, 
 C. J., observed : " The words of the 41st section certamly at first 
 startled one. Yet there have been many cases cited, h which say, ^ 
 that indentures which do not conform to the act shall be only d 
 ^ voidable, and not void. If the word voidable were applied to - 
 Y adults, it would be extreinely strange : with respect to infants, if I 
 ^^O applied to them, one can understand it. In all those cases the ^ - 
 A question arose with resjDect to the rights of infant apprentices ; 
 '^^ but there has been no cases cited, where the doctrine that the ^ 
 contract is voidable, not void, is applied to the case of a master ; '-^ 
 and it would be very wonderful if there were. But there is a 
 I ground, I think, which makes it impossible for the plaintiff to re- 
 cover in this case, he not having complied with the provisions of J 
 this act, and contrary to the express provisions of the 26th sec- [ 
 tion he being neither a householder, nor above the age of twenty- 
 .four; for besides the words making it void to all intents and pur- ^ 
 L"- poses, it is in the same section further provided, ' that every person y . ^ 
 4) that shall fi'om thenceforth take, or newly retain an apprentice, 
 contrary to the tenor and true meaning of that act, shaU forfeit and 
 ' lose for every apprentice so by him taken, the sum of 10/. ;' so 
 Xinaking it not only void, but unlawful." Hence it appears, that if >-^ 
 r\[t be doubthil whether a statute declaring -an act, instiamient, or w 
 
 a Gye v. Eelton, 4 Taunt. 870. 
 
 h Sell. R. V. St. Nicholas Ii^sv/ich, 1 Bott. 525. Winchcourt v. Winchester, 
 Hobb. 166. Barber v. Dennis, 1 Salk. 68. R. v. Evered, 1 Bott. 530.
 
 STRICT CONSTEUCTION. 251 
 
 contract void, make it voidal)lo only, another clause in the samo 
 statute imposing a penalty on sucli act, instrument, or contract, is , 
 a clear test that it is ipso facto void. 
 
 A deed by Avhicli an annuity is granted, if it be not registered, ."" 
 ■^^•ill be absolutely void for want of enrolment. The stat. 17 Geo. y. 
 Ij, c. 26, s. 1, declared, that "all deeds whereby annuities are '>j 
 granted shall be null and void to all intents and pur])oses, unless ..'" 
 a proper memorial thereof l)e registered according to the method \. 
 ])rescribed by the act." In the case of Crosby v. Aikwright, a ./ 
 Jjuller, J., said : " In none of the numberless cases Avhich have • * 
 arisen upon this act, has it ever been doubted but that annuity ■ 
 deeds, not registered confiniuable to the statute, were void." 
 
 Statutes made for the advancement of trade and commerce, and '' , 
 to regulate the conduct of merchants, ought to be perfectly clear and » 
 .intelligible to persons of their descri])tion. By the use of amhigu- * 
 ous clauses m laws of tliat sort, the legislature would be laying a ,* 
 snare for the subject ; and a construction which conveys such an ^ 
 imputation ought never to be ado23ted. Judges, therefore, where * 
 clauses are obscure, will lean against forfeitures, leaving it to the ' 
 legislature to corr3ct the evil, if there be any. With this view, the 
 sliip registry acts, so far as they apply to defeat titles and to 
 create forfeitureSj are to be constnied strictlj^ as penal, and not lib- 
 erally, as remedial laws, h 
 
 in like manner, in the revenue laws, where clauses inflicting pains 
 \id penalties are ambiguously or obscurely worded, the interpre- 
 tation is ever in favor ot' the subject; "for this plain reason," said 
 Heath, J., in Hubbard and Johnston, " that the legislature is ever 
 at hand to explain its own meaning, and to express more clearly \ 
 what has been obscurely expressed." '^'^ 
 
 Whenever a statute gives a foi-feiture or penalty against him, ,- 
 who wrongfully detains or dispossesses another of his duty or in- i 
 terest, in that case \\(^ that has the wrong shall have the forfeiture '• 
 or penalty, and shall have an action therefore upon the statute, at % 
 the common law ; and the king shall not have the forfeiture in that <; ' 
 case. And so it was adjudged in the exchequer, upon conference 
 >vv'itli other judges, in an uiformation for the treble value for not 
 setting out tithes, in Iclington, m the county of Cambridge, c 
 
 If an act of parliament give a forfeiture for a collateral thing, the . 
 king shall have it ; but where it is given in lieu of property and i 
 
 a 2 T. R. G05. h Hubbard v. Johnston, 3 Taunt. 177. 
 
 cCo.Litt. 259 a. 
 
 Note 38.— Revenue laM's which impose forfeitures for fraud, are not to be re- 
 garded as technically penal, so as to call for strict construction in favor of a de- 
 fendant, but remedial, so as to effectuate the intent of the legislature. Cliquot's 
 Champagne, 3 Wall. 115; Taylor v. U. S., 3 How. 197; U. S. v. Probasco, 11 
 Am. L. Reg. 419; U. S. v. Twenty-eight Casks of Wine, 7 Int. R. Rec. 4. Such 
 laws are for the suppression of a public wrong, and to effect a public good.
 
 252 STPJCT CONSTEUCTION. 
 
 interest, it shall go to the person injured. But wliere it is given 
 for a crime, tlie king shall have the forfeiture, though he be not 
 named, a 
 
 The words " shall forfeit," vests only a right or title and not the 
 fi-eehold, in deed, or in law, without an office to find the certainty 
 of the land, h Where a statute gives a forfeiture " of all inheri- 
 tances," it does not extend to an estate tail ; but where it is " of all 
 manner of inheritances," estates tail are comprehended, c 
 
 The stat. 8 Anne, c. 7, s. 17, imposing a penalty of treble the 
 value on the importation of foreign goods proliibited to be im- 
 ported into this countrj^, extends to all such goods as have been, 
 or may be, prohibited subsequently to that statute ; as much as if 
 they had been prohibited at the time of making that statute. (^ 
 
 If the penalty given by a statute is to be recovered in a court of 
 record, this can only be recovered m one of the superior courts at 
 Westminster ; for being a penal law it ought to be construed strictly, 
 and these are the courts m which tlie king's attorney general is 
 supposed to attend, e 
 
 It was held in the case of Partridge v. Naylor, that if an action 
 upon a statute giving a penalty, be brought against several de- 
 fendants, only one 'penalty can be recovered. But where a con- 
 viction of two persons had taken place on a statute giving a for- 
 feiture for deer stealing, and judgment was given that each de- 
 fendant should pay the forfeiture ; the conviction being removed, it 
 was objected that there ought to be but one 307. forfeited, and the 
 last mentioned case was cited; sed non allocatur, for the words of 
 the act are that they shall "respectively forfeit 307." And this 
 penalty is not m the nature of a satisfaction to the party grieved, 
 but a punishment of the otfender ; and crimes are several, though 
 debts are joint : " which," said Powell, J., " distinguishes thisfrom 
 the case of Partridge v. Naylor." /' The rule seems to be laid 
 down with great clearness and good sense in the case of R. v. Clark, 
 that where an offence created or made fi-aud by statute, is in its 
 nature single, one single penalty only can be recovered, though 
 several join in committing it ; but if the ofience be in its nature 
 several, each offender is separately liable to the penalty, rj 
 
 On the question whether two penalties can be incurred in the 
 same day, the determmations have in like manner properly de- 
 pended on the nature of the ofience. The cases of Marriott v. 
 Show It and P. v. Mathews, i in which it was held that only one 
 
 a Vin. Abr. Tit. Statute: Forfeiture. h PI. Com. 48C. 
 c Jenk. 287, pi. 21; Hob. 354. d Atty. Gen. v. Saggers, 1 Price 182 
 
 e E. V. Hymon, 7 T. E. 536. Walwyn v. Smith, 1 Salk. 178; Cro. Eliz. 48'; 
 Noy. 62. 
 
 f The Queen v. King and Another, 1 Salk. 182. 
 ■<7Cowp.610. A Com. 274. 
 
 ?• 10 Mod. 20, S. P. Hardman k Whitacre, Bull. N. P. 189. E. v. Bleasdale, 4 
 T. R. 809.
 
 STEICT CONSTRUCTION. 253 
 
 penalty could be forfeited iji one day, -were upon the 5 Ann. c. 14, 
 K. 4, for kcf})iiiff or using' gn'cylionnds for the destnictiou of giiiiie, 
 which ■Nvus only a continuation of the- sanu; act. So in the case oi 
 Cripps V. Dunlen, on the 29 Car. '2, c. 7, for exercising a trade on 
 Huntlay, Lord Mansfield said : " There can be but one entire 
 oilence on one and the same day." That case was one continued 
 exercising of the trade, one Sunday. But in tlie case of Brooke 
 i/ui /rt//< V. Milliken, on the 12 Geo. 2, c. Ij(5, for selling books origin- 
 ally written and ])ublish('d here, and afterwards re])rinted in 
 another country and ini])()rted into this, the court held that where 
 there had bemi two distinct acts of sale on the same da}', this con- 
 stituted two different olTences, for which two penalties Avere re- 
 coverable, a 
 
 Immediately on tiling an information, the right to the penalty 
 vests in the informer, and therefore though the King may pardon 
 the otfence, so as to discharge his own share, he cannot deprive 
 the informer of his. h 
 
 AVhere a statute (as Westm. 2, cap. 47,) says offenders shall be 
 punished for the first trespass, in a given maimer, (there, by burn- 
 ing their nets,) this ought to be by indictment at the suit of the 
 King, and the punishment cannot be inflicted upon the delinquent, 
 before, upon due conviction secundum legem et consuctudinem An- 
 (jliic, judgment is given. And where there are degrees of punish- 
 nr^nt inflicted in an increasing ratio, for the first, second, and third 
 olfonees, thei'e must be several convictions and judgments given 
 u[)on legal ])roceeding for each oilence, and an offender cannot be 
 convicted of the third before he is convicted of the second, or of 
 the S3Cond before he is convicted of the first. For though " ex 
 t'requenti delicto augetur poena,'" yet quod non apparet, non est, in 
 law; et non apparet judicialiter, ante judicium, c 
 
 It has been held that statutes that give costs are to be taken 
 strictly, as being a kind of penalt}'. d. And the authority of Cone 
 and Bowles was recognized in another case by Lord Hardwicke, 
 C. J., who stated it to be a settled rule that statutes which give 
 costs are to be construed strictly, e 
 
 Costs are only due by act of Parliament, none being recover- 
 able at common law ; and the statute of Gloucester, which gives 
 them, is only applicable to those cases where damages could be 
 recovered before it passed. /" Thus in sundry actions ; in an ac- 
 tion of waste against tenant for life or years, — in quare impedit 
 (which was considered as a mere matter of spiritual concern,) — 
 and in an action of debt for not setting out tithes (which could 
 not be recovered in the temporal Courts before the reign of Ed. 
 (■),) the party recovers no costs, because he had no right of action 
 
 a 3 T. K. r.OO. h Grosset v. Ogilvio (in error,) 5 Bro. P. C. 527. 
 
 <■ 2 lust. 4(18. 478. d Cone and Bowles, 1 Sivlk. 205. 
 
 p II. V. Inhabitants of Glastonrv, Hep. Temp. Hard. 357. 
 /rilford's case, 10 Rep. 116, b.'
 
 251 STRICT CONSTEUCTION. 
 
 before the statute of Gloucester. Lord Coke indeed, in his second 
 last it ate, lays down a rule apparently different fiom that m Pil- 
 ford's case ; for he says, " this clause (in the statute of Gloucester) 
 doth extend to give costs where damages are given to any defend- 
 ant or plaintiff by any statute made nfler this Parliament." In 
 ^'itham and Hill, Lord C. J. Willesr/ was stroiigly inclined to 
 overrule Pilford's case ; but would not, though he thought it a A'ery 
 extraordinary one, because he considered the case before him dis- 
 tinguishable from it ; and the constant endeavor has been, without 
 contradicting that case, to take other cases out of the rule. The 
 decision in subsequent cases has been said to depend entirely, upon 
 whether the new statute created the damages. Wherever a party 
 has sustained damage, and a new act gives another remedy, such 
 a party may recover costs as well as damages. This is laid down 
 by Lord Kenyon, as the correct rule, in Creswell and Hoghton. /'^ 
 There it was said, " where an act of Parliament imposes a duty, 
 and any person is prejudiced by its non-performance, the party 
 injured may recover damages and his costs." In the case of pen- 
 alties, a distinction was taken c between those cases where the 
 penalty is given to the party grieved, and those where it is given 
 to a common informer. The Court said the instant the tiling was 
 done which occasioned the penalty, it was a debt at common law ; 
 and the action upon the statute for the penalty is similar to that 
 upon a bond to recover a debt already clue. So, it was established 
 by a variety of cases, that where an action is given to the party 
 grieved, (as in two cases against the huncbed,) he is entitled to 
 costs if he succeed, though he had no remedy before the statute 
 of Gloucester, d except as by construction, he gets a debt at com- 
 iiion laio, and so damages. Being a duty to the party vested be- 
 fore action brought, he shall have costs; but in tarn ejuam or other 
 popular actions where the duty is not vested till the suit brought, 
 and not a debt vested before, he shall not have costs, e In the 
 College of Physicians v. Harrison, Lord Tenterden said, "Where 
 a right is vested in a particular person or corporation, the with- 
 holding of that right, and thereby compelling the party to sue for 
 it, is an injury for Avhicli damages may be recovered : and if dam- 
 ages, then costs will follow."/' In that case, the defendant having 
 succeeded, was consecpiently entitled to costs under the stat. 4 Jac. 
 1, cap. 3. Thus, though the distinction be fme in the case under 
 the subsequent acts, is the doctrine supported and the authorities 
 reconciled. 
 
 A justice of the peace, who has prosecuted a gaoler to convic- 
 tion, for suffering a prisoner to escape, conmiitted by him on a 
 
 a 2 Wils.91. hGT. E. 355. 
 
 cin Ward aud Snoll, 1 H. IJ!. 10. 
 
 (i Grantham v. Theale, 3 Burr. 1723. Jackson v. Coleswortli, 1 T. E. 71. 
 Woodgate and Knatchbull, 2 T. E. 25i. Tyte v. Glowdeu, 7 T. E. 268. 
 ePer Holt, C. J., Skinner, 303. /9 B. &. C. 524.
 
 STRICT CONSTRUCTION. 255 
 
 cliargo of felon}', is not entitled to the costs of the conviction un- 
 dei' 5 W. and M. c. 11, s. I}, as beinf.^ "a public ofKcer prosecuting 
 for the bonelit of the public." f/. Per BuUer, J., "The Court has 
 always put a strict construction on this act." 
 
 The stat. 7 Geo. 4, c. 7-1, s. 23, which provides for the allowance 
 of costs to prosecutors and witnesses in certain cases of misde- 
 meanor, does not apply where the indictment has been removed 
 into the King's Bench by certiorari, h 
 
 Wherever a statute imposes terms, and prescribes a thing to be 
 done within a certain time, the lapse of CAen a day is fatal, because 
 no court can admit of any terms, Ijut such as directly and precisely 
 satisfy the law. c 
 
 In the construction of a penal statute, " near " is riot equivalent 
 to " next ;" as where the expression " next market town " is used.r/ 
 
 Acts of Parliament which take away the trial by jury, or abridge 
 the hbert}' of the subject, ought to receive the strictest construc- 
 tion, c 
 
 It is a well settled rule of law, that every charge ui)on the sub- 
 ject must be imposed I)}' clear and unambiguous language. Acts 
 of Parliament which impose a duty upon the public, will be ciitic- 
 ally construed v.ith reference to the particular language in which 
 they are expressed. When there is any ambiguity found, the Con- 
 struction must be in favoiu" of the public ; because it is a general 
 ruU;, that whore the public are to be charged with a burden, the 
 intention of the Legislature tt) impose that burden, must be ex- 
 })licitly and distmctly shown. ''' Hence a gift of an estate upon 
 conditions, was held not "a sale" within the meaning of the 48 
 Geo. 3, c. 149, and that the conveyance was not subject to the ad 
 cdloreiii stamp duty./" 
 
 ^ As to the Stamp Acts m general, Lord Tenterden observed in 
 Tomkins v. Asliby : " Acts of Parliament imposing duties are so 
 to be construed, as not to make any instrument liable to them, un- 
 less manifestly within the intention of the Legislature." (j And 
 si>e the rule laid down by Lord Ellenborough m Warrington v. 
 Turbert. // 
 
 So, in the cases of tolls for repamng turnpike roads, where the 
 toll was imposed on " the horses drawing a caniage," but persons 
 
 a R. V. Shiiipness, 2 T. K. 47. c 5 Bio- P. C. 438. 
 
 h E. V. Richards and Others, 8 B. & C. 420. 
 
 d 1 W. Bl. 20. e Looker v. Halcome, 4 Biug. 184. 
 
 /■ Deun dem. Manifold v. Diamoud, 4 B. &. C. 248. 
 
 ;/ 6 B. & C. 541. h 8 East, 242. 
 
 I^oTE 39. — Upon sound principles of construction, a reference to a ^ey-mused in 
 a statute must be in its direct and primary sense, as exj)ressly defined, and not in 
 an assimilated interpretation, and this is more especially so when the express 
 meaning will accomplish all that was designed by the framcrs of the law. Cru- 
 gerv. Cruger, 5 Barb. 267.
 
 256 STRICT CONSTRUCTION. 
 
 repassing ^^ itli the same, duriiig the same day, were to be toll 
 free ; a second toll is payable in respect of a different carriage 
 passing the same day with the same horses; ft for the word " car- 
 riage" is introduced to limit the exemption, and you must other- 
 wise, instead of giving effect to every word in an act of parlia- 
 ment, strike it out of the clause. But where the toll is imposed 
 on the " carriage drawn by so many horses," it makes no difference 
 in the exemption, whether drawn by the same or different horses, h 
 And where the words of an exemption clause were, that " eyerj 
 person having paid the said tolls, shall pass and repass with the 
 same horses, cattle, beasts, and carriages, toll free," etc., the court 
 held that the same stage coach repassing with the same coach- 
 man, but with different horses and passengers, was not chargeable 
 with the second toll. Bayle}^, J., said, "As a separate and distinct 
 duty is previously imposed upon horses, upon cattle, upon calves, 
 hogs, sheep, or lambs, which are properly denominated beasts, I 
 think, reddendo singula singulis, that the exemption applies to every 
 separate thing on which the toll was previously imposed. The fair 
 construction of the clause is, that the word ' and' is not to be 
 taken conjunctively, but disjunctively or distributively, and then 
 the consequence will be, that if you return with the same horses, 
 drawing the same carriage, you are to pay no toll ; if you return 
 with the same horses, mares, mules, or asses, laden or unladen, 
 you are to pay no toll, &c. ; and if you return with the same car- 
 riage, you are to pay no toll." r 
 
 In an action for dock dues, Lord Ellenl)orough said, " If the 
 words will fairly admit of different meanings, it will be right to 
 adopt that which is more favorable to the interest of the public, 
 and against that of the company, because the company, in bar- 
 gaining with the public, ought to take care to express distinctly 
 what payments they are to receive, and because the public ought 
 not to be charged, unless it be clear that it was so intended." d 
 
 In the Dock Company at Kingston upon Hull v. Browne, e 
 Lord Tenterden said, " These rates are a tax upon the subject, 
 and it is a general rule that a tax shall not be considered to be im- 
 posed without a plain declaration of the intent of the legislature 
 to imjiose it." 
 
 In Parker v. The Great Western Raihvay Company,/ Tindal, 
 C. J., said: "Acts passed conferring great privileges upon com- 
 panies, for which they profess to give the public certain advan- 
 tages in return, should be construed strictly against the parties 
 obtaining them, but Hberally in favor of the puljlic." 
 
 a LoariufT v. Stone, 2 B. & C. 515. c Waterhonse v. Keau, 4 B. & C. 200. 
 h Williams v. Sangar, 10 East, GG; and Gray v. Shilling, 2 B. & B. 30. 
 d Giklwit V. Gladstone, 11 East, 675. 
 
 e 2 B. & Ad. 58. And see 1 B. & C. 424; 3 B. & A. 141; G Scott, N. E. 823; 2 
 M. &G. 175. 
 /L. J. 1844, C. P. 105.
 
 .STRICT CONSTRUCTION. 2;!>7 
 
 Where, therefore, an act coiituiued a chiuse authorizing a rail- 
 way company, a to demand a rate not exceeding four-pence per 
 ton per mile on all coals carried along the railway — and a sub.se- 
 (luent clause;, directed that for all c(nils shipped for exportation, a 
 rate not exceeding one half-penny per ton per mile should Ije 
 charged, it was held that the second clause was to be read as an 
 (!Xce[)tion ingrafted u))()n the lirst ; and also that coals shipped for 
 Lontlon, were coals shipped for exportation. 
 
 A power derogatory to private property, uuist be construed 
 strictly, and not enlarged by intendment, b '" 
 
 Private acts of parliament, confening new and extraordinaiy 
 powers of a special nature upon particular persons, affecting the 
 l)roperty of individuals, or giving exemption from a general bur- 
 den attaching by law upon all parties, should receive a strict in- 
 terpretation, c Where particular ])owers are granted to a coni- 
 \y.niy, if they enter upon any man's land, they must clearly shew 
 their authority ; antl if the words of the statute on which they rely 
 are ambiguous, every presumption is to be made against the com- 
 pany, and in favor of private property, d 
 
 Where a local act empowered trustees to take and use lands for 
 the purpose of making a road, making or tendering satisfaction to 
 the owners or proprietors of ])rivate lands, a court of law would 
 not confine the meaning of these words to the owners of the 
 inheritance only, but considered them to extend to " all persons 
 Iiaving any estate or interest in the land."(^. 
 
 The 70th and 71st sections of the London and Southampton 
 railway act, provide for the crossing by the railway, of roads not 
 being turnpike roads. By the 72d section, it is enacted that in 
 all cases where the railway shall cross any turnpike road, such 
 turnpike road shall be raised or sunk, b}- and at the expense of the 
 company ; the court of exchequer determined that a road on which 
 toll-gates were by law erected, and tolls taken thereat, was a turn- 
 pike road witliin the meaning of the 72d section. /" 
 
 A railway act provided that it should not be lawful for the rail- 
 way company to make or establish any jj^Wic station, yard, wharfs, 
 
 a Barrett v. The Stockton autl Dixrlingtou R. C, 2 M. & G. 13i: in error, 3 M. 
 it G. 950. 
 b Lom, -438. 
 
 c Rex V. Crokcr, Cowp. 26; 4 Jlyluc A- C. 11 G. 
 <l Scales and Pickerin-j;, 4 Binf,'bani, 450; 2 Chit. GIO; 2 Chit. 058. 
 e Li.ster v. Lobley, 6 Nev. & M. 340. 
 /Railway Co., 1 Railway Cases, 053. 
 
 NoTK 40.— Every statute derogatory of the rights of iiroperty, or that takes away 
 tlie rights of a citizen, is to be strictly construed. Van Home v. Dorrance, 2 
 Dull. 316. So also a statute in derogation of the common law. Brown v. Barrv. 
 3 Dall. 367. 
 
 I^ a common law term be used in a statute, without defining it, it is to be under- 
 stood in the sense of the English common law. McCool v. Smith, 1 Blatch. 459
 
 258 STRICT CONSTEUCTION. 
 
 &c., etc., ii})on the estate of G. without liis consent. On demurrer, 
 it was hekl that the word " pubhc" did not necessarily ovenide 
 the whole sentences ; and that if it did, then that, from the sub- 
 sequent chmses, every convenience connected with the railway, 
 must be considered as for the pubhc use. (t 
 
 Again it was held, that where parties under an act of parliament 
 of a private nature seek to burden the property of otliers by sub- 
 jecting it to a compulsory power, they must show unambiguous 
 words in the statute, b In the Stourbridge Canal Company v. 
 Wheeler, c Lord Tenterden said : " The canal having been made 
 under the in-ovisions of an act of parHament, the rights of the 
 company are derived entirely from that act. This, like many other 
 cases, is a bargain between a company of adventurers and the pub- 
 lic, the terms of ^^■hich are expressed in the statute ; and the rule 
 of construction in all such cases is now fully understood to be 
 this : — that any ambiguity in the temis of the contract, must 
 operate against the adventurers and in favor of the public." "The 
 powers," says Lord Cottenham in the cases before cited, of the 
 Manchester and Leeds Railway Company, " given to these com- 
 panies, are so large, and frequently so injurious to the interests of 
 individuals, that I think it is the duty of every court, to keep them 
 most strictl}' within their powers ; and if there be any reasonable 
 doubt as to the extent of their poAvers, they must go elsewhere to 
 get enlarged powers." d 
 
 Ip. Lee V. Milner, Alderson, B., said : " The stipulations con- 
 tained in acts of this sort are m the nature of conditions, and the 
 legislature confers those privileges on such companies on the con- 
 dition that they shall obey the different enactments contained in 
 the difi'erent acts with reference to them." e 
 
 Piivate acts are to be regarded and constraed as parliamentary 
 contracts. In Blakemore v. The Glamorganshire Canal Company, 
 (the leading case upon this subject,) Lord Eldon said,/" " "When I 
 look upon these acts of parliament I regard them all in the light 
 of contracts made by the legislature on behah of every person 
 interested in anything to L)e done under them. And I have no 
 hesitation in asserting that, unless that principle beapphed incon- 
 straing statutes of that description, they Ijecome instruments of 
 greater oppression than anythmg in the whole system of admin- 
 istration under our constitution. Such acts of parliament have 
 
 a Gordon v. The Chelteuhapi, &c.. Railway Co., 5 Beav. 229. 
 
 b Webb V. The Manchester and Leeds Railway Co., 4 Mylne & C. IIG; 1 Rail- 
 way Ca.s. .576. 
 
 c 2 B. & A. 792. 
 
 d Webb V. The Manchester and Leeds Railway Co., 1 Railway Cas. 57G. And 
 see Lord Cotteuham's judgment in Kemp v. The Brighton Railway Co., and his 
 ob.servations in Bell v. The Hull and Selby Railway Co., 1 Railway Cas. 495, G37. 
 
 e Lee V. Milner 2 Y. &, E. 618. Pickford v. Grand Junction Railway Co., 10 
 M. & W. 400. 
 
 / 1 Myl. ctR. 162.
 
 STRICT CONSTHUCTION. 259 
 
 now become extremely inimerons, and from their number and 
 operation, they so nuieli atiect individuals, that I apprehend those 
 who coiiu! for them to parliament, do, in etl'ect, undertake that 
 they shall do and submit to, whatever the legislature empowers, 
 and compels them to do, and that they shall do nothing else." 
 
 In a case between the same parties in the Exchequer Parke, B., 
 said, "The deliberate ophiions of L(n-d Eldon, Lord Lyndhurst, 
 and Lord Wynford, have established that these acts of parliament 
 constitute a contract or bargain betAveen the public and the com- 
 pany."(t 
 
 The principle so stated, Avas acted upon in R. v. Cumberworth 
 by Lorn Tenterden and Patteson, J. h And in R. v. Edge Lane, 
 Lord Denman said, " The remarks of Lord Eldon, considering his 
 high authority and undoubted caution, have great weight. We 
 also think, that wdiere powers are entrusted by the legislature ior 
 an avowed and precise object, the pursuit and performance of that 
 object should be rigidly Avatched." c 
 
 All act of parliament brought in on the petition of the corpor- 
 ation of London, is to be considered as a contract between the 
 respective parties, notwithstanding it is (as many other acts of the 
 same kind are) declared to l)e a public act."^/ "Whether an act 
 is public or private," said Wigram, C, in the late case of Daw^son 
 V. Paver, e "does not depend upon any technical considerations, 
 (such as having the clause that the act shall be deemed a pubHc 
 act,) but upon the nature and substance of the case." And see /■ 
 
 the same case as to mere general Avords in an act of this kind, 
 binding the rights of strangers. 
 
 A statute Avliich gives a new remedy, ought not, it is laid doAvn, 
 (but rather questionably, Avhilst expressed in such general terms,) 
 to receive a liberal construction. What is doubtless meant, is a 
 ncAV remedy — by summary proceedings, or other deviations from 
 our ancient constitution. /' / 
 
 A statute [creating a ncAV jurisdiction, ought to be constnied 
 strictly, g And the jurisdiction of the superior courts is not to 
 be ousted but by express Avords or necessary implication, Tin- 
 dal, C. J., in deliA^cring liis judgment in Crisp y. Banbury, A Avhere 
 tlie AVords Avere "that the matter shall be referred to the arbitra- 
 tion of," etc. ; fully recognises this proposition. 
 
 There are several instances in Avliich statutes giving a summary 
 remedy before justices have been held not to exclude the right of 
 action, but to be cumulative, i Yet AA'here an act created penal- 
 ties of 50/. and of 10/., and enacted, that the former should be 
 sued for in any of the courts at Westminster, and provided that 
 
 a 1 Cr., M. & K. Ul. 6 3 B. & Ad. 108. 
 
 c 4 A. &. E. 723. d Priclaard v. Hej-\voorl, 472. 
 
 e 5 Hare, 434. f Pool v. Neal, 2 Sid. G3. 
 
 g 10 Rep. 75 ; Stra. 2u8. 'h 8 Biugh. 394. 
 
 j Holt N. P. C. 147, 3E. & G. 1273.
 
 260 EXCEPTIONS TO STKICT CONSTRUCTION. 
 
 it should and might bo lawful for justices of the peace, &c., to hear 
 aud deteriniue the latter, with a power to them to mitigate the 
 penalties ; it was held, that such proviso (clearly inserted for the 
 beneht of the prosecuted) ousted the jurisdiction of the superior 
 courts, as to the lOu penaltj.a In Timms v. Wilhams, 4 Q. B. 
 R. 4:'22, Lord Dennian said, "As in the case of saving banks, so 
 here (in the London Loan Society,) as it appears to me, the leg- 
 islature has thought it useful to withhold the power of instituting 
 expensive suits in the supreme courts, and to aj)point a domestic 
 forum to settle those small disputes which a society of this kind 
 IS likely to be engaged in." 
 
 It is a general rule in the interpretation of acts of parliament, 
 that an enactment, the effect of which is to cut down, abridge, or 
 restrain, any written instrument, shall have a limited construction. 
 The enactment framed for such a purpose should be positive, and 
 the words so clear and express, as to leave no doubt of the inten- 
 tion of the legislature, b The cases of Morris v, Mellor, and 
 Bennett v. Daniel, as to the defeazance to a warrant of attor- 
 ney, have been already noticed pp. 601, G02. 
 
 Statutes against frauds are a satisfactory exception to the rule, 
 that penal statutes are to be taken strictly. There is no contra- 
 diction, except in terms, in holding, that where the offence is to be 
 punished by setting aside a fraudulent transaction, or an instru- 
 ment improperly obtained, the fullest effect shall be given to the 
 provision framed to suppress the mischief, — whilst, where the of- 
 fender is in danger of life or liberty, he must be brought strictly 
 within the letter of the law. Statutes, therefore, against frauds, 
 are always liberally and beneficially expounded. " Chancery will 
 aid remedial laws," said Lord Keeper Wright, c though they are 
 called penal ; not by makuig them more penal, but by letting them 
 have their course." The statute of Marlbridge is a penal law, but 
 yet, because it is of a beneficial nature, and for the public good 
 comprehensively considered, — though the word m the act be 
 "/aci'anf," it is extended to waste omittendo, — though the former 
 term literally imports active waste.o? 
 
 Though it is said, as has been lately shown, that where acts of 
 parliament making a thing void, " it shall be void to all intents, 
 and have a very violent relation ; " c and though the stat. of 13 
 Eliz. c. 10, makes void certain leases by bishops " to all intents 
 and purposes," 3'et such a lease is not void against the lessor him- 
 self. For, such rent reserved shall be good by the way of con- 
 tract between the lessor and lessee, but is not incident to the re- 
 version, and the lease is voidable by the successor. 
 
 a Gates v. Kniglit, 3 T. R. 442 ; 4 T. E. 100 ; 6 T. E. 243. 
 
 b Morris v. Mellor, G B. & C. 446 ; Bennett v. Daniel, 10 B. & C 504. 
 
 c Cb. Prac. 215. 
 
 d 10 Mod. 282. 
 
 e 2 Jo. 19, citing 3 Hen. 7, 15 ; d al Vin. Abr. tit. Stat. 139.
 
 EXCEPTIONS TO STRICT CONSTRUCTION 261 
 
 It was said by Horton, as early as 11 Hen. 4, tiat " a statute* 
 penal, as the statute of provisions, shall be taken tifriHi jnri.s ; 
 but a statute made for common remedy for general mischief, maj 
 be taken by equity." a Thus the Kiot Act and the Black Acts 
 hifdily penal as are their provisions gcaierally, are treated as re- 
 medial acts in proceedings taken against the hundred. 
 
 Conformal)ly to this doctrine, it is l)y no means imusual, in con- 
 struing a semi-remedial statute; (acting upon the offence and avoid- 
 in"- the transaction,; to extend the enacting Avcnds beyond their 
 natural import and effect, in order to include other cases Avitliin 
 the same mischief, and also within tlu; apparent intention of the 
 legislature. Thus, it was held, that the recitals hi the disabling 
 statute, 13 Eliz. c. 10, do not limit the force of the subsequent 
 enactment to cases in which the mischief by the alienation is 
 done to the personal interests of the successor of the alienor ; for 
 it is evident from the enactment, that the legislature intended to 
 apply the prohibition to the case of persons who were seised 
 either as mere trustees, or in a great measure as trustees, and 
 among other persons, to the master or guardian of an hospital, h 
 Indeed, it is largely held, that in the case of a remedial statute, 
 " everything is to be done in advancement of the remedy that can 
 be given, consistently with any construction that can be put upon 
 
 it." c 
 
 But these last-mentioned terms are too general to convey any 
 precise instruction. It will be more prohtable, as resting upon 
 more specified gi'ounds, to examine carefully the deliberate opiri- 
 ions of deeply learned judges, upon an act framed with a partic- 
 ular view to suppress frauds, (the 13 Eliz, c. 5,) and therefore an 
 act, according to the rule under consideration, to be hberally and 
 beneficially construed, to promote that end. It was held in the 
 construction of tliis statute, that " the purchaser who shall avoid 
 a precedent covenant made by fraud and covin, must be a pur- 
 chaser for money or other valuable consideration ; for, although 
 it is said in the preaml)le, 'for money or other (jood consideration,' 
 and likewise hi the body of the act, 'or other {/ood consideration,' 
 yet these words are only to be intended of valuable consideration ; 
 and that appears by the clause which concerns those who had 
 powers of revocation ; for there it is said, 'for money or other 
 good consideration paid or given,' and this word 'paid' is to be 
 referred {reddendo sinr/ula singuU.s) to 'money,' and 'given' is to be 
 referred to good consideration ; so, the sense is, — for money paid, 
 or other good consideration given, which Avords exclude all consid- 
 erations of nature or blood, or the like. And this latter clause 
 doth well expoimd these words mentioned before ; for if consid- 
 
 a Br. Pari. pi. 13 ; citing 11 Hen. 4, TG. 
 
 b St. Peter's, York, Dean and Ch. v. Middeborough, 2 Y. <t J. 196. 
 
 Johnes v. Johnes, 3 Dow. 15. S. P. Acheson and Everitt, Cowp. 391.
 
 262 EXCEPTIONS TO HTPJCT CONSTRUCTION. 
 
 eration of natm-e or blood slioiild be good consideration -wdtliin 
 the proviso, the statute would serve for Httle or nothing, and no 
 creditor would be siu-e of his debt." 
 
 So, " where one indicted for recusancy, and having the intent 
 to flee beyond sea, made a gift, &c.," it was held within tliis act; 
 " the words to defraud creditors and others of their " {inter alio) 
 " forfeitures," extending to those "who had cause of action or 
 suit," or " where anything shall by law be forfeit to the king or 
 subject." 
 
 Again, in an obhgation void by 5 Edw. 6, c. 16, was a lawful 
 covenant for repayment of money m a certain case : held, that "if 
 the addition of a lawful covenant should make the obligation of 
 force, even as to that, — the statute would serve for little or no 
 l)urpose ; " for this cause it was adjudged that the obligation was 
 utterly void, a 
 
 It should seem that a statute for the discharge of insolvent 
 debtors ought to be constnied strictly, quoad the cessio honorum 
 and the rights of creditors, because it gives away the property of 
 the subject. " Let a statute be ever so charitable," said Holt, C. 
 J., " If it give away the property of the subject, it ought to be 
 constnied strictly." h 
 
 It has been already stated, that a statute may be penal in one 
 part, and remedial in another part, c There is no impropriety, it 
 remains to be observed, in putting a strict construction on a penal 
 clause, and a liberal construction on a remedial clause, in the 
 same act of parliament. This has been done on the statutes 
 which make it a felon}" to burn houses and other property, and 
 give those who sutler from the felony, a remedy against the hun- 
 dred. So, the 23d section of the stat. 11 Geo. 2, c. 19, authoriz- 
 ing the sheriff to grant replevins on taking bonds, in every replevin 
 of a distress for rent, is remedial, and shall be constnied liberally, 
 though the 22d section is penal, and has been constnied strictly, d 
 
 Statutes, though peiial, have been " taken by intendment," to 
 the end that they should not be illusory, but should take effect 
 according to the e'xpress intention of the makers of the act. 
 Thus, by the stat. 25 Edw. 3, the killing of a master is made 
 treason, and it extends by constniction as has been sho^^^l, to the 
 mistress, e The stat. 3 Hen. 7, c. 1, is, that the wife or heir of 
 him so slain, shall have the appeal; the heir of a woman who was 
 murdered shall have the appeal; iov apices juris non .sunt jura./ 
 
 The letter of the law has now been largely treated, and its spirit 
 copiously discussed, further it is indispensably necessary in the 
 construction of statutes, to have regard to their provisions ; to see 
 of luhat they treat; the quid as well as the quo modo. For a 
 
 a Tw-yne's case, 3 Kep. 83. hl2 Mod. 513. 
 
 c Dougl. 702. d Short V. Hubbard, 2 Biug. 355. 
 
 e Poulter's case, 11 Eep. 34. /4 Eep. 4.
 
 EXCEITIONS TO H'J'ltlCT CONSTRUCTION. 2G3 
 
 statute which treats of things or persons of an inferior lank can- 
 not, by any general words, l)e (;xt(in(le(l t(i tliose of a su])erior. 
 Thus, an old statute treating of " abbots, priors, hospitallers, 6:c.,'''a 
 and a later act speaking of " deans, })relic'ndaries, parsons, vicars, 
 and others havhig spiritual promotion," hav(^ been respectively 
 lield not to extend to bishops ; — a])b(jts and deans being the 
 highest persons named, and bishops being of a still higher order, h 
 80 where, in 2 Westm. cap. 47, "for the protection of the salmon 
 fishery in the Humber, Ouso, Trent, etc.," Tlinmcsis — " nol/ila Uhid 
 Jlumen' is not named ; though there be the gtuieral words " cf 
 omnes alke aquce in rcyno iji gnibiis .saliiioncs cajiinntnr" — the 
 Thames, therefore, is added by another act, — and in the first 
 place. c 
 
 Yet, where in the a.iil<:uli dm', it was couiplained, (cap. ix.) 
 " that the king's officers did some time take i\\Q parsons beasts in 
 the king's highway ;" and the words were aniindlia recforum, tins 
 law extended to abbots, priors, and the like. But this is not in- 
 consistent with the received and familiar doctrine ; for the words 
 persome ecdesiasllcce afterwards occurring in the act, " parsons" 
 were considered as being here named, for example. 
 
 But in the stat. of Marlbridge, cup. 11), a ])rovision is made 
 "touching essoigns in counties, hundreds, or in courts baron, or 
 in other courts;" and here, "although the act beginneth with 
 inferior courts, contrary to rales, (as is known by common expe- 
 rience,) the general words vel in aliis cnriis are interpreted to 
 extend to the king's courts of record at AVestminster, and other 
 courts of record. And tlie cause is, for that otherwise, these gen- 
 eral words should be void ; for it cannot, according to the general 
 rule, extend to inferior courts, for none be more inferior or lower 
 than these that be particularly named ; and so note a just excep- 
 tion out of the general rale." d 
 
 It is only repeated here, on account of its relation to the maxim 
 under discussion, that where general words follow particular ones, 
 the rale is to construe them as applicable to persons ejnsdeni gen- 
 eris. " Considering then," says Lord Tenterden, " in Sandiman v. 
 Breach, e that in tlie 3 Car. 1, c. 1, (passed to prevent traveling on 
 the Lord's day,) carriers of a certain description are mentioned, 
 and that in the 29 Car. 2, c. 7, drovers, horse-coursers, waggoners 
 and travelers of certain descriptions are specifically mentioned, we 
 think that the words ' other person or persons,' cannot have been 
 used in a sense large enough to include the owner and driver of a 
 stage coach." 
 
 Such are the principal rales relating to the construction of 
 statutes ; a few others may perhaps remain unnoticed, of mmor 
 
 a Westm. 2, cap. 41. 6 2 Rep. 46. 
 
 (• 2 Inst. 478. e 7 B. & C. 100. 
 
 </ 2 Inst. 13a
 
 I 
 
 264 EXCEPTIONS TO STKICT CONSTEUCTION. 
 
 importance. * It is doubtless very desii'able that statutes should 
 be framed in such clear and precise terms, as to secure them from 
 all ambiguity, and from all doubts and criticism as to their mean- 
 ing. But it is to be feared, that, from the habits of legislators and 
 the imperfections of lang-uage, such an event is quite hopeless, and 
 the attempt impracticable. It is, unquestionably, often owing to 
 the want of technical skill in the makers of the law, that statutes 
 give rise to such distressing doubts, from the ambiguity that at- 
 tends them. Great experience and learning are, however, it ought 
 to be remembered, no less requisite for the interpretation, than 
 for the preparation of laws. " It would be quite visionary," says 
 the sensible and candid commentator on the laws of the United 
 States of America, " to expect in any code of statute law, such 
 precision of thought and perspicuity of language, as to preclude 
 all uncertainty as to the meaning, and exempt the community fi'om 
 the evils of vexatious doubts and litigious interpretations. Vari- 
 ous and discordant readings, glosses and commentaries, will inevit- 
 ably arise in the progress of time, and perhaps as often from the 
 want of skill and talent in those who comment, as in those who 
 make the laws." a 
 
 a Kent's Comm. Vol, 1, 450. 
 
 * As that entries make good interpreters: " jndicial jirecedents, and the right 
 entries of pleas are good interjDretations of statutes." Dich<m per Lord Coke, 2 
 Inst. 380.
 
 EQUITABLE CONSTRUCTION. ' 265 
 
 CIIAPTEU VIII. 
 
 PARTICULAR RULES OF CONSTRUCTION APPLICABLE TO DISTINCT 
 PARTS OF STATUTES: TITLE, PRE A:\n5LE, CLAUSES, PROVISOS: 
 JL'DICLVL OR AUTHORITATIVE EXPOSITION OF THE MEANING OF 
 PARTICULAR WORDS OR PASSAGES TO BE FOUND IN ACTS OF 
 PARLIAMENT. 
 
 The comprclicnsivu inunnoi- iuAvliich tliu several subjects of the 
 classifieatiou of statutes ; the analysis of statutes and the rales 
 for then- construction, have been treated in the preceding chaj)- 
 ters, has necessarily anticipated much of Avhat occuiTcd to l)e said 
 on the subject of the particular rules of interpretation a])plicable 
 to distinct parts of acts of ])arlianient. Examples may yet be 
 atibrded of the degree of influence which the title or jireamble 
 ought to exercise over the enacting clause, or one clause over an- 
 other clause, or general words over special provisions in an act : 
 but as regards either leading principles or established maxims, 
 little curious or useful remains to be added. It is proposed, how- 
 ever, to proceed to a succinct statement, or brief recapitidation, 
 of the rules of exposition aliecting the constituent parts of acts 
 of parliament. 
 
 The stylo and title, it will bo remembered, is no parcel of the 
 act ; but the object of an act is often avowed in the title, as well 
 as in the preamble. Yet though the title of an act may occasion- 
 ally shed lijrht on the former law and the contemplated changes, 
 it is really in itself, -without legislative imjiort. 
 
 The preamble states, with more or less accuracy, the object of 
 a law_ and the occasion of its making. Its first legitimate and un- 
 questioned use, is to ascertam, Avliat the cases are, to which the 
 act was intended to apply. It has never been disputed, that the 
 preamble to an act, may be properly used, to ascertain and fix the 
 subject-matter to which the enacting part is to be api^Hed. a ^ 
 
 It is, at the same time, incontrovertible, that, if the enacting 
 words can be shown to go beyond the preamble, (and that they 
 may be justifiably earned beyond the preamble, there is no man- 
 
 a Fellowcs v. Clay, 4 Q. B. R. 330. Salked v. Johnson, 1 ILire 19G, and the 
 mimerous cases there cited. 
 
 Note 1 . — The reason why a preamble may be referred to, to determine the reason 
 and intent of the legislature when the language is ambiguous, is, that it states 
 the reasons and objects of the law. U. S. v. Webster, Davies 38. If the reasons 
 appear in any other equally solemn document it may also be resorted to. id. 
 34
 
 2GG " THE PKE.VJMBLE.. 
 
 ner of doubt ; if tlie words be seen to embrace any other case 
 Avitliin the mischief songht to be remedied,) etlect must bo given 
 to such larger wcnxls. And a contrary construction is declared to 
 be unfounded, mischievous and dangerous, a 
 
 The doctrine received Avith the greatest difficulty, and A\hich 
 occasioned the strongest controversy in Westminster Hall, is, the 
 the proposition, that the preamble, may be sometimes used, to 
 control and cut down the enacting part. This use of the preamble 
 to an act of parliament, to restrain the operation of its enacting 
 clauses m their a])plication to cases witliin the act, formerly led to 
 much dilterence of opinion, and is approached "svitli great caution 
 by modern judges. Lord Tenterden, in the case of Halton v. 
 Cave warily pronounced the legal doctrine upon this subject in the 
 following terms: — "The enacting words of an act of parliament, are 
 not always to be limited by the words of the preamble, but must, 
 in many instances go beyond it. Yet the words in the enacting 
 part, must be confined to that, which is the plain object and gen- 
 eral intention of the legislature in passing the act ; and the pre- 
 amble aftbrds a good clue to discover what that object was." h 
 
 Perhaps, in the history of American jurisprudence and of 
 AmeriGan fundamental law, there is no single paragraph that pos- 
 sesses more profound significance, in the expression of the object 
 and intent of the instrument, and of its framers, than that of the 
 preamble to the federal constitution. The highest judicial author- 
 ity ever accords to it a significance becoming an instrument wdiich 
 was laying the deep fomidations of a national government for 
 American empire which should rest on the solid basis of the will 
 of an intelligent and a free people ; the highest original source of 
 all legitimate earthly authorit}". 
 
 This preamble expresses the whole spirit of the instrument ; and 
 while it is neyer resorted to to enlarge the powers confided to the 
 general government, or to any of its departments ; and though it 
 confers no power, jJO' se, it has ever been referred to, and has been 
 used for the purpose, as its true office would seem to be, to ex- 
 pound and express the nature, extent, and application of the powers 
 confeiTcd in the constitution itself. 
 
 Its w^hole history assures us, that this preamble was not adopted 
 as a mere formulary ; but as the most solemn promulgation of 
 fundamental facts, vital to the character and future operations of 
 
 a Pel' Lord Denman, ante, p. 505, and per Lord Ellenborough in E. v. Marks, 
 504. 
 blB. & A. 538.
 
 THE PREAMBLE. 267 
 
 a government of a great people. The design of the establishment 
 of this constitution, is concisely and beautifully, but briefly ex- 
 pressed ; and it comprehends six distinct objects. 1st, To fonn a 
 more perfect union ; 2d, To establish justice ; 3d, To ensure domes- 
 tic tranquility ; 4th, To provide for the common defence ; 5th, To 
 promote the general welfare ; Gth, To secure tlie blessings of liberty 
 to themselves and tlieir posterity. Hero is found condensed, the 
 reasons which have ever had their influence upon reflecting judi- 
 cial muids in giving constniction to this great fundamental law, 
 the sheet anchor of our pohtical hoj^es. 
 
 1. The first proposition to bo advanced is, tluit the preamble 
 cannot extend tlie enacting clause. In support of this doctrine, 
 the case of AVilson v. Knabley may be cited, a In that case. 
 Lord Ellenborougli said, " I agree that the grievances recited in 
 the preamble of the act, would have led one to su])poso that the 
 legislatiire meant to have given a larger remedy than the action of 
 debt, against the deviset; of land, to recover damages for a Ijreach 
 of covenant by the devisor. But for us to extend the words to 
 the action of covenant, would be to legislate, and not to constiiie 
 the acts of the legislature." Yet m a late case, the preamble was 
 called in aid to give a meaning to a doubtful clause ; where the 
 ]>articular writ (Elegit,) was not expressly named in the enacting 
 clause. J> 
 
 2. The preamble cannot restrain the enacting clauses, except 
 where the words are ambiguous ; or are not sufficiently large to 
 (nnbraco the case ; or arc so larg(% that convenience and the policy 
 of the law, clearly require, that their generality shall be restrained, c 
 
 Lord Coke commends such construction of an act, as makes the 
 purview agi'co with the preamble ; but not such, it is said in the 
 case of the King v. Althoes, d as may limit and confine the enact- 
 ing part to the preamble. 
 
 It has, it should seem, been sometimes too broadly laid down, 
 that the generality of the enacting clause sltaJl he restrained and 
 qualified liy the preamble. In Copeman and Gallant, c it was said 
 by Lord Cowper, that ho could by no means adopt the notion that 
 a preamble shall restrain the operation of an enacting clause ; and 
 he added, that if the ])reamble of the Coventiy act had only re- 
 cited the barbarity of slitting Coventry's nose, and the enacting 
 clause had been general against the doing of anything whereby a 
 man is disfigured or defaced, it might, agreeably to that notion, 
 have been said, that cutting ofl: the lip, or putting out an eye, 
 
 a 7 East, 128. h Nash v. Allen. 4 Q. B. E. 781. 
 
 c Crespigny v. Wittenoou, 4T. E. 193, and see ante, p. 508. 
 d 8 Mod. 144. e 1 P. Wms. 320.
 
 268 THE PREAMBLE. 
 
 "Nvoukl not have been witlim the meaning of this statute ; because 
 neither of these is mentioned in the preamble. In Ryall v. 
 Eowles, a Parker, Ch. Baron, said : " It is laid down in 1 Jo. 163, 
 and Palmer 185, upon the construction of the stat. 13 Eliz. that 
 the preamble shall not restrain the enacting clause. But I take 
 it to be agreed, that if the not restraining the generality of the 
 enacting clause Avill be attended with an inconveniency, the pre- 
 amble .sitall restrain it. In Copeman and Gallant, I must own that 
 Lord Chancellor Cowper exploded the notion of the preamble's 
 governing the enacting clause, and went upon another reason. I 
 have great honor for Lord Cowper ; but though I approve of the 
 decree, I cannot subscribe to the reasons of it." 
 
 The opmion of Lord Cowper with respect to the operation of 
 the preamble was 'equally disapproved of by Lord Hardwicke. In 
 the same case of Byall and Bowles, b the later chancellor said : "I 
 shall not scruple to declare that I am strongly inclined to be of 
 opinion with Lord Holt and my lord chief baron, that this clause 
 is to be restrained by the preamble ; and differ fi'om Lord Cowper 
 in the case of Copeman and Gallant." 
 
 The general purview of a statute is not, however, necessarily to 
 be restramecl by any words introductory to the enacting clauses. 
 Larger and stronger words in the enactment part of a statute may 
 extend it beyond the preamble, c If the enacting words are plain, 
 and sufficiently comprehensive to embrace the mischief intencled 
 to be prevented, they shall extend to it, though the preamble does 
 not w^arrant the construe tion.(? In the case of B. v. St. Peter and 
 St. Paid, in Bath, it was contended that the construction of the 
 certificate act was to be restrained by the preamble. Lord Mans- 
 field said : " Whatever might be the leadmg motive in passing that 
 act, that statute authorizes the whole body of the poor, of what- 
 ever denomination, and with whatever object to leave their own, 
 and to remove into any other parish ; provided they can obtain 
 the protection of a certificate. Contrary to the spirit and poHcy 
 of the act, and not obhged by the letter, the court will not make 
 an exception of a case winch the act has not itseK excepted." e 
 
 In B. V. Pierce,/ Lord Ellenborough said : " It cannot by any 
 means be regarded, as an universal rule that large and compre- 
 hensive words in the enacting clause of a statute are to be re- 
 strained by the preamble. In a vast number of acts of parhament, 
 although a particular mischief is recited in the preamble, yet the 
 legislative provisions extend far beyond the mischief recited. And 
 whether the W'Ords shall be restrained or not, must depend on a 
 fair exposition of the particular statute in each particular case, 
 and not upon any universal rule of construction." In Freeman v. 
 
 a 1 Atk. 174. h Id. 182. 
 
 c Cowp. 543. E. V. Marks, 3 East, 160. d 3 Atk. 203. 
 
 elBott.443. /3M. &S. 66.
 
 POWER OF THE PKEAJIELE. 2(J9 
 
 Lambert, a the same powerful chief justice said : " I confess, I am 
 not for restraining the generality of the enacting clause by the 
 preamble, without some reas(m for it." And ]Jampier, J., said : 
 " I have al\va}s understood it as a standing rule in the construc- 
 tion of acts of parliament ; that the enacting clause shall not be 
 restrained by the preamble, if the enacting words are large enough 
 to comprehend the case." In a late case of Hughes v. Done, b 
 Lord Denman said : " To iutroduce, in the enacting part, an ex- 
 cejjtion not there to be found, and which, if intended might ha^■e 
 been so easily introduced and expressed, is we think to curtail and 
 abridge the meaning of plain win-ds in a manner wliich no rule of 
 construction warrants." 
 
 But though the preamble cannot control the enacting part of a 
 statute, which is ex})ressed in clear and unanil)iguous terms, yet, if 
 any doubt arise on the words of the enacting part, the preamble 
 may be resorted to, to explain it. In truth, it then resolves itself 
 into a question of intention ; or in other words, recourse is had to 
 the primary rules of interpretation. For the Avords being doulot- 
 ful, the preamble is compared with the rest of the act, in order to 
 collect the intention of the legislature, whether they meant it to 
 extend to a case like that under consideration. The preamble of 
 the stat. 22 Geo. 2, c. 44, which was confined to marinei-s and 
 soldiers, recited that mariners and sokhers of diiierent trades, and 
 apprentices who had not served their times, were prohibited from 
 setting up their trades in corporate towns, &c., either by reas(jn 
 of by-laws therein made or of the 5th Eliz. c. 4. To remed}' this 
 inc'onvenience it Avas enacted, that all such mariners and soldiers 
 might set np their trades, in any town, notwithstanding these dis- 
 abdities. The stat. 26 Geo. 3, c. 107, referring expressly to tlu' 
 former statute, says, that every jjerson having served in the militia, 
 may set up a trade " as freely and with the same provisions," <tc. 
 It was held clear on the meaning of the acts, wduch were made in 
 pari materie, and referring to the titles and preambles to discover the 
 occasion and object of maldng the laws, that they related to persons 
 exercising trades, and not to common laborers, or husbandmen, c 
 
 The preamble of the annuity act recites " the pernicious prac- 
 tice of raising money by the sale of life annuities :" an annuity 
 granted in consideration of the grantee's giving up his business to 
 the grantor, was held not within the spirit or object of the act, which 
 was intended as a check against hard bargains ; the preamble 
 stating as the occasion of the act, the mischiefs of granting annui- 
 ties for small consideration l>y improvitlent persons. d> 
 
 In Salkeld v. Johnson, e Wigram, V. C, said : " Courts of law 
 have held that the mere subject-matter without any preamble, may 
 safely be relied upon for restraining the operation of general 
 
 a-tM.&S. 238. 6 1Q. B. R. 301. 
 
 c R. V. Gwenop, 3 T. R. 13o. d Crespiguy v. Wittenoon,, -1 T. R. 791. 
 
 e 1 Hare, I'JG.
 
 270 POWER OF THE TEEAMBLE. 
 
 words. The stock-jobbing acts in terms are general, and would 
 apply to transactions in foreign stock : a yerbal construction wliicli 
 the courts have rejected, in favor of the obvious intention of the 
 legislature to apply them only to British stocks." Henderson v. 
 Bisc ; a Wells v. Porter ; /; Elsworth v. Cole, c 
 
 Clauses will sometimes be governed by provisions in another 
 section of the act. A company were incorporated by statute and 
 empoAvered to make a railway through certain districts. By sect. 
 5 of the act, they w-ere chrected to leave sufhcient space for the 
 public to pass, or to form new roads m hen of any existing ones 
 that might be injured by their railway. Section 70 empowered 
 proprietors of lauds, mines, <tc., to make railways through their 
 own lands and those of other persons consenting, and across and 
 along any road or roads to communicate with the principal rail- 
 way ; and no reference A\as made to imj former limitation of 
 powers. It was nevertheless determined that the power in this 
 clause was not absolutely given, but must be subject to the pro- 
 visions of section 5, as to the condition of leaving space enough, 
 independent of the railways, for the public to pass. <l 
 
 A railway act empowered the company to make and maintain 
 their railway over certain lands to a specified point. Section 4 
 enacted, that nothing m that statute should authorize the company 
 to enter upon, take or damage any lands without the consent of 
 the owner and occupier. Sections 16 and 17 empowered the com- 
 pany to contract with landowners for the purchase of land, and 
 for gTants of way-leave. Section 18 contained a clause of arbit- 
 ration in case any person wilhng to grant or demise such way- 
 leave, should not agree with the company as to terms. Section 43 
 enacted, that " in every case in which the said railway shall cross 
 any other railway, the commmiication between them shall, if the 
 company and the owners of such other railway do not agree about 
 the same, be made in such maimer as shall be directed by two 
 engineers acting as arbitrators, and that the company shall make 
 satisfaction (to be ascertained in the manner before pointed out) 
 for temporary, permanent, or recurring injury, to be occasioned by 
 such crossing." No regulation was made as to the maimer in 
 which, and times when, carriages on the first-mentioned railway 
 should cross the other. The Court held that section 43 did not 
 clearly introduce a compulsory power in the case where a railway 
 was to be crossed, and, therefore, that the provision of section 4 
 must be taken to govern this clause, and make consent necessary. 
 Although it should be impossible without so crossing, to carry the 
 first-mentioned railway to the pomt specified in the act. e 
 
 a 3 Starkie, 158. h 3 Bingh. N. C. 722. 
 
 2 M. & W. 31. . d Rex v. Morris, 1 B. & A. 44:1. 
 
 e The Clarence Railway Co. v. The Great North of England Junction Railway 
 Company, 4 Q. B. R. 46.
 
 LOCAL, rARTICULAll AND KI'ECLVL ACTS. 271 
 
 A local act provided (in sect. 159), that if the company fonned 
 under that act, wilfully entered upon and took possession of lands 
 without consent and Avithout liaviii}^ made a required i)ayment or 
 deposit, they should be ]ial)l(' to certain s])ecihed penalties : })r()- 
 viso, that the company sliould not he liable to the penalties, if 
 they should bona Jidt and without collusion, have paid or deposited 
 the compensation ; thou^^h not to the tnie owner. Held, bv the 
 court of exchequer, that the word " wilfully" does not override the 
 whole of the lo'Jth section ; but applies only to the tirst part of it. 
 Held further, that the section did not ap])ly in that case, the case 
 not being within the mischief the legislature intended io guard 
 against. That a penal se('tion should be strictly construed : while 
 a proviso which has the ell'ect of saving parties from penal enact- 
 ments, should l)e liberally construed. 
 
 " We are all of opinion," said Pollock, C. 13., " that the section 
 cannot be read precisely as it stands. We must give it some sen- 
 sible construction ;" (it could not be read gi'ammatically :) We 
 ought so to read the 159tli section as to bring the company in this 
 instance within the protection of the proviso at the end of the 
 section, a 
 
 " Upon all acts of parliament such construction should l)e made, 
 as that one clause shall not frustate and destroy, but, on the con- 
 trary, shall . explain and sui)i)ort, another." b In the case before 
 cited, on the annuity act, c clauses and sections in one part of the 
 act were made to illustrate obscure passages in another part. 
 Thus the third and/ourth clauses of the annuity act, 17 Geo. 3, c. 
 2G (requiring the consideration to be paid in money, or if paid in 
 notes, and those notes afterwards not paid, empowering the court 
 to order the annuity deeds to be cancelled,) were refeiTed to by 
 two of the judges, as showing the considerations contemplated by 
 the act ; as was, with a like object, the seuenlh section, which pro- 
 hibits brokers takmg more than ten shillings for every 100/. actually 
 paid ; while another judge held it apparent from the luhole act, that 
 it did not extend to a case like the one then before the court. "In 
 cases," he said, "where money has been paid as the considera- 
 tions, the cou.rts order the money to be restored when they vacate 
 the annuity deeds ; but the business, the relinquishment of which 
 was the consideration of this annuity, we cannot order to be re- 
 stored." In the case of E. v. Cartwright, d where the question 
 was, whether a provision in an act were general, or related only to 
 assaults on revenue officers, qua officers : Buller, J., said, the in- 
 tention might be collected from other parts of the act. " It is fan- 
 ro uifer that the legislature meant to extend the indenmity in the 
 lirst section to all those cases in which, by the subsequent clause 
 
 a Hutchinson v. The Manchester, Bury, and Ivosseldale llailway Compauv, 
 Easter Term, 1846. 
 h Hard. 314, pi. 1. c Crespigney v. "Wittenocim, 1 T. E. 791. 
 
 d 4 T. R. 490,
 
 272 LOCAL, rAETICUL-VR AND SPECIAL ACTS. 
 
 they gave the right of changing tlic venue." In this instance, and 
 m many others, prior chxuses are restrained by subsequent clauses 
 in a statute. 
 
 But where a chiuse, wliich is separate and substantive, itself 
 creates an olTence, the court, it has been seen, may give judgment 
 for that offence, as a misdemeanor, notwithstanding there be 
 another section in the same statute, giving a specific punishment, a 
 
 In construing doubtful clauses in an act of parliament, it will 
 often be a question whether a clause be a substantive independent 
 clause, or only a qualification of an antecedent clause. Where a 
 .section is by way of proviso, it can only be considered as a clause 
 dependent on a former clause, unless the manifest intention of the 
 legislature reqrdre a different construction. - 
 
 Upon obscure acts of parliament, or where the sections are 
 numerous, involved, and intricate, it may be useful to begin the 
 work of interpretation, by an endeavor to trace the method which 
 the drawer of the act has observed mthe distiibution and arrange- 
 ment of his subject. 
 
 A savmg must be of a thing in es.se ; the natiire of a saving is to 
 preserve a former right, and not to give or create a new one. A 
 sa^dng, it has been seen, may restrain and qualify the purview, but 
 was never allowed to overturn it. b 
 
 The effect of an exception introduced in the enacting clause, 
 contradistinguished fi'om the case where the exception is found in 
 a subsequent clause, c viz : that every exception contained in the 
 clause creating an offense must be negatived, but where the excep- 
 tion is introduced in a subsequent clause, it must come by way of 
 defense on the part of the defendant, has been already noticed. 
 
 General words, it is established, may be qualified by subsequent 
 clauses in the same statute ; but " a thing given in particular, shall 
 not be tolled by general words." c? ' This is expressed in the un- 
 
 a R. V. Harris, 4 T. E. 202. h 2 lust. 32; Duv. 3, b. 4, iu case of proxies. 
 
 c Eex. V. Jukes, 8 T. E. 542. 
 
 d Per Hutton, J., in Standon v. Univ. Oxon. Jo. 2G. 
 
 Note 2. — The general system of legislation upon the subject-matter of a statute 
 may be taken into view in order to aid the construction of a particular statute re- 
 lating to the same subject. Fort v. Bench, 6 Barb. 74. 
 
 Note 3. — A statute applicable in terms to particular actions, cannot be applied 
 by construction to other actions standing on the same reason. Jacob v. U. S., 1 
 Brock. 520. 
 
 If general words in a statute follow an enumeration of particular cases, they are 
 held to api^ly only to cases of a like kind with those enumerated. U. S. v. Irvin, 
 5 McLean, 178. 
 
 But where technical words occur in a statute, they are to be taken in a technical 
 sense, unless it appears that they were intended to be applied differently from 
 their ordinary or legal acceptation. 1 Kent. Com. 462, Clark v. City of Utica, 18 
 Barb. 451. Thus, where a statute directed that a coroner should serve process
 
 LOCAL, rAIlTICUL\U AND SI'ECLVL ACTS. 273 
 
 couth luaxiin — (jcitcndi.s (■hiitfinhi iioii porrujiliir ad en, q/ae S'peciali- 
 Icr sunt (■o)iij)r('/i('HS(i. <i Not that this .sentence is a wliit more 
 Ijarbarous in its hmguage than many that have preceded it, of the 
 gems ^vitll w hic-h the text of this work has been studded and (m- 
 riched. Ihit unfortunately, us regards the eil'ect of C(^ntrast, the 
 notion is adopted from the civilians ; it being a maxim of the 
 Digest that, " iit Udojurc, (jeiieri, 2)(i)' specicrti dcrofjaiur ; et illud po- 
 li-ssiiiiion iKtlx'tnr, qtajd ad .specieiit directum est." The meaning of 
 which is, that when the law descends to particulars, such monj 
 s[)ecial provisions nuist be understood as exceptions to any gen- 
 eral rules laid down to the contrary ; and the general rides nmst 
 not (vice versa ) be alleged in confutation of the special provisions. A 
 Conformably to this doctrine, it has been recently decided, as was 
 before shown, c that Avhere a general intention is expressed in a 
 statute, and the act also expresses a particular intention, incom- 
 patible with the general mteution, the particular intention is to be 
 considered in the nature of an exception, d 
 
 a 8 Eep. 118 b. h Wootlison's Eleni. of Juris. 30. 
 
 c P. 514. d Churchill v. Crease, 5 Bing. 180; ib. 492-3. 
 
 where the sheriff was a party, it was held that it must be technically a party ; that 
 being interested in the suit was not .sufficient. Merchants Bank v. Cook, 4 Pick. 
 •111. So in regard to the statute in regard to flowing lands, M^hich declared that 
 the judgment should ho final, it was held that these words were to be taken in a 
 technical sense. Suell v. Bridgewater, Ac, Co., 24 Pick. 300. In regard to the 
 word robbery used in an act of congress, it was held that robbery was a technical 
 term, which was known, and its meaning fully ascertained bj' the common law, or 
 civil law, from the one or the other of which, it had been borrowed, and that it was 
 necessary to refer to those sources for its precise meaning. United States v. 
 Jones, 3 "Wash. C. C. E. 209. The word sriperxede, was used in the militia act of 
 ilassachusetts. The court said, the only way to ascertain the sense of the legis- 
 lature in using the word, is to learn the military' sense in which the word is com- 
 monly used; for in the enactment of laws, the terms ot art or peculiar phrases are 
 made use of, it must be supposed that the legislature have in view the .subject- 
 matter about which such terms or phrases are commonly employed. Ex parte 
 Hall, 1 Pick. 2G2. 
 
 Certain other words, u.scd in statutes, have their meaning declared by the 
 .statute in this state as for examjile under the general provisions concerning 
 crimes and their punishment, 2 Eev. Stat. 69C, 7. 
 
 § 30. The term " felony," when u.scd in this act, or in any other statute, shall 
 be construed to mean an offence for which the offender, on conviction, shall be 
 liable by law to be punished Viy death, or by imprisonment in a state prison. 
 
 § 31. Whenever the term " infamous crime," is used in anj' statute, it shall be 
 construed as including every oftence punishable with death or by imprisonment 
 in a state ])rison, and no other. 
 
 ^ 32. Tlie terms "crime" or "offence," when used in this chapter, or in any 
 other statute, shall be construed to mean any oftenoe for which any criminal pun- 
 ishment may by law be inflicted. 
 
 §33. The term "personal property," as used in this chajiter, shall be con- 
 strued to mean, goods, chattels, effects, evidences of rights in action, and all 
 
 35
 
 27-i LOCAL, PAETICULAR AND SPECLUL, ACTS. 
 
 "Words and phrases, tlie meaning of wliicli in a statute lias been 
 ascertained, are, wlien used in a subsequent statute, to be under- 
 stood in the same sense, a ' The legal effect of particular expres- 
 sions (words or sentences), will therefore be considered with refer- 
 ence to — 1st, the courts or judicatures designated by them ; 2dly, 
 the proceedings which may be had before those authoiities ; 3dly, 
 the offences thereby either described or coiistituted ; and 4tlily, 
 the punishments ihej^ direct, or allow, to be inflicted. 
 
 Where a statute directs a penalty to be recovered by action, 
 bill, plaint, or information, in any court of record, the courts in- 
 tended by the statute, j^ro^i^o- cxcellerdiam, are the fom- courts of 
 record at Westminster. " As," says Lord Coke, h " if it be spoken 
 of proof (trial) generally, although there are many proofs in laAv, 
 yet it shall be intended of the best proof, and that is by jury ; if it 
 be spoken of the feast of St. Michael, where there are two feasts,_ 
 it shall be intended of the most worthy and notorious feast. If 
 
 a Bac. Ab. tit. Statute I. h Gregory's case, G Eep. 20. 
 
 written instruments by whiela any pecuniary obligation, or any right or title to 
 property real or personal, shall be created, acknowledged, transferred, increased, 
 defeated, discharged or diminished. 
 
 § 3i. The term " property," as used in this chapter, includes personal property 
 as defined in the last section, and also every estate, interest and right in lands, 
 tenements and hereditaments. 
 
 § 35. Where the term "person" is used in this chapter, to designate the party 
 whose property may be the subject of any ofience, such term shall be construed 
 to include the United States, this state, or any other state, government or country 
 which may lawfully own any property within this state, and all public and private 
 corporations, as well as individuals. 
 
 So in the statute called the "Code of Proceedure," in civil actions in this state, 
 certain words are given a specified definition, as follows: 
 
 §462. The words "real property," as used in this act are co-extensive with 
 lands, tenements and hereditaments. 
 
 § 4G3. The words "personal property," as used in this act, include money, 
 goods, chattels, things in action, and evidences of debt. 
 
 § 464. The word "property," as used in this act, includes property real and 
 personal. 
 
 § 465. The word " district," as used in this act, signifies judicial district, ex- 
 cept when otherwise specified. 
 
 §466. The word "clerk," as used in this act, signifies the clerk of the court 
 where the action is pending, and in the supreme court, the clerk of the county 
 mentioned in the title of the complaint, or in another county to which the court 
 may have changed the place of trial, unless otherwise specified. 
 
 Note 4.— "Where the terms of a statute which has received judicial construc- 
 tion, are used in a later statute, whether passed by the legislature of the same 
 state or country, or by that of another; that construction is to be given to the 
 later statute. Commonwealth v. Hartwell, 3 Graj'. 450; Euchmaboye v. Mottich- 
 med, 32, Eng. L. & Eg. 84; Bogardus v. Trinity Church, 4 Sand. Ch. 633; Kigg 
 V. AVilton, 13 111. 15; Adams v. Field, 21 Vt. 256. It is to be presumed in such 
 case, that the legislature who passed the later statute, knew the judicial construc- 
 tion which had been placed on the former ones, r-nd such construction becomes 
 a part of the law.
 
 S'l'ATU'lE ^O^Yl'IlS AND REMEDIES. *215 
 
 wpoecli l>c of J. S. gunei-uUy, it .skull be iutciided of tlie father or 
 of the eldest son, for they are the most worthy.^ Ho, here it shall 
 ])e intended of one of the superior courts at Westminster; for it 
 the act is construed according to the letter, 'in any court ot 
 record ;' then tlic; court of oyer and terminer, gaol delivery, sewers, 
 slierilf's tourn, leet, piepoudre, and others, Avill be withhi the act. 
 Then, it being left to the construction of the law, the rule is, 
 'iiiifxl vcffxi. ('(jnirocti cf iji Jiibio poHihi, intiil'Kjurdur in d'ujniori ct 
 
 Another reason assigned is, that hi po^jular actions or informa- 
 tions, " tcDii pro domino regc, quam pro scipno" the suit shall be in 
 such court where the king's attorney-general can attend, a 
 
 Where a statute speaks of indictments to be taken before jus- 
 tices of the peace, or " others having power to take indictments," 
 it shall be understood only of other inferior courts, and not of the 
 king's l)ench, or other courts at Westminster ; /> the rule being well 
 established, as Avas ascertained in the last chapter, that where 
 things of an inferior degree are first mentioned, those of a higher 
 dignity shall not be included under general words. 
 
 Where an act of parliament gives authority to " one" person ex- 
 pressly, all others are excluded ; c a special power is ever to be 
 strictly pursued. " 
 
 a Gregory's case, G rtcp. I'J. h 2 Kep. IC; 2 Hawk. c. 27, 12-1. 
 
 c 11 Kep. 59, Gl. 
 
 Note 5. — "Where a now right, or the lucaus of acquiring it is given, and au 
 adequate remedy for violating it is given in the same statute, the injured parties 
 are couiincd to that rcmcdj'. Smith v. Lockwood, 13 Barb. 209; Thurston v. 
 rventico, 1 Mann, (ilich.) E.193; l>assett v. Carlton, 32 Maine 553; Kemvick v. 
 Morris, 7 Hill. 575. 
 
 If a statute gives a remedy in the allirmalive (without a negative express or im- 
 plied), for a matter which was actionable at common law, this does not take away 
 the common law remedy, but the party may still sue at common Jaw as well as 
 upon the statute. Crittenton v. Wilson, 5 Cow. 1G5; Jackson v. Bradt, 2 Gaines. 
 1G9. But where a statute gives a new power, and at the same time provides the 
 nieuus of executing it, those who claim the power can execute it in uo other way. 
 Andover, kc. Turnpike Co. v. Gould, G Mass. 40; Franklin Glass Co. v. "White, IJ 
 id. 28(3. "Where an inchoate right accrued under a statute, and by a subsequent 
 ravision of the statutes, the proceedings to perfect the right are regulated and pre- 
 scribed; — such regulations must be pursued, or the party is remediless. People 
 ' V. Livingston, 6 Wend. 526; People v. Phelps, id. 9. "Where a statute which creates 
 r rightl gives no remedy, a party may resort to the usual remedy. Dudlej' v. 
 May) low, 3 N. Y. K. 9; Almy v. Harris, 5 John. 175. But if the statute confers 
 the right, and prescribes an adequate remedy for protecting it, the party is con- 
 lined to the statutory remedy, id. If the enforcing tribunal is specified, the desig- 
 nation forms a part of the remedy, and all others are excluded, id., and Miller v. 
 Taylor, -1 Burr. 2322; Smith v. Lockwood, 13 Barb. 209.
 
 270 STATUTE POWERS AND EEIMEDIES. 
 
 ■^licre au act of parliament gives power to " two justices finally 
 to hear and determine an oHence," it is necessarily supposed that 
 tliey shall be together, or, which is the same thing, that they shall 
 hold a special sessions for that purpose. And the same construc- 
 tion obtains -when they arc to do any other judicial act, as to make 
 an order of bastardy, or adjudge the settlement of a p()or person. 
 "For," as Dr. Burn says, " it is unknown to the laws of England, 
 that two persons shall act as judges in the same cause, when at 
 the same tune one of them is in one part of the country, and the 
 other in another." a 
 
 Generally, it is considered, that where a statute appoints a 
 thing to be done " by one or more justices," without giving any 
 appeal to the sessions, there the justices in sessions may do that 
 thing ; but when an appeal is (/iven to the sessions, the justices m 
 sessions cannot proceed originally therein, because that method 
 would take away the power of appealing. 
 
 The words, " general or quarter sessions" have received a judi- 
 cial constraction in E. v. The Justices of London, b and R. v. The 
 Justices of Middlesex, c 
 
 " Sealed with the seal of the said court." When the seal pur- 
 ports to be that of the court, the judges take notice that it is such ; 
 and it is not necessary to prove the seal. Doe dem. Duncan v. 
 Edwards, d 
 
 That " it shall be lawful for the court to inquire into the title" 
 under stat. 7 Wm. 4, and 1 Vict. c. 78, s. 24. These words were 
 constmed to require the court to examine into the title. Eeg. v. 
 Warwick, e 
 
 " Writs of error upon any judgment." These words have been 
 held to extend to judgments given in the court of king's bench 
 upon error fi'om the common pleas at Lancaster : i. e. to judg- 
 ments on writs of error, as well as to original judgments, Nesbit v. 
 Eishton. /" ' 
 
 "Prosecute with effect," see Morris v. Matthews, {/_"_ To make 
 and prosecute such application" is satisfied by obtaining a nde 
 nisi, whatever afterwards becomes of the rale, Haworth v. Orm- 
 erod./i 
 
 a Burn's Justice, Introduction, xxiv. b 15 East, G39. 
 
 c 4 Q. B. R. 810. (Z 9 A. & E. 554. 
 
 e8A. &E. 919. /9A. &E. 431. 
 
 J7 2Q. B.E. 299. 
 h G Q. B. E. 300. 
 
 Note 6.— "Writ of error" is "a commission to judges of a superior court, by 
 which they are authorized to examine the record upon which a judgment was 
 given in an inferior court." Bacon Ab. Title "error;" Jac. L. Diet, "error;' 
 Bouvier Diet. Title, " writ of error." It lies upon matter of Liw arising npon the 
 face of the proceedings.
 
 CONSTRUCTION OF PHliASES AND WORDS. 277 
 
 " Office :" A clerk to the justices liokls an office, thoiigli not a 
 chartered office, see Eeg. v. Mayor of Cannartheu. a ' 
 
 "Proper officers;" see R. v. Walsh. A 
 
 "Expenses necessarily incurred." The expense of bringing 
 offenders before the magistrates (including the fees of the justices' 
 clerks) incurred in carrying into eii'ect the stat. 5 tt G Wni. 4, c. 
 71, are -withui these words, lleg. v. Ma}or of Ghnicester. c 
 
 Where a statute gives power to the justices to require any per- 
 son " to take the oaths," or do any other thing, the law, by ueces- 
 saiy implication, gives them power to issue their precept to con- 
 vene the parties ; " for when the law granteth anything to any 
 one, tJiat also is granted without which the thing itself caimot be, 
 and it is against the office of the justices, and tlie authority given 
 them by the law, that they shall go and seek the parties." d 
 
 Where a statute gives power to the justices of the peace, " to 
 hear and determine an oll'ence in asunnnary way," it is necessaiily 
 imphcd and supposed, as a part of natural justice, that the party 
 be first cited by summons, and have ojiportunity to be heard, and 
 answer for himself, e 
 
 In all cases, where justices may " take examinations," or other 
 accusation or proof, though the statute doth not expressly set 
 down that it shall be ?//>ou oafli, yet it shall be intended, that it 
 shall be upon oath. /" 
 
 Where a statute appoints a conviction to be " on the oath of 
 one witness," this ought not to bo by the single oath of the in- 
 former ; for if the same person shall be allowed to be both prose- 
 cutor and witness, it would induce profligate persons to commit 
 perjuiy for the sake of the reward, (j 
 
 Where an act of parliament empowers justices of the peace to 
 "bind a person over," or to cause him to do a certain thing, and 
 such person being in his presence, shall refuse to be bound or to do 
 such thing ; a power of commitment is said to be implied, and that 
 the justice may commit him to the gaol, to remain there till he 
 shall comply. 
 
 Where a statute limits a proceeding against a party to " six 
 months ;" — " a year," &c,, after the act done ; the day on which the 
 
 rt 11 A. &E. 9. e 1 Hawk. c. C4, s. 60. 
 
 6 1A. &E. 485. /Daltc.115. 
 
 c 5 Q. B. R. 86. g2 Lord Raj'inond, 15-io. 
 d 12 Rep. 131. 
 
 Note 7. — " Office" is a public charge or employment, and the term seems to 
 comprehend every charge or emplojTnent in which the puhlic are interested." 
 Matter of "Wood, Hopk. 8, 2 Cow. 29 Note. Attorneys and counsellors, physicians, 
 executors, guardians, «tc., are not public officers. 20 John. 492. See People v 
 Hayes, 7 How. Pr. E. 248.
 
 278 CONSTEUCTION OF THEASES AND WOEDS. 
 
 act was done is to be reckoned in the six months, year, <tc. a R. 
 v. Adderlej ; Castle t. Biuxlitt. h * 
 
 " Three days at least," means three clear days, c 
 
 "One month or more" is a fnll month reckoned exclusively of 
 the day of delivery of an attorney's bill, Blunt, Gent. v. Heslop. d " 
 
 " In or about a year," see Eeg. v. St. Paul's Covent Garden, c 
 
 " Twenty-one days of, after, or from, the day of the execution," 
 must be reckoned exclusively, see Williams v. Burgess and Wa'l- 
 cott./' 
 
 " Parocliial relief or other alms :" Alms applies only to such as 
 are parochial, Eeg. v. The Mayor of Lichfield, g 
 
 " Committed for trial -at the assizes," Eeg. v. Johnson. Ji 
 
 If an act of parhament sa}- — an oflender "shall be punished ac- 
 cording to his demerit," these words import only that he shall be 
 punished in the ordinary course of justice, by mdictment. i 
 
 When a statute gives a " penalty to be recovered before justices 
 of the peace," but proscribes no method of recovering it, the 
 proper method is by indictment../ 
 
 Where a power is given " to inquire, hear, and determine," it 
 always means according to the course of the common law, by a 
 jury ; and the proceedings must in such case be by indictment, k 
 
 " Heard and determined." See E. v. Justices of AYarwickshu-e. / 
 
 "From any of the places aforesaid." To be read with reference 
 to the immediate antecedents in the same section. WlUiams v. 
 Newton, m 
 
 " Filed" held to be included in return of nan est inventus; Hun- 
 ter V. Caldwell, n 
 
 Though an indictment will not lie for an offence newly created 
 by- statute where another method of prosecution is appomted, yet 
 
 a 2 Doiigl. 4G3. h 10 A. & E. 7i0. 
 6 3 T. R. G23. i a 4 lust. 171. 
 
 c 4 B. & A. 522; 8 A. & E. 173; 12 A. j Salk. 600. 
 
 &E, 472; 6M. & W.49. A; Per Lord Mansfield, MS. Eep. cited, 
 d 8 A. & E. 577. Bac. Abridgment, tit. Stat. I, 2. 
 
 e 7 Q. B. Eep. 232. Z 2 A. & E. 719. 
 
 / 12 A. & E. 638. m 14 M. & W. 747. 
 
 ^ 2 Q. B. Pt. 693. n Easter Term, 1847. 
 
 Note 8.— "A year," ordinarily means a calendar year, but the statute prescrib- 
 ing a year as the time during -which a license to sell liquors shall be in force 
 means a license year, and it expires on the day named in the statute. The statute 
 year is 365 days, in all written or verbal contracts; a half year is 182 days, and a 
 quarter of a year 91 days. 1 Eev. Stat. 606, § 3. 
 
 Note 9. — A month in any statute, contract, or iu.strumeut, is a calendar month, 
 unless otherwise expressed. 1 Eev. stat. 606, § 4. It was otherwise at common 
 law, except in the case of bills and notes. A day consists of twenty-four hours, 
 and commences and ends at midnight. Pulling v. Peojile, 8 Barb. 386. And a 
 statute forbidding an act to be done on a particular day, means the natural day 
 of twenty-four hours, and not the solar da\- from sunrise to sunset, id.
 
 CONSTRUCTION OF PIIltASES AND WORDS. 279 
 
 if the statute give a recovery by action of debt, bill, plaint, inform- 
 ation " or otherwise," it authorizes a proceeding by -way of indict- 
 ment, a 
 
 Every crime, the perpetrator of ■\vliicli is, by any statute, or- 
 dained to have judgment of " life or member," is a felony ; although 
 the word/elony be not contained in the statute, b 
 
 But an oftence shall never be made felony by the construction 
 of any obscure or ambiguous words of a statute ; and therefore if 
 an otl'ence be only prohibited " under pain of forfeitiug body autl 
 goods," or of being " at the king's ■svill for body, lands, and goods," 
 it shall amount to no more than a misdemeanor, c 
 
 When a statute dn-ects or appoints " commitment or imprison- 
 ment, but limits no fcrmhixs a tjuo, or time Avheii it shall commence, 
 it shall (for the benefit of him upon whom it is intlictedj be imme- 
 diately, Foggassa's case, and Dr. Bonham's case. (/ 
 
 When a statute appoints " imprisonment," but limits no time, 
 for its duration ; the juisoner, in such case, must remain at the 
 discretion of the court, e 
 
 Where an act of parliament gives power to the justice of the 
 peace, to take order in aii}^ matter, " according to their discretions," 
 this shall be understood according to the rules of reason, law, and 
 justice, and not governed by private o])inion. /' 
 
 Where the amount of a security to be taken, is left in the dis- 
 crelion of any court, it will be good to follow precedents of former 
 times ; for ^^ disc ret io est discernere per ler/ein, (jxad sit just urn.'" g 
 
 " No capias ad satisfaciendum shall issue against a person "dis- 
 charged under an insolvent act;" held to mean that a plaintiff who 
 has a suit against the insolvent ought not to issue a ca. sa. not 
 that, if issued, it shall be absolutely void, Ewart v. Jones, h 
 
 " Impound or otherwise secure," see Thomas v. Hanis, i what 
 will satisfy these words witbin 11 Geo. 2, c. 12. 
 
 Where an offence is cognizable" before a justice out of sessions," 
 and the time and manner of punishment is not by law expressly 
 limited, he may commit an offender to the house of correction, 
 there to be kept to hard labor until the next general or quarter 
 sessions, or until discharged by due course of Inv,-. j 
 
 It may be laid down as an invarialjle rule, that the law favors 
 liberty, so that in the construction of a jienal statute, where the 
 interpretation is dubious, that sense must be pursued, c«'fe)'i.9^)f?r/- 
 hus, which is more beneficial to the subject, or the party suflermg. 
 Thus, where an act directs that the justices shall commit an offen- 
 der to prison for "twelve months," the justices may not alter the 
 
 n 2 Hawk. c. 25, s. 4. /"oEep. 100; 8 Iloweirs State Trials, 
 
 b 1 lust. 391; 2 Inst. 434; 3 Inst. 91. 55 notis. 
 c 1 Inst. 391; 3 Inst. 145; Hob. 270, 1 <; 2 Inst. 50, 298. 
 Hawk. c. 40, s. 2. 'h 14 M. & W. 774. 
 
 d Plow. Com. 17b., and 8 Eep. 119. i 1 Scott's N. C. 525. 
 e Dalt. 410. j 17 Geo. 2, c. 5, s. 32.
 
 280 CONSTRUCTION OF PHRASES AND WORDS. 
 
 words, and commit liim for " a 3'ear ;" for in tins respect twelve 
 months and one 3-ear are not the same ; bnt the months must be 
 c'omputcid at twenty-eight days to the month, and not as calendar 
 months, nnless it be so expressed in the act. 
 
 " Of" a place, imports dwelling ; and is ordinarily, taken to mean 
 that the party dwells at the place named ; but in Eeg. v. Toke, a 
 Littledale, J., said, " I have great doubts, whether it is sufficiently 
 averred that he dwells there." 
 
 " Expenses," this expression means actual disbursements, not 
 allowances for loss of time, Jones v. Mayor of Carmarthen, h 
 
 " Payment" is not a technical word ; it has been imported into 
 law j)roceedings from the exchange and not from law treatises. It 
 docs not necessarily mean payment in satisfaction and discharge, 
 l)ut may be used in a popular sense, v '" 
 
 Acts of parHament that speak of lines or ransoms " at the king's 
 pleasure," are now always to be understood of the kmg in his 
 courts, by his justices, d 
 
 All act inflicting a penalty for " a second offence," the indict- 
 ment must recite the reord of the first conviction ; and uj)on the 
 evidence, the record of the first conviction must be proved, e 
 
 In all cases where a justice is recjuired by an act of parliament, 
 "to issue a warrant of distress for levying of any penalty inflicted, 
 or any sum of money directed to be paid by such act ;" it shall be 
 lawful for such justice granting the warrant therein, to order and 
 direct the goods distrained to be sold within a certain time to be 
 limited in such warrant, so as such time be not less than four days, 
 nor more than eight days, unless such penalty or sum of money, 
 together with reasonable charges of taking and keeping the distress, 
 be sooner paid. /' 
 
 "By one broker or more." The use of the singular number is 
 not sufficient to get rid of a positive provision for two appraisers 
 in a prior statute, Allen v. Flicker and Another, r/ 
 
 " Final decree :" See Jones v. Reynolds, h 
 
 " Undue means :" Such are held to be : —Arbitrators carrying 
 on examinations apart ; whereas they ought to have been con- 
 
 a 8 A. & E. 232. e 1 Hale, P. C. G8C,. 
 
 &8M. &W.605. / 27 Geo. 2, c. 20. 
 
 c Maitland v. The Duke of Argylc, g 10 A. & E. 640. 
 
 CM. &G.40. hi A.&E. 384. 
 d 1 Hale, 375, 
 
 Note 10. — It is otherwise heldiu this state. " Payment," in its legal import, 
 means the full satisfaction of a debt by money, and it is only when the words 
 used in connection with it plainly manifest a different intention, that the legal 
 import of the term can be rejected. Manice v. Hudson R. llailroad Co., 3 Duer 
 441.
 
 CONSTEUCTION OF THRASES AND WORDS. 281 
 
 ducted by the arbritrators and umpire jointly in presence of the 
 parties, lie Plows and Middleton. a 
 
 "Having upon view found." 11. v. Milverton. h 
 
 " We having viewed, and, it appearing to us :" do not necessa- 
 rily mean, that an order was made upon the view of the said jus- 
 tices, K. V. Manpiis of Downshirc ;c licg. v. Jones. <l 
 
 " Have adjudginl :" is the same thing as saying that they ad- 
 judge. The words mean that the justices adjudge at that moment, 
 11. v. Moulden ; c 11. v. The Inhabitants of St. Nicholas, Leicester./ 
 
 " Final port," what held, Moore v. Taylor. <j 
 
 " No person shall maintain any action for, or recover any sum 
 of money for spirituous litjuors, unless contra(!ted for at onetime, 
 to the amount of 2().v." Where an una])propriated payment was 
 made by the defendant, the plaintilf applied the payment to the 
 items in his account charged for the spirits ; and sued for the resi- 
 due. This was held no " action maintained" or " recovery" for 
 the spirits within the terms of the act, Philpott v. Jones, h 
 
 " Artificers, calico-printers, handicraftsmen, miners, colliers, pit- 
 men, potters, laborers, and others." Of these words in stat. 
 Geo. 3, c. 2o, for " better regulating ap]u-entices and persons work- 
 ing under contract," Lord JDenman said : " Large as these words 
 undoubtedly are, ' or other persons who shall contract with any 
 persons whomsoever;'" — when w^e apply to them the ordinary 
 rules for construing acts of parliament laid down by Dwanis on 
 statutes, part 2, and acted upon in all times, we find ourselves 
 compelled to say, that the ' other persons' are no , all persons 
 whatever who enter into engagements to serve for stated periods, 
 but persons only of the same description as those before enumer- 
 ated, A justice, therefore, has no summary jurisdiction over a 
 domestic servant," Kitchen v. Shaw, i 
 
 " Appeal against overseers' accounts to the next sessions : " 
 means the next practicable sessions after the account has been de- 
 posited with the churchwardens and overseers for public inspec- 
 tion, Eeg. V. W^atts../ 
 
 "For the time being ; " see 8 Taunt. G91, for the meaning of 
 these words in the case of parish officers, and 9 A. <.t E. 356, in 
 the case of a company ; that the right to sue, did not remain in 
 the officers after they had quitted office. 
 
 " Owner for the time being." By statute, an action against a 
 shareholder for calls, Avas given against the " owner for the time 
 being." Shares were sold after a call was made, but before it was 
 payable. The court of Queen's bench held in the Birmingham 
 
 o G Q. B. E. 852. / 3 A. & E. 85. 
 
 6 5 A. & E. 811. 3 1 A. & E. 25. 
 
 c 4 A. & E. 698. h2A.&E. U. 
 
 d 12 A. & E. 686. i 6 A. & E. 729. 
 
 e 8 B. & C. 81. j 7 A. & E. 461, 
 
 36
 
 282 CONSTKUCTION OF niExVSES AND WORDS. 
 
 and Aj'lesbuiy company \. Tliomjoson, a that tlie purchaser was 
 not an owner for the time being. The connnon pleas have held, 
 that until the deed is enrolled and entered, the company may com- 
 pel the sellers to pay all the future calls. The London and Brigh- 
 ton railway company v. Fairclough. b 
 
 " Neglect : " What omission is equivalent to ; see King v. Bur- 
 rell. c 
 
 "Treasurer for the time being : " means the officer and his suc- 
 cessors, d 
 
 "Gross negligence,'" a misconstruction of a standing order, 
 doubtful in its terms, is not such negligence as will disentitle a 
 parliamentary agent to a remuneration for his labour, e 
 
 " Calls upon railway shares : " All calls upon railway shares, 
 must be made with due observance of the requisites prescribed by 
 the statute under which the com]:)any is formed. For what was 
 deemed a sufficient compliance with the act in that particular case ; 
 see the London and Brigliton Eailway Company v. Fairclough. /' 
 
 "Levied and collected : " in 31 Geo. 1, c. 15, s. 3, the sherifi' is 
 'entitled to poundage on the amount which comes to the hands of 
 the Crown by means of the process. Where 8007. was levied, and 
 the Crown accepted 500/. in satisfaction, the sheriff was entitled 
 to poundage on 500/. only, E. v. Robinson. <j 
 
 " By reason and colour of his office : " For the case of a sheriff 
 taking more than the limited poundage on an eligit. See Nash v. 
 Allen. 7i" 
 
 "Executing : " W^rits by sheriff, i See Drew v. Lainson. Colls 
 V. Coates. 
 
 " Depending suits :" Unsatisfied judgments are pending suits, 
 Howell V. Boven.j 
 
 "Satisfaction to the creditor " under the Insolvent Act, means 
 pecuniary satisfaction, Kitching v. Croft, k 
 
 "Insolvency " is an inabihty in A. to pay his just debts, and 
 does not import that he should have been discharged under the 
 Insolvent Debtors' Act ; though the context may explain the words 
 the other way : as in the Savings Bank Act, 3 & 4 Wm. 4, c. 14, 
 where the words are "or become bankrupts or insolvents." V' 
 
 a 2 Eailway Cas. G68. g C, M. &, K. 334. 
 
 &2M. &G. 674. ■/i,4Q.B. K. 784. 
 
 c 12 A. & E, 460. ill A. & E. 537, 826. 
 
 d 4 Q. B. K. 422. j C. M. & K. 334. 
 
 e4M.&G. 124. /c e 12 A.& E. 586. 
 
 / 3 Scott, N. C. 68. I C. M. & E. 
 
 Note 11.— Acts done colore officii, are the acts of au officer, which are of such a 
 nature, that his office gives him no authority to do them. Seely v. Birdsall, 15 
 John 267. People v. Schuyler, 4 N. Y. 187. 
 
 Note 12. — A man is insolvent when his debts cannot be collected oxit of his 
 property by legal process. Herrick v.Borst, 4 Hill 654. Insolvency and bank-
 
 CO.NSTIIUCTIOX OF I'FIKASES AND WORDS. 283 
 
 " Making or tendering satisfaction." These words do not im- 
 ply that it is to bo done before tlie miscliicf, but that they shall 
 not do the act, without being liable to niuke compensation, Lister 
 V. Hoxley and Another, a 
 
 " To the owners or promoters," includes lessees. /> 
 
 " For anything done or omitted to bo done in pursuance of the 
 Act or in the execution of the power or authorities given by it." 
 See Palmer v. The Grand Junction Kailway Company ;r! 8niith v. 
 Shaw;(/ The Lancaster Canal Com])any v. Parneby;e Carpue v. 
 The London and Brighton llailway Company./* 
 
 " Place of abode." Under the 2-1 Geo. 2 c. 41, s, 1, requirhig 
 a notice of action to justices to l)o indorsed with the name and 
 place of abode of the attorney, the place of business was held a 
 sufficient place of the attorney's abode, in Roberts v. Williams, rj 
 (sed quaere.) 
 
 " Afore execution had " within stat. 3 Hen. 7, c. 10, means Ijefore 
 obtaining the fniits of execution ; satisfaction of the judgment, 
 Newlands v. Holmes, li 
 
 "To pay the debt of another:" contemplates only promises 
 made to the persons to whom another is liable; to the creditor 
 and not to the debtor himself, Eastwood v. Kenyon. i 
 
 " Undertakuig :" For the import of this term, see Pontet v. The 
 Basingstoke Canal Company/ ; Myatt v. The St. Helen's Piail- 
 way Company, h * 
 
 "Everybody politic, or corporate, and person or persons." 
 These words extend to jiarishes, though they are neither bodies 
 corporate or politic, or persons. Rex. v. Inhabitants of Barton J. 
 
 " Any ofifensivo trade:" To use a house as a private limatic 
 
 a7A. &E. 124. f7C., M. &K. 
 
 h Id. h 4 Q. B. E. 805. 
 
 c i 4 M. & W. 749. i 11 A. & E. 438. 
 
 tZ 10 B. & 0. 27. j ;? New Cas. 433. 
 
 e 11 A. & E. 230. /.: 2 Q. B. R. 364, N. Y. Code. 
 
 / 5 Q. B. R. 757. I 11 A. & E. 343. 
 
 • See definition in New York Code. 
 
 ruptcy are not synonymous terms. Mere insolvency never makes one a bank- 
 rupt-without the concurrence of some act tending to the injury of his creditors. 
 Though insolvency is undoubtedly the larger term, and may inchide bank- 
 ruptcy there is no necessary connection between the two. Sackett v. Andross, 5 
 Hill 344. Insolvencj', in the abstract, means a general inability to pay ones 
 debts ; an inability to fulfil ones obligations according to his undertaking ; a 
 general inability to answer iu the course of business, the liabilities existing and 
 capable of being enforced. Not an absolute inability to pay ones debts at some 
 future time, upon a settlement and winding up of all a trader's concerns ; but as 
 not being in a condition to pay ones debts in the ordinary course, as jiersons car- 
 rying on a trade usually do. Ferry v. Bank of Central N. Y., 13 HowPr. W. 
 451. Brower v. Harbeck, 9 N. Y. 594.
 
 281 CONSTRUCTION OF THRASES AND WORDS. 
 
 asylum, was held not to be a trade witliiii tliese words, Doe dem. 
 Wetherell v. Bird. « 
 
 " Use or exercise auy trade or business whatsoever :" It was 
 held, that keeping a school was a breach of convenant in this case, 
 Doe dem. Bish v. Keeling, h 
 
 " Accepted the office :" The term accepted office, has .a col- 
 loquial as well as a techincal meaning, Eeg. v. Slatter. Whether 
 he do accept or not, will be a legal inference from certain facts, c 
 
 " Introduced and estabhshed :" For the distinctions between 
 them, see Gibson v. Kirk, d 
 
 " Wilfully waste or misapply :" WilfuUy is connected with mis- 
 apply, as well as with waste. The Avord " misapply," does not of 
 itseli import wastefulness, Carpenter v. Mason, e 
 
 " Incumbrance atiecting the estate :" A sequestration at the 
 suit of a creditor under which possession has been duly taken 
 and the profits recovered, was held an incumbrance, &c., within 
 the game qualification act, 18 Geo. 2, c. 20, s. 1, Pack v. Tarpley, 
 Clerk../" 
 
 " Witness C. B., E. B., A. B." Held b}- a majority of the judges, 
 not to be a good execution of a power, which required a will to be 
 signed, sealed, and published in the presence of, and attested by 
 witnesses, Doe dem. Spilsby v. Burdett, r/ 
 
 " Expenses incurred by the parochial fund :" A suit of clothes 
 furnished to a poor boy on his being bound apprentice, was held 
 not to be within these words of the statute, so as to cause the 
 indentm'e to require the approval of two justices, Keg. v. The 
 Inhabitants of Quainton. h 
 
 "Placing out or f)utting away," Pteg. v. The Inhabitants of 
 Wainfleet. i 
 
 " Placed, elected, or chosen." See Beg. v. Humphrey.,/ 
 
 "Inhabitants and occupiers." Eeg. v. Inhabitants of Exmin- 
 ister. k 
 
 "Hereditaments." See Eeg. v. Capell. ?'^ 
 
 "Feoffments of lands or other hereditaments in England, "not 
 otherwise charged 1 1. 15.s." A feofiinent for the consideration of 
 love and natural afi^ection and 10s., does not requh'e two stamjDS 
 of 1 ?. 15.S. each. Per Lord Denman : " How can you make an 
 
 rt2A. &E. 161. r/ 9 A. ct E. 93G. 
 
 6 1M. &S. 93. AIA.&E. 133. 
 
 c 11 A. & E. ni A. & E. 656. 
 
 dlQ.B. R. 855. j 10 A. & E. 335. 
 
 e 12 A. & E. 630. 'k 12 A. & E. 94. 
 
 / 9 A. & E. 468. n2 A. & E. 382. 
 
 Note 13. — Hereditaments is included in the definition of real proj^erty. Code 
 N. Y. § 462. It is more comprehensive in meaning than " land," or "tenements," 
 and includes whatever may be inherited, coriioreal, or incorporeal. Canfield v. 
 Ford, 28 Barb. 336.
 
 CONSTRUCTION OF I'HUABES .VND WOEDS. 2Sii 
 
 id valorem charge on naturul love aucl affection?" Doe dcm. 
 Wheeler v. Wheeler, a 
 
 " Allowance" by a landlord for expenses or trouble, does not 
 operate as a defalcation of the rent ; but is collateral, Davies v 
 Stacey and Parry, h 
 
 Upon an indictment or other criminal prosecution, no " damages" 
 can l)e given to the party giieved ; but it is every day's practice 
 ill the Court of King's Bench, to induce defendants to make satis- 
 faction to the prosecutors, by intimating an inclination, on that 
 account, to mitigate the fine due to the King, c 
 
 Where a statute generally prohibits any thing, the defendant 
 may be prosecuted both by the king and the paity grieved : for 
 every contempt of a statute is indictable where no other punish- 
 ment is limited ; and the party gi'ieved shall have his action for 
 his private rehef. d " 
 
 " Miscellaneous words and sentences." The succeeding phrases 
 it is impossible to reduce to any general heads ; forming, as they 
 obviously do, detached portions of sentences of a very miscellane- 
 ous nature. 
 
 " Absence :" See Reg. v. Perkin. e 
 
 The relative word " aforesaid," often refers and restricts, a 
 clause, to the precedent purview. /" 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 ;" f/ unless 
 " where it is impossible it can extend to other things, held in dis- 
 tinct rights and under difterent titles." It 
 
 The conjunction " and" couples sentences together, so that 
 former adverbs refer to all the verbs subsequent ; in this way pre- 
 venting repetition and tautolog}'. " And then and there gave the 
 said Edward a mortal wound ;" on an objection that it was not 
 stated that he gave it " feloniously, and of malice aforethought," 
 the allegation was held sufficient, these words havmg been before 
 mentioned, i 
 
 But " and" is relative as well as copulative. "Where R. devised 
 100 sheep and 10 bullocks, and 10/. quarterl}-, the second " and" 
 in the sentence disjoins and severs the rent from the sheep and 
 
 a2 A. &E. 30. /"lOKep. 138; " Case on Sewers . " 
 
 b 12 A. & E. 510. g 10 Eep. 107. 
 
 c 2 Hawk. c. 2o, s. 3. h 8 Rep. 47. 
 
 d 2 Inst. 1(!3; 1 Hawk. e. 22, s. 5. 14 Eep. 40; "Case of Appeals and In- 
 
 e 7 Q. B. E. 163. dictments." 
 
 Note 14. — A like provision has been incorporated into the Eevised Statutes of 
 this state. 2 Eev, Stat. G96, §54, (39), as follows: "Where the performance ot 
 any act is prohibited by any statute, and no penalty for the violation of such 
 statute is imposed, either in the same section containing such prohibition, or in 
 any other section of the statute, the doing of such act shall be deemed a misde- 
 meanor."
 
 28G CONSTRUCTION OF THRASES AND WORDS. 
 
 bullocks ; Sir Richard Pexliall's case, a As in a case in tlie year 
 books, where two were bound to stand to the abitrament of I. S. 
 de onDiiU' adionib'' personalihus scctis et qucrelis; personalihns shall 
 be referred to all; but if the words were " c/e omnibus adionibua 
 personalibus, et secti.s et querelis,'' it shall be otherwise : for there 
 the last et disjoins qucrelis from the whole first jj art of the sentence, 
 and shall be taken generally without any relerence to persorinH- 
 bus. b 
 
 " ^\jid" 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. In Cres- 
 wick V. Eokesby c and others, Dodderidge, J., said : " When the 
 seuse is the same they are all one, and the words conjunctiA^e and 
 disjunctive are to be taken proniiscue.'' Thus, the conjunctive re- 
 cited in a declaration, instead of the disjunctive, where the recital 
 answers the sense of the statute, is sufficient ; for the statute, not- 
 withstandmg the variance, is truly recited. So it is laid down in 
 2 Vent. 215. Nor according to the case of Halt v. Gaven, (Cro. 
 Eliz. 307,) will the use of the word "and," instead of " or," — hurt ; 
 if the word " or" in the statute has always been construed " and." 
 
 But where the statute uses the disjunctive " or," in Avliich sense 
 it is to be understood, and the plaintiff in his declaration mis-re- 
 cites the statute and uses the word " and ;" the recital in the declar- 
 ation, not answeiing the sense of the statute, all the authorities 
 agi-ee that the declaration is bad. Thus, by stat. 28 Eliz. c. 4, 
 sheriffs are liable to a penalty for taking more than a certain sum 
 on executions " upon the body, lands, goods, or chattels." A decla- 
 ration on this act, in reciting the statute, stated it thus : " body, 
 lands, goods, and chattels," and this was held to be a fatal vari- 
 ance. In aiTest of judgment. Lord Kenyon said : — " The natural 
 and obvious sense of the word, as mis-recited in the declaration, 
 is to confine the provision of the statute to executions against all ; 
 but that is materially different from the words in the statute, 
 which speaks distributively of writs against either of the objects 
 of execution, and which infiicts a penalty on the sheriff" for taking 
 more than is allowed for executuig any execution against either 
 the body, lands, or chattels," &c. d 
 
 "Annual net value :" — See R. v. Inhabitants of Wistow. e 
 
 "AH.-" — " qui omne dicit, nihil, excludit ; generaJe dictum " r/en- 
 eraliter est inteUigendum." Therefore, where the Stat, of Merton, 
 cap. 2, says omnes viduce, and there are five kinds of dower, that 
 chapter does extend to them all./ 
 
 a 8 Rep. 85. 
 {» 9 E. 4, 43 b. 
 
 c 2 Bulstr. 47; 2 Hawk. c. 25, s. 102. Waterhouse v. Kean, B. & C. 200. 
 d E. V. Marsack, G T. R. 771; R. v. Bland, 5 T. R. 370. 
 e 5 A. & E. 2G1. 
 / 2 Inst. 81.
 
 CONSTRUCTION OF TIIRASES AND WORDS. 287 
 
 "Any thing in this uet to the contrary notwithstanding," is 
 equivalent to saying thai; the act shall be no impediment to the 
 measure, and precisely corresponds to the words in the second 
 saving of the Stat, of Uses, 27 Hen. 8, c. 10, as if this act had 
 not been made." Cheinie's case ; Sir Thomas Cecil's case, a 
 
 When a statute speaks of an " assignee," it is to be intended of 
 such complete assignee, as has all the ceremonies and incidents 
 requisite by the law to such character ; not taking away any form 
 or circumstance which the law requires. Therefore, assignee by 
 line shall not, under the 32 Hen. 8, c. 3-1, take advantage of a con- 
 dition, without attornment, h 
 
 " At the time of the making " expounded to mean the same 
 instant of themakmgf. " Forfeiture comes at the same instant 
 that he (hcs."f^ 
 
 " Beneficial" and prolita])le are not convertible terms. A party 
 holding a property, which is rateable, is not discharged, because 
 he does it at a loss, 11. v. Perrott c ; lleg. v. Vange./' And for 
 the distinction between profitable and beneficial, see Governors of 
 Boston Poor v. Wait. <j 
 
 " Boats, vessels, and other craft:" These words extend to steam 
 boats, Tisdell v. Combe, h 
 
 " Convicted" has been often, according to many cases in the 
 books, taken for attainted, and therefore extends to a judgment 
 upon demurrer i ; which in Foster's case was held to be a " con- 
 viction" within the stat. 23 Eliz. 
 
 A " college," to be such, in more than vulgar reputation, must 
 have the "countenance of a legal commencement;" a lawful erec- 
 tion and foundation. And it sliould seem that no one can found 
 or incorporate a college within this realm, or assign or license others 
 to assigu temporal livings to it, but only the king himself. And 
 reputative colleges which had no lawful foundation, were held not 
 to be given to the king by the stat. 1 Edw. 6, unless they had the 
 countenance of the king's letters patent, or might have had a legal 
 commencement but for some error or imperfection in the penning 
 or proceedings./ 
 
 " Demised: " may well be taken for left to another or gi-anted 
 over to another ; and whether the gi'ant be by act in deed or by 
 act in law. k ^'" 
 
 aTEep. p. 20. r/5A. &E. 8. 
 
 b MiiUory's case, 5 Kep. 112. 'h 7 A. & E. 788. 
 
 c Plowd. 188. i Dr. Foster's case, 11 Eep. 59. 
 
 (/ Id. 258. j Adams and Lambert's case, 4 Eep. 
 
 e 5 T. E. 393. 108. 
 
 / 4 Q. B. E. 255. k Plowd. 103. 
 
 Note 15. — The tcclinical meaning of demise, is a lease for a term of years. 
 Bouvier, Pit. 445. Voorhees and wife v. Presbj'terian Church of Amsterdam, 5 
 How Pr. E 71
 
 288 CONSTEUCTION OF THKASES AND WOEDS. 
 
 An action is not properly said to be "depending" in any court, 
 till the process is retm-ned ; but after an original writ is returned, 
 then, it is said, it shall be considered pending, from the day of 
 the teste of the writ, a The taxation of an attorney's bill, con- 
 templated by the statute 2 Geo. 2, c. 23, s. 23, was evidently a 
 taxation made upon the apphcation of the client, before action 
 brought ; and where a judge's order for taxing it was not obtained 
 till after, the courts of king's bench and connnon j)leas formerly 
 both held, that the defendant was not entitled to the costs of taxa- 
 tion, though more than one-sixth had been taken off by the master ; 
 yet the words of the section authorizing the court or judge to 
 refer a bill to taxation are, " although no action or suit shall be 
 then depending. " h 
 
 Where the moiety of a penalty is given by statute to the trea- 
 surer of a "county, riding, or division," the word " division" does 
 not apply to small districts, such as the Cinque Ports of Seaford 
 in Sussex, but must be construed with reference to county and 
 riding, and means something analogous to them, c 
 
 Where the authority emanates from a superior, " empowered " 
 is imperative. In the case of a public duty such words not only 
 authorize, they compel the exercise of the power, and performance 
 of the duty, d 
 
 A "fit" person to execute an office, is he, — "qui mtlius et sciai 
 et possif, qfficium illud irdendere." " This word idoneus," says Lord 
 Coke, " is oftentimes in law attributed to those who have any of- 
 fice or function ; and he is said in law to be idoneus, apt and fit to 
 execute his office, who has three thmgs,— honesty, knowledge 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 exe-' 
 cute his office, when need is, diligently, and not for impotency or 
 poverty neglect it." If a coroner be " senio confradus, aid morh) 
 paralysis perciissus, aid terras et tenementa in eodem comitatu iion 
 hahet, etc.," so as to be " miiius idoneus ad officbim illud exequen- 
 dum, &c." it is a good cause to remove him. 
 
 " Fixtures and fixed furniture : " — See Birch, Administrator of 
 Vincent v. Dawson, e ^^ 
 
 a 5 Kep. 47, 48, Cases of Pardons ; 7 Eep. 30. "'Discontiiuiuuce of process by 
 death of the Queen." 
 h 4 King. 5G1 ; 8 B. & C. 635 ; 9 B. & C. 755. 
 c Evans q. t. v. Stephens, 4 T. R. 224, 459. e 2 A. & E. 37. 
 d 5 T. R. 538 ; 5 T. R. 636 ; 7 A. & E. 925. R. v. St. Saviour's, Southwark. 
 
 Note 1G.— Fixtures are chattels or articles of a personal value which have 
 been affixed to the land. They must be permanently, habitually attached to it, 
 or, must be component part of some erection, structure or machine attached to 
 the freehold, without which, the erection, structure or machine would be imper- 
 fect and incomplete. Walker v. Sherman, 20 Wend, 656, Vanderpool v. Van 
 Allen, 10 Barb. 162.
 
 CONSTRUCTION OF PHRASES AND WORDS. 289 
 
 " Forthwith : " — Exchides intervention of dehay. Ecg. v. Eo- 
 binson. a " 
 
 "From hencefortli," " f/e caVtro," does not necessarily imply a 
 new law ; as may be seen upon the doubts arismg on the Stat. 
 Merton, cap. 2, />o.s7, chaj). 11. 
 
 " Goods, mat(!nals, and i^rovisions for the use of any work- 
 house : " — See Barber v. ^^'atts. h 
 
 " Goods, wares, and merchandizes : " — Shares in a joint stock 
 banking company, are not such within sec. 17 of the Statute of 
 Frauds, Humble v. Mitchell, c 
 
 In Butler and ])akcr's case, as to the "power of a devisor to 
 devise a manor," of divers notable reasons for the judgment, one 
 Avas on the word "having." " If it be asked who can give and 
 dispose by liis last will m writing, <fcc.? the makers of the act (34 
 Hen. 8,) answer, everii jwrson liaving manors ; so that it is not said 
 every person generally, but every person liaving, «fcc. And this 
 word 'having' imports two things ; .sciliccf, ownersliip, and time of 
 ownership, for lui ought to have the laud at the time of the mak- 
 ing of his will, and the statute gives such person having, etc.. 
 Authority to devise, ttc. And Wray, Ch. J., in his argument, 
 (which was the last that ever he made,) held, that this word im- 
 ports, that 'the devisor ought to have the land, either at the time 
 of the making of his will, or at the pubhcation thereof, which 
 amounts in law to a making' ; " d or, at the time of the republic- 
 ation of the will by a codicil ; which, when properly executed, 
 caused the will to speak (as it is expressed) at the date of the 
 codicil, as to the existing state of the property, — including the 
 testator's intermediate acquisitions, as far as the fair and legal 
 comprehension of the terms of the codicil would go. c And noAv 
 stat. 1 Vict. c. 26, s. 2-i, makes all wills of realty as well as of 
 personalty, speak from the death of the testator. 
 
 " Immediately," mainienant, applied to a descent of lands, (as 
 where the stat. of 3-1 Hen. 8, speaks of " a descent immediately 
 after the decease,") is as much as to say without any mean time, 
 or mesne estate. He who is innnediate heir, excludes all mesne 
 heirs, — the same law, of an immediate tenant. A manor does not 
 descent immediatdif where it is expectant on the refusal or disa- 
 greement of the Avidow; for, peradventure, she will not refuse in a 
 vear. Littleton says, that if a woman disseissoress take a hus- 
 band, and hath issue, and dies, and afterwards the tenant by the 
 curtesy dies, this dpng seised shall not toll entry ; for the issue 
 came not to his lands " immediately" after the death of his mother. 
 
 a See 3 A. & E. 284 ; 12 A. & E. G72. d Butler and Baker's case, 3 Rep. 30. 
 b 1 A. &E. 514. e Barnes and Crowe, 7 Yes. Jun. 48G. 
 
 c 11 A. & E. 205. 
 
 Note 17. — Forthwith is construed to uicau within twenty-four hours. Cham- 
 pliu V. Chaniplin, 5 Edw. ch. 328. 
 37
 
 290 CONSTEUCTION OF THRASES AM) WORDS. 
 
 In other cases the word " immediately " has not received such 
 a strict construction that a thing ought to be made in ipso arficulo 
 temporis, but is satisfied if it be made in convenient time. Thus, 
 where a man is to make an obhgation hnmediately after an award, 
 he ought to have such time as the doing of the act requkes, and 
 then, of necessity, there ought to be a mean time between the 
 award and the performance of the act. This was decided in 18 
 Ed. 4, c. 22, and affirmed for good hiw in Butler and Baker's 
 case, a 
 
 " Immediately" cannot be satisfied, if an interval take place, 
 Grace v. Church, h 
 
 " In or near the parish or division," in 43 Eliz. c. 2, is only di- 
 rectory, c 
 
 " In pursuance of this act." Keg. v. The Bristol and Exeter 
 Kailway Company, d 
 
 "Inland bill of exchange," is a bill drawn in, arid payable in, 
 Great Britain, Amner v. Clark, e 
 
 " In lieu :" — Where a fund provided by statute in lieu of other 
 means of payment becomes the primary fund, Eeg. v. St. Saviours', 
 Southwark./" 
 
 " Instantly :" — This word has no definite meaning. Such words 
 as instanter and inconfinenfer do not disj)ense with an allegation of 
 time. Keg. v. Brownlow. (/ 
 
 "Interruption :" — An obstruction to the exercise of a right; not 
 to the person, see Flight v. Thomas, h 
 
 " It was proposed :" indicates merely something in contempla- 
 tion ; a proposal. Keg. v. Brownlow. i 
 
 " Likewise," and " in like manner," so couple a clause or sectioi 
 bv reference to a former clause or section, as to carry on its sense, 
 and extend its operation../ 
 
 " Lands liable to rate :" — These words may extend to naviga- 
 tions, cuts, and canals, as well as to quays or wharfs. Keg. v. The 
 Leeds and Liverpool Canal Companies, k Per Patteson, J.' "They 
 are not the less land for being covered with water." In the Ke- 
 gent's Canal Company, I the expression in the act was, " lands, 
 whether covered with water or not." 
 
 " Liabilities" and "relative liabilities," in the parochial assess- 
 ment acts, 6 & 7 Wm. 4, c. 96, s. 1. The court said tliis language 
 was loose " and inartificial to a degi'ee which rendered the discov- 
 ery of a definite meaning, extremely difficult." Keg. v. Capel. m 
 
 " Manufacture :" AVhat is a new manufacture within the stat. 
 
 a 3 Rep. 34. y 11 A. & E. 219. 
 
 6 4 Q. B. R. 610. AHA. &E. 701. 
 
 c 11. V. Loxdale, 1 Burr. 447. i 11 A. & E. 119. 
 
 d 11 A. & E. 194. j Stat. Gloucester, c. 2, j)Ost, cap. 11. 
 
 e C, M. & k 471. /c 7 A. & E. 685. 
 
 /7A &E.425. /6B.&C. 720. 
 
 '' m 12 A. & E. 411.
 
 OONSI'IIUCTION OF I'UltASES AND WORDS. 291 
 
 21 Jac. 1, c. 3 ? That a new coinl)iuatioii of materials loreviouslj 
 in use, producing a new article, or a better article, or a cheaper 
 articl(! to th(! pubhc, than that produced before, by the old metliod, 
 is an invention or a manufacture intended by tlie statute. Sec 
 Crane v. Price, a 
 
 " Materiids for thi; repairs of tli(; highway, and for the use of the 
 inhabitants," Avere held not to be taken by the inhabitants for 
 their private purposes, but only for repairs of roads. Kylatt v. 
 MarHeet. h 
 
 " Merchandise :" — Stone not hable to duty upon merchandise, 
 Fisher v. Lee. c 
 
 " Minister of a church :" See Ile^. v. Mayor of Liverpool, d 
 
 " Non-cultivation" will not let in evidence of bad cultiva- 
 tion. 
 
 AVhether " months" in an iict of parliament mean lunar or cal- 
 endar months, is a point, which, after frequent and solemn deter- 
 minations upon it, is now taken to be so firmly settled that it 
 should not be shaken. " I confess," said Lord Kenyon, in Lacon 
 v. Hooper, "I wish that when the rule was first established it had 
 been decided, that ' months' should be understood to mean calen- 
 dar and not lunar months ; but tlic contrary has l)een determined 
 so long, and so frequently, that it ought not again to be brought 
 into question. In the instance indeed, of a quareimpedit, the com- 
 putation of time is by calendar months, but that depend on the 
 words of an act of parliament, iempus semcstre. But for all other 
 purposes, and in all acts of parliament where 'months' are spoken 
 of without the word ' calendar,' and nothing is added fi'om which 
 a clear inference can be drawn that the legislature intended calen- 
 dar months, it is understood to mean lunar months." e 
 
 When the stat. 31 Hen. 8, speaks of " dissolution— renouncing, 
 — reLmquishing, — gi^ing up, foi-feiture," <Szc., which are inferior 
 means by which religious houses came to the king, the latter 
 words or "by any other means come to the king," cannot be 
 intended of an act of parliament, which is the highest manner of 
 conveyance that can be ; and therefore, the makers of the act 
 would have put that, in the beginning and not in the end, after 
 other inferior conveyances, if they had intended it to extend the 
 act thereunto. But these words,"" by any other means," are to 
 be expounded by any other such inferior means. Archbishop of 
 Canterbury's case./" 
 
 " Occupy," See R. v. Great Bentley, rj Eeg. v. The Inhabitants 
 of St. Mary Kalendar. h 
 
 " Or " — is not always disjmictive. It is sometimes interpretative 
 
 a4M. &G. 603. e fi T. K. 22i. 
 
 6 U M. & W. 233. f2Ilep. 'IG. 
 
 c 12 A. & E. 522. ,/ 10 B. & C. 520. 
 
 d 8 A. (t E. 176. h 9 A. & E. G82.
 
 292 COKSTEUCTION OF PHKASES AKD WOEDS. 
 
 or expository of the former word; "haJivam, vel jurisdidionem." 
 See stat. of Marlbridge. a " 
 
 "Other than:" — The sense of an exception. 6 
 
 " Other person or persons :" — Persons of the same description 
 as those before enumerated. 
 
 In a proviso in 27 Hen. 8, the words are, " That if any wife 
 shall have any manors, lands, &c. unto her assured after marriage 
 for term of her hfe, or ofhcnrise in jointure," &c., an estate in fee 
 simple was held to be within the express letter of the act, for 
 " otherwise " extends to all other estates conveyed to the wife not 
 mentioned before in the act, which are as, or more, beneficial to 
 the wife than the estates before mentioned, c 
 
 " Parish or place to which they belong : " For the construction 
 of these words as to repairs of chapels under 3 Geo. 4, c. 72, s. 
 20. See Craven v. Sanderson, d 
 
 " Parties grieved : " "Whether the near relations of a person 
 whose body lias been disinterred for dissection are " parties ag- 
 grieved" is doubtful, R. V. Toole, t' 
 
 " Payments bona fide made " under the Bankrupt Act, 6 Geo. 4, 
 c. 16, see Bevan v. Venables. /" 
 
 " Presently answer : " held m Plowdeu only presently become 
 debtor, not presently pay. 
 
 " Preferred : " before which indictment preferred, held not to 
 mean the court alone before which a bill is found, but that also to 
 which it is removed, P. v. Pembridge. g 
 
 Stat. Marlbridge, cap. 3. '' Non Ideo puniatur dominus per re- 
 demptionemr " Redemption " is fine : and/nw dicitur quiafinem 
 litibus imponif : the party redeems his offence for a sum of money, 
 which makes an end of his trangi'essiou and of his imprisonment 
 for it. h 
 
 Upon the stat. 27 Hen. 8, restraining tenants in tail from mak- 
 ing um^easonable leases, much doubt arose what would satisfy the 
 
 a Post, cap. 11. ^ 1 M.&K. 72 :. 
 
 b tii wd. 1S)5. / 3 New Cases, 400. 
 
 c Veinon's case, 4 Eep. 3. 'gl Dowl. 1, 2 M. & Rob. 
 
 d See 7 A. &E. 880. h Griesley's case, 8 Rep. 41. 
 
 Note 18. — " Or '' in its ordinary signification, corresponds to either meaning, 
 one, or the other of the two ; but not both. It is sometimes construed to mean 
 " and " when such construction has been necessary to give effect to a clause in a 
 will, or to some legislative provision, but never to change a contract at pleasure. 
 Indeed, it seems to be an inaccurate expression to say that " or " can ever mean 
 " and " It should rather be said, that for strong reasons, and in conformity with 
 clear intention, " or " has been changed, or removed, and " and " substituted in 
 its place. Douglas v. Egre. Gilp. 147, opinion of McLean J. in United States v. 
 Railroad Bridge Co. Am. Law Reg. old series, vol. 3, p. G13. " And" cannot be 
 construed to mean " or " in a penal statute. United States v. Ten cases of Shawls 
 2, Paine 1 02.
 
 CONSTRUCTION OF PHRASES AND WORDS. 293 
 
 words "rendeiing the old and accustomed rent." If the ancient 
 reservation were of the rent to l)o ])aid in gold, and tlie new res- 
 eiTation was to be paid in silver, it would not satisfy them. If a 
 quarter of wheat Avas anciently reserved, and a new lease was 
 made rendering eight bushels of A\heat, this is all one in quality, 
 value and nature ; et paruiii lUjJ'crnnt qtav re conconhud. Joining 
 two several farms (always before let for 20/. and 10/.,) hi one de- 
 mise, rendering 30/. entire rent out of both, — or letting parcel of a 
 farm, rendering rent ^;ro ra/a, were cases in which tlie lease Avas 
 impeached, as being new rents and not the accustomed rent. But 
 it was admitted in the case of two coparceners, that one might let 
 her moiety, yieldnig the moiety of tlu; accustomable rent; for it 
 would be hard that the forwarthiess of her coparcener should pre- 
 judice her of the benefit of a fine which she might have, by mak- 
 ing of a lease of her moiety. And this was different from the 
 case of the lease of part with reservation of rent jrro rata, which 
 is his own act. etc., &c. a. 
 
 "Kevoking a submission :" The words of the stat. 3 and4: Wm. 
 4, c. 42, s. 39, arc not large enough to take aAvay the power of re- 
 voking a submission to arbitration m case of a reference on the 
 trial of an indictment: but apply only to civil actions, K. v. Bar- 
 dell, 619. 
 
 " Separate and distinct dwelling house :" See Pteg. v. The Great 
 and Little Useworth, and N. BudtUcli. b 
 
 " Separate and distinct tenements." Beg. v. Bipon. c 
 
 " Stage wagons :" What can-iages will satisfy these words, see 
 Beg. V. Buscoe. (/ 
 
 " Shipping for exportation :" These Avords are often used in a 
 sense less extensive, than the exporting of commodities to foreign 
 ports and places, and in the more restrained sense of carrying com- 
 modities from one port to another, within the kingdom. Ban-et 
 V, Darlington Bailway Company, e 
 
 " Subject to the laws and statutes now in force :" See B. v. 
 Churchwardens of St. James "Westminster./' 
 
 "Such:" The operation and effect of such, Itujusmodi, has been 
 before shown. Such m mischief and inconvenience. 
 
 " Such as have been heretofore usually rated :" These words 
 refer not to legal rateabUity, but to rating in point of fact, and to 
 the practice of rating in the particular i)arish not in the county 
 generally. Beg. v. Bose. g 
 
 " Thereupon and thereby :" For the distinction between these 
 tenns, see Atkinson v. Baleigh. Jt 
 
 " Towards and unto :" See B. v. The Marchioness of Downslm-e. / 
 
 a Cases of leases, 5 Kep. 5. /' 5 A. it E. 399. 
 
 Z) 5 A. & E. 361. 'g 6 Q. B. E. 153. 
 
 c See 7 Q. B. E. 225. h 4 Q. B. E. 79. 
 
 cZ 8 A. & E. 388. . i 5 A. & E. 232. 
 e 2 M. & G. 134
 
 294: CONSTRUCTION OF PHRASES AND WORDS. 
 
 " Unless he shall have paid all such rates :" Payment of rates to 
 entitle a person to be put on the burgess list of a borough under 
 stat. 5 and 6 Wra. 4, c. 76, s. 9, must be a papnent by the party's own 
 act. lieg. V. The Mayor of Bridgnorth, a 
 
 "Undertaking:" I'he word is ambiguous. It may mean the 
 speculation, or might be taken to mclude the land itself, h 
 
 "Unmarried:" in a will, "never having been married," Per 
 Lord Alvauley in Maberly v. Strode, c 
 
 " Unmarried" by the legislature, 3 & 4 W. & M. c. 11, s. 7, 'not 
 man-ied at the time.' Bott's Poor Laws. 
 
 " Uj^on :" This word in most cases is used elliptically for upon 
 condition of : as, "upon payment of costs:" — " tjpon conviction 
 of an ofiender." 
 
 " Upon" is sometimes used for after, within a reasonable time : 
 Thus, " Pvoman Catholics may hold office upon taking certain 
 oaths," 10 Geo. 4, c. 7, s. 14. " On admissions" in the case of 
 copyholds. 
 
 " Upon" — construed " upon the occasion of," or " at the time of" 
 admission. Eeg. v. Humphery, d 
 
 " Usual covenants" does not mean universally mserted. 
 
 " With" taken to mean " and as incident thereto." The Durham 
 and Sunderland Railway Company v. Walker, e 
 
 The words of the stat. of enrolments, 27 Hen. 8, c. 16, are 
 " withm six months after the date of the same writings indented :" 
 upon which it was adjudged that if such writings have a date, the 
 SIX months shall be accounted from the date ; if they have no date 
 then from the delivery ; and tlie day is exclusive. And " from the 
 date," and " from the day of the date," are of one sense, since in 
 judgment of law the date includes the whole day of the date. If 
 a lease is to begin from the day of the making, or from the day of 
 the date, the day itself of the date is excluded. But where the 
 demise is limited to begin from the making, and where it was 
 worded " to have and to hold for three years from henceforth," 
 the day of the delivery was taken inclusive, and the day itself 
 held parcel of the demise./' 
 
 It has been held subsequently, that the words "fi*om the day of 
 the date" in a lease, mean either inclusive or exclusive, according 
 to the subject-matter, and the court will construe them so as to 
 effectuate the intention of the parties, q 
 
 "Wreck:" in stat. 3 & 4 Wm. 4, c.^52, s. 50, is not lunited to 
 goods forfeit after a year and a day under stat. Westminster 1. 
 Ban-y v. Arnauld. h 
 
 The stat. 32 Hen. 8 c. 28, and 13 Ehz. c. 10, as to leases by 
 
 a 10 A. & E. 60. e See 2 Q. B. E. 900. 
 
 b Doe dem. Myatt v. The St. Helen's /Claytou's case, 5 Rep. 1. 
 
 Railway Compauy, 2 Q. B. R. ;374. V/ Pugh v. Leeds (Duke of) Cowp. 714. 
 
 c 3 Ves. 450. h 10 Adel. & Ellis. 646. 
 d See 10 A. & E. 335.
 
 CONSTRUCTION OF PHRASES AND WORDS, 295 
 
 spiritual persons, " whereupon the accustomed yearly rent or 
 more shall be reseryed," are in 'pari maten'e, and nnist be taken 
 together. To render a lease yahd under this statute, it must be 
 made of land which had been previously let, or on which some 
 rent had been reserved, (i 
 
 A similar construction was put u[»()n nearly the same words in 
 a power, as may be seen in Doe. dcm. JjartU-tt v. Kendle, 3 ]M. S: 
 S. 99. See also Fuller v. Abbott, 4 Taunt. 105. 
 
 "Year," and "yearly hiring'." A year is the time wherein the 
 sun goes round his compass through the twelve signs, viz : 305 
 days and about six lioui-s. But in leap year the statute 24, Geo. 
 2, Ch. 25, enacts that the year shall consist of 3GG ; so that in the 
 case of Rex. v. Wormingall, b upon a question of yearly hiring, 
 Lord Ellenborough said : " In those years which consist of 360 
 days, a hiring and service for a year, must be for that same num- 
 ber of days, in like manner as Avhen the year was 365 days ; it 
 must have continuance during that number. 
 
 a Doe. d. Tennysoa v. Yarborough, Lord; 7 Moore 258, and 1 Bing. fll. 
 b 6 M. & S. 350.
 
 296 mSTOKY OF jueisprudence. 
 
 CIIAPTEPi IX. 
 
 THE BOUNDARIES OF LEGISLATION AND OF JUDICIAL INTERPRETA- 
 TION SOUGHT TO BE ASCERTAINED : THE INSTANCES OF THE EXER- 
 CISE OF THIS BRANCH OF JUDICATURE IN OUR COURTS REVIEWED ; 
 OF LEGITIMATE CONSTRUCTION AND OF INTERPRETATIVE LEGISLA- 
 TION, IRRESPECTIVE OF CONSTITFTIONAL RESTRICTIONS. 
 
 " It is a remarkable fact, that in an enliglitened 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 con- 
 sideration of the important question, — What are the principles 
 upon which the jurisprudence of a country ought to proceed? 
 Certainty in the law, to a positive extent, is unfortunately unat- 
 tainable ; immutability of laws, even if it were desirable (which it 
 sm'ely is not) is still more impracticable. 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 
 absolutely necessary a sensible modihcatiou of the laws. Laws 
 must be accommodated— or laws will accommodate themselves — 
 to the growing necessities of mankind, and the varymg state and 
 condition of human societj'. " Comment enchainer Taction du 
 temps? Comment s'opposer au cours des evenements, ou a la 
 pente insensible des mceurs ? Comment connaitre et calculer d'a- 
 vance ce que 1' experience seule pent nous reveler ? La prevoyance 
 peut-eUe jamais s'etendre a des objects que la pensee ne pent at- 
 teindre ? — Les hommes ne se reposent jamais ; ils agissent tou- 
 jours ; et ce mouvement, qui ne s'arrete pas, et dont les effets sont 
 diversement modifies par les circonstances, produit, a chaque ins- 
 tant, quelque combinaison nouvelle, — quelque nouveau fait, — quel- 
 que resultat nouveau." a ' 
 
 The term " legislation," though ordinarily restricted, in its sig- 
 nification, to the act of making a law, or a code of laws, is some- 
 
 o Discours Prelimiuaire du premier projet du Code Civil, p. 20. 
 
 Note 1. — The following is believed to be a literal ti'anslation. " How arrest the 
 action of time ? How oppose the course of events or the insensible change of 
 customs? How know and calculate in advance what experience alone can reveal 
 tons? Can foresight ever extend to objects which thought cannot attain? Men 
 never rest, they are ever active, and that movement which does not stop, and 
 whose efforts are diversely modified by circumstances, produces every moment 
 Bome new combination ; some new fact ; some new result."
 
 HISTORY OF JURISPRUDENCE. 297 
 
 times used to denote the whole body of a legislative act of what- 
 ever name or origin, and may not improperly be extended to em- 
 brace the entire map of what are denominated laws, taken atten- 
 tively. It is in tliis latter sense that legislation is distmgiiished 
 fi'om jurispnidence. a 
 
 But it is not in the power of human intelligence whether com- 
 bined in legislative bodies, or otherwise, to foresee and provide 
 beforehand, for every combination of facts, or circumstances, 
 which may occur in the infinite vanety of human affairs. No 
 human code ; no body of legislators ever undertook to do this. 
 No human wisdom could have accomplished such a task, if it had 
 ever been undertaken. The lawmaker however desirous he ma}' 
 be to make his code complete, can only foresee and provide for 
 classes of cases ; and in doing this, he must rather be guided by 
 the experience of the past, than by any faculty of discerning the 
 future, h 
 
 There is accordingly, a large class of cases which are inevitably 
 left impro\dded for by every system of human legislation ; and it 
 becomes an interesting inquiry to determine how much has been 
 actually settled by legislation, and the rules by which this fact is 
 determined, and what are the rules of conduct, and what the 
 measure of justice that applies to cases not included in the gen- 
 eral provisions of legislation. The only answer that can be given 
 to this latter inquiry is, that they are to be detemiined in each 
 state or government, by what is called its jurisprudence, which is 
 the administration of all the laws of the state including legisla- 
 tion. But jurisprudence, which consists in giving interpretation 
 to, and in making application of statutes to particular cases, in- 
 cludes also the application of those precepts of natural right which 
 have not been superceded by express legislation, and which there- 
 fore remain in full force as to all other circumstances and cases. 
 
 These precepts or piinciples of natural right, which are thus 
 left unaffected by positive legislation, are those fimdamental prin- 
 ciples which arc necessarily presupposed by eveiy code, and by 
 every act of legislation, general or special, while they are als3 
 rales to control legislation in the spirit of laws, determine when 
 properly applied, what legal rights and duties have been violated, 
 
 a Gushing v. The Eoman Law, §.27. 5 Id. § 33. 
 
 38
 
 298 LEGISLATION AND JUEISPEUDENCE. 
 
 and what onglit to be done, in order that those whose legal rela- 
 tions are disturbed, may be placed, as near as may be, in the same 
 situation in which they would have stood if the rules of right had 
 been observed. This, equally with legislation, is a measure of 
 justice. This is also juiisprudence. If a case is left wholly unpro- 
 vided for by legislation or positive law, it is governed solely b}' 
 the natural law ; if m jmrt only, then partly by the natural, and 
 partly by the positive law. The natural law thus becomes the 
 complement of positive legislation, and supplies its deficiencies, 
 in reference to all cases which are either wholly, or in part only, 
 regulated by its provisions. 
 
 Principles of jurisprudence, as above described, become devel- 
 oped in two ways or forms. The first occurs when the question 
 arises in the mind of an individual as to what the law requires 
 him to do in a particular case. When this happens, the party 
 either determmes for himself what he ought to do, or he apphes 
 for information to some other person, who makes it a business, or 
 profession, to consider and advise in such matters. The principles 
 which are thus developed, gradually assume the character of 
 usages, and become a part of the customary law. The second 
 form in which jurispnidence technically so called is develoj)ed, — 
 occurs in the administration of justice. The case^ wliich are de- 
 cided in this way, become precedents or authorities for similar 
 and analogous cases subsequently occun'ing. a 
 
 Legislation being the estabHshment, beforehand, of those gen- 
 eral principles by which civil conduct is to be regulated ; and jur- 
 isprudence, consisting of those jDiinciples wliich are developed in 
 the application of the former to /jDarticular cases, it follows, that 
 the latter will be more or less extensive, according as the former 
 is more or less general or particular ; jurisprudence being the 
 most extensive when the law is most general, and least extensive 
 when the law goes furtherest into details and particulars. Legis- 
 lation, though usually general, may neverthless descend to mmute 
 details and particulars. When this is the case, it so far occupies 
 the place which woidd otherwise be filled with juiisprudence. 
 Jurisprudence on the other hand supplying all that legislation 
 leaves unprovided for in the administration of justice, and devel- 
 a CusHng on Jurisprudence, § 40.
 
 LEGISLATION AND JUEISPRUDENCE. 299 
 
 oping principles wliicli serve as rules of conduct for cases subse- 
 quently arising, so far stands in the place, and performs the func- 
 tions of legislation, a 
 
 It will thus Ije seen to be a most difficult task to establish the pre- 
 cise boundary Avhich separates legislation proper, from uhat is 
 properly culled jurisprudence, and to attribute to each the exact 
 domain to uhich it is appropriately entitled. An examination of 
 codes and systems would probably show, that the gi-eat outlines, 
 embracing those institutions which are peculiar to each, and which, 
 to a certam extent, are political in their character, have been the 
 work of legislation ; while those parts which have their founda- 
 tion in natural justice, and are the same, or nearly so, among all 
 nations of the same rank in civilization, and which chiefly affect 
 the relations of the citizens to one another, have been the product 
 of jurisprudence. 
 
 The great and essential difference between legislation and juris- 
 prudence, that which separates one fi'om the other distinctly, is 
 the manner in Avhich they respectively become established. The 
 former takes the place where the law making power discovers oc- 
 casion for it ; and its provisions are framed prospectively for such 
 classes of cases as the legislator thinks most likely to occur. The 
 latter is only called into being when an actual case arises for its 
 exercise, and is then adapted to the particular circumstances of 
 that case. Legislation, when once established, becomes fixed and 
 unalterable ; and it receives no additions, but by subsequent legis- 
 lation. Jurisprudence is constantly progressive, and continually 
 enlarging and extending itself, as cases occur for its exercise, and 
 adapting its principles to the social and political changes which 
 are perpetually going on in society. 
 
 The French quotation, above cited by Mr. Dwarris, as also those 
 which follow in this chapter, are akind of preface to the code Napo- 
 leon. The importance of this code in the French system of jurispru- 
 dence for the time, audits value as continuing sound principles in the 
 view of Mr. Dwarris, makes its history, perhaps, of interest to the 
 student. The frequent revolutions in that country, based some- 
 what upon the oppressive institution of the state, — the pri\'ileges of 
 the nobles, — of the church, — and a vicious financial system, — 
 
 aid. 4L
 
 300 HISTORY OF THE CODE NAPOLEON. 
 
 seemed to have tmned a portion of tlie popular fury against its legal 
 institutions ; and these were rendered the more odious by the acts 
 of various assemblies, under different names, who exercised legis- 
 lative power in a dictatorial and desj^otic manner. These new 
 acts, by the new principles they asserted in effect, swept away all 
 the former principles of Avhat was called the jurisprudence of the 
 state. - 
 
 About the year 1793, the celebrated lawyer Cambaceres, a native 
 of Montpeher, who had risen to the highest eminence in his j)ro- 
 fession, proposed a code of laics, conceived in the spirit of the age to 
 the then rulers, a body of men, who, it may be said, had cut their way 
 with the dagger and the sword, to first and simple principles. In 
 August of that year, he presented a draft of his code to the con- 
 vention, entitled " Projet de Code Civile;" The work was too 
 great, and too profoimd, to be deliberated upon at so stormy a 
 moment, when the minds of the convention were too unsettled for 
 an undertaking so important as the settlement of a legal system 
 for the nation. 
 
 Two years later, in 1795, Cambaceres, then a member of the 
 'council of Five Hundi-ed, presented to this body an amended pro- 
 ject of a code, wliich was ordered to be printed. Nothing deci- 
 sive, however, was done by tliis convention towards the achieve- 
 ment of this great work. 
 
 On the overthi'ow of the Directory, by the revolution of the 9th 
 November, 1799, the attention of the new consular government 
 was immediately turned to the subject of a code. Bonaparte 
 made it one matter of charge against the Directory, that they had 
 not achieved a work so loudly called for by the spirit of the age, 
 and the unsettled state of the jurisprudence of the country ; and 
 especially the great interest which Cambaceres, their second Consul, 
 had taken in his former efforts towards this end, and he (Camba- 
 ceres,) was then engaged by the first Consul to pursue the same 
 design. Accordingly, in the course of the first year of the Con- 
 
 NoTE 2. — The data upon whicli the following observations are made, and some 
 of its views adopted, are from a French author, (translated) entitled, ' ' Les cinq 
 codes avec notes et traites pour servir a un cours complet de Droit Francais; a 
 I'usage des Etudiants en Droit, et de toutes les classes de citoyens cultives." Par 
 J. B. Liserf, Avocat aux conseils du Roi et a la cour de cassation, 8 vc, Paris, 1819.
 
 HISTORY OF THE CODE N.VPOLEON. 301 
 
 sulate, a tldrd project of a code, embracing the views of Cambu- 
 ceres, was drawn up and presented to the government, by a com- 
 mission of the council of Five Hundred, at tlio head of wliich was 
 Jacc^ueminot, who was afterwards a meni])er of tlio Senate under 
 Napoleon. 
 
 Such was the condition of thbif^s, when Napoleon, by a consular 
 decree of the 12th August, 1800, ordered a commission to be in- 
 stituted " to compare the order which had been followed in the 
 l)reparation of the prqjccfs for a civil code hitherto published, to 
 determine the plan, wliioh the commission shall think best to 
 adapt, and to discuss the chief principles of ci\il legislation." 
 This commission consisted of Messrs Portalis, Trouchet, Rigot, 
 Premaneau and Mallcville, and the Minister of Justice was added 
 to their number. 
 
 In the following year, 1801, these commissioners reported a 
 (h-aft of a civil code, formed cliiefly out of the materials of the 
 former projects. These were accompanied with a preliminary dis- 
 course on the principles by which they had been guided. This 
 discourse was entitled, " Discours preliminaire du premier prqjet 
 ihi code civil," and this is the authority from wliich Dwarris has 
 selected his French quotations. 
 
 This last mentioned draft of a code was, in the first instance 
 submitted to the court of Cassation, (of eiTors,) and the various 
 courts of appeal, and the reports of the judges of these coui'ts 
 furnished the matter of some improvements in the draft, and it 
 was next submitted to the Coimcil of State. In this body over 
 which Bonaparte, then first Consul, presided, every part of the pro- 
 posed code was thorouglily discussed. After it had been discussed 
 in this manner, it was presented to the Tribunate, where it under- 
 went another discussion, and was returned to the Council of State, 
 as adopted, rejected, or amended. 
 
 In tliis way, five codes of law, were successively matured and 
 produced, viz : 1st. " The Code Civile," which was that called by 
 eminence " The Code Napoleon ;" 2d. *' The Code de Procedure 
 Civile,'" by which the forms of actions and modes of proceedings, 
 fi'om the tribunal of a justice of the peace up to the highest courts 
 in civil cases, were enacted ; 3d. " The Code Pencd," or criminal 
 code ; 4th. " The Code d' Instruction Criminelle," or mode of pro-
 
 302 HISTORY OF THE CODE NArOLEON. 
 
 ceeding in criminal actions ; and, 5tli. " The Code de Commerce" 
 or code of law mercliant. Tliis whole body of law, comprising all 
 these codes, was generally printed in one duodecimo volume. 
 
 We have dwelt morenpon this history, and at greater length than 
 might seem needful in this treatise, but we have seen already in 
 our own state, the commencement of a system of codification 
 aheady adopted, so far as regards the practice of the courts, and 
 under a name that seems to have been borrowed from this French 
 example, and with propositions, not yet adoj)ted, borrowed from 
 the same example, to extend to the whole system of civil and 
 m?7?i?z«/ jurisprudence of the state, by codification. It does not 
 become us to say in advance, with what advantage to our own 
 jurispnidence, if adopted. 
 
 It is said, by those who had the best opportunities of kno-wing, 
 and pretty generally believed, that in no one prominent act of 
 Napoleon's administration did he pride himseh more, than in this 
 code which bore his name. From the history which we have given 
 of the manner in wdiich it was drawn up and prepared ; from the 
 active part he took in commissioning the distinguished lawyers 
 for that purjiose ; — from the fact that he presided over the bodj* 
 before whom it was so thoroughly discussed, and as we may be- 
 lieve from the active powers of his mmd, he could well ap- 
 preciate the pomts of such discussion ; — and the fact that he 
 honored the manuscript copy of tliis code with his imperial signa- 
 ture, we may perhaps, even at this day, judge somewhat as to the 
 credit^ to wliicli he was entitled, as the author of the Code Naj)o- 
 leon. His greatest admirers claim for him in this regard, to have 
 been a second Justinian. Tliis may be true, and still be an 
 equivocal compliment ; for history accords to Justinian about the 
 same participation in the actual preparation of his gi-eat work 
 called his Institutes, as to Napoleon in projecting his code. 
 None will deny to either, the possession of imperial powers of 
 mind ; and none should detract from the credit of those great legal 
 luminaries who prepared these codes for the consideration and 
 adoption of their imperial masters. It is nevertheless true, that 
 both Napoleon and Justuiian rose to greatness in their respective 
 empires, by other qualities of greatness, besides those which dis- 
 tinguished them as military chieftains.
 
 HISTOKY OF THE CODE N.\rOLEON. 303 
 
 But the Code Napoleon -with its prefatory " Discours PreJimin- 
 aire" became the statute law of France, and the jurisprudence of the 
 countries dependent on French power. It was introduced hi Hol- 
 land, — in the Confederation of the lUiine, — in the kingdom of West- 
 phalia, — in Bavaria, — in tlio Idngdom of Italy, — in Naples, — in 
 Spam, — and in various smaller sljites that were under the French 
 influence. It was substantially founded on the priiici2)les of the 
 civU law, the common basis of continental jurisprudence. 
 
 "With all the merits of this French code, the downfall of the 
 emperor was the signal for its disuse in the foreign dependencies 
 of France ; but in that country itself, it was so strongly rooted in 
 the confidence of the people as to sustain itself. By a royal ordi- 
 nance of July 17, 181G, it is declared : 
 
 " We are too well convmced of the evils of a fluctuating legisla- 
 tion in a state, to think of a general revision of the five codes, 
 which were in vigor in our kingdom, at the time that our constitu- 
 tional charter was granted. We reserve to oui'selves, only to pro- 
 pose particular laws, in order to reform such things as admit of 
 improvement; or in which time and experience shall have dis- 
 covered imperfections. But although reforms of this kind can 
 only be the work of time, and the fiTiit of long meditations, it is 
 indispensable to suppress, from the present moment, those denom- 
 inations, expressions and formulas in the different codes, which 
 are not in harmony with the principles of our government, and 
 wliicli recall the recollection of times and circumstances, of which 
 we would efiace even the recollection." 
 
 In consequence of this decree, the various names and titles be- 
 longing to the imperial government, were erased, and the appro- 
 priate ones of the royal government, introduced in their stead. At 
 various subsequent periods, laws have been enacted, considerably 
 modifying, or wholly changing several important j)rovisions of the 
 " Code Napoleon." 
 
 This whole code was comprised in 2281 paragi'aphs, or sections, 
 and numbered, like our own Code of Proceedure, for the gi'eater 
 facility of reference, but they are very brief and tersely written, 
 and of about the average length of verses in the Bible. The work 
 is divided into three books ; each book into a certain number of 
 titles ; and each title comprises one or more chapters. The pre-
 
 304 BOUNDARIES OF LEGISLATION. 
 
 limmary title is used to effect an imderstandirig and the applica- 
 tion and interpretation of the provisions of every part of the code, 
 and precedes the whole body of the work ; therefore the signifi- 
 cance of the quotations by our author, Dwanis. 
 
 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 w^here tlie legislature has 
 not defined with perfect precision the exact nature of its j)i'ovi- 
 sions, some authority will be required to decide upon the mean- 
 ing of the terms which it employs, or the cases to which its pro- 
 visions shall extend. 
 
 In ancient times, 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." a To this 
 efiect Bracton observes : " Si aUqzia nova et ineonsueta cmerserinf, 
 qua' nunquam jjvius evenerunt, et obsciirum et difficile sit eorurn judi- 
 cium, tunc ponaniur judicia in respectu usque ad Magnam Curiam, 
 ut ihi per consilium curice terminetur." b For the high court of 
 parliament met every year, " or oftener if need were," for the 
 " maintenance and execution of the laws." c 
 
 In like manner it has been said in modem times, (and the senti- 
 ment has been before noticed with approbation,) parliament is 
 always at hand to supply deficiencies and to correct mistakes, d 
 
 Is the legislature then to be interrogated, every time a doubt 
 arises upon the construction of a statute, to decide particular dis- 
 putes ? Assuredly not. For would not this be endless ? AVould 
 it not impair the usefulness, and derogate fi'om the dignity of the 
 judicature ? Would it not give room for partiaHty and oppres- 
 sion ? " Forcer le magistrat de recourir au legislateur, ce serait 
 admettre le plus funeste des principes ; ce serait renouveler parnii 
 nous la desastreuse legislation des Eescrits. Car, losque le legis- 
 lateur intervient pour prononcer sur des afiaires nees et vivement 
 agitees entre particuliers, il n'est pas plus a I'abri des surprises, 
 que les tribunaux." And under such circumstances certainly : 
 " On a moins a redouter I'arbitraire regie, timide et circonspect 
 d'un magistrat qui pent etre reforme, et qui est soumis a Faction 
 en forfaiture, que i'arbitraire absolu d'un pouvoir independant, 
 qui n'est jamais responsable." 
 
 " Des lois intervenues sur des affaires privees seraient souvent 
 suspectes de partialites, et toujours elles seraient retroactives et 
 injustes pour ceux dont le htige aurait precede rinteiTention de 
 
 a 2 Inst. 408. 
 
 h Bracton, lib. 1, ca. 2. 
 
 c 4E(i\v. 3, ca. 14; 3G Edw. 3, ca. 20. 
 
 d Ante, p. 617, G41.
 
 BOUNDARIES OF LEGISLVTION. 305 
 
 ces lois. De plus, le recours au legislateur cntrainerait des lon- 
 gueurs fatalcs au justiciable," &c. a ^ 
 
 It folhnvs, tliat the questions of constiiiction before adverted to, 
 vi/., the nieaning of the terms eniploj'ed Ijy the legislature, and 
 tlie cases to whic-h the ])rovisions of tlu; law are a})plicaljle, must 
 be left to the decision of the judg(.'S. If the judges of the inf;'ri(jr 
 courts are mistaken in their construction of a law, tlieir decision 
 must be reviewed and corrected by the courts of superior jurisdic- 
 tion. But by what maxims are the judges of both courts to be 
 guided in their expositions, — on what ground will tlieir deteraiina- 
 ti<jns rest '? Are the courts to proceed upon estabhshed prin- 
 ciples — to be governed by fixed rules ; or, exercising a liberal dis- 
 cretion, to have recourse, in douljtful cases, to natural principles, 
 — to aid and to moderate the law according to e(|uitable consider- 
 ations, — to include in tlunr dehberatious those cases and circum- 
 stances which the legislator himself would have expressed, had he 
 foreseen them ? 
 
 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 pervading the whole hodj of our 
 jurisprudence,) that " Opfiinacsf lex, qua' minimum rdinquit arhi- 
 /riojiulicis; opt im us judex, qui minimum sibi;'' h the question would 
 seem to present little difficulty. An English judge, however, would 
 be in no slight degree astonished at iinding it laid down as a 
 dogma of law, (as in the fourth article of the Titro preliminaire de 
 la publication des Lois :) — " Le juge qui refusera de juger, sous 
 pretexte du silence, de I'obscimte, ou de I'insuffisance de la loi, 
 pouiTa etre poursui\d comma coupable de deni de justice." c ' On 
 
 a Discours Prelimiuaire, A'c, p. 20. 
 
 h Aphorism, 40; Bacon's 'Works, vol. 7, p. 118. 
 
 c P. 20, Titre Preliminaire. 
 
 Note 3. — "To force the magistrate to appeal to the legislator, would be to ad- 
 mit the most fatal of principles; it would be to renew among us the disastrous 
 legislation of the Kescripts. For when the legislator interferes to decide on 
 matters arising, or warmly agitated among private individuals, he is no better 
 protected from surprises, than are the courts. AVe have less to fear from a con- 
 trolled, timid, and circumspect decision of a magistrate who can be reformed, and 
 who is liable to forfeiture of his place, than from the absolute, or arbitrarj' de- 
 cision of an independent power which is never respon.sible to any one." 
 
 Law.s originating in private affairs, would be often suspected of partiality, and 
 they would always be retroactive and unjust to those whose suit would have pre- 
 ceded the intervention of those laMs. Moreover, recourse to the legislator would 
 induce delays, fatal to the persons, amenable, &c." 
 
 Note 4. — "The Judge who should refuse to decide under the pretext of the 
 silence, the obscuritj', or the insufficiency of the law, can be punished as giiilty 
 of a refusal to render justice." 
 39
 
 30G BOUNDARIES OF LEGISL.VTION. 
 
 wliicli law the foUowing passage in the Discours Prehminaire a 
 may be considered as a commentary :— " Sur le fondement de la 
 maxime que les juges doivcnt obeir aiix lois, et qu'il leur est defen- 
 du de les interpreter, les tribunanx, dans ces dernieres annees, ren- 
 renvoyaieut par des referes les justiciables an pouvoir legislatif, 
 toutes les fois qu'ils manquaiciut de loi, on que la loi existante 
 leur paraissait obscure. Le tribunal do cassation a constamment 
 reprime cet abus, comnie un deni de justice." ^ From which im- 
 portant passage it is to be collected, that even among our enlight- 
 ened neighbors, 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. 
 
 The doctrine laid down in the fourth article of the Titre Preli- 
 minaire, before cited, will probably appear to the ordinary reader, 
 even in its present sliape, 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 : — " pent faciliter les usurpations des tribunanx sur le 
 pouvoh- legislatif." h '^ The explanations, however, of this article, 
 which were afforded during the discussion of the irrojet, are high- 
 ly valuable : c 
 
 Le Ministre de la Justice dit, " qu'il y a deux sortes d'intei-pre- 
 tations, celle de legislation et celle de doctrine ; que cette demiere 
 appartient essentiellement aux tribunanx ; que la premiere est 
 celle qui leur est interdite ; que lorsqu'il est defendu aux juges 
 d' interpreter, il est evident que c'est de V inter jjretation legislative 
 qu'il s'agit. II cite I'art. Yll du titre ler de I'ordonnance de 1667, 
 qui defend aux juges d'interpreter les ordonnances." 
 
 Le C. Tronchet dit " que Ton a abuse, pour reduire les juges a 
 un etat purement passif, de la defense que leur avait faite I'assem- 
 blee constituante, d'interpreter des lois et de reglementer. Cette 
 defense n' avait pour objet cpie d'empecher les trilDunaux d'exercer 
 une partie de pouvoir legislatif, comme I'avaient fait les anciennes 
 cours, en fixant les sens des lois par des interpretations abstraites 
 
 a P. 25, Discours Preliminaire. 
 
 h Deiixieme redaction, seance de 14 therm, an IX. 
 
 c Titre Preliminaire, p. 28. 
 
 Note 5.—" On the basis of the maxim that Judges ought to obey the laws, and 
 that they are forbidden to interpret them, the courts of late years have referred 
 those amenable to justice, to the legislative power, whenever the laws were want- 
 ing, or when the existing law seemed to them obscure. The superior court has 
 constantly repressed this abiise as a denial of justice." 
 
 Note G. — " Can facilitate the usurpations of the courts over the legislative 
 power. "
 
 BOUNDAItlES OF LEC;iKLATIOX, 307 
 
 et geneniles, on en les supleaut par des aiTcts tic reglcniont. Mais, 
 pour eviter I'abus qii'oii en a fait, il fant laisser an juge I'interpre- 
 tation, sans laquellu il no pent excrccr son ministere. En eli'et, 
 1(!S contestations civiles portent sur les sens diflerent que cliacune 
 (les parties })iete a la loi ; ce n'est done pae ])ar nne loi nouvcUe, 
 laais par ro[)inion du jnge, que la cause doit etre decidee. On 
 eraint que les juges n'en abusent pour juger contra le texte do la 
 loi; s'ils sc le permettaient, le tribunal do cassation aneantii'ait 
 Icurs jugements." 
 
 Le C. liEDEitER dit " que rarticle IV donne trop do pouvoir an 
 juge, en I'obligeant de ]nononcer memo dans le silence de la loi. 
 Il appartient au juge djap])lixuer la loi; il no lui appartient pas 
 de remplir les laeunes di; la legislation, quand la loi garde un 
 silence absolu." 
 
 Le C. PoiiTALis repond " quo le cours de la justice scrait inter- 
 ronipu, s'il n'etait pernus aux juges do prononcer que lorsquc la 
 loi a parle. Pen de causes sont susccptibles d'etre dccidees d'a- 
 pres mie loi, d'apres un texte precis ; c'est paries priucipes gene- 
 raux, par la doctrine, par la science du di'oit, qu'on a toujours pro- 
 nonce sur la plupart des protestations." " En matiero criminelle 
 ](! juge ne doit prononcer Cjue lorsque la loi a qualifie de deKt le 
 fait (jui est defere a la justice, et qu'elle j attache une peine ; en 
 niatiere civile, au contraire, le juge ne pent se refuser a prononcer 
 i'.idistinctement sur toutes les causes qui lui sont presentees, parce- 
 (jue, s'il ne trouve pas dans la loi de regies pour decider, il doit 
 recouiir a I'equitc natureUe. Ce sorait trop multiplier les lois, 
 que de les fairo naitrc des doutes des juges." a ^ 
 
 a Titrc rreliminairc, p. 27. 
 
 Note 7. — The minister of justice says, '* that there are two kiucls of interpreta- 
 tions, that of legislation, and that of doctrine; that the latter belongs essentially 
 to the coiirts; that the former is forbidden to them; that when the judges are for- 
 bidden to interpret, it is evident that it is the Leijislat'ive Interpretation that is 
 meant. He quotes Article VII of the first act of the ordinance of 1G67, which for- 
 l)ids the judges to interpret the ordinances. Trouchet saj's, that in order to re* 
 duce the judges to a state of purely passive, there has been au abuse of the pro- 
 hibition put upon them by the Cousituent Assemblj', of interpreting the laws and 
 making nilings. This prohibition had for its object only to prevent the courts 
 from exercising a part of the legislative power, as the older courts had done, by 
 lixiug the sense of the laws by abstract and general interpretations, or by sujipli- 
 inenting them by rulings. But in order to prevent the abuse that has been made 
 of it, one must leave to the judge the interpretation, without Mhich, he cannot 
 exercise his functions. In truth, civil disinites depend on the different sense that 
 each of the parties gives to the law; it is not therefore by a new law, but by the 
 opinion of the judge, that the case ought to be decided. It is feared that the 
 judges may abuse this in order to decide against the text of the law; if they per- 
 mitted themselves to do this, the superior courts would amend their decisions."
 
 308 BOUXD.UIIES OF LEGISLATION. 
 
 It is necessary to bear these explanations in mind, in perusing 
 tlie following passages from the masterly discourse prefixed to 
 these Diticufisions ,s«r le Code Civil; and it is not less important to 
 remember that in all ciyihzed countries, except England, the 
 United States of America, and ancient Eomc, the jurisdiction of 
 common law and of equity has been committed to the same courts, 
 and that, by blending laAv and equity together, greater latitude is 
 given to the judges in matters of property to modify the laws, in 
 order to meet the purj^oses of justice in particular 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 ad- 
 mit of determinations according to conscience, and arhifriiim boni 
 viri, ^ but which really act upon settled principles, it has been a 
 question with enlightened lawyers how far this most liberal de- 
 scription of equitable jurisdiction should be at any time permitted ; 
 and whether courts of equity ought not to be, in all cases, governed 
 by general niles. On the one hand it is admitted, that if this 
 were the case the consequence would inevitably follow, that a 
 judge would sometimes be bound to pronounce decress which 
 would be materially unjust ; since no rale can be equally just in 
 the apphcation 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 gi-eater^that of rendering judges arbitrary, and their de- 
 crees so fluctuating, that the public could never trust to them as a 
 rule of conduct, a 
 
 The observations of Lord Hardwicke upon this subject, (of the 
 estabhshment of general rules m our courts of equity,) are en- 
 
 Eaederer says, " that Art. IV gives too much jjower to the judge, by obliging 
 him to decide even in the silence of the law. It belongs to the judge to apply 
 the law; it does not belong to him to fill the chasms of legislation when the law 
 observes an absolute silence." 
 
 Portalis replies, " that the course of justice would be interrupted if it were only 
 permitted to the judges to decide where the law has spoken. Few causes are 
 susceptible of being decided according to precise law and text; the greater part 
 of disputes have always been decided by general i^riuciples; by doctrine, and by 
 the science of law. In criminal matters, the judge must only decide where the 
 law has designated as a crime, the deed which is remanded, (or deferred), to jus- 
 tice, and when it attaches a penalty to it. In civil matters, on the contrary, the 
 judge cannot refuse to pronounce indiscriminately on all the causes presented to 
 him, because if there are in the law no rules by which to decide, he must have 
 recourse to natural equity. To let the laws spring from the doubts of the judges, 
 would be to multiply them undul}'." 
 
 a Lord Karnes' Principles of Equity. 
 
 • Story well explains the arUirlum honi virl, by the " Vlr bomis est quis ? Qui 
 cohsuUa patrum, qui le/jes jnraqve servai." Eq. J. vol. 1, p. 13. Courts of Equity 
 are a.s much bound by precedents, as Courts of Law.
 
 BOUNDARIES OF LEGISLATION. 309 
 
 titled to great attention, and Lis remarks upon the subject of 
 frauds seem quite conclusive upon that part of the subject. 
 "Some general rules there ought to be, for otherwise the gi'eat in- 
 convenience of jus vutjioii cl inreiiniii will follow ; and yet the 
 Fra'tor must not be so absolutely and invariably bound by them, 
 as the judges are by the rules of the common law. In the con- 
 stiiiction of trusts, •which are one great head of equity jurisdiction, 
 the rales are pretty well ascertained ; so they are ui cases of re- 
 demption of moiigages, which makes another gi'etit branch of thiit 
 business. But as to relief against frauds, no invariable rules can 
 be estabhshed. Fraud is infinite, and were a court of equity once 
 to lay down rules how far they would go, and no further, in ex- 
 tending their relief against it, or to define strictly the species or 
 evidence of it, the jurisdiction would be cramped, and peii^etually 
 eluded by new schemes, which the fertility of man's invention 
 would contrive." a 
 
 In the same letter, but in the handling of a different topic, 
 (which will be the subject of notice hereafter,) 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 
 matters of property. Not so, mnfafis tnutondiH, the French codi- 
 fiers ; by whom some contempt is indicated for the practical wis- 
 dom of those " qui osent prescrire imperieusement au legislateur 
 la teii'ible tache de ne rien abandonner a la decision du juge." * 
 
 a Letter to Lord Karnes; Jjonl Wooilbonselee's Memoirs of the Life and Writ 
 ings of Lord Karnes; Parke's History of the Court of Chancery, Appendix, No. -1 
 
 Note 8. — "Who dare imperatively to prescribe to the legislator, the terriblu 
 task of abandoning nothing to the decision of the Jiidge." " Whatever we may 
 do proceeds this same prolmmd and analytic discourse, positive laws can never 
 entirely take the place of natural reason in the affairs of life. The wants of so- 
 ciety are so varied ; the intercourse ot men is so active ; their interests are so 
 multiplied, and their relations so extended, that it is impossible for the legislator 
 to provide for every thing. In the very matters which esi^ecially engage his at- 
 tention, there is a crowd of details which escai^e him, or which are too conflic- 
 ting and too changing to become the subject of clearly expressed letter of the 
 law." 
 
 A multitude of things is then necessarily left to the rules of custom ; to the 
 discussion of learned men, or to the arbitrary decision of Judges. 
 
 The office to be performed by the law then, is to settle by broad views, the gen- 
 eral maxims of law ; to establish principles, productive of uniform consequences; 
 and not to descend into the details of the questions which may arise on every 
 occasion. 
 
 It is the duty of the magistrate, and the la^\-yer, imbued with the general spirit 
 of the laws, to direct its application. 
 
 Hence, among all civilized nations, we always see formed by the side of the 
 sanctuary of the laws, and under the controlling guidance of the legislator, a
 
 310 FRENCH JUEISrRUDENCE. 
 
 " Quoi que Ton fasse;" proceeds tlie same profound and analy- 
 tical discourse, a " les lois positives ne sauraient jamais entiere- 
 ment remplacer I'usage de la raison natnrelle dans les affaires de 
 la vie. Les besoins de la societe sont si varies, la communication 
 des liommes est si active, leurs interets sont si multiplies et leurs 
 rapports si etendus, qu'il est impossible au legislateiu' de pourvoir 
 a tout. Dans les matieres meme 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 I'objet d'un 
 texte de loi." 
 
 " Une foule de choses sont done necessairement abandonnes a 
 I'eni pire de I'usage, a la discussion deshommes instmits, a 1' arbi- 
 trage des juges." 
 
 " L'oiiice de la loi est de fixer, par de grandes vues, les maximes 
 generales de droit ; d'etablir des principes feconds en conse- 
 quences, et non de descendre dans le detail des questions qui 
 peuvent naitre sur cliaque matiere." 
 
 " C'est au magistrat et au jurisconsulte, penetres de I'esprit ge- 
 neral des lois, a en diriger I'application." 
 
 " De la, cliez toutes les nations policees, on voit toujours se for- 
 mer, a cote du sanctuaire des lois, et sous la surveillance du legis- 
 lateur, un depot de maximes, de decisions, et de doctrine, qui s'e- 
 pure journellement par la pratique et par le clioc des debats juxli- 
 ciaires, qui s'accroit sans cesse de toutes les connaissances acquises, 
 et qui a constamment ete regarde comme le vrai supplement de 
 legislation." 
 
 " II serait, sans doute, desirable que toutes les matieres pussent 
 etre reglees par des lois." 
 
 " Mais a defaut de texte precis sur cliaque matiere, un usage 
 ancient, constant et bien etabli, une suite non interrompue de de- 
 cisions semblables, une opinion et une maxime recue, tiennent lieu 
 de loi. Quand on n'est derige par rien de ce qui est etabli ou 
 connu, quand il s'agit d'un fait absolument i^ouveau, on remonte 
 aux principes du droit naturel. Car, si la prevoyance des legisla- 
 teurs est limitee, la nature est infinie ; elle s' applique a tout ce 
 qui pent interesser les liommes." 
 
 " Pour combattre I'autliorite que nous reconnaissons dans les 
 juges de statuer sur les clioses qui ne sont pas determinees par les 
 lois, on invoque le droit qu'a tout citoyen de n'etre juge que d'a- 
 pres une loi anterieure et constante. Ce droit ne pent etre me- 
 connu. Mais pour son application, il faut distinguer les matieres 
 
 a Discours Prelim inaire, p. 20. 
 fund of maxims, of decisious and of doctrine, which is daily sifted by practice, 
 and the collision of judicial debates, incessantly increasing by all the knowledge 
 acquired, and v/hich has constantly been regarded as the true supplement of 
 legislation. 
 
 It would doubtless be desirable, that all cases should be decided by laws.
 
 FRENCH JURISPRUDENCE. 311 
 
 crimiaelles d'avec les matieres civilos," etc " En matiere crimi- 
 nelle, ou il n'y a qu'iin texto forniol et pre-existaiit qui puissc fon- 
 der Taction du jugo, il faut des l(ns ])recises et jjoint de jurispru- 
 dence. II en est autrement en niaticre civile : la, ilfautune juris- 
 pnidence, parcequ'il est impossible de regler tons les objects civils 
 par des lois." 
 
 " Quand la loi est claire, il faut la suivrc ; quand elle est ob- 
 scure, il faut en approfondir les dispositions. JSi Ton manque de 
 loi, il faut consulter I'usage ou I'equite. L'equite est le retour a 
 la loi naturello, dans le silence, I'opposition, ou I'obscurite des lois 
 positives." 
 
 The tenor of these passages, (for the citation of Avhich, from so 
 interestmg a work, no apology is considered necessary to the in- 
 telligent reader,) may perhaps be thought, m some measure, to 
 contirm Bacon's sagacious opinion: — " Apud nonnullos receptum 
 est, lit juriscUdio qiuv decernit secundinii cquum et honum, atque ilia 
 cdtera quce jorocedit secundum j us stridum, nsdein curiis deputenfur ; 
 apud alios autem, ut diuersis: — Omnino i^lacet curiarum separafio. 
 Ncque enim scrvabitur distindio casuurn, si fiat commixtio jurisdic- 
 iionum ; scd urhitrium legem tandem trahet.'' a Even as it is, when 
 the jurisdictions are separate, does not this efiect appear to be 
 jiroduced ; cirbitrium legem traliere? how has the statute law been 
 dealt with ? 
 
 Where so much is left to the discretion of the Judges, it is desi- 
 rable to know whether any rules are prescribed for their govern- 
 ment, and the guidance of that extensive discretion. 
 
 a De Aug. Scient. lib. 8, c. 3 apb. 45. 
 
 " But in tlelault of a precLse tlirectiou for every case, ancient customs con- 
 stant and well established; an uninterrupted series of similar decisions; opin- 
 ions, or received maxims, take the place of law. When we are directed by nothing 
 that is established or known ; when a case absolutely new occurs, we go back to 
 the princii)les of natural law. For if the foresight of the legislator is limited, 
 nature is infinite, and her rights apply to all that can interest mer .' 
 
 "To contest the authority that we acknowledge in Judges of decnling things 
 that are not determined by the laws, we appeal to the right of every citizen of 
 being judged only in accordance with an anterior and fixed law. This claim 
 cannot be ignored, but for its application we must distinguish between civil and 
 criminal cases, etc." 
 
 " In criminal matters, where there is only a formal and pre-existing text which 
 can s\istain the action of the Judge, precise laws are needed, and no jurispru- 
 dence. It is otherwise in civil matters ; there jurisprudence is needed, because 
 it is impossible to settle all civil cases by the laws." 
 
 "When the law is clear it must be followed ; when it is obscure, its intent 
 must be investigated. In the absence of law we must consult custom or equity. 
 Equity is the return to natural law in the silence ; in the opposition, or in tho 
 obscurity of the positive laws."
 
 312 BOUNDARIES OF LEGISLATION. 
 
 Tlie introductory discourse, so often already quoted, observes 
 upou this head, and very judiciously -.a " II est trop heureux qu'il 
 y ait des recueils, et une tradition suivie d'usages, de maximes, et 
 de regies, pom- que Ton soit, en quelque sorte, necessite a juger 
 aujourd'hui, connue on a juge hier, et qu'il n'y ait d'autrss varia- 
 tions dans les jugemcnts publics, que celle qui sont amenees par 
 li^ progres des lumieres et par la force des circonstances." Again, 
 and more emphatically :h "Le pouvoir judiciaire, etabhe pour ap- 
 pliquer les lois, a besoin d'etre dirige dans cette apphcation par 
 certaines regies. Nous les avons tracees : elles sont telles, que la 
 raison particuliere d'aucun liomme ne puisse jamais prevaloir sur 
 hi loi, raison publique." ^ 
 
 Lastly, (and no longer mediately, but directly affecting the sub- 
 ject under consideration, viz., the boundaries of legislation and of 
 judicial interpretation,) the same dissertation proceeds : " En effet, 
 la loi statue sur tons : elle considere les hommes en masse, jamais 
 comme particuliers ; elle ne doit point se meler des faits indivi- 
 duels, ni des litiges qui divisent les citoyens. S'il en etait autre- 
 ment, il faudrait journellement fake de nouvelles lois : leur multi- 
 tude etoufferait leur dignite et nuirait a leur observation. Le 
 jurisconsulte serait sans fonctions, et le legislateur, entraine par 
 les details, ne serait bientot plus que jurisconsulte. Les interets 
 particuliers assiegeraient la puissance legislative ; ils la detourne- 
 raient, a chaque instant, do I'interet general de societe." 
 
 " II y a une science pour les legislateurs, comme il y en a un 
 pour les magistrats : et I'une ne ressemble pas a 1' autre. _La sci- 
 ence du legislateur consiste a trouver dans chaque matiere les 
 principes les plus favorables au bien commun : la science du ma- 
 gistrat est de mettre ces principes en action, — de les ramifier, — 
 de les etendre, par une application sage et raisonee, aux hypo- 
 theses privees ; d'etudier I'esprit de la loi quand la lettre tue ; et 
 de ne pas s'exposer au risque d'etre, tour a tour, esclave et rebelle, 
 et de desobeir par esprit de servitude." c '" 
 
 It cannot be denied, that these extracts given from the " Bis- 
 
 a Tit. Prel. p. 23. ?> P. 31. c P. 27. 
 
 Note 9. — "It is very fortunate that there are collections, and respected tradi- 
 tions of customs, maxims and rules, that we may in some manner be obliged to 
 judge to day as we judged yesterday ; and that there are no other variations in 
 public judgments, than those which are induced by the progress of knowledge 
 and the force of circumstances." 
 
 " The judicial power established to apply the laws, needs to be directed in 
 this application by certain rules ; we have marked them out ; they are such that 
 the primfe judgment of no man, can ever prevail over the law; over pwWic judg- 
 ment." 
 
 Note 10.— "In reality, the law decides equally in regard to all ; it considers 
 men in the aggregate ; never as individuals ; it must not meddle with individual
 
 BOUNDARIES OF LEGISLATION. 313 
 
 cours Preliminairc du Premier Projet de Code Civil" " contain a 
 very particular and oven minute enumeration of the duties of the 
 judge; but it may be thought to 1)0 still opon to inquiry, Avhat 
 are the functions of the le<^islatorV The province of the legislator 
 is shadowtMl out in tlie following passages, indistinctly indeed, — 
 without relief, and in a manner wanting the bold and consistent 
 aspect presented by the other part of the work. 
 
 "II faut que le legislateur veille sur la jurispi-udence ; 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 I'experiencc! a combler successivement les vides que 
 nous laissons." 
 
 " Les codes des peu])les se font avec le temps ; mais a propre- 
 ment parler, on ne les fait pas."(f '■ 
 
 With us it has been shown to be the duty of the judges, Mliere 
 a case occurs which Avas not foreseen by the legislature, to declare 
 it casus omissus ; or where the intention, if entertained, is not ex- 
 pressed, to say of the legislature, (/nod voluif, nan dixit ; or where 
 the case, thoiigli within the mischief, is not clearly within the 
 meaning; or whei'e tlu^ words fall short of the intent, — or go be- 
 yond it ;— in every such case it is held the duty of the judge, in a 
 land jealous of its liberties, to give eflect to the expressed sense, or 
 words, of the law, m the order in which they are found in the act 
 and according to their fair and ordinary import and understanding. 
 
 As to deciding contrary to the plain words of an act of parlia- 
 ment, — as to holding that the legislature did not mean what it has 
 
 acts, uor with dispiitos that divide citizens. If it were otherwise, it would daily 
 be necessary to make new hxws ; their number would destroy their influence, and 
 interfere with their observance. The lawyer would be without functions, and the 
 legislator, involved in details, would soon be nothing more than the lawyer. 
 Private interests would besiege legislative power; they would incessantly turn it 
 aside from the general interest of society." 
 
 " There is a science for legislators, as there is one for magistrates, and the one 
 does not resemble the other. The science of the legislator, consists in finding in 
 each case the principles most favorable for the common welfare ; the science of 
 the magistrate, is to put these principles in' action, — to ramify them, — to extend 
 them by a wise and thoughtful application to private assumptions ; to study the 
 spirit of the law when the letter destroys, and not to expose himself to the risk of 
 being by turns slave and rebel ; and to disobey in the spirit of servitude." 
 
 a P. 27. 
 
 Note 11. — " Introducting Discourse on the First Division of the Civil Code.'' 
 
 Note 12. — "The legislator must watch over jurisprudence ; he can be enlight- 
 ened by it, and he can on his part correct it ; but there must be a jurisprudence. 
 It devolves on experience successfully to fill the voids that it leaves. The codes oi 
 nations are said to be formed by time; but properly speaking they are not formed." 
 40
 
 314 BOUNDARIES OF LEGISLATION. 
 
 ■unequivocally expressed, — it may be observed that if with decided 
 cases, the maxim of law be, (as it incontrovertibly is,) stave^ deems, 
 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 author- 
 ity of an act of parliament. 
 
 The duty of the judge is to adhere to the legal text, and not to 
 ti-a-vel out of Avhat that expressly or impliedly contains. In the 
 interpretation of the letter, if difficulties occur, he is to look to 
 the spuit and object, and to be guided by the rules and the 
 examples, which it has been a principal object of this work to 
 collect, to compare, and to expound. 
 
 The legislator also, has his solemn duties. He is called upon, 
 no doubt, to watch over both the jurisprudence and the judica- 
 ture of his coimtry ; to detect the deficiencies of the one, and to 
 correct the excesses of the other. He is also to note his own mis- 
 calculations and failures, and to fill up the voids he has before 
 left, as said by the French juris-consults. Where there has been 
 an omission m an act, — or Avliere his intention has been miscon- 
 ceived, and the remedy, in consequence, carried too far, or not 
 given full effect to, he may supply desiderata, may state his own 
 meaning with greater precision, and guard, for the future, against 
 an application of the remedy more extensive than the intention. 
 But — poor and limited would be his sphere, were it confined to 
 these functions. The higher provmce and duty of the legislator, 
 is to exercise a surveillance over something more than the mere 
 judicature of the country, — over the objects, as well as the admin- 
 istration, of the laws, — over the history of man and the progress of 
 society. Silently but vigilantly is it incumbent upon him to watch 
 the spirit of the age, — the growth of feelings, — the development of 
 principles, — the changes of every kind produced by time, — the 
 demand for different laws to protect newly-created species of 
 property, — the instances in which society is found lamenting the 
 want of a law adapted to existing circumstances, — the cases in 
 which it is felt to be disturbed by laws utterly unsuitable, — the 
 retention of antiquated forms — or the infliction of unprofitable 
 severities. 
 
 These powers and duties, as explained by the English and 
 French theories, are under a system where the legislative power 
 is little short of absolute sovereign power. There, the powers ot 
 a judiciary, are tnily, in degree, under the surveillance of the 
 legislator. Cinder the American theory, the powers of the legis- 
 lature, are limited by written constitutions, beyond the bound of 
 which they may not pass, and it is conferred upon the com'ts of 
 justice to declare all legislation void, which is in excess of the
 
 AMERICAN THEORY. 315 
 
 fundamental Jaw. The complete independence of the courts of 
 justice, is the essential and peculiar feature in our system. The 
 limitations of legislative power, can be preserved in no other way 
 than through the medium of the courts of justice. It is, and must 
 be, the duty to declare void, all acts of the legislature which are 
 contrary to tlie manifest tenor of the constitution. "Without this, 
 aU the reservations of particular rights and privileges would amount 
 to nothing. 
 
 It has been charged, by those wIk^so minds are imbued with 
 the idea of, the perfection of the English and French sj'stems of 
 government, that tliis power of the courts in our system implies a 
 superiority of the judiciary to the legislative power ; that the 
 power to declare an act void, must necessarily be superior to the 
 power whose acts are declared void. Whatever may be the logic 
 of this proposition, practically, there is no superioiity of one co- 
 ordinate departniont of the government over another. 
 
 We have shown i:i a subsequent chapter, a that the sovereign 
 power of our governments, is distributed into three equal and 
 co-ordinate departments of power ; each distinct from, and inde- 
 pendent of the other, each having power to act, only, within pre- 
 scribed limits ; and each, being sovereign while exercising its own 
 powers within its proper si:)here, but each Limited in its power, by 
 the constitution. It follows fi-om this, that if the legislature pass 
 an act contrary to the constitution, such act is void. It would be 
 an imbecile and useless government, that did not possess the power 
 to control its several departments in the exercise of a conferred 
 and Umited power. " To deny these propositions, would be to 
 affirm, that' the deputy is greater than his principal ; and the 
 servant above his master ; that the representatives of the people 
 are superior to the people themselves ; that men actuig by virtue 
 of powers, may do, not only what their powers do not authorize, 
 but what they forbid.'7> 
 
 By no provision of the constitution, are the legislature the con- 
 stitutional judges of their oavu powers ; they cannot set up their 
 will, against the guaranteed rights of their constituents. It is far 
 more reasonable to suppose, that the judicial power was intended 
 to stand between the people and the legislature, in order to keep 
 
 a Chap. 10. b Federalist Letter, 78.
 
 316 AMERICAN THEORY. 
 
 the latter within the bounds assigned to them by the constitution. 
 The interpretation of the laws, is the peculiar pro^ince of the 
 courts. The constitution is, in fact, and must be, regarded by 
 judges, as fundamental hue. It therefore belongs to them, to ascer- 
 tain its meaning, as well as of any particular act proceeding from 
 a legislative body. If there should happen to be an irreconcilable 
 variance between the constitution, and the statute, that which has 
 the superior obhgation and validity, ought to be preferred to the 
 other ; the intention of the people, to the intention of theh agents, a 
 
 Nor does this conclusion by any means suppose a superiority of 
 the judicial to the legislative power. It only supposes that the 
 power of the people is superior to both ; and that where the will 
 of the legislature, declared iii its statutes, stands in opposition to 
 that of the people declared in the constitution, the judges ought 
 to be governed by the latter, rather than by that which is not fun- 
 damental. 
 
 This exercise of judicial discretion in determining between two 
 contradictory laws, is not an uncommon occurrence. Take the 
 case of two statutes existing at one time, clashing in whole or in 
 part with each other, and neither of them containing any repeal- 
 ing clause or expression. In such case, it is the conceded province 
 of the court to determine their meaning and ojseration. So far as 
 they can, by any fair construction be reconciled to each other, 
 reason and law consphe to dictate that this should be done ; when 
 that is impracticable, it becomes a matter of necessity, to give 
 effect to one, in exclusion of the other. The rale which has ob- 
 tained in the courts for determining their relative validity, is, that 
 the last in order of time, shall be preferred to the first. But this 
 is a mere rule of construction, not derived from any positive law, 
 but from the nature and reason of the thing. It is a rule not en- 
 joined upon the courts by legislative provision, but adopted by 
 themselves, as consonant to truth and propriety, for the direction 
 of theu' conduct as interpreters of the law. 
 
 It can be of no weight to say, that the courts, upon a pretense 
 of repugnancy, may substitute their own pleasure, for the consti 
 tutional intentions of the legislatm'e. This might as well happen 
 in the case of two contradictory statutes ; or, it might as well as 
 
 aid.
 
 POWER OF JURISPRUDENCE. 317 
 
 happen in every adjudication upon any single statute. The courts 
 ^nust declare tlie sense of the law ; and if they should be disposed 
 to exercise iciJI, instead of jwhjment, the consequence "would be 
 equally the substitution of their pleasure, to that of the legislative 
 l)()dy. The oltjection to tlie exercise of this jjower by the courts 
 of justice upon this ground, if it would prove anything, would 
 prove that there ought to be no judges, chstinct from that body, 
 or in other words, that the legislative body ought to possess also, 
 jucheial powers, a The powers, legislative and judicial, in the 
 same hands, with no check or control other than their own will, 
 might be pronounced the very best definition of tp-rany. 
 
 It is now comparatively rare that rules of universal and constant 
 operation are laid down l)y statutes. In former times, a simple, 
 general rule was enounced, Avith a corresponding simplicity of ex- 
 
 t)ression, and the praise of tin; ancient lawgiver was considered to 
 )e, in the words of Lord Coke, that " prudent antiquity included 
 much matter in few words." h But such statute law could not 
 maintain' an unbending character. Its harshness would have been 
 intolerable, if indiseriminating, general rules could not have been 
 mitigated by judicial construction, in cases where they produced 
 ;in luiintended injury or oppression. In those times, the unques- 
 tionable use and advantage of interpretative legislation was, that 
 it modified and adapted the law to special cases, and the sages of 
 the law are accordingly and justly commended for the improve- 
 ments they by these means efiected in the institutions of the 
 country. 
 
 No intelhgent man will deny that, with us, the laws have, in a 
 succession of ages, been gradually adapted to the free institutions 
 of the coimtr}'. Beyond all question, we are extensively mdebted 
 to the liberality of the judges, for much of the regulated freedom 
 we at present enjoy. 
 
 Again, no reflecting man can fail to perceive that there has been 
 the gi'eater facihty in making this adaptation, in so far as our laws 
 were unwritten, or part-wiitten, and therefore, in a certain sense, 
 unascertained. So far, good has unquestionably resulted fi'om our 
 laws being in an unsettled state, and propounded in generalities. 
 From not bemg more formally prescribed, the laws were less cer- 
 tain — fi-om being less certam, they admitted of being rendered 
 more complete. 
 
 It is the character of modern legislation, that it applies itself to 
 j:)articular cases, and classes of cases, and endeavors to adjust the 
 law to their varieties, and to determine specifically every kind of 
 right and every corresponding obligation. It is not easy to esti- 
 
 ald. hi Inst. 306— id. 401.
 
 318 POWER OF JUEISrEUDENOE. 
 
 mate the practical importance of specific legislation, in adjusting 
 our law to the various interests of the communit}'. But one of 
 its eliects has certainly been to put an end to verbal generahties 
 in propounding the law, though the draftsman may not invariably 
 succeed in his endeavor to supply its place with aptness and cer- 
 tainty of expression ; and often indulges in too much veibiage. 
 But ahumhnis cautcJa non vocef, and to this period belongs the 
 ditierent praise of that wisdom " which aims to make things as 
 plain, and to leave as little to construction as may be." a 
 
 Where the law was only part- written, it was left to the judges 
 to adjust the hiAv to special cases and to supply every deficiency 
 by construction. 
 
 But, where the law is specifically prescribed and promulgated 
 as the declared will of the supreme power in the state, the case is 
 wholh" ditierent. Supposing the written law to require change or 
 modification, it will hardly admit a C[uestion, whether such alter- 
 ation is to be efiected in a direct maimer, by the superior power 
 that originally created the law, or indirectl}', by the subordinate 
 authority employed to give it efiect, and put it in operation; and 
 if a doubt could exist upon the subject of the comparative com- 
 petency and fitness of the legislature, and of the judicature of the 
 country, to correct its laAvs, recourse should in preference be had 
 to the legislature. For the legislature usually founds its regula- 
 tions upon general principles; Courts of law — and of equity — 
 frequently refine upon individual cases. 
 
 Their difierent functions have been thus illustrated. The law- 
 giver commands that housebreakers shall be hanged ; the judge 
 orders that for a specific burglary, a particular thief shall be 
 hanged. The legislator determines a class and description of 
 acts ; and commands, with a like generahty, that punishment shall 
 follow. The judge orders a specific punishment, the consequence 
 of a specific oflence. 
 
 1st. Laws are made directly by statute, in the properly legisla- 
 tive way. 
 
 2ndly. Laws are made judicially, in the way of improper legis- 
 lation. 
 
 Of this latter class, admitted and unexceptionable instances are 
 — 1. Laws fashioned by judicial decisions upon pre-existing cus- 
 toms ; "Jus morihus const it uf urn." 2. Laws founded upon author- 
 ity of learned writers and ancient sages of the law ; "Jus pruden- 
 tibus compositam." 3. Laws drawn from the natural law, founded 
 on the law of God. 4. Laws of foreign original, fashioned on 
 positive international law ; the "Jus Teceptum.'' 
 
 The positive law made judicially, is equally binding with the 
 law made in the properly legislative manner. Considered as moral 
 rules turned into 2:)ositive laws, customary laws are binding as 
 
 a 2 Inst. 37o.
 
 LEGISL-VnON AND JUEISPRUDENCE. 319 
 
 establislied by the state : establisliecl by the state directly, -when 
 the customs are ])romu]ged in its statutes; estabhshed by the 
 state circuitousl^', Avhcu the customs are adopted by its tribunals, a 
 
 A portion of the sovereign jjowcr is tacitly delegated to the 
 judge; though a sul)jcct, the judge is, in strictni;ss, merely a minis- 
 ter. ISinc e the state may reverse the rules Avliich he makes, and yet 
 permits him to enforce them by the power of the political com- 
 nuinit}', its sovereign Avill " that his rules shall obtain as law," is 
 clearly evinced by its conduct, though not by its express declara- 
 tion. This is the explanation given, h why subject judges, who 
 are properly ministei's and administrators of the law, have com- 
 monly shared with the sovereigns in the Ijusiness of making it. 
 
 But in a great variety of cases, as will be hereafter shown, the 
 invasion by the judges, of the province of the legislature, has 
 been quite unjustiliable. Yet, if in modem times, complaints be 
 justly made of alterations in the laws eti'ected by equitable inter- 
 ference, or by judicial usurpation, it is ascribable to the remisness 
 of the legislature, which should long since have provided for a 
 revision of our statute law. 
 
 Tlie truth is, that the legislature, and not the courts, should be 
 driven to comply with the necessities of mankind. But this, un- 
 fortunately, has not been the ]iractice. AVhen rules of law have 
 been found to work injustice, they have been evaded, instead of 
 l)eing repealed. Obsolete or unsuitable laws, instead of being re- 
 moved from the statute book, have been made to bend to modera 
 iisages and feelings. Instead of the legislature framing new pro- 
 visit)ns, as occasions has required, it has been left to able judges 
 to invade its province, and to aiTOgate to themselves the lofty 
 jaivilege 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 enactment. 
 
 Much of the evil just described, is no doubt attributable to the 
 supineness of the legislature, — something to the narrowness of the 
 rules of the common law, — but the principal share, to the want of 
 a proper understanding at what point interpretation ought to end, 
 and legislation should begin, c Let the discriminating reader look 
 at Burke's elocpent panegyric upon Lord Mansfield, and then ask 
 himself soberly — whether every improvement the orator ascribes 
 to the Judge, however unquestionable meritorious, is not within 
 the province, and ought not to have been eftected by the inter- 
 vention of the legislature ? " He sought," it is said, " to efl'ect 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 circumscriptions, but conforming its prm- 
 ciples to the growth of oiu' connuerce and our empire." 
 
 a Anstin ou Jurisprudence, 29. h Id. ad fin. c Butler's Eeuiiuis. vol. 1.
 
 o20 ENGLISH, FFiENCH .VKD AMERICAN JURISPRUDENCE. 
 
 It is Dot in the examination and solution of constitutional ques- 
 tions alone, that great abilities, and a thorough mastery of the 
 principles of government, are required of American legislators and 
 American jurists. The ordinary course of legislation, in the state 
 and national councils, is full of intricate and perplexmg duties, 
 and laborious research, if intelligently and appropriately per- 
 foiTued. It is not every man, that can make an animated address 
 at a popular meeting or run through the common places of party 
 declamation at a political caucus with fluent elocution and 
 steady pressure, who is quahfied for a seat in the national, or in 
 the state legislatures, or, ujjon the judicial bench, a 
 
 All history and experience have taught us, that the great mass 
 of human calamities in our own period of experiment in govern- 
 ment, as in all ages, has been the result of bad government ; of a 
 capricious exercise of power ; a flu/ctuating public policy; or a de- 
 grading tyranny in which a portion of its subjects have been held 
 in unequal bondage, through the means of a desolating ambition. 
 The besetting delusion in a popular form of government, especi- 
 ally when controlled by men unlearned, and unskilled in the 
 science of government, is, that its administration is a matter of 
 gi-eat simphcity ; that its principles are clear, and that they, its 
 agents, are hardly liable to mistakes, and they easy satisfy them- 
 selves, that it is a satisfactory method of winning popular favor 
 by appeals which flatter popular prejudices; and that designs, 
 which they are thus enabled to accomplish by being sustamed by 
 such e\'ideuce of approbation of their agency, is regarded as sat- 
 isfactory evidence also of capacity. 
 
 But in truth, an intelligent and unprejudiced mind, ripe with 
 human experience, may safely assert, that just in proportion as a 
 government is free, and extended over a vast and populous 
 domain of diversified habits, manners, institutions, climates, em- 
 ployments, characters, passions, and even prejudices and propen- 
 sities, so in proportion the administration must be complicated. 
 Simplicit}^ belongs to governments only, where one will governs 
 all ; where one mind directs, and all others obey ; where few 
 arrangements are required, because no checks to power are allowed; 
 where law is not a science, but a mandate to be followed, and not 
 
 a Story on the Science of Government.
 
 ENGLISH, FRENCH AND AMERICAN JURISPRUDENCE. 321 
 
 to be discussed ; wliere it is not a rule for permanent action, but 
 a capricious and arbitrary dictate of the hour, a 
 
 To fit a man for a lcgishit(jr to enact laws in a soimd system of 
 free government, Ave may adopt the opinion of Lord Brougham. 
 "It requires that he should read and inform himself uponpoUtical 
 subjects ; else they are the prey of every (juack, of every imposter, 
 every agitator, -who ma}' practice his trade m the country. If he 
 do not read, if he does not learn, if he does not digest by discus- 
 sion and reflection what he has read and learned ; if he does not 
 qualify himself to form opinions for himself, other men will form 
 opinions for him ; not according to the truth, and the interests of 
 the people, but according to their own individual and selfish in- 
 terest, which may, and most probably Avill be contrary to that of 
 the people at large. The best security for a government like ours, 
 (a free government,) and generally for the public peace, and pub- 
 lic morals, is, that the whole conuuunity should be well informed 
 upon its poHtical as Avell as its otl^er interests." 
 
 The principles of the constitution under which we live, and 
 under which our legislators are called to act in the enactment of 
 laws ; the principles ujion which the republics are founded ; by 
 which they are sustained, and by which they must be saved ; the 
 principles of pubhc policy by which the national prosperity is 
 secured, and national ruin averted ; are not party credit, or party 
 dogma's ; but are principles inherent in, or fundamental to every 
 citizen of the government. There are no secular blessings in 
 human hfe of more mestimable value, than those derived from 
 good government, where honest labor has its just reward, property 
 its perfect security ; domestic life undisturbed tranquility ; and 
 every citizen, without regard to rank, color or condition, an equal 
 right to the enjo3'ment of liberty. These are rights secured by 
 the constitution and made perfect by legislation. 
 
 As to the assumptions of juiisdiction by the court of chancery, 
 it will be more satisfactory to rest \\\\o\\ the admissions of its orna- 
 ment, as well as apologist, Lord Hardwicke ; than to refer to the 
 . opinion of Mr. Humjihreys, its less ardent admirer, that " its acts 
 have been rather legislative than judicial." h 
 
 Whatever may be regarded as the distinct and certain origin of 
 
 a Id. 6 Humphrey's Observations on the Laws of Eeal Proiierty, tto. 
 
 41
 
 322 ENGLISH, TEENCH AKD AMEEICAN JURISPRUDENCE. 
 
 tlie Coiu't of Cliancerj in Englandj it was seldom resorted to, ■until 
 the passage of two noted statutes, tlie statutes of wills, and uses, 
 in the reign of Henry YIII, and after these, the statute of chari- 
 table uses, in the reign of Queen Elizabeth. These, together, says 
 Mr. Justice Story, a "laid the foundation of that broad and com- 
 prehensive judicatui'e, in "which equity administers through its 
 searching interrogations addressed to the consciences of men, the 
 most beneficent and wholesome j^rinciples of justice. The whole 
 modern stnicture of trusts, infinitely diversified as it is by marriage 
 settlements, terms to raise portions to pay debts, contingent and 
 springing appointments, resulting uses, and imphed trusts, grew 
 out of this last named statute, and the constructions put upon it." 
 
 Under the guidance of Lord Bacon, the business of chancery 
 assumed a regular course ; and at the distance of two centuries, 
 his celebrated ordinances continue to be the pole star which 
 directed, and still directs the course of courts of equity. At a 
 later day, the doctrines of the courts of equity attained a still 
 higher degree of perfection. Lord Nottmgham brought to that 
 hranch of jurisprudence, a strong and cultivated mind, and pro- 
 nounced his decrees after the most cautious and painstaking 
 study. Lord Cowper, and Lord Talbot, pursued the same course 
 with the genuine spirit of jurists. But, in England, it was reserved 
 for Lord Hardwicke, by his deep learning and extensive researches 
 and his powerful genius, to combine the scattered fragments into 
 a scientific system ; to define with a broader line the boundaries 
 between the departments of the common law and chancery ; and 
 to give certainty and vigor to the j)rincij)les, as well as the juris- 
 diction, of the latter. Henceforth, equity began to acquire the 
 same exactness as the common law. At a still later period, we 
 have seen in the labors of Lord Eldon through a series of more 
 than twenty-five volumes of reports, a dihgence, sagacity, caution 
 and force of judgment, which have seldom been equalled ; and 
 which gave dignity as well as finish to that great moral macliinery 
 which administered the rules and doctrines of conscience ex aequo 
 et bono." 
 
 But we may take pride in saying, that no higher degi-ee of per- 
 fection in tlie system of equitable jurisprudence was ever attained 
 
 a Story's Progress of Jurisprudence.
 
 ENGLISH, FPiENCII AND AJIEIJICAN JURISrRUDENCE. 323 
 
 in Englaiitl, nor its adniinistnition conducted with a higher degree 
 of credit for learning and research, than is to be found in the re- 
 [)orted adjudications of Kent and "Walworth, -whoso repoiied 
 opinions and decrees are found moulded into a degree of moral 
 beauty and perfection -which their English predecessors have not 
 surpassed, or been exceeded by the learned treatises upon equit- 
 able jurisprudence of Justice Story. 
 
 " Ne-\v discoveries and inventions in commerce," says Lord 
 llardwicke, 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 common law had adapted no remedies ; 
 and from this cause, courts of equity, which admit of a greater 
 latitude, have, imder the head acljiu-andi, vel si(pp(cndi juris ciuilis, 
 been obhged to accommodate the wants of mankind." 
 
 " Another source of the increase of business in the courts of 
 equity has been, the nniltiplication and extension of trusts. New 
 methods of settling and incuudjering landed in-oi:)erty have been 
 suggested by the necessities, extravagance, or real occasions of 
 mankind. But what is more than this, new species of property 
 have been introduced, joarticularly by the establishment of the 
 public fimds, and various transferable stocks, that requu-ed to be 
 modified and settled to answer the exigencies of families, to which 
 the rrdes and methods of conveyancing would not ply or bend. 
 Here the liberahty of courts of equity has been forced to step m 
 and lend her aid." 
 
 In comparing the present state of jurisprudence in this country', 
 with that of a former day in England, Ave have much reason for 
 congratulation. In arbitrary', and desj)otic governments, the laws 
 rarely undergo any considerable changes through a long series of 
 years. In free governments, and in those where the popular in- 
 terests have obtained some representation or power, however 
 limited, the case has been far otherwise. "We can here trace a 
 regular progi'ess in the laws from }ear to year, and a gradual 
 adaptation of them to the wants, employments, and improved con- 
 dition of man under a fi-ee government, corresponding to their ad- 
 vancement with arts, in the sciences, in inteUigencc, and in the 
 refinements and elegancies of life. As the citizen is made to feel 
 his independence, dignity, and responsibility as a portion of the 
 sovereign power ; as civilization advances, and he becomes edu- 
 cated in the knowledge of his rights, and is called in to assist in the
 
 324 ENGLISH, FEENCH AND AMERICAN JURISPRUDENCE. 
 
 formatiou of the governiueut of liis choice ; we find him engaging 
 himself in acloptmg a system of fundamental law, in which, the 
 judicial powers are separated from the executive and legislative 
 authorities ; and men are selected for judicial positions, whose sole 
 duty it is, to administer justice, and correct abuses. " The pun- 
 ishment of crimes, at first arbitrary, is found gradually moulded 
 into a system, and moderated in its severity ; and property, which 
 in other countries is inherited under a law of primogeniture, with 
 a permanancy of tenure, becomes here, transmissable in equal 
 portions to the descendants of those whose enterprise, or good 
 fortune, has accumulated it." a 
 
 We know from the history of the times, that before the revolu- 
 tion, while our system of jurisprudence was substantially that of 
 the mother country, our progress in the law was slow, though not 
 slower, perhaps, than in other departments of science; the re- 
 sources of the country were small, the population sparce and 
 scattered, the business of the courts limited, the compensation for 
 professional services moderate, and the judges not always selected 
 from those learned in the law. Our colonial condition restrained 
 our foreign commerce ; the principal trade was to, or through the 
 mother country, and our most important contracts began or ended 
 there. While there were learned men in the profession, their 
 number was small ; and from the nature of the business which 
 occupied the courts, the knowledge required for common use, was 
 neither very ample, nor very difiicult. 
 
 Since the war of independence, the progress of jurispnldence in 
 this country has been most rapid, keeping equal pace with the 
 progress of population, and to the advance in all the arts and 
 knowledge that now characterize its peo2:)le. With a union of 
 thirty-six independent states, now, and two or more territories, 
 now waiting for admission as states, in nearl}^ all of which, the 
 same compion law, substantially is the acknowledged basis of their 
 jurisprudence, and upon wliich, their statutes, part of their juris- 
 pnldence, are enacted ; we find, notwithstanding the differences of 
 habits, of chmate, nationalities, peculiarities, local customs and 
 judicial determinations, a far greater degree of uniformity in the 
 law and its administration, than could have been expected. The 
 
 a Story on Jurisprudeuce.
 
 ENGLISH, FRENCH AND AMERICAN JURISPRUDENCE. 325 
 
 task liowever, of administering justice for tlio cunscs above men- 
 tioned, in the state and national courts, owing to the somewhat 
 complex system of national and state jurisdictions, is both laborious 
 and perplexing, owing to the almost unavoidable consequence of 
 their peculiar relations to each othe)-, — and of course, one of the 
 most common cmbarrasments, arises from the conflict of rival 
 jurisdictions. 
 
 The most delicate, and at the same time, the proudest attribute 
 of American jurisprudence, is the right of its judicial triliunals to 
 decide questions of constitutional law. In England, the legislative 
 authority is practically omnipotent; the judicial power cannot 
 reach them. Here, says Judge Story, " the privilege of bringing 
 every law^ to the test of the constitution, belongs to the humblest 
 citizen, who owes no obedience to any legislative act which tran- 
 scends the constitutional limits." However nnicli, at an curliir 
 day, the sympathies of those learned in the English system, may 
 have led them to question this doctrine, their views have been 
 yielded, and at this day, the question is no longer mooted in the 
 courts. The wise and the learned, and the virtuous, are unanim- 
 ous in sustaining the doctrine which the courts of justice have 
 unifomily asserted ; that the constitution, is not only the law for 
 the legislature, but is the law, and the supreme law% which is to 
 direct and control all judicial proceedings. 
 
 " The discussion of constitutional questions," says judge Story, 
 " throws a lustre round the bar, and gives dignity to its functions, 
 wliich can rarely belong to the profession in any other country. 
 Lawyers are here emphatically placed as sentinels upon the out- 
 posts of the constitution ; and no nobler end can be proposed for 
 their ambition or i^atriotism, than to stand as faithful guardians 
 of the constitution, ready to defend its legitimate powers, and to 
 stay the arm of legislative, executive or popular oppression. If 
 their eloquence can charm, when it vindicates the innocent and 
 the suffering under private WTongs ; if their learning and genius 
 can, with almost superhuman witchery, unfold the mazes and ui- 
 tricacies by w^hich the minute links of title are chained to the 
 adamantine pillars of the law ; — how much more glory belongs to 
 them, when this eloquence, this learning, and this genius, are em- 
 ployed in defence of their country ; when they breathe foiili the
 
 32G ENGLISH, FRENCPI AND AMEMCAN JURISPRUDENCE. 
 
 purest spirit of morality and viriue in support of the rights of 
 mankind ; -vvlieu they expoimd the lofty doctrmes which sustain, 
 and connect, and guide the destinies of nations; "when they com- 
 bat popular delusions at the expense of fame, and friendship, and 
 political honors ; when they triumph by arresting the progress of 
 en'or and the march of power, and drive back the torrent that 
 threatens destruction equally to pubhc Hberty and to private prop- 
 erty ; to all that dehghts us in private life, and all that gives grace 
 and authority in pubhc office." 
 
 " This is a subject, wdiich cannot too deeply engage the most 
 solemn reflections of the profession. Our danger lies in the 
 facility, with wliich, under the popular cast of our institutions, 
 lioncst but visionary legislators and artful leaders may approach 
 to sap the foundations of our government. Other nations have 
 the security against sudden changes, good or bad, in the habits 
 of the people, or in the nature of their institutions. They have 
 a monarchy gifted with high prerogatives ; or a nobility graced 
 with wealth and knowledge and hereditary honors ; or a stubborn 
 national spirit, proud of ancient institutions, and obstinate against 
 aH reforms. These are obstacles, which resist the progress even 
 of salutary changes ; and ages sometimes elapse before such reforms 
 are introduced, and yet more ages before they are sanctioned by 
 public reverence. The youthful vigor of our constitutions of gov- 
 ernment, and the strong encouragements, held out to free cUscus- 
 sion, to new inquiries and experiments, expose us to the opposite 
 inconvenience of too little regard for Avhat is estabhshed, and -too 
 warm a zeal for untried theories. This is our weak point of de- 
 fence; and it will always be assailed by those who pant forj)ubhc 
 favor, and hope for advancement in political struggles." 
 
 Under the pressure of temporary evils, or the misguided im- 
 pulses of party, or plausible alarm for public liberty, it is not dif- 
 ficult to persuade ours-elves, tliat what is established is wrong ; 
 that what bounds the popular wishes is oppressive ; and that what 
 is untried, wdU give permanent relief and safety. Frame consti- 
 tutions of government with what wisdom and foresight we may, 
 they must be imperfect, and leave something to discretion, and 
 much to public virtue. It is m vain that we insert bills of rights 
 in our constitutions, as checks upon legislative power, unless there
 
 ENGLISH, FRENCH AND AMERICAN JUELSrEUDENCE. 327 
 
 be firmness in courts, in the hour of tiial, to resist the fashionable 
 opinions of the day. The judiciary in itself, has little power, ex- 
 cept that of protection for others. It operates mainly by an 
 appeal to the understandhigs of the wise and the good ; and its 
 chief support, is the integrity and independence of an enhghtened 
 bar. 
 
 AVhile our judges remain fearless and hrm iu the discharge of 
 their functions, corrupt and popular leaders at the bar cannot 
 possess a wide range of oppression, but must stand rebuked in 
 their career for power. But it requires no uncommon .spirit of 
 prophecy to foresee, that whenever the hberties of this country are 
 to be destroyed, it will be when public opinion shall be l(5st in the 
 integiity of the ju(hciary ; Avhen the conspiracy shall be bold 
 enough to cori-upt, and judges be found so Avauting in character as 
 to consent to be corrupted ; then shall we see the courts of justice 
 brought into public odium ; and thus shall be seen removed, the 
 last baniers between the people and despotism. 
 
 Thus it appears, that these objects, rendered necessary by a 
 change of circumstances, have been effected by equitable inter- 
 ference,— that is, in truth, l)y judicial refinement, and not by the 
 seasonable enactment of salutary laws. Instead of the encroach- 
 ment upon the common law, of which Bacon was apprehensive, 
 it seems that the Pnctorian courts -' overflowed their banks in an 
 opposite direction, and, while sparing of injimctions, openly in- 
 vaded the province of the Legislature. Upon a careful investiga- 
 tion of the coui'se actually pursued, it will be found that, in gen- 
 eral, inconvenient laws were set aside, and required changes were 
 effected, by the use of technical fictions, and contrivances to evade 
 inconsistent rules ; and if there have been a lamentable want of 
 poUtic institution, there has been thought to have been also, at 
 times, some defect of jutlicial princi})le. Mr. Butler is decidedly 
 of opinion, as regards the ascertaining and obtaining the proper 
 boundary of intei-pretation and legislation, that the French courts 
 of justice have shown gi'eater moderation than oui' own, in the 
 exercise of this important branch of judicature, a It certainly is 
 a remarkable fact, that the jurisdiction or methods of proceeding 
 in all our superior courts, will bo discovered, on inquiry, to be 
 founded iu usurpation, and sustained by fiction. 
 
 a Kemiuis. vol. 1. 
 
 * " Maxime omnium interest certitudinis legnm, iie curi;T> pr.ttoriae iutumcscant 
 et exundent iu tantum, ut proetextu rigoris legum mitigandi, etiam roher et uervos 
 lis incidantaut laxent, omnia trahendo ad arbitrium." — Ay-hr.r',-:rii. 43.
 
 328 ENGLISH, FEENCH AND AMEEICAN JriHSPEUDENCE. 
 
 The jurisdiction of the court of King's Bench m civil actions, 
 was notoriously acquired by contrivance, the court of common 
 pleas having had, in former times, the exclusive cognizance of all 
 .--uits merely civil, that is to say, which had nothing in the pro- 
 ceedings of a criminal nature, inasmuch as neither trespass nor 
 violence were imputed to the defendant. But by a fiction of law, 
 fill persons alleged to be ])risoners, in the custody of the Marshal 
 of the Marshalsea, though not actually being so, were held, as 
 such, Hable to be sued in any personal action, by bill filed in the 
 court of king's bench. 
 
 The court of common pleas always had a direct jurisdiction in 
 civil suits ; but " rcgularh'," says Lord Coke, " the court cannot 
 hold any common pleas in any action, real, personal, or mixed, 
 but by Avrit out of the chancery, and returnable in this court, a 
 (except b}' the privilege of its officers.)" Yet without setting out 
 an}' original writ, the common capias proceeded upon the founda- 
 tion of such supposed previous proceedmg. 
 
 The peculiar juj-isdiction of the court of exchequer at common 
 law, related to matter concerning the king's revenue ; " the effec- 
 tual description of the jurisdiction of the court being," says Lord 
 Coke, h " that it is for the profit of the king." Hence, it was early 
 established, that any person being a debtor or accountant of the 
 cro-UTi, might sue in the exchequer either at equity or at law, to 
 obtain a light, the mthholding of which rendered him less able to 
 satisfy liis debt to the crown. 
 
 It has been already seen, of what handles the court of chancery 
 availed itself, and by wdiat means it was enabled to assume a juris- 
 diction over real property, greatly more extensive than was ever 
 possessed by the common law courts. 
 
 Upon the subject of legal fictions, (the mstrument by which all 
 these usurpations were affected,) the follov/ing judicious remarks 
 were made by the intelligent persons appointed to inquire into the 
 practice and proceedings of the superior courts of common law. 
 The obseiTations of the learned commissioners are so well founded, 
 acute, and sensible, and so apt to the present purpose of this work, 
 that no hesitation can be felt in citing and adopting them verbatim, 
 as they occur in their first report, c " Our ancient institutions 
 having been adapted to a rude and simple state of society, the 
 courts, in later times, gradually became sensible of defects of juris- 
 diction and other inconveniences, to which the altered cu'cum- 
 stances of the nation had naturally given rise. In some cases the 
 remedy was supplied by legislative regulations ; but where this 
 was wanting, the judges were apt to resort to fiction, as an expe- 
 dient for effecting indirectly, that which they had no authority to 
 estabUsh by law. But to whatever causes the invention or en- 
 
 o 4 Inst. 99. c First Common Law Report, p. 82. 
 
 h 4 Inst. 112.
 
 ENGLISH, FKENCH AND AMERICAN JURISPRUDENCE. 329 
 
 couragement of legal fictions may be assignaljle, avc have no doubt 
 that they have an injurious effect in the atlniinistration of justice, 
 because they tend to bring tlie law itself into suspicion with the 
 public, as an unsound and delusive system ; wliile an impression 
 of the ridiculous is idso occasionally excited by them, of which tlie 
 natural effect must be to degi'ade the science ui some measure, in 
 p()])ular estimation." 
 
 The same observations apply to other cases: — to what has been 
 termed the "clumsy" fiction of a lost grant in the case of an ease- 
 m6nt; — to judges presuming an act of pa}iiament ; — to directions 
 to juries to presume the surrender of a term or something else ab- 
 solutely contrary to the fact, in lien of altering an inconvenient 
 law by dii'eet legislative enactment ; a in short to all instances of 
 ingenuity employed in contrivances to evade a law that requires 
 to be altered. 
 
 It only remains to be stated, tliat there has not been any 
 marked reciprocity of usurpation. The case of bills and attainder 
 and bills of pains and penalties is the only familiar mstance of the 
 legislature quitting its proper province, and superseding the judi- 
 cial functions. 
 
 a First Eeport of Eeal Property Commissioners. 
 
 42
 
 330 SOVEREIGN rOWER. 
 
 CHAPTER X. 
 
 OF AaiEKICAN CONSTITUTIONAL POWER. ITS LIMITATIONS; ITS DIS- 
 TRIBUTION OF THE SOVEREIGN TOWER TO THREE DEPART- 
 ]MENTS; THE INDEPENDENCE OF EACH DEPARTMENT OF THE 
 OTHER. THE FUNCTIONS OF EACH DEPARTMENT IN THE AD- 
 JHNISTRATION OF THE LAW. 
 
 In the preceding cliapter, was eousidered, the natui-e and ex- 
 tent of legislative power independent of any restriction, contained 
 in the written constitutions of the nation or state. In this, we 
 propose to show some of the limitations of legislative power ; and 
 this seems to demand, that we show what constitutes the law- 
 making power in a free, repubhcan fomi of government ; and how 
 this power is organized under our system of written constitutions, 
 with its limitations and restrictions, into several departments ; and 
 the separate j^owers and duties of each department. 
 
 This law making power, as our author has remarked, in a]l 
 civiHzed governments, is usually, vested in the sovereign power of 
 the state. By sovereign power, is usually meant, unhmited and 
 uncontrolled power. This, seems to have been the opinion of 
 almost all the ancient wTiters, that in whatever department of the 
 government this power was lodged, it was regarded as absolute, 
 and beyond control ; that it must, absolutely, be possessed by 
 some one department of government ; and that the person or power 
 in whom this sovereignty resides, is the supreme power in the 
 making and promulgation of laws ; and this, is usually called the 
 legislative power, a 
 
 These opinions, however, are chiefly confined to, and are the 
 reasonings of the ethical and juridicial writers of Eurojic, among 
 whom no uniformity of opinion really exists. Burlimaqui says', 
 " that this sovereign power is supreme and independent, and when 
 once established, it acknowledges no other uj)on earth superior or 
 equal to it." h " That among the essential parts of sovereignty, the 
 
 a Paley's Mor. Philos., 2 part 185. b Prin. of PoL Law, Pt. 1, Ch. 6.
 
 SOVEREIGN POWER. 331 
 
 lirst rank is given to the legislative power." a He however admits 
 that God alone, by reason of His nature and perfections, has a 
 natural, essential, and inherent right of giving laws to mankind 
 and of exercising an absolute sovereignity over them, h That 
 human sovereigns are God's vicegerents on earth, which means, 
 that, by the power lodged in their hands, and witli which the 
 people have mvested them, they maintain, agi'ceably to the views 
 of the Deity, both order and peace, and thus procure the feUcity 
 of mankind ; and he quotes a passage from Cicero, to this pur- 
 pose, viz : " Nothing is more agreeable to the Supreme Deity, that 
 governs this universe, than civil societies lawfully estabhshed." 
 
 We do not propose in this work to fully discuss the diversities 
 of theoiy upon the question of sovereignty, except in American 
 governments ; to show where this power resides ; to trace it to its 
 origin ; to exhibit its power in the European governments as it is 
 claimed by the various writers on this subject; or to compare tlieir 
 various theories for the purpose of drawing any conclusion tliere- 
 h'om. As it is understood to tlie ordinary mind, sovereignty is 
 that public authority, which has no superior ; it is the power to do 
 any thing and every thing m a State, without being accountable to 
 ' any one ; to make laws and to execute them ; it is that power which 
 commands in organized civil society, and which orders and directs 
 what each must do, to acquire its ends. With us, it is a union of 
 all the powers of the state. Abstractedly considered, it belongs 
 to the people, and resides, essentially in the body of the nation, 
 but with us, the nation, by the people, now exercise this power by 
 delegation. To the curious who may deshe to investigate ; to the 
 student of history who may desire to make research ; to the poh- 
 tician who may desire to learn and to compare the powers of dif- 
 ferent governments, and to the philosopher who seeks the pro- 
 foundest soiu'ces of knowledge upon the science of governments, 
 with all its incidents, we commend the theories of such juridicial 
 writers as Grotius, Puffendorf, Burlimaqui, Coke, Blackstone, Do- 
 mat, Locke, Burke, Christian, Wooddeson, and others of gi'eater 
 or less note. 
 
 It will bo our object, to present in this treatise, the American 
 idea of the powers of legislation ; and to show how far the exercise 
 
 aid. Pt. 3, Ch. 1. 5 Id.
 
 332 SOVEREIGN rOWEE. 
 
 of sovereign autlioiity is vested iu our legislative bodies, only so 
 far as is practically necessary to present the controlling force and 
 authority of our own statutes. 
 
 Sovereignty, it is true, in our own, as well as in all other civUized 
 governments imports the supreme, absolute, uncontrollable power 
 by which any state is governed, a but sovereignty, in our republican 
 fonn of government, is not vested alone in the law-making power. 
 
 It is not true therefore, in our form of government, as is laid 
 down in the philosophy of ,Paley, that the sovereign power is 
 necessarily lodged in one separate and distinct department of gov- 
 ernment where it remains absolute and uncontrolled ; 6 nor accord- 
 ing to the theory of Burhmaqui, that when its seat is ascertained, 
 it possesses the power to judge in the last resort of whatever is 
 susceptible of human direction which relates to the welfare and 
 advantage of society ; and that in this respect it acknowledges no 
 superior or equal. These, and many others of the ancient writers 
 upon this subject, based their opinions upon the assumption, that 
 princes ruled by a riglit Divine, confen-ed by the immediate act of 
 the Deity. But even this tlieoiy, has been exploded by the gov- 
 ernment of Great Britain, and most of the EngUsh writers now 
 claim that the parliament of England, possesses the attribute cf 
 poHtical, legal and moral omnipotence, c 
 
 By the theory of our government, the primary, as w'ell as the 
 ultimate sovereignty in human affairs, is in the people, from 
 ■whom, aU legitimate civil authority springs. Tliis is applicable 
 not only to the Kational, but to the State governments. In the 
 international sense, the word State, is applicable only to the federal 
 government, but as between the sovereign members of the Amer- 
 ican union, the word Nation is used as applying to the federal, and 
 State, ^ as applicable to the several component members. 
 
 a story on Const., § 207. b Paley's Mor. Pbilos., Pt. 2, p. 185. 
 
 c 1 Black com. IGO, 4.08; 8 Co. 118, Bac. Abr., stat. A. 
 
 Note 1. — In a republic, the sovereignty resides in the great body of the people, 
 not as so many distinct individuals, but in their politic capacity. Penballow v. 
 Doane, 3 Dallas 93. The sovereignty of the United States, and of the several 
 states, are distinct and independent of each other •within their respective spheres 
 ©faction; though both exist within the same territorial limits. Ableman v. 
 Booth, 21, How. 50G. They retain in severalty, a distinct but qualified sover- 
 eignty. Hubbard v. N. Eailroad Co., 3 Blatch, C. C. 84.
 
 SOVEREIGN POWER. 333 
 
 "Wlien the people of the Uuitecl States instituted civil govern- 
 ment, they constituted it one federal nation. They declared in 
 their in-camblo to the constitution, as follows : " "We, the people 
 of the United States, in order to form a more perfect union, estab- 
 lish justice, insure domestic tranquility, provide for the common 
 defence, promote the common Avclfarc, and secure the blessings of 
 liberty to ourselves and our posterity, iJo ordain and eslahUsJi this 
 Constitution of the United States of America." 
 
 The national government thus created by the voice of the 
 people, became a national body politic and corporate, invested 
 with supreme authority for national pui-poses, with power to ex- 
 ercise all such authority as was expressly or impliedly committed 
 to its jurisdiction by the constitution. 
 
 It is the logical and necessary result, that the powers of a gov- 
 ernment estabhshed upon republican principles, and upon an ex- 
 press compact, like this, (if it may be called such,) that the extent 
 and nature of its powders must be determined by the terms of the 
 instrument itself. Within the confeiTcd lunits, the government 
 must still be sovereign, and must exercise its sovereign power for 
 national purposes, and must distribute to its various departments, 
 their appropriate duties with power to exercise them. 
 
 " By this constitution of the United States, supreme legislative, 
 judicial, and executive powers of the government are created, 
 each distinct fi'om, and independent of the other ; each entrusted 
 with a portion of the sovereign authority within the sphere of its 
 prescribed duties and powers." a 
 
 " It must have sovereign authority, within the prescribed limits, 
 to enact all laws necessaiy for the government of the society com- 
 posing the nation ; " and this power was therein conferred. - 
 
 By this analysis, we find this delegated authority thus con- 
 ferred, distributed into three departments of power, and each m- 
 dependent of the other, viz : the legislative, the judiciary, and the 
 cxecidive. 
 
 The first, is the power to make new laws, and to correct, repeal 
 
 a Tifl'any's Araerican Theory, 62. 
 
 XoTE 2. — "All legislative powers herein granted shall be vested in a congress 
 of the United States, which shall consist of a Senate and House of Kepresent' 
 atives." Const. U. S., Art. 1, Sec. 1.
 
 33-i SOYEREIGN TOILER. 
 
 or abrogate tlio old. The second, is tlic poAver to apply the law 
 to particular facts ; to judge of differences wliicli may arise among 
 citizens or inhabitants of the state, and to punish crimes. This 
 Xwwer is vested in courts of justice. The third, is the power to 
 cause the laws to be executed. This power is exercised by a single 
 individual as President, or Governor. 
 
 So too, " a government thus composed must have supreme 
 authority to interpret and apply those laws to the rights of every 
 individual and subject within its jurisdiction." This was also a 
 provision of this fundamental law. ^ 
 
 " To be sovereign in its judicial department, there must exist no 
 other or higher tribunal to which appeal can betaken to review its 
 final judgments or decrees. A sovereign judiciary must possess 
 the right of final interpretation and decision in applying the law." a 
 
 "To be sovereign in its executive department there must exist no 
 other authority to stay the execution of its judgments and decrees." ' 
 
 Thus it is seen, that while in its international character, the 
 government of the United States stands equal in rank and equal 
 in its powers of sovereignty to that of any other nation. Yet in 
 the exercise of its powers, in behalf of and towards its own 
 citizens, it is a limited government, deriving its existence and 
 authority from the people, and entrusted by them with the exer- 
 cise of such powers only, as are expressly granted, or given by 
 necessary implication, in the constitution. And the people, in the 
 constitution itself, reserve all powers not delegated to the United 
 States by the constitution, nor prohibited by it, to the states re- 
 sj^ectively, or to the people. '- 
 
 These departments of the sovereign power are still knit together 
 by one common bond ; all are disposed to act in harmony for the 
 promotion of the great ends of the government, its security, its 
 preservation, and the public good. 
 
 a Tiffany's Govt, § 111. 
 
 Note 3.— "The judicial power of the United States shall be vested in one 
 sui^reme court, and in such inferior courts as congress may from time to time or- 
 dain and establish." Const. U. S., Art. 3, Sec. 1. 
 
 Note 4. — "The executive power shall be vested in a President of the United 
 States, &c." Const. U. S., Art. 2. 
 Note 5.- Const. U. S., Art. 10.
 
 SOVEREIGN rOWER. 335 
 
 The potential powers of a republican government which exercise 
 their sovereignty, to wit : the legislative, the judiciary and the 
 executive, are plainly discovered and easily distinguished, as are 
 the division of duties conferred upon, and responsibilities assumed 
 by each of these departments. 
 
 It is easy to discover in this organization, that it is one of the 
 chief offices of sovereignty, to prescribe and declare to others, 
 what they ought to perform, and what to omit; to estabhsh gen- 
 eral rules for the perpetual information and du'ection of all 
 persons, in all points either of positive or of negative duty ; to 
 determine what each person should look to as his own, and what 
 as another's ; what is to be regarded as lawful or unlawful in tlic 
 state ; what is honest and what is dishonest ; what degi-ee of 
 natural liberty each person retains, and what he has suiTendered 
 to governmental power, and after what manner each person is to 
 exercise and regulate his own private rights, in order to secure the 
 public good and public tranquility ; this office is the legislative 
 power. 
 
 Notwithstanding laws are thus prescribed, duties thus enjoined, 
 and wrongs thus forbidden, as well in our OAvn theory of govern- 
 ment as in all others, it is still manifest that human nature is im- 
 perfect, and in many persons, greatly corrupted, so that experi- 
 ment sadly informs us of the great want of reverence for pre- 
 scribed laws. For which likewise, it is not enough to have a power 
 to prescribe rules of conduct, and for the exercise of rights, and 
 prohibition of wrongs, if it is invested with no further power. To 
 secure therefore, the common natural rights of all men, as well 
 as the observance of those particular laws which are enacted for 
 the good of the whole people of a state, there must be added, not 
 only the fear of punishment, but the power of inflicting what is 
 feared ; this is another of the objects of civil government. This 
 power is the judiciary power, which is supposed to come to the 
 aid of legislative. The office of this power is to hear and decide 
 the causes of the people ; to examine the conduct of the partic- 
 ular persons whose rights are affected by breaches of the pre- 
 scribed laws ; and to pronounce a proper sentence or judgment 
 according to the prescribed rules, in case of breach or violation. 
 
 Still these powers and sovereignty, of prescribing laws and pun-
 
 336 SOVEREIGN rOWEB. 
 
 ishing its violations, would be inefficient for tlieir designed objects, 
 without anotlier department of the same power ; without officers 
 to be appoiuted as co-ordinate magistrates to enquire into, pass 
 upon, and settle all controversies and violations of law arising be- 
 tween the citizens and others, and between the public and the 
 citizen ; and whose duty it shall be to put the laws in execution; to 
 compel such officers when once appointed to the performance of 
 their duties ; to call them to account on proper occasions for its 
 non-performance ; and also, in appropriate cases, to possess the 
 powers of gi'ace or pardon. This co-ordinate appomting and con- 
 trolling power is called the executive power. 
 
 Thus distributing the powers of sovereignty into distinct coun- 
 cils, or bodies ; it must necessarily follow, that each department 
 exercising its appropriate functions and duties, must have con- 
 ferred upon it, and must possess, all necessary power to compel 
 the observance of those things of which it is given cognisance ; 
 for, to possess a right of declaring to others what they should do, 
 or submit to, and yet be destitute of the power to enforce obedi- 
 ence to its order, would be to leave the department a helpless ex- 
 crescence, and a vain pretence, destractive of the ends of its creation. 
 
 It is to be observed, in this comiection, that the constitutions, 
 national and state, having estabhshed these tliree separate depart- 
 ments, has also assigned to each, by trae implication, distinct 
 powers and duties ; and from their distinct functions and the 
 objects committed to them, there is also the necessary impUcation 
 which has grown into a maxim that forbids each of them to en- 
 croach upon the powers and duties of either of the others, a Each 
 of these departments exercises its powers and functions upon 
 objects which arise under, or are called into existence by the con- 
 stitutions, laws, or of treaties. " These departments are co-ordi- 
 nate in degree, to the extent of the powers delegated to each of 
 them. Each in the exercise of its powers, is independent of the 
 other, but all rightfully done by either, is binding upon the other. 
 The constitution is supreme over all of them, because the people 
 who ratified it, have made it so ; consequently, any thing which 
 may be done, and which is unauthorized by it, is unlawfid.''^ 
 
 a Luther v. Borden 7 How. U. S. E. 1, 39. 
 h Dodge V. Woolsey 18 How. U. S. E. 347.
 
 SOVEREIGN POWER. 337 
 
 But Avheii A\c spcuk of govenimeuts limited by "written cou- 
 stitutions, we ought to enquire "wliat is a constitution, in the Ameri- 
 can sense, of written constitiitions ? It may be well answered in 
 the language of Justice Patterson, a of the supreme court of the 
 United States : " It is tlie form of governments, delineated by the 
 mighty hand of tlTe pecjple, in which certain fust principles of 
 fundamental laws are estaV)lished." The constitution is certain, 
 and lixed; it contains the permanent will of the people, and is the 
 supreme law of the land ; it is paramount to the power of the 
 legislature, and can be revoked or altered only by the authority 
 that made it. The life-giving principle, and the death-doing 
 stroke, must proceed from the same hand. What are legislatui'es ? 
 Creatures of the constitution ; — they owe their existence to the 
 constitution ; — they derive their powers from the constitution. It 
 is their commission, and therefore all their acts must be conform- 
 able to it, or else they will l)e void. The constitution is the work, 
 or will of the people themselves, in their original, sovereign, and 
 unlimited capacity. Law, is the work, or will of the legislatiu'e in 
 their derivative and subordinate capacity. The one is the work 
 of the creator, the other of the creature. The constitution fixes 
 limits to the exercise of legislative authority, and prescribes the 
 orbit witlmi which it nuist move. The constitution is the sun of 
 the political system, around which all legislative, executive and 
 judicial bodies must revolve ; and every act of the legislature re- 
 pugnant to the constitution is absolutely void. 
 
 Notwithstanding the limitation of power imder our system to 
 the executive, as well as to the other departments of government, 
 the existence of a government with sovereign power, is constitu- 
 tionally established ; and being established, none wiU deny the 
 necessit}' of its possessing all needful energy to fulfil its legitimate 
 functions. To tlio people, is committed the duty of the selection, 
 as the safest depositories of this power. To their patriotism and 
 judgment, must we look for a faithful exercise of the duties and 
 pri\ileges of choice. If this privilege is judiciously and discreetly 
 exercised as the theory of the system has anticipated, the power 
 Avill become vested in those, whose qualifications are best adapted 
 to deliberation and wisdom, and best calculated to conciliate the 
 
 a Vau Home's Lessee v. Dorrauce, 2 Dall. 308. 
 43
 
 338 SOVEKEIGN POWEE., 
 
 conscience of tlie people, and to secure their exalted privileges and 
 highest secular interests. The quahties most befitting the execu- 
 tive magistrate, are judgment, decision, activity, energy, secrecy 
 and despatch. His hne of duties, are, in some particulars, de- 
 fined by the constitution, but not all ; some are defined by 
 statute,— and some arise by necessary implication from the posi- 
 tion. It is not within the objects of this work to treat of his essen- 
 tial duties. It is sufiicient to say, that while actmg within the 
 sphere of his duties, he is entirely independent of the other depart- 
 ments. 
 
 "We have elsewhere, discussed somewhat, the nature and extent 
 of the powers and duties of the other departments. 
 
 The executive magistrate, whether it be President or Governor, 
 forms an integi'al part of the legislative department, and possesses 
 a qualified negative upon all laws. He possesses other executive 
 powers, which, as they do not belong to the law making power, it 
 does not come within. the purpose of this work to enumerate or 
 discuss. This negative power over the other branches of the leg- 
 islative department, is a conservative power, and was .> intended in 
 degree, to check the legislature, in the well Imown disposition of 
 that body; as demonstrated in history and experience, fi'om 
 making encroachments upon the other departments, and gradually 
 assuming to itself the exercise of executive and judicial power, a 
 The apprehension of this disposition on the part of legislative 
 bodies, was one of the main reasons for dividing the legislative 
 body into two departments, of Senate and House of Representa- 
 tives, h in the belief that the one might act in degree, as a re- 
 straint upon the other. Not only difierent individuals, but difter- 
 ent bodies of individuals, will difier as to the extent of their own 
 powers, and to the natm-e and extent of constitutional prohibi- 
 tions ; and generally, the most popular branch, are more easily 
 moved by strong passions and excitement, under the temporary 
 ascendency of some impetuous or popular leader, to act with less 
 coolness and deliberation, to make encroachments upon the funda- 
 mental law, than the higher branch chosen from a more extended 
 constituency. 
 
 a story on Const. , § 520. 
 
 b Federalist, Nos. GO, G7 and G8.
 
 CONSTITUTIONAL AND STATUTE TOWERS. 339 
 
 "One great ol)ject," says Cliaueellor Kent, "of the separation 
 of the legislature into two liotises, aeting separately, and Avitli co- 
 ordinate poAvers, is to destroy the evil effects of sudden and strong 
 excitement and of precipitate measures, springing from passion, 
 i;aprice, prejudice, personal influence and party intrigue, which 
 liave been found by sad experience, to exercise a potent and dan- 
 gerous sway in single assemblies. A hasty decision is not so 
 likely to arrive to the solemnities of alaAV, when it is to be aiTested 
 in its course, and made to undergo the deliberation, and probably 
 the jealous and critical revision, of another and a rival body of 
 men, sitting in a different place, and under better advantages to 
 avoid the prepossessions, and correct the eiTors of the other 
 branch." 
 
 No portion of the political history of mankind is more full of 
 instructive lessons on this subject, or contains more striking proof 
 of faction, instability, and misery of states under the single domin- 
 ion of an imchecked assembly, than that of the Italian Eepubhcs 
 of the middle ages; and which arose in gi'eat numbers, and with 
 dazzling but transient splendor, in the interval between the fall of 
 the western and eastern empire of the Komans. They were all 
 alike ill constituted, with a single, unbalanced assembly. They 
 were alike miserable, and all ended in similar disgrace. 
 
 Notwitstanding the wisdom evinced in this distribution of power 
 among the departments named, there is found, the omission to fix 
 with precision, the hues which separate the duties and functions 
 of the legislative, from the judicial. There is an inherent and 
 practical difficulty, always, in confining power within proper boun- 
 daries, and especially is this the case, in the absence of express 
 provisions in the fundamental law which confers the power, (if 
 conferred at all,) by general terms. This is eminently true in re- 
 gard to legislative and judicial duties under our system. All his- 
 tory and experience, shows the disposition of legislative bodies to 
 disregard private lights, and to overstep the limits of that depart- 
 ment of power. Nor is it without example, that the judiciary, 
 whose duty it is so to declare, when laws are improperly and un- 
 constitutionally enacted, have, in turn, acting in a spirit of jeal- 
 ousy at the encroachments of the legislature, sometimes, also, 
 overstepped then* own sphere of duty ; but these have been in-
 
 o4.0 <:OXSTITrTION.VL AND STATUTE TOWEES. 
 
 frequent, and less conflict luis resulted, than perliaps under any 
 other system that has ever been devised ; so that with time, — ex- 
 perience, — free discussion, — an educated and intellectual bar, — 
 and the freedom of the press, — it will doubtless be found the 
 wisest, best, and most protective system to the citizen, that has 
 CTcr been devised by human wisdom. 
 
 "While it is clear to the apprehension of every student of our 
 system of jurispnideuco, and a j)oint conceded by every jurist and 
 statesman, that it was the clear intent, and a most leadmg feature 
 and idea in the minds of the framers of our constitutions of the 
 national and state governments, to separate and distribute the 
 sovereign power of the governments between these three indepen- 
 dent and co-ordinate departments; and though these constitu- 
 tions have not in express terms defined or limited the powers of 
 either, it is equally clear, that it was also the intent, that the 
 executive should do no legislative act, the legislative no executive 
 act, and that neither of these, should do a judicial act, nor the 
 judiciary, an executive or legislative act. a 
 
 This view, makes it proper at this place to say a few words as to 
 authority of the judiciary to declare legislative acts of no effect in 
 certain cases. 
 
 When the constitution of the United States declared that the 
 judicial power should extend to the cases therein specified, it did 
 not define what was judicial power. It was doubtless regarded as 
 unnecessary to enter into a detail of the specific powers of the 
 judiciary. Courts did not originate in constitutions ; they origin- 
 ated m the common law, and their powers were then as well estab- 
 hshed, and understood, as any other question. Their powers ex- 
 isted, and were known at common law. By adopting a judicial 
 department, they, by implication, adopted their powers, and to 
 whatever extent the constitution, or statutes enacted under it, con- 
 ferred a new, or limited an existing power, the authority of the 
 judiciary was so extended or restricted, as the case might be. 
 Without such extension or restriction, the constitution and statutes 
 are to be interpreted by the common law. So that, every court 
 so duly constituted, with the constitutional declaration, that they 
 shall possess judicial power in all cases of law and equity, it does, 
 
 a Sill V. Coruiug, 13 N. Y. 11. 303; Cooley on Const. Lini. 171.
 
 CONSTITUTIONAL AND STATUTE ^0\^•EES. 3-il 
 
 inlierentlj, aud necessarily possess all the inciJeiitul powers of a 
 court as then known to exist at coninion law. All experience, as 
 well as universal consent, has established this. If the courts po.s- 
 sessed no powers but such as are declared in the constitution or 
 statutes, they could not protect themselves from insult and out- 
 rage; they could not enforce obedience to their immediate orders; 
 they could not imprison or otherwise punish for contempts com- 
 mitted in tlieii" presence ; they could not compel the attendance 
 of witnesses, nor obhge them to testify when present ; they could 
 not compel the attendance of jurors, nor punish them for improper 
 conduct. These powers are not given b}' the constitution ; and 
 wherever statutes have been enacted on these subjects, they are 
 not grants of new power, but simply a regulation and limitati(jn 
 of the inherent or common law powers of the coiut. <i It is then, 
 the common law, from whence we derive all our definitions, terms, 
 and ideas, which forms the substratum of our jurispmdence, and 
 the interpretation of constitutional and legislative provisions. It 
 is not possible to move a single step in any judicial proceeding, or 
 to execute any part of our statutes, or of our constitutions, with- 
 out ha^'ing recourse to the common law. "When a constitution 
 secures a " trial by jmy," it does not specify the number of wliicli 
 it shall consist, and in the absence of a statute regulatmg it, we 
 look to the common law, to find it means twelve men. This is one 
 of numerous illustrations that might be given. But where courts 
 are created by written law, and their jmisdiction defined by writ- 
 ten law, they cannot transcend that jimsdiction. h 
 
 To judge accm'ately of the constitutional intent as to the extent 
 of powers conferred upon the juchcial department in the absence 
 of express specification of powers, Ave see such a department es- 
 tablished, and as we have said, its powers at common law were well 
 and fully understood, nor could Ave do such injustice to the AA'isdom 
 and intention of the framers of those instiiiments as to suppose 
 that they intended to create an equal co-ordinate department of 
 governmental sovereignty that should be powerless Avhen created. 
 Experience, and contemporaiy practice, in the-exercise of judicial 
 power, confirms the idea, that the fi-amers intended that there 
 
 a King of Spain v. Oliver, 2 A;\'ash. C. C. E. 429. 
 
 h Exparte, BoUman & Swartout, -4 Cranch. 93. ,
 
 342 CONSTITUTIONAL AND STATUTE POWEES. 
 
 should be a constitutional method of giving efficacy to constitu- 
 tional provisions. What for instance, would avail restiictions 
 upon legislative power, without some constitutional mode of en- 
 forcing the observance of them ? The several states by the na- 
 tional constitution are prohibited from doing a variety of things I 
 some of which, are incompatible with the interests of the union, 
 others with the jorinciples of good government. No sensible man 
 will believe, that such prohibitions, would always be scrupulously 
 regarded without the effectual power of the national or state 
 judiciaries to restrain and correct the infractions of power. This 
 judicial power, must possess a direct negative on unconstitutional 
 laws, or the legislatures remain unrestrained, and humanly speak- 
 ing, omnipotent. 
 
 While treating of the subject of couiis, and their powers, 
 it may be well to notice a distinction that exists between them as 
 to the force and effect of judgments, as to their conclusiveness. 
 There is one class of courts which are competent by their very 
 constitution, to decide on then' own jurisdiction, and to exercise it 
 to final judgment without setting forth in their proceedings the 
 facts and evidence upon which it was rendered. The record of such 
 a court, is an absolute verity, not to be impugned by averment or 
 proof to the contrary ; there can be no judicial inspection behind 
 the judgment, except by an ajipellate power, if there be one. The 
 other class of courts, are inferior in rank ; they are so constituted 
 that their judgments can be looked through for the facts and evi- 
 dence which are necessary to sustain them ; their judgments and 
 decisions are not evidence of themselves to show jurisdiction and 
 its lawful exercise. Every requisite to show then- jurisdiction 
 must appear upon the face of their proceedings, or they are nulli- 
 ties. A perfect judgment of either class, concludes the subject in 
 which it is rendered, and pronounces the law of that case. A 
 judgment of court of record, whose jurisdiction is final, — is con- 
 clusive on all the world. It puts an end to all enqmiy into the 
 fact by deciding it. a 
 
 It is not within the purpose of this treatise, to enter upon a 
 description of the various courts of the nation, and states, or to 
 
 a Grequoiis Lessee v. Astor 2 Hoav. U. S. E. Sil . Elliot v. Peirsol, 3 Ptiiers 329
 
 POWEES OF THE UEl'AIiTMENTS OF GO^TRNMENT. 313 
 
 discuss tlio powers confeiTcd upou tlicm respectively ; this is more 
 appropriately the province of the writers of works of practice. 
 
 In this American theory of government, we see the exercise of 
 the power of sovereignty, internally, among its own citizens, dis- 
 tributed between these three departments, viz : the executive, the 
 legislative, and the judicial, eacli holding its appropriate check 
 upon the other ; each being sovereign in the exercise of tlie powers 
 of its own department ; each deriving its authority fi-om the same 
 source, the constitution ; each linuted in its powers by that in- 
 strument, and each equal and independent of the other depart- 
 ment ; but all combined, possess less or what is called the omni- 
 potence of civil authority than the Eughsh parliament ; because 
 limited by the fundamental law, the written constitution. 
 
 "Whenever, therefore, the officer of government is placed in the 
 sphere, of either legislative, executive, or judicial departments, he 
 is bound by his duty, and the solemn obligations of his oath, to 
 support the constitutions of the state and nation, to uphold those 
 fundamental instruments made by the people. Possessed of a 
 portion of law-making or law-interpreting power, he is interdicted 
 from exercising it in such a manner as to injure or impair the 
 sources from which his authority is derived. If in the legislative 
 department, he must be careful to commit no infractions of the 
 constitution, by overstepping its limits of inhibition. If in the ex- 
 ecutive branch, he must carefully avoid every act which may have 
 that injurious tendency. If in the judicial, he must fairly and 
 patiently compare legislative acts with both constitutions, and 
 honestly j)ronounce upou them as his judgment and conscience 
 shall dictate, without regarding consequences. A due conformity 
 to the oath of office of a judge, creates duties beyond those of 
 passive obedience. It requires the active energies of the mind, 
 to determine on the constitutionability of those laws, which may 
 be brought before him in judgment ; and in his decisions, he is 
 bound to protect those paramount laws, which he has sworn to 
 support, a 
 
 Eveiy one can readily see, that judges may sometimes be thrown 
 into a dehcate situation by the exercise of this constitutional duty. 
 They are subjected to the law-making power, by inqieachmeut, 
 
 a Emerick v. Harris, 1 Birney 421.
 
 344 rOTNTSES OF TEE DErAllTMEISTS OF G0\1:KKMENT. 
 
 and if that be ■wrongfullj exerted, lie must submit. In sucli case, 
 he will still derive consolation from the integiity of his own mind, 
 and the honest feeling, that he has dischargedhis duty with fidelity 
 to the government. Posterity will sooner or later do him justice. 
 Having thus x)resented a brief, but definite view of the distribu- 
 tion of the j)owers of government, with the appropriate restric- 
 tions belonging to each, we shall not attempt to enter upon the 
 vast field of inquuy as to the reasons which induced the fi'amers 
 of the constitution to adopt the provisions it contained. That 
 inquiry, properly, belongs to political history. Our inquiry is, in 
 regard to the source of the law-making poAver ; what powers have 
 been conferred to this end ? how distributed, and to whom ? and 
 what powers each department may exercise ? True, with these 
 objects before us, we shall be called upon to state incidentally, w^hy 
 the judiciary should be separated fi-om the other departments, and 
 why, the others from it ; why this system of checks and balances, 
 making the system more complex, is indispensable to public liberty 
 and protection ? It is therefore sufficient here to say, that these 
 j)rovisions in the written constitutions of a free people, are the 
 protection and preservation of the personal rights, the private 
 property, and the pubKc liberty of the whole people. Without 
 accomplishing these ends, the government may, indeed, be called 
 free, but it would be a mere mockery, and a shadow. " If" says 
 Judge Story, " the person of any individual is not secure from 
 assaults and injuries ; if his reputation is not preserved fi'om gi'oss 
 and malicious calumny ; if he may not speak his own opinions 
 with a manly frankness ; if he may be imprisoned without just 
 cause, and deprived of all freedom in his choice of occupations 
 and pursuits ; it will be idle to talk of his liberty to breathe the 
 air, to bathe in the public stream or give utterance to articulate 
 language. If the earnings of his industry may be appropriated, 
 and his property may be taken away at the mere will of rulers, 
 or the clamors of a mob, it can afford little consolation to him, 
 that he has already derived happiness from the accumulation of 
 w^ealth, or that he has the present pride of an ample inheritance ; 
 that his farm is not yet confiscated ; his house has not yet ceased 
 to be his castle ; and his cliildren are not yet reduced to beggary. 
 If his public liberties, as a man and a citizen, liis right to vote, his
 
 POWERS OF THE GOVERNMENT AND EIGHTS OF THE CITIZEN. 345 
 
 right to liokl office, his right to -vvorshiii God according to the 
 dictates of his own conscience, his equahty with all others, who 
 are his fellow citizens ; if these are at the mercy of the neighbor- 
 ing demagogue, or the popular idol of the day ; — of what conse- 
 quence is it to him that he is permitted to taste of sweets, which 
 may be wantonly dashed from his lips at the next moment ; or to 
 possess privileges which are felt more in their loss, even, than iu 
 their possession ? Life, liberty, and property stand upon equal 
 grounds in the estimate of freemen ; and one becomes almost 
 worthless without the security of the others. How, then, are 
 these rights to be established and preserved? The answer is, by the 
 constitutions of government, wisely framed and vigilantly enforced ; 
 by laws and institutions, deliberately examined, and steadily 
 administered by tribunals of justice above fear, and beyond re- 
 proach, whose duty it shall be to i)rotect the weak against the 
 strong, to guard the unwary against the cunning, and to punish 
 the insolence of office, and the spirit of encroachment and wanton 
 injur}'. It needs scarcely to be said, how much wisdom, talents, 
 discretion and virtue, are mdispensable for such great purposes. 
 
 We have taken upon ourselves, in our free form of government, 
 the responsibiUty of accomplishing all these ends ; the protection 
 and preservation of personal rights, of property, and pubhc 
 liberty. We have chosen for ourselves, doubtless, the most com- 
 plicated fi-ame of republican government which was ever offered 
 to the world. We have endeavored to reconcile the apparent 
 anomaly of distinct sovereignties, each independent of the other 
 in its own operations, and yet each in full action within the same 
 territory. The national government, within the scope of its dele- 
 gated powers, is, beyond all doubt, supreme and uncontrollable ; 
 and the state governments are, equally so, within the scope of theii 
 exclusive powers. But there is a vast variety of cases, in which 
 the powers of each, are concurrent with those of the other ; and it 
 is almost impossible to ascertain with precision, where the lines oi 
 separation between them begin and end. 
 
 It is not within the scope of this work to treat of the superioi 
 
 wisdom of our own form of government, or to compare it with other 
 
 forms; nor are the duties of the executive department of this, 
 
 necessary here to be considered any further than it is necessarily 
 
 44
 
 34G rowEES OF the goyeenment xsj) eights of the citizen. 
 
 involved in its participation with the legislative, in the enactment 
 of laws. It is -with legislative enactments, and with the judicial 
 construction or interpretation of such enactments, that this work 
 is chiefly confined. 
 
 Besides this national government, there also exists at this time, 
 thirty-six sovereign and independent states, component parts of 
 the national government, besides several teriitories, inchoate states, 
 which states between themselves, like the national government 
 with other national governments, possess the powers of sover- 
 eignty ; but as between themselves and their citizens, respectively, 
 then- powers are also limited, not only by written constitutions of 
 their own, established by the people as the source of powder, but 
 have also other limitations and restrictions imposed upon them by 
 the grants of power given by them, and the people thereof as 
 members of the American nationality to the national government, 
 the supremacy of which in certain particulars, imposes limits to 
 the legislative powers of such several states ; which limits, none 
 have a right to pass, a Each state in its Eovereign capacity of 
 speaking, by its people having conceded a portion of its sover- 
 eignty to the establishment of the Union, the national constitution 
 acts upon them, conjunctively, and separately, as it does upon its 
 citizens, h ''' 
 
 These written constitutions, based upon the principles set forth 
 in the declaration of independence, which is to be regarded as the 
 
 a Marshall, J. G Cranch. 13G. h Dodge v. Woolsey, 18 How. 351. 
 
 Note 6. — The several states of the Union, form, for many, artd for most im- 
 portant purposes, a single nation; and the federal government, in effecting 
 the objects for which it was instituted, can, in those particiilars, legitimately con- 
 trol all individuals or governments within the American territorj'. Cohens v. 
 Virginia, 6 Wheat. 413-14. For all national piuposes embraced by the federal 
 constitution, the states, and the citizens thereof, are one, united under the same 
 sovereign authority, and governed by the same laws; in all other respects, the 
 states are necessarily foreign and independent of each other. Bxickner v. rinle3% 
 2 Pet. 590; Dodge v. Woolsey, 18 How. 350. The respective states are sovereign 
 within their own limits, and foreign to each other regarding them as local govern- 
 ments. Bk. of U.S. v. Daniel, 12 Pet. 33. The Union was formed, by each of 
 the states conceding portions of their equal sovereignties for all of them, and the 
 United States constitution acts upon them conjunctively and separately, as it does 
 also upon their citizens. Dodge v. Woolsey, 18 How. 351. And this union of the 
 btates is indissoluble by the act of any one, or of any portion of them.
 
 rO\VEl!.S 01' THE GOVERNMENT AND RIGHTS OF THE CITIZEN. 347 
 
 interpreter of them, arc tlie avowal, that in a rcpubhcan foiiu of 
 government, all freemen, when they enter into organized society, 
 are equal; that no man or set of men is entitled to exclusive privi- 
 leges from the community ; that absolute and arbitrary sovereign 
 power over the lives, liberty or property of the citizen exists in 
 no one department of the government, not even by a vote of a 
 majority of the people ; that all power is inherent in the people ; 
 that all free government, is founded on their authority, and insti- 
 tuted for their peace, safety, happiness, security and protection of 
 property ; that for the advancement of these ends, they continue 
 to possess the inalienable and undefeasible right to alter, reform 
 or abolish their existing government, and to establish another upon 
 the same basis, and controlled by the same general principles; 
 that all elections shall bo fi-ee and equal, and full protection to be 
 given against the abuse of its privileges ; that no power for sus- 
 pending the laws shall be exercised by any department, but in 
 pursuance of established constitutional law. 
 
 In looking at these constitutional guaranties, while the citizen 
 is secured and protected by them, he is not indebted to them, for 
 these inherent and inalienable rights. Though they measure and 
 limit the powers of the rulers, they do not measure the rights of 
 the ruled. Constitutions are not the origin of society, or of pri- 
 vate rights ; it is not the fountain of law ; or of power ; " it is not 
 the cause, but the consequence of personal and pohtical freedom ; 
 it grants no right to the people, but is the creature of their power, 
 the instrument of their convenience." Constitutions were designed 
 for the protection of the people in the enjoyment of their rights, 
 and in the powers which they possessed before the constitution 
 was made ; it is frame-work of the pohtical government, and is 
 necessarily based upon the pre-existing condition of laAvs, rights, 
 habits, and modes of thought. There is nothing j^rimitivo in it ; 
 it is all derived fi-om the source and fountain of power and right. 
 " It presupposes an organized society ; law, order, property, per- 
 sonal fi'eedom, a love of political liberty, and enough of cultivated 
 iutelhgence to know how to guard it against the encroachments of 
 tyranny. A -vmtten constitution is in every instance, a limitation 
 of the powers of the government in the hands of agents ; for there 
 never was a written republican constitution which delegated to
 
 318 POWERS OF THE G0^-EE^"5IE^"T A^"D EIGHTS OF THE CITIZEN. 
 
 fuuctionaiics all the latent powers -wliicli lie dormant in every 
 nation, are boundless in extent, and incapable of definition." a 
 " When therefore we are seeking for the true construction of a 
 constitutional provision, we are constantly to bear in mind that its 
 authors were not executing a delegated authority limited by other 
 constitutional restraints, but are to look on them, as the founders 
 of a state, intent only on establishing such principles as seemed 
 best calculated to produce good government, and promote the pub- 
 lic happiness, at the expense of any and all existing institutions 
 which might stand in the way." b 
 
 The declaration of independence made the then thk'teen colo- 
 nies sovereign and independent states, thereby abolishing all Eng- 
 lish, and other foreign jurisdiction, and substituting a national 
 government of their own creation. New states have since been 
 added from time to time from territory under the national control, 
 the precise position and actual power of which, it is not our pur- 
 pose to discuss, except in so far as relates to the legislative 
 power of enacting statute laws, and the judicial interpretation and 
 construction thereof, with the limitations of legislative and judi- 
 cial power affecting the same. 
 
 In order to prevent colhsions of legislative or judicial authority 
 between the national and state governments, which would other- 
 wise be inevitable, as weU as dangerous to the peace, harmony 
 and stabiHty of the Union imder such a sj'stem, it was wisely pro- 
 vided in the constitution of the "United States, that it, and the 
 laws of the United States which should be made in pursuance 
 thereof, should be the supreme law of the land, and the judges in 
 every state should be bound thereby, anything in the constitution 
 or laws of any state to the contrary notwithstanding, c 
 
 Besides this superiority of power in certain respects, conferred 
 upon the national government by the terms of the national con- 
 stitution itself, it also contains express prohibition of the exercise 
 of state authority in certain specified particulars, to wit : " No 
 state shall enter into any treaty, alHance or confederation ; grant 
 letters of marque and reprisal ; coin money ; emit bills of credit 
 
 a Cooley on Const. Lim. 37. 
 
 h Matter of the Oliver Lee Bank, 21 N. Y. 12. 
 
 c U. S. Const., Art. 6.
 
 OF CONSTITUTIONAL POWERS AND LIMITATIONS. 349 
 
 maK.0 any thing but gold aud silver coin a tender in payment of 
 debts ; pass any bill of attainder, or ex post f ado laic, or law im- 
 pairing the obligation of contracts ; or grant any title of nobility." 
 
 " No state shall Avithout the consent of congress, lay any imports 
 or duties on imi)orts or exports, except -what may be absolutely 
 necessary for executing its inspection laws ; and the net produce 
 of all duti(^s and imports laid by any state on imports or exports, 
 shall be for the use of the treasury of the United States, and all 
 such laws shall be subject to the revision and control of congress. 
 No state shall, without the consent of congress, lay any duty of 
 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 immi- 
 nent danger as will not admit of delay." 
 
 While, in the above enumerated particulars, the several states 
 are made to yield to the federal government the exclusive superi- 
 ority of authority ; as a kind of compensation therefor, the con- 
 stitution of national government contains a power of proteclion 
 and guardianship over states, to prevent discrimuiation by the 
 several states, against the citizens and pubHc acts and proceed- 
 ings of other states; among wliich are, that "full faith and credit 
 shall be given in each state to the public acts, records, and judi- 
 cial proceedings of every other state." a " The citizens of each 
 state shall be entitled to all privileges and immunities of citizens 
 in the several states." h "A person charged in any state with 
 treason, felony, or other crime, who shall flee from justice, and be 
 found in any other state, shall, on demand of the executive author- 
 ity of the state fi'om which he fled, be delivered up to be removed 
 to the state having jurisdiction of the crime." c " The United 
 States shall guarantee to every state in this Union a rcpubhcan 
 form of government, and shall protect each of them against in- 
 vasion." d 
 
 Such are the express provisions of the federal constitution. 
 There are also, certain implied powers, which, by judicial inter- 
 pretation of the federal courts, are possessed by the general gov- 
 ernment, and which powers are prohibited to the states. All 
 
 a Const. U. S., Art. 4. c Id. 
 
 I) Id. d Id.
 
 350 OF CONSTITUTIONAL rO"S\T:RS AND LimTATIONS. 
 
 powers in the federal constitution, wliicli are necessarily implied, 
 from the powers expressly gi'anted, and which are necessary to 
 carry the express powers into effect, are as much a part of the 
 constitution, as its express powers ; — and such imphed powers, are 
 also as much prohibited to the states, a as if they had been ex- 
 pressly forbidden. 
 
 From this, it results, as was well expressed by Ch. J. Marshal] 
 in McCulloch v. State of Maryland, " that the government of the 
 Union, though hmited in its powers, is supreme Avithin its sphere 
 of action." "It is the government of all ; its powers are delegated 
 by all ; it represents all, and acts for all. Though any one state 
 may be willing to control its operations, no state is willing to allow 
 others to control them. The nation, on those subjects upon which 
 it can act, must necessarily bind its component parts." 
 
 This outlme of powers, conferred upon the federal government 
 becomes necessar}'^ to be presented for consideration, as they fall 
 within the range of questions embraced in the design of this work ; 
 inasmuch, as rules for the construction of the statutes passed by 
 the national legislature, are, in degree, and to a limited extent, 
 matters with which we shall deal. 
 
 The judicial powers and jurisdiction of the courts of the federal 
 government, are, as we have seen in part, but not fully and speci- 
 fically, enumerated in the constitution. Congress is left with the 
 power to confer such jurisdiction, and to institute such proper 
 courts and tribunals, inferior to the supreme court, h as shall se- 
 cure the harmonious and efficient working, of a system of national 
 jurisprudence under the constitution, not onlj', but in a class of 
 cases, in the discretion of congress, to make the jurisdiction ex- 
 clusive, or not, of state courts, c as policy may dictate. In still 
 another class of cases, the states are permitted to legislate and 
 give jurisdiction to state courts upon the same subjects, and such 
 state laws remain valid, until the power of congress is exercised ; 
 when the state laws will then become superceded, so far as they 
 are in conflict with a law of congress on that subject, d 
 
 a McCulloch v. Maryland, 4 Wheat. 427; Weston v. City of Charleston, 2 Peters 
 4C7; Sturgis v. Crowninshield, 4 Wheat. 103. 
 
 h Const. U. S., Art. 1, § 8, and Art. 3, § 2. 
 
 c Martin v. Hunter's Lessees, 1 Wheat. 334. 
 
 d Sturgis V. Crowninshield, 4 Wheat. 122, 192-3.
 
 OF COXSTITUTION.VL rOWEI'.S AND LIMITATIONS. 351 
 
 The whole idea of the powers of the federal govemmeiit, as cou- 
 tained in its constitution, is summed up in this : " It was ordained 
 and estabhshed by the people of the United States for themselves, 
 for their own government, and not for the government of the in- 
 dividual states. Each state established a constitution for itself, 
 and in that constitution, provided such limitations and restrictions 
 upon the powers of its particular government, as its judgment dic- 
 tated. The people of the United States, framed such a govern- 
 ment for themselves, as they supposed best adapted to then situ- 
 ation, and best calculated to promote their interests. The powers 
 they conferred on this government, were to be exercised by itself ; 
 and the hmitations on power, if expressed in general terms, are 
 naturally and necessarily applicable to the government created by 
 the instrument. They are limitations of power gi'anted in the in- 
 strument itseK ; not of distmct governments, framed by different 
 persons, and for different pui-poses." a 
 
 Properly understood, there is no conflict of sovereignty or juiis- 
 diction between the national and state governments. In one 
 sense, both are sovereign, and yet as we have shown, in another 
 sense, each is limited by its written constitution. The authority 
 exercised by each state over matters within its jurisdiction, is 
 sovereign and absolute. It has its origin also, in the people within 
 its territorial limits who determine the extent and limitation of its 
 power. It thus possesses all authority so confeiTed upon it, of 
 legislative, judicial and executive power, and is competent to regu- 
 late, control and direct the will of the whole, and of every subor- 
 dinate member of the state. ' 
 
 a Barron v. Mayor, &.c., of Baltimore, 7 Peters 217. 
 
 XoTE 7.— The constitution of the United States is supreme over all the depart- 
 ments of government, and any thing which may be done, unauthorized by it, is 
 unlawful. Dodge v. "Woolsey, 18 How. 317. It is supreme over the people of the 
 "United States, aggregate, in their separate sovereignties, because they have ex- 
 cluded themselves from any direct or immediate agency in making amendments 
 to it, ibid. The government of the Union is a government of the people; it 
 emanates from them; its powers are granted by them; and are to be exercised 
 directly on them, and for their benefit. McCuUoch v. Maryland, i Wheat. 31G. 
 The constitution was made for the benefit of every citizen of the United States, — 
 and there is no citizen, whatever his condition — or wherever he may be, — within 
 the territory of the United States, who has not a right to its protection. U. S. v. 
 More, 3 Cranch. ICO. Therefore an act of congress passed in pursuance of clear
 
 352 OF CONSTTTUTION-VL rO\\'Er>S AND Li:iHTATION.S, 
 
 But wliile the several states of the L'liion are thus hmited by 
 theu' own waitten constitutions, and by the grant of power to the 
 national govermnent ; yet in all matters where no question of na- 
 tional authoiity is involved, their sovereignty and power is so abso- 
 hite, that the national courts hold themselves bound to accept 
 aid ado} t the decisions of the state courts as con-ect expositions 
 of their statutes and common law, and to follow their authority 
 whenever the same question arises in the national courts, a In- 
 deed it is so expressly enacted by an act of congi'ess called the 
 judiciary act of 1789. 
 
 It was competent to the people to invest the general government 
 with all the powers which they might deem proper and necessary ; 
 to extend or restrain those powers according to their own good 
 pleasure ; and to give them a paramount and supreme authority. 
 The people also had a right to prohibit to the states the exercise 
 of any powers, which were, in their judgment, incompatible with 
 the objects of the general compact ; to make the powers of the 
 state governments, in given cases, subordinate to those of the na- 
 tion ; or to reserv-e to themselves those sovereign authorities which 
 they might not choose to delegate to either, and it must therefore 
 be assumed they have done so. The constitution of the United 
 States was not, necessarily, carved out of existing state sovereign- 
 ties, nor a surrender of power already existing in state institutions. 
 The powers of the states depend on their own constitutions, and 
 the people of every state had a right to modify or restrain them, 
 according to their own views of poHcy or principle. So on the 
 other hand the sovereign powers vested in the state governments, 
 by their respective constitutions, remain unaltered and imim- 
 
 a Sumner v. Hicks, 2 Black. 532; Jefferson Br. Bank v. Skellj', 1 Black. 43G; 
 McKeenv. DeLancy's Lessee, 5 Cranch. 29; Massingule t. Downs, 7 How, 707/ 
 Nesmitli v. Sheldon, id. 812. 
 
 authority under the constitution, is the supreme law of the land. U. S. v. Hart, 
 Pet. C. C. R. 390. And no state law can take away rights and privileges secured 
 by the constitution and laws of the United States. U. S. v. Eathbone, 2 Paine 
 579. "Where an unqualified power is granted to the general government, and the 
 exercise of the same power by the state governments would be inconsistent with 
 the express grants, such power vests exclusively in the general government. 
 Golden v. Prince, 3 Wash. C. C. R. 313.
 
 OF CONSTITUTION.^. ^O^YE^.S AND LIMITATIONS. 353 
 
 paired, except so far as tliey were granted to the govemment of 
 tlie United States, a 
 
 The laws of the United States in their operation withmthe state 
 governments are not to be considered as laws of a foreign govern- 
 ment, but as laws operating upon and binding the same people as 
 the government and laws of the several states, h ^ 
 
 a Martin v. Hunter, 1 Wheat. 32-1. b Stearns v. United States, 2 Paine E. 300. 
 
 Note 8.— To prevent all conflict between the federal, and the state govern- 
 ments, it was wisely provided by an act of congress passed September 24, 1789, 
 among other things as follows, § 34, " The laws of the several States, except when 
 [he constitution, treaties or statutes of the United States, shall otherwise require 
 or provide, shall be regarded as rules of decision in trials at common law, in the 
 courts ot the United States in cases where they apply." This was but the expres- 
 sion of the spirit of the constitution, and would be but a reasonable common luw 
 construction, upon the national and State constitutions interpreted together. 
 
 The decisions of the state courts,, concerning the title to lands, are to be treated 
 as binding authorities in the courts of the United States. Eundle v. Delaware 
 and Raritan Canal Co. 14 How. 93; Polk's Lessee v. Wendal, 9 Cr. 87; Thatcher 
 V. Powell, G "\Vh. 119 ; Elmendorf v. Taylor, 10 Id. 152 ; Eoss v. Barland, 1 Pet. 
 Go5; The Society for the Propogation of the Gospel v. "Wheeler, 2 Gall. 138. The 
 courts adopt the state decisions, because they settle the law applicable to the 
 case; and the reasons assigned for this course apply as well to rules of construc- 
 tion growing out of the common law, as the statute law of the state, when applied 
 to the title to lands. Sims v. Irvine, 3 Dall. 425, 456; Waring v. Jackson, 1 Pet. 
 570; Davis v. Mason, Id. 503; Hamilton v. Dudley, Id. 2, Id. 492; Hinde v. Yal- 
 lier, 5 Id- 398; Clarke v. Smith, 13 Id. 195 ; Wilcox v. Jackson, Id. 498; Amis v. 
 Smith, IG Id. 303; Fisher v. Ilaldemau, 20 How. 18G; Miles v. Caldwell, 2 Wall. 
 35; Jackson v. Chew, 12 Wh. 1G7. The decisions of the state courts settling a rule 
 ot construction of devises of lands, is, therefore, within the law and binding on 
 the federal courts. Ibid 153; Henderson v. Griffen, 5 Pet. 151; Smith v. Shriver, 
 14 Leg. Int. 172. So is a decision on the state law of descents. Gardner v. Col- 
 lins, 2 Pot. 58. So is a decision of the question whether the statute of uses is a 
 part of the common law of the state. Henderson v. Griffen, 5 Pet. 151. And so 
 are decisions as to the lien of judgments on real estate. Massingill v. Downs, 7 
 How. 760; United States v. Morrison, 4 Pet. 124 ; Thompson v. Phillips, Bald. 
 24G; Lombard v. Bayard, 1 Wall. Jr. 198. And in construing a statute of a state 
 concerning lands, the supreme court adopts the construction settled in the state 
 courts, though not in accordance with its own opinion. McKeen v. DeLancy's 
 Lessee, 5 Cr. 22. The settled construction of a state statute by its supreme court, 
 is considered as a part of its statute. Massingill v. Downs, 7 How. 767; Kesmith 
 V. Sheldon, Id. 812; Van Rensselaer v. Kearney, 11 Id. 297; Webster v. Cooper, 14 
 Id, 504; Green v. James, 2 Curt. C. C. 189 ; Woolscy v. Dodge, G McLean. 150; 
 Thompson v. Phillips, Bald. 246; United States v. Mundel, G Call. 245. 
 
 This law adopts the acts of limitations of the several states, where no special 
 provision has been made by congress, as rules of decision in the courts of the 
 45
 
 354 OF CONSTITUTIONAL TOWEES AND LIMITATIONS. 
 
 A coustitutiou then, is tlie fimdamental law of the nation, or 
 state, containing the principles upon which the government is 
 founded, and regulating the division of the sovereign power into 
 departments, directing to what persons each of these powers is to 
 be confided, and the manner in Avliich it is to be exercised ; it is 
 
 United States, aud the same effect is given to them as in the state courts. Mc- 
 Cluny V. Silliman, 3 Pet. 270; Green v. Neal's Lessee, 6 Ibid. 291; Eossv. Duval, 
 13 Ibid. 45; Shelby v. Gny, 11 "Wh. 3G1; Boyle v. Arledge, Hemp. G20. Bi;t not 
 as against the federal government. United States v. Backus, G McLean, 443. It 
 also includes the statutes of the several states which prescribe rules of evidence 
 in civil cases. McNiel v. Holbrook, 12 Pet. 84; Hinde v. Vattier's Lessee, 5 Ibid. 
 398. But no state law made since 1789 can effect the rules of evidence in crim- 
 inal cases in the federal courts. United States v. Eeid, 12 How. 3C1. 
 
 The act of congress adoi^ts the local laws of the several states as rules of deci- 
 sion, but it does not apply to the construction of contracts, or to questions of gen- 
 eral commercial law. Swift V. Tyson, 16 Pet. 1; Watson v. Tarplej', 18 How. 
 520; Glouce.ster Insurance Co. v. Younger, 2 Curt. C. C. 322. Nor to the construc- 
 tion of private statutes. Williamson v. Berry, 8 How. 543. It api^lies only to 
 the rights of persons and of property, and in those cases the state laws furnish 
 rules of decision; but as to remedies and modes of proceeding, they are fixed by 
 the act of 1792. Mayer v. Foulkrod, 4 W. C. C. 349; Campbell v. Claudius, Pet. 
 C. C. 484; Lane v. Townsend, Ware. 288; Jones v. Vanzants, 4 McLean 606; 
 Chicago City v. Bobbins, 2 Black. 428. It relates to the rules for framing, not 
 for executing the judgment. Wayman v. Southard, 10 Wh. 1; Parson v. Bedford, 
 3 Pet. 444; Keary v. Farmers' and Merchants' Bank, 16 Ibid. 89; Long v. Smith, 
 Ibid. 65. It has nothing to do with the proceedings after judgment; it means 
 only that the judgment shall be rendered according to the laws of the state. Bee- 
 side's Executrix v. United States, Dev. C. C. 99, 101. It is broad enough, how- 
 ever, to cover the rights of parties to costs. Hathaway v. Boach, 2 W. & M. 63. 
 
 The supreme court will adhere to its own decision upon the validity of a con- 
 tract, notwithstanding subsequent state decisions declaring it unconstitutional. 
 Piowan V. Bunnels, 5 How. 134; Truly v. Wanzer, Ibid. 141; Sims v. Hundley, 6 
 Ibid. 1. But not in a case involving simply the construction of a state statute. 
 Green v. Neal's Lessee, 6 Pet. 291 ; Woolsey v. Dodge, 6 McLean, 150. 
 
 A court of the United States cannot, by a rule, adopt the provisions of a state 
 law, which is repugnant to, or incompatible with, a positive enactment of con- 
 gress. Keary v. Farmers' and Merchants' Bank, 16 Pet. 89; Amis v. Smith, 
 Ibid. 312; Massingill v. Downs, 7 How. 7G0. 
 
 It does not extend to cases in equity. United States v. Eeid, 12 How. 363; 
 Neves v. Scott, 13 Ibid. 268; McFarlane v. Griffith, 4 W. C. C. 585. Or in ad- 
 miralty. The Independence, 2 Curt. C. C. 350. It means trials in a court of 
 common law, when exercising that ai;thority, as contrasted with the courts of 
 admiralty and maritime or equity jurisdiction. United States v. Mundel, 6 Call. 
 258. The federal courts are governed in commercial and maritime cases, by the 
 general, and not by the local law. Mutual Safety Ins. Co. v. Cargo of the Brig 
 George, Olcott, 89.
 
 OF COXSTITUTION.VL I'OWEKS AND LIJIITATIOXS. 355 
 
 made by the authority of the people themselves, or by their dele- 
 gates specially authorized; and it can be changed only by theUkc 
 power. The legislature, Avhicli is only the creature of the consti- 
 tution, cannot make any change in such fundamental law. a The 
 constitution guarantees to every citizen, equal rights, protection 
 and participation, direct or indirect, in the government, h 
 
 A learned conmientator upon the constitution of the United 
 States, says, "it is an original, written, federal and social compact, 
 freely, voluntarily, and solemnly entered into by the several states, 
 and ratified by the people thereof respectively; whereby the 
 several states, and the people thereof respectively have bound 
 themselves each to other, and to the federal government of the 
 United States, and by which the federal government is bound to 
 the several states, and to every citizen of the United States." c 
 This is doubtless true of its character and its design, but not of 
 the parties to the compact. 
 
 This vieAV is not regarded as sound by the supreme coiu't of the 
 United States, so far as it is stated to be a compact, entered into 
 by the states in their political capacity, as contradistinguished 
 from the people thereof. The states never did, in fact, as states, 
 ratify the constitution. They were not called upon by congress 
 to do so, and were not contemplated, as essential to give validity 
 to it. cl " The convention which framed tlie constitution was m- 
 deed elected by the state legislatures. But the instrument when 
 it came from their hands, was a mere proposal without obhgation, 
 or pretensions to it. It was reported to the then existing congress 
 of the United States, with a request that it might be submitted to 
 a convention of delegates, chosen in each state by the people 
 thereof, mider the recommendation of its legislature for then- as- 
 sent and ratification. This mode of proceeding was adopted ; and 
 by the convention, by congress, and by the state legislatures, the 
 instrument was submitted to the people. They acted upon it in 
 the only manner in which they can act safely, efi'ectively, and 
 wisely on such a subject, by assembling a convention. It is true, 
 they assembled in then- several states— and where else should they 
 
 a Boiivier's Inst. 9, 10. h Wbartou's Law Diet. 
 
 c Tucker's Black Com., Ap. note D., p. 140. 
 
 d Story ou Const., § 3G2; McCulloch v. State of Marylaml, -i "Wheat. 102 to -lOi
 
 356 OF CONSTITL'TIONAL PJ^\E^tS AND LIMITATIONS. 
 
 have assembled ? No political dreamer was ever wild enough to 
 think of breaking down the lines which separate the states, and of 
 compounding the American people into one common mass. Of con- 
 sequence when the}- act, they act in their states. But the measures 
 they adopt, do not on that account cease to be the measures of the 
 people themselves, or become the measures of the state govern- 
 ments, a 
 
 The several state constitutions are of like origin, but of more 
 circumscribed jurisdiction, and in certain particulars, limited in 
 the objects upon which they act. They are also original, written 
 and social compacts, freely, voluntarily and solemnly entered into, 
 between the people of the states respectively, and the respective 
 state governments ; and in which the peojole of the states, and the 
 state governments respectively, have bound themselves to each 
 other. 
 
 " The general and state governments, in this country, are a 
 part of one and the same system, instituted by one and the same 
 people, having one and the same general duty to perform for the 
 people. Every national citizen is necessarily connected with busi- 
 . ness and interests of a domestic character ; and there is but one 
 class of institutions that can administer to his necessities, in respect 
 to those subjects. That branch of internal administration, is by 
 common consent, as well as by particular regulation, committed to 
 the state administration." b 
 
 The state governments are as absolute in the exercise of their 
 authority within the limits of then- respective jurisdictions, as is 
 the general government witlim its particular sphere ; and every 
 national citizen is as much interested in preserving intact, the state 
 governments, as he is that of the general government ; and of pre- 
 venting encroachments of the one, upon the other. The national 
 government is as much his own, as the state government. They 
 are both created in the same manner, by the same authority, and 
 for the same general purpose. They differ really, only, in the sub- 
 jects, and extent of their jurisdiction. 
 
 It has happily thus far, been the disposition of both the national 
 and state governments, in all their intercourse with each other ia 
 
 a Per Ch. J.Marsbiill, 4 Wheat. 402-;5. 
 h Tiffany's Theory, pp. Ill, 112.
 
 OF CONSTITUTIONAL TOWERS AXD LIMITATIONS. 357 
 
 the administration of their rospectivo goveruments, to avoid con- 
 flicts of authority between each other ; to bring the whole system 
 into general harmonious action, and to establish and promote niles 
 of comity, between the several states, and between the federal 
 government and the several states, at least as fully as they exist 
 between foreign states. This disposition was manifested in the 
 United States court, by a decided expression of the court to that 
 effect, a It has been supposed, says Ch. J. Tanej^, " that the ndes 
 of comity between foreign nations, do not ai)})ly to the states of 
 this Union ; that they extend to one iauitlicr no (jther riglits than 
 those that are given by the constitution of the United States, and 
 that the courts of the general government are not at liberty to 
 presume, in the absence of all legislation on the subject, that a 
 state has adopted the comity of nations towards the other states 
 as a part of its jurisprudence ; or that it acknowledges any rights 
 but those which are secured by the constitution of the United 
 States. The court think otherwise. The intimate union of these 
 states as members of the same great political family ; — the deep 
 and vital interests a\ hieh bind them so closely together ; should 
 lead us, in the absence of proof to tlie contrary, to j)resume a 
 greater degree of comity, friendship and kindness towards each 
 other, than we could be authorized to presume between foreign 
 nations. And when, (as without doubt, must occasionally happen), 
 the interest or policy of any state requires it to restrict the rule, it 
 has but to declare its will, and the legal presumption is at once at 
 an end. But until this is done, upon what grounds could this 
 court refuse to administer the law of international comity between 
 these states ? They are sovereign states ; and the history of the 
 past, and the events which are daily occuiTuig, fm-nish the strongest 
 evidence that they have adopted towards each other the laws of 
 comity in their fullest extent." 
 
 The foundation for a stUl stronger recognition of this comity, is 
 laid in the federal constitution itself. It contains a provision in 
 regard to the laws of the states, and the proceedings of the judicial 
 tribunals, which, though it gives them no extra territorial effect, 
 has still a strong bearing upon the question of comity. Article 
 IV, §1, declares, that, "Full faith and credit shall be given in 
 
 a Bank of Au-nista v. Earle, 13 Peters, 590.
 
 358 or CONSTITUTIONAL rOTN'EES AND LIMITATIONS. 
 
 each state to the pubhc acts, records and judicial proceedings ol 
 every other state ; and that congress may, by general laws, pre- 
 scribe the manner by which such acts, records and proceedings, 
 shall be proved, and the effect thereof." 
 
 In pursuance of this power, the congress of the United States 
 by an act of May 26, 1790, Ch. 38, provided the mode by which 
 records, and judicial proceedings should be authenticated. Under 
 these constitutional and statutory provisions, various decisions 
 have been made, the general result of which is, that a judgment 
 is conclusive in every other state, if a court of the particular state 
 had jurisdiction, and would so hold it. a " But congress has never 
 acted on the power in the constitution as to the public acts or laws 
 of the states, any further than to declare that they shall be authen- 
 ticated by having the seal of the respective states affixed thereto ; 
 nor is this method regarded as exclusive of any other which the 
 states may adopt. And the states have differed as to the manner 
 in which they shall be proved. In some cases, strict proof of 
 them, as foreign laws, has been required ; but the courts of other 
 states, and the supreme court of the United States, influenced by 
 the intimate and peculiar connection of the states, have shown a 
 disposition to relax the usual iiiles of proof in this respect." h 
 The authorities will be found in the note. '^ 
 
 a Mills V. Duryea, 7 Cranch. 481; Hampton v. McConnell, 3 Wheat. 234, 1 
 Kent's Com. 260. 
 h Sedgwick on Const. 78. 
 
 Note 9. — No other authentication of an act of the legislature is required, except 
 the annexation of the seal of the state; it is presumed that the person who alfixed 
 the seal had competent authority to do so. United States v. Amedy, 11 Wh. 392; 
 United States v. Johns, 4 Dall. 41G; S. C. 1 W. C. C.3G3. A printed pamphlet 
 containing the laws of another state, is not admissible in evidence. Craig v. 
 Brown, Pet. C. C. 352. In the courts of the District of Columbia, however, the 
 statute book of one of the states, purporting to be published by authority of its 
 legislature, and deposited in the department of state, under the act of congress 
 requiring the secretary of state to obtain copies of the laws of the several states, 
 is admissible evidence of the laws of such state. Commercial and Farmers' Bank 
 of Baltimore v. Patterson, 2 Cr. C. C. 34G ; see Leeland v. Wilkinson, 6 Pet. 317. 
 In the supreme court, the states of the confederacy are not regarded as foreign 
 states whose laws and usages must be proved, but as domestic institutions, whose 
 laws are to be noticed without pleading or j^roof ; and the state courts, in deter- 
 mining questions subject to be reviewed in the supreme court of the United 
 States, adopt the same rule, and will take notice of the local laws of a sister stat«
 
 OF CONSTITUTIONAL POWEIiS AND LBIITATIONS. 359 
 
 A valuable note of authorities upon pleadicg upon foreign judg- 
 ments, and as to the distinctions between cases where jurisdiction 
 may be enquired into, and otherwise, will be found on pages 200 
 and 2G1, 1 Kent Com. 
 
 in the same iiuiuuor that the supreme court would do on a writ of error to their 
 judgment. Baxley v. Linah, 4 Harris, 213, 250; Ohio v. Iliuchmau, 3 Casey, -170; 
 Eogers v. Burns, Id. 52G. 
 
 The judicial proceedings here referred to, are genorully understood to be the 
 proceedings of courts of general jurisdiction, and not those which are merely of 
 municipal authority. 1 Greenl. Ev. § 505. And accordinglj', it has been held, 
 that the judgments of justices of the peace, were not within the meaning of these 
 constitutional and statutory lU'ovisions. Snyder v. Wise, 10 Barr. 157; "Warren 
 V. Flagg, 2 rick. 448 ; Hobinson v. Prescott, 4 N. Ilamp. 450 ; Mahurin v. Bick- 
 ford, G Id. 1G7; Silver Lake Bank v. Harding, 5 Ohio, 545; Thomas v. Robinson, 
 3 Wend. 2G7. In Connecticut and Vermont, however, it is held, that if the jus- 
 tice is bound by law to keei) a record of his proceedings, they are within the 
 meaning of the act of congress. Bissell v. Edwards, 5 Day, 3G3; Starkweather v. 
 Loomis, 2 Verm. 573 ; Blodget v. Jordan, G Id. 580 ; and see Scott v. Cleveland, 
 3 Monr. 62. But the proceedings of courts of chancery, and of probate, as well 
 as of the courts of common law, may be thus proved. Scott v. Blanchard, 8 Mar- 
 tin, (N S) 303; Balfour v. Chew, 5 Id. 517; Johnson v. KanneLs, G Id. G21; Eipple 
 v. Ripple, 1 Eawle, 381; Craig v. Brown, Pet. C. C. 352; Hunt v. Lyle, 8 Yerg. 142; 
 Barbour v. Watts, 2 A. K. Marsh, 290, 293. This clause is not restricted to the 
 case of judgments. Hopkins v. Ludlow, Phila. R. 272. 
 
 This does not apply to the records of the courts of the United States. Mason's 
 Administrators v. Lawrason, 1 Cr. C. C. 190. But though, in terms, it applies 
 only to the state courts, the rule is ecpially ajiplicable to those of the United 
 States. Tooker v. Thompson, 3 McLean, 94. And a judgment of a court of the 
 United States is admissible, when authenticated in the manner provided in this 
 act. Buford v. Hickman, Hemp. 232. 
 
 It seems to be generally agreed, that this method of authentication is not exclu- 
 sive of any other which the states may think proper to adopt. Kean v. Rice, 12 
 S. & R. 203, 208; The State v. Stade, 1 D. Chipm. 303 ; Raynham v. Canton, 3 
 Pick. 293; Biddis v. James, 6 Binn. 321; Ex parte Povall, 3 Leigh. 81G; Pepoon 
 V. Jenkins, 2 Johns. Cas, 129 ; Ellmore v. IVJills, 1 Hayw. 359 ; Baker v. Field, 2 
 Yeates, 532; Ohio v. Hinchman, 3 Casey, 485. 
 
 The clerk who certifies the record must be the clerk of the same court, or of its 
 successor ; the certificate of his under-clerk, in his absence, or of the clerk of any 
 other tribunal, office, or body, being held incompetent for this purpose. Samp- 
 son V. Overton, 4 Bibb. 409; Lothrop v. Blake, 3 Barr. 495; Donohoo v. Brannon, 
 1 Overt. 328; Schnertzell v. Young, 3 H. and McHen, 502. A surrogate acts as 
 a clerk in certifying his proceedings, and as he also acts in the capacity of judge, 
 he must certify as to the authentication. Catlin v. Undcrhill, 4 McLean, 199; 
 Ohio V. Hinchman, 3 Casey, 484. 
 
 Whenever the court whose record is certified has no seal, this fact should ap- 
 pear, either in the certificate of the clerk, or in that of the judj,'p. Craig v. Brown,
 
 360 OF COXSTITL'TIONAL POWEIIS AND LIMITATIOKS. 
 
 The dii'ect result, or consequence of such an exercise of power 
 bj the states, is, that the laws of each state bind, directly, all 
 
 Pet. C. C. 353. The seal of the court must be annexed to the record itself ; it is 
 not euough that it is annexed to the judge's certiticate. Turner v. Washington, 
 3 AV. C. C. 120, 
 
 The certificate must be given by the judge, if there be but one; or if there be 
 more than one, then by the chief justice, or presiding judge or magistrate of the 
 court from whence the record comes ; and he must possess that character at the " 
 time he gives the certificate. A certificate that he is the judge that presided at 
 the time of trial, or that he is the senior judge of the courts of law in the state, is 
 deemed insufficient. Lothrop v. Blake, 3 Barr. 495 ; Stephenson v. Bannister, 3 
 Bibb. 3C9; Kirkland v. Smith, 2 Martin (N S) 497. And so is the certificate of a 
 judge styling himself " one of the judges" of the court. Stewart v. Graj', Hemp. 
 94; See Catlin v. Underbill, 4 McLean, 199; Erb v. Scott, 2 Harris, 22. 
 
 A record of another state is not admissible, if the certificate of the presiding 
 magistrate omit to state, that the attestation of the clerk is in due form. Trigg 
 V. Conway, Hemp. 538'. The phrase " due form," means the form of attestation 
 used in the state from whence the record comes. Craig v. Brown, Pet. -C. C. 354. 
 And the certificate of the presiding judge being the evidence prescribed by law, 
 , that this form has been observed, is at once indispensable and conclusive. Fer- 
 guson V. Harwood, 7 Cr. 408 ; Tooker v. Thompson, 3 McLean, 93 ; Taylor v. 
 Carpenter, 2 W. & M. 4. A certificate that the person whose name is signed to 
 the attestation is clerk of the court, and that the signature is his own handwriting, 
 is not in conformity with the jirovisions of the act. Craig v. Brown, Pet. C. C. 
 352. Where, however, the record of a judgment of a state court is ofi"ered in evi- 
 dence, in the circuit court, sitting within the same state, the certificate ot the 
 clerk and seal of the court is a sufficient authentication. Mewster v. Spalding, 6 
 McLean, 24. 
 
 A judgment ofa state court has the same credit, validity, and efi'ect, in every 
 other court within the United States, which it had in the state where it was ren- 
 dered; and whatever pleas would be good in a suit thereon, in such state, and 
 none others, can be pleaded in any other court within the United Slates. Hamp- 
 ton V. McConnel, 3 Wh. 234 ; Mills v. Duryee, 7 Cr. 481 ; Westerwelt v. Lewis, 2 
 McLean, 511; Taylor v. Carpenter, 2 W. & M. 4; Warren Manufacturing Co. v. 
 Etna Insurance Co., 2 Paine 502; Whitaker v. Bramson, Ibid. 209; Green v. 
 Sarmiento, Pet. C. C. 74, s. c, 3 W. C. C. 17; Bryant v. Hunters, Ibid. 48 ; Field 
 V. Gibbs, Pet. C. C. 157; Armstrong v. Carson's Executors, 2 Ball. 302; 2 Am. 
 Leading Cases, 774. But although this act makes a judgment regularly recovered 
 in another state, and duly authenticated, conclusive evidence of an established 
 demand, as of the date of such judgment, it does not prevent the several states 
 from enacting statutes of limitation, barring actions on such judgments iu their 
 courts. Bank of the State of Alabama v. Dalton, 9 How. 522; McElmoyle v. 
 Cohen, 13 Pet. 312. Nor does it apply to a judgment recovered against a non- 
 resident joint debtor, without notice to him ; such a judgment is not entitled to 
 any faith or credit out of the state iu which it was rendered. D'Arcy v. Ketchum, ' 
 11 How. 1G5; Eogers v. Burns, 3 Casey, 525.
 
 or CONSTITUTIONAL TOWERS AND LIMITATIONS. 3G1 
 
 property, ■vvLotlier real or pers-onul, witliiu its territoiy ; and all 
 persons who are resident within it, whether natural bom subjects 
 or ahens, and also all contracts made and acts done within it. 
 
 A state ma}', therefore, by statute, regidate the manner and cir- 
 cumstances under which property, whether real or personal, or in 
 action, within it, .shall be held transmitted, bequeathed, transferred 
 or enforced ; the condition, capacity and state of all persons within 
 it; the validity of contracts, and other acts done within it, the re- 
 sulting rights and duties growing out of these contracts and acts, 
 and the remedies and modes of administering justice in all cases 
 calling for the interposition of its tribunals to protect, to vindicate, 
 and to secure the wholesome agency of its own laws within its own 
 domain, a 
 
 It is equally a necessary result of the independence, and distinct 
 sovereignties of the several .states, that neither their statutes, or 
 other laws, have any inherent authority, nor are they entitled to 
 any respect extra territorially, or beyond the jurisdiction that 
 enacts them. But by a kind of courtesy or comity between states 
 and nations, the principle is now generally received and adopted, 
 that contracts are to be construed and inteipreted according to 
 the laws of the state in which they are made, unless from their 
 tenor it is perceived, that they were entered into with a view to the 
 laws of some other state, h 
 
 The gi'and boundary line which marks the obvious hmits be- 
 tween the federal and state juiisdictions, is, that to the former is 
 given jurisdiction in all matters arising under the political laws of 
 the nation ; and such as relate to its general concerns with foreign 
 nations, or to the several states as members of the federal govern- 
 ment. To the latter, is given jurisdiction of all matters of a civil 
 nature between their citizens, or between their citizens and other 
 persons, or such as properly belong to the head of municipal law, 
 (with certain exceptions, to which we have before refeiTed,) where, 
 by special provision, contained in the federal constitution, either 
 concuiTent or exclusive jurisdiction is gi'anted to the general gov- 
 ernment — and excepting also, all powers contained in the federal 
 constitution w'hich are expressly prohibited to the states, or which 
 
 ft Story's Conflict of Laws, § 18. 
 Blauchard v. Enssell, 18 Mass. E. 4; Bank of Augnsta v. Earll, 13 Peters 589 
 46
 
 3G2 OF CONSTITUTIONAL POWERS AND LIMITATIONS. 
 
 can be exercised hj them only with the consent, or imder the con- 
 trol of congi'ess ; and powers which are prohibited to both the 
 federal and state governments. 
 
 From these views it will be seen, and it logically and neces- 
 sarily follows, that all other powers of government, compatible 
 with the nature and principle of democratic governments, which 
 are not prohibited by the bill of rights, or constitutions of the re- 
 spective states, remain with such states or with the people thereof, 
 and may be exercised by them, respectively in such manner, as 
 their several laws and constitutions may permit or direct. 
 
 Subject to the limitations contained in the federal and state con- 
 stitutions, the legislative power in the state of New York, (and it 
 is believed to be the same in every other independent state), is not 
 restricted in its power to enact laws, any more than is the British 
 parUament. a In this respect the legislature is the direct repre- 
 sentative of the people, and the depository of their power. 
 
 Statutes, or laws, under such a form of government, must there- 
 fore be made in conformity with the requirements of written con- 
 stitutions. If the forms prescribed by the constitution have hot 
 been observed, or the power has not been delegated to the legis- 
 lative body, the act is unconstitutional and void. 
 
 A constitutional law, is one made by the legislative power prop- 
 erly organized according to the requirements of the constitution. 
 Such a statute, is binding upon aU the peoj^le, citizens and others, 
 who are within the territorial jurisdiction of the legislature, h and 
 it is the duty of the executive department to see that such a law 
 is faithfully executed. 
 
 An unconstitutional law, (it' such can be called law,) is one made 
 in contravention of the powers of the constitution, and for that 
 reason it is absolutely void, because the constitution, which is the 
 supreme and fundamental law of the land ; — having greater force 
 than any statute, c such a law, the executive is not bound to see 
 enforced. 
 
 The courts possess the poAver, and it is tlieb duty when a law is 
 
 a People V. Morrell, 21 Wend. 563; Butler v. Palmer, 1 Hill. 324; Bloodgood 
 V. Mohawk & Hudson R. E. Co., 18 Wend. 9 ; Sill v. Village of Corning, 15 N. Y- 
 R. 300; People V. Draper, id. 549. 
 
 c 1 Bowv. In.st. 47. d Id.
 
 OF CONSTITUTIONAL POWERS AND LIMITATIONS. 363 
 
 unconstitutioiiul, to dechiiu it to be 8o. They "will however be 
 careful not so to declare it, except the case be very clear. The 
 determination of this question, is always a question of power, that is, 
 whether the legislature in the particular case, in respect to the 
 subject matter of the act ; the manner in which its object is to be 
 accomplished, and the mode of enacting it ; has kept within the 
 constitutional limits ; and whether the law-makers have obsers'cd 
 the constitutional conditions, a If these conditions and limita- 
 tions have been observed by the law-niakmg power, the courts will 
 not enquire further; they will assiimethat the legislative discretion 
 has been properly exercised. If the power to pass the law should 
 depend upon extrinsic facts, the coui't will presume that such facts 
 were before the legislature mIicu the act was passed ; nor will the 
 courts ever enquire into the motives of the legislature where fraud 
 and corruption are charged, and annul their action, or the statute, 
 if the charge be jjroved true. // 
 
 In analogy to the system of Crreat Britain, and Avith the views 
 of the omnipotent power of the English parliament, it was at an 
 early day claimed by man}-, unfamiliar with the American theory 
 of government ; of written constitutions ; and of a tlistribution of 
 the sovereign poAver into departments ; that the judicial depart- 
 ment possessed no power to declare a statute void, even though its 
 enactment was in conflict with express inhibitions of power con- 
 tained in constitutions. These views were set at rest by the judi- 
 cial power upon the earliest occasion. 
 
 Cliief Justice Marshall, in giving liis views on this subject, has 
 done it so clearly, and so tersely, that to transcribe them, 
 gives much better expression to the same ideas than we could give 
 in our own language ; Ave therefore copy them (with slight changes,) 
 and adopt them, c He says, " The question, whether an act re- 
 pugnant to written constitutions can become the law of the land, 
 is a question deeply interesting to the people of the United 
 States ; but, happily, not of an intricacy proportioned to its in- 
 terest. It seems necessary only to recognize certain principles, 
 supposed to have been long and well established, to decide it." 
 
 That the people had an original right to establish, for theii 
 
 a Coolej- V. Const. Lim. 18G, 7. b People v. Draper, 15 New York, E. olo. 
 
 c Marbury v. Madison 1, Cranch. 68, 70.
 
 oG-i or CONSTIITTIONAL rO"\M:RS AND LIMITATIONS. 
 
 hiture govemmeut, such principles, as, in tlieir opinion, should 
 most conduce to their own happiness, is the basis upon "which the 
 whole American fabric has been erected. The exercise of this 
 original right is a very gi'eat exertion ; nor can it, nor ought it to 
 be fi'equently repeated. The principles, therefore so established, 
 are deemed fundamental. And as the authority from which they 
 proceed is suiiremo, and can seldom act, .tliey 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 hmits not to be transcended 
 by those departments. 
 
 The government of the United States, (and the government of 
 the several states,) is of the latter description. The powers of 
 the legislatures are defined and limited, and that those limits may 
 not be mistaken or forgotten, the constitutions are written. To 
 what purpose are powers limited; and to what purpose is that 
 limitation committed to lo riling ; if these limits may, at any time, 
 be passed by those intended to be restrained ? The distinction 
 between a government with limited and unlimited powers is abol- 
 ished, if those limits do not confine the persons on whom they arc 
 composed, and, if acts prohibited, and acts allowed, are of equal 
 obUgation. 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 
 constitution is either a superior, paramount law, unchangeable by 
 ordinary means, or it is on a level with ordinary acts, and is alter- 
 able when the legislature shall please to alter it. If the former 
 part of the alternative be true, then a legislative act contraiy to 
 the constitution is not law ; if the latter part be true, then written 
 constitutions are absurd attempts, on the part of the people, to 
 limit a power in its own nature illimitable. 
 
 Certainly, all those W'ho have framed written constitutions, con- 
 template them as forming the fundamental and paramount law of 
 the (state,) and consequently, the theory of every such government 
 must be, that an act of the legislature repugnant to the constitu- 
 tion is void. This theory is essentially attached to a written con-
 
 OF CONSTITUTIONAL TOWERS AND LIMITATIONS. 306 
 
 stihition, find is consequently to be considered by courts as one of 
 the fundamental principles of our society. It is not therefore to 
 be lost sight of, in the further consideration of the subject. 
 
 If an act of the legislature, repugnant to the constitution, is 
 void, does it notwithstanding its invalidity, bind the courts, and 
 oblige them to give it eft'ect '? or, in other words, though it be not 
 law, does it constitute a rale as operative as if it was a laAv '? This 
 Avould be to overthrow in fact, what was estabhshed in theory ; 
 and it would seem, at lirst view, an absurdity, too gross to be in- 
 sisted on. It shall however, receive a more attentive; consideration. 
 
 It is emphaticaUu (he didi/ and province of t lie j mUclal depart incnl 
 to say what the laio is. Those who apply the rule to particular 
 cases, must of necessity expound and interpret that rule. If two 
 laws conflict with each other, the courts must decide on the opera- 
 tion of each. So if a law be in opposition to the constitution ; 
 if both be the laAv, and the constitution apply to a particular case, 
 so that the com't must cither decide that case, conformably to the 
 law, disregarding the constitution, or conformably to the constitu- 
 tion, disregarding the law ; the court must determine which of 
 these conflicting rules governs the case. This is the very essence 
 of judicial duty. 
 
 If then the courts are to regard the constitution ; and the con- 
 stitution is superior to any ordinary act of the legislature ; the 
 constitution, and not such ordinary act, must govern the case to 
 which they both apply. Those who controvert the principle that 
 the constitution is to be considered, in court, as a paramount law, 
 are reduced to the necessity of maintaining that courts must close 
 their eyes on the constitution, and see only the law. 
 
 This doctrine would subvert the very foundation of all AM-itten 
 constitutions. It would declare that an act, wliich according to the 
 principles and theory of our government, is entirely void, is yet, 
 in practice, completely obligatory. It would declare, that if the 
 legislature shall do what is expressly forbidden, suoh act, notwith- 
 standing the express prohibition, is in reality effectual. It would 
 be giving to the legislature, a jiractical and real omnipotence, with 
 the same breath which professes to restrict their powers witlim 
 narrow hmits. It is prescribing limits, and declaring that those 
 hmits may bo passed at pleasure ; that it thus reduces to noth-
 
 366 OF CONSTITUTIONAL POWEKS AND LIMITATIONS. 
 
 iiig, Avliat we have deemed the greatest improvement on political 
 institutions, — a written constitution, -would, of itself, be sufficient 
 in America, where written constitutions have been viewed with so 
 much reverence, for rejecting the construction. 
 
 It has been regarded as curious, that in the absence of any ex- 
 press provision in the constitutions, or the statutes of the nation 
 or states, that the judiciary should have assumed to exercise this 
 extraordinary power, of checking the legislature in the exercise of 
 theii- powers, to the extent of declaring statutes to be null and void 
 when passed m violation of constitutional restrictions. But this 
 has ever been regarded as an mherent power in the judicial de- 
 partment ; a power that they have steadily, and sometimes vigor- 
 • ously exercised from the earhest days of the republics ; and the 
 exercise of the power, if not always conceded, has been universally 
 acquiesed in as an admitted right. Tlie judicial power of the gov- 
 ernment is confen-ed upon the courts. This includes all judicial 
 power, and includes by implication, the power in question. By 
 virtue of this power, the courts decide in all cases brought before 
 them, what the true construction of a doubtful constitutional pro- 
 vision is, and when legislative acts are brought before them, they 
 decide whether its provisions, or any of them, are infractions of the 
 constitution. If their decision is, that the act is unconstitutionaL 
 it destroys its vitahty, and puts an end to all proceedings under it. 
 
 The importance of this feature in our system, and its bearing on 
 the character of the judicial department, is at once apparent. It 
 limits the power of the legislature ; it erects the judiciary at once, 
 as was intended, into a co-ordinate department, and political au- 
 thority in the government ; it practically associates them with the 
 law-making branch ; it has had a very marked eftect upon the 
 character of the legal mind, and education of the country ; and it 
 has established in itseK a degree of confidence and respect, to 
 which the citizen looks as his best secm'ity. It has elevated the 
 bar, by stimulatijag them to the highest professional efforts ; and 
 to persevering study and research ; it has made judges themselves 
 ambitious to master and declare the great principles of the gov- 
 ernment, and of American jurisprudence ; and it has given a depth 
 and breadth, and dignity, to discussions upon great legal and con- 
 stitutional questions.
 
 OF CONSTITUTION.VL POWERS AND LIMITATIONS. 3G7 
 
 " The undisputed powers of the judiciaiy, are very gi'eat. Thej 
 not only expound statutes, and mold and modify theu' own judg- 
 ments, but they declare what is meant by the comity of nations, 
 and apply the laws of foreign countries. The daily habits of busi- 
 ness are under their control; new customs every day arising, 
 stand or fall by their decisions ; and under the cover of the right 
 to enforce public policy, and protect good morals, they excite a 
 large and undefined authority over private conduct. To all this is 
 added in America, the undisputed right to declare constitutional, 
 law, and thus, in certain cases, to override the express will of the 
 legislatiu'e itself. These functions, arc ample enough to gratify 
 the most eager love of power ; and to demand the exercise of the 
 noblest intellect, and the apphcation of the most vigorous indus- 
 try." a 
 
 When a statute is adjudged to be unconstitutional, it is as if it 
 had never been. Rights cannot be built up under it ; contracts 
 which depend upon it for theu' consideration are void ; it consti- 
 tutes a protection to no one who has acted under it, and no one 
 can be punished for having refused obedience to it before the de- 
 cision was made. And what is true of an act void in tofo, is true 
 also of any part of an act "which is found to be unconstitutional, 
 and which consequently, is to be regarded as having never, at any 
 time, possessed any legal force, h So that nothing is law simply 
 and solely because the legislature have declared it to be so, unless 
 they have expressed their determination to that effect, by the 
 mode pointed out by the instrument which invests them with the 
 power, and imdcr all the forms, which that instrument has ren- 
 dered essential. 
 
 But in giving judicial construction to statutes, the courts ever 
 keep in mind the marked distinction that exists between statutes 
 of the congress of the United States under the national constitu- 
 tion, and the statutes passed under the constitutions of the severed 
 states. The government of the United States, is one of enumerated 
 powers ; all its powers are specified ; — they arc either expressed 
 in the constitution itself, or are necessarily to be implied fi-om the 
 powers that are expressly conferred. And when these powers are 
 
 Sedgwick on Const. Law 210. 
 b Cooley on Const. Lim. 188.
 
 368 OF CONSTITUTION AJL POWERS AND LIMITATIONS. 
 
 questioned, the only duty of tlie courts, is, to see whether the 
 grant of specified power is broad enough to embrace the act. But 
 statutes passed by state legislatures, under state constitutions, 
 the courts will presume to be valid, for the reason that state legis- 
 latui-es have jurisdiction of all subjects on which its legislation is 
 not 2))-oJiibi(cd by their own constitutions, or limited by the consti- 
 tution of the United States, a 
 
 The rule of interpretation by which the two constitutions are dis- 
 tinguished, is just this; the constitution of the United States must 
 have a strict construction ; state constitutions a liberal one. h All 
 powers not granted to the Union are Avithlield, while the states, 
 retain ever}' attribute of sovereignty which is not taken away. By 
 the constitution of the state of New York, "the legislative power of 
 the state, is vested in the Senate and Assembly. This means of 
 course, ilie icJioIe legislative power," c because the words are gen- 
 eral and unhmited. The peoj^le have thus parted with all the 
 power of legislation, (which was originally in them,) except such 
 as is prohibited. Where, therefore, the constitution is silent, and 
 the legislature are guilty of no usurpation of power distributed to 
 the other departments of the government, their power, humanly 
 speaking, is omnipotent. 
 
 It is not therefore for courts to define, or set limits to the 
 legislative power, nor can they hold a law to be void, which is not 
 prohibited by the constitution because in tlieh opinion, it violates 
 the spirit of our institutions, or impairs any of those rights, which 
 it is the object of a free government to protect ; nor can they de- 
 clare it to be unconstitutional, because it is morally wrong and 
 unjust. The constitution itself contains all the inhibitions that 
 exist, against legislative action. If the courts can add to these, they 
 alter this fundamental instrument, which they are not authorized to 
 do, and themselves become aggressors, and violate both letter and 
 spirit of that organic law, as grossly as the legislature could, d If 
 
 a Sill V. Village of Corning, 15 N. Y. E. 303; People v. Supervisors of Orange, 
 27 Barb. 593, 2 Park. Cr. E. 490; People v. N. Y. Cent. E. Co., 24 N. Y. 497, 504; 
 Commonwealth v. Hartman, 17 Peun. St. E. 119; Kirby v. Shaw, 19 id. 260; 
 Wiesler v. Hade, 52 id. 477. 
 
 h Commonwealth v. Hartman, 5 Harris, 119. 
 
 c People V. Toynbee, 2 Park. Cr. E. 510. 
 
 d Sharpless v. Mayor of Philadelphia, 9 Harris IGl.
 
 OF CONSTITUTIONAL rOWEPtS AND LIMITATIONS. 3G9 
 
 the courts can add to the things that are inhibited, they can also 
 take away. If they can change at all, they can destroy entirely. 
 They cannot supply what they may suppose is a casus omissus m 
 the constitution, nor declare unconstitutional an act of the legisla- 
 tare which they conceive wrong, unjust, or oppressive. 
 
 Nothing then, is more important, in securing the harmonious 
 workings of our system of free government, than that each of these 
 three departments between whom the sovereign power is distribu- 
 ted, should, respectively, keep Avithin its own legitimate sphere of 
 action. 
 
 While the legislature cannot overstep the prescriljed bounds of 
 power contained in the constitution, the Judicial power is also 
 limited, and they are confined to the duty of ascertaining whether 
 any given laws do violate the constitution. It is not for the judi- 
 ciary or the executive departments to enquire whether the legisla- 
 ture has violated the genius of the government, or the general prin- 
 ciples of libert}^ or the rights of man, or whether these acts are 
 wise or expedient, — but only Avhether the legislature has tran- 
 scended the limits prescribed by the fundamental law. a 
 
 Upon the American theory of state governments, the legislature 
 possess all legislative power not prohibited. Upon this theory, 
 there is a vast field of undefined power, not reserved, given away 
 or prohibited, in which the legislature can exercise fuU and un- 
 controlled dominion ; their use of this great domain is limited only 
 by their own discretion ; the people have conferred on them the 
 whole omnipotence of the British parhament, except in so far as 
 it is limited by the prohibitions of the constitution itself, and by 
 those powers which they had previously granted to be exercised 
 by the federal constitution. True, these great powers so confeiTed 
 by the people, are liable to be abused, and experience has taught 
 the lesson, that they are abused ; but this is inseparable from the 
 nature of all human institutions. The wisdom of man has never 
 conceived of a government with power sufficient to answer its legi- 
 timate ends, and at the same time incapable of mischief, h 
 
 a Weisler V. Hade, 52 renn. St. E. 478; Sill v. Village of Corning, 15 X. Y. 
 303; People v. Siipemsors of Orange, 27 Barb. 593 ; People v. Toyubee, 2 Park 
 Crim. R. 533. 
 
 a Sharpless v. Mayor of Pliilacielphia, 9 Harris IGl. 
 
 47
 
 370 OF COXSTITUTIOXAL TO^'EES AND LimTATIONS. 
 
 No political system can be made so perfect tliat those entrusted 
 with power will not sometimes depart from the true course of rec- 
 titude. In the best, much must be trusted to the discretion ol 
 those to whom power is committed. So in ours, the people have 
 confided large powers to the legislature, and must rely upon tho 
 wisdom and honesty of their representatives for a faithful execu- 
 tion of their duties ; and the representative AveU knows, that he is 
 directly accomitable to his constituents for the manner in which 
 he discharges his trusts, and that those constituents possess the 
 power to correct the evil by dismissing him, or more properly, by 
 refusal further to continue him in place. 
 
 In the practical workings of our system it is seen, and to be deplor- 
 ed, that from time to time, members of the legislatm-e, not only forget 
 their duties, but utterly disregard the obligations they owe to their 
 constituency, nay, even recklessly trample upon the most sacred 
 principles of right and justice ; stHl, if they act within the scope 
 of powers conferred upon them, and are not prohibited by the 
 constitution, the judicial power cannot pronounce the act void, 
 merely because in their judgment it is contrary to the principles 
 of natural justice, a Nor is it certain that it would be wise to 
 change the constitution for this cause, and confer upon judges the 
 power of exercising a corrective against unwise, oppressive, or 
 corrupt legislation. The power would still be left to the exercise 
 of the judgment of fallible men, and it is not beyond the power of 
 imagination, to conceive of judges, as corrupt as legislators. 
 
 But the question will be further discussed as to the legislative 
 powers under state constitutions of the right to take private pro- 
 perty for public use, when we come to treat of the right of eminent 
 domain, and the extent of the taxing power. 
 
 a Culder t. Bull, 3 Dallas, E. 399. Sottcrlee v. Mattemore, 2 Peters, E. 380. 
 Fletcher v. Peck, G Crancli. 87.
 
 OP CONSTITUTIONAL POWERS AND LIMITATIONS. 371 
 
 CHAPTER XL 
 
 OF THE LIMITATION OF CONSTITUTIONAL POWER IN TAKING PRI- 
 VATE PROPERTY FOR PUBLIC USES, UNDER THE RIGHT OF 
 EMINENT DOMAIN. 
 
 We have already shown the omnipotence of absolute legislative 
 })ower, when unrestrained by constitutional restrictions. Under 
 the sovereign power of every government, the right of taking pri- 
 vate property for public use is one of its incidents. The necessity 
 for exercising this right, is to be determined by the legislative 
 power, subject to the constitutional permission, and its condition 
 of limitation. 
 
 The fifth article of the amendments to the federal constitution 
 prohibits private property from being taken for pubhc use, with- 
 out just compensation. This condition, is a right that pertains to, 
 secures, and may be claimed by every citizen of the United States. 
 This right to take, subject to this condition, has ever been held to 
 bo one of the high prerogatives of sovereignty, when necessity 
 calls it into exercise for the pubhc use, only, and it is thus hmited 
 by the national constitution, and by the condition annexed, or 
 rendering to the citizen, a just compensation. The same condition 
 is imposed by the constitution of the state of New York, by sec- 
 tion 6, article 1, of the constitution of 18J:6. In states where no 
 such condition is found in the constitution, it has been held to be 
 secured to the citizen by the prmciples of natural justice, a which 
 is ever the universal common law of mankind. 
 
 We find it declared by the highest court in this state, h notwith- 
 standing the constitutional protection to private property, that 
 there are still two different and distinct principles upon which 
 private property may be justly taken, used, or destroyed for the 
 benefit of others. Both of these principles, are commonly compre- 
 
 a Bristol v. Ne-wchester, 3 N. Hamp. R. 535; Jones v. Walker, 2 Paiue, 6S8; De- 
 Varraigne v. Fox, 2 Blatch. 95. 
 
 b Stone v. Mayor of N. Y., 25. Wend. 173.
 
 372 THE EIGHT OF EMINENT DOMAIN. 
 
 hended and confounded iu the phrase of "taking ordestroymg pri- 
 vate property for the piablic benefit." One of these prmciples is 
 appUed, ^Yhen the i)roperty of an individual is talcen by the au- 
 thority of the state for the conjnion use or benefit of the public ; 
 that is to say, either for the general use and benefit of the people 
 of the state in its aggregate character, or else, of all such citizens, 
 •without distinction, as may happen to have occasion for the use of 
 such property. Such as lands taken for a canal, or a road, are in- 
 stances of such application. 
 
 Such, too in another and secondary form, is the taking of lands 
 by a coi"porate company for a railroad, or turnpike, under state 
 authority, "svherc the company enjoying a public fi'anchise, so far 
 represents, and is a tnistee for the public. And this is done solely 
 by virtue of that right of eminent domain, whereby the whole prop- 
 erty of individuals who compose the state, in held subject to the 
 sovereign authority, to be used for the common advantage. It 
 rests substantially upon the same foundation with the right of tax- 
 ation. 
 
 In otwithstanding these safeguards in the constitution, it is and 
 ever has been universally conceded, and at this day, cannot be 
 justly disputed, that in our own government, (as really in every; other 
 civihzed political government,) there inheres, necessarily, the right, 
 and the d'di/, of guarding, securing, and continuing its own exist- 
 ence ; and of protectmg and promoting the interests and welfare 
 of the whole comnmnity at large. This power, and this duty, are 
 to be exerted not only in the highest acts of sovereignty, and in 
 the external relations of governments, but they reach and compre- 
 hend also, the interior polity and relations of social life, which 
 should be regulated with reference to the advantage of the whole 
 society. Among these powers of government, is that which is de- 
 nominated the eminent domain of tlie state. This, as its name im- 
 ports, is paramount to all jmvatc rights vested under the govern- 
 ment, which last rights, are, by necessary implication, held iu sub- 
 ordination to the power of eminent domain, and must yield in every 
 instance to its proper exercise, a 
 
 It is a question not now controverted, that under every estab- 
 lished form of government, the tenure of property is derived me- 
 
 o West River Br'uV'e Co. v. Dix, GIIow. U. S. R. 531.
 
 THE RIGHT OF EMINENT DOMAIN. 6(6 
 
 diately, or immediately from the sovereign power of the state, as 
 a poUtical body, organized in such mode, or exerted iu such a svay 
 as the people have thought proper to ordain. It can rest on no 
 other foundation ; it can have no other giiuraiitee. It is owmg to 
 this theoiy, only, that appeals can be made to the laws, either for 
 the protection, or assertion of the rights of property. Upon any 
 other hj'pothesis, the law of property would be simply the law of 
 force. The instances of the exertion of this power, in some mode 
 or other, from the very foundation of civil government, have been 
 so numerous and familiar, that at this day, little doubt or ques- 
 tion is seriously or intelligently made against it, and it seems to 
 be as well conceded, that the power to exercise it remains with the 
 state government, except when its exorcise is demanded for na- 
 tional purposes ; and, as is conceded, tliis power is not brought 
 within the pur\aew of the constitutional restriction. At all events, 
 the power of appropriation of property to public uses, has never 
 been held by any judicial tribunal as impauiug the obligation of 
 contracts between the state and its citizens in the sense of the 
 constitution, nor, that this was a power granted to the general 
 government. 
 
 The exercise of the right of eniiueut domain, by which individual 
 property is taken for public use, is an inherent power of sover- 
 eignty, and is a necessity of government ; were it not so, the will 
 or caprice of an individual, might obstruct and defeat the most 
 important enterpn'ses for public or governmental improvements. 
 
 The constitution of neither the federal government, nor of the 
 states, have altered this rule of the common law. The legislature 
 of the state of New York have declared, that " the people of tliis 
 state in their right of sovereignty, are deemed to possess the 
 original and ultimate property in and to all lands within the jiuis- 
 diction of the state." a The right to take property for public use, 
 therefore, is but the exercise of the po-sNer which was originally 
 vested in the people in their collective capacity ; — which they have 
 retained over the property of individuals ; — and which they can 
 resume at any time when necessary for pubhc use. 
 
 This right is complete without any action on the part of the 
 state, in ceiiain property in which it is supposed no interest had ever 
 
 (/ 1 Kev. Stat. 718, § 1, 4 Kent's Com. 3 ; Taylor v. Porter, 1 Hill. 14.",.
 
 374: THE EIGHT OF EMINENT DOMAIN. 
 
 been acquired by indi^dduals ; such as the rights of na^dgation, in 
 its lakes and other navigable waters ; the rights of fishery in certain 
 public M-aters ; and the right of the state to precious metals which 
 may be mmed within its hniits. It is seldom however, that it be- 
 comes necessary to speak of eminent domain, except in connection 
 with those cases in which the government is necessitated to appro- 
 priate property against the will of the owners. The right itself is 
 generally defined, as if it were restricted to such cases. It is said 
 to be that superior right of property j)ertaining to the sovereignty, 
 by which the private property acquired by its citizens under its 
 protection, may be taken, or its use controlled for the public bene- 
 fit without regard to the wishes of the owners, a 
 
 Tliis right is supposed to have existed anterior to the constitu- 
 tion or statute ; it is an acloiowledged principle of the social com- 
 pact, which is understood to have been assented to by the original 
 members of it, that in pubhc emergencies, the right of indi\dduals 
 over their property, must yield to the superior necessities of the 
 state. The fi-amers of our national and state constitutions, it is sujo- 
 posed, framed this protective clause from the principles laid down 
 by the ancient writers of public law applicable to this subject. 
 But except for the extreme right to resort to this power, the 
 security of fife, liberty and property, lies at the foundation of the 
 social compact ; and to say, that the grant of legislative power, in- 
 cludes in it the right to attack private property ; is equivalent to 
 saj-ing, that the people have delegated to their servants the power 
 of defeating one of the great ends for wliich the government was 
 established. 
 
 This right, in a general sense, pertains to the state, rather than 
 to the national government ; though whenever the same reasons 
 exist, on which the right rests, viz., the necessities of government, 
 for the purpose of performing its ordmary and essential functions ; 
 perpetuating its existence ; and controlling and regulating matters 
 of a public natiu'e for the benefit of its citizens in common ; the 
 national government possess the same inherent power to exercise 
 the right of eminent domain, as an incident of government. 
 
 Private property taken for public use by right of eminent do- 
 
 a Cooley on Const. Lim. 524; Pollard's Lessees v. Hagan, 3 How. U. S. R. 223; 
 People V. Mayor, &c., N. Y. 32, Barb. 112, 119.
 
 THE EIGHT OF EMEsEN'T DOiLVIN. 375 
 
 inain, (unlike taking it by taxation,) is taken, not as the owners 
 share of contribution to a public burthen, but as so much beyond 
 his share ; a and it operates upon the individual, without reference 
 to the amoimt or value exacted from any other mdividual, or class 
 of individuals. 
 
 " This right of resumption of property for public use, may be 
 exercised not only where the safety, but also where the interest, 
 or even the expedience of the state is concerned, as where land 
 is w'anted for a road, canal, or other public improvement." h " It 
 belongs to the legislature to determine, whether the benefit to the 
 pubhc fi'om an improvement, is of sulKcieiit importance to justify 
 the exercise of the right of eminent domain, in thus interfering 
 with the private rights of individuals." In cases of pubhc im- 
 provements, fi'om which a benefit would result to the pubhc, this 
 right of eminent domain may be exercised, either directly by the 
 agents of the government, or through the medium of coi-porate 
 bodies, or by means of individual enterprise." c 
 
 But the sovereign power, has no right to take the property of 'i 
 one citizen and transfer it to another, even for a full compensation, \ 
 where the public interest will not be promoted thereby ; and an \ 
 act of the legislature making such a transfer, would be a violation '' 
 of the contract by which the land was granted by the government ; 
 and repugnant to the constitution, d 
 
 " It cannot be a rightful attribute of sovereignty in any govern- 
 ment professmg to be foimded upon fixed laws, however despotic 
 the form of the government might be, to take the propei-ty of one 
 individual, and bestow it upon another. The possession and exer- 
 cise of such a power, would be uicompatible with the nature and 
 object of aU government ; for it being admitted that a chief end 
 for which government is instituted, is, that every man may enjo}- 
 his own ; it follows necessarily, that the rightful exertion of a 
 power by the government, of taking arbitrarily fi-om any man 
 
 a People v. Mayor of Brooklj-u, 4 N. Y. 424. 
 
 b Beekman v. Saratoga & Schenectady R. R. Co., 3. Paige 73; Wager v. Troy 
 Union R.R. Co., 25 N. Y. 530. 
 
 c Id; Williams V. N. Y. Cent, R. R. Co., IG X. Y. R. 97; DoVarraigne v. Fox, 2 
 Blatch. 95. 
 
 d Varick v. Smith, 5 Paige, 137; Beekmau v. Sar. & Schenectady R. R. Co., 3 
 Paige, 73.
 
 376 THE EIGHT OF EMINENT DOMAIN. 
 
 what is liis own, for the purpose of giving it to another, would sub- 
 vert the foundation principle upon which the government was or- 
 ganized, and resolve the political community into its original cha- 
 otic elements," « even though compensation be made. 
 
 But it is no objection to the power conferred by the legislature 
 upon a corporation to take such property, — that it contributes 
 also to the emolument or advantage of such corporation, or to 
 that of mchviduals. h But such a power should not be attempted 
 by the legislatm'e, imless the benefit which is to result to the pub- 
 he is of paramount importance, in comparison with thq individual 
 loss or inconvenience, c 
 
 There has been much controversy in the courts, imposing great 
 emban'assment on them, in settling the Ime of demarkation be- 
 tween a use that is public, and one that is strictly private ; no rule 
 can be laid down that will apply to all cases. 
 
 The great difficulty that attends the exercise of this right, is, m 
 determining the limits that rightfully bound it ; for while all admit 
 the right, no one succeeds in defining clearly the degree of neces- 
 sity that justifies the exertion of it ; in fact, the attempt to estab- 
 lish a rule, would show that it was impracticable. " It takes place 
 (say the writers upon natural law,) only in case of state necessity, 
 which ought not to have too great an extent, but should be tem- 
 pered as much as possible with the rules of equity, d 
 
 This right of eminent domain, is not of itself a power granted 
 by statute. The scope of discussion proposed in this work, there- 
 fore, is, what hmitations the constitution has imposed upon its ex- 
 ercise. 
 
 Whether or not the purpose for which private property is taken, 
 is a pubhc use, must as a general rule, be left to the wisdom of the 
 legislature to determine, e Some of the state governments by 
 their legislation, have gone much farther than others in the exer- 
 cise of this power. Its appropriate exercise by government, should 
 be confined to its own necessities, in furnishing facilities to its cit- 
 
 aBloorlgood v. M. & H. E. E. Co., 18 Wend. 5G; EDibury v. Connor, 3 N. Y. 
 511, 517; Taylor v. Porter, 4 Hill, 140. 
 
 h Heyward v. Mayor of New York, 7 N. Y. 314; Buffalo & N. Y. R. E. Co. v. 
 Brainard, 9 N. Y^ 100; People v. Smith, 21 N. Y. 598. 
 
 c Id. 16. d Burlimaque Prin.Law, 145. 
 
 e 2 Kent's Com. 340.
 
 THE EIGHT OF EMINENT DOMAIN. 377 
 
 izens, iu regard to tliosc matters of public needs. Convenienco 
 or welfare, Avliicli, on account of their peculiar character, and the 
 difficulty of making provision for them otherwise, it is both proper 
 and usual for the government to provide, a ' 
 
 This ground of pubHc necessity rests upon the basis, that private 
 property must yield and become subsen-ient to the pubhc welfare ; 
 and the power to take, may be exercised directly by the goveni- 
 a Cooley ou Const. Lim. 533. 
 
 Note 1.— The ])roinicty of taking private property for a public use, is not a 
 judicial question, but one of political sovereigntj', to be tletorniined by the legis- 
 lature, either directly or by delegating the power to public agents, proceeding in 
 such form and nianner us it may prescribe. People ex rel Herrick v. Smith, 21 
 N. Y. 595, 598. 
 
 It was held by Judge McLean, in the supreme court of the United States, at 
 Chambers, the report of which is found in Vol. 3, Law Reg., No. 3, Old Series, 
 page G03, in the case of the United States v. The Railroad Bridge Co. , that the 
 right of eminent domain was in the state, and that they can authorize a railroad 
 through the public lands of the United States located in such state. He said, p. G17, 
 &c. : "A state in the discharge of its ordinary functions of sovereignty, has a right 
 to provide for an intercourse between its citizens, commercial and otherwise, in 
 every part of the state, by tlie establishment of easements, whether they be common 
 roads, turnpikes, plank, or railroads. The kind of easement must depend upon 
 the discretion of the legislature. And this power extends as well over the lands 
 of the United States, as to those owned by individuals." "It is a power which 
 belongs to the state, and the exercise of which is essential to the prosperity and 
 advancement of the country." 
 
 An act of the legislature which authorizes a railroad corjioration to use the 
 streets of a city for laying the track of its road, is not taking of puhllc property 
 for local or private use, and is therefore constitiitional. People v. Law, 34 Barb. 
 494. But where the adjacent proprietors have title to the centre of the street, 
 subject to the public easement and rights in the street, it cannot be so 
 taken except upon full compensation, they still possess rights which courts 
 are bound to protect. People v. Law, 34 Barb. 494. The use of the street 
 by the railroad is a new burthen, beyond the public easement, which cannot be 
 imposed by legislative authority without compensation to the owners in fee. 
 Wager v. The Troy Union R. R. Co., 25 N. Y. 526; Williams v. N. Y. Cent. R. R. 
 Co., IG N. Y. 97. But the use of streets in the city of New York, taken under the 
 right of eminent domain, for city railroad purposes, under the authority of the 
 act of the legislature, is not a taking of private property for public use in such a 
 sense as to require compensation to be made to the owner of the adjacent lots. 
 The fee of the streets in that city was acquired under an act of the legislature, 2 
 R. S. 209, Act of 1813. The city hold the fee of the streets in trust for public 
 use, for all the people of the state, and not as corporate or municipal property. 
 The ivvLst hcing puhlici juris, it is under the unqualified control of the legislature. 
 People v. Kerr, 27 N. Y. 188. 
 48
 
 378 TEE EIGHT OF EMINENT DOMAIN. 
 
 ment itself, or by the agents of government, mdi\'idual or corporate 
 whom the legislature may authorize for this pui-pose. a Among 
 the pmiioscs that have been declared public, is that of making 
 pubhc highways, turnpike and planla'oads, railroads, and canals; of 
 erecting and constructing wharves and basins ; of estabhshing fer- 
 ries ; of di-aining swamps and marshes ; of bringing water to cities, 
 villages and towns ; to raze houses to the gi'ound ; and to prevent 
 the spreading of a conflagration.?) Tliis last case however is not by 
 virtue of the right of eminent domain c but a regulation, or a right, 
 gi'owing out of the law of incvitaUe necessity, caUed the police 
 power, belonging to every inchvidual, not conferred by law, but 
 tacitly excepted from all human codes. The right to appropriate 
 private property to pubhc uses, is to be regarded as lying dormant 
 in the state, until legislative action is adopted, pointing out the 
 occasions, the mode, conditions and agencies for its appropriation. 
 It can then only be taken pursuant to law, but a legislative act 
 declaring the necessity, is for this purpose, the law of the land, and 
 no further adjudication or finding is essential, d The principle 
 thus recognized, it has been held, is no violation of justice or sound 
 pohcy, and in no degree tends to impair the obligation or infi'inge 
 upon the sanctity of contracts. It rests upon the basis, that public 
 convenience and necessity are of paramount importance and obli- 
 gation, to which, when duly ascertained and declared by the sov- 
 ereign authority, all minor considerations and private rights and 
 interests must be held subordinate; otherwise great pubhc im- 
 provements, rendered necessary by the increasing wants of society, 
 in the development of ci\dhzation and the progress of the arts ; 
 might be prevented. The only true rule of policy, as well as of 
 law, is, that a grant for one pubhc purpose, must yield to another 
 more urgent and important, and this can be efi'ected without any 
 infi'ingement on constitutional rights of the subject. If in such 
 cases, suitable and adequate provision is made by the legislature for 
 the compensation of those whose property or franchise is injured or 
 taken away, there is no violation of public faith or private right, e 
 
 aBeekmanv. Saratoga and Schenectady RE. Co., 3 Paige, 72; Wilson v. The 
 Black Bird Creek Marsh Co., 2 Pet. 251. 
 
 h 2 Kent's Com. 338. c EusseU v. Mayor of New York, 2 Deuio, 4G1 . 
 
 d Cooley on Const. Limit, 528. 
 
 € Central Bridge Corporation v. City of Lowell, 4 Gray, 481, 482.
 
 THE IJIGIIT OF EMINENT DOMAIN. 379 
 
 But the property of individuals, cannot even be appropriated by 
 the state, under this power, for the mere purposes of adding to tlio 
 revenues of tlic state. The exercise of such a pow(;r for such a 
 purjDose, ■would bo utterly destructive of individual right, and 
 break down all the distinctions between meum and tuuin, and 
 annihilate them forever at the pleasure of the state, a 
 
 It is regarded as the duty of every government, as the wants of 
 traffic and travel require facihties beyond those afforded by the 
 common highways, or their own private ways, over which the 
 pubKc and individuals may pass with their own vehicles, or ani- 
 mals ; to provide and establish a higher grade, and more improved 
 character of thoroughfares for pubUc use ; and whether these are 
 constructed and kept in repair by an assessment upon the citizen, 
 by way of money or labor, by tolls on turnpikes and canals, or by 
 fares on railroads, they are all equally projected for pubHc use ; 
 the public at larg 3 arc interested in their establishment, and the 
 government have the right to apj^ropriate private proi^erty to that 
 end ; and such right comes within this reserved power called the 
 right of eminent domain. 
 
 The court of dernier resort in this state, seems to have settled 
 the question of power under o;ir constitution, as to the right of 
 taking private property for public pui-poses, either directly by the 
 state or otherwise ; they have said, " that the regulation of all 
 matters connected with the internal traffic and commerce of the 
 state ; the development of its wealth and resources ; the advance- 
 ment of its material interests ; either by constructing of routes and 
 means of communication and commerce between different parts 
 of the state, by land or water, is clearly Avithin the legislative 
 power, which, by the constitution, is vested in the senate and as- 
 sembly. A restriction upon the legislature in respect of a matter 
 which is properly the subject of legislation, will not be implied, 
 but must be clearly expressed. It will not be presumed in the 
 absence of a clearly expressed intent, that it was designed to 
 cripple the power of the legislature in 20 important a part of its 
 duties, as to deprive it of the power to develope the resoui'ces of 
 the state* and attract within its Hmits the commerce and trade of 
 other states by making available private enterprise, or by creatmg 
 
 a Buckingham v. Smith, 10 Ohio R. 296.
 
 380 THE EIGHT OF EMIXENT DOMAIN. 
 
 other facilities for travel and transportation ; or by any means 
 •wliich vreie accessible." a 
 
 This extraordinary power has been exercised to a much gi-eater 
 extent in some of the states than others, and tliis, creates such a 
 diversity of views as to the extent of the power, that no line of 
 demarkation can be laid down as a universal rule. By the law of 
 the states of Massachusetts, Maine and Ehode Island, the estab- 
 lishment of mills is regarded, as beneficial to the pubHc, and mill 
 owners and occupants, are authorized to overflow the lands of other 
 persons, and to take such proceedings therefor, as are provided in 
 the statutes of those states ; h and the law of North Carolina is 
 not materially, though somewhat different, c 
 
 The law in this respect, in Tirginia, Kentucky, Missouri, Mis- 
 sissippi, Alabama and Florida, are substantially alike. By these, 
 a person owning the land on one side of a watercourse, who pro- 
 poses to erect a water giist mill, or other machine or engme, use- 
 ful to the public, may make application to the court, through 
 which, by appraisement by a jury, he obtains the right to use the 
 opposite bank — and the right to flow the lands of others, provided 
 the flowing does not extend to a house, yard, &c., and not to create 
 a pubhc nuisance. The proceedings under the statutes being 
 regular, immediately divests the title of the owner of the land and 
 vests it in the commonwealth, in full and absolute dominion, d 
 
 The constitutional soundness of these statutes, has been gi-eatly 
 doubted in other states, but long acquiesence, and repeated judi- 
 cial and legislative precedents, would seem now to put it out of 
 the power of individuals, to test the soundness of the basis, upon 
 which the governmental action has proceeded, e 
 
 An act of the legislature taking land in this state for pubUc use, 
 is not even unconstitutional, because the instrumentality employed 
 
 a The People v. N. Y. Cent. EE. Co, 24 N. Y. 497, 8; People v. Draper, 15 id. 54u. 
 
 b The Bo.ston & Eoxbiiry Milldam Corporation V. Newman, 12 Pick. 467; French 
 V. Braintree Manufac. Co., 23 id. 219; Eev. Laws of Mass., Ch. 116; Eev. Laws of 
 Maine in Append, p. 9; Laws of Ehode Island (Ed. 1844) and Append, p. 15. 
 
 c See Gillette v Jones, 1 Dev. & P>at. E. 339, and the N. C. Statute therein re- 
 ferred to. 
 
 (Z Statute of Virginia in Append, p. 22; Statute of Kentucky of 1797, 1 Stat. 
 
 Kentucky, 606; Laws of Indiana, 65, Eev. Code of 1831; Laws of Missouri, 587; 
 Clay's Dig. of Laws of Alabama 376; Thompson's Dig. of Laws of Florida 401, &c. 
 e Matter of Townsend. 39, N. Y. 171.
 
 THE PJGHT OF EMINENT DOMAIN. 383 
 
 for that purpose is a coii^oration crcatecl by the laws of another 
 state ; nor because such corporation derives a pecuniary benefit 
 from the use of the lands so appropriated ; nor because the lands 
 appropriated, arc to be used for the maintenance of a navigable 
 canal which runs along the border of the state, but Avithout its 
 limits. If the use be in its naaire i)ublic, the legislature are the 
 sole judges of the question, whether the benelit to our citizens, or 
 to the state is such, as to warrant the taking of private property 
 therefor ; and are also the sole judges of the question, what su- 
 pervision or control over the use should be retained, in order to 
 secm^e the contemplated benefits. 
 
 But it should be kept in mind however, that whenever in pur- 
 suance of law, the property of an individual is to be divested by 
 these proceedings against his will, there must be a strict compli- 
 ance with all the provisions of the laws, which are made for his 
 protection and benefit. Those provisions must be regarded as in 
 the nature of conditions precedent, which must not only be com- 
 plied with before the right of the property owner is disturbed, but 
 the party claiming authority under the adverse proceeding, must 
 aflirmatively show such comphance. 
 
 In the state of New York, the legislature have never, it is be- 
 lieved, attempted to exercise the right of eminent domain in favor 
 of miUs, " sites for steam engines, hotels, churches, and other like 
 public conveniences," a and we do not therefore, deem it necessary 
 to hazard an opinion, Avhether such a right would be sustained if 
 granted ; though the legislature have granted to municipalities, 
 and districts, to take and appropriate for such uses, as for district 
 school houses ; to counties for their court houses and jails ; and 
 to cities for town halls, reseiToirs of water, sewers, gas works, and 
 other public works of like importance. In such cases the taking 
 is public, the use is public ; the benefits to accrue therefrom is 
 public, as it is shared in a greater or less degree by the whole 
 pubUc. b 
 
 There is no species of property except money, or rights in action, 
 that seem to be exempt from the power of government, to seize 
 and appropriate it to public use under the right of eminent domain. 
 
 a Hay v. Coliocs Co. 3. Barb, 47. 
 
 b Cooley on Const Lim,o37 ; Nichols v. Brulgcport. 23 Com, 189.
 
 382 THE EIGHT OF EMINENT DOMAIN. 
 
 Taking money under the right of eminent domain, when it must 
 be compensated m money afterwards, could be nothing more nor 
 less than a forced loan, Avhich could only be justified as a last re- 
 sort in a time of extreme peril, where neither the credit of the gov- 
 ernment, nor the power of taxation could be made available. 
 This would rather be a case, coming umier no law, but that of an 
 oveiTuling necessity, a The right to a franchise, is of no higher 
 order, and confers no more sacred title than the right to land' 
 and when the public necessities require it, the one as well as the 
 other may be taken for pubhc purposes, on making suitable com- 
 pensation ; nor does such an exercise of the rights of eminent do- 
 main, interfere with the inviolabihty of contracts, if such fi'anchise 
 happens to be a gi'ant. h 
 
 Lands for public ways, timber, stone and gravel to make and 
 improve or repair public ways and canals ; c a building that stands 
 in the way of a contemplated improvement ; or which for any 
 other reason it is necessary to take, remove or destroy for the 
 public good;(i streams of water, e corporate franchises,/ and 
 generally it may be said, legal and equitable rights of eveiy de- 
 sciiption, g may be so taken. 
 
 The legislature has power to authorize a corporation or indi- 
 viduals and their assigns in constructing and operating a rail- 
 road, " to run upon or mtersect or use any portion" of the railroad 
 track of another company upon making due compensation there- 
 for, h And where the legislature by an act authorize the con- 
 struction of highways across railroad tracks, without compensa- 
 tion, they do not violate the constitutional provisions against 
 taking private property for public uses, or impair the obligation of 
 a contract. The title, which a railroad corporation acquires to 
 its own track, is quahfied, as being taken for public use, and for 
 
 a Id 527. 
 
 h Eichmond EK.. Co v. Louisa EE. Co. 13 How, 71; West Eiver Bridge v. Dis. 
 G How, 507; Matter of Kerr. 42 Earb, 119. 
 
 c Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 5G9. 
 
 d Wells V. Somerset, 47 Maine E. 345. e Gardner v. Newburgh, 2 John.Ch. 1C2. 
 
 /Piscataqua Bridge v. N. Hampshire Bridge, 7 N. Hamp. E. 35. 
 
 g Cooley on Const. Lim. 526. 
 
 A Matter of Kerr, 42 Barb. 119, and cases cited; Sixth Avenue E. E. Co.v. 
 Kerr, 45 Barb. 141.
 
 THE rJGnX OF EMINENT DOMAIN. 383 
 
 the pmposc of the incorporation, and is subject to the exercise by 
 the legislature of all the poAvers to -which the franchises of the 
 corporation are subject, a 
 
 We have already said, the question of the necessity for the ex- 
 ercise of this power belongs to the government, and is only exer- 
 cised -when authorized by tlie legislative department, and over 
 which tlio judicial i)ower possesses no control. The question is 
 always regarded as being one of political sovereignty in character. 
 
 We do not intend by this, to say, that the exjDression by the 
 legislature that it is for the public interest in a particular case to 
 exert the right of eminent domain, determines that question ; that 
 would be setting the legislative power above the constitution, but 
 only to concede to the legislature the right to appropriate private 
 property to public use. 
 
 When the public use is local and limited, the power is often 
 conferred upon some local tribunal, or agent, and given to them 
 to decide upon the necessity, and regulate the proceeding ; and the 
 omission to provide for a trial by jury in such case, Ls held to be 
 no violation of constitutional right, h and the state is under no 
 obligation to make provision for judicial contest upon that ques- 
 tion ; though this is often done, as in cases of laying out high- 
 ways, &c. 
 
 The appropriation of private property for this purpose, must 
 however, always be limited to the necessity of the case ; and this 
 question of necessity is one over which the judicial power has some 
 control. No more of private property can be so appropriated than 
 the proper tribunal shall adjudge to be necessaiy for the particular 
 use for which the appropriation is made. When only a part of a 
 man's lands are needed by the public, this will not justify the tak- 
 ing of the whole, even though it should be taken under the provi- 
 sions of a statute of the legislature, authorizing the taking the 
 whole. The moment the appropriation goes beyond the necessit}' 
 of the case, it ceases to be justified by the principles which under- 
 lie the right of eminent domam. c 
 
 This question has caused much Utigation in the courts, and was 
 
 a Albany Northern R. E. Co. v. Brow'nell, 24 N. Y. 345, 349. 
 
 h People V. Smith, 21 N. Y. E. 5'J5. 
 
 c Cooley on Const. Lim. 540 ; Bennett v. Boyle, 40 Barb. 551.
 
 384 THE EIGHT OF EMINENT DOJMAIN. 
 
 left by the statutes of this state as unsettled, as to whom the power 
 of exercising the discretion was vested ; w^hether in the legislature, 
 in the railroad or other corporatioji, or in the courts. This ques- 
 tion has been very recently settled in this state in regard to rail- 
 roads, by an amendment of the general statute concerning the 
 formation of such companies, w^here new lands are requked by an 
 existing railroad company, and by a construction of that amended 
 statute in the Court of Appeals a not yet reported. 
 
 Under an amendment of the general act of 1850, by the statute 
 of 185-i, existing railroad companies were authorized to acquire 
 additional lands/or iJie purposes of such company, as it would have 
 in the location of a line of road in the first instance. By another 
 amendment of this general statute, by the legislature of 1869, such 
 raih'oad company, and such existing railroad company, were au- 
 thorized to acquire such real estate, or such additional real estate, 
 for the purpose of its incorporation, or for the purpose of running or 
 operating such road, or for any other purpose necessary to the oper- 
 ation of such railroads, ihc. In givuig construction to this amended 
 statute, the Court of Appeals, as appears from the syllabus of the 
 case reported in the Law Journal, 1) laid down the following eight 
 propositions, viz: 
 
 1. The right to take property for pubhc use, is to be exercised 
 by the legislative power, and this power can determine for what 
 purposes private property can be taken, and when the necessity 
 exists which calls for its appropriation, — and this power can be 
 exerted through agents, whether individuals or corporations. 
 
 2. The legislatui'e may therefore authorize a railroad coipora- 
 tion to take j^i'ivate property for the purpose of its incorporation, 
 under a delegation of its power of eminent domain. 
 
 Under the general raihoad act, this taking must be done through 
 an application to the court, upon notice to persons interested, and 
 a hearing and determination of the court thereupon. 
 
 3. Under the statute of 1869, extending the powers granted by 
 the original act of 1850, the determination of the question of ne- 
 cessity, and extent of appropriation, is left with the court, and is 
 not vested in the board of directors of the railroad company. 
 
 a Matter of the Ajiplication of the Eensselaer & Saratogi EE. Co. v. Davis. 
 h No. 57.
 
 THE laCIIT OF EMINENT DOiUIN. 385 
 
 4. The legislature have the power to designate the particular 
 premises which a railroad company may take for its uses, but this 
 was not done by the statute of 18G9, nor did it by that statute 
 delegate to the raih'oad company, the power to determine the ne- 
 cessity for the a])propriation of i)rivato property for corporate 
 purposes. 
 
 5. The acquisition of lands for the puiposc of speculation and 
 sale, or to prevent interference by competing lines, or in aid ol 
 collateral enterprises remotely connected with the running of the 
 road, though they may increase its revenue, arc not such purposes 
 as authorize the condemnation of private property. 
 
 G. The taking of private property for public use, is in derogation L^ 
 of private rights, and in hostility to the ordinary control of the ) 
 citizen over his estate, and is not to be extended by imphcation. \ 
 To authorize the taking of land under eminent domain, the express ' 
 authority of the law must be shown. 
 
 7. The Ecnssclacr and Saratoga llailroad Company endeavored 
 to take a quantity of land on the shore of Lake Champlain, for 
 the building of docks to accommodate vessels bringing freight, and 
 the construction of dwellings for its employees and officers. Held, 
 under the circumstances, not necessary for corporate pui'poses. 
 
 8. The decision of the special term in such a matter, is a final 
 adjudication of the question of the right of condemnation imder 
 the statute, and an appeal lies to the Court of Appeals from the 
 decision of the general term thereupon. 
 
 A statute of this state, which enacted that in all cases where 
 part only of a lot or parcel of land shall be required for laying 
 out a street, if the commissioners deem it expedient to take the 
 whole lot in the assessment, they shall have power to do so, and 
 the part not wanted for the particular street or improvement, 
 shall, upon the confumation of the report, be vested in the corpo- 
 ration, who may appropriate the same to public uses, or sell the 
 same in case of no such appropriation ; was held to be unconsti- 
 tutional, and assumed a power the legislature did not possess, a 
 
 The court in that case, held, "that the constitution by authoriz- \ 
 ing the appropriation of private property to imhlic use, impliedly \ 
 declares that for any other use, private property shall not bo 1 
 
 a lu the Matter of Albanj' Street, 11 "Weud. 151. 
 49
 
 38G THE EIGHT OF EMINENT DOMAIN. 
 
 taken from oue, and applied to the private use of another. It is 
 a vioh\tion of natural right, and if it is not in violation of the letter 
 of the constitution, it is of its spirit, and cannot be supported, a 
 
 So, it is doubtless true, that while it belongs to the legislative 
 department to iletermine and declare the propriety of the exercise 
 of this power of the right of eminent domain, they cannot exercise 
 it beyond the scoj^e of the line of necessity, and an abiise of its 
 exercise, can doubtless be controlled by the judicial poAver. The 
 necessity upon which the exercise of legislative power depends, 
 relates to the use, and the nature of the property. Should the 
 legislature either by a direct exercise of the poAver, or through 
 some subordinate agency, under a poAver conferred by them, abuse 
 the authority, by using it iiTegularly, oppressively, or in bad faith, 
 there can be no doubt of the power of the courts to furnish an 
 effectual remedy against such acts, h 
 
 While it is conceded that the legislatui'e have the power to de- 
 termine ivJien public uses require the assumption of private prop- 
 erty — it is great]^^ doubted, nay, denied, that they can declare 
 that to be a public use, that is not so ; as in the case supposed by 
 Chancellor Kent, c " If the legislature should take the property 
 of A. and give it to B, such a hiAv Avould be unconstitutional and 
 A'oid, even if the legislature should declare that to be a pubhc use." 
 Nor can it be a rule, that in all cases because the pubhc interest 
 in some degree Avill be promoted by such use, that it is therefore 
 a pubhc use. It can hardly be sujjposed that the implied 
 constitutional permission to take private property stands upon a 
 broader basis of right than such as existed by the principles of 
 natural laAv. 
 
 Constitutional authority then, being not gi*eater than that exist- 
 ing by natural law, and the legislative power being subordinate to 
 the constitutional, the sacred right of private property is above 
 the control of the legislati\'e power, except in the cases of actual 
 necessity for public use. This public use, is an inherent and in- 
 separable quality, the character of which is not changed, merely, 
 because the legislature choose so to denominate it. Legislative 
 discretion must not be confounded with sovereignty ; it is only one 
 
 a Id. h Giezy v. C. W. & Z. E. R. Co., 4 Ohio E. (N. S.) 325. 
 
 c 2 Com, 3-10.
 
 THE RIGHT Of eminent DOMAIN. 387 
 
 of three restricted organs of sovereignty, and inasmuch as sover- 
 eignty itself is proliibited from taking private property, except for 
 pubhc use, and upon due compensation, no subordinate power can 
 
 do SO. 
 
 The cpiantity of property that may be appropriated in any 
 given case, is left, it is true, very indefinite, but there is no danger 
 of permanent abuse, so long as the conservative power of the 
 courts are left to protect such interests. It has been controverted 
 in the courts, whether the power to take property by a railroad 
 company imder legislative authority, extends to an appropriation 
 for depot, and station purposes, with grounds to receive and dis- 
 charge freight, fuel and passengers ; but reason teaches that these 
 are but the incidents to the main purpose, and are such indispen- 
 sable appendages to the principal object, that the main object 
 would bo useless without it. a 
 
 We have thus far in this chapter, been treating of the reserved 
 power in our constitution, and in every other sovereignty, to ap- 
 propriate the private property of individuals, to public use. While 
 it is conceded that this power exists, it exists only with a con- 
 comitant constitutional restriction, that it shall not be taken for 
 public use without just compensation, h and with the further pro- 
 tection to the citizen, that when so taken, the compensation to be 
 made therefor, when such compensation is not made by the state, 
 shall be ascertained by a jury, or by not less than tliree commis- 
 sioners appointed by a court of record, as shall be prescribed by 
 law. c 
 
 Tliis constitutional restriction in favor of the individual is so con- 
 trolling, that the power to take his property cannot be exercised, 
 unless the provision for compensation be made. Tliis right of the 
 individual is regarded as so sacred, that a court of equity will in- 
 terpose by way of injunction to restrain action under a statute to 
 take such property that makes no provision for compensation, d 
 Such an act would be pronounced unconstitutional and void, e 
 
 n lloclgers v. ' Braclshaw, 20 Johu. 735. 
 b Const, of 1816, Art. 1, § G. 
 c IcL, Art. 1, § 7. 
 
 d Gardner v. Trustees of Newburgb, 2 John. Ch. 1G2. 
 
 e Perry V. Wilson, 7 Mass. E. 395; Stevens v. Middlesex Canal, 12id.4G8; 
 Thatcher v. Dartmouth Bridge, 18 Tick. E. 501.
 
 388 THE EIGHT OF EMINENT DOMAIN. 
 
 It seems however, that if the statute which authorizes the 
 taking, in itscK, provides a certain and adequate remedy for the 
 payment of dairiages or compensation, that it is not absokitely 
 necessary that the amount of compensation should be actually 
 ascertained and paid before such property can be taken and ap- 
 propriated to public use. a 
 
 The settled doctrine in this state, as far as it is expressed, is 
 found in the case of Bloodgood against The Mohawk and Hudson 
 Eailroad Company, decided in its highest court, the court for the 
 correction of errors ; and reported in 18 Wend. E. pp. 9 to 77. 
 The importance of the rule settled in this case, as the law of this 
 state, will excuse a liberal citation from it. The plaintiff declared 
 in trespass qnare dausumf regit, alledghig that the defendants, by 
 their servants, entered his closes, with carriages, <fcc., and broke 
 down, and destroyed his fences, and dug and subverted the soil, 
 &c. The defendants justified under their act of incorporation by 
 the legislature of the state, which authorized them by their agents, 
 mrveyors and engmeers, to cause such examinations and surveys 
 to be made, between certain points, (which included the hue over 
 jhc plaintiff's lands,) as should be necessary to determine the most 
 advantageous route, jilace or places whereon to construct their 
 railway ; and made it lawful for the defendants to enter upon, and 
 take possession, and use, all such lands and real estate as might be 
 indispensable for tlie construction and maintenance of their rail- 
 way, and the accommodations requisite and appertaining to them. 
 Provided that all lands or real estate thus entered and taken pos- 
 session of by the defendants, (which are not donations) should be 
 purchased by the defendants of the owner or owners at a price to be 
 mutually agreed upon betwixt them, and in case of disagreement 
 of the price, it should be the duty of the governor of the state to 
 appomt three commissioners, &c., to determine the damages, &c.; 
 and then stating how the act provided for the manner of assessing 
 and paying such damages, and further pleaded, that they entered 
 the plaintiff's said closes, and for the purpose of causing such 
 examinations and surveys to be made as might be necessary to 
 determine the most advantageous route, tfec, for said railroad, and 
 for the purpose of taking possession of and using so much of such 
 
 a Rodgers v. Bradsliaw, 20 Jolin. 735, 711, 745.
 
 THE RIGHT OF EMINENT DOMAIN. 389 
 
 closes as miglit be indispensable for the construction, &c., of their 
 railway and accommodations requisite, and appertaining to them, 
 and did then and there take possession for such purpose, -svhich 
 were the said supposed trespasses. To which answer tliere was 
 a demurrer and joinder. Chancellor Walwortli, 'wlio delivered the 
 leading opinion of the court, laid down the law as follows: "It 
 ccrtainl}^ was not the intention of tlie framers of the constitution 
 to authorize the i:>roperty of a citizen to l)c taken and actually 
 appropriated to the public use, and thus to compel him to ti-ust to 
 the future justice of the legislature to provide him a compensation 
 tJiorefor. The compensation must be either ascertained and paid 
 him before his property is thus appropriated, or an appropriate 
 remedy uuist be provided, and upon an adequate fund, whereby 
 he may obtain such compensation, through the medium of the 
 courts of justice, if those whose duty it is to make such compen- 
 sation refuse to do so." He adds, " In the ordinary case of lands 
 taken for the making of highways, or for the use of the state canal, 
 such a remedy is provided ; and if tlio town, county, or state offi- 
 cers refuse to do their duty in ascertaining, raising or paying such 
 compensation in the mode prescribed by law, the owner of the 
 ju'operty has a remedy by mandamus to comjDel them to perform 
 their duty. The public purse, or the propert}^ of the town or 
 county upon which the assessment is to be made, may justly be 
 considered an adequate fund. He has no such remedy, however, 
 against the legislature to compel the passage of the necessary 
 laws to ascertain the amount of compensation he is to receive, or 
 the fund out of whicli he is to be paid." A very able, profound, 
 abstract, and somewhat theoretical, but argumentative opinion was 
 delivered in the case by Senator All)crt H. Tracy, in which the 
 Avhole doctrine relating to this subject, draAvn as well from the 
 natural rights of individuals, as fi'om constitutional authority, and 
 the extent of legislative power, was most learnedly discussed, the 
 whole of which" is worthy of being transcribed, and peipietuated in 
 this, and every other work upon natural rights or constitutional 
 limitations of legislative power, but its length forbids. No lawyer 
 should omit to read it, who seeks to possess his mind Avitli a know- 
 ledge of this branch of law. 
 
 At the close of the case, the court passed a resolution which
 
 390 THE EIGHT OF EMKEKT DOMAIN. 
 
 may be quoted as the summary of the doctrine discussed in that 
 case, and -vshich remains the unimpaired and unshaken law of this 
 state ; which was in substance, " that the legislature of this state 
 have the constitutional power to authorize the taking of private 
 property for the purpose of making railroads or other public im- 
 provements of the like nature, whether such improvements be 
 made by the state itself, or through the medium of a corporation, 
 or joiut stock company, on making ample provision for just com- 
 pensation for the property taken to the owners thereof." 
 
 This provision for just compensation, it is seen, is the primary 
 requisite to the appropriation of lands for pubhc purposes under 
 the right of eminent domain ; and the courts have been quite uni- 
 form in holding, that this compensation must be pecuniary in its 
 character, without allowances for supposed benefits to the pro- 
 jirietor, for in effect, it amounts to a power to compel the indi- 
 ^idual to convey, even against his will, when the public necessities 
 requhe it. ^ This is a right, wliich a magnanimous and just gov- 
 ernment will therefore never exercise without amply indemnif}'ing 
 the individual, a 
 
 This is doubtless the true nde, where the whole of a man's 
 estate is taken, although he may own other estate in the vicinity 
 which may be benefited by the public use ; for the benefits or 
 injuries which the owner receives or sustains to other property in 
 common with the community generally, and which are not pecu- 
 liar to him, and connected with his ownership, use, and enjoy- 
 ment of the particular parcel of land, should be excluded alto- 
 gether, as it would be unjust to compensate him for the one, or to 
 charge him with the other, when no account is taken of such inci- 
 dental benefits, and injuries with other citizens who receive or feel 
 them equally with himself, but whose lands do not chance to be taken. 
 
 a Fletcher v. Peck, G Crancli. 14o; Bradshaw v. Kodgers, 20 John. 10-4. 
 
 Note 2. — "Thejiist compensation to the owner for taking»his property for 
 public uses without his consent, it has been held, means the actual value of the 
 property in money, without any deduction for estimated profit or advantages ac- 
 cruing to the owner from the public use of his propertj'. Speculative advan- 
 tages or disadvantages, independent of the intrinsic value of the propertj^ from 
 the improvement, are a matter of set off against each other, and do not aflect the 
 dry claim for the intrinsic value of the property taken." Jacob v. City of Louis- 
 ville, 9 Dana, E. 114; Van Home's Lessees v. Dorrance, 2 Dall. 315.
 
 THE EIGHT OF EMINENT DOMAIN. 391 
 
 But where less tlian the -whole lot or estate is taken, there 
 is a class of cases that hold the rule to be in assessing the 
 damages, to take into consideration how much the portion not 
 taken is increased or diminished in value in consoquenet! of the 
 appropriation. (/ "The owner of tho property is entitled to full 
 compensation for the damages he sustains therel)y ; but if tho 
 taldng of a part of his property for the public improvement is a 
 benefit rather than an injury to him, he certainly has no equitable 
 claim to damages." h If the same property tliat remains, will be 
 more valuable when the improvement is made, than the Avhole of it 
 was before, the owner will not sustain any damage, but will derive 
 a benefit fi'om it. 
 
 The time when this compensation must bo made, is not fixed in 
 the constitution of this state itself, nor m the federal constitution ; 
 but in some of the states, provision is made in their constitutions, 
 that compensation must be made before the property is taken. 
 
 It has been held in this state, in efiect, that no constitutional 
 piinciple was violated by a statute that allowed private property 
 to be entered upon temporarily, for the purpose of making a sur- 
 vey for a state appropriation, with a view of determining the proper 
 location of a canal ; and that for such a purpose, the state was not 
 bound to make compensation, nor were its subordinate ofiicers, 
 who so entered, liable to an action of trespass, a 
 
 A distinction is fomid in the books, which seems to have been 
 recognized, as settled, between property taken directly by the state, 
 or a municipal coq^oration by state authority, and cases Avhere it 
 is taken by a private corporation, which, for this pui'pose, is 
 clothed with the power to take, and regarded as a public agent, 
 if the property is to be appropriated, for the benefit and profit of 
 its members. If taken directly by tho state, it is not essential to 
 the vahdity of the law, that it should provide for makmg compen- 
 sation before the actual appropriation ; it is suflicient, if provision 
 is made in the law, by which, the party can obtain certain com- 
 
 a Livfugstou v. The Mayor of Xew York, 8 Wcud. 101; In the Matter of Fur- 
 man Street, 17 Wend. 671; Parks v. Boston, 15 Pick. 205. 
 
 h Id., and McMasters t. Commonwealth, 3 "Watts. (Penn.) E. 296. 
 
 a Bloodgood v. M. & H. RR. Co., 14 Wend. 51, & 18 Wend. 9; Gardner v. N^w- 
 burgh, 2 John. Ch. 168.
 
 392 THE EIGHT OF EMKENT DOMAIN. 
 
 pensation, and a proper tribunal is provided for determining it. a 
 A very good reason obtains, why the rule should be different in 
 cases where individuals, or private corporations, are authorized to 
 take even for public pui-poses. The latter, might otherwise get 
 possession, and despoil a party of his estate, and then prove irre- 
 sponsible, by means of which the proprietor might loose his estate 
 without means of redi'ess, and thus the constitutional protection, 
 become but a name and a mockery, to the spirit and intent of the 
 constitution. 
 
 Chancellor Kent was of opmion, that in all such cases, the com- 
 pensation, or offer of it, must precede, or be concurrent with the 
 seizm"e and entry upon the private property taken under the au- 
 thority of the state, h " That the government is bound m such 
 cases, to provide some tribunal for the assessment of the compen- 
 pensation or indemnity, before which, each party may meet and 
 discuss their claims on equal terms ; and that if the government 
 proceed without taking these steps, their officers and agents may, 
 and ought to bo sustained by injunction." He granted an injunc- 
 tion in such case when acting as Chancellor, c and in support of 
 his opinion, he cited the authorities of the profoundest writers 
 upon the ci\il law, and the law of nature, and said, that this limi- 
 tation of the power existed before it was incorporated into our 
 own constitutions, was admitted by the soundest authorities; 
 and adopted by all temperate and civilized governments, from a 
 deep and universal sense of its justice, d 
 
 The distinction above referred to, shows, that the rule in this 
 state, is not universal nor inflexible, inasmuch as it is neither a 
 constitutional, or statute provision, that payment should precede, 
 or accompany the appropriation, yet, we must concede, that such 
 was, and is, the spirit of justice, and such, I think, was natural 
 law before our constitution was adopted, which really, but incor- 
 
 c Bloodgoocl V. Mohawk & Hudson, KK. Co., 18 Weud. 9; Kodgers v. Bradshaw, 
 2 John, 744, 5; Calkin v. Baldwin, 6 Wend. 670; Rexford v. Knight. 11 N. Y. 313, 
 314; Lyon v. Jerome, 2G Wend. 497; People v. Hay den, 6 Hill, 359. 
 
 h 2 Com, 330, Note C. 
 
 c Gardner v. Village of Newburgh, 2 John, Ch. 1G2. 
 
 d Grotius (De Jur. B. & P. b. 8, Ch. 14, s. 7;) Puffendorf (De Jur. Nat. et Gent, 
 b. 8, Ch. 5, s. 7;) Bynkershock, (Quaest Jur. Pub. b. 2, Ch. 15.) Code Napoleon, 
 Art. 545.
 
 THE EIGHT OF EMINENT DOMAIN. 393 
 
 porated into it, the law of natui'e. The constitutions of various of 
 the states of the Union, have adopted it as fundamental law. a 
 
 Injuries done to pr()i)erty not appropriated, l)y the exertion of 
 this power of resumption l)y the st;ite, under the right of eminent 
 domain, it is held, give no valid chum against the state, or its 
 agents on account of the taking. It is perhaps as common, that 
 estates adjoining, or in the vicinage of a public improvement, are 
 injuriously afiected as that they are benefited or increased in value. 
 Unless the statute provides a relief in such case to the party, he is 
 remediless. Every great public improvement, almost of necessity, 
 more or less aftects individual convenience and property, for the 
 better or for the worse ; if for the worse, and the injury is conse- 
 quential, or remote, it is to be borne, as a part of the price Avhich 
 the individual must pa}', for the advantages of the social condition.6 
 This is founded upon the principle, that the general good is to pre- 
 vail over partial individual convenience. The loss is damnum 
 absque injuria. 
 
 Upon the same principle; a statute passed to regulate the use 
 of a navigable stream, which only incidentally affects the riparian 
 owners, gives to the person so affected, no right to compensation, 
 though if the stream is thereby diverted from its natural course, 
 so that those entitled to its benefits are prevpnted from using it as 
 before ; such a deprivation of a right, is a taking, wliich entitles to 
 compensation, notwithstanding the taking may be for the pui'pose 
 of creating another and more valuable channel of navigation, c 
 The owners of the land over which a stream flows, though they 
 do not own the flowing water itseK, yet have a property in the use 
 of that water as it flows past them, for the purpose of producing 
 mechanical power, or for any other of the pm-poses for which they 
 can make it available, without depriving those below them on the 
 stream, of the like use, or encroaching upon the rights of those 
 
 oConstitutiou of Indiana, Art. 21, § 1 ; Ohio, Art. 1, § 19 ; Kentucky, Art. IJ 
 § 11 ; Oregon, Art. 1, § 19 ; Nevada, Art. 1, § 8 ; Mississippi, Art. 1, § 13 ; Min- 
 nesota, Art. 1, § 13 ; Kansas, Art. 12, § 4 ; Georgia, Art. 1, § 17 ; Florida, Art. 1, 
 §14. 
 
 h Lansing v. Smith, 8 Cow. 149; Troy & Boston EE. Co., v. Northern Turnpika 
 Co., IGBarb. 100. 
 
 c People V. Canal Apf)raisers, 13 Wend. 355 ; Billinger v. N. Y. Cent. BE. Co., 
 23 N. Y. 42. 
 
 50
 
 3 9 J: THE EIGHT OF EMINENT DOMAIN. 
 
 above ; and this propeity is eqiially protected, with that of a more 
 tangible character, a 
 
 In anotlier class of injuries, also, a party may sustain gi-eat and 
 almost irreparable injury, where the law affords him no redress ; 
 such for instance as those resulting from the construction of pub- 
 he works, where, if an injury occurs in a case where the work A\as 
 constructed upon a proper plan and without negligence, and if the 
 injury is caused by accidental and extraordinary circumstances, 
 the injured party is without remedy, and can demand no compen- 
 sation ; and this is so, even though the property was appropriated 
 under the right of eminent domain, h But if in such case, how- 
 ever, there is want of reasonable care and skill in the construction of 
 such work, and unnecessary damage is caused, it is not warranted by 
 the right of eminent domain, and then, the corporation or its agents 
 are responsible for it. Such damage however must be real, sub- 
 stantial and appreciable, and not merely theoretical or shght, or 
 such as may be caused by an unusual or extraordinary swell of 
 the waters, c 
 
 As it is competent for the state to declare the extent of the use 
 to which private property is thus to be taken, whether for a tem- 
 porary period, for an easement, or the entire fee, the amount of 
 compensation will of course depend upon the character of the de- 
 privation, and the extent of exclusion of use by the former owner, 
 so that in all cases, where the complete fee is not taken, the ori- 
 ginal owner is vested with the remainder or reversion that is left, 
 and whenever the public use ceases, or is discontinued, as a gen- 
 eral rule, the estate reverts to the original proprietor, and he be- 
 comes restored to his complete and exclusive possession. The 
 case of common highways, is within this class ; there the public 
 have a pei'petual easement, but the fee, and the soil, is in the 
 original owner or his assigns, and they may make any use of it 
 which does not interfere with the public right of passage over it, 
 and the public can use it for the usual purposes of a highway, d 
 By special statutes however, in some of the cities, the fee of the 
 
 a Morgan v. King, 35 N. Y. 454; Cooley on Const. Lim. 557. 
 I Perry v. City of Worcester, G Gray, 546-7, and cases cited; Sprague v. The 
 Same, 15 Gray, 195. c Id. 
 
 d Adams v. Eivers, 11 Barb. 390; Cooley on Const. Lim. 558.
 
 DUE PEOCESS OF LAW. 395 
 
 streets is in the city absolutely ; so in like cases, appropriations 
 for alms-houses, canals, &c. a 
 
 Tlie constitution of this state, though it authorizes the appro- 
 priation of private property to public uses, upon the condition of 
 just compensation to the proprietor, has afforded to the indiAadual 
 owner, a still further protection against legislative abuse, and 
 as a hmitation upon the poAver to take. It declares that no mem- 
 ber of this state shall be disfi'anchised or deprived of any of the 
 rights or privileges secured to any of the citizens thereof, unless 
 by the law of the land, or the judgment of his peers." h 
 
 It pro\ides also, not only, that he shall receive a just compensa- 
 tion, but also that he shall not be deprived of his property " icitlt- 
 out due 2^roccss of laic,'' and, that in cases where the compensation 
 is not made by the state, it shall be ascertained by a jury, or by 
 not less than three commissioners appointed by a court of record, 
 as shall be prescribed by law. <■ 
 
 What is " the law of the land." and " due process of law," had 
 well deiSned common law meanings, before the adoption of this 
 constitution, and nuist be regarded as but slightly qualified by the 
 tenus of the constitution itself. 
 
 Chancellor Kent says, the words, hy the laiv of the land, as used 
 originally in 3Iagna Charta in reference to this subject, are un- 
 derstood to mean, " due process of laic," d and, that the better and 
 larger definition of due irrocess of law, is, that it means law, in its 
 regular course of administration. And it was held in the court of 
 appeals of this state, e that these constitutional safeguards, in all 
 cases, require a judicial investigation ; not to be governed by a 
 law specially enacted to take away and destroy existing rights, but 
 confined to the question, whether under the pre-existing rule of 
 conduct, the right in controversey has been lawfully acquu-ed, and 
 is lawfully possessed. So Lord Coke interprets, " hy the law of 
 Hie land," to mean, " by the duo course and process of the law."/ 
 
 a Hey\7ard v. Mayor of New York, 7 N. Y. E. 314; Baker v. Johnson, 2 Hill, 
 348; Eexford v. Knight, 11 N. Y. R. 308; Hunger v. Tonawanda B. E. Co., 4 N. 
 Y. 349. 
 
 b Const, of N. Y. of 1846, Art. 1, § 1. 
 
 c Const, of N. Y. of 1846, Art. 1, § 7. d 2 Com. 13. 
 
 fi Wyndham v. The People, 13 N. Y. E. 395. 
 
 /2 Inst. 46.
 
 39G DUE TROCESS OF LAW. 
 
 And the courts of this state hold, that the words, " due process of 
 hiw," import a judicial trial, and not a mere declaration of the 
 legislative will by the passing of a law. a It is therefore regarded 
 as safe to say, " that without due process of law, that is, without 
 judicial investigation, no act of legislation can deprive a man of 
 his property, and that in all civil cases, an act of the legislature 
 alone, is wholly inoperative to take from a man his property." 
 
 These provisions in substance, or in equivalent language, will be 
 found in nearly every state constitution. They were rights that 
 existed and attached to every citizen at common law, before the 
 adoption of state constitutions ; they can be traced back to 3Iagna 
 Chart a, and were wrested from the king, as restraints upon the 
 power of the crown. They were imposed by the people as re- 
 straints upon the legislative power when they put forth their con- 
 stitutions. 
 
 The concurrent adoption of these protective individual rights by 
 nearly every state in the Union, and by the employment of nearly 
 the same language, is evidence of the uniformity and extent of 
 the constraction we have given. ' The constitution of this state, . 
 
 a Taylor v. Porter, 4 Hill, 1-10; Embury v. Conner, 3 N. Y. E. 511; "Westervelt 
 V. Gregg, G N. Y. R. 202. 
 
 Note 3. — The provision in the constitution of Alabama, is, "That in all the 
 criminal prosecutions, the accused shall not be compelled to give evidence 
 against himself, nor be deprived of life, liberty, or property, but by due course of 
 law," Art 1. § 7. Arkansas, " That no man shall be taken or imprisoned, or dis- 
 seized of his freehold liberties, or privileges, or outlawed or exiled, or in any man- 
 ner destroyed, or deprived of his life, liberty or property, but by the judgment of 
 his peers, or the law of the land. Art 2. § 10. California, like Alabama, except the 
 words process of law, instead of course of law, Art 1, § 8. Connecticut, same as 
 Alabama, Art 1, § 9. Delaicare, substituting for the words, "course of law," " the 
 judgment of his peers or the law of the land," Art. 1, §7. Florida, " that no freeman 
 shall be taken, imprisoned or disseized of his freehold libei-ties or privileges, or, 
 outlawed or exiled, or in any manner desti'oyed, or deprived of his life, liberty or 
 property, hut by the law of the land," Art. 1, § 8. Georgia, "No person shall be de- 
 prived of life, liberty, or property, exeept by due process of law," Art. 1, § 2. Illi, 
 7iois, " That no freeman shall be imprisoned, or dissiezed of his freehold liberties 
 or privileges, or outlawed or exiled, or in any manner deprived of life, liberty or 
 property, but hy the judgment of his peers or the law of the land," Art. 13, § 8. Iowa, 
 "No person shall be deprived of life, liberty or property, wt</iOuf due process of law,' 
 Art. 1, § 9. Kentucky, " Nor can he be deprived of his life, liberty or property, 
 unless by the judgment of his peers, or tJce law of the land," Art. 13, § 12. Maine, "Nor 
 be deprived of his life, liberty, property or privileges, but by the judgment of his
 
 DUE TROCESS OF LAW. 397 
 
 of 1846, has some qualifying provisions, as to the tribunal or forum, 
 in •which, the value of these private interests taken for public use, 
 shall be assessed. It has been claimed, that the right of trial I)}' 
 a common law jury of twelve men in all cases, is a constitutional 
 light to the propiietor, of which he cannot be deprived, under the 
 second section of the first article of the constitution of 1840, which 
 declares, that "the trial by jury in all cases in which it has been 
 heretofore used, shall remain inviolate forever." 
 
 This section, however, has had judicial construction by the court 
 of appeals, in this state, a It was there held, that inasmuch, as 
 for a period of twenty years preceding the adoption of that constitu- 
 tion, special juries had been drawn with reference to the apprais- 
 
 o Cnigtr V. The Ilml. It. 11. Co., 12 N. Y. 198. 
 
 peers, or the hiw of the land," Art. 1, § 6. Maryland, "That no man ought to be 
 taken or imprisoned, or disseized of his freehold liberties or privileges, or outlawed 
 or exiled, or in any manner destroyed or deprived of his life, liberty or property, 
 but by the jud(jment of his peers, or by (lie laic of fheland," Declaration of Rights, § 23. 
 Massachusetts, "No subject shall be arrested, imprisoned, despoiled, or de- 
 prived of his i^roperty, immunities or privileges, put out of the protection of the 
 law, exiled or deprived of his life, liberty or estate, but by the judgment of his 
 peers, or the law of land," Declaration of Eights, Art. 12. Michigan, "No person 
 shall be deprived of life, liberty, or property, without due process of laic," Art. 6 § 32. 
 Minnesota, " 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,'' Art. 1, § 2. Mississippi, "Nor can he be de- 
 prived of his liberty or property, but by due course of law," Art. 1, ^5 10. Mis- 
 souri, same as Delaware, Art. 1, § 18. Xevada, "Nor be deprived of life, liberty 
 or property, icithout due process of law, Art. 1, § 8. Xeio Hampshire, same as Mas- 
 sachusetts, Bill of Eights, § 17. Xorth Carolina, "That no freeman ought to be 
 taken, imprisoned or disseized of his freehold liberties or privileges, or outlawed 
 or exiled, or in any manner destroyed, or deprived of his life, liberty or property, 
 but by the law of theland," Declaration of Eights, §12. Pennsylvania, like Delaware, 
 Art. 9, § 9. I\hode Island, like Delaware, Art. 1, § 10. Soidh Carolina, "No per- 
 son shall be taken, imprisoned or dissiezed of his freehold liberties or privileges, 
 or outlawed or exiled, or in any manner deprived of his life, liberty or property, 
 but by due process of law," Art. 9, § 2. Tennessee, same as Florida, Art. 1, ^ 8. 
 7e.ra,v, " No citizen of this state shall be deprived of life, liberty, property or 
 privileges, outlawed, exiled, or in any manner disfranchised, excepA by due course 
 if law," Art. § 16. West Virginia, "No person in time of peace shall be deprived 
 of life, liberty or property, without due process of law," Art. 2, § 6. In the consti- 
 tutions of the remaining states, it is believed, that the protective phrases are omit- 
 ted, but that equivalent protection is afforded by the statutes and common law. * 
 
 * Cooley on Const. Lim. note to p. 351.
 
 398 DUE PROCESS OF LAW. 
 
 ment of damages in sucli cases, and that "the term jury seemed to 
 have been used in such proceedings as descriptive of the civil con- 
 dition of the persons composing it, and by way of distinguishing 
 between such a body of jurymen, and commissioners ajipointed by 
 courts under other acts, to perform the same functions ; they are 
 called in such special acts sometimes as jurors, and sometimes as 
 appraisers, or jury of appraisers, a majority of whom could make 
 the certificate, of inquisition or appraisal, that the instances of such 
 appraisal, prior the time of the convention who framed the con- 
 stitution of 184G, was sufficient to estabhsh the position, that the 
 term Jury, in those acts, did not necessaiily import a tribunal con- 
 sisting of twelve men acting only upon a unanimous determina- 
 tion, but on the contrary was used to describe a body of jurors, 
 difi'ering in numbers, and deciding by majorities, or otherwise, as 
 the legislatm-e in each instance directed. 
 
 The term jury, as used in those special statutes, it was held, 
 was used in a sense in which it was known to the law, at the time 
 of forming that constitution, as one of the modes of j^roceeding 
 theretofore in use in taking private property. The other mode 
 being that of appraisement by commissioners. These two modes 
 had then been in use, and had been regarded as well calculated to 
 secure both public and private rights. The term jury, therefore, 
 when used in reference to the assessment of damages for takiug 
 private proj)erty, was not used in the common law, or the restricted 
 meaning which belongs to it when used in reference to trials civil, 
 or criminal ; but in the broader sense which it had acquired in 
 common use, under legislative acts, a This is the more obvious, 
 from that other provision contained in the seventh section of the 
 same article of this constitution before cited, that in such cases, 
 the compensation " shall be ascertained by a jury, or by not less 
 than three commissioners appointed by a court of record, as shall 
 be prescribed by law." 
 
 Tliis being the adjudication of the highest court of the state in 
 giving construction to a statute of the legislature, and in effect 
 giving judicial construction to the fundamental law made by the 
 people themselves, and under which the legislature receive their 
 authority to enact the law, we must regard this mode of ascer- 
 
 a Id. 2()0.
 
 DUE PROCESS OF L.VW. 399 
 
 taming compensation, to bo in accordance with the " law of the 
 land," as secured to the citizen by the constitution ; and this must 
 also be, "by due process of law," "being a prosecution or suit in- 
 stituted and conducted in the courts according to the prescribed 
 forms and solemnities for determining the just compensation to be 
 paid for private property taken for public use," under the authority 
 conferred by the people upon the legislature, and in the constitution 
 adopted by themselves, whereby they intended, not to destroy, 
 but to secure the individual citizen from the arbitrary exercise of 
 the powers of govcn-ninent, unrestrained by the established prin- 
 ciples of private rights, and distributive justice. 
 
 It must be conceeded, that this conclusion has not been arrived 
 at without its having received the most deliberate consideration of 
 the courts, after years of straggle, and by a divided opinion, a 
 There was a strong disposition, on the part of judges, to interpose 
 the judicial department of the government as a barrier against 
 aggi'essions of the other departments, and to hold that the citizen 
 could only be seciu-ed in his property, by a judicial trial, and by a 
 common law jury of twelve men, whose unanimous verdict should 
 be had in the case. 
 
 But the wants of the public, stimulated by the progi'essive 
 spiiit of the age, upon the one hand, and the obstractions w^hicli 
 a spirit of avarice, by individuals, interposed upon the other, ren- 
 dered such a restriction impracticable, and it was seen, that it was 
 the remedy, and not the right, w^liich was really the question to be 
 settled, and it was hardly doubtful that the forms of administering 
 justice, and the duties and powers of courts in relation thereto, 
 Avere incidents to a branch of the sovereign power, and that these 
 must be subject to the legislative will. It therefore become nec- 
 essary to constitute particular tribunals for the adjustment of such 
 controversies, bringing the parties to submit themselves to the 
 exercise of more summary remedies in this regard. There is no 
 perceptible reason, why private rights may not bo as well protected 
 under the one system as the other, both being under the protection 
 of judicial proceedings in the courts, and controlled by rules equally 
 impartial in their application. 
 
 a See Cases of Hoke v. Hendersou, 4 Dev. (Maryland E.) 1; Joucs v. Terry, 10 
 Yerg. E. 59; Embury v. Conner, 3 N. Y. 511; Taylor v. Porter, 4 Hill, UO.
 
 400 DUE rEOCESS OF LAW. 
 
 Besides, " the rigid to a particular remedy is not a vested right." 
 This is the general rule ; and the exceptions are of those peculiar 
 cases where the remedy is a part of the right itself. As a general 
 rule, every state has complete control over the remedies which it 
 shall afford to the parties in its courts, a When not restricted by 
 the constitution, it may abolish one class of courts and create 
 another, h and it may abohsh old remedies, and substitute new. 
 And any rule or regulation in regard to the remedy, which does 
 not, under pretence of regulatmg it, impair the right itself, cannot 
 be regarded as beyond the proper province of legislation, c 
 
 There must not be a confounding of the taxing power, under 
 which property is taken for pubhc use, with the right of eminent 
 domain. The clause in the constitution of the United States that 
 private property shall not be taken for public use without just 
 compensation, applies to the right of eminent domain, and has no 
 reference to property taken for taxes, d, 
 
 This provision of the constitution is intended solely as a limita- 
 tion on the exercise of power by the government of the United 
 States, and is not apphcable to the legislation of the states, e The 
 constitution of the United States was ordained and estabhshed by 
 the people of the United States, for themselves, for their own gov- 
 ernment, and not for the government of the individual states. 
 Each state established a constitution for itself, and in that con- 
 stitution, provided such Hmitations and restrictions on the powers 
 of its particular government as its judgment dictated. Therefore, 
 when the constitution of a state provides that private x)roperty 
 shall not be taken for public uses, and the highest court of such 
 state has sustained the validity of a law which violates this con- 
 stitutional provision, the courts of the United States have nothing 
 to do with it. 
 
 a Lord v. Chadbourn, i2 Maine E. 429; Eosier v. Hale, 10 Iowa 470; Holloway 
 V. Sherman, 12 Iowa 282; McCormick v. Eusch, 15 Io\s'a 127; Eockwell v. Hub- 
 bell, 2 Doug. (Mich.) 197; Cusirv. Douglass, 3 Kansas 123; Smith v. Bryan, 34 
 Illinois 377. 
 
 6 Foster V. Essex Bank, 16 Mass. 245, 272; Hampden v. Commissioners, &c., 6 
 Pick. 508; In Bank, 16 Ohio 354-5; Hepburn v. Curts, 7 Walts. 300. 
 
 c Cooley on Const. Limits, 361, 362. d Howell v. City of Buffalo, 37 N.Y. 270. 
 
 e Barron v. Mayor of Baltimore, 7 Peters, 243; Withers v. Buckley, 20 How. U. 
 S. E. 84.
 
 DUE PKOCESS OF LAW. lOl 
 
 Taking lands for widening of a street, with a restriction on ad- 
 joining land, wliicli may be used for the purpose of extending 
 court yards, is the taking for public use, and entitles the proprie- 
 tors to an aAvard of damages. In such case, dominion is asserted 
 over the land by the public, to the extent of depriving the owner 
 of his right to enjoy it for any other pui-pose than as a court 
 3'ard. a 
 
 a Matter of Busliwick Avenue, 48 Barb. 9. 
 
 51
 
 .102 THE TAXING TOWER. 
 
 CHAPTER XII. 
 
 OF THE CONSTITUTIONAL AUTHOEITY TO TAKE PEIVATE PEOPEETY 
 FOE PUBLIC PUEPOSES UNDEE THE TAXING POWEE. 
 
 In the preceding chapter we have taken a survey of the power 
 to take private property for piibhc uses under the right of eminent 
 domain, notwithstanding the constitutional prohibitions contained 
 in the federal and state constitutions. In this chapter we propose 
 to take a biief view of, and to bestow a few considerations upon 
 the nature, extent and power to take private property for public 
 tises under the taxing power of the constitution itself, and of both 
 the federal and state constitutions. 
 
 The right of acquiring and possessing property, and having it 
 protected, is one of the natural, inherent, and inalienable rights of 
 man. Men have a sense of property ; it is necessary to their sub- 
 sistence, and correspondent to their natural wants and desires ; 
 its security was one of the objects that induced them to imite in 
 society. No man would become a member of community, in 
 which he could not enjoy the fruits of his honest labor and indus- 
 irj. The preservation of property is one primary object of the 
 social compact, and it is by the constitution made a fundamental 
 law. But still, every person ought to contribute his proportion to 
 the pubhc burthens, to public purposes, and to the public exigen- 
 cies, though no one can j)roperly be called upon to surrender or 
 sacrifice his whole property, real and personal, for the good of the 
 community, without receiving a recompense in value. This would 
 be laying a burthen upon an individual, which ought to be sus- 
 tained by the societ}' at large. Such an act, if attempted, would 
 be monstrous legislation, and would shock all mankind. Nor can 
 the legislature divest one citizen of his estate and vest it in an- 
 other, with or without compensation. It is inconsistent with the 
 principles of reason, justice, and moral rectitude ; it is incompatible 
 with the comfort, peace and happiness of mankuid ; — it is contrary
 
 THE TAXING POWEi:. 403 
 
 to tlie principles of social alliance in every free government ; and 
 to the letter and spirit of the constitution, a 
 
 " The right of taxation, and the right of eminent domain, rest 
 substantially upon the same foundation. Private property may 
 be constitutionally taken for public use in two ways, that is to .say, 
 by taxation, and by right of eminent domain. These are rights 
 which the people collectively retain over the property of indi- 
 viduals, to resume such portions of it as may be necessary for pub- 
 lic use. Compensation is made, when private property is taken 
 in either way. Money is property. Taxation takes it for pubhc 
 use ; and the tax-payer receives, or is supposed to receive, his just 
 compensation in the protection wliich government affords to his 
 life, liberty and property ; and in the increase of the value of his 
 possessions, by the use to which government applies the money 
 raised by the tax." h * 
 
 When private property is taken by right of eminent domain, 
 special compensation is made for the following reasons : It is not 
 taken as the owner's share of contribution to a public bm'theu, 
 but as so much beyond his share. Special compensation is there- 
 fore to be made in the latter case, because government is a debtor 
 for the property so taken ; but not when taken for taxes, because 
 tho payment of taxes is a duty, and creates no obligation to repay 
 otherwise than in the proper application of the tax. Taxation 
 operates upon a community, or upon a class of persons in a com- 
 mimity, and by some rule of apportionment. The exercise of the 
 right of eminent domain, operates upon an individual, and without 
 reference to the amount, or value exacted from any other indi- 
 vidual or class of individuals. Keeping these distinctions in mind, 
 it will never be difficult to determine which of the two powers is 
 exerted in any given case. 
 
 Havmg given the provisions of the national and state constitu- 
 tions, relating to the protection of the private property of the 
 citizen, in language broad, and clear, it is still seen, that these 
 words of protection, cannot be taken in their strictest and most 
 literal sense as agamst the necessities of the government itself; 
 and these clauses, furnish a good illustration of the impossibihty 
 
 a Van Home's Lessee v. Dorrance, 2 Dallas, 310. 
 h People V. Mayor of Brooklyu, 4 N. Y. '122, 424.
 
 4.04 THE TAXIKG TOWER. 
 
 of construing constitutional provisions in a spirit of literal strict- 
 ness. "\Micn a tax is levied, " private property" is clearly taken 
 for public use, and taken without direct actual compensation ; the 
 compensation is in theory, and indirect, on account of supposed 
 benelits ; as an equivalent for the property taken. If therefore 
 this was rigidly intei-preted, it would at once arrest the operations 
 of any government to which it was applied. Such, however, is 
 not its construction. The restriction on taking private property 
 without compensation, does not apply to the power of taxation. 
 The powers of the state over property, embraces not only taxation, 
 but also other public purposes ; eminent domain, police, public 
 health, x^ubhc morals, and perhaps other public interests where 
 state exigencies demand its exercise. The legislative power, 
 being in this respect sovereign, in extraordinary emergencies, Hke 
 that of public safety, or defence, and to which power, indiAddual 
 rights must be surrendered when the general welfare of the state 
 demands it. 
 
 Under the eighth section of article one, of the constitution of the 
 United States, congress is given power " to lay and collect taxes, 
 duties, imposts, and excises." This power to tax, is not an exclu- 
 sive power in the national government ; the several states possess 
 the power for the regulation of their own internal policy — to pre- 
 serve the public health, or peace, or to promote their own pecu- 
 liar interests, a 
 
 Chief Justice Marshall has given this subject of the taxing power, 
 liis especial consideration, h He says, " The power of legislatilre, 
 and consequently of taxation, operates on all the persons and 
 property, belonging to the body politic. This is an original prin- 
 ciple, which has its foundation in society itself. It is granted by 
 all, for the benefit of all. It resides in government as a part of 
 itself, and need not be reserved when property of any description, 
 or the right to use it in any manner, is granted to individuals or 
 corporate bodies. However absolute the right of an individual 
 may be ; it is still m the nature of that right, that it must bear a 
 portion of the public burthens ; and that portion must be deter- 
 mined by the legislature. This vital power may be abused ; but 
 
 a Stoi7 on Const. § 4'47. 
 
 b rrovidence Bunk v. Billings, 4 Peters, 5G2-3.
 
 THE TAXING TOWER. 405 
 
 the constitution of the United States, was not intended to furnish 
 the correction for every abuse of power which may be committed 
 by the state governments. The interest, wisdom, and justice of 
 the representative body, and its rekition witli its constituents, fur- 
 nisli the only security, where there is no express contract, against 
 unjust and excessive taxation, as well as against unwise legisla- 
 tion generally." 
 
 In another case, he said, a " The power of taxiug the people, 
 and their property, is essential to the very existence of government, 
 and may be legitimately exercised on the subjects to w^hich it is 
 appHcable, to the utmost extent to which the government may 
 choose to can.y it. The only security against the abuse of this 
 power, is foimd in the sti-ucture of the government itself. In im- 
 posing a tax, the legislature acts upon its constituents. This is, 
 in general, a sufficient security against erroneous and oppressive 
 taxation. The people of a state, therefore, give to their govern- 
 ment a right of taxing themselves, and their property ; and as the 
 exigencies of government cannot be Ihnitcd, they prescribe no 
 limits to the exercise of this right, resting confidently on the inter- 
 est of the legislator, and on the influence of the constituents over 
 their representative, to guard them against its abuse." " And it 
 is unfit for the judicial department, to enquire, what degree of tax- 
 ation is the legitimate use, and what degi-ee, may amount to an 
 abuse of the power." b 
 
 One of the arguments against the exercise of this right, is, that 
 the admitted power of taxation, may be so exercised under legis- 
 lative authority, as greatly to impair the value of private property. 
 This is doubtless, sometimes tnie ; the power may be wisely or mi- 
 wisely, justly or unjustly exercised ; but, as a power, it rests upon 
 the theory, that full compensation is received by the individual 
 in the benefit conferred by the tax itself. The support of govern- 
 ment, and other objects of public utihty promoted by taxation, 
 are supposed to rekim to the individual the value -which has been 
 taken from him as his share of the public burthen. This is neither 
 depriving a man of his property in a constitutional sense, nor tak- 
 ing it for public use under the right of eminent domain. '• It is 
 
 a McCulloch v. jMarylnua, 4 Wheat. 428. h Id. 430. 
 
 c Wyndham v. The People, 13 N. Y. 404-405.
 
 406 THE TAXING TOWEE. 
 
 not sufficient that a law impairs the value of property, in ever so 
 great a degree, because this destroys no right. It leaves to the 
 owner unimpaii'ed, his right to keep, to use, and to dispose of his 
 property. It therefore does not deprive him of any right in it. 
 The levying and collecting of taxes, is not within the meaning of 
 the clause in the constitution, which provides that private prop- 
 erty shall not be taken for public use, without just compensation, a 
 Nor is a statute, which directs the expenses of street improvements 
 to be assessed on those owners who are benefited thereby, rendered 
 unconstitutional from the fact that the money thus assessed, was 
 to reimburse the city for money advanced for that pui-pose. h 
 
 Applying these principles, to the powers of our own state con- 
 stitution, which are recognized to be sound by the highest court 
 in this state, it is held, c that taxation proceeds upon the prin- 
 ciple of the maxim, that " he who receives the advantage ought to 
 sustain the burthen." And it is added, " that the power of taxa- 
 tion, and of apportioning taxation, or of assigning to each indi- 
 vidual his share of the biu'then, is vested exclusively in the legis- 
 lature, unless this power is limited or restrained by some con- 
 stitutional provision. The power of taxing, and the power of ap- 
 portioning taxation, are identical and inseperable. Taxes cannot 
 be laid without apportionment ; and the power of apportionment 
 is therefore unhmited, unless it be restrained as a part of the 
 power of taxation." 
 
 " There is not, and since the original organization of the state 
 government, there has not been, any such constitutional hmitation 
 or restraint. The people have never ordained that taxation shaU 
 be general, so as to embrace all persons, or all taxable persons 
 W' ithin the state, or within any district, or territorial division of the 
 state ; nor that it shall or shall not be, numerically equal, as in 
 the case of a capitation tax ; nor that it must be in the ratio of 
 the value of each man's land, or of his goods, or of both combined, 
 nor that a tax must be co-extensive with the district, or upon all 
 the property in a district which has Ihe character of, or is known 
 to the law of a local sovereignty. Nor have they ordained or for- 
 
 a Howell v. City of Buffalo, 37 N. Y. 267. 
 b Id ; People v. Lawrence, 36 Barb, 177. 
 c People V. Mayor of Brooklyn, 4 N. Y. 425 to 432.
 
 THE TAXING TOWER. 407 
 
 bidden that a tax shall be apportioned according to the benefit 
 ' which each tax-payer is supposed to receive from the object on 
 Avhich the tax is expended. In all these particulars the power of 
 taxation is unrestrained." 
 
 " The application of any one of these rules or principles of ap- 
 portionment, to all cases, would be manifestly oppressive and un- 
 just. Either, may bo rightfully applied to the particular exigency 
 to which it is best adapted." 
 
 Taxation is sometimes regulated by one of these principles, and 
 sometimes by another ; and very often it has been apportioned 
 without reference to locality, or to the tax-payer's ability to con- 
 tribute, or to any proportion between the burthen and tile benefit. 
 The excise laws, and taxes on carnages, and watches, are among 
 the many examples of this description of taxation. Some taxes 
 affect classes of inhabitants only. All duties on imported goods, 
 are taxes on this class of consumers. The tax on one imported 
 article, falls on a largo class of consumers. While the tax on 
 another, affects comparatively but a few individuals. 
 
 " The duty on one foreign commodity, is laid for the purpose of 
 revenue mainly, without reference to the ability of its consumers 
 to pay ; as in the case of the duty on salt. The duty on another, 
 is laid for the purpose of encouraging domestic manufacturers of 
 the same article ; thus compelling the consumer to pay a higher 
 price to one man, than he otherwise could have bought the article 
 for, from another. These discriminations may be impohtic, and 
 in some cases unjust ; but if the power of taxation upon importa- 
 tions had not been transfen-ed by the people of this state to the 
 federal goveniment, there could liave been no pretence for de- 
 claring them to be unconstitutional in state legislation." 
 
 The taxing power may be concun-eutly exercised by the state 
 and national governments, to a certain extent, but the national gov- 
 ernment has the power to withdraw from the exercise of state, the 
 power of taxation as to such property as comes within the powers 
 conferred upon the general government, and as to which, when 
 exercised by the general government, their powers are exclusive 
 and supreme. The right of taxation in the states, extends to all 
 subjects over which its sovereign power extends ; and no further. 
 The sovereignty of a state extends to everything which exists by
 
 408 THE TAXING rOWEE. 
 
 its own authority, or is introduced by its permission ; but it does 
 not extend to those means which are employed by congi-ess to 
 carry into execution their constitutional powers. The power of 
 state taxation, is to be measured by the extent of state sovereignty, 
 and this leaves to a state the command of all its resources, and 
 the unimpahed power of taxing the people, and property of the 
 state. This principle reheves from conflicting sovereignty between 
 the two powers, a For what purposes the state may exercise 
 this power, wdll be shown hereafter. 
 
 " A property tax for the general purposes of the government, 
 either of the state at large, or of a county, city, or other district, is 
 regarded ae a just and equitable tax. The reason is obvious. It 
 apportions the burthen according to the benefit more nearly than 
 an}' other inflexible rule of taxation. A rich man derii'es more 
 benefit fi'om taxation in the benefit and improvement of his prop- 
 erty than a poor man, and ought therefore to pay more. But the 
 amount oi each man's benefit in the general taxation cannot be 
 ascertained and estimated with any degree of certainty ; and for 
 that reason, a property rule is adopted instead of an estimate of 
 benefits. In local taxation, however, for special j)urposes, the 
 local benefits may, in many cases be seen, traced and estimated 
 to a reasonable certainty. At least, this has been supposed and 
 assumed to be true by the legislature, whose duty it is to prescribe 
 the rules on which taxation is to be apportioned ; and whose de- 
 termination of this matter, being within the scope of its lawful 
 power, is conclusive." 
 
 It had been held, in a case decided in the second judicial dis- 
 trict in this state, h " that legitimate taxation was limited to the 
 imposing of burdens or charges for a public purpose, equally upon 
 the persons or property within a district know^n and recognized by 
 law as possessing a local sovereignty for certain pui-poses, as a 
 state, county, city, town, village, &c., excluding from the operation 
 of taxing power all those cases in which the expenses of laying out 
 pubhc squares, and of opening or widening of streets, or other Uke 
 improvements are charged upon certain persons or property in 
 consequence of supposed benefits. And that a tax to be valid, 
 
 a 1 Kent's Com. 425. 
 
 b The People v. The Mayor of Brooklyn, C Barb. 209.
 
 THE TAXING TOWER. 4.09 
 
 must be apportioned upon piinciples of just equality. And also, 
 that this was a fundamental piinciplo of free government, which, 
 although not contained in the constitution, limits and controls 
 the power of the legislature. 
 
 The case which enunciated this doctrine, was taken to the court 
 of last resort in this state, where the doctrine was declared not 
 only to be new, but dangerous. Said the Court of Appeals, a " this 
 doctrine clothes the judicial tribunals Avitli the power of trying the 
 vahdity of a tax by a test, neither prescribed nor defined by the 
 constitution. If by tliis test we may condemn an assessment ap- 
 portioned according to the relation between burthen and benefit, 
 we may, with far better reason, condemn a capitation tax, on the 
 groimd, that numerical equality, is not just equality ; or a general 
 property tax for a local object, because it compels one portion of 
 the community to pay more than theu* just share for the benefit of 
 another portion. All discriminations in the taxation of property, 
 and all exemptions from taxation on the grounds of public poHcy, 
 would fall by the application of this test. If this doctrine prevails, 
 it places the power of the courts above that of the legislature, in a 
 matter affecting not only the vital interests, but the very existence 
 of the government. It assumes that the apportionment of taxa- 
 tion is to be regulated by judicial, and not by legislative discre- 
 tion. It obstructs the exercise of powers which belong to, and are 
 inherent in the legislative department, and restrains the action of 
 that branch of the government in cases in which the constitu- 
 tion has left it fi*ee to act." 
 
 The doctrine which was thus repudiated by the Court of Appeals, 
 it seems originated in the state of Kentucky, under an especial, or 
 pecuhar clause in their state constitution, not found in ours. But 
 the whole doctrine of the constitutionality of the power of assess- 
 ment and taxation m this state, was thoroughly considered in our 
 court of dernier resort, and the clear, elaborate and able opinion 
 of Ruggles, J., adopted by the whole court, forms of itself, an ex- 
 haustive view of the subject, never since questioned, and makes 
 of itself, a chapter on this subject worthy of being perpetuated as 
 elementary law. 
 
 Various cases which were supposed to have been decided upon 
 
 a The People v. Mayor of Brooklyn, 4 N. Y. 429. 
 52
 
 410 THE TAXING TOWER. 
 
 the contrary principle, were ably reviewed by tlie Court of Appeals, 
 and tlie distinction either pointed out, or the dicta contained in 
 them intimating a contrary doctinne overruled. And the court 
 say, " There never was any just foundation for saying, that local 
 taxation must necessarily be limited by, or co-extensive with any 
 previously established district. It is undoubtedly wrong, that a 
 few should be taxed for the benefit of the whole ; and it is equally 
 wrong, that the whole should be taxed for the benefit of the few. 
 No one town ought to be taxed exclusively for the payment of 
 county taxes ; and no county should be taxed for the expenses in- 
 cuiTed for the benefit of a single town. The same pi-inciple of 
 justice requires, that where taxation for any local object benefits 
 only a portion of a city or town, that portion only, should bear the 
 burthen. There being no constitutional prohibition, the legisla- 
 lature may create a district for that especial purpose, or they may 
 tax a class of lands or persons benefited to be designated by the 
 public agents, appointed for that purpose without reference to 
 town, county, or district lines. General taxation, for such local 
 objects, is manifestly unjust. It burthens those who are not bene- 
 fited, and benefits those who are not burthened." 
 
 " This injustice has led to the substitution of street assessments, 
 in the place of general taxation ; and it seems impossible to deny, 
 that in the theory of their apportionment, they are far more equit- 
 able than general taxation for the purpose they are designed for." 
 
 " The same principle of apportioimient, has been applied to 
 bridges, and turnpike roads. The money paid for their construc- 
 tion and maintenance is reimbursed by means of tolls. Tolls are 
 delegated taxation ; and this taxation is charged and apportioned 
 upon those only, who derive a benefit from the original expendi- 
 ture, and in proportion to that benefit. General taxation upon a 
 town or county for the building of a bridge, is valid and lawful, 
 but obviously unjust ; and because, it compels one to pay for the 
 benefit of another. Tolls are more equitable, because they equal- 
 ize the burthen with the benefit." 
 
 " But this theory of apportioning taxation, is not confined in 
 practice to street assessments and tolls on bridges and turnpike 
 roads. The main revenues of the state, canal tolls, are regulated 
 upon the same principle ; and so far as the objection to street
 
 THE TAXING TOWER. 4H 
 
 assessments applies to tlio principle of selecting those only who 
 are benefited, and laying the biu'then upon them in proportion to 
 their respective advantages, it applies with equal force to toUs on 
 bridges and turnpikes, and on the pubhc canals. The difference 
 is only in the mode in wliich each tax-payer's share of the burthen 
 is ascertained." 
 
 " It has been said, that the benefits derived from the grading 
 and paving of a street, are sometimes fanciful and imaginary, and 
 always uncertain and incapable of being estimated with that exact- 
 ness which is necessary for the purposes of justice to the individ- 
 uals assessed. But this is a consideration to be addressed to the 
 legislature, and not to the judicial authorities The courts cannot 
 assume that this proposition is true in point of fact. The legisla- 
 ture has evidently acted on the behef that it is untrue." 
 
 "That mistakes may have happened, — that abuses may have 
 been practiced — and that injustice may have been done, in making 
 street assessments, it is not necessary to deny. Mistakes, abuses, 
 and injustice, have often occurred in general taxation. These are 
 not gi-ounds upon which either system of supplying the public 
 treasury, can be denounced as unconstitutional. If the systems 
 are imperfect, they should be reformed by the legislature. If the 
 street assessments are in their practical operation oppressive and 
 unjust, the statutes which authorize them should be repealed. 
 The remedy for unjust or unwise legislation, is not to be adminis- 
 tered by the com-ts. It remains in the hands of the people ; and 
 is to be wrought out by means of a change in the representative 
 body, if it cannot otherwise be obtained." 
 
 " The constitution has imposed upon the legislatui-e the duty of 
 restraining the power of mmiicipal corporations in making assess- 
 ments, and preventing abuses therein, a To assume that this 
 duty has been, and will be neglected, is a denial of that reasona- 
 able confidence which one department of the government ought 
 always to entertain towards the others. The danger of abuse 
 which is supposed to exist in the making of street assessments, 
 exists in a greater or less degree in every conceivable system of 
 taxation according to value ; and if the courts have authority to 
 annul, any other tax assessed upon valuation on the same ground, 
 
 a Const, of 1846. Ai-t. 8 § 9
 
 41 'J THE TAXING TO WEE. 
 
 it need not be said, tliat this would be a much more alarming 
 power, than the unhmited right of taxation entrusted by the peo- 
 ple to their representatives;" 
 
 " The difference between general taxation, and special assess- 
 ments for local objects, requires that they should be distinguished 
 by different names, although both derive their authority, from the 
 taxing power. They have always been so distinguished, and it is 
 therefore evident that the word tax, may be used in a contract, or 
 in a statute, in a sense wliicli would not include a street assess- 
 ment, or any other local or special taxation wdthin its meaning. 
 Several cases have been found in which it has been adjudged to 
 have been so used. But in no case, has it been adjudged, that 
 street assessments are not made by wtue of the legislative taxing 
 power. If there are expressions to the contrary, in some of the 
 cases, it will be found that they are dicta, inapplicable to the 
 point decided, or if applicable, that they were unnecessary to the 
 decision, and not well considered. ' 
 
 The hne which distinguishes between the cases of taking private 
 property for pubhc purposes under the right of eminent domain ; and 
 that of the taxing power under the constitution, has been one of the 
 most prohfic sources of controversy and litigation in the courts. 
 This is the natural result of an education of the masses of our 
 people, who, under a system of a free government, which seems to 
 confer upon the individual citizen absolute rights ; a system which 
 teaches them to look with jealousy upon the exercise of power, 
 whenever it comes m conflict with the sole and absolute dominion 
 of the citizen, over his own posessions. 
 
 But it is no longer a question of constitutional power, in this 
 state, that the legislature can compel public burthens to be borne 
 by the persons who ought to bear them ; or wdio, in the judg- 
 ment of the legislature ought to bear them, without, or even 
 against the consent of such persons ; and the legislature have the 
 
 Note 1. — Among the cases criticized as coming within the charge of dicta, in ap- 
 plicability, not necessary to the decision, or not well considered ; are, Matter ct 
 Mayor of New York, 11 John, 80 ; Bleecker v. Ballon, 3 Wend. 266 ; Sharp v. 
 Spier, 4 Hill, 76 . The following decisions are found to sustain the principles 
 above laid down. Livingston v. Mayor of New York, 8 Wend. 85-101 ; Owners 
 of Ground Assessed v. Mayor of Albany, 15 Wend. 376, as to taxing power ; 
 Thomas v. Leland, 24 Wend. 65 ; Striker v. Kelly, 7 Hill, 9-23.
 
 THE TAXING TOWER. 413 
 
 power to authorize and direct a tax to be assessed, and levied, 
 upon the property of such persons as in their judgment ought to 
 bear the burthen to pay the expenses of any such public improve- 
 ment, or supposed public benefit. The liability of the persons 
 upon whom the expenses of improvement is cast, stands upon the 
 same ground as all other Uability to taxation, a 
 
 The legislature may designate any one to institute proceedings 
 to acquire private property for pubHc purposes, as where the com- 
 missioners of the Central Park in the city of New York, a recognized 
 public body were authorized to institute such proceedings, the 
 question whether such a body liad, apart from this legislative 
 power, a legal existence, was held to be immaterial, h 
 
 The legislature, even, possess the poAvcr to levy a tax upon the 
 taxable property of a town, and appropriate the same to the pay- 
 ment of a claim, made by an individual against a town. Nor is it 
 a valid objection to the exercise of such power, that the claim to 
 satisfy which the tax was levied, was not recoverable by action 
 against the town; c and the courts iiavc no power to supervise or 
 review the domgs of the legislature in such cases, d It can thus 
 recognize claims founded in equity and justice, in the largest sense 
 of these terms, or in gratitude or charity, c 
 
 " It is weU settled, that the authority to raise money by the ex- 
 ercise of the taxing power, is not in conflict with the constitutional 
 provisions, protecting private property from seizure. The two 
 principles co-exist in the constitution, and it is not difficult to dis- 
 tinguish between them./ This power is frequently resorted to 
 for the pui-pose of promoting education, and canying out the sys- 
 tem of common schools. For such purposes in this state, the 
 power has ceased to be questioned. It prevails and is exercised 
 equally in other states, (j 
 
 We are now treating of the constitutional power of this state. 
 It is needless, as well as useless in this work to discuss it as a 
 question of state policy, or as to the extent which this power 
 
 a Brewster v. City of Syracuse, 19 N. Y. 116-118. 
 
 h Mutter of Central Park Extension, 19 Abbott, 56. 
 
 c The Town of Guilford v. Supervisors of Chenango Co. 13 N. Y. E. 143. 
 
 d Id. 118. e Per Denio, J. Id. 149. 
 
 /Id. see Booth v. Town of Woodbury, 32 Conn. K. 118. 
 
 g Commonwealth v. Ilartman, 17 Peun. 119.
 
 414 THE TAXING TOWER. 
 
 ought to be exercised. This work does not intend to discuss ques- 
 tions of pohtical, or domestic pohcj. Under the question of power, 
 it is now held, that the legislature of a state unless restrained by 
 its constitution can authorize a county, or a town to take stock in 
 a raih'oad or other public improvement ; to borrow money to pay 
 for the same ; and to levy a tax to repay the loan ; that this au- 
 thority can be confeiTed in such a manner as to accomplish the 
 pm-pose, either with or without a popular vote ; and when the 
 legislature have power to authorize the act, it can by retrospective 
 legislation, cure the evils arising fi"om an irregular execution of 
 such power, a ^ 
 
 Whatever may be the interpretation of the legislative jDower 
 under constitutions of other states, in the state of New York, it 
 would seem to be settled, that where the fundamental law has not 
 hmited, either in terms, or by necessary impKcation, the general 
 powers conferred upon the legislature, courts cannot declare a 
 Umiicdion, under the notion of having discovered something in the 
 spirit of the constitution upon a subject which is not even men- 
 tioned, h 
 
 In relation to the taxing power, there is found no restriction in 
 the constitution upon the power of the legislature ; it is therefore 
 limited, only by their own discretion. It possesses all the power 
 
 a The People v. Mitchell, 35 N. Y. 551-3; Wall, U. S. R. 327; Thompson v. 
 Lee Count J'. 
 
 6 People V. Fisher, 24 Wend. -220; Benson v. Mayor of Albany, 24 Barb. 2-i8 
 Grant v. Courter, id. 237. 
 
 Note 2. — In the case of Sweet v. Hulburt, reported in 51 Barb. 312, the author 
 is found concuring in the decision of that case, which, in some respects, is in 
 conflict with the principles above laid down in this work. So far as it is in con- 
 flict, he desires to say, he failed to give that case all the consideration, that his 
 subsequent and better examination of the law has impressed upon his mind, and 
 though he concurred then, in the resiilt, though not in all the reasonings, his 
 better judgment now is, that the case, upon the i^rinciple of the power of con- 
 stitutional right of taxation, for the purposes in the act mentioned, was erroneously 
 decided. The word " donated" in iho act in question, did noK express the true 
 spirit of the act. Had the word " contrihute " which was its spirit, instead of " do- 
 nate" which was its letter, been used, the spirit of the act would have been better 
 expressed, and no legal objection could have been raised against it. I think the 
 true rule is, that though a law, unjust in its operation, should be, or is enacted, 
 nevertheless, if not forbidden by the constitution, the remedy is not in an appeal 
 to the judiciary, but to the people, who must apply the corrective.
 
 THE TAXING TOWER. 415 
 
 of legislation that was possessed by the British parhament, except 
 by the express or impUed restrictions in the constitution itself, a 
 To detci-mino an act of the legislature, ^vith reference to taxation 
 for a public improvement or a public object, to be unconstitutional, 
 we must see the prohibition contained in the constitution itself, in 
 express terms, or by necessary implication from its terms. 
 
 " But there is a spmt existing among the people, and cases are 
 found, where the courts have Ijccu disposed to encourage this 
 spirit and hold, that a law, tlipugh not prohibited by the constitu- 
 tion, is void if it violates the spirit of our institutions or impairs 
 any of those rights Avliich it is the object of a free government to 
 protect, and it is claimed that the courts can declare such an act 
 unconstitutional, if they deem it wrong or unjust," or, to boiTOW 
 the language of a modern case, h "in delegating to a Senate and 
 Assembly with the approval of the governor the power to make 
 laws, under certain limitations and restrictions, but without enum- 
 erating and defining those poAvers, the people did not, nor did they 
 intend to, invest that body with authority to make laws inconsis- 
 tent with natural right." And also,c "There are certain vital 
 prineii)les wliich will determine and overrule an apparent and 
 lliigrant abuse of legislative power; as to authorize manifest in- 
 justice by positive law ; or to take away that security for personal 
 liberty or private property, for the protection of which goveni- 
 ments are instituted. An act of the legislature, contrary to the 
 first great principles of the social compact, cannot be considered 
 a rightful exercise of legislative authority." 
 
 This sounds well, and is well written, but is it sound in theory, 
 as constitutional law ? Under what power of the constitution, are 
 the courts authorized to nullify a law of the legislatui'e except for 
 its uifi-action of that mstrument ? If the legislature, under the 
 admitted authority of the taxing power, have been imjust or op- 
 pressive in the enactment of a law, has the right ever been heard 
 of, under our system ; has the power ever been discovered in our 
 constitution, that clothes the judiciary with authority to declare 
 
 a See People v. Morrill, 21 Wend. SG3; Butler v. Palmer, 1 Hill, 324; Blood- 
 good V. Mohawk & Hudson R. R. Co., 18 Wend. 9; Leggett v. Hunter. 19 N. Y. 
 R. 445, and cases cited; Sharpless v. Mayor of Philadelphia, 21 Penn. 148. 
 
 6 Sweet v. Hulburt, 51 Barb. 318. c Id. 317.
 
 416 THE TAXING POWER. 
 
 the law to be void, because it is unjust ? It would be assuming a 
 right on the part of a court, to change the constitution ; — to sup- 
 ply what they might conceive to be its defects ; to interpolate into 
 it, whatever in tlieh opinion ought to have been put there by its 
 framers. The constitution has expressed in terms of prohibition, 
 the things which the legislature may not do. If the judiciary 
 shall assume that there are ceiiain other things that the legisla- 
 tion shall not do, and so declare it, do they not extend the list ? 
 Do they not thereby alter that insta-uinent ? Do they not become 
 aggressors themselves ? Do they not thus violate both the letter 
 and spuit of that organic law, even more than the legislature pos- 
 sibly could ? If they can add to the reserved rights of the people, 
 they can take them away ; if they can mend, they can mar ; if 
 they can remove the landmarks that the people established for 
 their own protection, they can obliterate them ; if they can change 
 the constitution in any particular, there is nothing but their own 
 will to prevent them from demolishing it entkely. 
 
 In a case, in the state of Pennsylvania a Chief Justice Black 
 held this language : he said, " The great powers given to the leg- 
 islature are liable to be abused. But this is inseparable from the 
 nature of human institutions. The wisdom of man has never con- 
 ceived of a government with power sufficient to answer its legiti- 
 mate ends, and at the same time incapable of mischief. No poli- 
 tical system can be made so perfect, that its rulers will always hold 
 it to the true course. In the very best, a great deal must be 
 trasted to the discretion of those who administer it. In ours, the 
 people have given larger powers to the legislature, and rehed, for 
 the faithful execution of them, on the wisdom and honesty of that 
 department, and on the direct accountabihty of the members to 
 their constituents. There is no shadow of reason, for supposing 
 that the mere abuse of power was meant to be corrected by the 
 judiciary." 
 
 The leading and most prominent objection raised to the exercise 
 of the taxing power to favor railroad corporations, is on the ground, 
 that they are private corporations, and that such taxation, is, con- 
 sequently, to be applied to a private purpose. If the premises of 
 tliis proposition were sound, such taxation would clearly be unau- 
 
 a Sharplessv. Mayor of Philadelphia, 21 Penn. St. K. 161, 2.
 
 THE TAXING POWER. 417 
 
 tliorized and void. But the right of taxation depends upon the 
 object for wliich the fund is raised, or the ultimate use to which it 
 is to be applied, and not upon the character of the i)erson or cor- 
 poration whose agency is employed in applying it. It having been 
 settled in this state that railroads organized under legislative 
 authority are iTublic improvements, and that the public have an 
 advantage and interest in them ; the pubHc may also be taxed for 
 this purpose, though it be done under the direction and agency 
 of an individual or private coi-poration. a 
 
 It is believed to be a narrow view of governmental duty, to insist 
 upon confining the state, to the performance of such duties only, 
 as are necessary to sustain the existence of government ; as for 
 instance, to the admiuistrationof justice, the preservation of peace, 
 and protection of individual interests ; nor has it so confined itself. 
 Schools, colleges, institutions of charity and benevolence, mstitu- 
 tions for the promotion of arts and sciences, and other objects too 
 numerous to mention, have not only been established, and their 
 objects promoted by state policy, but taxes have been laid upon 
 individuals by which, their private property has been so taken and 
 appropriated. Canals, bridges, roads, and other means of pas- 
 sage and transportation from one part of the country to another 
 for commercial purposes, have been constracted by the state at 
 public expense fi-om individual taxation, not only here, but by 
 every civilized government ; ancient or modern. If these are not 
 public improvements, the law directing taxation for them is void. 
 It has upon this assumption, therefore, been adopted as the poUcy 
 of this state, enacted mto law by its legislature, and sustained by 
 judicial interpretation. It is held that the state may employ the 
 agency of individuals or corporations to construct such works, and 
 though the company may be private, the work they undertake, is , 
 for the public benefit, to do which, is within the power of the 
 state, as well as the duty ; and the state may therefore, delegate 
 a suliicient share of the sovereign power by way of taxation 
 and eminent domain, to enable such agents to perform the work. 
 The power of taxation by the legislature is unrestrained by the 
 constitution, except by a provision that through it, they cannot 
 take piivate property for private purposes. The courts, hold those 
 
 a Bonaparte v. The Camdeu and Auiboy ER. Co., 1 Baldwin E. 223. 
 63
 
 418 THE TAXING POWER. 
 
 purposes and objects to be public, wliich develop the physical re- 
 soiu'ces, promote its commerce, and estabhsh pubhc benefactions 
 for the poor, the blind, or the insane. These are clearly the pur- 
 poses of a wise and humane government. The theory of our gov- 
 ernment, then seems to be this ; the people by their constitution 
 have invested the legislature with all legislative power, and this 
 includes the power of enacting laws for taxing themselves for pubHc 
 piu'poses, and for the exigencies of government, and the only remedy 
 of the people for unjust legislation done within admitted bounds, 
 is to change then* representatives, and thus correct the evil. 
 
 Taxation is always a dehcate, a peculiarly flexible, and a most 
 indefinite power. There are certam propositions, however, that 
 must be conceded, and they may be laid down as estabhshed. 
 First, that every citizen is equally bound to support the govern- 
 ment, and aid in promoting its beneficent ends. He must also 
 submit to the inherent power of sovereignty in the government to 
 exercise the right of eminent domain, limited only by the funda- 
 mental security tliat he receive just compensation for private 
 property taken for public benefit. Second, that every citizen, 
 when called upon, should contribute in the fomi of taxation, direct, 
 or indirect, to burthens resulting from the administration of the 
 government and its laws, under which he claims protection. The 
 taxpayers compensation, is in his reciprocal benefit. Equality, is 
 the great object of the constitution, and should be of the laws ; 
 but mathematical equality is practically im}x)ssible. The history 
 of sustained taxation, in every form, always shows actual ine- 
 quality. A tax may be constitutionally imposed upon one class 
 of } roperty only, and many may own no such property ; or, it may 
 be specific, and therefore arbitrary, and will be also necessarily 
 imequal ; or it may be on all property od valorem; and even then 
 those owning no taxable propei-ty will contribute nothing, even 
 though they derive great personal benefit from the appropriation 
 of the taxes. And in whatever form, or for whatever purpose 
 taxes may be imposed, and however nearly they may seem to 
 approximate to equality, they will be found to be necessarily une- 
 qual when tested by the only rule or principle of taxation ; which 
 is, an equal degree of benefit to each person in the use made of 
 the tax. There is no human process by which a relative degree of
 
 TUE TAXIKG POWER. 419 
 
 interest can bo precisely graduated. It is undeniable, that all the 
 citizens of one county, or a town, have not the same equal interest 
 in a local improvement, such as a road, or a bridge, or a plank or 
 railroad, but there is no method by which the exact interest of each 
 can be ascertained ; this exactness therefore, must in degree, be 
 disregarded in taxing for the construction or repair of such im- 
 provements, and it is seen that not the local inhabitants alone, are 
 benefited, the people of other localities, counties or towns, are 
 also benefited by these improvements, and the whole pubhc as 
 well as the local citizen are benefited to the extent, that such 
 improvements contribute to the social and commercial intercom- 
 munication between the citizens of the different locahties ; and 
 yet, the taxes to construct or repair a highway or a bridge cannot 
 be levied beyond the hmits of the town or county within which the 
 pubhc improvement is made. Inequality of taxation is not there- 
 fore, unconstitutional, a 
 
 The legislative power in this state, under the constitution, has 
 been so ably, faithfully, and fully, presented, and estabhshed by 
 the highest court of the state, including in the principle, the taxing 
 power, that an omission to copy their views, Avlien discussing tliis 
 subject would seem to be inexcusable. 
 
 Chief Justice Denio, in pronouncing the opinion of the court, 
 said :h "In the first place, the people in framing the constitution, 
 committed to the legislatiu'e the whole law-making power of the 
 state, which they did not expressly or impliedly withhold. Plenary 
 power in the legislature for aU pm-poses of civil government, is the 
 rale. A proliibition to exercise a particular power is the excep- 
 tion. In enquiring, therefore, whether a given statute is constitu- 
 tional, it is for those who questions its validity to show that it 
 is forl)iddcn. I do not mean that the power must bo expressly 
 inhibited, for there are but few positive restraints upon the legis- 
 lative power contained in the instrument. Every positive direction 
 contains an impUcation against anything contrary to it, or which 
 would fi'ustrate or disappoint the pm'pose of that provision. The 
 frame of the government ; the grant of legislative power itself ; the 
 organization of the executive authority ; the erection of the prin- 
 
 a County Judge of Shelby Co. v. Shelby RK. Co. 3 Kentucky E. 
 h People V. Draper, 15 N. Y. 543.
 
 4ii0 THE TAXING POWER. 
 
 cipal courts of justice ; create implied limitations upon the law- 
 making authority as strong as though a negative was expressed in 
 each instance. But independently of these restraints, express or 
 impHed, every subject within the scope of civil government, is 
 Uable to be dealt with by the legislature. As it may act upon the 
 state at large^ by laws affecting at once the whole country, and all 
 the people, so it may in its discretion, and independently of any 
 proliibition, expressly made or necessarily implied, make special 
 laws relating to any sej)arate district or section of the state. As 
 a pohtical society, the state has an interest in the repression of 
 disorder, and the maintenance of peace and security in every locality 
 within its limits ; and if from exceptional causes, the pubhc good 
 requires that legislation, either permanent or temporary, be directed 
 towards any particular locality, whether consisting of one county 
 or several counties, it is within the discretion of the legislature to 
 apply such legislation as iu its judgment, the exigency of the case 
 may require ; and it is the sole judge of the existence of such causes. 
 The representatives of the whole people, convened in the two 
 branches of the legislature, are, (subject to the exceptions which 
 have been mentioned,) the organs of the pubhc will in every dis- 
 trict or locality of the state. It follows, that it belongs to the leg- 
 islature to arrange and distribute the administrative functions, 
 committing such portions as it may deem suitable, to local juris- 
 dictions, and retaining other portions to be exercised by officers 
 appointed by the central power ; and changhig the arrangement 
 from time to time, as convenience, the efficiency of administration 
 and the pubhc good may seem to require. If a particular act of 
 legislation does not conflict with any of the limitations or restraints 
 that have been referred to, it is not in the power of the courts to 
 arrest its execution, however unwise its provisions may be, or 
 whatever the motives may have been which led to its enactment. 
 There is room for much bad legislation and misgovernment within 
 the pale of the constitution ; but when this happens, the remedy 
 which the constitution provides, by the opportunity for frequent 
 renewals of the legislative bodies, is far more efficacious than any 
 which can be afforded by the judiciary." This extended extract, 
 seems to be called for, to excuse the concurrence with a different 
 view of legislative pov/er, expressed in the case of Sweet v. Hul-
 
 THE TAXING POWER. 421 
 
 bnrt above referred to, a so far as it differs from tliis. Tliis case 
 coming from a higher source of authority must be controlling as 
 the law of this state, and as being the settled interpretation of con- 
 stitutional power in the legislative body. N<jr does tliis case stand 
 alone. 
 
 The Supreme Court of this state, whose unreversed and unques- 
 tioned adjudications we must now regard as the law of the state, 
 have laid down the following propositions in regard to the ta xin g 
 power of the legislature, as connected with the construction of 
 public works, and especially as connected with taxation in aid of 
 railroads, which will equally apply to other public imj-jrovements. h 
 
 First. That all the inherent power of the people for self govern- 
 ment, not delegated to the general gevernment, is reserved to, and 
 belongs to the state. 
 
 Second. That of such reserved powers, the entire legislative 
 power, is subject to no restrictions or limitations, except such as are 
 contained in the state constitutions. 
 
 Third. That the taxing power belongs to the legislature, and is 
 subject to no limits or restrictions outside of the United States 
 and state constitutions. 
 
 Fourth. That the power to authorize the cousti'uction of works 
 of internal improvement, and to provide for their construction by 
 officers or agents of the state, rests with, and pertains to, the leg- 
 islature, to be exercised within its exclusive discretion. 
 
 Fifth. That such works maybe constructed by general taxation, 
 and in case of local works, by local taxation ; or the state may 
 aid in their construction, by becoming a stockholder in private cor- 
 porations ; or authorize municipal corporations to become such 
 stockholders for such jiurpose. 
 
 Sixth. That raih'oads are public works, and may be constructed 
 by the state, or by corporations, and lands taken for their use are 
 taken for the public use, and may be so taken on payment of a 
 just compensation. 
 
 Seventh. That the legislature is the exclusive judge in respect 
 as to what Avorks are for the public benefit ; in regard to the ex- 
 pediency of constructing such works ; and as to the mode of their 
 
 a 51 Barb. 312. 
 
 b Clark V. City of Rochester, &c., 24 Barb. 489.
 
 422 THE TAXING TOWER. 
 
 construction, wlietlier by tlie state, or by private or municipal cor- 
 porations, in whole or in part. 
 
 Eighth. That the legislature may authorize municipal corpora- 
 tions to subscribe to a stock of a railroad company, with the con- 
 sent antl approval of the majority of the corporators duly ascer- 
 tained. ^ 
 
 Xhifh. That the passage of a law authorizing such subscriptions 
 to the stock of a private corporation, or to take effect upon the 
 approval or assent of a municipal corporation by the vote of the 
 corporators, is not a delegation of power to the corporation to 
 pass a law, but is a legitimate case of conditional legislation, and 
 is entirely Avithin the cUscretion of the legislature. 
 
 In enforcing these propositions, a member of the court remarked, a 
 " The constitution of the United States, and that of our own 
 state, constitute the only restriction or limitation of the legislative 
 power. It is, aside from these limitations, supreme, uncontrollable 
 and omnipotent, in respect to all other matters and subjects. The 
 taxing power, is one of the inherent powers of government, and 
 belongs appropriately to the legislative department." Another 
 eminent judge in the same case, remarked as follows : " It is not 
 denied but that the state may provide by law, for the construction 
 of a railroad through the agency of its own officers, taking all 
 lands necessary for the purpose by virtue of its right of eminent 
 domain ; or delegate the power to build the road, and take the 
 
 a Id. 480. 
 Note 3. — Since the rule adoi^ted in the above eighth iH'oposition, the highest 
 court of this state, and also the court of the United States, have given interpreta- 
 tion of constitutions, and the subject of legislative power of taxation for the 
 construction of railroads, and have carried the rule beyond what is laid down in 
 this proposition. In the case of The People v. Mitchell, 35 N. Y. 551, it was 
 held that a county, or other municipal corporation, may subscribe lor stock in a 
 railroad or other public improvement if authorized so to do by the legislature : 
 and that the legislature can authorize such municipal corporation to take stock 
 therein; to borrow money to pay for the same; and to levy a tax to repay the 
 loan. That this authority can be conferred in such a manner as to accomplish 
 the purpose, either with, or without a popular vote; and when they have author- 
 ized the act upon the condition of receiving the popular vote, the legislature can 
 by retrospective legislation, cure any evils arising from an irregiilar execution of 
 the power. The same rule, and in terms similar and in almost identical language, 
 has been held by the Supreme Court of the United States, in the case of Thomp- 
 son V. Lee County, reported in 3d Wallace Reports, 327.
 
 THE T.VXIXG rOWER. 423 
 
 lauds required for it, to a private corporation. Nor is it disputed 
 that the state may, under its taxing power, charge the expense of 
 such pubKc improvement, made by itself, upon the citizens of a 
 particular locality wliichniay be supposed t(^ Ije more iunnediately 
 benefited by the improvement ; nor is it contnnerted that a muni- 
 cipal coi-poration may be authorized l)y law, to make such public 
 improvements as are required ])y the interests of its locality, and 
 tax the citizens of the locaUty to defray the expense. The power 
 of the state, to this extent, is unquestioned, and so well established 
 by long exercise of it, and by judicial decisions, as to render a 
 discussion of it unnecessary if not unprofitable," 
 
 " There is notlang more easy than to imagine a thousand tyran- 
 nical things which the legislature may do, if its members forget all 
 theii' duties, (hsregard utterly all the obligations they owe to their 
 constituents, and recklessly determine to trample upon right and 
 justice. But to take away the power from the legislature because 
 they may abuse it, and give to tlie judges the right of controlling 
 it, would not be advancing a single step, smce the judges can be 
 imagined to be as coiiaipt and wicked as legislators." 
 
 "lam thoroughly convinced, that the words of the constitution 
 furnish the only test to determine the validity of a statute ; and 
 that all arguments based on general principles, outside of the con- 
 stitution, must be addressed to the x^eople, not to the courts." 
 
 These propositions, and the conclusions drawn from them, seem 
 to be the views upon which the New York courts have also pro- 
 ceeded in giving constitutional construction, and in establishing the 
 law of this state. They are also sustained, by the construction 
 given by the national and other state courts. * 
 
 Note 4. — A few of the cases favoring the New York constitution are as follows: 
 Fletcher v. Peck, 6 Cranch. 87, where it was held, "If a state legislature 
 shall pass a law within the general scope of their constitutional powers, the courl 
 cannot pronounce it to be void, merely because it is in their judgment, contrary 
 to the principles of natural justice." The ideas of natural justice are regulated 
 by no fixed standard; the ablest and purest men have diflered iipon the subject; 
 and all the court in such an event could say, would be, that the legislature, (pos- 
 sessing an equal right of opinion,) had passed an act which, in the opinion of the 
 Judges, was contrary to abstract principles of right." In Golden v. Eice, 3 Wash. 
 C. C. K., it was said, " that the state legislatures may make such laws as they see 
 fit, unless inconsistent with the powers exclusively vested in the government of 
 the United States, or by some article of the federal or state constitution." In
 
 424 THE TAXING TOWER. 
 
 Bennet v. Boggs, 1 Bald. 74, it was said, "We may think, the jjowers 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." "AVe 
 cannot declare a legislative act void because it conflicts with our oijinions of 
 policy, expediency or justice." " The remedy for unwise and oppressive legisla- 
 tion within constitutional bounds, is by appeal to the justice and patriotism of 
 the representatives of the people. If this fails, the people in their sovereign 
 capacity can correct the evil; but courts cannot assume their rights." 
 
 In the Providence Bank Case v. Billings, 4 Peters, 514, 562, Chief Justice 
 Slarshall said, " The power of legislation, and conseqiiently of taxation, operates 
 on all persons and property belonging to the body politic. This is an original 
 principle which has its foundation in society itself. It is granted by all, for the 
 benefit of all. It resides in government as part of itself, and need not be reserved 
 when property of any description, or the right to use it, in any manner is granted 
 to individuals, or corporate bodies. However absolute the right of an individual 
 may be, it is still in the nature of that right, that it must bear a portion of the 
 public burthens, and that portion must be determined by the legislature." In 
 Commonwealth v. McCloskey, 2 Rawle, 374, the court say, " If the legislature 
 I^ass a law in plain, unequivocal, and explicit terms, within the general scope of 
 their constitutional povrer, I know of no authority in this government, to pro- 
 nounce such an act void, merely because in the opinion of the judicial tribunals 
 it was contrary to the principles of natural justice ; for this would be vesting in 
 the court, a latitudinarian authority which might be abused, and would necessarily 
 lead to collisions between the legislative and judicial departments, dangerous to 
 the well being of society, or at least, not in harmony with the structure of our 
 ideas of natural government." In Norris v. Clymer, 2 Barr. 285, the court said, 
 "The constitution allows to the legislature, every power, which it does not posi- 
 tively prohibit." In Commonwealth v. McWilliams, 1 Jones, (Penn.) E. 71, the 
 court said, " From the commencement of the government, our representative 
 bodies have exerted the unchallenged power to lay taxes, mediately or immedi- 
 ately, for every purpose deemed by them legitimate. Among these purposes, the 
 construction and maintenance of roads and highways, to meet the necessities, 
 and to facilitate the commerce of the people, have ever been deemed of first im- 
 jjortance. Without these, a commercial community could scarcely exist. In- 
 deed, they are so essential to the progress of civilization and the cultivation of 
 the arts of life, that the degree of refinement attained by a people, may, in some 
 • sort, be measured by their extent and condition." "No one has yet dreamed 
 of doubting the validity of that power when applied in maintenance of the ordin- 
 ary roads of the country." 
 
 In Commonwealth v. Hartman, 5 Hariis, 119, the court say, " The legislature 
 has jurisdiction on all subjects on which its legislation is not prohibited. In ap- 
 plying this i^rinciple to the present case," (an act to provide for the establish- 
 ment of common schools,) "it is enough to say, that there is no syllable in the 
 constitution which forbids the legislature to provide for a system of general edu- 
 cation, in any way which thej', in their own wisdom may think best. But it is 
 argued, that for the purpose of promoting education, and carrying out the system 
 of common schools, laws may be passed which will work intolerable wrong, and
 
 THE TAXING TOWER. 425 
 
 produce grievous barJship. The answer to this is, that a decent respect for a 
 co-ordinate branch of the government, compels us to deny that any such danger 
 can ever exist. But if a law, unjust in its operation, and nevertheless not for- 
 bidden by the constitution, should be enacted, the remedy lies, not in an appeal 
 to the judiciary, but to the people, who must apply the corrective themselves; 
 they have not intrusted the power to us." In Wilson v. Mayor of New York, 4 
 E. D. Smith, G78-9, Woodruff, J., said, " The power of the state to tax all prop- 
 erty within its limits, whether real or personal, cannot be denied." " In the ap- 
 portionment of taxes, and the assigning to persons or to property the portion 
 which each shall contribute, to the public burthens, the legislature have the sole 
 and exclusive power, of determining what is just and equitable, and upon what 
 description of persons, and ujion what property within the state and in what 
 ratio, the imposition shall be made." "The inquiry is, in this tribunal, not 
 what property might equituhly be taxed, nor what property it is expedient to tax," 
 &c. In ihe case of the Fire Department v. Noble, 3 E. D. Smith, 441, it was held 
 that a statute imposing a tax upon foreign insurance corporations for the benefit 
 of the fire department, as a condition to their right to take insurances, was not an 
 infraction of the constitution which forbids taking private property for public use 
 withoiit just compensation; that a tax upon a particular business may be levied 
 for the benefit of a public charity, and may be i^aid directly to the persons having 
 the benefit thereof. A tux may be legally levied under a statute for that purpose 
 for losses sustained by default of a county treasurer. People v. Supervisors of 
 Livingston, 17 N. Y. 480. The legislature can ap^jortion the public burthens 
 among all the tax-paying citizens of the state, or those of a particular section or 
 territorial division, and although a statute may be unconstitutional under which 
 public expenses are incurred, a tax may be properly levied to meet those ex- 
 penses. People v. Haws, 34 Barb. 69. When the legislature determines that a 
 public improvement will be a benefit to the adjacent property, and that the ex- 
 penses of making the same shall be paid by the owners of such adjacent property, 
 the courts have nothing to do with the correctness or incorrectness of the deter- 
 mination, but must assume the fact to be as the legislature declares it. The wis- 
 dom or justice of the taxation, is not a subject of judicial inquiry, nor is the pur- 
 pose for which the tax is imposed. People v. Lawrence, 36 Barb. 177. Taxes 
 for bounties to volunteers; taxes upon the owners of dogs, are legal subjects. A 
 local tax upon lands adjacent to the Long Island Railroad Compan}-, for the 
 benefit of that company, as a piablic improvement, was held to be a legitimate 
 exercise of the taxing power. Litchfield v. McOmber, 42 Barb. 288. An act to 
 tax the citizens of the locality of Utica, to pay the additional expense of termina- 
 ting the Chenango canal at that place, instead of W'hitesborough, was held a 
 l>roper exercise of the taxing power. Thomas v, Leland, 24 Wend. 65. And 
 finally, " The raising money for a local improvement is an exercise of the taxing 
 power, inherent in the legislature ; and this power of taxation, implies a power to 
 apportion the tax (territorially) as the legislature shall see fit, and moreover, that 
 this power of apportionment has no limit, where there is no constitutional re- 
 straint; and that the constitutional inhibition against depriving a person of life, 
 liberty or property from being taken for public use without just compensation, 
 has no application to such a case." Matter of Trustees of the N. Y. P. E. Public 
 
 54
 
 42G THE Taxing towee. 
 
 School, 31N. Y. 582-3; Howell v. City of Buffalo, 37 N. Y. 267; People v. Smith, 
 21 N. y, 595; People v. Law, 34 Barb. 494; Thomas v. Leland, 24 Wend. 65; 
 Li^•ingston v. Mayor of New Y'ork, 8 Wend. 85 ; Bank of Kome v. Village of Borne, 
 ISN. y. 38; Grant v. Courter, 24 Barb. 232; The Cincinnati, &c., K. R. Co. v. 
 Commissioners of Clinton Co., 21 Ohio, 77; City of Bridgeport v. Honsatonic R. 
 R. Co., 15 Conn. 475; People v. Lawrence, 3G Barb. 177; McCulloch v. Maryland, 
 4 Wheat. 31 G; and see United States v. The Railroad Bridge Company, 3 Law 
 Register, Old Series, 617, Per McLean, J. 
 
 Opposed to this view, are found several recent decisions of the courts of some 
 of the western states; among them those of Ch. J. Cooley, of the state of Michi- 
 gan, in the case of the People ex rel The Detroit & Howell R. R. Co. v. The 
 Township Board of Salem, in the supreme court of that state. Also, of Ch. J. 
 Dixon, of the supreme court of Wisconsin, in the case of Whiting v. Sheboygan 
 Railway Co., reported in American Law Register, Vol. 9, N. S. 156; Weeks v. The 
 City of Milwaukie, 10 Wisconsin, 242. Also a case in Iowa, Hanson v. Vernon, 
 reported in 27 Iowa R. ; not yet come to hand, from a note of it, supposed to be 
 to the same effect as those of Michigan and Wisconsin, which are conceded to 
 be the ablest opinions opposed to the doctrine which we have shown to be the 
 established law of New York. 
 
 It does not become us to deny, or controvert the soundness of views expressed 
 in these opinions; — to qi;estion the wisdom of those states, in adopting a state 
 policy in accordance with those judicial expressions. We do not claim for the 
 state of New York a superior wisdom in the adoption of the entirely opposite view 
 of policj', or in the construction given by the judiciary of the taxing power, under 
 a somewhat different constitution, and as to what constitutes a public use of prop- 
 erty, and the power of the legislature to declare it; — nor, w^hether the judicial de- 
 partment of other states may not jjossess the power to control the legislative 
 department, and deny them the power to declare, whether their citizens, and 
 which of them, shall bear the burthens of taxation, to pay the expenses, of so- 
 called public improvements. 
 
 These are questions of state policy, as to which, each independent state, in its 
 sovereign capacity, must determine for itself. The judicial department of each 
 such state, are the interpreters of their own local constitutions and statutes, and 
 we therefore assume, that their courts, have correctly enunciated in those 
 opinions, the law which is to control the action of those states. 
 
 Biit inasmuch as the highest judicial authority of our own state, under our own 
 local constitution, have given a different, and the ojiposite interpretation of our 
 own constitution and statutes ; and as the other departments of our own state 
 government, have declared, adopted and practiced a different state policy, we 
 claim that the citation of the decisions of other states which have given a differ- 
 ent interpretation to the legislative power from that established in this state, 
 (however wise such other rule might be as an original question to be settled) is 
 calculated to mislead and confuse the profession, and the citizen whose private 
 interest dictates the desire lor a different construction. We may add to the cases 
 above cited, as in degree, sustaining them. Griffith v. Indiana & Ohio R. R., 20 
 Ohio, 609, and dicta of Judge Patterson, 2 Dallas, 304, of Judge Chase in same
 
 THE TAXIIsG TOWER. 427 
 
 and 3 Dallas, 388 ; and Sweet v. Ilulburt, in the supreme ^ui^^iol itiis state, before 
 referred to, and commented upon, not appealed-to the court of dernier resort. 
 
 Did our limits permit, we t-hould gladly transfer the able exposition of the h.\i 
 of constitutional iuterpretation, given in the opinions of the courts of these west- 
 ern states, to which wo have referred in this work. It may be sufficient however, 
 briefly to refer to the points of agreement and of departure, in the view s of con- 
 struction of the constitution of those states and our own. 
 
 1. They agree with us, that taxation for the purpose of taking the private prop- 
 erty of one person, to bestow it upon another, is unconstitutional and void. 
 
 2. They agree with us, that the legislature do possess the power to grant the 
 right to take private property for public purposes. 
 
 3. While they agree, that the legislature may grant the right to take property 
 by the exercise of omiueut domain, to a railroad corporation, and though they 
 agree to the grant of power by the legislature to tax for puhllc purposes, yet they 
 hold, that a railroad corporation, whose road is constructed by itself, is exclu-' 
 sively private property, owned, controlled, and operated by a private corporation, 
 for the benefits of its own members, and that it is for the judiciary, and not for 
 the legislature to determine whether or not the purpose is a public one; that an 
 act of the legislature declaring the purpose of such a railroad to be public, and 
 authorizing taxation in its iiid, is unconstitutional and void. In this, it is seen, 
 the cases are in direct coutlict with the New York authorities. People v. Law- 
 rence, 3G Barb. 177; supra and other cases cited, where it is held that the power, 
 •wisdom, or justice of taxation upon persons benefited by such improvements, is 
 not a subject of judicial inquiry, but belongs to the legislative department. This 
 is the first great point of divergence. 
 
 It is no part of our purpose to compare the soundness of the opinions of the 
 judiciary of one sovereign state with those of another. The difference in their 
 local constitutions may be sufficient to account for the dilference in results. The 
 right of eminent domain and the taxing power are entirely different, the one from 
 the other, in the method of exercising their respective powers, though each is 
 called into use for public purposes. Nor is it any part of our design here to en- 
 quire into the reason, or to explain the apparent inconsistency in the proposi- 
 tion, that the legislative department do possess the authority and may declare the 
 purpose of a railroad corporation to be jnihlic, so as to enable them to exercise the 
 right of eminent domain in taking private property; but have no power to declare 
 the purpose of the same project public, so as to authorize taxation upon the per- 
 sons to be benefited by the construction of their road. The curious searcher for 
 information on these points, will seek the explanation in the adjudications, as 
 manifested in the able enunciation of the reasons contained in the opinions re- 
 ferred to, upon which these difi'erent sovereignties seem to have adopted as theii 
 respective state policies.
 
 428 OF CONSTITUTIONAL PROTECTION. 
 
 CIIAPTEE XIII. 
 
 OF THE CONSTITUTIONAL PROTECTION, THAT LIFE, LIBERTY, AND 
 PROPERTY BE NOT TAKEN "WITHOUT DUE PROCESS OF LAW. 
 
 Lite, liberty, and property of a citizen may be forfeited and 
 lost, hut not icithout due ]3rocess of laic. This protection is con- 
 tained inboth the national and state constitutions, a It originated 
 in Magna Charta, h and constitutes one of its fundamental articles, 
 in which it is declared, that "no free man shall be taken, or 
 imprisoned, or dissiezed of his freehold, or liberties, or fi'ee cus- 
 toms, or be out-lawed, or exiled, or otherwise destroyed, nor will 
 we pass upon him nor condemn him, but by lawful judgment 
 of his peers, or by the law of the land." " The judgment of his 
 peers," was by the law of England, the trial of a man by a jury 
 of his equals, and in this country, means a trial by jury, who are 
 called the peers of the party accused. This question was briefly 
 and partially, but indirectly considered in a former chapter. 
 
 Our ancestors brought these pri\dleges with them to America 
 as their birthright and inheritance, and as a part of the common 
 law, Avhich then interposed its guardianship, and threw around 
 them on every side, its protection against the approaches of arbi- 
 trary power. These privileges, as rights, are now incorporated 
 not only into all our constitutions state and national, but will be 
 found in all the statutes of the states made in subordination to 
 the fundamental law, recognizing and confirming these rights in 
 the citizen ; and all statutes are void, and without effect, which are 
 found to be obnoxious to these solemnly secured privileges. 
 
 " That government can scarcely be deemed to be free, where 
 the rights of property are left solely dependent uj)on the will of a 
 legislative body, without any restraint. The fundamental maxims 
 of a free government seem to require, that the rights of personal 
 
 a Const. United States aniendmeut 1, Art. 4 ; Const. New York, Art. 1, § 6. 
 h 9 Hen. Ill, ch. 29.
 
 CONSTITUTIONiVL RIGHTS. 429 
 
 liberty and private property should be held sacred. At least uo 
 court of justice in this country would bo warranted in assuming 
 that the power to violate and disregard them, a power so repugnant 
 to the common principles of justice and civil hberty, lurked under 
 any general grant of legislative authority, or, ought to be imphed 
 from any general expressions of the will of the people. The 
 people ought not to be presumed to part with rights so vital to 
 then- security and well being, without very strong and direct ex- 
 pressions of such an mtention." a 
 
 The term, right, m civil society, Chancellor Kent defines to be, 6 
 " that which any man is entitled to have, or to do, or to require 
 from others -within the limits prescribed by law." The absolute 
 rights of uidividuals may be resolved into the right of personal 
 security — the right of personal liberty — and the right to acquire 
 and enjoy property. These rights have been justly considered 
 and frequently declared, by the people of this country, to be 
 natural, inherent, and unaUenable. The effectual security and 
 enjoyment of them depend upon the existence of civil liberty ; 
 and that consists in being protected and governed by laws made, 
 or assented to, by the representatives of the people, conducive to 
 the general welfai'e." 
 
 Before the adoption of our American constitutions, the words 
 " by the law of the land," had a well defined meaning at common 
 law, and had been rendered, " due process of law." c Our con- 
 stitutions adopt the veiy words of this common law definition, and 
 mean undoubtedly by that, that to work a change of property fi'om 
 one private person to another, some proceeding must be had in a 
 court of justice, or before magistrates ; at least that the legislature 
 should have no power to deprive one of his property, and transfer 
 it to another, by enacting a bargain between them, unless it be in 
 the hands of the latter, a trust for public use." d 
 
 In a subsequent statute, passed in the reign of Edward III, 
 I\Iagna Charta in this respect, was itself changed. The clause, 
 " but by the law of the land, or the judgment of liis peers," was 
 altered to read thus : without being brought to answer by due 
 process of law." 
 
 a Wilkinson v. LeLmd, 3 Peters G37, Per Stoiy J. h 2 Com. 1. 
 
 c 2 Coke's, lust. 50. d Mfttter of John and Cherry street, 19 Wend. G7G.
 
 ^30 DUE PEOCESS OF LAW. 
 
 The ^yovds "due ijrocess of kac,'' said Judge Bronson, a cannot 
 uieau less than a prosecution or suit instituted and conducted 
 according to the prescribed forms and solemnities for ascertaining 
 guilt, or determining the title to property. It will be seen that 
 the same measure of protection against legislative encroaclunent, 
 ' is extended to life, hberty and property ; and if the latter can be 
 taken without forensic trial and judgment, there is no security for 
 the others. If the legislature can take the property of A. and 
 transfer it to B., they can take A. himself, and either shut him up 
 in prison, or put him to death. But none of these things can be 
 done by mere legislation. There must be " due process of law." 
 
 What then is due process of law? The definition given of this 
 clause that has been more fi'equently quoted, or, perhaps adopted 
 by the courts than any other, is that given by Mr. Webster, b 
 who said : " By the law of the land, is most clearly intended the 
 general law, which hears before it condemns, and proceeds upon 
 inqmiy-, and renders judgment only after trial. The meaning is, 
 that every citizen shall hold his life, liberty, proj)erty and immu- 
 nities imder the protection of general rules which govern society. 
 Every thing which may pass under the form of legislative enact- 
 ment, is not therefore the law of the land." "A construction that 
 would do this, would render constitutional provisions of the highest 
 importance, completely inoperative and void. It would tend di- 
 rectly to establish the union of all powers in the legislature. There 
 would be no general permanent law for courts to administer, or 
 for man to live under. The administration of justice would be an 
 empty form, an idle ceremon3^ Judges would sit to execute legis- 
 lative judgments and decrees ; not to declare the law, or to admiu' 
 ister the justice of the country." o 
 
 To give this clause, therefore, any value, it must be under- 
 stood to mean, that no person shall be deprived, by any form of 
 legislation, or governmental action, of either life, liberty, or pro- 
 perty, except as a consequence of some judicial proceeding appro- 
 priately and legally conducted. It follows, that a law, which, by 
 its own inherent force, extinguishes rights of property, or compels 
 
 a Taylor v. Porter, 4 Hill 147 ; Embury v. Conner, 3 N. Y. 517. 
 h Dartmouth College case, 4 Wheat, 519, 581. 
 c Westervelt v. Gregg, 12 N. Y., 209.
 
 DUE TROCESS OF LAW. 431 
 
 their destruction, without any legal process whatever, comes di- 
 rectly in conflict with the constitution, a 
 
 One of the means attempted by which a citizen is sometimes to 
 be deprived of his property, or of his personal liberty, are ex post 
 faclo laws, or laws retrospective in their nature. The New 
 York C(jde of 18-49, section 400, in form, authorized an appeal 
 " in any suit in equity, pending in the Supreme Court on the first 
 day of July 1847." Under this act, a party brought an appeal to 
 the Court of Appeals from a final decree in equity, Avhere the 
 time previously allowed by law for appeahng had expired, and the 
 decree had been executed. It was held by Jewitt, J., b that this 
 statute which contingently deprived a person of property, the right 
 to which was perfect under prior laws, was within the prohibition 
 of the constitution. The direct effect of this provision of tlie Code, 
 if valid, was the gi'anting of a new trial or hearmg upon all tlie 
 (questions both of law and evidence arising in the case, after it had 
 been lost by neglect of the complainant under the provision of law 
 as it existed at the time the decree was made, and after it had 
 become final upon the rights of the parties involved in the suit, 
 and the defendant had acquhed possession of the fruits of the lit- 
 igation by due execution upon it. It was therefore held that the 
 act was invaHd as contrary to the clause in article 1 section 6, of 
 the constitution of this state, which provides, that "no 'person shall 
 he deprived of life, liberty or property, icitJiout due process of law." 
 It was in effect, annulling a complete and final decree by which 
 property had been acquired and possessed. Contingently, it not 
 only deprived such person of the property thus acquired, but com- 
 pelled hun to pay to his adversary, such sum of money, as the ap- 
 pellate court might detcrmme he ought to pay. The money which 
 had been adjudged to be paid by the decree, and received by the 
 defendant under it, was his property in a legal sense, at the time of 
 the passing the act, and though it did not absolutely deprive the 
 party of the money decreed to hun, contingently it had that effect. 
 
 So an act of congress passed m 1865, requiring attorneys and 
 counsellors at law, to take an oath : First. That he had never 
 voluntarily borne anns against the United States since he was a 
 
 a Wyndhiun v. The People, 13 N. Y. 434. 
 tBurch V. Newbury, 10 N. Y., 31i
 
 432 RIGHT OF TEIAL BY JURY. 
 
 citizen thereof. Second. That he had not vohmtarily given aid, 
 counsel, countenance, or encouragement to persons engaged in 
 anned hostihty thereto. TliinJ. That he has never sought, ac- 
 cepted, or attempted to exercise the functions of any office what- 
 soever under the authority, or pretended authority, in hostihty to 
 the United States. Fourth. That he has not yiekled a vohmtary 
 support to any pretended government, authority,- power or consti- 
 tution within the United States, hostile, or inimical thereto ;" was 
 held to be in violation of the provisions of the constitution ; not 
 only as being ex post facto law, but also as against the inhibition 
 against the passage of bills of attainder, a It was said, that this 
 act operated as a legislative decree, judicial in its character, of 
 perpetual exclusion against a class of citizens for past transactions ; 
 that an exclusion from any of the professions, or any of the ordin- 
 ary avocations of life for past conduct, could be regarded in no 
 other light than as a punishment for such conduct. 
 
 The trial by jury, especiaUy in all criminal cases, is justly dear 
 to the American -peo]Ae. It has always been an object of deep 
 interest and solicitude, and every encroachment upon it has been 
 watched with great jealousy. The right to such a trial, as is seen, 
 is secured by being incorporated into the federal constitution, into 
 the constitution of tliis state, and it is behoved into the constitu- 
 tion of every state in the Union. It is said to have been one of 
 the strong objections originaUy taken against the constitution of 
 the United States, that there was the omission to provide for the 
 right of trial by a jury in all civil cases. So strongly was this ob- 
 jection pressed, that its advocates, after the adoption of the orig- 
 inal, were able to secure tliis right in a somewhat qualified sense 
 )j the seventh amendment made thereto, as proposed by congress, 
 which afterwards received the assent of the people, and so estab- 
 lished its importance, as a fundamental guaranty to what was re- 
 garded as the rights and liberties of the people, h The qualifica- 
 tion however, was first, to cases where the value of the controversy 
 exceeded twenty dollars, and second, the implication arising from 
 the language "shall be preserved," as qualifying it to such cases 
 of trial by jury as existed at common law at the time and prior to 
 
 a Matter of Garland, reported in 32 How. Pr. R. 241. 
 b Parsons v. Bedford, 3 Peters, 445.
 
 RIGHT OF TI:LVL BY JURY. 433 
 
 the adoption of the coustitution that is, the existing law was " prc- 
 served." The same provision in effect is secured by our state con- 
 stitution. " Tlic trial by jury in all cases in which it has hereto- 
 fore been used, shall remain inviolate forever." a 
 
 Beyond the reasons ^\ liich might be advanced by jurists of the 
 greatest experience as to the most judicious modes of trial in cases 
 not criminal, there has ever existed in the minds of the mass of 
 citizens, a tenacity of opinion in favor of the system of trial by 
 jury ; they insist upon it as one of the gi'cat bulwarks of civil and 
 political hberty, and they are ever watching it with unceasing 
 jealousy and sohcitude. It is claimed, that the same reasons 
 which secured a trial by jury in criminal cases ; which was to pro- 
 tect against oppression and tyranny on the part of rulers ; and from 
 violence ^nd viudictiveness on the part of the people, under cir- 
 cumstances of excitement and passion ; demands a conespondhig 
 protection where their personal liberty, property, or cliaracter are 
 involved ; that at common law these rights came down to them as 
 a fundamental right secured by Magna Charta, and is secured by 
 the provision m our own fundamental law, that no man shall be 
 aiTCsted or imprisoned, or deprived of life, liberty or property ex- 
 cept by the judgment of his peers, or by the law of the land. And 
 this claim as to a class of actions, has been especially endorsed by 
 our highest state court in a recent case, in which it was said, h 
 The wisdom of the time-honored nile of the common law which 
 refers questions of fact to the jurors, and questions of law to the 
 judge, is not more conspicuous in an}- class of civil cases, than in 
 those wliich involve questions of negligence. Cases of that nature 
 fi'equently come before the courts, in wliich men. of equal intelh- 
 gence and judgment difter in their conclusions, simply because 
 they differ in experience and habits, in temperament or mental 
 organization. That average judgment which is the result of the 
 deliberations of twelve men of ordinary sense and experience is 
 recognized by our jury system as a juster standard than the judg- 
 ment of one man, of equal experience and sense, in the determina- 
 tion of questions of fact, and it is especially valuable in the de- 
 
 a Murphy v. The People, 2 Cow. 81G; Jacksou v. The People, id. 819; Living- 
 Btoii V. Mayor, 8 "Wend. 99; Colt v. Eves, 12 Conn. 251. 
 6 AVillis V. Loug Island 11. E. Co , 34 N. Y. C79. 
 
 55
 
 43-i EIGHT OF TKIAL BY JUEY. 
 
 cisiou of the question of negligence. On tlie trial of an issue of 
 that nature, if there is an3^ doubt, however shght, either as to "what 
 facts are established by the testimon}', or as to the conclusion with 
 respect to the fact of negligence that may be drawn legitimately 
 from the circumstances proved by the average of men of common 
 sense, ordinary experience, and fair intentions, the case should 
 not be taken fi'om the jury. It is only where the case is entirely 
 clear upon the testimony ; where there is no rational doubt, either 
 as to the cu'cumstances proved, or as to the conclusions of fact 
 which may be properly drawn from them, that a judge is justified 
 in deciding a question of negligence as matter of law. But tliis 
 view is perhaps more a question of practice, than of constniction, 
 though it partakes of the spirit of the constitutional protection. 
 
 An unlimited power in a constitution creatmg a judicial depart- 
 ment, and to constitute courts, includes in it, the power to pre- 
 scribe a mode of trial ; consequently, if nothing was said in the 
 constitution on the subject of juries, the legislature would be at 
 liberty either to adopt the system of trial by jury, or to let it alone. 
 So far as criminal cases are concerned, in both the national and 
 state constitutions, the question is settled by express injunction, 
 but so far as regards civil cases, the national constitution was 
 originally silent, and by the constitution of this state, the right of 
 the legislature to direct, is qualified by limitation to cases in which 
 it therefore had been used. It had been claimed that the specifi- 
 cation in the national constitution of an obligation to tiy all crim- 
 inal cases by jury, by the rales of construction, excluded the obh- 
 gation to try civil causes in the same way, a though it did not 
 abridge the power of the legislature to appoint that mode. This 
 was amended afterwards, as has been stated, by the seventh amend- 
 ment, with a qualification. The pretence therefore, either that it 
 is the constitutional right of the citizen to have every case tried by 
 u jury, or, that the right of trial in civil cases is denied by impli- 
 cation of the constitution, is without foundation. 
 
 It may therefore be stated, that jury trials are nowhere abol- 
 ished, in national or state constitutions, and with equal certainty 
 it may be stated, that in most of the civil controversies that arise 
 between individuals, in which the great body of the people are 
 
 a Federalist, by Hamilton, No. 83.
 
 MGIIT OF TKI.VL EY JUKY. 435 
 
 likuly U) bu interested, the trial by jury as an institution, will ro 
 niaiji as heretofore, and in the sitiiation in -whicli it is placed l)y 
 the state constitutions. 
 
 At the time of the adoption of these provisions in the national 
 and state constitutions, throughout the Union, and in the several 
 states, the connnon law was the basis of our jurisprudence, and 
 was probably that of the new states since received into the Union. 
 But it may as well be remarked here, that the provision in the 
 United States constitution is only intended for proceedings under 
 acts of congress, and does not apply to actions m state courts, a 
 
 The phrase " common law," found in this clause of the consti- 
 tution of the United States, is used in contradistinction to "equity" 
 and "admiralty" and "'maritime" jurisprudence. The constitu- 
 tion had declared, in the third article, " that the judicial power 
 shall extend to all cases in law and equity arising under that 
 constitution, the laws of the United States, and treaties made or 
 which shall be made under their authority, Arc," and to all cases 
 of admu-alty and maritime jurisdiction. It is well known that in 
 civil cases, in coiu'ts of equity, and admiralty, juries do not inter- 
 vene, and that courts of equity use the trial by jury only in ex- 
 traordinary cases, to inform the conscience of the court. "NMien 
 therefore we find that this amendment requires that the right of 
 trial by jury shall be preserved in suits at " common law " the 
 natural conclusion is, that this distinction was present to the 
 minds of the fi'aniers of the amendment. By common law, they 
 meant what the constitution denominated in the third article, 
 "law," not merely suits whicli the common law recognized among 
 its old settled proceedings, but suits in which legal rights were to 
 be ascertained and determined, in contradistinction to those, where 
 equitable rights alone were recognized, and equitable remedies 
 were administered ; or where, as in the admu-alty, a mixture of 
 ])ublic law, and of maritime law, and equity, was often found m 
 the same suit. Probably there were few, of 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. Pro- 
 
 a Colt V. Eves, supni; Livingstou v. Moore, 7 Peters E. 551.
 
 I 
 
 4oG EIGHT or TKL\L BY JURY. 
 
 ceedings in case of partition, and of foreign and domestic attach- 
 ments, miglit be cited as examples, variously adopted and modified. 
 
 In a just sense, then, the amendment may be well constmed to 
 embrace all suits, which are not of equity and admiralty jurisdic- 
 tion, whatever may be the pecuUar form which they may assume 
 to settle legal rights. ^Vnd congress seems to have acted with refer- 
 ence to this exposition in the judiciary act of 1789, ch. 20, (which 
 was contemporaneous with the proposed amendment ;) for in the 
 ninth section, it is provided, that, " the trial of issues of fact in 
 the district court in all causes, except civil causes of admhalty 
 and maritime jurisdiction, shall be by jury ; " and in the twelftli 
 section it is pro\dded, that " the trial of issues in fact in the cir- 
 cuit courts, shall in all suits, excej)t those of equity and admiralty 
 and maritime jurisdiction, be by jury ; and again in the tlhrteenth 
 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." 
 
 The same constniction in effect was given to a similar constitu- 
 tional provision in the state of Pennsylvania, in the following 
 words : " Trials by jmy shah be as heretofore, and shall remain 
 inviolate." At the time of the adoption of that constitution, jus- 
 tices had jmisdiction in actions not exceeding ten pounds. The leg- 
 islature of that state, by an act increased this jurisdiction to twenty 
 pounds, and imposed certain liabilities to courts, and to parties 
 in certain circumstances, who demanded trials by jury in that class 
 of cases. This latter act was claimed to be unconstitutional. The 
 court held, a that though ^the legislature could not constitutionally 
 impose any provisions substantially restrictive of the right of trial 
 by jury, they might give existence to new forums ; and they might 
 modify the pov/ers 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, atrial by jury, must be preserved. " It shall remain 
 inviolate as heretofore." 
 
 This provision, securing to the citizen his right and privileges, 
 unless deprived of them " by due process of law," was designed, says 
 Denio, l.,h "To protect the citizen against all mere acts of power, 
 
 a EmerK'k v. Harri«, 1 Bimicy, 424. h Wcstcrvelt v. Gregg, 12 N. Y. 212.
 
 DUE TROCESS OF lAW. -137 
 
 whether flowing from the legi.skitive or executive branches of the 
 government. It does not of course touch the right of the state to 
 appropriate private property to pubhc use upon making due com- 
 pensation, which is fully recognized in another paii of the consti- 
 tution ; but no power in the state can legally confer upon one per- 
 son or class of persons, the property of another person or class, 
 without their consent, whatever motives of policy may exist in 
 favor of such transfer." To give this clause, " due proce.ss of law," 
 its true and proper value to the citizen, it nmst be made to mean, 
 that no person shall bo deprived, l)y any form of legislation, or 
 governmental action, of either life, liberty, or property, except as 
 the consequence of some judicial proceeding, appropriately con- 
 ducted. It follows, that a law, which by its own inherent force 
 extinguishes rights of propert}', or compels their extinction, with- 
 out any legal process whatever, comes directly in conflict with the 
 constitution, a 
 
 The meaning of this provision, then, according to its best inter- 
 pretation by judicial authorit}', as well as history is, that no mem- 
 ber of the state shall be disfranchised, or deprived of any of 
 his rights or privileges, unless the matter shall be adjudged against 
 him upon trial had according to tlie course of the common law ; 
 he is to be secured the benefit of those rules by which judicial 
 trials are regulated, and to place those rules, beyond the reach of 
 legislative subversion. It is thus, that these rules are incorporated 
 into the constitution itself, and made thereby a part of the para- 
 mount law. Trials, therefore, at least such as are criminal, are to 
 be regulated and conducted in their essential features, not by statute 
 but by common law. This is the constitutional guarant}-. "These 
 are but the rules which reason applies to the investigation of truth, 
 and are of course, unchangeable." There has been in England, 
 and in this country, a concurrence of opinion and holding, that all 
 those fundamental rules of practice and evidence, which have gen- 
 erally been deemed essential to the due administration of justice, 
 and which have been acted upon and enforced by all their common 
 law courts for centuries, should be placed by the constitution 
 beyond the reach of legislation." h 
 
 a Wyndham v. The People, 13 N. Y. 43i. 
 6 Id. 447.
 
 438 EIGHT OF TEI.\L BY JURY. 
 
 So far as this provisiou includes the right of trial by jury in 
 criniual cases, it is hardly necessary that it be further discussed. 
 The express provisions in the fifth and sixth articles of the first 
 amendment of the constitution of the United States, which con- 
 tain the jjrovision we have been examining, are all that need be 
 said on that subject. The whole of which are as follows : 
 
 Article 5. " No person shall be held to answer for a capital or 
 otherwise infamous crime, unless upon presentment or indictment 
 of a grand jury, except in cases arising in the land or naval forces, 
 or in the militia, when in actual service, in time of war, or public 
 danger ; nor shall any j)erson be subject for the same offence, to 
 be twice put in jeopardy of hfe or limb ; nor shall be compelled in 
 any criminal case, to be a witness against himself ; nor be deprived 
 of hfe, hberty, or property without due process of law ; nor shall 
 private property be taken for public use, without just compensa- 
 tion." 
 
 Article 6. " In all criminal prosecutions, the accused shall enjoy 
 the right to a speedy and public trial, by an impartial jury, of the 
 state and district wherein the crime shall have been committed ; 
 which district shall have been previously ascertained by law ; and 
 to be informed of the nature and cause of the accusation ; to 
 be confronted with the witnesses agamst him ; to have compul- 
 sory process for obtaining witnesses in his favor ; and to have the 
 assistance of counsel for his defence." 
 
 The mode of trial it is seen, in all criminal actions, is a trial by 
 a juiy, and is surrounded by certam safeguards, which are made 
 as well by the constitution as by statutes, a part of the system ; 
 and wliicli government cannot dispense with. Among these, is, 
 that the accused shall have a speed// trial. Though this is a posi- 
 tive injunction of the constitution, it is to have a reasonable con- 
 struction in favor of the accused. If when charged with crime 
 he is willing to proceed at once to trial, no delay on the part of the 
 prosecution should be hekVreasonable, except that which is neces- 
 sary to secure the attendance of witnesses ; and this reasonable- 
 ness, is a matter which it is the province of the court to control. 
 If the government officer, acting under the responsibility of his 
 official oath, represents the excuse of absent, or foreign witnesses, 
 or witnesses who by reason of sickness, or other temporary infir-
 
 IIIGIIT OF TltlAL LY JURY. 4.30 
 
 inity, cannot be obtained at earliest possible da}' in court, it is 
 with reason supposed to be the duty of the court, to grant some 
 delay. So on the other hand, a judicious court, in vi(;w oi the 
 constitutional security in this respect intended for the accused ; 
 and in view of the innnense power of oppression that may bo 
 brought by prosecuting officers. The courts will ever appreciate 
 actual difficulties, and duly regard the rights of the accused, and 
 especially, in cases where delay will result in keeping him in 
 confinement. 
 
 In cases not capital, it seldom fails, that the accused can avoid 
 confinement, by recognizance of bail ; and here again, the consti- 
 tution throws its protection around the accused, and commands 
 that unreasonable bail slmll not be requhed. Tliis command, 
 which the court is under the solemn obligation to obey, appeals 
 to the sense of justice of the court or judge to regard, in fixing the 
 amount of bail. No conscientious magistrate can, capriciously, 
 allow this constitutional privilege of the accused to be set at naught. 
 
 So too, there is the further security to the accused, that the 
 trial shall be public. By this it is not meant that every person 
 who sees fit, shall m all cases be permitted to attend criminal trials, 
 because there are many cases where, from the character of the 
 charge, and the nature of the evidence by which it is to be sup- 
 ported, the motives to attend the trial on the part of portions of 
 the community would be of the worst character, and where a 
 regard to public morals and public decency, would demand the 
 exclusion at least of the young from the hearing, and of witnessing 
 the evidence of human depravity, wliich the trial must necessarily 
 bring to light. The requirement of a public trial, is for the bene- 
 fit of the accused, that the pubhc may see that he is fairly dealt 
 by and not unjustly condemned, and the presence of inter- 
 ested spectators may keep his triers keenly alive to a sense of 
 their responsibility, and to the importance of their functions. 
 This requirement is fairly met, if, without partiality or favoritism, 
 a reasonable proportion of the public is suftered to be present, 
 notwithstanding those persons whose presence could be of no ser- 
 vice to the accused, and who would only be drawn thither by a 
 prm-ient curiosity, are excluded altogether, a 
 
 a Cooley on Const. Lim. 312.
 
 440 „ RIGHT OF TRIAL BY JURY. 
 
 But a far more important requii-cment is, that the proceeding 
 to estabhsh guilt, shall not be inquisitorial, and the criminal shall 
 not, in a criminal case, " be compelled to be a witness agamst 
 himself," and in this state, as a still further protection to the 
 accused, the legislature have provided by a statute, a " that in the 
 trial of all indictments, complaints, and other proceedings against 
 persons charged with the commission of crimes or offences ; and 
 hi all proceedings in any and all courts, and before any and all 
 officers and persons acting judicially; the person so charged, shall, 
 at his own request, but not otherwise, be deemed a competent 
 witness ; but the neglect or refusal of any such person to testify, 
 shall not create any presumption against him." There is a still 
 further security and protection to the accused upon his preliminary 
 examination, wliich the statute directs shall not be on oath ; and 
 before it is commenced, the accused shall be informed of the charge 
 made against him ; and he shall be allowed a reasonable time to 
 send for and advise with counsel; and if he desires it, he may have 
 his counsel present during his examination, and during the exami- 
 nation of the complainant and the witnesses on the part of the 
 prosecution, h Aaid it is made the duty of the examining magis- 
 trate to inform the accused of his privilege to refuse to answer 
 any question that may be put to him, c and in case he answers, 
 the interrogatories put to him shall be reduced to writing by the 
 magistrate, or under his direction, and they shall be read to the 
 accused, who is entitled to correct and add to them until they are 
 made conformable to what he declares is the truth before they are 
 certified and signed by the magistrate. All these prehmmary pro- 
 ceedmgs are connected with, and incident to the system of trial 
 by jury. 
 
 But as we have seen, except in criminal cases, this constitutional 
 guarantee is to be reasonably interpreted. It was not intended by 
 this provision, as may be learned from its language, to tie up the 
 hands of the legislature in every conceivable case, so that no mat- 
 ter can be judicially settled except by a jury trial, and, as will ap- 
 pear, it has been frequently decided, there are matters that come 
 before courts, referees, and commissioners for adjudication, where 
 
 a Laws of N. Y. 18C9, Chap. G78. h Ecv. Stat. 708, § 1-1. 
 
 cid., §15.
 
 rJGHT OF TRIAL BY JURY. 441 
 
 this pro\ision of tlie eonstitutiou is not impaired, even though a 
 jury trial, in the technical sense of the term, Is not given. 
 
 " Due process of law," therefore, includes every process and 
 proceeding Avhich any of the guarantees of the national or state 
 constitutions confer. The first article of the constitution of this 
 state declares, that " no member of tliis state shall be disfran- 
 chised, or deprived of any of the rights or privileges secured to 
 any citizen, unlesfi hy the law of the land, or, the jiuhjment of his 
 2Jeers." And also by section two, that " the trial by jury in all 
 cases in which it has heretofore been used, shall remain inviolate 
 forever." Due process of law, not only includes these guarantees, 
 but also as we have shown, includes the right to have the prosecu- 
 tion conducted accordmg to the prescribed forms, as used in judi- 
 cial proceedings. 
 
 Questions have arisen, both in criminal and civil proceedings in 
 the courts of this state, as to what constituted a jury within the 
 meaning of the constitution of this state, for the trial of criminal 
 offences, below the grade of capital and infamous oilences ; and 
 also, for obtaining compensation in civil cases, for private property 
 taken for public use. 
 
 It is conceded, that the jury referred to in the above constitu- 
 tional pro^-ision, is a common law jury of twelve men, a but the 
 explanatory w^ords, " as heretofore used," — means, as used prior to 
 the adoption of that constitution. By article 7, § 2, of the consti- 
 tution of 1821, the provision as to trial by jury was in substance 
 the same, as in that of 184G above cited. The statutes of the state 
 previous to the adoption of the constitution of 1821, as well as 
 subsequent, expressly authorized the trial of petit larceny, and 
 offences not infamous in their character, under the degi'ee of grand 
 larceny without indictment, without a jmy, where the accused 
 neglected to give security to appear at the next com-t of general 
 sessions, h And the first law authorizing a trial by jury in any 
 case, in a court of special sessions, for such offences, was passed 
 subsequent to the ado^Dtion of the constitution of 1846. c 
 
 The conflict that arose under these provisions, was, from the 
 
 a Wyudhara v. The People, 13 N. Y. 48i. 
 
 b 1 Greenleaf Laws, K Y. 422, K. L. 1813, 501, 7. 
 
 c Duffy V. The Teople, 6 Hill, 78. 
 
 56
 
 442 EIGHT OF TRLSX BY JURY. 
 
 claim made, that in wliatever court the joerson charged might be 
 tried, he was entitled to have his giiilt or innocence determined by 
 a jury of twelve men. This was opposed, and finally held by the 
 coui'ts of this state, that under the constitution and statutes, per- 
 sons charged with crimes not capital, or othermse infamous, may 
 be held to answer without being first indicted or presented by a 
 gi'and jiuT, as the legislature should provide, a By an act of the 
 legislature of loth April, 1813, under the constitution of 1777, 
 certain ofiences, viz., petit larcency, misdemeanor, breach of the 
 peace or other ninior ofiences, under the degree of grand larceny, 
 were made triable l)y a court of special sessions, without any juiy 
 whatever. This act was modified by the legislature in 1824, so as 
 to give the party accused the right to be tried by a jury of six men, h 
 and these statutes were regarded as in force when the present 
 constitution was adopted. 
 
 Trials for offences of this minor grade, had rmiformly been 
 authorized under these statutes, without a jury, and "s\ith a jury of 
 six men ; and the highest courts had ratified the practice, and they 
 also held, that it was m the power of the legislature to confer upon 
 courts of special sessions, the right to try offences below the grade 
 of felony without indictment and without a jury, c And though 
 the Revised Statutes have modified still more these rights of trial 
 before courts of special sessions, and made the right of trial to 
 depend upon the condition, that the accused is unable to furnish 
 bail to appear at a higher court, it is still in the power of the spe- 
 cial sessions, in such case of failure of bail, to try him, whatever may 
 be the deshe or demand of the accused to l>e tried elsewhere. It 
 is an entire question of power of the legislature, to confer this 
 jurisdiction upon the courts to try such cases, with or without 
 consent of the accused. They can grant or withold their consent 
 to allow a jmy ; the granting it is a privilege. 
 
 But if a party be arrested for a statute misdemeanor, as for in- 
 stance for a violation of the " act to suppress intemperance," and 
 Ls brought before a justice of the j)eace and desires to have his 
 case parsed upon by a grand jury, and if indicted, to be tried by 
 a jury of twelve men, and is able and willing to give bail for his 
 
 a The People v. Fisher, 20 Barb. 652. h Sess. Laws, 1824, Ch. 238 
 
 c Dufify V. The People, 6 Hill. 78; WjTidham v. The People, 13 N. Y. 484
 
 RIGHT OF TRIAL BY JURY. 443 
 
 appeal ance before tlie next court of oyer and terminer or general 
 sessions, he cannot be sunimarilj tried by tlio justice, against the 
 consent of the paiiy so charged, n The state constitution pro- 
 vides, "that the trial by jury, in all cases in which it has been 
 heretofore used, shall remam inviolate forever."/^ Under our 
 statute laws existing at the time of the adoption of tlie constitution, 
 a justice could hold a court of special sessions, and could try 
 without a jury, if one should not be demanded ; or with a jury of 
 six men, if one should be requested — persons charged with certain 
 misdemeanors, Avho should elect to be thus tried, or persons who 
 should fail to give the requisite security to appear at a court of oyer 
 and terminer or general sessions, Avhere they could not be tried with- 
 out indictment, nor by any but a common law jury of twelve men. 
 This privilege existed when the constitution was adopted, and was 
 reserved in it to tlie citizen ; when therefore the party charged, 
 demanded tiiis privilege, and offered to comply with the condition, 
 it left tlie justice without jurisdiction to proceed. 
 
 So too, as to this constitutional right of trial by jury, it can only 
 be claimed where the subject is judicial in its character. The 
 taking of private property^for public purposes under the right of 
 eminent domaui, or under the taxing power, do not partake of this 
 judicial character. They are both emanations of the law-making 
 power. They are attributes of political sovereignty, for the exer- 
 cise of which, the legislature is under no necessity to address itself 
 to the courts. In appropriating the propeiiy of the citizen under 
 these powers, for a public purpose, under legislative and constitu- 
 tional authority, with a proper provision for compensation, the act 
 of the legislatiu-e itself, is held to be " due process of law." c The 
 constitution itself excepts these cases from the absolute right of a 
 trial by jmy, or being made subject to judicial contests, and pre- 
 scribes the manner in which the compensation shall be ascer- 
 tained. The constitution nowhere inhibits the exercise of this 
 power by the legislature, or of their delegating the power to public 
 officers, or to coi^porations established under legislative authority, 
 to secure a judicious appraisal of property in order to cany on 
 enterprises in which the pubhc are interested. 
 
 o Hill V. The People, 20 N. Y. 3G9. I Art. 1^2. 
 
 c People V. Smith, 21 N. Y. 598.
 
 4A4: THE POLICE POWEE. 
 
 CHAPTER XIV. 
 
 OF THE POLICE POAVEE OF THE GOVEPtNilENT, UNDER STATE CON- 
 STITUTIONS, BY WHICH PRIVATE PROPERTY MAY BE TAKEN FOR 
 THE BENEFIT OF OTHERS. 
 
 Besides tlie methods of taking private property of tlie citizen 
 by right of eminent domaiu, and by the taxing power, there 
 exists another power by which private property may be taken, used 
 or destroyed for the benefit of others, and this is called the j^olice 
 l^oicer; sometimes called the law of oven'uling necessity. 
 
 It is clear, that before the adoption of either our state or 
 national constitutions, it was well settled common law, as we find 
 both by the best elementary lavf writers, and by uniform adjudi- 
 cations in the courts, that in cases of actual necessity, — as that of 
 preventing the spread of fire, — the ravages of a pestilence, or any 
 other great calamity, the private property of any individual maybe 
 lawfully taken, used or destroyed for the relief, protection, or safety 
 of the many, without subjecting the actors to personal responsi- 
 bihty. In these cases, the rights of private property must be made 
 subservient to the public Avelfare. The maxim of law is, that a 
 private mischief is to be endured, rather than a public inconveni- 
 ence. " On this ground," says Chancellor Kent, a " rest the rights of 
 pubHc necessity. If a common highway be out of repair, a pas- 
 senger may lawfully go through an adjoinmg enclosure. So it is 
 lawful to raze houses to the ground to prevent the spreading of a 
 conflagi'ation. These are cases of ui'gent necessity, in which no 
 action lay at common law by the individual who sustained the in- 
 jury ; but private property must in many other instances, yield to 
 the general interest." h ^ 
 
 a 2 Kent Com. 338. h 1 Dall. U. S. 3G3. 
 
 Note 1. — Of this principle there are many striking illustrations besides those 
 stated. If a man be assaulted, he may fly through another's close. 5 Bac. Abr. 
 173. In time of war, bulwarks may be built on private ground. Dyer 8, Brook 
 Trespass. And as the safety of the people is a law above all others, it is lawful to 
 part affrayers in the house of another man. Keyl. 46, 20Vin. Abr. f. 407, §14; 
 Pnffendorflib. 2, Ch. 6, § 8.
 
 THE rOLICE rOWER. 445 
 
 This po-vver to take private property by ^vLicll the bm-thcn falls 
 upon the citizen, seems at first liush, to be so contrary to a sense 
 of common justice, and falls so unequally and oppressively upon 
 the individual, that it is most natural tliat we should search for a 
 proper basis for its support. It is claimed that the protection of 
 the citizen is found in the constitutions of both the state and na- 
 tion which declare " that private property shall not be taken for 
 public use without just compensation." But our highest courts 
 have held, that this police power, or the law of oven-uling neces- 
 sity, is not controlled by this constitutional hmitation ; a that such 
 restriction in the constitution was not designed for, and should 
 not be extended to such a case ; that this clause in the constitu- 
 tion has reference only to cases where the property of an indi- 
 vidual is taken for some public benefit or advantage. ■ 
 
 a llussel V. The Jlaj'or of New York, 2 Deuio, 4G1, 483; Mayor of New York v. 
 Lord, 17 Wentl. 285; Stone v. Mayor of New York, 25 Wend. 107. 
 
 Note 2.— In an old case reported in 12 Co. 1.3, it was held, that even the king 
 could not take the private property of the subject for making a wall about his 
 own house, or a bridge to come to his house, for that, wouhl not be for the public 
 benefit. " But when the enemies come against the realm to the sea coast, it is 
 lawful to come upon any land adjoining to the same coast, to make trenches or 
 bulwarks for the defence of the realm, for every subject hath a benefit by it. And 
 therefore by the common law every man may come upon any land for the defence 
 of the realm, and in such case, and on such extremity, they may dig for gravel for 
 the making of bulwarks, for this is for the public, and every one hath a benefit 
 by it. And for the commonwealth, a man shall suffer damage; as for saving of a 
 city, or town, a house shall be plucked down if the next be on fire; — and the 
 suburbs of a city in time of war, for the common safety shall be plucked down; 
 and a thing for the commonwealth, a man may do, without being liable to an 
 action." In the case of Governor, &c., v. Meredith, 4 Tenn. 797, Buller, J., said, 
 '' There are many cases in which individuals sustain an injury for which the law 
 gives no action; for instance, pulling down houses, or raising bulwarks for the 
 preservation and defence of the king, done against the king's enemies." This is 
 one of the cases to which the maxim applies " Sahis popuU suprema est lex.'" 
 
 In Mouse's case, 12 Co. G3, Mouse brought an action in trespass, for the value 
 of a hogshead of wine cast overboard of a barge. A ferryman from Gravesend to 
 fjondon with passengers, including the plaintiff and freight, a part of which was 
 this cask of wine belonging to the plaintiff. While on the water, a great tempest 
 happened, and a strong wind, so that the barge and all the passengers were in 
 danger to be drowned, if this hogshead of wine and other ponderous things were 
 not cast overboard for the safety of the lives of the passengers. It was resolved, 
 per totam curiam, that in case of necessity for the saving of the lives of the pas- 
 sengers, it was lawful for the defendant, being a passenger, to cast the cask of the 
 plaintiff out of the barge, with other things in it. "Quod necessiias cogit, defendit."
 
 446 THE roLicE ro"s\*EH. 
 
 The seventeenth section of the fii'st article of the constitution of 
 this state provides and declares, that such parts of the common 
 law, etc., as did form the law of the colony of New York on the 
 19tli day of April, 1775, &c., shall be and continue the law of this 
 state, subject to such alterations as the legislature shall make con- 
 cerning the same. But all such parts of the common law, <tc.» 
 as are repugnant to this constitution were abrogated. This doc- 
 trine of ovennhng necessity, or }iolice power, w'as the common 
 law of this state at the time of the adoption of this state constitu- 
 tion of 1846. It was brought fi'om England by our ancestors as 
 a part of their system of common law ; was adopted by the colon- 
 ists as the law of the land ; it is not clearly repugnant to the con- 
 stitution ; but being adopted by it, is in effect a part of it. 
 
 The common law, existing at the time of the adoption of our 
 state constitution, was adopted by the constitution as a part of it- 
 self. At common law, public nuisances could be abated luider the 
 police power, or even by an individual who for such purpose be- 
 came a part of the police power, even to the injury or destruction 
 of private property invested in such subject of nuisance ; and an 
 act of the legislature conferring authority upon a municipal body, 
 to remove, abate, suspend, alter, improve and purify, anything 
 dangerous to life, or health, as a public nuisance, even to the de- 
 struction of such private property, is not within the prohibition of 
 the constitution against taking private property without just com- 
 pensation, nor in violation of that other provision, that the indi- 
 vidual shall not be deprived of his property " without due process 
 of law." Nor is the creating such municipal board with power to 
 make by-laws concerning such police matters, a delegation of the 
 legislative power, or trust, nor is it inhibited by the sixth article of 
 the constitution, as the creation of a local court with judicial 
 powers ; for the reason, that the legislature, having power to create 
 a sanitary board, within a specified district, possessing sanitary 
 powers, — as a necessary result, they can confer upon such board 
 the power to pass all needful rules and ordinances to carry out the 
 purposes of such creation, a 
 
 And the same rule has become the settled policy of this state 
 by its repeated statutes, and the adjudications thereon. " It is 
 
 a Coe T. Shultz, 47 P.arb. 6i; Cooper v. Shultz, 32 How. Pr. 107.
 
 THE rOLICE rOWEK. 447 
 
 right that this pohce sanitary power should exist somewhere, 
 though hirgo aud discretionary powers are conferred by the legis- 
 kitiire. If the civil authorities were obliged to wait the slow pro- 
 gress of the prosecution, tlie evil arishig from nuisances, and from 
 pestilential diseases, would present an alarnmig condition of 
 things, a Our statutes abound Avith laws of this character. The 
 constitution of the state, is to be resorted to, not to see wliat 
 poAvers are conferred upon the legislature, but what have been 
 withheld by the people. The legislature can pro\-ide such agen- 
 cies for the administration of the law, and the maintenance of 
 public order, and especially in regard to the police, and of security 
 to the life and the health of its citizens, as it shall judge suitable, 
 where no prohibition, expressly made, or necessarily implied, is 
 foimd in the constitution. J> As the police and sanitary powers 
 were possessed by municipal corporations at common law, it is 
 believed, that without any legislation conferring the authority, 
 they could regulate by proper ordinances and by-laws, the 
 manner of carrying on any trade or business within the muni- 
 cipality so far as to prevent monopolies ; the sale of unfit commo- 
 dities ; and insure proper conduct of those who practice it ; pre- 
 vent slaughter houses and the slaughtering of animals, tallow 
 chandlers, and the hke, within the walls, or certain limits of a city, c 
 Pnffendoi-f informs us that this law of necessity is an exception 
 to all human ordinances and constitutions, and that therefore it 
 gives a right of doing many things otherAvise forbidden, d Per- 
 haps from this idea, originated the common expression, " that neces- 
 sity knows no law." Be this as it may, it is certain, that even this 
 hiAv of necessity, is still subject to the law of reason, and subject 
 to control. If in the exercise of this poAver, it should be so care- 
 lessly and negligently exercised, as to produce an injuiy, there can 
 be no doubt, the persons exercising it Avould be held responsible, 
 by that old and well established maxim of the common laAV, that 
 a person using his oAvn natural rights, is subjected to such a 
 restricted exercise of them as not thereby to occasion injuiy to 
 another. The exercise of this right of overnilling necessity is 
 
 a Van Woriner v. The Mayor of Albany, 15 "Weud. '2G4. 
 
 h People V. Draper, 15 N. Y. 533. 
 
 c Willcock on Municipal Corporations, 111. d B. 2, ch. 6.
 
 448 THE rOLICE POWER. 
 
 also called the exercise of a natural liglit Avliicli belongs to every 
 indi%'idual, not confen-ed by law, but tacitly excepted from human 
 codes,a and is governed by the same rules and maxims of common 
 law, but when duly and discreetly exercised for the relief, protec- 
 tion or safety of the many, no liabihty attaches to those who 
 exercise it. 
 
 It may therefore be regarded as a settled principle, growing out 
 of the natm-e of an organized society that every holder of pro- 
 perty, however absolute and unqualified may be his title, holds it 
 under the implied liability that his use of it shall not be injurious 
 to the equal enjoyment of others havhig an equal right to the en- 
 joyment of their property ; nor injurious to the rights of the com- 
 munity. And as has been said, when treating of the right of 
 eminent domain, all property of the state is derived, directly or 
 indirectly, from the government, and held subject to those general 
 regulations which are necessary to the common good and general 
 weKare. Eights of property, lilvc all other social and conventional 
 rights, are subject to such reasonable limitations in their enjoy- 
 ment, as shah prevent them from being injurious, and to such 
 reasonable restraints and regulations estabhshed by law, as the 
 legislature, under the governing and controlling power vested in 
 them by the constitution, may think necessary and expedient. 
 
 All legislative power being vested in the legislature, except such 
 as is therein prohibited, they possess, under that authority, all 
 power to make, ordain and estabhsh all manner of wholesome and 
 reasonable laws, statutes and ordinances, either with penalties or 
 without, not repugnant to the constitution as they shall judge to 
 ])e for the good and welfare of the state, and of the citizens 
 thereof. 6 
 
 It may now be regarded as the law of this state, settled by its 
 highest court, that there are cases, notwithstanding this constitu- 
 tional protection, in which the property or rights of individuals 
 may be justly sacrificed to the necessities of others, where neither 
 the state, as a whole, nor the pubhc, in a general sense of that 
 term, may have any interest in such a sacrifice. This may be 
 seen in the cases of imminent peril referred to, when the right of 
 
 a Kussel v. Mayor, of N. Y., 2 Denio 47-i ; Mayor of N. Y. v. Lord, 17 Wend. 297. 
 h Commonwealth v. Alger, 7 Cush. 53.
 
 THE rOLICE I'OWER, 4^19 
 
 self tlefencc, or the protection of life or property, authorizes tlic 
 sacrifice of other and less valuable property. Among the in- 
 stances, given by the court, by ^vay of illustration, are the throw- 
 ing overboard goods in a storm, and the pulling down of houses 
 to prevent the spreading of a conflagration, a 
 
 This, says the court, is a natural right, arismg from inevitable, 
 and pressing necessity; when of two immediate evils, one must be 
 chosen, — the less, is voluntarily inflicted, in order to avoid the 
 greater. Under such circumstances, the general and natural law of 
 all civilized nations, recognized and ratified by the express deci- 
 sions of our common law, authorizes the destruction of property 
 by any citizen, without his being subject to any right of recoveiy 
 against him by the owner. The agent in such destruction, whether 
 in protection of his OAvn rights, or those of others which may be 
 accidentally under his safeguard, acts from good motives and for 
 a justifiable end ; so that against him, the sufferer has no rightful 
 claim. But the loser may have an equitable right of compensa- 
 tion against those who have benefited by his loss in the preseiTa- 
 tion of their property. In Marine losses of this nature the com- 
 mon law has been able to establish a just rule of compensation 
 and assessment ; and the same principle, so far as it is possible to 
 apply it, -would be equally equitable in similar losses by land. 
 
 But as to most of these cases, from the impossibility or extreme 
 difficulty of ascertaining the parties benefited, or protected from 
 loss, and of settling the avcrtige proportions of the loss between 
 them, by any general rule, the sufferer is commonly left without 
 legal remedy. Thus, those who, whether magistrates or private 
 citizens, under the pressure of inevitable danger, and to prevent 
 a greater calamity, find themselves compelled to destroy the 
 effects of others, arc not, and ought not to be adjudged trespassers, 
 although they do not act for the state or for the pubhc,but merely 
 for the serncc of some few of their neighbors, or fellow citizens, 
 and have thus inflicted involuntary injury upon some, to prevent 
 a much greater calamity falling upon others, h This injustice how- 
 ever to indi^-iduals whose property is so destroyed, can be cor- 
 rected, as it should be, by proper legislation. 
 
 a Stone v. Mayor, of N. Y. 23 Wcud., 171. 
 h Id. 175 ; The Saltpetre case, 12 Colce 1:3. 
 57
 
 450 THE rOLICE rOWER. 
 
 AVe Lave no general statute in this state, regulating the exercise 
 of this power, and but a local law for the city of New York, a 
 This statute it was held, Avas a mere regulation of the common law 
 right of any person to destroy property in the case of immediate 
 and overwhelmmg necessity to prevent the ravages of fire or pesti- 
 lence. "Statutes of this. description merely appoint a municipal 
 agent, to judge of the emergency, and direct the performance of 
 acts which any individual miglit do at his peril, without any stat- 
 ute at all." 6 It will be more convenient in this chapter to call 
 this power, ike police jjoicer. 
 
 It was AveU said, in our highest court, c that " the poHce power^ 
 is of necessity, despotic in its character, commensurate with the 
 sovereignty of the state; and individual rights of property beyond 
 the express constitutional limits, must yield to its exercise. And 
 in emergencies, it may be exercised to the destruction of property, 
 without compensation to the owner, and even without the formality 
 of an investigation. It is upon this principle that health and 
 c[uarantine laws are established ; that a building is blown up to 
 arrest a conflagTation in a populous town ; that a pubhc market is 
 purged of infectious articles ; that merchandize on ship board in- 
 fested "^^dth pestilence, is cast into the deep, and public nuisances 
 are abated. It is the pubhc exigency, which demands the sum- 
 mary destruction, upon the maxim, that the safety of society is 
 the paramount law. It is the apphcatiou of the personal right or 
 principle of self preservation to the body poHtic." 
 
 It was held in our Court of Chancery, d in 1835, and has never 
 smce been questioned, that the legislature are the sole judges as 
 to the expediency of making police regulations interfering with the 
 natural rights of our citizens, which regulations are not prohibited 
 by the constitution. 
 
 We have been examining this question simply as a question of 
 power. It is no purpose of this work to discuss the justice or 
 equity of a constitutional or a statute provision. It might even be 
 defended in most instances, upon the ground that it was not even 
 
 a2E. L. of 1813, p.3G8. 
 
 h Per. Comstock J. iu Wymhamer v. the People, 13 N. Y. 4.02. 
 
 cld. 451. 
 
 d Varick v. Smith, 5 Paige, 160.
 
 THE POLICE POWER. 451 
 
 unjust to tlie individual. Take the case of a spreading conflagra- 
 tion. If the necessity is shown to be such, that the property itself 
 would otherwise have been destroyed, the proprietor suffers no 
 injustice by its police destruction, and the security of the many is 
 promoted. As a question of power, it must be regarded in this 
 sbate, to be settled, and founded upon principles wliicli are above 
 and be3'ond the reach of constitutional restriction. It is the plain 
 and simple principle of preservation of life and property in cases 
 of iminent hazard, by the sacrifice of that which is less valuable, 
 and which, from the very exigency of the case, must be left to the 
 decision and determination of the moment. 
 
 Blackstoue defines this power of pubhc ixjUce or economy, " as the 
 due regulation and domestic order of the kingdom, whereby indi- 
 viduals of the state, like members of a well regulated and well 
 govei-ned family, are bound to conform their general behavior to 
 the rules of propriety, good neighborhood, and good manners ; 
 and to be decent, industrious and inoffensive in their respective 
 stations." a " This police power of the state," says Ch. J. Red- 
 field, h extends to the protection of the lives, limbs, health, com- ' 
 fort, and quiet of all persons, and the protection of all property 
 within the state. It must of course be within the range of legis- 
 lative action, to define the mode and manner in which, every one 
 may so use his own, as not to injure others. And it has been held 
 that even the corporation of the city of New York, possessed a 
 police power so to order the use of private property in the city, as 
 to prevent its proving pernicious to the citizens generally." c " A 
 contrary doctrine, would strike at the root of all police regula- 
 tions. Every right, from an absolute ownership in property, down 
 to a mere easement, is purchased and held subject to the restric- 
 tion, that it shall be so exercised as not toinjiu'e others. Though 
 at the time, it be remote and inoffensive, the purchaser is bound to 
 know at his peril, that it may become otherwise, and that it must 
 yield to laws and regulations and remedies for the suppression of 
 nuisances." Corporations, enjoy the prerogatives of government 
 to a prescribed extent. Among these, is the power to pass by- 
 laws, regulating the police power. 
 
 a i Black. Com. 1G2. h Thorpe v. R. & B. R. K. Co., 27 Vt. E. U9. 
 
 c Stuj-vesant v. Mayor of New York, 7 Cow. GO-1; Hart v. Mayor of Albany, 9 
 Wend. 593.
 
 452 THE rOLICE rowER. 
 
 The subject of the police power of the state, has recently been a 
 subject of interesting and of extended discussion, and the courts 
 have, to a certain extent, settled some important propositions in 
 relation thereto ; among which are the following : 
 
 1. "It is within the constitutional authority of the legislature to 
 establish new civil divisions of the state, embracing in the districts 
 so created, several towns, cities or counties, or such portions 
 thereof as may be deemed appropriate for the general purposes of 
 civil administration." 
 
 2. " The organization ior police purposes, of districts not co-ter- 
 minus with others recognized by the constitution, is not inconsist- 
 ent with the continuance of such antecedent civil divisions, for 
 every general purpose prescribed in the organic law." 
 
 3. " The police powers, exercised in the towns, cities and coim- 
 ties, respectively, were vested in the local authorities by legisla- 
 tion, and not by irrevocable constitutional grant." 
 
 4. " The legislature has authority to arrange the distribution of 
 these powers, as the public exigencies may require ; apportioning 
 •them to local jurisdictions, to such extent as the law-making 
 power deems appropriate, and committing the exercise of the 
 residue, to officers appointed, as it may see fit." 
 
 5. "This is a continuing legislative power, in virtue of which, 
 from time to time, as occasion may require, jurisdiction committed 
 to the towns, cities or counties, may be resumed and vested in 
 other authorities appointed by the state governments." 
 
 G. " The state has an interest in the repression of disorder, and 
 the maintenance of joeace and security in every locality witliin 
 its Hmits ; and if, from exceptional cases, the public good requires 
 that legislation, either permanent, or temporary, be dhected 
 towards any particular locality, whether consisting of one county 
 or several counties, it is within the discretion of the legislature to 
 apply such legislation, as, in its judgment, the exigency of the 
 case may'require; ai)d it is the sole judge of the existence of such 
 causes." a 
 
 These propositions were laid down in a case where in the opinion 
 of the court, the act was one, in which the ends it sought to at- 
 tain, and the efficiency of the agencies it sought to organize, was 
 
 a Teoplc v. Slieplierd, 3G N. Y. 28G; Tcoplc v. Draper, 15 N. Y. 54-1.
 
 THE POLICE rOWER. 453 
 
 for the preseiTatiou of ordt-r ; tlio protoction (jf person and prop- 
 erty; the detection and arrest of culpi'its; and tliepnnisliment and 
 prevention of crime. 
 
 It is a power, wliicli like all otlier powers, may bo abnsed. AVith 
 this, however, and with hardships and injustice, we have nothing 
 to do, in this work. The peoph', l)y their representatives, must 
 guard these abuses as best they may. Nor is it needful to say, 
 that this power is confined in its exercise, to the principle, that the 
 use for which it is taken, is strictly, what is called public use ; nor 
 attempt to draw a line that shall distinguish between public and 
 private uses. The preservation of the life of a citizen, is a matter 
 of public interest, much more, of many citizens. The arresting of 
 a devastating fire, or plague or other calamit}', is also a matter of 
 public interest ; and yet, in the lirst instance, it might seem to 
 aftect only private individuals. It may be, that in the one case, 
 an overwdielming necessity would require the taking of the life of 
 another citizen which is also a matter of public interest ; and in 
 the other case, tlie same necessity might require the destraction 
 of private property. In the first case it is the sacrifice of one life, 
 for the saving of many lives ; in the other the sacrifice of the pro- 
 perty of one for the necessary protection of the property of many. 
 
 Looking at this power, then, as it seems to be a power conceded, 
 b}' our own, and other states, whether it is exercised as it exists at 
 common law, tolerated by the constitution, or as regulated by 
 legislative enactments, not inhibited by the constitution, we may 
 regard it as a settled principle, growing out of the nature of well- 
 ordered civil societ}-, that every holder of property, and rights of 
 property, however absolute andun^uahfied maybe his title, holds 
 it under the implied liabihty that it may be so regulated that its 
 use shall not be injurious to the equal enjoyment of others, having 
 an equal right to the enjoyment of their property, nor injurious to 
 the rights of the community. All property is to be regarded as 
 held by the citizen subject to those general regulations which are 
 necessary to the common good and general welfare, a 
 
 This power, however, differs fi'om the right of eminent domain. 
 The latter, is the right of government to take and appropriate pri- 
 vate property to public use when the public exigency requires it ; 
 
 a Commonwealth v. Alger, 7 Cusbiug 85.
 
 454 THE POLICE POWER. 
 
 wliicii can be done only on condition of providing a reasonable 
 compensation therefor. This power, is ihe police poicer, which is 
 subject to no such condition, " It is a power much easier to per- 
 ceive and reahze the existence of, and to learn its source, and the 
 pruiciple of its power, than to define its boundaries, or prescribe 
 hmits to its exercise. There are many cases where such a power 
 is exercised by well-ordered governments, and where its fitness is 
 so obvious that every reasonable mind will acknowledge its justice. 
 Under this power are enacted statutes ■\^•llicl^ prohibit the storage 
 of powder within cities, and near to habitations and public high- 
 Avays ; to restrain and regulate the erection of wooden buildings 
 within cities and populous towns ; to prohibit buildings from being 
 used as hospitals for contagious diseases ; for the preventing the 
 carrying on of noxious or offensive trades ; to prohibit the erection 
 or raising of dams which may cause stagnant water to stand or 
 spread over lands near inhabited towns, villages or cities, thereby 
 causing noxious exhalations, injurious to health and dangerous to 
 hfe. a 
 
 " The prohibition in such case, though it may greatly diminish 
 the profits to the ov/ner, it does not give liii\i a right to compensa- 
 tion for its use. It is not such an appropriation to public use of 
 private property as conies within the power of eminent domain 
 and the right of compensation to the proprietor. Doubtless the 
 proprietor of a vacant lot in a city, might obtain a better percent- 
 age by way of rent, by erecting a wooden, than a brick or stone 
 tenement. The owner of a warehouse could store his own powder 
 with less expense of transportation in his city building, than in a 
 place remote ; a landlord might let his building for a small pox 
 hospital or slaughter house for an increased rent. They are 
 restrained by this power ; not because the public take or use it for 
 any benefit or profit to themselves, but because the use would be 
 noxious, and contrary to the maxim " Sic utcre fuo, id cdieimm nou 
 laedas." These are a few of the many and various cases, where 
 this police power may be exercised. ^ 
 
 a Id. 86; Hart v. Mayor, 9 Weud. 571 ; People v. Draper, 25 Barb. 374 ; Com- 
 monwealth V. Tewksbiiry, 11 Met. 55, 57 ; Baker v. City of Boston, 12 Tick. 184; 
 Mayor, &c. v. Miln, 11 Peters 102, 132, 
 
 Note 3. — It is settled law that it is competent for the legislature to regulate the 
 sale and disposition of liquors. Such is the effect of the " Act to regulate the sale
 
 THE rOLICE I'OWEPi. 455 
 
 This police power, "wliicli, as has been said, is inherent in every 
 government, and not restricted by our constitutions, can be brought 
 into active exercise for the protection of the citizen bv the sover- 
 eign power in all needful emergencies. Eveiy sovereign statu 
 possesses Avithin itself, absolute and unlimited legislative power, 
 except so far as it is prohibited by the fundamental law. There 
 is no arbiter in such case, beyond the state itself, to determine 
 what legislation is just. Whatever therefore is so declared, by 
 the ultimate [lowev of a state, as there can be no appe£il, must, in 
 view of the law, be taken to be just and right. By the exercise of 
 this police power, the legislature may protect the mass of citizens 
 by the control of existing corporations, such for instance, as rail- 
 roads, in protecting of the hves, limbs, health, comfort, and quiet 
 of all persons, and the protection of their property, against aggre.s- 
 
 of iutoxiciitiny lienors witbiu the Jlclropolitiiu District of the State of New York," 
 pass'cd April H, 18GG. Therefore, the third section of the act is not unconstitu- 
 tional, as tending to divest the owner of his propertj' without due compensation. 
 In the Matter of James DeYauceue, 31 How. Pr. R. 289. Nor is the act of 18GG, 
 creating the Metropolitan Board of Health of New York, unconstitutional, as con- 
 ferring upon the board the right to deprive a citizen of his liberty or property 
 without due process of law. Cooi^er v. Schultz, 32 How. Pr. R. 107. This was 
 an act entitled " An act to create a Metropolitan Sanitary District and Board of 
 Health therein, for the jireservation of life and health, and to prevent the spread 
 of disease," and it gave large powers to carry out the objects expressed in its title. 
 The government, it was held, clearlj' i)ossessed the power itself, for the safety and 
 health of its citizens; and they could delegate this jiower to a proper body of men. 
 The abatement of a nuisance is not the appropriation of private property to pri- 
 vate use without the judgment of one's peers. It is the suppression of a thing 
 declared to be illegal by the laws of the land, and which may be destroyed by any 
 citizen, if done in such a manner as to invade no law of property, or for the pre- 
 ceiwation of the peace, and when where t^e law invests a public body with the 
 power to do such an act, in express terms, by no rule of construction can such a 
 law be held to be unconstitutional. Weil v. Schultz, 33 How. Pr. R. 7. Though 
 the digging of a ditch upon the lands of a private owner, under the authority of 
 the legislature, for the purpose of draining such land, and that of an adjoining 
 proprietor, is, it has been held, a taking of propert}' within article one, sections 
 *dx and seven, of the constitution of this state, of 1846, and the act of the legisla- 
 ture, professing to authorize such taking void, where it does not provide for the 
 payment of a just compensation to be ascertained by a jury, or by commissioners 
 appointed by a court of record. People v. Nearing, 27 N. Y. 306. The mode of 
 assessing and of ai^iiortioning the compensation and exjicuscs of executing the 
 work, however, upon those benefited thereby, is wholly wilhin (he discretion of 
 the legislature. Id.
 
 456 THE POLICE rOWEK. 
 
 sion, and against "svhat may be declared negligence, in the manage- 
 ment of such corporations. 
 
 The maxim, which has been quoted, " Sic ulere tiio est cdienum 
 non lacdas,'' is one of universal application, and it must, of com*se, 
 be within the range of legislative action, to define the mode and 
 the manner in which every one, (which includes railroads,) may so 
 use his own as not to mjure others, a So far as railroads are con- 
 cerned, this police power is two-fold. 1. The police of the roads, 
 which, in the absence of legislative control, the corporations them- 
 selves exercise over their operatives, and to some extent, over all 
 who do business with them, or upon their gromids, through general 
 statutes. And, 2. By the general police power of the state, by 
 which persons and property are subjected to all kinds of reason- 
 able restraints and burthens, in order to secure the general com- 
 fort, health and prosperity of the state. 
 
 Of the perfect right and authority to do this, no serious question 
 ever was, and upon acknowledged principles, never can be made. 
 So far as natural persons are concerned, it has not been doubted, 
 and no good reason is perceived, wdiy it should be doubted in the 
 case of artificial persons. Upon this principle, the legislature may 
 requ.ire, even of existing, as well as all future railroad corporations, 
 to maintain cattle guards at aU crossings, and to erect and main- 
 tain fences and gates upon the sides of the road, and farm 
 crossings ; and to respond in damages for all cattle injured, or 
 other damages for negligent omission of such structures ; and this 
 police power might doubtless be extended so as to include the 
 supervision of track, tending switches, running upon the time of 
 other trains, running a road with a single track, using improper 
 rails, not using proper precaution by way of safety beams, in case 
 of the breaking of axles, the number of brakemen upon a train, 
 with reference to the number of cars, employing intemperate or 
 incompetent engineers and servants, running beyond a given rate of 
 speed, and all kindred and similar protections to any extent, may be 
 the subject of legislation' ; most of which have been, and are now, 
 subjects of judicial determination, h In the state of Connecticut, 
 
 a Thorp v..PaitlaiKl & Burliugton E. R. Co., 27 Vt. E. 149. 
 h Thorp V. Pi. & B. E. E. Co., 27 Yt. 150; Hyeman v. West E. E. Corporation, 
 16 Barb. 353, S. C. 13 N. Y. 1.
 
 THE POLICE I'OWER. 457 
 
 the statute a requires tlie trains upon all their railroads, to come to a 
 stand before passing a drawbridge, and not permit a train to pass 
 a switch, unless there be a switchman standing at the junction 
 with a white flag, &c. And in the state of Massachusetts, the same 
 provision is made, (among otlu^r regulations,) before crossing 
 another railroad, h All this, is by virtue of the police power of the 
 state. 
 
 The legislature ma}', no doubt, prohibit railroads from carryuig 
 freight, if they deemed it prejudicial to the public interests ; and 
 probably, might make them insurers of the lives of their pas- 
 sengers. The statutes giving relatives a right to recover damages 
 when any person is killed, is one step in that direction, and has 
 wrought an important change in the law in that regard. 
 
 So too, it is believed, that under this police power, the legisla- 
 ture might with perfect justice, if sound policy was thought to re- 
 quire it, make tov.ns and counties severally responsible for dam- 
 ages, afterward arising, from robbery, or other crimes committed 
 whereby its citizens, or others, should be subjected to loss of 
 property. Indeed, statutes have been passed to this end, in this 
 state, for the payment by counties, and cities, for real or personal 
 property destroyed or injured in consequence of any mob or riot 
 occun'iug in such county or cit}'. c This is taking private property 
 neither by right of eminent domain, or the taxing power. 
 
 In Massachusetts, towns are made liable to damages for loss of 
 life or property by reason of their highways being out of repau-. d 
 And other states have enacted like statutes under the same police 
 power. In Connecticut, e New Hampshire, / and Pdiode Island, g 
 similar enactments have been made by the legislature, and it is 
 believed in other states, hke statutes exist. 
 
 The statutes regulating division fences between the proprietors 
 of adjoining lands, and rcquirmg them to be of a given height and 
 quality ; — restraining wild, or vicious domestic animals dangerous to 
 persons or property, and to compensate the persons and owners of 
 
 a General Statutes, 201, §^ 510, Oil. 
 h General Statutes, 3G2, § 93. 
 
 c Laws of N. Y. of 1855, Ch. 428; Stone v. Mayor, ic, 25 Wend. 181. 
 d General Statutes 2i7, §§ 21, 22. 
 c General Statutes 493, § G. 
 
 / Compiled Statutes 149, § 1. g Rev. St. 125, § 14, 
 
 58
 
 458 THE rOLICE rOWEE. 
 
 property for injuries; — to destroy noxious weeds ; — requiring rail- 
 roads to ring a bell or blow a whistle in approacliiiig and crossing 
 liighways and streets ; and creating liability to penalties for neglect 
 of sucli requirements, x4.ll these, and numerous other enactments 
 of the legislature coming fairly under the police power, are 
 wise, and reasonable, and legal provisions, to protect the pubhc 
 against danger to their persons, or to loss of property ; indeed the 
 instances and illiistrations are too numerous to attempt a recital. 
 Those given, will suflice to establish the power and character of 
 them. 
 
 The limit to the exercise of the police power, can only be this : 
 the regulation must have reference to the comfort — the safety — or 
 the welfare of society; it must not be in conflict with the provisions 
 of the constitution. And in case of corporations, it must not, 
 under mere pretense of regulation, take from them, any of the essen- 
 tial rights their charter confers, a This is not intended as a denial 
 of the power of the legislature to alter, modify or repeal a charter 
 in certain cases. 
 
 One of the most important of these illustrations of the police 
 power under state constitutions, is that of regulations afiecting 
 commerce. Among these, quarantine regulations, and health laws 
 of every description, will readily suggest themselves, and these 
 are, or may be sometimes, carried to the extent of ordering the 
 destruction of private property when infected with disease, or 
 otherwise dangerous, h These regulations have not been ques- 
 tioned as to their authority. The right to pass inspection laws, and 
 to levy duties, so far as may be necessary to render them effectual, 
 is an exj)ress power by the constitution of the United States, c 
 
 The principle involved under this point, is well and quite fully 
 expressed by the supreme court of this state, d in giving construc- 
 tion to a statute, conferring authority upon harbor masters, to 
 regulate and station aU ships and vessels lying in the East and 
 North rivers, within the limits of the city of New York. It was 
 said, " this statute was passed for the preservation of good order 
 in the harbor. It appears to be a necessary poUce regulation, and 
 
 a Cooley on Const. Lim. 57-7. 
 
 J) Cooley on Const. Lim. 58i. c Art. 1, section 10. 
 
 (] Veuderbitt v. Adams 7 Cow. E. 348 to 353.
 
 THE rOLICE POWEll. 459 
 
 not void, although it may interfere, in some measure, with individ- 
 ual rights. The harbor master had jurisdiction under the act over 
 all private wharves. They were subject to all police regulations. 
 The power exercised in this case is esscmtially necessary for the 
 purpose of protecting all concerned. It is not, —in the legitimate 
 sense of the term, — a violation of any right ; but the exercise of 
 a poAver indispensably necessary, where an extensive commerce 
 is earned on." " Police regulations are legal and bindmg, because 
 for the general benefit ; and do not proceed to the length of impair- 
 ing any right in the proper sense of that term." " The sovereign 
 power in a community, therefore, may, and ought to prescribe the 
 manner of exercising individual rights over property. It is for 
 the better protection and ('ujoyment of that absolute dominion 
 which the individual claims. The power rests on the implied right 
 and duty of the supreme power to protect all by statutory regu- 
 lations, so that on the whole, the benefit of all is promoted. Every 
 regulation in a city may and does, in some sense, limit and restrict 
 the absolute right that existed previously. But this is not consid- 
 ered as an injuiy. So far from it, the individual, as well as 
 others, is supposed to be benefited. It may then be said, tliat 
 such a power is incident to every well regulated society ; and with- 
 out which it could not well exist." 
 
 A case is then supposed, where the legislature should authorize 
 the grant of a road through the wild lands of A. without his con- 
 sent ; a right that has been assumed and acted upon evor since we 
 became an independent government. No compensation is allowed 
 in such cases to the owner. Can he defeat the operation of such 
 a law, by saying liis private right is invaded ? Such a lav/, (it is 
 then said,) is constitutional and obligatory ; because in many 
 cases, necessary for the public benefit, and not deemed injmious 
 to the individual whose land is taken, a 
 
 " The line of distinction between that which constitutes an in- 
 terference with commerce, and that which is a police regulation, is 
 sometimes, exceedingly dim and shadowy, and it is not to bo won- 
 dered at, that learned jurists differ when endeavormg to classify 
 the cases which arise." h 
 
 a See also case of the owners oi the Brig Gray v. Owners of Ship JohnFraser, 
 20 How. U. S. K. 187, 8. b Cooley on Lim. 586.
 
 4.G0 THE rOLICE rOWEE. 
 
 Congress, under the federal constitution, has the undoubted 
 power to regidate commerce, and whenever it is pleased to exert 
 its power upon the subjects so conferred, it is probable the state 
 power is excluded and even where this power is not exercised by 
 the general government, the state power is not always unlimited. 
 This power was attempted by the state of Maryland, requiring all 
 importers of foreign goods to take out a license, for which they 
 should pay $50 to the state, and in case of neglect or refusal, to 
 subject the importer to certain penalties and forfeitures. This 
 question was brought into the federal court, a The act of the 
 state legislature was held to be repugnant to that provision in the 
 constitution of the United States, which empowers congress to 
 regidate commerce Avith foreign nations, and among the several 
 states, Arc. That the authority given by congress to import, in- 
 cluded the power to sell the thing imported. The Maryland act 
 denied to the importer the right of using the privilege he had pur- 
 chased of the United States, until he should have made another 
 purchase of it from the state of Maryland. This was not such a 
 police power as the state could exercise. 
 
 So too, in a case, in which the state of New York, attempted 
 by its legislature to exercise this pohce power by imposing taxes 
 upon alien passengers arriving at the port of New York, h it was 
 held by the judges of the federal court c that this statute was in 
 conflict with the provisions of the constitution of the United 
 States. But in another case, quite difficult to distinguish from 
 this, a statute of this state which required the master of eveiy 
 vessel arriving in the port of New Y'ork, from any foreign port, or 
 from a port of any of the other of the states of the Union, to 
 make a report in writing, containing the names, ages, and last 
 legal settlement of every person who shall have been on board the 
 vessel commanded by him during the voyage, &c., to be stated in the 
 report under penalties j)rescribed in the act, was held to be within 
 the police power of the state, and not in conflict with the provisions 
 of the constitution of the United States, d It was also held, that 
 
 a Brown v. State of Maryland, 12 Wheat 419, 445. 
 
 6 1 Eev. Stat. 445. 
 
 c Smitli V. Turner, 7 How. U. S. R. 283 
 
 d Mayor, &c., v. Miln, 11 Peters 102,
 
 THE POLICE POWER. 461 
 
 persons are not the subject of commerce, and not being imported 
 goods, they do not fall ^vithin the reasoning founded upon the con- 
 struction of a power given to congress, "to regulate commerce," 
 and the prohibition of the states from imposing a duty on im- 
 ported goods. 
 
 " A state has the same undeniable and unlimited jurisdiction 
 over all persons and things within its territorial hmits, as any for- 
 eign nation, wdien that jurisdiction is not surrendered to or re- 
 strained by the constitution of the United States. 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, are not sur- 
 rendered or restrained by the constitution of the United States. 
 All those powers which relate merely to municipal legislation, or 
 ^vhich may more properly be called internal j^oUce, are not surren- 
 dered or restrained ; and consequently, in relation to these, the 
 authority of a state is complete, unquaUfied, and exclusive." 
 
 " It is at all times diiiicult to define any subject with precision 
 and accuracy. It is emphatically so in relation to a subject so 
 diversified and various (if not conflicting) as this. It may, how- 
 ever, be said, that every law comes within the regulation of police, 
 which concerns the welfare of the whole people of a state, or any 
 individual within it, whether it relates to their rights or their 
 duties ; whether it respects them as men, or as citizens of the state 
 in their public or private relations ; whether it relates to persons 
 or property, of the whole people of a state, or of any individual 
 within it ; and w^iose operation is within the territorial limits of 
 the state, and upon the persons and things within its jurisdiction." 
 This may be exemplified by the right of every state to punish 
 persons, who commit ofiences against its criminal laws within its 
 territory. 
 
 So then, it must follow, that while a state is acting within the 
 scope of its legitimate power, as to the end to be attained, it may 
 use whatever means, being appropriate to the end, it may think 
 fit, although such means may be the same, or so nearly the same, 
 as scarcely to be distinguished from those adopted by congress
 
 4G2 THE POLICE TOViTlE. 
 
 acting imJer a different power ; subject, only, to this limitation : 
 tliat in the event of colhsion, the law of the state must yield to the 
 law of congress. 
 
 Thp line which separates the regulations of commerce, from 
 those of state police, is sometimes not so distinct as to prevent 
 conflict of opinion ; but fortunately for the public security, there 
 is the conservative pov\'er of the judiciary to determine the right. 
 One of the questions so approaching this hne, is that of the inspec- 
 tion laws of the states, which are claimed to be regulations of 
 commerce. 
 
 It was well said by the supreme court of the United States, a 
 " that inspection laws may have a remote and considerable influ- 
 ence on commerce, will not be denied ; but that a power to regu- 
 late commerce, is the source from which the right to pass them is 
 derived, cannot be admitted. The object of inspection laws, is to 
 improve the quality of articles produced by the labor of a country | 
 to lit them for exportation ; or, it may be, for domestic use. They 
 act upon the subject before it becomes an article of foreign com- 
 merce, or of commerce among the states, and prepare it for that 
 purpose. They form a portion of that immense mass of legisla- 
 tion, which embraces ever^ahing within the territory of a state, 
 not surrendered to the general government : all of which can be 
 m jst advantageously exercised by the states themselves. Inspec- 
 tion laws, quarantine laws, health laws of every description, as 
 well as laws for regulating the internal commerce of a state, and 
 those which resj)ect turnpike roads, ferries, etc., are component 
 parts of this mass." 
 
 "No direct general power over these objects is granted to con- 
 gress ; and consequently they remain to state legislation. If the 
 legislative power of the Union can reach them, it must be for na- 
 tional purposes ; it must be where the power is expressly given 
 for a special j^urpose, or is clearly incidental to some power which 
 is expressly given. It is obvious, that the government of the 
 Union, in the exercise of its express powers, that, for example of 
 "regulating commerce wdtli foreign nations and among the states," 
 may use means that may also be employed by a state, in the exer- 
 cise of its acknowledged powers ; that, for example, of regulatiiig 
 
 a Gibbous v. Ojilcn, 9 ■\Vheat. 203, 201, ic.
 
 THE POLICE POWER. 4G3 
 
 commerce witliiii the state. If congress license vessels to sail 
 from one j)ort to another in the same state, the act is supposed to 
 be, necessarily incidental to the power expressly gi-anted 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 
 police ' 
 
 " So a state in passuig laws on subjects acknowledged to be 
 within its control, and with a view to those subjects shall adopt a 
 measure of the same character with one which congress may 
 adopt, it does not derive its authority from the particular power 
 Avhicli has been granted, but from some other, which remains with 
 the state, and may be executed by the same means." 
 
 " All experience shows, tliat the same measures, or measures 
 scarcely distinguishable from each other, may flow from distinct 
 powers ; but this docs not prove that the powers themselves are 
 identical. Although the means used in their execution may some- 
 times approach each other so nearly as to be confounded, there 
 arc other situations, in which they are sufficiently distmct to estab- 
 lish their individuality." 
 
 " In our complex system, presenting the rare and difficult scheme 
 (.f one general government, whose action extends over the whole, 
 but which possesses only certam enumerated i)owers ; and of 
 numerous state governments which retain and exercise all powers 
 not delegated to the Union, contests respecting power must arise. 
 Were it even otherwise, the measures taken by the respective gov- 
 ernments to execute their acknowledged powers, would often be of 
 the same description, and might sometimes interfere. This how- 
 ever does not prove that the one is exercising, or has a right to 
 exercise the powers of the other." * 
 
 Note -i. — Article 1, section 8, of the coustitutiou of the United States, which 
 grants to congress authority to regulate commerce with foreign nations ami 
 nmong the several states, is not so exclusive as to prohibit the states from legis- 
 liting upon the subject of pilots, if congress has not seen fit to legislate upon that 
 same subject. Stilwcll v. Rayuor, 1 Daley, 47; 12 How. U. S. E. 299. And in 
 c.bsence of federal legislation, the states have a right to protect their commerce- 
 by exercising on the neighboring seas, the power accorded for that purpose to 
 every maritime people. Cisco v. Eoberts, 36 N. Y. 292, and cases cited. The 
 regulations of port pilotage, stand substantially upon the same footing with our 
 quarantine laws. It is the right, and duty of the state, by appropriate legislation 
 to guard the public health, and the security of general commerce, and to pi-ovide
 
 46-4 THE rOLICE POWER. 
 
 But this is borclcriiig upou the line of the conflict of laws, which 
 it is no purpose of this work to enter npon. The cases cited in 
 the note, will be found in then- reasoning to have been quite ex- 
 haustive of the subject, and are full of learning on the question of 
 the extent of the poUce power of the states. It is more our object 
 to exhibit the existence of the police power in the state, as a 
 necessar}' and useful power, and to defend it against the charge 
 often made as to its despotic, oppressive and unconstitutional 
 character, than to attempt to enumerate the multiplied subjects 
 which are included within the power. 
 
 Among the subjects included hi- this police power, is that of re- 
 quiring the observance of the first day of the week as the christian ' 
 Sabbath, as to which the statutes of the state have provided pen- 
 alties for their violation. It neither interferes with the religious 
 belief of any citizen, nor with any doctrine of rehgious faith or 
 practice. It is no violation of the constitution which allows the 
 free enjoyment of free profession and worship, without discrimi- 
 
 agaiust the dangers to wliicli every maritime iieople are exposed by iutcrcepting 
 aud averting them on the sea, without the bounds of exclusive territorial do- 
 minion. Gilmore V. Philadelphia, 3 Walh 730. The states have always exercised 
 this power, aud from the nature aud objects of the two systems of government, 
 they must always continue to exercise it, subject however in all cases, to the 
 paramount authority of congress, whenever the power of the states shall be ex- 
 erted within the sphere of the commercial power which belongs to the nation. 
 
 The states may exercise concurrent or independent power in all cases but 
 three. 1st. "Where the power is lodged exclusively in the federal constitution. 
 2d. "Where it is given to the United States, and prohibited to the states. 3d. "Where 
 from the nature and subjects of the jDower, it must necessarily be exercised by 
 the national government exclusively. Houston v. Moore, 5 "^"heat. 49. It is no 
 objection to distinct substantive iDOwers, that they may be exercised on the same 
 subject. It is not possible to fix definitely their respective boundaries. In some 
 instances their action becomes blended; in some the action of the state limits or 
 displaces the action of the nation; in others the action of the state is void, be- 
 cause it seeks to reach objects beyond the limits of state authority. Gilmore v. 
 Philadelphia, 3 "Wall. 730. So, an act of the legislature of New York providing 
 for the appointment of harbor masters in the city of New York, and their fees, &c. , 
 does not conflict with the i^rovisions of the "United States constitution giving 
 power to congress to collect duties and regulate commerce. Benedict v. Vander- 
 bilt, 25 How. Pr.R. 209. But, an act of the same state imposing a special tax on 
 every sale made by public auction, &c., of merchandize imported from any place 
 beyond the Cape of Good Hope, is imconstitutional and void. People v. Jloring, 
 47 Barb. G42.
 
 THE POLICE rOWER. 405 
 
 nation, or preference, to ull nuinkiud. It creates no legal religion 
 in the state. The christian religion is recognized as a part of tlie 
 common law of tliis state. The observance of this day, does not 
 interfere with any natural right, or -svitli the equal right of any 
 citizen to entertain any other behcf. a It merely restrains the 
 people from secular pursuits and practices -which the legislature 
 deem hurtful to the morals and good order of society. This is 
 within the legislative power. So is the right to declare void all 
 contracts made on tliat day. It does not touch private property, 
 or impair its value. 
 
 The christian religion, as a part of the common law of England, 
 can be traced back by positive legislation, (if legislation it may bo 
 called,) to the day of tlie Saxon Kings. The code of King Alfred 
 commences with an enactment of the ten commandments ; it 
 recites the advent and passion of our Savior ; the founding of the 
 church ; the mission of the Apostles, and the letter issued from 
 the church at Jerusalem, recorded in the fifteenth chapter of Acts, 
 verse twenty-three ttc. To this summary was added the following 
 remarkable words : " From this, our doom, a man may remember, 
 that he judge every one righteously ; he need no other doom book." 
 These edicts, like most of what are called the early statutes of 
 England, became in time the common law, and continued to be 
 such, down to the time of our American colonization, and wc 
 boiTOwed it from thence, and made it, the ground work of our own ; 
 and afterwards adopted the English common law by our wiitten 
 constitutions, although wc rejected all union between church and 
 state, as a part of the fundamental organization. 
 
 Though in the political organization of the national and state 
 governments, there was a complete severance between the organ- 
 ized church, and the organized state, there was no intended nega- 
 tive of the doctrines or precepts of 'the christian religion; or an 
 intended or implied adoption therein, to an equality, of Atheism, 
 Paganism, or any kind of infidelity with the christian religion ; 
 on the contrary', not only in the Declaration of Independence, which 
 was the basis of our fundamentals, but in the whole administration 
 of tho law, there is recognized an immortality of the soul, and the 
 retribution of a conscious hereafter, an all powerful, just, and holy 
 
 a Liudcumulkr v. The People, 33 Barb. 573. 
 59
 
 AQG THE POLICE rOWER. 
 
 God who will pimisli evil doers in tliis life, and in a life to come, 
 with the penalties for sin. This is also recognized by its adding 
 its sanction of oaths in the administration of justice, and in the 
 administration of goveniniental affairs. Such oaths assume the retri- 
 butions of an hereafter by the God of our holy religion, for a 
 violation of the sacred obligations of them. In the taking of 
 such oaths by one whose condition requires it, there is placed 
 before him, and he takes upon himself, to deal with the dread 
 reahtics of a future and unseen world ; it commits him to an 
 acknowledgment that God is, that He sees, hears and knows the 
 secret thoughts and intents of his heart ; " and that He, will by 
 no means clear the guilty." 
 
 In the state of Ohio, under their constitution, it is denied that 
 the christian religion more than any other, is a part of the common 
 law of the state, though they have a statute prohibiting labor on 
 the Sabbath day. The courts hold this statute to be a mere mu- 
 nicipal 01 jMlice regulation, a and in Pennsylvania and South Caro- 
 lina, their Sabbath laws seem to be sustained on the same ground, b 
 but, by the courts in New York all secular transactions are held to 
 be -vdolations of statute and void as against public policy, c 
 
 While therefore, we find that though nearly every' state have 
 enacted statutes against the desecration of, and for the quiet ob- 
 servance of what is called the " Lords Day," they do not all agree 
 upon the basis of their enactment. Those states that deny that 
 these laws were passed out of respect to the christian religion, are 
 disposed to charge that idea as puritanical, or what is more odious, 
 as the offspring of the fanatical persecutions which gave the holy 
 inquisition such horrid force, " and placed the civil and religious 
 liberty, and the lives of nations and men, at the mercy of the blood- 
 iest power that ever inflicted misery upon the human race."rf 
 Whatever may be the declared policy of the states through its 
 courts, as to these enactments, it can hardly be denied, that the 
 recognition by the legislatures of states of one of the essential fea- 
 tures of our religion, to " Remember the Sabbath day to keep it 
 
 a Eloom v. Eicbards, 22 Ohio, 387. 
 
 h Speclitv. Comnionweulth, 8Barr. 312; Charleston v. Benjamin, 2 Streb. Law, 
 n. 508. 
 
 c WattH V. Van Ness, 1 Hill, 7G; Smith v. Wilcox, 19 Barb. 581. 
 d Specht V. Commonwealth, Supra, Penn. E. 184.8.
 
 THE POLICE rOWER. 467 
 
 holy ; six daj'S slialt thou hibor iiud do all thy work, but the 
 seventh day is the Sabbath of the Lord thy God ; in it thou shalt 
 not do any work ;" has had its mflucnce in seem'ing the enactment 
 of such statutes. Nor does the poHcy of those states stop at that 
 point. The existence of a God ; of a hereafter, and a retribu- 
 tion, — pervades the whole administration of the law. These Sun- 
 day law«, the state in its administration of justice calling to its aid 
 tlie solemn sanctions of religion in the use of oaths, still stamps 
 this religion as an integral part of its policy. It is believed that 
 no state would be willing to see these restraints removed from its 
 policy. The social fabric could not endure without thorn. 
 
 So too under this power is the construction of higliAvays by the 
 state, or by others imder tlieir authority, -odth proper poUce provi- 
 sions for their regulation and the government of persons using them ; 
 — as to the rate of speed with which they may be traveled, and which 
 way passengers meeting or passing each other shall turn ; to prohibit 
 uuisances thereon ; to prevent cattle and other animals from run- 
 iug at large thereon ; to regulate the navigation and use of pubhc 
 waters, — to prevent the sale of poisonous di'ugs, — to require dogs 
 to be muzzled at certain periods, — to prevent the keeping and 
 sale of unwholsome provisions ; to regulate markets, and standards 
 of weights and measures ; to prohibit the keeping, exhibition, and 
 sale of indecent books and pictures, and the universally acknowl- 
 edged power to pass laws to pimish crimes and misdemeanors. 
 
 This enumeration may suffice, though it is but a portion of the 
 instances in which this pohce power may be and has been exerted, 
 nor can it be deemed necessary to cite authority to sustain the 
 principle upon this enumeration of powers.
 
 4G8 DUE TEOCESS OF LAW. 
 
 CIIAPTEll XV. 
 
 OF COXSTITUTIONAL PROTECTION TO PERSONAL PROPERTY. 
 
 In the three preceding cliaj)ters, we have examined, under the 
 right of eminent domain, of the taxing power, and the police power 
 of the government, how the superior rights of the government to 
 propert}^ may be called into exercise, to the deprivation of the 
 individuals of their private estates, — and the theory, by which, it 
 is supposed, the individual receives his compensation. We have 
 but incidentally discussed the constitutional provisions, state and 
 national, that private i^roperty shall not be taken without due pro- 
 cess of law. Our examination, in that respect, has been Hmited to 
 .such taking, and what was regarded as due process of law under 
 the right of eminent domain. 
 
 We have already shown (in a former chapter) from the provisions 
 of the various state constitutions, that the same constitutional intent 
 of protection is secured to the citizen by language so nearly identical, 
 as not to change the interpretation, viz : "by due process of law," 
 " by due course of law," " by the law of the land," &c. So the 
 definitions in reported cases, though they differ in phraseology, 
 and are more extended or limited, according to the views of jurists 
 who have given expression to them, do not really effect any con- 
 flict on the question of intent. 
 
 It was held in this state, in the Supreme Court,« " that to work a 
 change of property from one private person to another, by due pro- 
 cess of law, some proceeding must be had in a court of justice or 
 before magistrates. At least that the legislature should have no 
 .power to deprive one of his property, and transfer it to another, by 
 enacting a bargain between them, unless it be in the hands of the 
 latter, as a tnist for pubhc use." The meaning of these words was 
 equally well expressed by Mr. Webster in his argument before the 
 Supreme Court of the United States,^ in which he said : " By the law 
 
 a In tLe Matter of John and Cherry St., 19 Wend. G7G-7. 
 h Dartmouth College v. Woodward, 4 Wheat. 581, 582.
 
 DUE TEOCESS OF LAW. 400 
 
 of the land is most clearly intended the general law;— a law Avhich 
 hears before it condemns ; which proceeds upon inquiry, and 
 renders judgment only after trial." The meanmg is, that every 
 citizen shall hold his life, liberty, property and immunities under 
 the protection of the gcnend rules which govern society. Every- 
 thing Avliich may pass under a form of enactment, is not, there- 
 fore, to be considered the law of the land. If this were so, acts 
 of attainder, bills of pains and penalties, acts of confiscation, 
 acts reversing judgments, and acts directly transferring one man's 
 property to another, legislative judgments, decrees and forfeitures 
 in all possible forms, Avould be the law of the land. 
 
 Such a strange construction, wcmld render constitutional pro- 
 visions of the highest importance completely inoperative and 
 void. It would tend directly to establish the union of all powers 
 in the legislature. There would be no general permanent law for 
 courts to administer, or for men to live undin-. The administra- 
 tion of justice would be an empty form, an idle ceremony. Judges 
 would sit to execute legislative judgments and decrees ; not to de- 
 clare the law or to administer the justice of the country. 
 
 So in the exposition of the same words in the national con- 
 stitution, Mr. Justice Curtis said, a "The article is a restramt 
 on the legislative, as well as on the executive, and judicial 
 powers of the government, and cannot be so constiiied as to 
 leave congress fi-ee to make any process, ' due process of law,' by 
 its mere will." These words are found in Jfarjna Chnrta, and have 
 been copied into our national and state. constitutions. As in the 
 original royal charter, so m om- oavu, they were intended to secure 
 the individual from the arbitrary exercise of the powers of govern- 
 ment, unrestrained by the establishment of the principles of pri- 
 vate rights and distributive justice, h This seems to have settled 
 down to be the good sense of mankind. 
 
 It has been claimed that this power is universal, not only in its 
 application, but that the citizen under it is entitled to claim a trial 
 by jury in all cases. But the cases of the right of trial by jury, 
 being otherwise expressly provided for in the same constitution, it 
 is not to be deemed as implied in this provision of due process of laiv. 
 
 a Muriixy's Lessees'v. Hoboken Land Imp. Co., 18 How. 270. 
 b Bank of Colnmbia v. Okely, i Wheat. 144.
 
 470 DUE TEOCESS OF LAW. 
 
 By the constitution of tlie United States, a speedy trial by an 
 impartial jury, is secui-ed in all criminal cases, a and by the con- 
 stitution of this state, the trial by jury in all cases in which it had 
 thcretoforcbeenused, is secured to 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. h 
 
 But there are exceptions to the general rule laid down in the 
 cases we have referred to, that to pass title to property from one 
 person to another, there must be the intervention of judicial pro- 
 ceedings so called. The cases of the taxing and police power, and 
 perhaps the right of eminent domain, may be regarded as excep- 
 tions, and perhaps there are many other special cases. The 
 general rule to which we have referred, and its general necessity, 
 as a rule, does not preclude the legislature from establishing 
 special rules, for a special or particular class of cases, which range 
 themselves under some general and acknowledged head of legisla- 
 tive power, nor does the requirement of what is technically so called 
 judicial action demand, in every case, a hearing in court, c 
 
 These cases, which are exceptions to the general rule, are, and 
 should be looked upon with great jealousy by the courts, for fear 
 of establishing a precedent that should look like encroaching upon 
 constitutional securities. They generally relate to legislation as 
 to interests or property to be acquired in future, and seldom or 
 never as to existing interests. Sometimes they relate to the forms 
 of administering justice by courts, or by officers specially appointed 
 by statute to perform certain duties ; powers which are incident 
 to the exercise of this branch of the sovereign will, and which 
 must ever be subject to the legislative w'ill. 
 
 The line which distinguishes what are called the excepted cases 
 from others, is so nice, and is so bordering upon those that are 
 brought under the heads of right of eminent domain, the taxing 
 and police powers, or under the acknowledged legislative power 
 to change the form of remedies, that the ablest jurists, have been 
 disposed to doubt the existence of even an exception at all, d 
 For instance, a statute making it unlawful to sell intoxicating 
 
 a Art. G. h kxi. 1. § 2. 
 
 c Cooley on Const . Lim. 355. 
 
 d Wynchamer v. The People, Per. Comstock, J. 13 N. Y. E. 386-387.
 
 OF STATUTE REMEDIES. 471 
 
 liquors or to keep tlicm for sale, decltiriiif^ tlicm a nuisance, and 
 authorizing public officers to abate the nuisance by its destraction, 
 has been held to be unconstitutional as applicable to such liquors as 
 were owned or kept at the time of the passage of the law. But it 
 was intimated, a that it was competent for the legislature to pass 
 an act containing like provisions to annihilate and destroy such 
 property that might be acquired or created at any time after the 
 passage of such an act. This, it is said, would 1)0 however, by 
 virtue of the police power. 
 
 So too, the taking of wild lands of an inchvidual for a public 
 highway by the state, and by commissioners appointed by an act 
 of the legislature, without giving compensation to the proprietor, 
 has been held to be within the constitutional power of the legisla- 
 ture. But this is said, also, to come under the taxing power, and 
 based upon the principle, that the owner receives an equivalent 
 by the increased value of the adjoining lands. 
 
 " Nevertheless, in many cases and ways, remedial legislation 
 may affect and control the disposition of property, and, in some 
 cases, may change rights, give remedies, where none existed before, 
 and even devest titles, in case the legal and equitable rights do not 
 concur in the same person."?) But it is believed that no reason 
 of public policy will be sufficient to effect such changes or trans- 
 fers of property where they operate on vested rights, c 
 
 It cannot be denied, that the legislature have power to pass an act, 
 which, without acting directly upon its terms, destroj^s the remed}' 
 which a party may have at the time of its passage, or so embar- 
 rasses it, that the rights of the creditor under such legal remedies 
 are substantiall}' defeated. (Z It may frequently be difficult to 
 draw the line, between acts affecting the remedy only, and those 
 that are within the legitimate province of the state legislature, antl 
 such, as overstepping those bounds, substantially impair th-j 
 obhgation of antecedent contracts ; and it is perhaps impracticable 
 to lay down in language, a rule by which all such questions may 
 be tried and determined. 
 
 But it is well estabhshed law, that the indi\idual citizen with 
 
 aid. 459. 
 
 h Cooley on Const. Limits, 3o7. c Id. 
 
 d Morse v. Gould, 11 N. Y. 287-291.
 
 472 or STATUTE EEMEDIES. 
 
 all liis riglits to protection, has no vested right in what is known 
 in the law as, remedies, nor in any particular existing remedy. 
 He has no such vested interest in the existing laws of the state, 
 as precludes their amendment or repeal by the legislature ; nor is 
 there any implied obhgation on the part of the state — to protect 
 its citizens against incidental injury occasioned by changes in the 
 law. Whatever belongs merely to the remedy, may be altered 
 according to the will of the state, alwa3%s provided, the alteration 
 does not impau' the obligation of the contract ; but if a statute so 
 clianges the nature and extent of an existing remedy as materially 
 to impair the rights and interests of the owner of property, it is 
 just as much a violation of the constitutional provision, as if it 
 directly overturned his rights and interests, a If the remedy does 
 not impair the right or property itself, if it still leaves the party a 
 substantial remedy according to the course of justice, as the right 
 existed at the time of the passage of the statute, it does not impair 
 the obligation of the contract, h nor will it be held to do so, merely 
 because the new remedy is less efficient, less speedy, or less con- 
 venient than the old one. c 
 
 Among the class of statutes which have been held not to have 
 impaired the contract, is that of the abolition of imprisonment for 
 debt in this state, upon existing contracts. The poAver of confine- 
 ment of the debtor, as a means of inducing him to perform, and 
 punishment for nonperformance, was an efficient power, but the 
 courts have held that imprisonmnent was no part of the contract ; 
 and to release the debtor from the liability to imprisonment did 
 not impair the obligation. <{ A good remedy is still left, and the 
 contract still remains in full force. So another statute of tbis 
 state abolishing the right of distress for rent in arrear. Though 
 this statute took away a part of the remedy existing at the time of 
 making the leases, it was held to be no violation of this constitu- 
 tional provision ; and an express stipulation between the parties 
 contained in the lease, that the lessor should have this remedy, 
 did not prevent the legislature from abolishing it, because this w^as 
 
 a Branson v. Kinzie, 1 How, U. S. E. 31G; Green v. Biddle, 8 "Wheat, 75-70 
 b Story V. Furman, 25 N. Y. 233; Van itcnssclaer v. Snyder, 12 N. Y. 299-305 
 c Morse v. Gould, UN. Y. 281. 
 d Sturges v. Crowninshield, 4 Wheat. 2C0, 201 .
 
 CF STATUTE KEJrEDIES. 473 
 
 a subject concerning AvLicli, it was not competent for tlio parties 
 to contract in such a manner as to proliibit the exercise of legis- 
 lative powers, a The court said, " this act provided a new remedy 
 in the cases wlioro the right of re-entry was reserved to enforce 
 the collection of the debt due the landlord. This was an ordinary 
 and proper exercise of legislative iK)W(,>r, unless individuals by 
 contract can ])('rpotuate a legal remedy in spite of the legislature, 
 which is aljsurd." And in another case, they said, "If this is a 
 subject on wliich parties can contract, and if their contracts when 
 made, become, by virtue of the constitution of the United States, 
 superior to the power of the legislature, then it follows, that what- 
 ever at any time exists, as part of the machinery for the adminis- 
 tration of justice, may be perpetrated, if the parties choose so to 
 agree. That this can scarcely have been within the contemplation 
 of the makers of the constitution, and that if it prevail as law, it 
 will give rise to grave inconveniences, is quite obvious. Every such 
 stipulation is in its own nature conditional upon the lawful con- 
 tinuance of the process. The state is no party to the contract. 
 It is bound to afford adequate process for the enforcement of 
 rights ; but it has not tied its own hands as to the modes by which 
 it will administer justice. Those, from necessity, belong to the 
 supreme power to prescribe, and their continuance, is not the sub- 
 ject of contract between private parties." 
 
 So too, a statute of this state, which exempts a portion of a 
 debtors property from liability to execution for debts, even existing 
 debts, and further acts modifiing and increasing such exemptions, 
 are not%'iolationsofthe constitution, although they seem to dimin- 
 ish the security of the creditor. Chief Justice Taney in relation 
 to that class of cases, said, h " Undoubtedly, a state may regulate at 
 pleasure the modes of proceeding in its courts in relation to past 
 contracts as well as future. It may for example, shoi-ten the period 
 of time within which claims shall be barred by the statute of limi- 
 tations. It may, if it thinlcs proper, direct that the neccssarv 
 implements of ngriculture, or the tools of the mechanic, or articles 
 of necessity in household furniture, shall, like wearing apparel, 
 not be liable to execution or judgments. Regulations of this 
 
 a Van Eensselaer v. Suyder, 13 X. Y. 209; Coukey v. Hart, 14 N. Y. '22. 
 6 Bronson v. Kenzie, 1 Hotc. 315. 
 60
 
 47-i OF STATUTE EEMEDIES. 
 
 description have ahvavs been considered, in every civilized com- 
 munity, as properly belonging to tlie remedy, to be exercised 
 or not by every sovereignty, according to its own views of policy 
 and liumanity. It must reside in every state, to enable it to 
 secure its citizens from unjust and han-assing litigation, and to 
 protect them in those pursuits which are necessary to the existence 
 and well being of every community." 
 
 There is no doubt, however, that a statute which should deprive 
 a party of all legal remedy, would necessarily be void. The 
 legislature by such statute, intending it to have effect upon legal 
 contracts lawfully- made and bindiug upon the parties, would 
 exceed their legitimate powers. Such an act must necessarily 
 impair the obligation of the contract within the meanmg of the 
 constitution. This has been adjudged. a "And where a statute 
 does not leave a party a substantial remedy according to the course 
 of justice, as it existed at the time the contract was made, but 
 shows upon its face an intention to clog, hamper or embarrass the 
 l^rocaedings to enforce the remedy, so as to destroy it entirely, 
 and thus impair the contract, so far as it is in the power of the 
 legislature to do it, such statute cannot be regarded as a regulation 
 of the remedy, and is void." h But a lawful repeal of a statute 
 cannot constitutionally be made to destroy contracts made under it. 
 
 "We have intended to dwell no longer upon this branch of the 
 law, than was necessaiy to lay down the principles which govern 
 it, and cite to the support of such principles, undoubted authority 
 of the courts. As we do not intend this to be a work of practice, 
 we shall not extend the reference to the multitude of cases which 
 illustrate the principles stated. 
 
 The question as to the effect of a state to pass insolvent or 
 bankrupt laws, and the classes of cases to which they extend, or 
 can be made to apply, may be considered under this head. The 
 fourth subdivision of section eight article first of the constitution 
 of the United States provides, " that congi^ess shall have power 
 to establish laws on the subject of bankruptcies throughout the 
 United States." This, it has been supposed, amounted to an 
 exclusion of the state legislatures, to enact insolvent or bankrupt 
 
 a Call V. Hagger, 8 Mass. 429. 
 
 b Cooley on Lim. 289; Oatman v. Bond, 15 Wis. 28.
 
 or B.\MvHurT LAWS. 475 
 
 laws, and for a time, legal controversies were frequent wliich 
 involved the constitutional effect, and operation of state insolvent 
 laws. More recently, the subject has received the consideration 
 of the federal courts, and certain propositions relating to that ques- 
 tion may be regarded as having been finally settled. The unques- 
 tioned conclusions of that tribunal may be stated as follows : 
 That there are only three cases, in which the states are excluded 
 from the exercise of any power antecedently possessed by them. 
 
 1. When a power is gi'anted to congress in exclusive terms. 
 
 2. When the states are expressly prohibited from exercising it in 
 a specific form. 3. When a power is gi-anted to congi-ess, the 
 cotemporaneous exercise of Avhich by the states would be. incom- 
 patible, a 
 
 It had been previously established, that any state in the union 
 has a right to pass a l)ankrupt law, provided such law does not 
 impair the obligation of the contracts, and, provided there be no 
 act of congress in force to establish a uniform system of bank- 
 ruptcy conflicting with such law. That although some of the 
 powers of congi-ess are exclusive, from their nature, without any 
 express prohibition of the exercise of the same powers by the 
 states, the power of estabhshing bankniptcy laws is not of this 
 description, h 
 
 More recently it was held, 1. That the power given to the 
 United States to pass bankruptcy laws is not exclusive. 2. That 
 the fair and ordinary exercise of that power by the states, does 
 not necessarily involve a violation of the obligation of contracts, 
 onulto fortiori, of posterior contracts, c And still more recently it 
 was repeated, that a bankrupt or insolvent law of any state, which 
 discharges 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. But, it was further settled in the same case, that when in 
 the exercise of that power, the states pass beyond their owti limits, 
 and the rights of their own citizens, and act upon the rights of 
 citizens of other states, there arises a conflict of sovereign power, 
 and a collision with the judicial powers granted to the United 
 
 a Ogcleu V. Sanders, 12 "Wheat. 229 
 
 h Shirgis v. CrowTiinshield, 4 "Wheat. 192. cCook v. Moffat, 5 How. 310.
 
 476 OF BANKRUrT LAWS. 
 
 States, Avliicli renders the exercise of such a power mcompatible 
 with the rights of other states, and with the constitution of the 
 United States, a so that, insolvent laws of our state, cannot dis- 
 charge the contracts of citizens of other states, because they have 
 no extra temtorial operation, and consequently the tribunal sit- 
 ting mider them, unless in cases where a citizen of such other state 
 becomes a party to the proceeding, has no jurisdiction in the case. 
 
 But though the constitution of the United States does not, 
 in terms, grant to the states the power of passing bankrupt laws, 
 nor prohibit them, they may, in the absence of a law of congress, 
 lawfully pass such acts. So too, it is held, that congress, finding 
 a state in possession of such an act, may by an act of their own, 
 prohibit its future exercise entirely, or restrain it, so far, as 
 national policy may requh^e. The constitution itself has restrained 
 it, so far, as to prohibit the passage of any law impairing the oblig- 
 ation of contracts. And though they may, until the power of con- 
 gTess shall be exercised, so to prohibit or restrain the state law, to 
 pass laws concerning bankrupts, yet they cannot, constitutionally 
 introduce into such laws, a clause which discharges the obligations 
 the bankrupt has already entered into, h 
 
 The case in which this was held, was the constniction of the 
 terms of an act of the legislature of the state of New York enti- 
 tled, " An act for the benefit of insolvent debtors and their credi- 
 tors," passed in April, 1811, which contained a provision discharg- 
 ing the debtor from all liability upon debts contracted previous 
 to his discharge, and including such as were contracted previous 
 to the passage of the act, upon his surrendering his property 
 in the manner prescribed by the act. The defendant had ob- 
 tained a discharge under this act, and was sued upon obligations 
 made before, though payable after the taking effect of the act. 
 He set up this discharge, as a defence to the suit upon the notes. 
 The case received great consideration, and Chief Justice Marshall, 
 expressing the opinion of the court, held the New York statute, so 
 far as it attempted to discharge contracts made prior to the taking 
 effect of the act, to be unconstitutional, because, impairing thf 
 obhgation of contracts. 
 
 a Baldwin v. Hale, 1 Black. 231 . 
 
 I Sturgis V. Crowninshield, 4 Wheat. 199.
 
 IMTAIRING OLLIGATION OF CONTRACTS. 477 
 
 It cannot be doubted, that the true meaning of this ckiuse in 
 the constitution is, that the body upon ^vhich the prohibition 
 rests, and which is restrained thereby, is the legiskitive depart- 
 ment. The subject, upon which tlie prohibition takes efiect, is 
 contracts. In this is included every contract rckiting to property, 
 or some object of vakie, Avhich confers rights, and wliich may be 
 asserted in a court of justice. It is imniiiteriul whether the con- 
 tract be between a state and an individual, or between individuals 
 only. The contracting parties whoever they may be, stand in this 
 respect upon the same ground. The obligations imposed, and the 
 rights acquired by virtue of the contract, cannot be impaired by 
 a legislative act. x\. law which discharges these obligations, or 
 abrogates these rights, impairs them. 
 
 A constitutional act of legislation, which is equivalent to a con- 
 tracti and is perfected, requiring notliing further to be done in 
 order to its entu-e completion and perfection, is a contract executed. 
 Whatever rights are thereby created, a subsequent legislature can- 
 not impair. Nor can an obligation created by a constitutional 
 law which is in the nature of an executory contract, and which is 
 supported by a sufficient consideration, be annulled at the pleasure 
 of the legislature. But a statute, though passed by a legislature 
 having- constitutional authority to enact it, which implies a con- 
 tract executory depending upon the further action of the legisla- 
 ture or its agents for its execution, and which is without consid- 
 eration in fact or in law, may, before its execution, and the exist- 
 ence of any consideration, be repealed. Such a contract does 
 not create rights or duties, which, in legal contemplation, can be 
 impaired. Such has been adjudged to be the tnie meaning of this 
 clause of the constitution, a 
 
 It is obvious therefore, that in every case, where the prohibi- 
 tion 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 obhgation 
 capable, in legal contemplation, of being impaired ? If it be such 
 a contract, the remaining inquiry is, whether the act of the legis- 
 lature impairs that obligation ? Hence it is a proper subject of 
 
 a People v. Tlatt, 17 John 214, 215; Dartmouth College v. "Wooilwanl, -t 
 Wheat. 518; Sturges v. CrowuiDshiohl, 4 Wheat. 201.
 
 478 DdlEDsG OBLIGATION OF CONTRACTS. 
 
 examination whether the contract be executed, or only executory. 
 If the hitter, whether it be upon sufficient consideration, proved, 
 or presumed, if it be an act of the legisLiture which constitutes 
 the contract, it is executed. Has the object of the contract been 
 performed ? or, is it a mere executory contract requiiing the 
 fiu-ther action of the legislature, or its agents, to complete its 
 execution? And if the latter, is it voluntary, or upon sufficient 
 consideration ? 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 if it be 
 a grant of land, and the legislative act is, itself, the conveyance, 
 not rec[uiring the execution and delivery of a deed or other instru- 
 ment, nor any other 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 un- 
 executed, requiring some further act to its completion, as the 
 delivery of the money, or the execution of an instrument of con- 
 veyance, and is without consideration in fact, or to be presumed, 
 then, before its completion, and the existence of any consideration, 
 it may be repudiated ; the gift may be withheld, and the paiiy 
 who made the promise may revoke it. In this respect, the state 
 and an individual are subject to the same rule, a 
 
 Another distinction is found in the particular character of the 
 property, between that which may be affected by legislative action, 
 and that wliich may not, and more especially between such stat- 
 utes as are of a retrospective character, and such as are called reme- 
 dial and prospective. It is hardly questioned, that a retrospective 
 statute which affects and changes vested rights, is founded upon un- 
 constitutional principles, and is consequently inoperative and void.6 
 
 Judge Cooley, in his valuable work on constitutional limitations 
 has well said, " Every man holds all he possesses, and looks for- 
 ward to, all he hopes for, through the aid and protection of the 
 
 a Smith's, com. 384. The Derby Turnpike Co. v. Parks, 10 Conn, 540, 541. 
 
 Atwator V. Woodbridge, 6 Conn. 230. Osborne v. Humphrey, 7 Id., 340, 341. 
 
 State of New Jersey v. Wilson, 7 Cranch. 105. Fletcher v. Teck, G Cranch. 136 
 
 to 138. 
 
 h 1 Kent. Com. 455.
 
 coxsTrruTioN.u. tkotection. 479 
 
 laws ; but as changes of circumstances, and of public opinion, 
 as well as other reasons of public policy, are all the time calling 
 for changes in the laws, and these changes must more or less aflfect 
 the value and stability of private possessions, and strengthen or 
 destroy well founded hopes; and, as the power to make very 
 many of them must be conceded, it is apparent that many rights, 
 privileges and exemptions, which usually pertain to ownership 
 under a particular state of the lav\', and many reasonable expec- 
 tations, cannot be regarded as vested rights, in any legal sense. 
 In many cases, the courts, in the exercise of their ordinary jurisdic- 
 tion, cause the property vested in one person to be transfeiTcd to 
 another, either through a statutory power, or by the force of their 
 judgments, or decrees, or by compulsory conveyances. If in 
 these cases the court has jurisdiction, they proceed in accordance 
 with the law of the land, and the right of one man is divested by 
 way of enforcing a higher and better right in another." « 
 
 But the question, what constitutes duejjroeessqfJau; can be, 
 and frequently is raised in the courts and in judicial proceed- 
 dmgs, as frequently as elsewhere, and the final decision of the 
 court, when jurisdiction is had of the subject and the person, is 
 conclusive in that particular case. It is the conflict of adjudica- 
 tions in the courts on this question, and upon words of nearly 
 similar import, that has seemed to create conflict of opinion, as to 
 the true intcipretation of these words. 
 
 This constitutional security to the citizen, that his property can- 
 not be taken but by due process of law, or, by the law of the land, 
 extends even to actions at law in the com'ts. He cannot even be 
 deprived of it by coui'ts, except they obtain jiuisdiction of the 
 subject, and of the person of the proprietor. An adjudication by 
 a coui-t, where juiisdiction is not obtained, is void as to property 
 which its judgments assume to affect, and its owner may repudiate 
 their action, defy their powers, and avail himself of his objection 
 at any stage of their proceedings under the judgment, or decree, 
 us well collaterally as othei"s\'ise. In such case the proceeding is 
 not by due process of law, nor by the law of the loud, and all pei-- 
 sons interfering with individual property under sucli assumed 
 authority render themselves liable as trespassfirs. 
 
 a Cooley on Const. Liui. i358.
 
 480 CONSTITT?TION.\L TROTECTION. 
 
 The question of jurisdiction of parties and property, is some- 
 times determined by the common la^Y, and sometimes by a statute 
 constitutionally enacted. Such statutes affect only the remedy 
 and form of proceeding; but it must be admitted, that the method 
 of acquiring jurisdiction, often seriously affects or impairs the 
 value of this constitutional protection, and the question of juris- 
 diction is sometimes one of law, and sometimes of fact. 
 
 By the statute of this state a jurisdiction over the person and 
 property of a party may be obtained without actual personal ser- 
 vice upon him of the process or proceeding by which an action 
 may be commenced against him in the courts, by which, proceed- 
 ings to judgment may be had, and his property taken under its 
 Judgments ; and similar statutes are found in most of the other 
 states. 
 
 In tliis state such jurisdiction may be obtained, when the party 
 cannot, after due diligence, be fomid within the state ; in a class 
 of cases enumerated, to wit, when a cause of action exists against 
 him, or, when he is a proper party to an action relating to real 
 property in the state. Then, by an order duly obtained according 
 to the directions of the same statute, a judge of the court may 
 direct the service of the process by a publication of it, in specified 
 pubhc newspapers, for a required period, in the following cases : 
 1. Where the defendant is a foreign corporation, has property 
 Avithin the state, and the cause of action arose therein. 2. Where 
 the defendant, being a resident of this state, has departed therefrom 
 with the intent to defi-aud his creditors, or to avoid the service of 
 a summons, or keeps himself concealed therein with like intent. 
 
 3. Where he is not a resident of this state, but has property therein, 
 and the court has jurisdiction of the subject of the action. 
 
 4. Where the subject of the action is real or personal property 
 in this state, and the defendant has, or clains a lien, or interest, 
 actual or contingent therein, or the relief demanded consists wholly, 
 or partly, in excluding the defendant from any interest or lien 
 therein. 5. Where the action is for divorce, in the cases prescribed 
 Ijy law. 
 
 The right of the legislature to prescribe such substituted notice 
 by publication, and to give to it the effect of personal seiTice of 
 
 a Code, § 135.
 
 CONSTITUTION.UL, TKOTECTIO?'. x/ i 
 
 process in the euumcrated class of cases, is Wi^l'/ . tix legirsiative 
 power. They may thus, by a remedial and euabliflg statute, pro- 
 vide a substituted method of service, basing it upon the necessity 
 of the case. This i)Ower has long been acted upon, and recognized 
 as beuig authorized and justitied l)y the courts, and, as being due 
 process of law. (t Common justice requu-es that a party in cases 
 provided for in the New York statute, should have some mode of 
 giving notice to his adversary. It cannot be admitted, that a party 
 may defeat the ends of justice as against himself, by so removing 
 himself from the power to make personal service, that not even 
 the legislative power is sufficient to provide the means of reaching 
 his property. The practice of service by publication, is free from 
 reasonable objection under the protection of the courts, and has 
 long been held sufficient. !> 
 
 Under jurisdiction thus acquned, there is no doubt, the private 
 property of one person may, through the instrumentality of the 
 court, and by its judgment or decree, be transfen-ed to another, 
 and this will be held to be due process of law. 
 
 No subject, on the question of jurisdiction, obtained under such 
 statutes, has been more prolific of litigation, than that relating to 
 cases of divorce fi'om the bonds of matrimony; raising the ques- 
 tion of fact, whether the party applying to have the process of 
 the court issued under such a statute, and served only by pubh- 
 cation, is, himself or herself, a honafide resident -within the state 
 in which such process is issued. This question being one of juris- 
 diction, is always open to the party affected thereby, even in a col- 
 latteral action, to dispute it. So that if a party goes to a juris- 
 diction other than that of his domicile, for the purpose of procur- 
 ing a divorce, and has residence there for that purpose only, such 
 residence is not honajide, and does not confer upon the courts of 
 that state or country, jurisdiction over the marriage relation, and 
 any decree they may assume to make, would be void as to the 
 other party. ^ 
 
 a Matter of Empire City Bank, 18 X. Y. 200-215; Rockwell v. Xearing, 33 X. Y 
 
 314. 
 b Nations v. Johnson, 21 How. U. S. E. 20G. 
 
 XoTE 1. — A valuable note is fouud in the work of Judge Cooley on constitu- 
 tional limitations, page iOl, which contains a reference to the adjudications of 
 varioiis states, iipou the effect of tho service of process in the commencement of 
 61
 
 482 CONSTITUTIONAL TROTECTION. 
 
 Tliis rule of law, that jurisdiction may be tlms obtained of a 
 party -without personal service of process, is not in conflict with 
 the principle, that a statute which should authorize any debt or 
 damages to be adjudged against a person upon a purely ex jxtrie 
 
 actions ol divorce, by publication and otlierwisc, wliere tbe question of bona fide 
 residence has been considered by the courts. " These questions," he says in his 
 ■work, " have frequently demanded the thoughtful attention of the courts, who 
 have sought to establish a rule, at once, sound in principle, and that shall pro- 
 tect as far as possible, the rights of the parties, one or the other of -whom, unfor- 
 tunately, under the operation of any rule which can be established, it will fre- 
 quently be found, has been the victim of gross injustice." In the case of the 
 "inhabitants of Hanover v. Turner, Id Mass. 227," instructions to a jury were 
 sustained, that if they were satisfied, the husband, who had been a citizen of 
 Massachusetts, removed to Vermont merely for the purpose of procuring a 
 divorce, and that the pretended cause for divorce, arose, if ever it did arise, in 
 Massachusetts, and that the wife was never within the jurisdiction of the court 
 of Vermont, then, and in such case, the decree of divorce which the husband 
 had obtained in Vermont, must be considered 8S fraudulently obtained, 
 and that it could not so operate as to dissolve the marriage between the 
 parties. See also Vischer v. "Vischer, 12 Barb. G-IO, and McGiffert v. 
 McGiflfert, 31 Barb. G9. In Chase v. Chase, G Gray, the same ruling was had 
 to a foreign divorce, notwithstanding the wife appeared in, and defended the 
 foreign suit. In Clark v. Clark, 8 N. H. E. 21, the court refused a divorce on the 
 ground that the alleged cause of divorce, (adultery,) though committed within 
 the state, was so committed while the parties had their domicile abroad. This 
 decision was followed by Greenlaw v. Greenlaw, 12 N. H., 200. The court say : 
 if the defendant never had any domicile in this state, the libellant could not 
 come here, bringing with her a cause of divorce, over which this court had juris- 
 diction. If at the time (of the alleged offence) the domicile of the parties was 
 in Maine, and the facts furnished no cause for divorce there, she could not come 
 here and allege those matters which had already occurred, as a ground of divorce 
 under the laws of this state. Shoiild she, undor such circumstances, obtain a 
 decree of divorce here, it must be regarded as a mere nullity elsewhere. In 
 Frary v. Frary, 10 N.H 61, importance was attached to the fact, that the marriage 
 took place in New Hampshire; and it was held that the court had jurisdiction of 
 the wife's application for a divorce, notwithstanding the offence was committed in 
 Vermont, but during the time of the wife's residence in New Hampshire, see also 
 Kimball v. Kimball, 13 N. H. 225 ; Bachelder v. Bachelder, 14 N. H. 380 ; Pay- 
 son V. Payson, 34 N. II. 518 ; Hopkins v. Hopkins, 35 N. H. 474. In Wilcox v. 
 Wilcox, 10 Ind. 43G, it was held that the residence of the libellant, at the time of 
 the application for divorce, was sufficient to confer jurisdiction, and a decree dis- 
 missing the bill because the cause of divorce arose out of the state, was reversed, 
 and see Tolen v. Tolen, 2 Blachf. 407 ; see also Jackson v. Jackson, 1 John 424 ; 
 Barber v. Root, 10 Mass. 263 : Borden v. Fitch, 15 John 121 ; Bradshaw v. Heath, 
 13 "Wend. 407. In any of these cases, the question of actual residence will be 
 open to inquiry wherever it becomes important, notwithstanding the record of
 
 CONSTITUTIONAL TROTECTION. 483 
 
 proceediug, Avitliout notice of auy provision to him for defoncling, 
 Avould be a violation of the constitution, and void ; for in the case 
 we have discussed, the legishiture has afforded a kind of notice, 
 the best suggested, and by -which it is reasonably probable, that 
 the party jn-oeecded against -will bo apprised of what is going on 
 against him, and opportunity is afibrded him to defend, a 
 
 In a variety of other cases, known as proceedings in rem, 
 
 a Matter of Eiapirc City Bank, 18 N. Y. 215. 
 
 in-oceedings is in due fbrni, and contains tbe affidavit of residence required by tbe 
 l.ractice. Leith v. Leith, 39 N. II. 20, and McGiffert v. McGiflfert, 31 Barb. C9 ; 
 Todd V. Kerr, 42 Barb. 317. The reuusylvania cases agree wilb those of New 
 Iliimp.sbirc, in holding that a divorce shoukl not be granted unless the cause 
 alleged, occurred while the complainant had domicile within the state. Dorsey 
 V. Dorsey, 7 Walls E. 3-19 ; Ilollister v. Ilollister, C Penn. St. M9; McDermott's 
 Appeal 8 W. and S. 251. For sujiporting, to a greater or less extent, the doctrine 
 stated in the text, See Harding v. Alden, 9 Green 140 ; Ditson v. Ditson, 4R. I. 
 87; Paroling v. Bird's executors, 13 John, 192; Harrison v. Harrison, 19 Ala. 499 ; 
 Thompson v. State, 28 Ala. 12 ; Cooper v. Cooper, 7 Ohio 594 ; Mansfield v. 
 Mclntyre, 10 Ohio 28 ; Smith v. Smith, 4 Greene, (Iowa) 2G6 ; Yates v. Yates, 2 
 Beasely 280 ; McGuire v. McGuire, 7 Dana 181 ; Waltz v. AValtz, 18 Ind. 449 ; 
 Hull V. Hull, 2 Strob., Eq., 174; Manly v. Manly, 4 Chand97; Hubbell v.Hubbell, 
 3 W^is. (;G2 ; Gleason v. Gleason, 4 Wis. G4 ; Hare v. Hare, 15 Texas 365, and 
 see Story's Conft. of Laws § 230, and Bishop on Mar. and Div., 727 et seq. 
 Vol. 2, 4th Ed., § 155 et seq. A number of cases cited, hold, that a wife 
 may have a domicile separate fro:n the husband, and may therefore be 
 entitled to a divorce, though the husband never resided in the state. 
 These cases proceed upon the theory, that although in general, the domicile 
 of the husband is the domicile of the wife, yet if he be guilty of such act 
 or dereliction of duty in the relation, as entitles her to have it partially, or 
 wholly dissolved, she is at liberty to establish a separate jurisdictional domicile 
 of her own. Ditson v. Ditson, 4 R. I. 87 ; Harding v. Alden, 9 Green, 140 ; 
 Maguire v. Maguire, 7 Dana 181 ; HoUister v. Hollister, Penn. St. 449. The 
 doctrine in New York seems to be, that a divorce obtained in another state with- 
 out personal service of process or appearance of the defendant, is absolutely 
 void. Vischer v. Vischer, 12 Barl). 010 ; I\IcCTiflort v. McGiffert, 31 Barb. 69 ; 
 Todd v. Kerr, 42 Barb. 317. 
 
 Upon the whole subject of jurisdiction in divorce suits, no case in the books is 
 1 lore full and satisfactory than that of Ditson v. Ditson supra, which reviews and 
 comments upon a number of the cases cited, and particularly xipon the Massa- 
 chusetts cases of Barber v. Boot, 10 Mass. 205; Inhabitants of Hanover v. Turner, 
 14 Mass. 227 ; Hartean v. Hartean, 14 Pick 181 ; Lyon v. Lyon, 2 Gray 367. The 
 divorce of one party divorces both, Cooper v. Cooper, 7 Ohio 594. and will leave 
 both at liberty to enter into new marriage relations unless the local statute ex- 
 pressly forbids the guilty party from contracting a second marriage.
 
 iSl CONSTITUTIONiVL TEOTECTION. 
 
 because they take notice ratlier of the thing in controversy, than of 
 the persons concerned, the process is served upon that which is 
 the subject of the action, without specially noticing the interested 
 parties. Some cases also partake of the nature of both proceed- 
 ings in rem, and of personal actions, since, although they proceed 
 by seizing property, they also contemplate the service of process 
 on the defendant in the action. Of this class, are the proceedings 
 by foreign attachment, in which the property of a non-resident or 
 concealed debtor is seized and retained by the officer as security 
 for the satisfaction of any judgment that may be recovered against 
 him, but at the same time process is issued to be served upon the 
 defendant, and which must be served, either personally or by such 
 substituted service, a. 
 
 Thus too, attachments are allowed against parties other than 
 corporations, represented to be absent, absconding or concealed 
 debtors ; and the proceeding results in the sale of their property, 
 and the appropriation of its avails, to the benefit of the alleged 
 creditors, and the only notice required is a publication in certain 
 newspapers, b So in justices courts, attachments are authorized 
 against persons who have departed, or are about to depart from 
 the county, or keep concealed with certain intent ; and the notice 
 required is the leaviug the attachment at the last place of residence 
 of the party, if such place exists, or, if not, with the person in 
 whose possession the goods may be found, c 
 
 There are many other examples of the same kind, such as fore- 
 closing mortgages by advertisement ; discharging an insolvent 
 debtor upon the petition of a portion of his creditors, those not 
 petitioning being notified of the proceedings only by advertisment 
 in the newspapers. Various prudential regulations are made with 
 respect to their remedies ; but it may possibly happen, notwith- 
 standing all these precautions, that a citizen who owes nothing 
 and has done none of the acts mentioned in the statutes, may be 
 deprived of his estate, without any actual knowledge of the process 
 by which it has been taken from him. d 
 
 It was said by the Court of Appeals, e "If we hold, as we must, 
 
 a Coolcy ou Lim. 403. h 2 Ecv. Stat. 3, §§ 1, 28. 
 
 c 2 Eev. Stat. 230, 2, §§ 2G-31 
 
 d Mutter of Empire Citj' Bank, Supni. e Id.
 
 COXSTITUTION.VL rilOTECTION. 485 
 
 in order to sustain this legislation, tliut the coustitution does not 
 positively require personal notice, in order to constitute a legal 
 proceeding due process of law, it then belongs to the legislature 
 to determine in the particular instance, whether the case calls for 
 this kind of exceptional legislation, and what manner of construc- 
 tive notice shall bo sufficient to reasonably apprise the party 
 proceeded against, of the legal steps which are taken against him. 
 
 A case may be supposed, where the reason for departing from 
 the more safe rule of the common law is so plainlj- frivolous, or 
 the provision for notice so clearly colorable and illusory, that the 
 courts would bo called upon to declare the enactment a fraud 
 upon the constitution." 
 
 But it is still, the doctrine of the courts that this substituted 
 service is restricted in its legal efiect, and cannot be made available 
 for all purposes, a " It will enable the court to give effect to the 
 proceeding, so far as it is one in rem, but when the res is disjoosed 
 of, the authoritj^ of the court ceases. The statute may give it 
 effect so far as the subject matter of the i)roceeding is within the 
 limits, and therefore under the control of the state, but the notice 
 cannot be made to stand in the place of process, so as to subject 
 the defendant to a valid judgment against him personally." h 
 
 " In attachment proceedings, the publislied notice may be suffi- 
 cient to enable the plaintiff to obtain a judgment which he can 
 enforce by sale of the property attached, but for any other purpose, 
 such judgment woiild be ineffectual. The defendant could not be 
 followed into another state or country, and there have recovery 
 against him upon the judgment so obtained, as an established 
 demand. The fact that jorocess was not personally served, is a 
 conclusive objection to the judgment as a personal claim, unless 
 the defendant caused his appearance to be entered in the attach- 
 ment proceedings." c " Where a party has property in a state, 
 and resides elsewhere, his property is justly subject to all valid 
 claims which may exist against him there ; but beyond this, dut 
 
 a Pawlins v. Bird's Executors, 13 Joliu. 20G-207. 
 
 b Cooley on Const. 40-t. 
 
 c Cooley on Const. Lim. 401; Pawling v. Wilson, 13 John. 20G-7; Kilburu v 
 Woodworth, 5 John. 37; Robison v. Executors of "Ward, 8 John. SG; Fenton v 
 Garlock, Id. 191; Bates v. Delavan, 5 Paige, 290.
 
 486 COXSTITUTION.yL TROTECTION. 
 
 process o/'?rtu-, would require appearance or personal service, before 
 the defendant could be personally bound by any judgment ren- 
 dered." This cannot be done by the legislature directly, a 
 
 We have shown that our statutes includes divorce cases. The 
 courts of the state where the complaining party resides, have 
 jurisdiction of the subject matter by this substituted service of 
 process ; and if the other party is a non-resident, they must be 
 authorized to proceed without personal service of process. " The 
 publication which is permitted by the statute, is sufficient to justify 
 a decree in these cases, changing the status of the complaining party, 
 and thereby terminating the marriage ; and it might be sufficient 
 also to empower the court to pass upon the question of the custody 
 and control of the children of the marriage, if they were within its 
 jurisdiction. But a decree on this subject could only be abso- 
 lutely binding on the parties, while the children remained within 
 the jurisdiction ; if they acquire a domicile in another state .or 
 country, the judicial tribunals of that state or country would have 
 authority to determine the question of their guardianship there, h 
 
 " But in divorce cases, no more than in any other, can the court 
 make a decree for the payment of money by a defendant not 
 personally served with process, and not appearing in the case, 
 which shall be binding upon him personally. It must follow in 
 such a case, that the wife when complainant, cannot obtain a vahd 
 decree for ahmony nor a valid judgment for costs. If the defend- 
 ant had j)i'operty within the state, it would be competent to provide 
 by law for the seizure and appropriation of such property under 
 the decree of the court, to the use of the complainant, but the 
 legal tribunals elsewhere, would not recognize a decree for alimony 
 or for costs, not based on personal service or appearance. The 
 remedy for the complainant must generally, in these cases, be con- 
 fined to a dissolution of the marriage, with the incidental benefits 
 springing therefrom, and to an order for the custody of the chil- 
 dren, if within the state." c 
 
 a Same authorities and Todd v. Kerr, 42 Barb. 317; Ditson v. Ditson, 4 E. I. 
 87; Mansfield V. Mclntyre, 10 Ohio, 28. 
 
 h Cooley on Const. 405; Morrell v. Dickey, 1 John. Ch. loG; Woodworth v. 
 Spring, 4 Allen, 321; Potter v. Hiscox, 30 Conn. 508-0. 
 
 c Cooley 404.
 
 CONSTITUTIONAL PROTECTION. -187 
 
 Other metliocls of taking the private property of persons -with- 
 out their consent, are the statutes authorizing the taking of the 
 property of hinatics, idiots, and habitual drunkards, to be secured 
 for their future support, or for the payment of their debts ; also 
 statutes authorizing the taking of the property of infants to pro- 
 vide the means of their nurture, education or support, and, for 
 more profitable investment of the proceeds, and also, for the par- 
 tition or sale of the estates of tenants in common, and for a distri- 
 bution of such estates. All these matters are made subjects of 
 judicial investigation, and courts are the most appropriate depart- 
 ments with which to entrust the administration of the power. In 
 all such cases there will arise disputes of fact, and the judiciary are 
 the most appropriate power to inquire and judge as to what is just 
 and proper in the premises. In the cases of lunatics, idiots, and 
 infants especially, the parties in interest are regarded in theory, 
 as being incompetent to act in their own behalf, and courts are 
 therefore the most competent and impartial fonim and body to 
 inquire into, and to guard these interests. As to the power of the 
 legislature to grant it, and of the courts to exercise its administra- 
 tion, it has been adjudged by the court of dernier resort in this 
 state, a " It is clearly (says Chancellor Walworth,) Anthin the 
 powers of the legislature, as the parents pairia, to prescribe such 
 niles and regulations as it may deem proper, for the superintend- 
 ence, disposition and management of the property and effects of 
 infants, lunatics, and other persons who arc incapable of managing 
 theu- own affairs." 
 
 But it has been held, that an act of the legislature entitled "An 
 act for the better regulation and discipline of the New York State 
 Inebriate As^dum" was void, which authorized a Jadge of the Su- 
 Dreme Court, or county judge of the county in which an inebriate 
 .night reside, to commit such inebriate to said asylum upon the 
 •dfiidavits of two respectable practicing physicians, and two respec- 
 table citizens freeholders of such county, to the effect, that such 
 inebriate is lost to self control ; unable from such inebriation, to 
 attend to business, or is thereby dangerous to remaui at large ; 
 such commitment to be until the examination provided by law 
 shall be had, in no case for a longer period than one year. This 
 
 u Cov-iiaa ^ Van SurLiy, 20 Weml. 37:3.
 
 488 CON^STITUTIONAL rUOTECTION. 
 
 act authorized an ex parte proceeding, which deprived a man of 
 his hbertj ; it might be for one year, without an opportunity of 
 being heard in his defence ; without his day in court. This was 
 not regarded as due process of law, and was an act repugnant to 
 the constitution of this state and of the United States, a 
 
 AYhile it seems to be generally conceded, that general statutes 
 may be enacted to exercise these powers in all cases, it has been 
 greatly controverted, whether the legislature may enact a special 
 law that shall apply to control and direct in a single or individual 
 case, on the ground, that such an act would be the exercise of a 
 power, that in its nature partakes of the judicial, not legislative 
 authority; or more properly, is a mingling of legislative and judi- 
 cial power. A jealousy of the legislature, in the disposition to 
 exercise of such a power, seems to have prevailed to such an 
 extent in some of the states, as to have called for constitutional 
 protection against it. In the states of Yirginia, Maryland, Ken- 
 tucky, Indiana, Michigan, New Jersey, Missouri, Oregon, and 
 Nevada, are found provisions forbidding sjxcial laws, authorizing 
 the sales of the estates of minors and other persons of legal disa- 
 bihty. In the constitution of some of the other states, there is 
 a prohibition against all special laws, where general laws can be 
 made applicable. But in the state of Massachusetts, it has been 
 held b by its courts, that notwithstanding there was a general 
 statute on the subject by the legislature, the legislature could, by 
 the use of a parental or tutorial power for purposes of kindness, 
 without interfering with the rights of other persons, legislate to 
 exercise this power by a special act. And to the same effect, has 
 been the judicial view of the courts in the state of Ohio; c and such, 
 was there said, to be the power of the English parliament ; and it 
 seems, that the rule in this state is, that while the legislature 
 cannot generally, constitutionally enact a law which shall transfer 
 an estate or the beneficial use of property of one person to another, 
 there exists an exception in that class of cases, where the rights of 
 third persons are not concerned, as in cases of infants, lunatics, and 
 others, where it can be legally presumed, that the owner of tho 
 
 a Matter of Jones, 30 How. Tr. E. MG. 
 b Eice V. Parkman, 16 Mass. 331. 
 c Carroll v. Olmstead, 16 Ohio, 260.
 
 CONSTITUTIONAL PROTECTION. 489 
 
 property himself, would have given his consent to the beneficial 
 act, and so to use his property, if he had been in a situation to 
 act for himself ; and in cases where the act goes no further than 
 to exercise that paternal or tutorial power over the persons and 
 papers of infants and others, incompetent to act for themselves. 
 Tliis power existed at common law ; it was the inherent right of 
 the sovereign power ; Jind it may be therefore exercised by general 
 laws, or, under peculiar circumstances, by a special act of legisla- 
 tion.rt In New Hampshire, a dilierent interpretation has been had a i 
 to the effect of special legislation on such subjects, where general 
 laws exist ; and under the provisions of the constitution of tliat 
 state, h 
 
 This species of legislation, says Judge Cooley, in his Avork on con- 
 stitutional limitations, c may perhaps be properly called prerogative 
 remedial legislation. It hears and determines no rights ; it 
 deprives no one of his property ; it simply authorizes one's real 
 estate to be turned mto personal, on the application of the person 
 representing his interest, and under such circumstances, that the 
 consent of the owner, if capable of giving it, would be presumed. 
 It is in the nature of the grant of a privilege to one person, whicL 
 at the same tune, affects the rights of no other person injiiiiously 
 
 It was laid down as doctrine in the Supreme Ccrirt of this statt 
 by Bronson J.,(Z (affirmed in ths court of errors) as follows: "In con- 
 sequence of the imperfection which per^-ades all things appertain- 
 ing to man; cases will sometimes arise which have not been provided 
 for by general laws, and ■;7mch call for the exercise of a higher 
 power than that possessed by courts of justice ; and if individual 
 interest can, under no possible circumstances, be changed or 
 affected by private acts of the legislature, made without consent, 
 it may happen, that an infant, with a large estate in expectancy, 
 will be utterly destitute of the means of education and support. 
 Although the legislature ought not to interfere upon light conside- 
 rations, I cannot think that there is any constitutional impedi- 
 ment in the way of enacting private laws affecting individual 
 
 a Cochran v. Vuu Surlay, 20 Wend. 380; Wilkiuson v. Lelanil 2 Pet. G57 
 Ervine's Appeal, 16 Peuu, St. K. 256. 
 
 h Opiniou of Judges, 4 N. H. 572. c T. 10 3. 
 
 d Cochran v. Van Surlay, 15 "Wend. 411, 
 
 62
 
 490 CONSTITUTIOX.VL PrvOTECTION. 
 
 interests, where proper care is taken to preserve the substantial 
 rights of the parties." 
 
 But the rule is clearly otherAvise in cases where the legislature 
 assumes to exercise the power of inquiry into facts, and to deter- 
 mine rights by legislation between parties adversely claiming 
 interests, as between debtor and creditor, or as to clauns to real 
 estate, or to authorize a sale of real estate to satisfy demands in favor 
 of a party that have not been judicially determined. This is clearly 
 attempting to exercise judicial power, and is adjudging and clii'ecting 
 the application of one person's property to another. It is so clearly 
 the exercise of a power which has never been conferred upon the 
 legislatiu'e, that their act in such or similar cases, would be void, a 
 
 And so it was held in the Court of Appeals in this state, in a 
 case where lands had been devised to trustees for the use of the 
 testator's daughter for life, with remainders in fee to her issue living 
 at the time of her decease, and for want of such issue, to all the 
 grand-children of the testator then living. During the life of the 
 daughter, (she having children living,) a statute was passed by the 
 legislature, authorizing the trustees with the approbation of a 
 Judge of the Supreme Court, to sell the lands, and out of the 
 proceeds to x^ay their commissions, costs, and expenses, and all 
 assessments and liens on the lands, and to invest the surplus in secu- 
 rities to be held in trust, the same as if the lands were held under the 
 will. It was held by the court, that no necessity for the act of the 
 legislature having appeared, either in the statute or aside from it, on 
 account of the infancy or other incapacity of the persons living 
 who had vested or contingent interests in the estate, that the act 
 was not within the powers delegated to the legislature, and that 
 the trustees could give no title to the lands sold in pursuance of 
 it. h It will doubtless often happen, in a government like our's, 
 where the separate powers of the several departments are not 
 ex]^)ressly defined and marked out, that even the legislative depart- 
 ment may pass acts of this character without that due considera- 
 tion of the proper boundaries which marks the separation of 
 legislative, from judicial functions. This is also the estabhshed 
 rule in the state of Pennsylvania, c 
 
 o Lane v. Dorman, 3 Scam., Ill, R. 242, 6 Mich. K. 193. 
 
 h Powers v. Bergen, 6 N. Y. 338. c Ervine's Appeal, IG Penu. St. E. 256.
 
 CONSTITUTIONAL rilOTECTION. 491 
 
 Tho courts of rcmisylvunia have spokuu iii most emphatic terms 
 against special acts of legislation that affect individual rights, a 
 they say : " Wheu in the exercise of proper legislative powers 
 general laws are enacted which bear, or may bear, upon the whole 
 community, if the}' are unjust, and against the spirit of the con- 
 stitutioij, the whole connnunity Avill be interested to procure their 
 repeal, in a voice potential, and that is the great security against un- 
 just and unfair legislation. But when individuals are selected from 
 the mass, and laws are enacted atiecting their propert}', without sum- 
 mons or notice at the instigation of an interested party ; who is to 
 stand up for them, thus isolated from the mass, in injury and 
 injustice '? Where are they to seek rehef, from such acts of despotic 
 power ? They have no refuge but in the courts, the only secure 
 place for determining conflicting rights by due course of law. 
 But if the judiciary give way, and confesses itself too weak to 
 stand against the aiitagonism of the legislature, and the bar ; one 
 independent, co-ordinate branch of the government, will become 
 the subservient handmaid of another ; and a quiet insidious revolu- 
 tion will be effected in the administration of the government, 
 while its form on paper remains the same." 
 
 Our constitutions were established for the protection of per- 
 sonal safety, and private property. They addi'ess themselves to 
 the common sense of the people, and ought not to be filed away 
 by legal subtleties. They have their foundations in natural justice; 
 and, without their pervading efficacy, other rights would be useless. 
 If the legislature possessed an irresponsible power over every 
 man's private estate, whether acquired by will, by deed, or by 
 inlieritance, all inducement to acquisition, to industry and economy 
 would be removed. The principal object of government is tho 
 administration of justice and the promotion of morals. But if 
 property is subject to the caprice of an annual assemblage of 
 legislators, acting tumultuously, and without rule or precedent ; 
 and without hearing the party, stability in property will cease, and 
 justice be at an end. When the the constitution has interdicted 
 the government from taking private property for puU'ic use without 
 compensation, how can the legislature take it and dispose of it 
 according to their will ? 
 
 a Id. 268.
 
 i92 COXSTITUTIONiUj rE.OTECTI0N. 
 
 Under our system, as lias been already said, the legislature can 
 perform no judicial functions; it is their province to enact laws; 
 that of the judiciary to expound them ; and that of the executive 
 to enforce them. The judicial power of the state is its whole 
 judicial power ; the legislature Ciinnot exercise any part of it ; 
 there is no such thing under the constitution as a mixed power, 
 partly judicial, partly legislative ; were it so, it must be exercised 
 in common ; in a joint body, for the juchciary possess as much 
 power to legislate, as the legislature to adjudicate, a 
 
 The framers of the constitution, wisely sought to distribute the 
 different powers of government, and to keep them separate and 
 distinct, and each withm its own limits. In practice however, it 
 is sometimes difficult, if not impossible, to lay" down rules which, 
 in all cases, shall determine the precise limits of constitutional 
 restraint, so that in the exercise of the duties of one of the 
 branches, it may not overstep its limits, and infrmge upon the 
 peculiar and appropriate functions of another department. These 
 errors, perhaps, are more liable to occur on the part of the legis- 
 lative department than any other, because their powers are less 
 particularly defined ; but with a firm and independent judiciary to 
 correct them, no great evils are likely to occur in that way. h 
 
 a Greenough v. Greenough, 11 Penn. St. K. 19-4. 
 h Denny v. Mattoon, 2 Allen 361.
 
 CON'STITUTIUNAL I'ltOTECTION TO PERSONAL LIBERTY. 493 
 
 CHAPTER XYI. 
 
 OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. 
 
 The constitutioual protections provided for tlie personcal liberty 
 of the citizen, are to be found in both the national and state con- 
 stitutions, and are expressed in similar language. " The privilege 
 of the writ of habeas corpus shall not be suspended, unless, when, 
 in cases of rebeUion oi- mvasion, the public safety require it." 
 Const. U. S., Art. 1, §9; Const, of N. Y. of 184G, Art. 1, §4. 
 " The citizens of each state shall be entitled to all privileges and 
 immunities of citizens of the several states." Const. U. S., Ai't. 4, 
 §2. "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 i^rescribed by laAv." Id., Art. 3 of the Amend- 
 ments of the Const, of 0. S. " The right of the people to be 
 secure in their persons, houses, papers and efiects, against unrea- 
 sonable searches and seizures, shall not be violated, and no war- 
 rants shall issue but upon probable cause, supported by oath or 
 alhnnation, and particularly describmg the place to be searched, 
 and the person or thing to be seized." Id., Art. 4 of Amendments. 
 '• No person shall be held to answer for a capital or otherwise in- 
 famous crime, unless upon presentment or indictment of a grand 
 jury, except in cases arising in the land or naval forces, or in the 
 militia when in actual service in time of war, or public danger, 
 nor shall any person be subject for the same offence to be twice 
 put in jeopardy of hfe or limb ; nor shall be compelled m any 
 criminal case to be a witness against himself, nor be deprived of 
 life, liberty or property without due process of law, ttc." Id., 
 Art. 5. 
 
 " In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial by an impartial juiy of the state and 
 district wherein the crime shall have been committed, which 
 district, shall have been previously ascertained by law ; and to be 
 informed of the nature and cause of the accusation ; to be con- 
 fronted with the witnesses against him ; to have compulsory pro-
 
 49-i CONSTITUTIONAL PEOTECTION TO PERSONAL LIBEKTY. 
 
 cess for obtaiuing witnesses in liis favor ; and to liave the assistance 
 of counsel for liis defence." Id., Art. G. " Excessive bail sliall 
 not be required, nor excessive fines imposed, nor crael and unusual 
 punishments inflicted." Id., Art. 8. "Neither slavery nor involun- 
 tary servitude, except as a punishment for crime whereof the 
 party shall have been duly convicted, shall exist within the United 
 States, or any place subject to their jurisdiction." Id., Art. 13. 
 
 " ^yi persons born or naturahzed in the United States, and sub- 
 ject to the jui'isdiction thereof, are citizens of the United States, 
 and of the state wherein they reside. No state shall make or en- 
 force any law which shall abridge the privileges or immunities of 
 citizens of the United States, nor shall any state deprive any per- 
 son of life, liberty or property without due process of law, nor 
 deny any person within its jurisdiction an equal protection of the 
 laws." Id., Art. 1-1. By the constitution of this state adopted in 
 184G, it is provided, " that no member of this state shall be dis: 
 franchised, or deprived of any of the rights or privileges secured 
 to any of the citizens thereof, unless by the law of the land, or the 
 judgment of his peers." Art. 1, § 1. The privilege of the writ of 
 liaheas covpus, and the prohibition against excessive bail, excessive 
 fines, and crael and unusual punishments, are the same as in the 
 United States constitution, and to which is added, the provision 
 that Avitnesses shall not be unreasonably detained. Id., §§ 4 and 5. 
 " No person shall be held to answer for a capital, or otherwise in- 
 famous crime, (except in cases of impeachment, and in cases of 
 militia when in actual service ; and the land and naval forces in 
 time of war, or wliicli this state may keep with the consent of 
 congress in time of peace ; and in cases of petit larceny under the 
 regulation of the legislature,) unless on i)resentment or indictment 
 of a grand jury. And in any trial in any court whatever, 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 process of 
 law," &c. Id., § 6. 
 
 Perhaps, in no government in the world, does the citizen find 
 such full, hberal and ample protection, and so large a share of
 
 CONSTITUTIONAL mOTECTlON TO PERSON.^^ LIBERTY. 495 
 
 civil and political liberty, as a citizen of the United States, who is 
 such, by reason of being a citizen of any one of the sovereign 
 states that compose the Union, as also, those "who are citizens of 
 the particular states ■wherein they reside ; and all persons are such 
 citizens, and entitled to these protections and privileges, who have 
 either been born, or who have been naturalized in the United 
 States, or in any of the states, or who are subject to the jurisdic- 
 tion of the United States. 
 
 At what time the right to personal Uberty first became a subject 
 of political concern in England, belongs to history. The manner 
 in which it was finally secured l)y constitutional ("nactments ; the 
 spirit and success Avith which it was defended when assailed by 
 arbitrary princes ; the elevating eilects upon personal character 
 obtained by its enjo3-ment to the citizen ; are among the influences 
 which controlled the American statesmen in giving it to the citizen 
 of the American repiiblics, secured by the fundamental laAv. 
 
 We do not propose to enter upon the history of the agitations, 
 strifes, and struggles of the masses, with the ruling povrers of gov- 
 ernment, either in our own countr}-, or in that from which we derived 
 many of our laws; and which resulted in obtaining for the citizen 
 the constitutional securities and rights to civil and political liberty, 
 which we have above copied from the fundamental law of these 
 governments. Nor shall wo attempt in this work, to give the ex- 
 planations of causes, by which one joortion of a people, created 
 by a just and impartial Creator to an equality of rights with every 
 other portion, and endowed by Him with the unahenable rights of 
 life, liberty and the pursuit of happiness, became, in the process 
 of time, reduced to the unhappy condition of serfs, villeins, menials 
 and slaves ; the many submitting themselves to servitude for the 
 few, called the governing classes. These matters belong to the 
 historian, rather than the law writer. It will be our duty to as- 
 sume, that every citizen is now, in regard to these sacred rights 
 and privileges, entitled to an equal protection ; that these rights 
 are just and natural ; — and, that the constitution as we find it, is 
 to have a favorable interpretation, as to all its provisions, in favor 
 of the liberty of the citizen. 
 
 Although we have chosen, not to enter into the history of the 
 maimer of securing this right to personal liberty to the citizen, we
 
 49G CONSTITUTIONAL PROTECTION TO PERSONAL LIBERTY. 
 
 cannot well discuss it as a natural riglit, without a slight reference 
 to its value. It is a right, as has been well declared, unalienable 
 in its nature ; inherent in eveiy man, woman, and child ; and of in- 
 estimable value in giving character and dignity to the citizen. 
 
 "Man," says Montesquieu, "is born in society, and there he re- 
 mains." But as a member of society, in the exercise of his right 
 of hberty, as well as his other absolute rights, he becomes subject 
 to such Umitations, and to such penalties for the violations of the 
 rights of others, as the common welfare of all, and the just ends 
 of government may require. 
 
 Government, is essential to the preservation of individual rights, 
 including that of liberty, and is the necessity of every society. 
 So, that, properly to enjoy the privileges of liberty, the citizen 
 needs the protection of government. It cannot be otherwise than 
 flattering to the pride of every intelligent American citizen as he 
 reads the history of the nations of the earth, and estimates their 
 condition, to mark the progress, and estimate the advantages of the 
 liberalizing and elevating influence exerted upon the character of 
 a people where the rights of personal liberty, and the equality of 
 all men before the law, is fundamentally secured. It is seen to 
 impart not only vital energy to the government itself, but it adds 
 a stimulus that invites the citizen into enterprises upon the con- 
 fidence of governmental protection ; stimulates his ambition to act 
 upon a sense of individual independence, which a knowledge of his 
 high nature, and noble destiny alone can inspire ; and induces him 
 to pursue happiness in all the unobstnicted paths which either 
 pleasure or profit may tempt him to follow ; and employ all his 
 powers in the exercise of that liberty which secures the highest 
 enjoyments of life. 
 
 The limitations to the riglit to j^ersonal liberty, are either of a 
 public, or of a private nature. Among those which are public, is 
 that of individual punishment for the commission of crime, and 
 this punishment, is effected through the instrumentality of the 
 courts. " A court of justice, it has been well said, represents the 
 judicial majesty of the people. Through the forms of law, it utters 
 its mighty voice in judgment. Property, character, liberty, and 
 life itself, are involved in the issues that are brought before it, and 
 it needs all the aid wdiich composure can lend to reason, to enable
 
 CONSTITUTIONAL PIIOTECTION TO TEllSON.VL LIBERTY. 497 
 
 It to discharge wisely, and impartially, its manifold and momentous 
 duties." a Under this general term, or class of crime, is intended 
 to be included all public offences, down to the lowest gi-ade of 
 misdemeanors, including also contempts committed against courts, 
 and other public l)odies who are invested with authority to pre- 
 seiTe order. 
 
 It follows, from the submission of the individual t(3 the govern- 
 ment of the state for his protection, that these rights to the enjoy- 
 ment of personal liberty, are not so absolute, that they may not be 
 lost or forfeited, and it is entrastedto the exercise of governmental 
 authority to determine, for what causes these rights and privileges 
 shall cease to be enjoyed by the citizen. These rights and privi- 
 leges can be properly held only, to aid in the maintenance and 
 administration of governmental authority, for the safety and well- 
 being of society. AVhen however, it shall happen that the citizen, 
 or a class of citizens, banding themselves together, shall so act as 
 to subvert and destroy society, there can be no question as to the 
 right and duty of those charged with the exercise of the preroga- 
 tive powers of sovereignty, to disarm the guilty citizen, by dis- 
 franchising him of those privileges, h 
 
 "When the citizens of a state repudiate the charter or constitu- 
 tion under which they have been created a pohtical coi-poration, 
 and under wliich they have been entitled to all the natural and 
 mherent pohtical rights which it allows and protects ; and re- 
 nounce their political connection Avitli, and allegiance to, the 
 authority which has so i:)rotected them, and levy war upon it, that 
 they may overthroAv and destroy it, and establish themselves in a 
 new organization upon its ruins ; there can be no question that 
 their political franchises are forfeited, and that they, as citizens, 
 are left to be dealt with at the mercy of that sovereignty which 
 they attempted to destro}-. 
 
 This position is avcU illustrated m the recent rebelhon, in which 
 the citizens of certam states of the Union, attempted, and assumed 
 by a ncAV organization, b}* their states, to renounce then- political 
 connection with, and allegiance to the people and government of 
 the United States ; recalled their senators and representatives fi'om 
 
 a Hurd on Personal Liberty, 7. 
 
 h Tifiauy's Government and Const. 315. 
 
 G3
 
 498 CONSTITUTIONAL PROTECTION TO PERSONAL LIBEETY. 
 
 the congress of the Union ; threw up their constitutions, or char- 
 ters under -svliich they existed and exercised pohtical rights in 
 respect to state and national interests ; adopted other constitu- 
 tions upon their OAvn assumed authority ; expelled by force from 
 tlieh limits, all those who attempted to exercise the authority ol 
 the United States therein ; tore down the flag of the Union ; 
 hoisted the flag of rebellion in its place ; made war upon the na- 
 tion ; and exerted their utmost power to destroy it ; claimed and 
 were recognized as having belligerent rights ; earned on the war 
 for years, and until overcome and subdued by the power of the 
 nation they renounced and warred against ; and only laid down 
 then- arms, because they were conquered and utterly subdued. 
 These acts, committed by them against the authority of the nation, 
 is, in its nature, treason; and a forfeiture of all their political rights 
 to governmental protection. The right to protection as a citizen, 
 cannot co-exist with such acts of rebellion in the same individual. 
 The commission of an act of rebellion against the government, ex- 
 tinguishes, and forfeits the right of protection, a 
 
 Of the various statutes which authorize, direct, or limit the 
 amount of punishment for offences ; and the right of the state to 
 inflict it ; presents a subject that belongs to works of practice, or to 
 elementary commentaries upon the philosophy of law and govern- 
 ment. We are treating of constitutional rights as they exist under 
 our system, and to that end, shall assume that system to be the 
 best. 
 
 The rights and duties existing between the state under consti- 
 tutional government, and the citizen of the same government, are 
 correlative. While it is the duty of the state to protect the citizen 
 in all his rights, including that of personal liberty, it is equally the 
 duty of the citizen to support the state, by yielding to all its rea- 
 sonable demands, not only of his means, but whenever in the 
 judgment of the state, the public emergency requires it, it is within 
 the power of the state to compel, and the duty of the citizen to 
 jdeld obedience to the demands of the state; to enter into her ser- 
 \dce, to defend or protect and aid the state with his personal service. 
 This is but a reasonable limitation upon his personal hberty, and 
 is but a fulfilment of the duty due from him for governmental pro- 
 tection. 
 
 aid. CIC.
 
 CONSTITUTIOK.VL niOTECTION TO TERSONM. LIBERTY. 499 
 
 CONTEMrXS. 
 
 There are Viirious other conditions, which limit the enjoyment of 
 the personal Hberty of the citizen, arising out of the duties he 
 owes to the society of which he is a member. Among these, is 
 that of obedience to a subpoena to appear and testify as a witness 
 in court, especially in criminal cases, in which he may be com- 
 pelled to enter into a recognizance to appear at a futui'e day to 
 give evidence in behalf of the state, and in case of his refusal, he 
 may be committed to prison, a So too in civil cases, a refusal to 
 obey, subjects the citizen to liability to punishment for contempt, 
 which may extend to imprisonment ; h such power, harsh as it may 
 seem, is necessary for the good order of the government. Black- 
 stone says : " Laws without competent authority to secure their 
 administration from disobedience and contempt, would be vain and 
 nugatory. A power therefore in the supreme courts of justice to 
 suppress such contempts by an immediate attachment of the 
 offender, results from the first principles of judicial establishments, 
 and must be an inseparable attendant upon every superior 
 tribunal." c 
 
 A WTiter well observes, " The judiciary would hold but a barren 
 scepter, if their powers ceased with declaring the law. They are 
 invested with a power to enforce, as well as to pronounce their 
 judgments. In many cases of contumacious conduct, they secure 
 obedience to their orders by attachment, and commitment of the 
 delmqucnt party. Imprisonment in such cases, is not regarded 
 merely as a pimishment for contempt, but as a necessary means of 
 enforcing compliance with the decision of the court." rf The 
 power to punish, by the courts for contempts, existed not only at 
 Qommon law, but is expressly conferred by statute, e "Every 
 court of record shall have power to punish as for criminal con- 
 tempt, persons guilty of either of the following acts, and no othei-s. 
 1. Disorderly, contemptuous or insolent behavior committed dur- 
 ing its sitting, in its immediate view and presence, and dii'ectly tend- 
 ing to interrupt its proceedings, or to impah- the respect due to 
 
 a 2 Rev. Stat., 709 § 25. h Id. 278, ^ 10. 
 
 c 4 Black Com. 286. 
 
 d Hurd on Personal Liberty. 9. 
 
 e 2 Rev. Stat. 278, §§ 8 to 13.
 
 500 COXSTITUTIOX-U:. rKOTECTION TO TERSONAL LIBERTY. 
 
 its autlioiit}-. 2. Any breach of the peace, noise or other dis- 
 turbance directly tending to interrupt its proceedings. 3. Wilful 
 disobedience of any process or order, lawfully issued or made by 
 it. 4. Eesistance wilfully offered by any person to the lawful 
 order or process of the court. 5. The contumacious and unlaw- 
 ful refusal of any person to be sworn as a witness, and when so 
 sworn, the like refusal to answer any legal and proper interroga- 
 tory. 6. The publication of a false, or grossly inaccurate report 
 of its proceedings ; but no court can punish as a contempt, the 
 publication of true, full and fan- reports of any trial, argument, 
 proceeding, or decision had in such court. 
 
 § 9. Punishment for contempts may be by fine or by imprison- 
 ment in the jail of the county where the court may be sitting, or 
 bothj in the discretion of the court, but the fine shall in no case 
 exceed the sum of $250, nor the imprisonment thirty days ; and 
 when any person shall be committed to prison for the nonpayment 
 of any such fine, he shall be discharged at the end of thirty days. 
 
 § 10. Contempts committed in the immediate view and presence 
 of the court, may be punished summarily ; in other cases, the party 
 charged shall be notified of the accusation, and have a reasonable 
 time to make his defence. 
 
 § 11. "Whenever any person shall be committed for any contempt 
 specified in this article, the particular circumstances of his offence 
 shall be set forth in the order or warrant of commitment. 
 
 § 12. Nothing contained in the preceeding sections shall be con- 
 strued to extend to any proceeding against parties or ofiicers as 
 for a contempt for the purpose of enforcing any civil right or remedy. 
 
 § 13. Persons punished for contempt under the preceeding 
 provisions, shall, notwithstanding, be liable to indictment for such 
 contempt if the same be an indictable oftence, but the court before 
 which a conviction shall be had on such indictment, shall, in 
 forming its sentence, take into consideration the punishment before 
 inflicted. By another provision of the Eevised Statutes, a every 
 person who shall be guilty of any criminal contempt, (above enu- 
 merated) shall be liable to indictment therefor as a misdemeanor, 
 and punished with the same punishment as other misdemeanors. 
 
 This power to jnmisli for contempts, is also extended by statute 
 
 a Rev. Stat. G92, § H.
 
 CONSTITUTIONAL PROTECTION TO PERSONAL LIBERTY. 501 
 
 to referees aiuT other oflleers cxerci.siiig judieiiil duties. Legisla- 
 tive bodies, like judicial tribunals, are also authorized to punish 
 persons, whether members of their body or others, who are guilty 
 of any contempt towards it, by disorderly or contumacious beha- 
 vior m its presence, or by any wilful disobedience to its orders, and 
 it may be observed, that the contempts punishable by a legislative 
 assembly, are not confined to proceedings in its judicial capacity, 
 but may arise in the course of its legislative, or other functions, a 
 
 The criminal jurisdiction of a legislative assembly, is much more 
 extensive than the civil courts, or than that of ihe courts, embrac- 
 ing the misconduct or disorderly behavior of its o\\n meudjers, as 
 well as misdemeanors, breaches of privilege, and other offences 
 committed by other persons. In both cases, the offence may be 
 committed either against the assembly itself, or against its members 
 individually. But unlike the powers of a court, which are limited 
 by the letter and control of the statute or common law, the powers 
 of legislative assemblies, seems to be subject to no control or 
 restraint from any appellate poAver ; and within the sphere of this 
 power, it depends solely upon theii" own absolute will and pleasure. 
 No other tribunal can control their action, set aside their judg- 
 ment, or revise their proceedings. 
 
 This power, as a general rale, will not be greatly abused, inas- 
 much, as by the theory of our government, the legislative power 
 should be, and doubtless generally is, confided to men eminent 
 for talents, cluu'acter, experience and virtue, and are selected by 
 the people themselves. If the conduct of any particular body 
 shah, be found an exception to the rule based upon this theorj-, 
 the evil is temporaiy, and its correction Hes with the people them- 
 selves. The power it is true, if exercised by con-upt or incompe- 
 tent members, is dangerous in its actitin, and the injured party is, 
 in degree, remediless. 
 
 This concludes all Ave propose to say on the subject of con- 
 tempts of courts, which subject, is one of the constitution a'\ quali- 
 fications, or limitations of the right of personal liberty of the 
 citizen, except as to contempts committed agamst legislative l:>odies, 
 which will be treated of in- a separate chapter, by itself. 
 
 a Cushing's Legislative Assemblies, § 655.
 
 502 CONSTITL'TION-VL rPLOTECTION TO PERSONAL LIBERTY. 
 
 HABEAS CORPUS. 
 
 The privilege of the writ of habeas corpus, is the birthright of 
 eveiy citizen, fundamentally secured by the national, as well as 
 the state constitutions. " Personal liberty," says Blackstone, 
 " consists in the power of locomotion, of changing situation, or of 
 moving one's person to whatsoever place one's own hiclination 
 may direct, without imprisonment or restraint, unless by due 
 course of law." It is a right strictly natural, which the laws have 
 never abridged without sufficient cause, and in this constitutional 
 government, it cannot be abridged at the mere discretion of the 
 magistrate. The writ of habeas corpus is defined by Hurd, a "to 
 be that legal process, which is employed for the summary vin- 
 dication of the right of personal liberty when illegally restrained." 
 It takes its name from the emphatic words which it contained 
 when it was written in latin. It was borrowed by us in our consti- 
 tutions and statutes from the English statute of 31 Charles II, ch. 
 2, which provided the gi-eat remedy for the violation of personal 
 liberty, by the writ of habeas corpius ad snhjicicndum and which 
 was often denominated another Magna Chaita of the kingdom. 
 
 Employed, as this writ ever has been, to vindicate the right of 
 personal liberty, by whatever power infringed, it became insepar- 
 ably associated with that right ; and, in proportion as the right 
 has been valued, so has been the writ by which it has been 
 defended. It was its grateful office, which commended this writ to 
 the favorable regard of the people, and finally dignified it by its 
 name, the writ of habca^s corpus, b 
 
 This writ and its privileges, is not only secured by the national 
 and state constitutions, but in this state also, by the statute which 
 prescribes its form, and which also provides that a penalty of one 
 thousand dollars, shall be forfeited to the party aggrieved, against 
 the court or officers severally, who shall refuse to grant such writ 
 when legally applied for. c The forms of proceeding, and the 
 variations in practice applicable to different conditions of the 
 applicant, are also provided by statute, but these belong rather to 
 the practice than to the discussion of the question of constitutional 
 privilege. 
 
 a Hurd on Habeas Corpus, 143. h Id. 144. 
 
 c 2 Eev. Stat. 565, § 46.
 
 CONSTITUTIONAL TROTECTION TO TERSONAL LIBERTY. 503 
 
 Tliis provision was introduced into the constitution, as one 
 greatly essential to the personal liberty of the citizen. The 
 necessity and importance of such a writ was well ai)preciated 
 under the British system, and an English author says, " to bereave 
 a man of life, or by violence to confiscate his estate, without accu- 
 sation or trial, would be so gross and notorious an act of despo- 
 tism, as must at once convey the alarm of tyrrany throughout 
 the kingdom." But confinement of the person, by secretly hurry- 
 ing him to the jail, where his sufierings are unkjiown and forgotten, 
 is a less public, a less strildng, 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 coiyus ad subjiciendum, which is directed to one, detaining 
 another, commanduig the production of the person detained, and 
 the cause of such capture and detention, adjiciendum, subjicien- 
 dum, et recipiendum, to do, submit, and receive, whatever the court 
 or ofl&cer awarding such writ should consider in that behalf, a 
 
 But even this natural and constitutional right of personal liberty, 
 with all its securities and protections, like all other rights and 
 privileges of the citl^xn, is subject to qualification and hmitatiou 
 for good of the society, and the protection of that government, of 
 which he has submitted himself to become a member, for causes 
 of both a public, and those of a private nature. 
 
 Government, like every other contrivance of human invention, 
 has a specific end ; but political government, or the government 
 established by society, does not preclude that government that 
 existed by nature before the organization of society ; nor that which 
 is based on the rights of nature, tlui right of government by the 
 parent of his oH'spring ; nor of those kindred, though perhaps 
 delegated rights, which are substitutes for the parental relation, 
 that of instructor and pupil, master and servant. Therefore the 
 theoretic surrender, or resignation by each citizen of a portion of 
 natural rights to society to confer the needful powers of govern- 
 ment, for the benefit of all ; does not'includo the patriarchal or 
 parental poAver of government. These are rights which cannot 
 with any propriety be yielded up, without doing violence to nature. 
 
 Those limitations of this right which are of a public nature, 
 
 a Smith's Com, 3fi5.
 
 50-i rOVTEFi OF GOYEENME^'T OYER PERSONAL LIBERTY. 
 
 Judge Cooley, iii liis treatise, a cliYides into five sub-classes. 1. 
 Those imposed to preYent tlie commission of crime which is 
 tlu'eatened. 2, Those in pimishment of crime committed. 3. 
 Those in pimishment of contempts of courts, or of legislative 
 bodies, or, to render their jurisdiction effectual. (This class we 
 have ah'eady considered.) 4. Those necessary to enforce the duty 
 citizens owe in defence of the state. 5. Those which may become 
 important to protect community against the acts of those who, 
 by reason of mental infirmity, are incapable of seK-control. 
 
 All these limitations, are well recognized and understood ; but 
 their particiilar discussion does not belong to our subject, especi- 
 ally those under the second class ; that of the liability to arrest and 
 imprisonment on the charge of, or conYiction for crime, for which 
 the books of practice must be consulted. Under this 5th class 
 are included, some, who are unable by reason of their mental con- 
 dition, to render to the state in return, any aid as a compensa- 
 tion for the protection they receive, such as lunatics, idiots and 
 helpless paupers. These, no less than the responsible citizen ; have 
 a claim upon the fostering care of the state. As has been well 
 said, " the iiTesponsible lunatic must not be allowed a liherty 
 fraught with danger to himself and others, nor must he, or the 
 idiot, be left exposed to the cupidity and rapacity of designing 
 and heartless relatives. Neither must the invalid pauper, be suf- 
 fered to starve, in a land overflowing with plenty." Z> 
 
 All ci\dlized governments recognize the obligation of providing 
 for these classes of citizens ; and just in proportion to the progress 
 of society ; the advance of civilization ; and the amehorating in- 
 fluences of Christianity ; do we behold the gratifying evidence of 
 that just sense of this public duty, by the erection by government 
 of asylums and work-houses for these unfortunate classes. These 
 humane institutions, are taking the place of the old barbarous sys- 
 tem of chains, and shackles, and whipping for the lunatic, and of 
 a sale of the pauper to the lowest bidder, to any unfeeling keeper, 
 for his support. 
 
 " The restrictions of personal liberty in these cases, are designed 
 for the benefit of the unfortunate subjects, and for the safety of 
 
 a Cooley on Const. Limitations 339. 
 h Hurd on Personal Liberty, 10.
 
 HUSB.VND AND "WIFE. 505 
 
 the community ; and ceaso when the cause -which calls for thoni, 
 is removed ; as when the hiuatic recovers his reason, or the pau- 
 per becomes possessed of property adequate for his maintenance, 
 by gift or otherwise, or gains sufficient health and strength to earn 
 a support." 
 
 These obligations of government, are recognized by statutes, in 
 I'ais and other states, the extensive provisions whereof, it is not a 
 part of the design of this Avork to copy. 
 
 Those lunitations which are of a private nature, are divided by 
 him into eight sub-classes, but which are, in this state, really 
 reduced to six, and they are those which spring from the helpless 
 or dependent condition of uidividuals in the various relations of 
 life. We cannot present these better than in the language of that 
 learned author, 
 
 1. " The husband, at common law, is recognized as having legal 
 custody of, and power of control over the wife, with the right to 
 direct as to her labor, and insist upon its performance. The pre- 
 cise nature of the restraints which may be imposed by the hus- 
 band upon the wife's actions, it is not easy, fi'om the nature of the 
 case, to point out and define ; but they can only be such gentle 
 resti-aints upon her liberty, as her improper conduct may seem to 
 require, a The general tendency of public sentiment, as well as 
 modern decisions, has been to do away with the arbitrary power 
 which the husband was formerly supposed to possess, and 
 to place the two sexes in the married state, more upon a footing of 
 equahty. h It is beUeved that the right of the husband to chastise 
 liis wife, under any cii'cumstances, would not be recognized in this 
 country, and in any case, his right to control would be gone, if he 
 should conduct himself towards the wife in a way not warranted 
 by the relation, and which should render it improper for her to 
 cohabit with him, or if he should be guilty of such conduct as 
 would entitle her imder the laws of the state to a divorce. His 
 right to control is also gone, when the parties hve apart under 
 articles of separation." 
 
 There is no relation in life, in which we can find so little of 
 reliable, uniform, settled law, controlUng the rights of parties, as 
 
 a 2 Kent Com. 181. 
 
 b Statutes of 1818, ISW and 1862, as to rights of married women. 
 
 64
 
 OOG HUSE.VXD .VXD WIFE. 
 
 this. It was the first relation formed by man, it is tlio first in the 
 order of natiu'e ; it is the most intimate, the most tender, and 
 should possess the nearest possible equahty of powers and natural 
 rights. Reasoning from the order of creation, and from nature, 
 we find the man endowed with superior physical power, and per- 
 haps for this reason, he has assumed, what in all countries has 
 been recognized as his right, and would seem to be demanded as his 
 duty, the protection of woman ; and it is perhaps also for this 
 reason, that it has been conceded to him, the right of private 
 restraint over the wife. The right to exercise this restraint, and 
 to what extent, are questions Avhicli remain almost as much un- 
 settled by the municipal, as by the moral law. This refers, doubt- 
 less, to the exercise of physical restraint ; but tliis by no means 
 settles the moral question, that the oiecessify of restraint, does not 
 as often apply to the husband as to wife ; and yet in that case, the 
 law recognizes the authority of no one to exercise it. Perhaps 
 tha long recognition of this right, as being in the husband, by the 
 adjudications of courts, and the necessity for the existence of an 
 acknowledged head of authority in this relation, is a sufiicient 
 ground to concede the law to be, that the power resides in the 
 husband. It is argued, in favor of the right, that it should so 
 reside, that in case the wife inclines to extravagant living, he may 
 protect his estate, and prevent her squandering it. That if she 
 forsakes her duties to her family, and gads abovit to scandalize her 
 neighbors, or to refoim the race, he may bring her home and keep 
 her there. That if she bums with "free love," he may protect 
 his honor, and exclude her from all associations by wliich it is 
 endangered. These extreme cases, do seem to requh'e the correct- 
 ing, the restraining power, to exist somewhere. But suppose the 
 other case, which as frequently happens, of an extravagant, intem- 
 perate, hcentious and spendtluift husband who is squandering the 
 living which ought to be preserved for wife and cliildren, who may 
 possess like " free love " associations and affinities ; who then, 
 should possess the power of restraint ; who then, will protect the 
 honor of a wife and children ? The moral argument upon which 
 the right is based, is insufficient and selfish, until it is demon- 
 strated, that husbands, as a rule, are morally, more pure and per- 
 fect than their wives.
 
 HUSBAND AND WIFE. 507 
 
 "What precise amount of force a liusbancl may exert in restraint 
 of the personal liberty of his wife in this country, has not been 
 settled, so as to be adopted as law. Different judges in the same, 
 and in different states, have given us dicta of their views arisbg 
 under circumstances pccuHar to the case in hand, but faihng to 
 come up to any general rule ; being governed in a greater or less 
 degree, it would seem, by the common law of England, from which 
 country, much of our common law was borrowed. Even Blackstone 
 speaks with doubt as to the modern authorities on this sul)ject ; 
 but he informs us, a that by the " old law," the husband might 
 give his wife moderate coiTCctiou, for, as he is to answer for her 
 misbehavior, the law thought it reasonable to entrust him with the 
 power of restraining her by domestic chastisement, in the same 
 moderation that a man is allowed to correct his apprentices or 
 children, for whom the master or parent is also liable in some cases 
 to answer. But this power of correction, was confined witliin 
 reasonable boimds. The civil law, he informs us, gave the hus- 
 band the same or larger authorit}-, over his wife. But with us, he 
 says, in the poUter reign of Charles the second, this power of cor- 
 rection began to be doubted ; and a wife may now have security 
 of the peace against her husband ; or in return, the husbana 
 against the wife. Yet the lower rank of people (he says) who were 
 always fond of the old common law, still claim and exert their 
 ancient privilege ; and the courts of law wiU still pennit a husband 
 to restrain a wife of her liberty in a case of any gross misbehavior. 
 
 Bishop, in his work on marriage and divorce, h says that the 
 right to chastise a wife is repudiated by the law of Ireland and 
 Scotland, and has met with but little favor in the United States. 
 In New Jersey, Chief Justice Green said, c " There was a time in 
 the history of the common law, in which a man was allowed to beat 
 his wife with a rod no larger than his thumb ; and at a time still 
 earUer than that, when he was allowed to beat his wife at discre- 
 tion, and turn her out of doors." This decision, sorefeiTcd to as 
 to the size of the rod, is said to have been made by a celebrated 
 English Judge. In his defence, called for l\y pubhc opinion, it 
 ^ was found that he refeiTed to authority foimd in the day of Brac- 
 
 a 1 Com. UL b Sec. iS5. 
 
 c State V. Baruhard, 2 West. Law Jour. 301.
 
 508 HUSBAND AND WIFE. 
 
 ton, and as to that ancient case, tradition reports, that the women 
 who hved in the neighborhood of the Judge who pronounced 
 it, raised a meeting, and in mass, for his disregard of the proprie- 
 ties of their characters and conditions, seized him by force, and 
 plunged him into a horse pond. " But in this enlightened christian 
 age and country, no man has a right to strike his wife at all. If 
 she interferes with a proper discipline in his domestic relations, he 
 may restrain her ; but the law will not justify him in striking a 
 blow." In this state, Judge Walworth, at nisi prius, held, that " a 
 husband had no right to beat his wife, or to mflict punishment 
 upon her. He may defend himself against her ; he may restrain 
 her from acts of violence towards himself or others, for he is ac- 
 countable for her acts which injure others." Tliis is a more sen- 
 sible basis than that of a moral one. Chancellor Kent laid down 
 the rule thus, a " The husband may be bound to keep the peace 
 as aaainst his wife ; and for any unreasonable and improper con- 
 finement, by him she may be entitled to relief upon habeas corpus. 
 But as the husband is the guardian of the wife, and bound to pro- 
 tect and maintain her, the law has given him a reasonable supe- 
 riority and control over her person, and he may even put gentle 
 restraint upon her liberty, if her conduct be such as to require it, 
 unless he renounces that control by articles of separation, or it be 
 taken from him by a qualified divorce." 
 
 " But in exercising whatever rights the husband may have by 
 way of restramt of the liberty of the wife, he may not lock her up 
 as a close prisoner ; he may not deprive her of the benefit of light 
 and air and exercise; nor of the society of himself, or the family; 
 nor may he exclude her entirely from all intercourse with her 
 neighbors, where there is no ground to apprehend any injurious 
 consequences." h Should the wife elope, or be forcibly carried 
 away, he doubtless might retake her, provided the act of recaption 
 was not done riotously, or in a manner to occasion a breach of the 
 peace. " Cruelty or other conduct on the part of the husband, con- 
 stituting a ground for divorce, gives authority to the wife to leave 
 the husband, and he cannot retake her, whether she appHes for a 
 divorce or not. And it has been held, that he cannot retake her 
 
 a 2 CoDi. 181. 
 
 h Hard on Limitation of Liberty, 34.
 
 FATHER AND CHILD. 509 
 
 if she leaves him to oljtaiu a divorce, honestly believing tliat his 
 treatment alibrdecl sutlicient gi'ound for divorce, although it shonld 
 appear that the facts did not Avarrant the belief. 
 
 2. " The father of an infant, being obliged by law to support 
 his child, has a correspoudmg right to control his actions, and 
 employ his services during continuance of legal infancy. The 
 child may be emancipated from this control before commg of age, 
 either by the express assent of the father, or by being turned away 
 from his father's home, and left to care for himself ; though in 
 neither case, woidd the father be released from an obhgation which 
 rests upon him to prevent the child becoming a pul)lic charge ; 
 and Avhich the state may enforce Avhenever necessary. The mother, 
 during the father's hfe, has a power of control subordinate to his ; 
 but on his death, or conviction and sentence to imprisonment for 
 felony, she succeeds to the relative rights which the father before 
 possessed." a 
 
 " It is in consequence of the obligation of the father to provide 
 for the maintenance, and in some qualified degree, for the educa- 
 tion of his infant children," says Chancellor Kent, h " that he is 
 entitled to the custodij of fhcir persons, and to the value of their 
 labor and services. There can be no doubt that this right in the 
 father is perfect while the child is under the age of fourteen years. 
 But as the father's guardianship continues until the child has ar- 
 rived to full age, and as he is entitled by statute to constitute a 
 testamentary guardian of the person and estate of his children 
 until the age of twenty-one, the inference woidd seem to be that 
 he was in contemplation of law, entitled to the custody of the 'per- 
 sons, and to the services and labor of his children during their 
 minority." But in this state, it has been held, that this right of the 
 father, is not an absolute and unalienable right. As a general 
 rule he has the natural right. Like other rights, it may bo forfeited 
 by his misconduct, and under circumstances requiring it, the courts, 
 will control this exercise of parental power, and may award the 
 care and custody of minor children to the mother, or others, c 
 The father may obtain the custody of his children by the writ of 
 
 a People v. Humphries. 21 Barb. 521. b 2 Com. 193. 
 
 c People V. Chegary, 18 Wend. 637; People v. — , 10 Wcml. 16; People v. Mer- 
 cer, 3 Hill. 399; People v. Olmstead, 27 Barb. 9.
 
 510 FATHER AND CHILD. 
 
 liahnis covpus, ■s\lieii they are improperly detained from liim; but 
 the courts, both of h\w and equity, will investigate the ckcumstan- 
 ces, and act according to soimd discretion, and will not alwaj^s of 
 course, interfere upon /<a?.c«s corpus, and take a child, though under 
 fourteen years of age from the possession of a third person, and 
 deliver it over to the father against the will of the child. They 
 will consult the inclination of the child, even if an infant, if it be 
 of a sufficiently mature age to judge for itself, and even control 
 the right of the father to the possession and education of his child, 
 when the nature of the case appears to warrant it." 
 
 •' This power over the person of the child ceases on its anival 
 at the age of majority, which in this state is the age of twenty-one. 
 This rjglit results fi-om the corresponding dut}^, to maintain and 
 educato the child, and in the necessary support of that authority, 
 he should possess the right to the exercise of such discipline, as 
 may be requisite for the discharge of that sacred trust. This is 
 the true foundation of the parental power. On the death of the 
 father, as a general rule, the mother is entitled to the custody of 
 the infant children, inasmuch as they are their natural protectors 
 for maintenance and education." a These rights are confen-ed for 
 important ends, chiefly affecting the welfare of the child. When 
 neccessary to the proper discharge of parental duty, the parent 
 may resort to corporal discipline. He may, and should, in proper 
 cases, inflict moderate chastisement. " Correct thy son and he 
 shall give thee rest ; yea, he shall give delight to thy soul." h 
 " Foolishness is bound up in the heart of a child, but the rod of 
 correction shall drive it from him." " Chastise thy son while there 
 is hope, and let not thy soul spare for his crying." This was the 
 language of the wise man. " The parent may impose such tem- 
 porary confinement as may be necessary to secm'e obedience to 
 his reasonable commands, so that it is not prejudicial to the life, 
 limb or health of the child." c 
 
 " The Eoman law anciently gave the father the power over the 
 life and death of his children, upon the principle, that he who gave 
 had also the power of taking away ; but the rigor of the law was 
 softened by later constitutions. The power of a parent by the 
 
 a 2 Kent Com. 203. h Proverbs, 29-17; Id. 22-15; Id. 19-18. 
 
 c Hurd on Personal Liberty, 43.
 
 FATHER AND CHILD. 511 
 
 law of Engliind is much more moderate ; but still suflicieut to keep 
 the child in order and obedience. He may lawfully coiTect his 
 child being under age in a reasonable manner ; for this is for the 
 benefit of his education." a Our own common law has not been 
 materially held to be diffurunt from this. The law prescribes no 
 form of parental disciphne. It merely designates the purpose for 
 which it may be employed, and confers adecjuatc power for its 
 administration, yet -while it authorizes chastisement or confine- 
 ment, it exacts moderation, and punishes any excess amounting to 
 ciTielty, as a crime. 
 
 The exercise of this power must be in a great measure discre- 
 tionary. He may so chastise his child as to be liable in an action 
 by the child against him for the battery. The child has rights 
 which the law will protect him in against the brutality of a bar- 
 barous parent. It is a point sometimes of great ditticulty to deter- 
 mine with exact precision, Avlien a parent has exceeded the bounds 
 of moderation. Minds will difier ; correction which by some will 
 be considered as unreasonable, will be viewed by others as perfectly 
 reasonable. What may be considered by one as a trifling folly, 
 and for which none, or very trifling correction should be applied, 
 will, by another, be considered as an offence that requires very severe 
 treatment. The parent is bomid to correct the child so as to pre- 
 vent him from becoming the victim of vicious habits, and thereby 
 proving a nuisance to the community. 
 
 The true gi'ound upon which this ought to be placed, is, that 
 the parent ought to be considered as acting in a judicial capacity 
 when he corrects ; and of course not hable for errors of opinion. 
 And although the punishment should appear to bo unreasonably 
 severe, and in no measure proportioned to the offence ; yet if it 
 should also appear, that the parent acted conscientiously, and from 
 motives of duty, no judgment should be given against him. 
 
 But when the punishment is thus unreasonable, and it appears 
 that the parent acted malo animo from wicked motives, under the 
 influence of an unsocial heart, he ought to be Hable to damages. 
 "For en-or of opinion, he ought to bo excused ; but for mahce of 
 heart, he should not be shielded from the just claims of the child. 
 Whether there was malice may be collected from the circumstan- 
 
 a Black, Com. 452.
 
 512 FATHER AND CHILD. 
 
 ces attending the punishment. The instrament used, the time 
 when, the place where, and the temper of heart exhibited at the 
 time, may all unite in demonstrating what the motives were, which 
 uiliuenced the parent, a 
 
 Among the methods of inflicting chastisement, to enforce obe- 
 dience to reasonable commands, is, doubtless, that of confinement 
 of the cliild, but this Hke the other, must be exercised in modera- 
 tion. The life of the child must not be endangered, nor its health 
 sacrificed or um-easonably exposed ; nor its limbs paralyzed or 
 injured ; nor can it be imposed upon the child to its prejudice, 
 from sheer malice of heart. 
 
 This right of custody and control, as has been said, ceases at 
 the arrival of the child at majority, except perhaps in the case 
 of ichocy or other grievous disability of the child to take care of 
 itself. In such cases it becomes the duty of the state authorities 
 to provide, h 
 
 This relation may be severed before the child anives at majority 
 by the express consent of the parent, which is called emancipation, 
 or by the cruel conduct of the parent, in sending it away, or in 
 omitting to provide for it the necessaries of life by repeated 
 acts of barbarity and violence, c or other treatment which would 
 render a residence with the parent intolerable, d But even such 
 conduct, by no means absolves a parent from his obligation to 
 maintain or support- his child ; he is still Hable at common law for 
 the necessary support furnished to his child, even by a stranger. 
 " Tliis relation may also be severed by the courts of justice, when, 
 in their discretion the morals, or safety, or the interests of the 
 cliild strongly requires it, and may give then- custody elsewhere, e 
 
 Mothers, during coverture, also exercise authority over their 
 children ; but in a legal point of view, it is said, they are consid- 
 ered in this respect as only agents for their husbands, and have 
 no legal authority of their own :/ howsoever this may be, techni- 
 cally, where both parents reside together, the general custody of 
 
 a Reevos' Domestic Relations, 288. 
 
 ?> Upton V. Northbridge, 15 Mass. 237; Orford v. Ramsey, 3 N. H. R. 331. 
 
 c 2 Kent. Com. 193. 
 
 d Sternburg v. Bution, 7 Watts & Searg. 8G4. 
 
 e 2 Kent. Com. 205. 
 
 / Reeves on Domestic Relations, 295.
 
 GUARDUN AND WARD. 513 
 
 the children i^^ doubtless, considered to be in him as the head and 
 governor of the family; but l)y the universal law of imphcation, 
 and by the implied consent of both, the mother, has a share in 
 that custody and control ; if not independently, and of equal 
 extent with the father ; yet il" he does not absolutely forbid it, she 
 is entitled to an active part in the discipline and correction of the 
 children, and in his absence, to exercise absolute control, to the 
 same extent as the father. She is entitled to the exercise of it to 
 this extent, to secure to her that reverence and respect, that is 
 due from children to a parent. 
 
 On the death of the father, the mother remaining at the head 
 of the family, succeeds to the custody, discipline and government 
 of the children, and to all the rights possessed by the father in his 
 lifetime, and doubtless to the same succession of power in case of 
 the civil death of the father, as vrliere he is convicted of felony 
 and confined in the state prison. 
 
 3. " The guardian has a power of control over his ward, corres- 
 ponding in the main, with that which the father has over liis child, 
 though in some respects more restricted, while in others it is 
 broader. The appointment of guardian when made by the courts, 
 is of local force only, being confined to the state in which it is 
 made, and the guardian would have no power to change the domi- 
 cile of the ward to another state or country. But the appointment 
 commonly has some reference to the possession of the property by 
 the ward, and over this property the guardian possesses a power 
 of control wliicli is not possessed by the father over the property 
 owned by the child. 
 
 As our discussion of this relation, in this work, is confined to 
 the power of restraint of personal liberty, we shall only examine 
 it iu that view. Chancellor Kent informs us, that the relation of 
 guardian and ward, is nearly allied to that of parent and child, a 
 but throughout his whole lecture, he says not a word on the sub- 
 ject of the guardians right to discipline, conti'ol, to administer 
 coiporal correction, or to exercise any power of restraint over the 
 personal liberty of the ward. In the state of New Hampshire it 
 Avas expressly said by Woodbury J., h speaking of the rif^lits of a 
 
 « 2 Com. 218. 
 
 b Hancock v. Hamstead, 1 N. H. 265. 
 65
 
 514 GUARDIAN AND WARD. 
 
 guardian appointed upon the death of parents, " True he had o 
 guardian, but a guardian though in loco 'parentis, as to a few pur- 
 poses, has no absohite control oirr the 2:>crson, or ser^■ices of the 
 ward, unless the ward be a lunatic." Mr. Eeeves, who has treated 
 this subject somewhat at large, and speaks of the various kmds oi 
 guardians and wards; guardians of the power, as well asguardiann 
 of the estate, is entirely silent on the subject of the power of any 
 land of guardian over the personal liberty of the ward. Black- 
 stone, who has written a full chapter on the several divisions and 
 classes of persons constituting this relation, omits any allusion to 
 the control of the guardian over the personal liberty of the ward, 
 unless it may be implied from this : " The power and reciprocal 
 duty of a guardian and ward are the same pro tempore as that of 
 father and child, and therefore I shall not repeat them," a In 
 Massachusetts it was held that the guardian had no power to bind 
 the person of his ward, h 
 
 The absence of expression of opinion by elementary writers on 
 the subject of this power of restraint of the guardian over the 
 person and liberty of his ward, and the remarkable absence of 
 cases in which this question has been passed upon by the courts 
 under the writ of laheas corpus or otherwise, makes it hazardous 
 to express an opinion, as to the power of the guardian in this re- 
 spect; or, if he possesses the poAver, to say where, and to what 
 extent, and under what circumstances he may exert it. The relation 
 of guardian, has not the same basis to support the power of re- 
 straint and discipline, as that of the parent. The parent has first, 
 the natural law of power. By begetting the child, he has entered 
 into an implied and voluntary obhgation to endeavor, as far as in 
 him lies, that the. life lie has bestowed shall be supported and 
 preserved, and thus the child has a perfect and natural right to 
 receive maintenance and support from the parent, c This gives 
 to the parent the right to such authority, and to exercise such discip- 
 line, as may be requisite for the discharge of the sacred trust. This 
 is the true foundation of parental power, d The guardian has no 
 such natural relation ; and he is under no legal obhgation what- 
 ever, to maintain the ward from his own funds, nor at common 
 
 a 1 Black. Com. 4C2. h Foster v. Fiiller, Mass. 58. 
 
 c 4 Black. Com. 447. d 2 Kent. Com. 203.
 
 GUARDIAN AND WARD. 515 
 
 law, can he bind liim out to service. He can only do tliis by some 
 express statutory provision. Our statutes define the powers of 
 the several kinds of guardians known to our law, but by none of 
 them is conferred the jjower of the personal restraint of liberty. 
 If it exists, it exists only at common law. Blackstonc indeed 
 does say, that in England, the guardian performs the ofhcc, both 
 of tutor and iuntlnr of the Roman law ; the former of which, had 
 the charge of the maintenance and education of the minor, the 
 latter the care of his fortune ; or, (as he says,) according to the 
 language of the Court of Chancery, the tutor was the committee 
 of the person, the curator the committee of the estate ; but this 
 ofiice, he says, is always united in our laAV, in regard to minors, a 
 In looking at the civil huv, we find the tutor, defined to be, a guar- 
 dian who has the charge of persons who are under the age of pub- 
 erty. Tutores, latin, from furri to protect ; as the law hath it, 
 " to protect, or defend him during the age, in which he cannot 
 protect himself." b Though in the civil law, this guardianship to 
 protect and defend until the ago of puberty, and in the English 
 law, a combination of duties till majority; both systems are silent 
 on the subject of the power of restraint of liberty. To protect 
 and defend the person, is not identical with the power to control, 
 to discipline, and restrain. 
 
 Mr. Hurd, a modern v/riter on the laws of the light of personal 
 Uberty, however, lays it down thus : c " When the ward is within 
 the ago of discretion," (which ho assumes to be the age, when by 
 law, they may choose their own guardians,) " it is plain enough, 
 that the guardian possesses the riglit, and that it is clearly his 
 duty, on proper occasions, in a reasonable manner, to connect his 
 ward for misbehavior, with the rod, if in his judgment that mode 
 of correction be necessary. And especially is this true, where the 
 ward resides in the family of his guardian. In such a case, it is 
 important to allow the guardian to em}>loy the usual means ol 
 discipline, not only for the benefit of the ward, but to enable him 
 to execute his reasonable plan of family government. For uc 
 man fit to bo entrusted with the training up of a child, would 
 take the infant stranger under his roof to educate, with any privi- 
 
 a 1 Black. Com. 379. b lust. 1, 13, 1. 
 
 c Hurd ou Personftl Liberty, 51-52 .
 
 51G JLVSTER AND ATrEENTICE. 
 
 lege to misbeliave, or to escape the punisliment usually inflicted 
 on liis own childi'en for misconduct. It would not be safe perhaps, 
 to deny that in a case of flagrant misbehavior, the guardian pos- 
 sesses the right to chastise his ward, when of somewhat riper 
 years. But when by reason of the advanced age of the ward, thif? 
 mode of correction becomes deeply humiliating, as well as painful 
 it is safe, perhaps, to say, that the right cannot be lawfully exer- 
 cised unless it appears that there was probable cause for it, and 
 that all the other means of coiTection, less severe were inadequate." 
 These views, though no authority is cited to sustain them, stand 
 on a basis of reason and good practical common sense ; and they 
 are, no doubt, the practice to some extent in the relation of 
 guardian and ward. 
 
 4. " The relation of master and apprentice is founded on a con- 
 tract between the two generally, with the consent of the parent, or 
 party standing in loco parentis, to the latter, by which the master 
 is to teach the apprentice some specified trade or means of living. 
 This relation is also statutory and local, and for power to control 
 or punish against the opposition of the apprentice, the statute 
 must be examined." 
 
 This relation is a matter of civil contract, and is generally in its 
 forms and creation regulated by the local statutes of the several 
 states, as to the age, time of service, the employment, trade or 
 occupation, to be pursued, and the persons who are authorized to 
 bind the child apprentice to the service of a master. All these 
 being matters of ci^^l contract, do not come within the scope of 
 this work. " The relation of master and apprentice, says Chan- 
 cellor Kent, a " was in its original spirit and policy and an intimate 
 interesting connection, calculated to give the apprentice a thorough 
 trade, education, and, to advance the mechanic arts in skill, neat- 
 ness and fidelity of workmanship, as well as in the facility and 
 utility of their application. The relationship, if duly cultivated 
 under a just sense of the responsibility attached to it, and with the 
 moral teachings ^^ liich belong to it, will produce parental care, 
 vigilance, and kindness on the part of the master, and a steady, 
 diligent, faithful and reverential disposition and conduct on the 
 part of the apprentice." 
 
 a 2 Com. 2G3.
 
 MASTER AND AmiENTICE. 517 
 
 The temptations to iiuposition and abuse to which tliis contract 
 is liable, have renderetl legislative interposition especially necessary. 
 While these regulations upon the one hand protect the master 
 from the interference of other persons ■with the duty the apprentice 
 owes to him, it also protects the apprentice against misconduct 
 and abuse from his master ; by a foif eiture of the claim of the 
 master upon his services, to be adjudged by two justices of the 
 peace upon complaint, a So on the other hand, if the apprentice 
 misbehave, by refusing to serve according to the terms of his inden- 
 ture, and the law in that regard, lie may, u})on the complaint of 
 the master to certain officers named in the statute, and if he per- 
 sists in such refusal to obey, etc., be committed to a house 
 of correction, bridewell, or common jail of the city or county, there 
 to remain until he will consent to serve according to law ; h and in 
 case he shall wilfully absent himseK from such sen-ice without 
 leave of the master, he may be compelled in like manner to sen-e 
 double the time of such absence, even after his majority, not 
 exceeding three years after the end of the original term, c Black- 
 stone says, (/ that a master may correct his apprentice for negli- 
 gence or other misbehavior, so it be done with moderation. And 
 so it seems it was laid down by Hawkms ; e and in the reign of 
 Charles I, it was declared of an apprentice, "it he misbehave him- 
 self, the master may correct him in his service, or complain to a 
 justice of the peace to have him punished according to the stat- 
 ute ;"/ but in the thirty-fifth year of the reign of Charles II, Lord 
 Saunders, before whom a trial was had against one Keller for 
 immoderate beating of Brotherwaite, an apprentice ; said the ap- 
 prentice might be discharged by justices of the peace ; but upon 
 the authority of Lord Hale, he still held the defendant responsible, 
 and he was convicted. (/ Tliis right of moderate correction by the 
 master, in case of an offending apprentice, seems to be adopted as 
 common law in this country, though this power does not arise out 
 of the statute provisions, h 
 
 a 2 Eev. Stat. 159, § 30. 
 
 h Id. § 29. 
 
 c Id. § 28. d 1 Com. 428. 
 
 e 1 Hawk. P. C. 130. / Cro. Car. 179, Gilbert v. Flctcbcr. 
 
 g Dominas, Rex v. Keller, 2 Show. 289. 
 
 A 2 Kent Com. 264; Commonwealth v. Baird, 1 Ashmead Penn. K. 267.
 
 518 MASTER AND SERVANT. 
 
 5. The power of the master over the servant he employs. As 
 I do not see in this relation, any power that the master can right- 
 fully exert over the personal liberty of the servant, I have not 
 copied the views of the author, or discussed at much length, this 
 relation. 
 
 A few unsupported dicta may be found in the old English books 
 ap})arently justifying moderate chastisement of a hired sers-ant by 
 the master or employer, tor derehction of duty, a but no respec- 
 table modern authority can be found, bold enough to assert that 
 such a power exists even in England. And in America, where 
 equality of rights of its citizens is announced as the basis of sov- 
 ereign authority, such an assertion would be too much in conflict 
 with the genius and spirit of our system of government, and with 
 the acknowledged rights of equality of citizenship and freedom, to 
 exist for a single moment as law. It may be that there is an ex- 
 ceptional case ; as for instance, wliere a parent should contract 
 Avitli a master, the service of a minor child, and expressly delegate 
 to the master the parental power of chastisement, or confinement 
 by way of correction for dereliction of duty ; but where the ser- 
 vant has arrived at his majority, he has become an emancipated 
 citizen of the government ; with unalienable rights to fi-eedom, to 
 liberty, and to an equality of rights before the law, and in which, 
 he has no superior ; and over him, no master can exert the humi- 
 liating and tyranous power of chastisement and correction. 
 
 G. " The relation of teacher and scholar places the former more 
 nearly in the place of the parent than either of the two preceeding 
 relations places the master. Yvliile the pupil is under his care, he has 
 the right to enforce obedience to his commands, lawfully given in 
 his capacity as teacher, even to the extent of bodily chastisement 
 or confinement. And in deciding questions of disciphne, he acts 
 judicially, and is not to be made liable either civilly or criminally, 
 unless he has acted with express mahce, or been guilty of such 
 excess in punishment that malice nnist be implied. All presump- 
 tions are in favor of the correctness of his action." 
 
 Technically, where there is no special understanding between 
 parent and teacher, this is the implied legal relation between tea- 
 
 a 3 Salt. 47 ; 1 Hawk, P. c. c. 29, § 5 ; 4 Buvas lust. 119 : Bac. Abr. N. Master 
 and Servant.
 
 TEACHER AND TUriL. 510 
 
 chcr and scholar. Modern theories do not accord to this rule all 
 the force of law, as thus laid down. Our duty, however, is not to 
 discuss the wisdom of the different theories. 
 
 It is doubtless the law, and should be, that in the public school, 
 for the time beinj^, that is, duiing school hours, the schoolmaster 
 is uivested with all the authority of a parent ; he ought to be pos- 
 sessed of the power to make rules for the regulation of the conduct ; 
 to direct the studies ; t(^ order the application ; as to the manner of 
 recitations, ]'eading, writing or other exercises ; and to keep order 
 and silence ; prevent disturbances ; and rc;quire obedience to all 
 his reasonable rules ; obedience to all such projjcr rules, and known 
 requirements ; may be enforced by reasonable and moderate correc- 
 tion, as an established and necessary resort, to this end ; and tliis 
 correction, may doubtless be, by temporary confinement, if, in the 
 judgment of the teacher, that kind of chastisement is most effective 
 in producing obedience to rules, or, in securing diligence and apph- 
 cation to studies, or as a punishment for delinquencies. This power 
 of the teacher for the time, is analogous to that which belongs to 
 parents ; and the authority of the teacher is regarded as a delega- 
 tion of parental authority. Indeed the authority is supposed to 
 proceed from a delegation of the parent; it is implied from tlie 
 very necessity of the cast;, and need not be conveyed by express 
 agreement. Blackstone says, " that by such delegation to the tutor 
 or schoolmaster of the child, the tutor or schoolmaster is then in 
 loco iKi.rcntis, and has such a portion of the power of the parent 
 committed to his charge, viz., that of restraint and correction, as 
 may be necessary to answer the purposes for wliich he is em- 
 ployed." a And Chancellor Kent was of the same opinion, h that 
 he may inflict moderate and reasonable chastisement, and lie refers 
 with approbation to a case decided in North Carolina, v in which 
 the Supreme Court of that state held the same rule. On a refer- 
 ence to that case, we find the Supreme Court, among other things 
 said : " One of the most sacred duties of parents is, to train up 
 and qualify the cliildren for becoming useful and virtuous members 
 of society. This duty cannot be effectually performed, without 
 the ability to command obedience ; to control stubbornness ; to 
 
 a 1 Black. Com. 453. h 2 Kent. Com. 205. Note. 
 
 c State V. Pendergrass, 2 Dev. and Batah.
 
 520 SCHOOLMASTER AND PUPIL. 
 
 quicken diligence ; to reform bad habits ; and it enable him 
 to exercise tliis salutary swa}-, he is aimed with the power to ad- 
 minister moderate correction when he shall beheve it to be just 
 and necessaiy. The teacher is the substitute of the parent ; is 
 charged in part with the performance of his duties, and in the ex- 
 ercise of these delegated duties, is invested with his power. The 
 ]aw has not undertaken to prescribe stated punishments for partic- 
 ular ollences, but has contented itself with the general grant of 
 the power of moderate correction, and has confided the graduation 
 of punishments within the limits of tliis gi-ant, to the discretion of 
 the teacher." 
 
 " The hue which separates moderate correction from immoderate 
 punishment, can only be ascertained from general principles. The 
 welfare of the child is the main purpose for which the pain is per- 
 mitted to be inflicted. Any punishment therefore which may 
 seriously endanger life, limb or health, or shall disfigure the child, 
 or cause any other permanent injury, may be pronounced in itself 
 immoderate, as not only being unnecessary for, but inconsistent 
 with the purpose for which correction is authorized. But any cor- 
 rection however severe, which produces temporary pain only, and 
 no permanent ill, cannot be so pronounced, since it may have been 
 necessary for the reformation of the child, and does not affect in- 
 juriously its future welfare." 
 
 We hold, therefore, that it may be laid down as a general rule, 
 that teachers exceed the limits of their authority, when they cause 
 lasting mischief ; but act within the limits of it, when they inflict 
 temporary pain only. AVhen the correction administered is not 
 in itself immoderate, and therefore beyond the authority of the 
 teacher, its legahty or illegality must depend entirely, we think, 
 on the quo animo, with which it Avas administered. Within the 
 sphere of his authority, the master is the judge, where con-ection 
 is required, and the degree of correction necessary ; and like others, 
 entrusted with a discretion, he cannot be made penally responsible 
 for error of judgment, but only for wickedness of purpose. Tlie 
 best and wisest of mortals are weak and erring creatures ; and in 
 the exercise of functions in -^^■llich their judgment is to be the guide, 
 cannot be rightfully required to engage for more than honesty of 
 purpose, and dihgence of execution. His judgment must be pre-
 
 SCIIOOLMxVSTEU A_ND I'LTIL, 521 
 
 snmcd to be correct, because ho- is thejudrjc, and also because of the 
 difficulty of proving of the ofience, or the accumulation of offences 
 that called for the correction ; and of showing the peculiar temper- 
 ament, disposition and habits of the individual corrected ; and of 
 exhibiting the various milder means, that may have been ineffect- 
 ually used before correction was resorted to. 
 
 But the master may be punishable when he does not transcend 
 the powers granted, if he grossly abuse them. If he use his au- 
 thority as a cover for malice, and, under the pretence of adminis- 
 tering correction, gratify his own bad passions, the mask of the 
 judge shall be taken off; and he will stand amenable to justice as 
 an individual not invested with judicial power. 
 
 It is perhaps a questionable and unsettled question in the law 
 upon this relation, as to the precise point of time when the paren- 
 tal authority ceases, and that of the master begins ; that is, whose 
 authority actually exists when the scholar is on his way to, and 
 on his return from school ; that of the parent, or that of the master. 
 Naturally, it is to be presumed, it is that of the parent ; the masters 
 dominion is the school-room, and its appurtenances, during school 
 hours. But if there be special regulations understood by the pa- 
 rent to be the lailes of the school ; regulatmg the deportment of 
 the scholar while on his way to, and from school ; then the impU- 
 cation of law would be, that the parent consents, to the masters 
 authority to coiTect for \'iolations of such rules. So too, doubtless, 
 under the authority of the master to discipHne, correct and com- 
 pel obedience to duty and dihgence in study ; he may detain a 
 delinquent scholar after the school generally is dismissed, to compel 
 him to complete a lesson or duty which might have been accom- 
 plished with due application in the regular hours of school, provi- 
 ded the time of such detention extend only to such reasonable 
 time as is sufficient to perform the task, or had been spent by the 
 scholar in play or idleness, which caused the dehnquencies. But 
 in the absence of all school rules regidating the conduct of the 
 scholar on the way, and known to the parent, the legal presump- 
 tion is, that as parents desu-e the services of their childi'en at home, 
 except the usual school hom-s, that they suiTender then- authority 
 over the child, only, during the regular school hours, and that as 
 the parent and not the teacher is somewhat responsible for the 
 (36
 
 522 PEINCir.\L ^N^'D SURETY. 
 
 conduct of their children except while in school, the parent is 
 also responsible for the conduct of the child on the way. 
 
 7. " "^Miere parties bail another in legal proceedings, they are 
 regarded in law as his jailors, selected by himself, and with the 
 right to his legal custody for the purpose of seizing and delivering 
 him up to the oflicers of the law, at any time before the hability 
 of the bail has become fixed by a forfeiture being judicially de- 
 clared, on his failure to comply with the condition of the bond, a 
 This is a right they may exercise in person, or by agent, and with- 
 out resort to judicial process." h 
 
 This relation of principal and bail in civil cases, commonly called 
 special bail, is a thing of the past. It existed when the debtor 
 was liable to be arrested, as he could be, upon demands arising 
 upon contract, and when so arrested, to avoid further imprison- 
 ment, gave l)ail to the sheriff, conditioned that he w^ould give spe- 
 cial bail to the plaintiff' in the action within twenty days after the 
 return of the writ, so that the plaintiff" might have his body to im- 
 prison, in satisfaction of the judgment to be obtained in the action. 
 His special bail became in law the jailors of his own choosing, and 
 he was thus immersed in a hving prison, or his body subject to the 
 actual custody of his special bail, and liable at any time, and at 
 all places, to be taken by his bail, and cast into the common gaol 
 upon a copy of the bail piece, by his special bail, or by a person 
 'authorized by them. Thanks to the progi-essive spuit of the age, 
 this barbarous excrescence upon the laws of the past, no longer 
 obscures the jurisprudence of the free citizens of this state. The 
 law to abohsh imprisonment for debt, in this and other states, has 
 to that extent, emancipated the honest citizen fi'om this odious 
 penalty arising from his inabihty to pay his debts. Though he 
 is still liable to be restrained of his personal liberty in what are 
 called actions sounding in tort. 
 
 8. " The control of the creditor over the person of his debtor 
 through legal process to enforce payment of his demand, is now 
 nearly abohshed, thanks to the humane provisions of the recent 
 statutory and constitutional provisions. In cases of torts, and 
 where debts were fraudulently contracted, or where there is an 
 
 a Hai-p V. Osgood, 2 Hill, 21G. 
 b Parker v. Bidwell, 3 Conn. 84.
 
 CKEDITOK AND DEBTOR. 523 
 
 attempt at a fraudulent disposition of property ■with the intent 
 to deprive the creditor of payment, the body of the debtor may 
 be seized and confined ; but the reader is referred to the constitu- 
 tion and statutes of liis state for information on this subject." 
 
 The causes whieli in tliis state give the crechtor power over the 
 personal liberty of the debtor, are limited to five, by express pro- 
 visions of the statute, a 1. In an action for the recoveiy of dam- 
 ages, on a cause of action not arising out of contract, ■where the 
 defendant is not a resident of the state, or is about to remove 
 therefrom, or where the action is for an injury to the person or 
 character, or for injuring, or ■wrongfully taking, detaining, or con- 
 verting property. 2. In an action for a fine or penalty, or on a 
 promise to marry, or for money received, or property embezzled 
 or fraudulently misappUed by a public officer or attorney, solicitor 
 or coimselloT, or by an officer or agent of a corporation, or banking 
 association, in the course of his employment as such, or by any 
 factor, agent, broker, or other person in a fiduciary capacity, or 
 for the misconduct or neglect in office, or in a professional employ- 
 ment. 3. In an action to recover the possession of personal prop- 
 erty unjustly detained, •where the property or any part thereof has 
 been concealed, removed, or disposed of so that it cannot be found 
 or taken by the sheritl", and ■with the intent that it should not be 
 found or taken, or Avitli the intent to deprive the plaintiff of the 
 benefit thereof. 4. When the defendant has been guilty of a fraud, 
 in contracting the debt, or incurring the obhgation for which the 
 action is brought, or in concealing or disposing of the property, 
 for the taking, detention or conversion of which the action is 
 brought, or when the action is brought to recover damages for 
 fraud or deceit. 5. When the defendant has removed or disposed 
 of his property, or is about to do so, with intent to defi'aud his 
 creditors. But no female can be arrested in any action, except 
 for wilful injury to person, character, or property. Even an-est for 
 these causes cannot be made, until it has been judicially deter- 
 mined by a judge of some court upon proper application, and upon 
 satisfactory evidence to him, that a cause of action exists, and 
 that the case comes within one of the five subdivisions of causes 
 above enumerated, and a sufficient bond or undertaking, satisfac- 
 
 a Code, § 179.
 
 524 CREDITOR AXD DEBTOR. 
 
 toiy to, and approved by said judge, shall be given by the plaintiff 
 to pay to the defendant all costs and damages he may recover in 
 such action. The statute further provides the manner in which 
 the defendant aiTCsted for these causes, can be discharged from 
 such arrest. All these matters are subjects that belong to practice, 
 not connected with the question of power of restraint. 
 
 These then, are the legal restraints upon, and qualifications to 
 the right of personal liberty. For any other restraint, or for the 
 legal abuse of the legal rights which have been above specified, 
 the party restrained, is entitled to immediate process from the 
 courts, by liaheas corjjus, and to speedy relief thereon.
 
 RIGHTS A2\D BIMUNITIES OF THE CITIZEN. 525 
 
 CHAPTER XVII. 
 
 OF CONSTITUTIONAL PKOTECTION TO THE PERSON OF THE CITIZEN 
 — OTHER TH.iN PERSONAL LIBERTY. 
 
 RIGHTS AND IMMiriJITIZS OF THE CITIZEN. 
 
 The leading idea put forth iu the declaration of our independ- 
 ence, as well as in the preamble and body of our national consti- 
 tution, is the equaUty of rights of all mankind. Not only was it 
 the object of these instruments, to secure them the blessings of lib- 
 erty and equaUty, but also to secure alike to each and every citizen, 
 all the benefits wliicli is oonfeiTed upon each and every other citizen 
 of the states or of tlie nation. To secure this end, the federal con- 
 stitution speaks in an authoritative tone : " The citizens of each 
 state shall be entitled to all the privileges and immunities of citi- 
 zens of the eeveral states." 
 
 It is no part of our purpose to make this work the history o* 
 our political organizations, nor to point out the reasons therefrom, 
 that lead to the insertion of this provision in the constitution ; but 
 only to treat it as a sacred right secured to every citizen, because 
 we find it so secured by the fundamental law of the government. 
 It is an invaluable privilege ; it becomes the birthright of every 
 natural born citizen ; and the lawfully acquired right of eveiy 
 naturalized citizen. By tliis constitutional provision, every citizen 
 of a state, is likewise a citizen of the United States ; and as a 
 national citizen, he is in theory, pohtically and potentially present, 
 and has the right to be actually and personally present, in every 
 part of the national domain. He possesses the right to be person- 
 ally present in any state or tenitory of the government, and to 
 enjoy there, the right and freedom to speak his opinions ; to do 
 and perform all lawfiil acts ; and to enjoy all the privileges and 
 immunities that any other citizen of that, or any other state or 
 territory, in wliich it is his pleasure to be, may enjoy ; and any 
 state regulation, that interferes with those rights of a national citi-
 
 526 HIGHTS AXD IMMUNITIES OF THE CITIZEN. 
 
 zen, iu manner or effect, different from that which its own citizens 
 enjoy, does an act which directly conflicts with his constitutional 
 rights, -whatever may be the pretence for adopting such regula- 
 tions. Cotemporaneous experience has taught us, that the viola- 
 tion of this sacred right, was one of the leading reasons of bring- 
 ing on the late national disruption. 
 
 QUAETERING SOLDIERS IN PEIVATE HOUSES. 
 
 This provision speaks for itself. The experience of all nations, 
 has shown, that a large standing army in time of peace, should bo 
 avoided as dangerous to liberty, and that the quartering of soldiers 
 upon the citizens of the state, had been a very common resort of 
 arbitrary princes, and was full of inconvenience and peril to the 
 citizens. It has been well said by Judge Cooley, a that, "It is 
 difficult to unagine a more terrible engine of oppression than the 
 power in an executive, to fill the house of an obnoxious person 
 with a company of soldiers, who are to be fed and warmed at his 
 expense, under the direction of an oflicer accustomed to the exercise 
 of arbitrary power, and in whose presence the ordinary laws of 
 courtesy, not less than the civil restraints which protect person and 
 property, must give way to unbridled will, of one who is sent as an 
 instrument of punishment ; and with whom, insult and outrage may 
 appear quite in the fine of duty." The clause, as we find it in the 
 national constitution, has come down to us through the petition of 
 rights ; the Bill of Eights of 1688, and the Declaration of Independ- 
 ence ; and is carried out in the national constitution ; secui'ing the 
 principle to the nation, and to the citizen, that the military shall, 
 in time of peace, be in strict subordination to the civil power, h 
 
 UNREASONABLE SEARCHES AND SEIZURES. 
 
 This constitutional sanction, and adoption of what had become 
 a feature of the common law, and the test which it affords for try- 
 ing the legahty of any warrant by which a man may be deprived 
 of his liberty, or disturbed in the enjoyment of his property; cannot 
 be too highly valued by the citizens of a free government. This 
 principle had been secured before the adoption of our constitution, 
 
 a Cooley on Const. Lim. 308. 
 I Story on Const. § 1900
 
 UNREASONABLE SEAECHES AND SEIZURES. 527 
 
 even in England, and grew out of an arbitrary abuse of power in 
 that country, in issuing, under a statute authorizing it, what was 
 called writs of assistance, by the courts, to revenue, and other offi- 
 cers, empowering them al their discrdion, to search suspected 
 places for smuggled goods. This, Avas in that day, i)ronounced 
 " the worst instrument of arbitrary power ; tin; most destructive 
 of Enghsh lil)erty, and of the fundamental principles of law, that 
 ever was found m an English law book ; since they placed the lib- 
 erty of every man in the hands of every petty officer." " This con- 
 stitutional provision, seems indispensable to the full enjoyment of 
 the rights of personal secm-ity, personal liberty, and private prop- 
 erty," a Its introduction into the amendments to the constitution, 
 was doubtless, occasioned by the great sensation excited in Eng- 
 land, as well as in this country, down to the time of the revolution, 
 upon acts of arbitrary power, exercised under this pretence of law 
 based upon this statute, enacted undca- the pretence of regulating 
 the press, which authorized the issuing of warrants, to take up, 
 without naming any person in particular, the authors, publishers, 
 and printers of such obscene, or seditious libels, as were particu- 
 larly mentioned in the warrant. Though this statute was hmited 
 in its time of duration ; the practice afterwards continued for a 
 period of seventy years, and down to the year 1763 ; and was fol- 
 lowed in practice even in this country. Its legality was then 
 tested in England in the Coui-ts of King's Bench, where it was sol- 
 emnly declared, that such warrants were void for uncertainty, b 
 It may now be regarded as settled common law, that a warrant, 
 and the complaint upon which it is founded, to be legal, must not 
 only state the name of the party, but also, the time and place, and 
 the nature of the ofifence, with reasonable certainty, and in New 
 York it is regulated by statutes, c 
 
 In the administration of preventive justice, even at common law, 
 it is believed, that in this coimtry, the following rules are of uni- 
 versal adoption, as law, and are held to be the right of every citizen 
 to have kept sacred, viz : That some probable ground of suspicion 
 must be presented to a magistrate possessing judicial authority, 
 
 a 2 Story on Coust. §1902. 
 
 h Money v. Leach, 3 Burr. 17G7. 
 
 c 1 Eev. Stilt. 93, § 11; Id. 125, § GG, (51); 3 Rev. Stat. 71G, §§ 32 to 3G,
 
 528 TINEEASONABLE SEARCHES A^'D SEIZURES. 
 
 to issue the writ ; that it be supported by oath or affirmation'; that 
 the party charged be allowed to find reasonable, and not oppres- 
 sive bail to answer, to avoid being thrown into prison ; that he 
 have the benefit of the writ of habeas corpus, and thus obtain his 
 release if wrongfully confined ; and that he may be restored to his 
 former liberty and rights, in order to prepare for a judicial exami- 
 nation of his case by a day in court. 
 
 "A statute which should permit the breaking and entericg of a 
 man's house, and the examination of books and papers with a view 
 to discover the evidence of crime, might possibly not be void, on con- 
 stitutional grounds in some cases, as for instance, books and 
 papers of a pubhc character, retained from their lawful custody ; 
 for females, supposed to be confined in houses of ill fame ; for 
 children, enticed or kept away from parents and guardians ; and 
 for counterfeit money, forged bills and the like ; but the power of 
 the legislature to authorize a resort to tliis process, is one that 
 can be properly exercised only in extreme cases, and it is some- 
 times better, even that crime should go unpunished, than that the 
 citizen should be liable to have his premises invaded ; his trunks 
 broken open ; his private books, letters and papers exposed to the 
 prying curiosity, and the misconstructions of ignorant and suspic- 
 ious persons, and tliis, under the direction of a mere ministerial 
 officer who brings with him such assistants as he pleases, and who 
 will be more likely to select them with reference to physical 
 strength and courage, than to their sensitive regard to the rights 
 and feelings of others. To incline against such laAvs, is to incline 
 on the side of safety." a 
 
 " Instances sometimes occur, in which ministerial officers take 
 such hberties in endeavoring to discover and punish ofienders, as 
 are even more ciiminal, than the ofiences they seek to punish. The 
 employment of spies and decoys to lead men on to the commission 
 of crime, on the pretence of bringing criminals to justice, camiot 
 be too often or too strongly condemned ; and the prying into pri- 
 vate correspondence, by officers, which has sometimes been per- 
 mitted by postmasters, is dhectly in the face of the law, and utterly 
 unjustifiable. The importance of public confidence in the invio- 
 lability of correspondence through the post office, cannot well be 
 
 a Cooley on Const. Limitations, 306.
 
 UNRE.\.S0N.U3LE SEAECIIES AND SEIZUIIES. 520 
 
 overrated ; and the proi)osition to permit letters to be opened at 
 the discretion of a ministerial officer, would be met with general 
 indignation. The same may be said of private coiTespondenee by 
 telegraph ; tlie i)ublic are not entitled to it for any purpose ; and 
 a man's servants, with the same propriety, may be subpojned to 
 bring into court his private letters and journals, or a telegraph 
 operator to bring in liis private con-espondence. In either case, 
 it would be ecpiivalent to an unlawful and unjustifiable seizure of 
 his papers — such an " unreasonable seizure" as is directly con- 
 demned by the constitution." a 
 
 "They are obnoxious in pmmplc, necessarily odious in the 
 method of execution ; and tend to invite abuse and to cover the 
 commission of crime. We think it would generally be safe for the 
 legislature to regard all those " searches and seizures unreasonable" 
 which have hitherto been known to the law, and on that gi'ound 
 to abstain fi'om authorizing them, leaving the parties and the 
 public to the accustomed remedies." 
 
 While we regard these views of the learned author as worthy of 
 the highest consideration, and in the main sound and judicious, as 
 well as happily expressed ; we are compelled to admit, that there 
 are two sides to this question. In these modern days, when vil- 
 lainy is calling to its aid the highest and chiefest experts in science ; 
 when intellect and skill can receive the highest reward in criminal 
 employments ; the sound old maxim mlus ^'^opidl supremalex,m\xs,i 
 be called into application, to defend the public, and aid to secure its 
 safety. There is the known, and generally well understood imphed 
 assent on the part of every member of society, that his own indi- 
 %'idual welfare, his property, liberty, and even his life, shall, under 
 iircumstances of emergency, or extreme necessity, be yielded to 
 the public safety, or the public good ; that private mconvenience 
 and even mischief, shall be endured rather than great pubhc incon- 
 venience. This is based on the very nature of the social compact, 
 and upon which all municipal law is founded, that even indi^•idual 
 liberty is given up to insure the safety and well being of the 
 public. 
 
 a Id. 307. 
 
 67
 
 630 ACCUSATION AND TRIAL FOR CRIME. 
 
 Little need be said upon tliis constitutional security to the citi- 
 zen, other than to refer to the provision in both national and state 
 constitutions, in relation to it. No person shall be held to answer 
 for a capital or otherwise infamous crime, unless upon the pre- 
 sentment or mdictment of a grand jury. The statutes of the state 
 have regulated the mode of their selection, and have secured to the 
 citizen, the benefit of a high class and character of citizens to com- 
 pose this body, who, before they enter upon the performance of 
 then* duties, are required to be sworn and charged in relation to 
 their duties, by the judge who presides at the court to which they 
 are summoned. There is a minor class of offences called misde- 
 meanors, which the statutes provide may be tried in the inferior 
 courts without indictment. The only other exceptions are those 
 mentioned in the constitution, when the citizen belongs to the land 
 or naval forces, or in the militia in time of war, when in actual ser- 
 vice or in time of danger. He is secured a speedy trial, or, in a 
 case less than capital, if necessity require it, to be bailed out, b}^ 
 reasonable, and not oppressive bail, to enable him within reasona- 
 ble time to prepare for his defence ; he is allowed a public trial, 
 surrounded by the safeguard of a judge to pronounce the law ; he 
 shall previously, be full}*, publicly informed of the nature of his 
 offence or accusation ; he shall have the assistance of counsel to 
 aid him in his defence ; he is entitled to compulsory process to 
 compel the attendance of witnesses ; he is entitled to challenge his 
 jurors, and have them tried as to their peculiarities or prejudices, 
 and in this state, is entitled to peremptory challenge of twenty 
 jurors, on the trial of a capital offence, or for an offence punishable 
 in the state jDrison for ten years or longer ; and for lower offences, 
 to a peremptory challenge of live jurors : a he is entitled to be 
 confronted with his witnesses, in the presence of the jury and the 
 court, and he is not compelled to be a witness to testify against 
 liimself. 
 
 In no other country, and under no other government in the world, 
 is the citizen, who is charged with an offence, so surrounded with 
 substantial safeguards and securities. These are the outlines ; the 
 details, which belong to the subject of practice, are equally protec- 
 tive and liberal towards the accused. But beyond these is the still 
 
 a 2 llev. stilt. TIM, v-^ 'J, 10.
 
 ACCUSATION AND TKIAL FOR CHIME. 531 
 
 furtlier security that ho shall not be twice put in jeopardy by a 
 trial, for the same offence. 
 
 The light, as well as the mode of traverse by a jury of twelve 
 men, is an essential and inestimable security to the accused. This 
 is what is called a common law jury; and he cannot be deprived of 
 iliat number to sit in his case ; even a consent by him to be tried 
 1 1}' a less number, would be mistrial and void, a because it would 
 be a tribunal unknown to the law and constitution, one crea- 
 ted by the parties. He is also entitled by the constitution to have 
 his trial not among strangers, or in a distant or strange neighbor- 
 hood, but in his own vicinage in the district in which the offence 
 is charged to have been committed, and in a district previously 
 fixed by laAv. Thus, he is secured a trial w^here he is known ; 
 where he has the benefit of his own character and standing among 
 his neighbors ; with witnesses near home ; and by jurors who 
 may know not only his character, but that of the witnesses who 
 testify on the trial. He has the benefit of the varieties of opinions 
 of twelve independent men, each entitled to his own way of weigh- 
 ing and appreciating facts as well as witmcsscs, and he cannot be 
 convicted, except by the unanimous verdict of the twelve jurors. 
 
 This is an advantage which can only be appreciated by those 
 who are familliar Avith the practical workings of the system of jury 
 trials in criminal cases. Jurors of equal intelHgence, of equal 
 integrity and conscientiousness, draw different conclusions fi-om the 
 same case. This idea was well expressed by Sir John Vaughn, Kt., 
 Chief Justice of the Common Pleas of England, in a case where there 
 was an attempt to punish a jury for corruptly disagreeing in a case 
 siibmitted to them, h "I would like to know," said the Chief Jus- 
 tice, " whether anything be more common, than for two men, stu- 
 dents, barristers, or judges, to deduce contrary and opposite con- 
 clusions out of the same case in law '? And is there any difference' 
 that two men should infer distinct conclusions from the same 
 testimony? Is anything more known, than that the same author, 
 and place in that author, is forcibly urged to maintain contrary 
 conclusions, and the decisions held, which is in the right ? Is 
 anything more frequent, in the controversies of religion, than to 
 
 a Cancemi v. The People, 18 N. Y. 128. 
 h Yaugbu Iv. Ill; Bushucll's Case.
 
 532 ACCUSATION AND TRIAL FOK CEIME. 
 
 press the same text to opposite tenets? How then comes it to pass, 
 that two persons may not .apprehend, with reason and honesty, 
 what a witness, or many, say, to prove in the understanding of 
 one, phiinly one thing, but in the apprehension of the other, clearly 
 the contrary thing? Must therefore one of these merit fine and 
 imprisonment, because he doth that which he cannot otherwise 
 do, preserving his oath and integrity ? And this often is the case 
 of the judge and jury." 
 
 Another, and perhaps one of the most important pri\dleges of 
 the accused, and not only a privilege but a right, a constitutional 
 right, is, that he shall be allowed a defence by counsel on the trial, 
 when so accused. When we compare the humanity of this right, 
 with the barbarity of the ancient criminal law of England, which 
 denied to persons accused of the crimes of treason or felony, the 
 aid of counsel, it should inspire a feeling of pride in the American 
 citizen, that he lives under the protection of such a government. 
 
 "When an ignorant person, unaccustomed to public assemblies, 
 and perhaps feeble in body or in intellect, was put on trial on a 
 charge of which, Avhether tnie or false, might speedily consign him 
 to an ignominious death ; with able counsel on the part of the 
 government, aiTaj'ed against him ; and all the machinery of the 
 law ready to be employed to produce the evidence of circumstances 
 indicating guilt, it is painful to contemplate the barbarity which 
 could deny him professional aid ; especially, when in most cases 
 he would be imprisoned immediately on being apprehended, and 
 would thereby be prevented from making even the feeble i^repa- 
 rations for defence, that otherwise might have been within his 
 power." a 
 
 This horrible practice continued in England until the year 1695, 
 the seventh of William III, when a statute was passed allowing 
 * counsel to persons indicted for treason. A notable case, (in this day 
 it would be called infamously barbarous), is reported in the sixth 
 volume of the English state trials, which occurred on the day before 
 this statute took effect, but after its passage, William Parkins was 
 indicted for treason. On his arraignment and pleading not guilty, 
 he asked permission " To speak a word ; if your lordship pleases." 
 Lord Chief Justice. " Aye sir, what say you." Parkins. " My lord, I 
 
 a Coolf"}' oil Const. Liiii. .".'!!. Note.
 
 ACCUSATION AND 'i'lilAL FOR CItlME. boo 
 
 navo been kept in hard prison ever since I was committed ; nobody 
 has been permitted to come to see me till Friday last — then my 
 counsel came to me ; and being charged with many facts as I see 
 in tliis indictment, it will bo necessary to have divers witnesses to 
 clear myself of these particulars ; they are dispersed up and down, 
 and I have had no time to look after them, and therefore, I beg 
 your lordship to put olF my trial till another day." 
 
 Lord Ch. J. " AVheu had you hrst notice of your trial V " 
 
 Parkins. " The first notice of my trial was on Vrednesday last, 
 in the afternoon." 
 
 Lord Ch. J. " That is a sufficient time of notice ; sure you 
 might have provided your witnesses and prepared for it by this 
 time?" 
 
 Parkins. " But, my Lord, being kept so close prisoner, I had 
 no opportunity for it, for it was not possible for me to get any 
 body to come to me, till Friday noon, not so much as my counsel, 
 and then, there was but two days, Saturday and Monday, (for 
 Sunday is no day of business,) and it is impossible for me to be 
 ready in the manner that I ought to be. It is a perfect distress and 
 liardship upon me to be put so soon upon my trial without my 
 witnesses, and, what should enable me to make my defence ; there- 
 iiM'c, I humbly intreat your lordship, to put it off till another day." 
 
 After various other interlocutions, immaterial. 
 
 Lord Ch. J. "Tndy, we do not see any reason to put off the 
 trial upon these suggestions." 
 
 Parkins. " My Lord, it is very hard ; then 1 humbly beg that I 
 may have the favor ; that I may have counsel allowed me ; I have 
 no skUl in indictments." 
 
 Lord Ch. J. " We cannot allow counsel." 
 
 Parkins. " My Lord, if I have no counsel, I do not understand 
 these matters, nor what advantage it may be jiroper for me to 
 take in these cases." 
 
 Lord Ch. J. "You are not ignorant, that counsel has always 
 been refused when desired." 
 
 Parkms. " My Lord there is a new act of parliament that is 
 lately made, that allows counsel." 
 
 Lord Ch. J. " But that does not commence yet sir." 
 
 Parkins. "Mv Lord, it wants but one day."
 
 534 ACCUSATION AND TELU:^ FOR CF.BIE. 
 
 Lord Cli. J. " That is as iniicli as if it were for a nmcli longer 
 time. We are to proceed according to wliat the law is, and not 
 what it will be." 
 
 Siifiicieut of the temper and spirit of English judges of that day, 
 appears m the report of this case, where it is shown, that they were 
 removed from all sympathy with the people, and unrestrained by 
 constitution or statute. The want of common humanity in a judge, 
 manifest by his refusal to postpone this case for even one day. 
 when the law would have allowed counsel to the prisoner ; deprived 
 of power to defend himself : needs only the history of the sequel 
 to complete the tyrrany of the act of which we have given the 
 prelude. Parkins was of course convicted, and executed the fol- 
 lowing day, but the sentence of his lordship, should be appended 
 to make the tragedy complete, Avhich was as follows : 
 
 " That you go back to the place from whence you came, and 
 from thence be drawn on a hurdle to the place of execution, 
 where you shall be hanged up by the neck, and cut down alive ; 
 your body shall be ript open ; your privy member be cut off ; 
 your bowels taken out, and burnt before your face ; your hands 
 shall be severed from your body, to be divided into four quarters; 
 and your head and quarters to be at the disposal of the King." 
 
 The mind that could utter this sentence, surely needed some rehef 
 at its close, &e. This was doubtless obtained by his most devout and 
 pious conclusion; "and may the Lord have mercy upon your soul." 
 
 "We have given this extract from the trial of a case under another 
 government, and another system of administering the criminal 
 law, to show the striking contrast between it, and the system 
 under a constitutionally free government ; and while, even in 
 England, now, more liberal views and practice obtains, the same 
 humanity in this respect does not exist, as with us. A Uberal 
 view of construction given to our own constitution, is, that the 
 prisoner is not only allowed counsel, l)ut when he is poor and 
 unable to provide counsel for himself, it is the duty of the court 
 to designate appropriate counsel for him, to be paid by the gov- 
 ernment. Such counsel are not at liberty to decline the duty, 
 but are bound to put forth their best exertions of professional 
 skill to that end, and are bound by all the obligations of duty to 
 their clients, as is required in any other case.
 
 EXCESSIVE JJAIL, VINES, CRUEL AND UNUSUiU. TUNISHMENTS. OJo 
 
 This provision, in general and undefined terms, leaves the amount 
 of punishment, much the subject of discretion by the courts ; but 
 statutes, enacted under the spirit of these provisions arc to be 
 found, not only passed by tlu; nutiomd le^'islature, but also by the 
 legislatiu-es of the states, Avhich fix and hmit the amount of punish- 
 ment that may be inflicted, for nearly each and every offence 
 known to the law to be offences. These provisions would hardly 
 seem to be necessary in a free government, since it is scarcely pos- 
 sible, that any department of such a government should authorize 
 or justify conduct of judges whose action should be ranked as 
 worthy such terms as we have applied to the English judges. 
 They were doubtless adopted by us as an admonition, as Avell as 
 caution to all departments of government, against such violent 
 proceedings as had taken place in England in the arbitrary reigns 
 -of some of the Stuarts. « "In those times, demand of excessive 
 bail was often made against persons who were odious to the court, 
 and its favorites ; and on faihng to procure it, were committed to 
 prison. Enormous fines and amercements were also sometimes 
 imposed, and cruel and vindictive punishments inflicted." Z> Black- 
 stone also informs us, "that sanguinary laws are a bad symptom of 
 the distemper of any state, or at least of its weak constitution. 
 The laws of the Eoman kings, and the twelve tables of the Decem- 
 viri, were full of cruel punishments. The Porcian law, wliich 
 exempted all citizens from sentence of death, silently abrogated 
 them all. In this period the repubhc flourished. Under the 
 Emperor's, severe laws were revived, and then the empire fell." c 
 
 While even some of the states of the union, to their disgi-ace be 
 it said, still continue those disgraceful institutions, the whipping 
 post, the pillory and the stocks ; the progress of public sentiment, 
 and the advancing and more gentle and benign influences of the 
 christian religion, are rapidly creating and working out a moro 
 humane spirit, in regard to pubHc punishments ; and these instru- 
 ments are now viewed, not only as "cruel and unusual," but as 
 absolutely barbarous. 
 
 a 2 Lloyd's Debate, 345. 
 h 2 Story on Const. § 1903. 
 c 1 Black. Com. 17.
 
 53G THE EIGHT TO FEEE DISCUSSION AND PETITION. 
 
 The right of the people peaceably to assemble and to petition 
 the government for a redress of grievances, is a necessary result 
 of the right of being a free citizen. It is a simple, primitive and 
 natural right, a " It is a right, (says Judge Story) which would 
 seem unnecessary to be expressly provided for in a republican 
 government, since it results from the veiy nature of its structure 
 and institutions." b It is impossible that it should be practicall}' 
 denied, until the spirit of liberty had wholly disappeared ; and the 
 people had become so servile and debased, as to be unfit to exer- 
 cise any of the privileges of freemen. " But it has not been 
 thought imimportant to protect this right by statutory enactments, 
 even in England, and indeed it will be remembered, that one of 
 the most memorable attempts to crush out the liberty of the subject, 
 in that country, made the right of petition the point of attack ; and 
 collected for its contemplated victims, the chief officers in the 
 Episcopal hierarchy. The trial and acquittal of the seven bishops 
 under James II, constituted one of the decisive battles in Enghsh 
 constitutional history; and the right which was then vindicated, is 
 a * sacred right,' which, in difficult times, shows itself in its full 
 magnitude ; frequently serves as a safety valve, if judiciously 
 treated by the recipients ; and may give to the representatives, or 
 other bodies, the most valuable information. It may right many a 
 wrong, and the deprivation of it, would at once be felt by every 
 freeman as a degradation." c 
 
 But despotism is the same in all human governments or insti- 
 tutions, where power is unrestrained. This light of petition was 
 resisted even in our own republican form of government in the 
 congress of the United States, Avhen offered by the fiiends of free- 
 dom on the subject of the slave trade ; of the fugitive slave law ; 
 and of slavery ; and to the struggles in that body upon these sub- 
 jects, we may indirectly trace one of the leading causes of the late 
 rebellion, by that portion of the states, with whom the institution 
 of slavery was a favored institution, d The history of this strug- 
 gle belongs not to this work. It is only referred to, as being illus- 
 
 a Cooley on Const. Limits, 319. 
 fi Story on Const. § 1801. 
 c Cooley, 349. 
 
 (Z Benton's Abr of Debates, Vol. 2, 57-GO, 182-188, 43G-M4; Vol. 12, 660-679. 
 705-743; Vol. 13, 5-28, 26C-280, 557-562.
 
 THE FllEEDOM OF SrEECH AND OF THE TEESS. 537 
 
 trative of thu p(jwor of sclf-intcrcst, upon the one hand, against 
 the declared inalienable rights of all men, to hfe, liberty, and the 
 puj'suit of happiness, upon the other. 
 
 THE rriEEDOM: OF SPEECH AND OF THE PRESS. 
 
 It being one of the great fundamental privileges of American 
 governments, that the people are the sovereigns, and that those 
 ■who administer the government are their agents and servants 
 and not their masters ; it woidd have been a political solicism, to 
 have permitted the smallest restraint of the right of the people, to 
 enquu'e into, censure, approve, punish or reward their agents, ac- 
 cording to their merit or demerit. The constitution, therefore, 
 secures to them the unlimited right to do this, either by speaking, 
 ■writmg, printing, or by any other mode of publishing which they 
 may think proper. This being the only mode by which the re- 
 sponsibihty of the agents of the public can be secured, and prac- 
 tically enforced, the smallest infringement of the rights guaranteed 
 by this article, must threaten the total subversion of the govern- 
 ment. For a representative democracy ceases to exist, the moment 
 that the public functionaries are by any means absolved from their 
 responsibility to their constituents ; and this happens, whenever 
 the constituent can bo restrained in any manner, from speaking, 
 writing, or publishing his opinions, upon any pubhc measure, or 
 upon the conduct of those who may advise or execute it. a 
 
 Though tliis amendment to the constitution is in general and 
 imqualified language, yet it is plain, that it imports no more than 
 that every man shall have a right to speak, write, print, or pubhsh 
 his opinions upon any subject whatsoever, without any prior 
 resti-aint, so always, that he does not injure any other person hi 
 his rights, person, property or reputation ; and so always, that he 
 does not thereby disturb the public peace, or attempt to subvert 
 the government, h Chancellor Kent says, c that, " though the law 
 be solicitous to protect every man in his fair fame and character, 
 it is equally careful that the Hberty of speech and of the press 
 should be duly preserved. The liberal communication of sentiment, 
 and enthe freedom of discussion, in respect to the character and 
 
 a Tuckers Black. Vol. 1 297. 
 
 6 2 Story on Const. § 1880. c 2 Vol. Com. 17. 
 
 68
 
 538 TEE FEEEDOM OF SrEECII AKD OF THE FEESS. 
 
 conduct of iniblicmen, and of candidates for public favor, is deemed 
 essential to the judicious exercise of the right of suffrage, and of 
 that control over their rulers, Avhich resides in the free people of 
 the United States. It has accordingly become a constitutional 
 prmciple in tliis country, that everj^ citizen may freely speak, write, 
 and publish his sentiments, on all subjects, being responsible for 
 the abuse of that right, and that no law can rightfully be passed 
 to restrain or abridge the freedom of speech or the press." 
 
 It is neither more nor less than an expansion of the great doc- 
 trine brought into operation in the law of libel, that every man 
 shall be at liberty to pubhsh what is true, with good motives, and 
 for justifiable ends. And with this reasonable limitation, it is not 
 only right in itself, but it is an inestimable privilege in a free gov- 
 ernment. Without such a limitation, it might become the scourge 
 of the republic, first denouncing the principles of liberty, and there- 
 by rendering the most virtuous patriots odious, through the teiTors 
 of the press, introducing despotism in its worst form, a 
 
 That this amendment was intended to secure to every citizen 
 the right to speak, or write, or print, whatever he might please, 
 without any responsibility, public or private therefor, is a suppo- 
 sition too wild to be indulged in by any rational man. This would 
 be to allow to every citizen a right to destroy at his pleasure, the 
 reputation, the peace, the property, and even the personal safety, 
 of every other citizen. A man might, out of mere malice and 
 revenge, accuse another of the most infamous crimes, might excite 
 against him the indignation of all his fellow citizens by the most 
 attrocious calumnies ; might chsturb, nay overturn all his domestic 
 peace, and embitter his parental affections ; might inflict the most 
 distressing punishments upon the weak, the timid, and the inno- 
 cent ; might prejudice all a man's civil, and political, and private 
 rights ; might stir up sedition, rebellion, and treason even against 
 the government itself, in the wantomiess of his passions, or the 
 corruption of his heart. Civil society could not go on, under such 
 circumstances. Men would then be obliged to resort to private 
 vengeance, to make up for the deficiencies of the law ; and assassi- 
 nations, and savage cruelties would be perpetuated with all the 
 frequency belonging to barbarous and brutal communities, h 
 
 a 2 story, § 1880. b Id.
 
 THE niEEDOM OF SPEECH AND OF THE PRESS. 539 
 
 Tlierc is no other reasouable constniction to be given to this 
 clause in the amended constitution, than to hold it to mean a 
 freedom of speech, and of the press, as broad as existed at com- 
 mon law, ■\vhon the constitution, which guaranteed it, was adopted. 
 It was such freedom, that was intendetl to be secured ; and it was 
 not intended that the legislature should possess the power to 
 restrict it, except in those cases of publications injurious to private 
 character, or to public morals or safety, which come strictly within 
 the reasons of civil or criminal liability as then existed also at 
 common law, but where, nevertheless, the common law as we had 
 adopted it, failed to provide a remedy, as for instance, at the 
 time of the adoption of this provision. At common law, it was not 
 actionable, (nor indeed, in this state, is it now,) to imputo the 
 want of chastity to a female, without proof of special damage. It 
 certainly would not be held to be a constitutional abridgment of 
 the freedom of speed i, if the legislature should enact a law creat- 
 ing liability to an action and to damage, for the utterance of such 
 a charge. It is the charge of a grievous wrong, of all others, most 
 destructive to the female character ; and no reason can be found 
 in public policy, for protecting the utterance of such a wrong. 
 Many other analagous cases may be stated. The constitutional 
 provisions do not prevent the modifications of the common law 
 rules of liabiUty for libels and slanders, but they would not permit 
 the bringing of new cases Avithin those niles, when they do not 
 rest upon the same reasons, a 
 
 It is extremely difficult to draw a line which may be adopted as 
 a rule, which shall distinguish between protection or liberty, upon 
 the one hand, and licentiousness upon the other. These two 
 extremes, of liberty and licentiousness, must not be confounded. 
 They are not identical, nor intended to be alike secured in the con- 
 stitution. " It is a weU understood commentary on this provision 
 for the liberty of the press, that it was intended to prevent such 
 previous restraints upon publications as had been practiced by 
 other governments ; and in early times Jiere, to stifle the eftbrts of 
 patriots towards enlightening their fellow subjects upon the rights 
 and duties of rulers. The liberty of the press was to be unre- 
 strained, but he who used it, was to be responsible in the case of 
 
 a Cooley on Const, iSO.
 
 540 THE FEEEDOM OF SPEECU AND OF THE PEESS. 
 
 its abuse ; like the right to bear arms, or to keep fire arms ; wliicli 
 does not protect him who uses them from aimoyance or destruc- 
 tion." a 
 
 " The common hiw is, therefore, left unimpaired by the consti- 
 tution ; ■"■ ^' and 3'et there are some exceptions to this as a general 
 ride. The excej)tions are all founded in a regard to certain public 
 interests, -which are of more importance than the character or 
 tranquihtj of any individual. All proceedings in legislative assem- 
 blies, whether by speech, written documents or otherwise, are 
 protected from sciiitiny elsewhere than in those bodies themselves, 
 because it is essential to the maintenance of public liberty, that in 
 such assemblies, the tongue and the press, should be wholly un- 
 shackled." 
 
 " So proceedings in courts of justice, in which the reputation of 
 individuals may be involved, are to be free from future animad- 
 versions, because the investigation of right, demands the utmost - 
 latitude of inquiry', and men ought not to be deterred from prose- 
 cuting or defending them by fear of punishment or damages. Yet 
 in these instances, if this necessary indulgence is abused for mali- 
 cious purposes, a pretence only being made of the forms of judicial 
 process, the party so conducting himself is amenable to the law.'' 
 
 " The right also of complaining to any public constituted body 
 of the malversation or oppressive conduct of any of its officers or 
 agents, with a viev/ to redress for actual wrong, or the removal of 
 an unfaithful officer, may be justified, because the case will show 
 that the proceeding does not arise fi'om malicious motives, or if it 
 does, because the common interest requnes that such representa- 
 tions should be free." 
 
 " And there are cases of mere private import, such as an honest, 
 though mistaken character of a servant, which, when requested by 
 any one having an interest, the law considers innocent, or privi- 
 leged. These cases are all provided for by the common law, and 
 they go far to render harmless the much decried rule, that truth is 
 no defence in a prosecution for a libel." 
 
 So too, " if a minister of the gospel should be guilty of gi-oss 
 immoralities, and one of his parish should complain to the church 
 in order that an inquiry might be instituted ; or, if a candidate for 
 
 a Commonwealth v. Blanding 3 Pick. E. 313 3H
 
 THE FREEDOM OF SFEECII AND OF THE PRESS. 5-11 
 
 the miuistry should from vicious habits be unfit for the statiou he 
 seeks ; siucc all are mterested in the pmity of the ministerial 
 character, information to those whose duty it is to determine his 
 qualificatious, would not be libMous, if communicated in a spirit 
 of truth and candor, a 
 
 These are the exceptions, " but no state of society could be more 
 deplorable than that which Avould admit an indiscriminate right 
 in every citizen to arraign the conduct of every other, before the 
 pubhc, in newspapers, in hand-bills or other modes of publication, 
 not only for crimes, but for faults, foibles, deformities of mind, or of 
 person. Even admitting all such allegations to be true ; v/hen the 
 accusation is made by public bodies or officers whose duty it is 
 by law to detect and prosecute offences ; the charge and investiga- 
 tion are submitted to, and no spirit of revenge is produced ; but, 
 if private intermeddlers, assuming the character of reformers, 
 should have the right to become public accusors, and when called 
 to account, to defend themselves by breaking into the circle ol 
 friends, families, children, and domestics, to prove the existence 
 of errors or faults which may have been overlooked or forgiven 
 where they were most injurious. The man who is thus accused 
 without lawful process, might be expected to avenge himself by 
 unlawful means ; and duels and assassinations, would be the com- 
 uu)u occurrences of the times. Instances are reccollected where 
 violence and even death has ensued from such proceedings. It 
 was a wise regard to these evils, that the common law has put a 
 check upon the licentiousness of the press, and the expression of 
 opinion by writing, painting etc., when the effect and object is to 
 blacken the character of any one, or to disturb his comfort ; the 
 public good not being the end and pm*poseof such pubhcatiou, 
 or if that is professed, the pubhc peace requiring a different mode 
 of accusation." h 
 
 " The constitutional liberty of speech, and of the press, as we 
 understand it, in general terms, implies, a right to freely utter and 
 publish whatsoever the citizen may please, and to be protected 
 against any responsibility for the publication, except so far as such 
 publications fi'om their blasphemy, obscenity, or scandalous char- 
 acter, may be a pubhc offence ; or, as by then- falsehood and mahce, 
 
 aid. bia.
 
 542 THE FREEDOM OF SFEECH AND OF THE PRESS. 
 
 tlibj may mjuriously affect the private character of indi\'iduals. a 
 The exceptions and qualifications of tliis rule, beyond those given 
 abo\e, partake of the character of questions of practice, and are 
 not i.vithiu the general scope of this work. 
 
 The common law offence of libels against the government or 
 the constitution, on the ground of their criminality in the excite- 
 ment of tumult and disaffection, or a revolutionary spirit, have 
 fallen into disfavor. The general spirit of freedom and independ- 
 ence, is in favor of allowing the right to every citizen to give to the 
 acts and measures of public men, and measures of public policy, 
 the most full and free discussions ; and great allowance is to 
 be made in times of political excitements for the criticisms of 
 what are called the " outs," in the review of the policy measures, 
 and administrations of the " ins." Sharp criticisms, ridicule, and 
 exhibitions of deep feeling, such as a sense of injustice for supposed 
 wrongs engenders, are tolerated, and submitted to, as being wiser 
 than a resort to a more vindictive measure of prosecution, on the 
 ground that a conservative public sentiment is always ready to do 
 justice, and is sufficient to correct the abuse. It is regarded as 
 far more magnanimous, equally certain, and is more satisfactory 
 to the injured party, than the vexatious resort to tbe vengeance of 
 the law. Indeed the occasions are not infrequent, when criticisms 
 upon public ofiicers, upon their actions, character, and motives, are 
 recognized as legitimate, and large latitude, and great freedom 
 of expression is not only permitted, but is to be desired, so 
 long as good faith dictates the communication. There are cases, 
 where it is clearly the duty of every one, to speak with boldness 
 and freedom, what he feels it his duty to say, concerning not only 
 public officers, but concerning those who are presented for public 
 positions. Through the ballot box the electors approve or con- 
 demn those who ask for their suffrages, and though tliis is often 
 a very erring standard, yet it is our own chosen system ; and how- 
 ever emphatic this voice may speak in condemnation or approval 
 of the condemnation uttered by the press, no act'ion lies for the 
 publication, h 
 
 a Cooley on Const. Lim. 422. 
 
 h Howard v. Thompson, 21 Wend- 319 &c. VauWick v. Agpiuwall, 17 N. Y. 191 ; 
 Thorn v. Blanchard, 5 John, 528-530; Hunt v. Bennett, 19 N. Y. 173; Hoot v. King, 
 4 Wend. 113.
 
 THE FREEDOM OF SPEECH AND OF THE TRESS. 543 
 
 Perhaps tlicre is no question of law, more unsettled by general and 
 definite rules, than that of the law of lil)el in our courts; and some 
 confusion in practice has grown out of the thficrencc in the admin- 
 istration of the law between Ubels in civil, and libels in criminal ac- 
 tions. In trials of the latter class, as will be seen by the consti- 
 tution of New York, the jury have a right to determine the law 
 and the fact, a but it cannot be denied that the cases lack uniform- 
 ity in more than one particular, and that they are not quite satis- 
 factory to pohtical public journalists who claim the greatest latitude 
 and most liberal construction of the clause in this respect in the 
 federal constitution. 
 
 Judge Cooley, in his work on Constitutional Limitations com- 
 plams of a peculiarity of views of the New York courts. He says, 
 " T.he narrowness of any such rule, (especially the rule in Eoot v. 
 King), consists in its assumption, that the private character of a 
 public officer is something aside from, and not entering into or 
 influencing, his public conduct, and that a thorougldy dishonest 
 man may be a just minister, and that a judge who is corrupt and 
 debauched in private life, may be pure and upright in his judgments ; 
 in other words, that an evil tree is as lilvcly as any other to bring 
 forth good fruits." Any such assumption, he says, is false to human 
 nature, and the pubUc have a right to assume that a corrupt life will 
 influence pubhc conduct, however plausibly it may be glossed over. 
 They are therefore interested in knowing what the character of 
 their pubhc servants is, as well as that of persons, offering them- 
 selves for then' suffrages. If so, it would seem that there should 
 be some pri^dlege of comment ; that, that privilege could only be 
 hmitcd by good faith and just intention, and of these, a jury might 
 judge, taking into account the nature of the charges made, and the 
 reasons which existed for making them, h 
 
 We have given the above views of an able "vniter upon this 
 |)oint rather to illustrate, the statement above made ; that in dif- 
 f(3rcnt states, under different statutes, and with difierence of judi- 
 cial views of latitude of this constitutional protection, there is not 
 an entire unifonnity of rale, among the states. To attempt to 
 show the variations of this rule in the several states, and the settled 
 
 a Coustitutiou of N. Y; Art 1 § 8. and cases supra. 
 b Cooley on Const. 440
 
 544 THE FREEDOM OF SPEECH A2JD OF THE PEESS. 
 
 i-ule in each, would swell this volume into a digest, or work of 
 practice, and is hardly called for ; therefore, our own \dews as 
 above expressed, is intended to be those only of the settled law in 
 this state, aud which may be gathered from the cases cited in 
 the notes. 
 
 But to these iniles, there will also be found exceptious in a class 
 of cases, where, from reasons of public policy, certain utterances 
 are so absolutely protected, that no inquiiy as to motives, is tole- 
 rated in actions for libel or slander. A single case may be referred 
 to, to prove the exception. No action for slander or hbel can be 
 maintained against a pai-ty, called as a witness in a judicial pro- 
 ceeding, for testimony given as such witness which may reflect 
 upon the character of a party, and which might otherwise be 
 regarded as slanderous, even though malice be charged in the 
 utterance ; though false accusations made voluntarily, in the 
 papers, affidavits and other proceedings, preliminary to the cona- 
 mencement of an action, or to other judicial proceedings for the 
 accusation of crime, are not absolutely protected. Prima facie, 
 they are protected, but actual mahce may be averred and proved; 
 and if proved, the privilege does not protect, a Wanton abuse is 
 not protected by law ; the privity is not to be abused on the part 
 of the witness, nor is a party to be permitted to utter slanderous 
 words against the witness by way of insult, and not in the legiti- 
 mate course of his defence. 
 
 Not materially different from these privileges and this protec- 
 tion, and coming under this same constitutional provision that 
 "every citizen may freely speak," &c.; is the right of counsel who 
 represent parties in judicial proceedings. The value of this right 
 to the counsel, and to the party whom he represents, depends nearly 
 altogether upon the freedom with which he is allowed to act, to 
 speak, to comment upon facts, ch'cumstances, character and con- 
 duct of witnesses and parties whose action or motives may be 
 traced or deduced from the evidence, or fi'om the surroundings and 
 circumstances connected directly, or remotely with the subject of 
 
 a Burlingame v. Eurlir.game, 8 Cowen 141; Jarvis v. Hathawaj', 3 John- 180; 
 Gilbert V. The People, 1 Denio 41; McGlaugliy v. Wetmore, 6 John. 82; Eector 
 V. Smith, 11 Iowa, 3G2 ; Bradley v. Heath, 12 Pick. 163 ; Kean v. McLanglen, 2 
 Searg. & Maule, 471; Ilosmer v. Lovelaud, 19 Barb. Ill; State v, Burnham, 9 N. 
 H. 34.
 
 THE FREEDOM OF srEECII AND OF THE TRESS. 545 
 
 the judicial inqiiiiy in which he is called to act. The law justly 
 and necessarily, in view of the importance of the privilege, allows 
 very great liberty in such cases to counsel, and surrounds them 
 with a protection that is a complete shield in all cases, excei)t iji 
 those, where the counsel has abused his legal privilege, by 
 vising the occasion to gratify his private malice, and unnecessarily 
 heaping slander u})on sonic one connected with the proceeding, a 
 "The question therefore in such cases, is not Avhether the Avords 
 spoken are true ; not whether they are actionable in themselves ; 
 but whether they were spoken in the course of judicial proceedings ; 
 and whether they are relative and pertinent to the cause or sub- 
 ject of the inquiry. And in determining what is pertinent, much 
 latitude must be allowed to the judgment and discretion of those 
 who are intrusted with the conduct of a cause in court ; and a 
 much larger allowance made for the ardent and excited feelings, 
 with which a party or counsel, (who naturally, and almost neces- 
 sarily identifies himself with his client,) may become animated, 
 by constantly regarding one side only of an interesting con- 
 troversy, in which the dearest rights of such party may become 
 involved. And if these feelings sometimes manifest themselves in 
 strong inveoiives, or exaggerated expressions beyond what the oc- 
 casion would strictly justify, it is to be recollected, that this is said 
 to or in the i)resence of a judge who hears both sides ; in w^hose 
 mind the exaggerated statement may be at once controlled, and 
 met by e-sidence and argument of a contraiy tendency from the 
 other party ; and who, from the impartiality of his position, will 
 naturally give to an exaggerated assertion, not wan-anted by the 
 occasion, no more weight than it deserves. Still this privilege 
 must be restrained by some limit, and w^e consider that limit to be 
 this : that a party or counsel shall not avail himself of his situa- 
 tion to gratify private malice by uttering slanderous expressions, 
 either against a party, witness or third person, Avhich have no rela- 
 tion to the cause or subject matter of the inquiry. Subject to this 
 restriction, it is on the whole for the public interest, and best cal- 
 culated to subserve the purposes of justice, to allow counsel full 
 freedom of speech in conducting their cases, and in advocating the 
 rights of their constituents ; and this freedom of discussion ought 
 
 a Hoar v. Wood, 3 Met. 107; McMillan v. Barcla, 1 Biuncy, ISG. 
 09
 
 546 THE FREEDOil OF SPEECH AND OF THE FEESS. 
 
 not to be impaired by numerous and refined distinctions, a In 
 the Court of Errors in this state, it was held that this privilege of 
 counsel in advocating the rights of his cHent, and of the jM^iy him- 
 self ■u'hen he manages his own cause in a judicial proceeding, is as 
 broad as that of a legislative body, however false and malicious 
 may be a charge made by the coimsel, or the party upon such an 
 occasion afiecting the rejiutation of another ; and an action of slan- 
 der will not lie, provided that what is said, be pertinent to the 
 question under discussion, h But it was also held, that proving the 
 defendant knew the charge to be false, would unquestionably be 
 evidence of express malice, and would destroy the defence in this 
 class of cases ; and that the plaintiff in such case, has a right to 
 prove express malice. 
 
 The privileges of a legislator, are expressly protected by both 
 national and state constitutions. It would seem, that something 
 beyond the common right of freedom of speech was intended. 
 While counsel, and parties, and other citizens may be held to ac- 
 count for an abuse of this privilege, the protection to the legislator, 
 would seem from the terms employed, to be an absolute freedom 
 fi'om liability under all circumstances. " For any speech or debate 
 in either house of the legislature, the members shall not be ques- 
 tioned in any other place." This is a broader and more complete 
 immunity than is given to others. Doubtless for an abuse of this 
 privilege, he is amenable to the body of which he is a member, 
 and can be expelled therefrom, but to no other punishment, for 
 freedom of debate. 
 
 " The privilege secured by this constitutional provision, though 
 of a personal nature, is not so much intended to protect the mem- 
 bers against prosecution, for their own individual advantage, as to 
 support the rights of the people, by enabling their representatives 
 to execute the functions of their office without fear, eitber of civil 
 or criminal prosecutions ; and therefore it ought not to be construed 
 strictly, or confined strictly within the literal meaning of the words 
 in which it is expressed ; but to receive a liberal and broad con- 
 struction, commensurate with the design for which it was estab- 
 lished." c It is accordingly held, that this privilege secures every 
 
 a Opinion of Sh.iw, Cli. .J., in Hoar v. Wood, 3 Metealf, 197. 
 
 h Hastings v. Lush, 22 Wend. 410. c Coffin v. Coffin, 4 Mass. 1.
 
 THE FREEDOM OF srEECII AND OF THE TRESS. 547 
 
 member an immuuity from prosccutious for any thing said or done 
 by him as a representative of the people in the exercise of the 
 functions of that office ; -whether such exercise is regular according 
 to the rules of the assembly, or irregular and against tluiir iiiles ; 
 whether the nieiiiber be ^vithin his place, within the house delivering 
 an opinion; uttering a si)eech ; engaging in debate ; giving his vote ; 
 making a written report ; communicating information, either to 
 the house or to a member ; or whether he is out of the house sitt- 
 ing in committee, and engaged in debating or voting therein, or 
 in drawing up a report to be submitted to the assembly ; in short, 
 the privilege m question secures the members, of a legislative 
 assembly against all prosecutions, whether civil or criminal, on 
 account of anything said or done by them, during the session, re- 
 sultmg from the nature, and in the execution of their office. It is 
 hardly necessary to add, that as a legislative assembly has no ex- 
 istence or authority, as such, except when regidarly in session, the 
 members cannot claim this privilege for anything said or done at 
 any other time. It is to be observed, however, that the mere 
 temporary adjournments, for the convenience of the members, and 
 not for the purpose of putting an end to the session, are in fact 
 continuations of and not terminations of it." a 
 
 " But, though a member, in the exercise of the functions of his 
 office may speak, -Avrite, or vote in any manner that he deems 
 proper, and may consequently give utterances with impunity, with 
 what would subject a private person to a prosecution for Hbel or 
 slander ; yet he will not therefore be juatified in printing and pub- 
 lishing what he has spoken, if it contains matter injurious to the 
 character of an individual ; not even if the publication is intended 
 to correct a misrepresentation contained in the report of his speech 
 previously published without his authority or sanction." h 
 
 The representative is not indebted to the will or pleasure of the 
 house for this privilege ; he derives it not from them, but from the 
 highest source of power, the will of the people expressed in the 
 constitution, which is paramount to the will of cither, or of both 
 branches of the legislature. 
 
 While these protections are secured to citizens, parties, counsel, 
 
 a Curtis Law aud Pr. of Assemblies, § G03. 
 b Id. § GOl.
 
 54:8 ' THE FEEEDOM OF SFEECH AND OF THE PRESS, 
 
 ;md legislators, from motives of high public policy upon the one 
 hand, neither the constitution, the law, or public pohcy, will tolerate 
 the destruction of private character upon the other, by a pubhc pub- 
 lication of the procecchngs of the body of the assembly, or courts, 
 to the injury of the character of the citizen. It does not at all 
 follow, that because counsel may speak freely Avhat he believes, or 
 what he is instructed to say, m court, that he may publish his speech 
 containing slanderous imputations out of court. The first was allow- 
 ed in order to discharge a high duty to a client ; but with the ending 
 of the suit, that duty was at an end ; the subsequent publicity 
 must be at his individual peril, if it be unfair, unjust, or injurious 
 to another ; and this rule applies equally to the publication of judi- 
 cial proceedings. Though a fair and impartial account of them is 
 justifiable, and favored in law; an unfair or injurious report reflect- 
 ing upon the character of the citizen, to his prejudice, is not privi- 
 leged as against the injured party. The publisher must find his 
 justification not in the j^riuilegc, but in the truth of the publication, a 
 It is even libelous to publish a correct account of judicial proceed- 
 ings, if accompanied with comments and insinuations tending to 
 asperse a man's character, h The report must be confined to the 
 actual proceeding in court, and must contain no defamatory obser- 
 vations or comments from any quarter whatever, in addition to 
 what forms ^-trictly and properly the legal proceedings, c The 
 case was of privilege of a member of the House of Commons in 
 England, and was plead to an action for libel by a private citizen, d 
 It was the report published by order of the house for the members 
 of the body, and also for sale, which report contained reflections 
 upon the character of the plaintiff. Lord Denman said, "Most 
 willingly would I decline to enter upon an in uiry which may lead 
 to my differing from that great and powerful assembly. But Avhen 
 one of my fellow subjects, presents himself before me in this court 
 demanding justice for an injury, it is not at my option to grant or 
 withhold redress. I am bound to afford it, if the law declares him 
 entitled to it. The desi^ion of the court was imanimous that the 
 privilege did not exist in regard to tho^e copies of the report sold 
 
 a Stanley v. Wc^-b. 4 Siuui. 21. 
 
 /; Thomas V. Croswoll, 7 John 2G4; Coinmomvealtli v. Bliinding, 3 Pick. 304. 
 
 c. Kiiif,' V. Carlisle, 3 B. tV A. 1G7. 
 
 d Stockdale v. Hemsiu-J, 9 Adol A Ellis, 1 ; Pex v. Crecvy, 1 Maule X- Selwiu, 273.
 
 THE FREEDOM OF SFEECII .VXD OF THE TRESS. 519 
 
 to otliers." " Tlio protection of tin; chiiraetor of the citizen, tri- 
 imiplicd over a 'privik<je, claimed to have e>dsted for a period so 
 long, that it had become hoary with iige." a The editor of a news- 
 paper lias a right to publish the fact that an individual has been 
 arrested, and upon what charg>^, but ho has no right -while the 
 charge is in the coui*se of investigation ])eforc tlie magistrate, to 
 assume that the person accused is guilty, or to Iiold him out to the 
 world as such, h Nor is such publication, often, less a public 
 offence. If the nature of the case is such, as to make it improper 
 that the proceedings should be spread before the public because 
 of their immoral tendency, or of the blasphemous or indecent 
 chai'acter of the evidence exhibited, the i)ublication, though impar- 
 tial and full, will be a pubhc offence and punishal)le accordingly, c- 
 
 So ex ixirte proceedings, or mere preliminary examinations, 
 though they may perhaps be called judicial, arc not privileged, and 
 when they reflect in jmiously upon individuals, the publisher derives 
 no protection from theu' having been already delivered in court, d 
 Their tendency is to prejudge those whom the law still presumes 
 to be innocent, and to poison the sources of justice. It is of infi- 
 nite importance to all, that whatever has a tendency to prevent a 
 fair trial, should be guarded against. Every one is liable to be 
 questioned in a court of law, and called upon to defend his life and 
 character. "NVe would then wish to meet a court or a jury of our 
 country with unbiassed minds. 
 
 If anything is more imporiant than another in the administra- 
 tion of justice, it is, that jmymen should come to the trial of those 
 persons on whose guilt or innocence they are to decide, with minds 
 pure and miprejudiced. Is it possible they should do so, after 
 Ua^^Ilg read for weeks, and months before, ex pcuie statements of 
 the emlence against the accused, wliicli the latter had no opportu- 
 nity to disprove or controvert ? By then- o\m public declarations, 
 we know that the minds of jmymen are often preoccupied by such 
 statements, and that they proceed with terror to the discharge of 
 
 a Ciimiibeir Lives of Chancellors, 29;5; King v. Abiuj^don, 1 Kspumss E. 22G. 
 h Usher v. Severance, 2 Appletou, 9. 
 
 c Rex V. Carlisle, 3 B. & A. 1G7; Eex v. Croevy, 1 il. & S. 273. 
 d Stanley v. Webb, 4 Saml. 21; Huff v. Bennett, Id. 120; Matthews v. Beach, 5 
 Id. 256.
 
 550 THE FREEDOM OF SFEECH AND OF THE TRESS. 
 
 their duty, from the apprehension that an antecedent bias may 
 influence then- verdict. These publications tend ahke to the con- 
 viction of the mnocent, and the acquittal of the giulty. 
 
 The pubhcation of proceedings in courts of justice where both 
 sides are heard, and matters aveJinaJhj determuied, is salutary, and 
 therefore pennitted. The pubhcation of these prelim maiy pro- 
 ceedings has a tendency to pervert the pubhc mind, and to dis- 
 turb the course of justice ; and it is therefore illegal. Yv^hat is in- 
 jui-ious to individuals and to the community, the law considers 
 criminal, a 
 
 A distinction has been attempted to have settled as law, between 
 editors of public newspapers and other persons, making the former 
 an exception to the general i\ile, on account of the peculiarity of 
 their occupation. It was clauned, that it was their business to 
 disseminate useful knowledge among the people ; — to pubhsh such 
 matters relating to correct events of the day, happening at home 
 or abroad as fell within the sphere of their observation, and as 
 the public curiosity demanded ;— and that it was impracticable for 
 for them at all times, to ascertain the truth or falsehood of the 
 various statements contained in other journals, and it was argued, 
 that if the law were not thus indulgent, some legislative relief 
 might become necessary for the protectionof this class of citizens. 
 The Supreme Court of this state, in a case wdiere this argument 
 was presented, said, b " Undoubtedly if it be necessary to pamper a 
 depraved appetite or taste, (if there be any such) by a republication 
 of all the falsehoods and calumnies upon private character that 
 may find their way into the press — to give encouragement to the 
 widest circulation of these vile and defamatory pubhcations by pro- 
 tecting the retailers of them— some legislative interferance will 
 be necessaiy ; for no countenance can be found for the irrespons- 
 ibility claimed in the common law. That, reprobates the hbeller, 
 whether author or pubHsher, and subjects him to both civil and 
 criminal responsibility. His offence is then ranked with that of 
 the receiver of stolen goods, the perjm-er and suborner of peijmy, 
 
 a Eex V. Fisher, 2 Camp. 5G3-570, Fer. Lord Elleuborough. 
 
 ?> Hotchkiss V. Oliphant, 2 Hill. 513; King v. Koot, 4 Wend. 138; Cooper v. 
 Stone, 21 Wend. 434; Same v. Barber, Id. 105; Same v. Greely 1 Denio, 347; Stone 
 V. Cooper, 2 Deuio, 293; F17 v. Bennett, 28 N. Y. 324.
 
 THE FEEEDOM OF SFEECII AND OF THE FEESS. 551 
 
 the disturber of the public peace, the conspirator, and other offend- 
 ers of a hke character." 
 
 In another case the editor of a pa[)cr attempted to justify the 
 hl)el, by showing that the artichi })ultlished, -svaspubhshedingood 
 faith, having the name of the author attached to it. Chief Justic(i 
 Kent held, that the attempted defence was properly rejected, and 
 said, a " The same principles which are applied to })\dtlic libels, arc 
 applicable to private calumny, and renders all e(jually liable who 
 are in anywise concerned in the publication of it. Individual 
 character must be protected, or social happiness and domestic 
 peace are destroyed. It is not sufficient tliat the printer by nam- 
 ing the author, gives the party agrieved an action against him. 
 This remedy may afford no consolation, and no relief to the injured 
 party. The author may be some vagrant individual who may 
 easily elude process, and if found he may be with(jut property to 
 remunerate in damages. It Avould be no check on the libelous 
 prmtcr who can spread the calumny Avith ease, and with rapidity 
 throughout the commuuit}'. The calumny of the author would 
 fall harmless to the ground without the aid of the printer. The 
 injury is inflicted by the press, which, like other powerful engines, 
 is mighty for mischief as well as for good. I am satisfied that the 
 proposition contended for on the part of the defendant, is as des- 
 titute of foundation, as it is repugnant to principles of public 
 policy." 
 
 The act of publication, is an adoption of the original calumny, 
 which must be defended in the same way as if invented by the de- 
 fendant. The republication assumes and endorses the truth of the 
 charge, and when called on by the aggrieved party, the publisher 
 should be held strictly to the proof. If lie chooses to become the 
 endorser and retailer of private scandal, without taking the trouble 
 of enquiring into the truth of what he i)uV)lislies, there is no ground 
 for complaint, if the law, which is studious to protect the char- 
 acter as the property of the citizen, holds him to this responsibil- 
 ity. The rule is not only just and wise in itself, but if steadily and 
 inflexibly adhered to and applied by courts and juries, will gi-eatly 
 tend to the promotion of truth, good morals and common decency 
 on the part of the press, by inculcating caution and inquiry into 
 a Dole V. Lyon, 10 John. 450.
 
 552 THE FREEDOM OF SPEECH AND OF THE PEESS. 
 
 the truth of charges against private character before they arepub- 
 hshed and cu'cuhited throughout the community, a 
 
 The legishiture of the state of New York in the year 1854 en- 
 acted a statute in some degree modifying the common kiw as above 
 laid down in regard to newspaper pubhcations, h as follows : " No 
 reporter, editor or proprietor of any newspaper, shall be liable to 
 any action or prosecution, civil or criminal, for a fair and true re- 
 port in such newspaper, of any judicial, legislative, or other public 
 ofHcial proceedings of any statement, speech, argument, or debate 
 in the course of the same, except upon actual proof of malice in 
 making such reports, which shall in no case be implied from the 
 fact of the publication. § 2. Nothing in the preceding section 
 contained shall be so construed as to protect any such reporter, 
 editor or proprietor from an action or indictment for any libellous 
 comments or remarks superadded to, and interspersed or connected 
 with such report." 
 
 Some very sensible reasons for a modification of the common 
 law as it regards the publishers of newspapers, may be found in 
 the views of Judge Cooley in his work under the head of " Liberty 
 of Speech and of the Press." c He says, " Among the inventions 
 of modem times by which the world has been powerfully influ- 
 enced, and civilization advanced with wonderful celerity, must be 
 classed the newspaper. Beginning with a small sheet, insignifi- 
 cant alike in manner and appearance, published at considerable 
 intervals, and including but few in its visits, it has become the 
 daily vehicle to almost every family in the land, of information 
 from all quarters of the globe, and upon every subject. Through 
 it, and by means of the electric telegi'aph, the public proceedings 
 of every civilized country, the debates of the leading legislative 
 bodies, the events of war, the triumphs of peace, the storms in the 
 physical world, and the agitation of the moral and mental, are 
 brought home to the knowledge of every reading person, and, to a 
 very large extent, before the day is over on which the events have 
 taken place. And not public events merely are discussed and de- 
 scribed, but the actions and words of public men are made public 
 
 a Mapes v. Weeks, 4 Wtnd. G59; Inman v. Foster, 8 We i<l. G02. 
 b Sess. Laws 1854, Ch. 130. 
 c Cooley, pp. 451-2.
 
 TEE FREEDOM OF SPEECII AND OF THE TRESS. 553 
 
 property ; and any person sniliciently notorious to become the ob- 
 ject of public Liitercst, will tiiid liis movements chronicled in this 
 index of the times." 
 
 " Every party has its newspaper organs ; eveiy shade of opinion 
 on poUtical, religious, hterary, moral, industrial, or liuancial ques- 
 tions has its representative ; every locality has its press to advo- 
 cate its claims, and advance its interests, and even the days re- 
 garded as sacred, have theu' special papers to furnish reading 
 suitable for the tmie. The newspaper is also the medium by 
 means of which all classes of the people comnuuiicate with each 
 other concemmg theu- Avants and desires, and through which they 
 ofifer their wares, and seek bargains. As it has gradually increased 
 in value, and in the extent and variety of its contents, so the ex- 
 actions of the commuuit}' upon its conductors have also increased, 
 until it is demanded of the newspaper publisher, that he shall 
 daily spread before its readers, a complete summary of the events 
 transpu-ing m the v. orld, pubhc or private, so far as those readers 
 can reasonably be supposed to take an mtercst in them ; and he 
 who does not comply with tliis demand must give way to him 
 who wQl." 
 
 The newspaper is one of the chief means for the education of 
 the people. The highest and the lowest in the scale of intelhgence 
 resort to its columns for information ; it is read by those who read 
 noticing else, and the best minds of the age make it the medium 
 of communication with each other on the highest and most ab- 
 struse subjects. Upon politics it may bo said to be the chief 
 educator of the people ; its influence is potent in every legislative 
 body ; it gives tone and direction to pubhc sentiment on each im- 
 poiiant subject as it arises ; and no administration in any free 
 country ventures to overlook or disregard an element as per^'ading 
 in its influence, and withal so powerful. 
 
 Aaid 3-et it may be doubted if the newspaper, as such, has ever 
 influenced at all the cm-rent of the common law in any particular, 
 important to the interests of the publishers. The railway has 
 become the successor of the lung's highway, and the plastic niles 
 of the common law have accommodated themselves to the new 
 condition of things ; but the changes accomplished by the public 
 press, seem to have passed unnoticed in the law, and save only, 
 70
 
 55 i FEEE EXERCISE OF RELIGIOUS OPINION. 
 
 where modifications have been made by constitution or statute, 
 tlie publisher of the daily paper occupies to-day the position in 
 the courts that the village gossip and retailer of scandal occupied 
 two hundred years ago ; with no more privilege and no more 
 protection. 
 
 The rule as to tlie ])rivilcge of publication docs not seem to be 
 chan<^ed when the pubhcation is that of legislative proceedings. 
 Doubtless a member of cougi-css or of the state legislature has a 
 i-ight to pubhsli his speech, but it is upon his own responsibility, 
 and at his own peril if he makes that speech and its publication a 
 vehicle of slander, or a hbel against an individual, a To speak in 
 the legislative body, he is protected by the constitution, privileged 
 to say what he will, but ho must stop then, if the speech contains 
 libellous matter. If he chooses to pubhsh it abroad, other than 
 for the use of the body of which he is a member, his constitutional 
 privilege has ceased, and he may for that be convicted and fined, 
 for the libel, and be held amenable to the citizen whose character 
 has been traduced, h Whether the pubhcit)' given to speeches 
 made in congress by pubhshing them by order of that body in the 
 Glohe, is privileged, has not yet, it seems, been tested by judicial 
 decision. It is exceedingly doubtful whether or not a libel so pub- 
 lished would be privileged. 
 
 FEEE EXERCISE OF RELIGIOUS OPIKION. 
 
 Upon no subject which caUs for the exercise of the human mind 
 is man found to be so incapable of exercising an unprejudiced 
 judgment, asm that of his religious opinions. Prejudices is always 
 incapable of perceiving or of estimating tiaith. The history of the 
 persecutions in bigoted governments of other days, was a sufficient 
 ground for providing this constitutional security. Neither force or 
 violence, but reason and conviction, should dictate to us the relig- 
 ion, or duty, we owe to our Creator, as weU as the manner of dis- 
 charging it. In vain therefore may the civil magistrate intei-pose 
 the authority of human laws, to prescribe that beUef, or produce 
 that conviction, which human reason rejects ; in vam may the sec- 
 ular arm be extended, the rack stretched, and the flames kindled, 
 
 a King v. Abingdon, 1 Eshmasse, 220. 
 b Eex V. Creew, 1 M. & S. 278.
 
 FREE EXERCISE OF RELIGIOUS OriNION. 555 
 
 to realize the tortures denounced against unbelievers by all the 
 various sects of tlie various denominations of fanatics and enthu- 
 siasts throughout the earth. The martyr at the stake, glories in 
 liis toi-tures, and proves that though human hxws can punish, they 
 cannot convince. Tlie pretext of religion, and tlie pretences of 
 sanctity and humihty, have been employed throughout the world 
 as the most du-ect means of gaining influence and power, and liavo 
 all failed to accompKsh that end. Hence, as we learn from liistory, 
 the numberless martyrdoms, and massacres that have drenched 
 the whole earth with blood, fi-om the first moment that civil and 
 reUgious institutions were blended together. To separate these 
 institutions by constitutional barriei-s that can never be overcome, 
 is the only means by which (jur duty to God ; the peace of man- 
 kind ; and the genuine fruits of charity and paternal love, can be 
 presen-ed, or properly discharged. This constitutional prohibition, 
 therefore, may be regarded, as the most powerful cement of the 
 federal government. Those who prize the union of the states, will 
 never attempt to touch this fundamental article with unhallowed 
 hands. *' The ministry of the unsanctified sons of Aaron, in their 
 unhallowed doing, scarcely produced a flame more sudden and 
 more destnictive, than such an attempt would ine"vitably excite." a 
 Nor can it be charged that this article, was the result of a feeling 
 of infidelity, or want of respect to the sanctions of religion, on the 
 pai"t of the patriot fathers who prepared it. " Indeed, in a republic, 
 there would seem to be a pecuHar propriety in viewing the chris- 
 tian religion, as the great basis on which it must rest for its sup- 
 port and permanence. It may be regarded as above all others, the 
 religion of liberty." h Montesquieu has remarked, that the christian 
 rehgion is a stranger to mere despotic power. The mildness so 
 fi-equently recommended in the gospel, is incompatible with the 
 despotic rage with which a prince punishes his subjects and exer- 
 cises himself in cnielty. c It is the christian rehgion, that in 
 spite of the extent of the empire, and the influence of the climate, 
 has lundered despotic power from being established in Ethiopia, 
 and has carried into the heart of Africa the manners and laws of 
 Eui'ope. cl Citizens professing to believe in the christian religion, 
 
 a Id. 12 Story ou Const. § 1783. 
 
 c Montesquieu's Spirit of Laws, B. 2-1 Ch. 3. d Id.
 
 5oG FKEE EXEECISE OF EELIGIOUS OEINION. 
 
 are infinitely more enlightened as to the various duties of life; 
 having the wannest zeal to fulfill them. The more tliey believe 
 themselves indebted to religion, the more they recognize the duties 
 they owe to their country. The principles of Christianity when 
 deeply engraven on the heart, are far more powerful than the influ- 
 ence of the false honor of monarchy, the human virtues of a 
 repubhc, or the servile fear of a despotism. " The rights of con- 
 science, however," says Judge Story, a " are, indeed beyond the 
 just reach of any human power. They are given by God, and 
 cannot be encroached upon by human authority, without a crim- 
 inal disobedience to the precepts of natural, as well as revealed 
 rehgion." 
 
 " This amendment," ho says, " cut off the means of religious 
 persecution (the vice and pest of former ages,) and of the subver- 
 sion of the rights of conscience in matters of religion, which had 
 been trampled upon, almost from the days of the Apostles, to the 
 present age. The history of the parent country, had afforded the 
 most solemn warnings and melancholy instructions on this head ; 
 and even New England, the land of persecuted puritans as well as 
 other colonies where the Church of England had maintained its 
 superiority, would furnish out a chapter as full of the darkest 
 bigotry and intolerance, as any which could be found to disgrace 
 the pages of foreign annals. Apostacy, heresy, and nonconformity, 
 had been standard crimes for public appeals, to kindle the flames 
 of persecution, and to apologize for the most attrocious triumphs 
 over innocence and virtue." h 
 
 "It was under a solemn consciousness of the danger from eccle- 
 siasticle ambition, the bigotry of the spiritual pride, and the intol- 
 erance of sects, thus exemplified in our domestic, as well as foreign 
 annals, that it was deemed advisable to exclude from the national 
 government, all power to act upon the subject. The situation too, 
 of the different states, equally proclaimed the policy, as well as 
 the necessity, of sucli an exclusion." c 
 
 Perhaps the constitutional provision of the state of New York 
 on this subject, is, as an epitome, as sound a commentary as can 
 
 a 2 Story on Const. § 187G. 
 
 b Id. § 1877, Vol. 1 §§ 53, 72, 73; 4 Black. Com. 43-59. 
 
 c 2 Story on Const. '^ 1789; Elliot's Debates. 195-197.
 
 FKEE EXERCISE OF riELIGIOUS OrESlON. 55 f 
 
 be given of religious freedom, and restriction. " The free exercise 
 and enjoyment of religious pr<ji'essiun and worship, without dis- 
 crimination or prefcrenco, shall forever be allowed in this state 
 to all mankind ; and no person shall be rendered incompetent to 
 be a witness on account of his opinions on matters of reUgious be- 
 lief ; but the liberty of conscience liereby secured, shall not be so 
 constnied as to excuse acts of licentiousness, or justify practices 
 hiconsistent with the peace or safety of the state." 
 
 A fan- commentary upon this provision, in general terms, is, that 
 no law shall be passed creating preferences in favor of one rehgious 
 sect or denomination, or as to their mode of worship over another ; 
 there shall be no established rehgion by the state ; whatever estab- 
 lishes a distinction for or agauist one sect, as against another, is 
 not equal toleration ; is not religious equality ; but has its tendency 
 towards rehgious persecution. A\'liether laws passed authorizing 
 the raising of money by general taxation, to be appropriated to 
 the education of cldldren of one particular religious faith or sect, 
 are not ^■iolations of this fundamental law, is yet to be determined. 
 Whether under color of appropriations for secular education, 
 moneys can be so raised and applied to those of one particular 
 religious faith, is a question for the futui'e. It is clearly, against 
 the spuit and intent of the constitution. 
 
 " This provision, excludes the right to enact laws compulsor}- 
 of attendance upon religious mstmction. The citizen must be led 
 by his OMTi choice and sense of duty, to attend the ordinances of 
 religion. The duties he owes to his Maker, can only be enforced 
 by the admonitions of liis conscience ; human laws cannot enforce 
 tliis by penalties ; nor can they impose any restraints upon the 
 free exercise of religion according to the dictates of each individual 
 conscience. No state or civil authority can come between the 
 finite being and the Infinite, when the fonner is seeking to render 
 that homage wliicli is due, and in a mode which commends itself 
 to his belief, as suitable for him to render, and as is acceptable to 
 its object, a Nor can any restraints be imposed upon a reasonable 
 expression of religious belief. If the beUever regards it his duty 
 to propogate his opinions, the freedom of speech under the other 
 provision of the constitution, secures him the right to do so, subject 
 
 a Coolcy on Liniittitious, 470.
 
 558 FREE EXERCISE OF RELIGIOUS OFINION. 
 
 to the restraints therein imposed. Nearly every state constitution 
 in the Tniou, in similar provisions, confers this privilege. It Avas 
 the intention, that the citizen bo left to adopt his own creed to his 
 own convictions, and both, to such light and understanding as a 
 free inquiiy into his own nature, needs, duty and relation to God, 
 and man will give him. 
 
 AYhile this fi-eedom of opinion is thus secured and conceded, it 
 will be denied by few, " that the promulgation of the gi-eat doc- 
 trines of rehgion ; the being, and attributes, and providence of one 
 Almighty God; the responsibility to Him for all our actions 
 founded upon moral freedom and accountability ; a future state 
 of rewards and punishments ; the cultivation of all the personal, 
 social, and benevolent virtues ; can never be a matter of in- 
 difference in any well ordered community. It is, indeed, difficult 
 to conceive how any civilized society can well exist without them. 
 And at all events, it is impossible for those who beheve in the tnith 
 of Christianity as a divine revelation, to doubt, that it is the espec- 
 ial duty of government to foster and encourage it among all the 
 citizens and subjects. This is a point wholly distinct from that 
 of the right of private judgment in matters of religion, and of the 
 freedom of pubKc worship according to the dictates of one's con- 
 science." a 
 
 "Whatever may be the shades of rehgious behef, all must 
 acknowledge the fitness of recognizing in important human affairs, 
 the supermtending care and control of the Great Governor of the 
 universe, and of acknowledgmg with thanksgiving, His boundless 
 favors, at the same time that we bow in contrition, when visited 
 with the penalties of his broken laws. No principle of consti- 
 tutional law is violated when Thanksgiving, or Fast days are 
 appointed ; when chaplains are designated for the army or navy, 
 when legislative sessions are opened with prayer, or the reading 
 of the scriptures ; or when religious teaching is encouraged by 
 exempting houses of rehgious worship from taxation for the sup- 
 port of state government. Undoubtedly, the spirit of the consti- 
 tution will require, in all these cases, that care be taken to avoid 
 all discrimination in favor of any one denomination or sect ; but 
 the power to do any of these thmgs will not be unconstitutional, 
 a Story on Const. § 1871 .
 
 FREE EXERCISE OF RELIGIOUS OPINION. 559 
 
 simply because of beiug susceptible of abuse. This public recog- 
 nition of religious -worshij), lunvever, is not based entirely, per- 
 haps even mainly, upon a sense of what is due to the Supreme 
 Being liimself, as the author of all good, and of all law ; but the 
 same reasons of state policy which induce the government to aid 
 institutions of charity, and seminaries of instraction, will also in- 
 cline it to foster religious worship and religious institutions, as 
 conservators of the public morals, and valuable, if not indispen- 
 sable assistants to the preservation of the public order." « 
 
 " Nor while recognizing a superintending Providence, are wc 
 always precluded from recognizing also, in the rules prescribed for 
 the conduct of citizens, the patent fact, that the prevailing religion 
 of the states is Christian. Some acts would be offensive to public 
 sentiment in a christian community, and would tend to public dis- 
 order, which, in a Mahomedan, or in a Pagan country, might be 
 passed Avithout notice, or even be regarded as meritorious. The 
 criminal laws of every country have reference in a great degree to 
 prevailing public sentiment ; and punish those acts as crimes, 
 which disturb the peace and order, or tend to shock the moral 
 s-nse of the community. The moral sense, is measurably regula- 
 ted and controlled by the religious belief ; and therefore it is, that 
 those things which, estimated by a christian standard, are profane 
 and blasphemous, are properly punished as offences, since they 
 are offensive in the highest degree to the general public sense, 
 and have a direct tendency to undermine the moral support of the 
 laws, and corrupt the community." h 
 
 Christianity has also been recognized in our judicial decisions , 
 and is so far carried out in our criminal jurisprudence, as that the 
 law will not permit the essential truths of revealed religion- to be 
 ridiculed and reviled. In other words, that blasphemy is an in- 
 dictable offence at common law. c 
 
 Blasphemy has been defined as the speaking evil of the Deity, 
 with an impious purpose to derogate from the Divine Majesty, and 
 to alienate the minds of others from the love and reverence of 
 God. It is pm'posely using words concerning God, calculated and 
 
 a Cooley on Religious Liberty, 171. h Iil. 
 
 c Vidal V. Girard, 2 How. U. S. R. 198; rpclogvupli v. The Coumiouwealth, 11 
 Seai-K. & E. 391.
 
 560 FEEE EXERCISE OF RELIGIOUS OPINION. 
 
 designed to impair and destroy the reverence, respect, and confi- 
 dence due to Him, as the intelligent Creator, Governor and Judge 
 of tlio Avorld. It embraces the idea of detraction, when used to- 
 wards the Supreme Being, and as " calumny," and usually carries 
 tliO same idea, when applied to an individual. It is a wilful and 
 malicious attempt to lessen men's reverence of God, by denying his 
 existence, or his attributes as an intelligent Creator, Governor and 
 ■Judge of men, and to prevent their having confidence in Him. a 
 Blasphemy against God, and contumatious reproaches, and profane 
 ridicule of Clu'ist, or of the Holy Scriptures, are offences punish- 
 able at the common law. h " Such offences have ahvays been con- 
 sidered independent of any religious establishment, or the rights of 
 an established church. They are treated as affecting the essential 
 interests of civil society. There is nothing in our manners or in- 
 stitutions wliich has prevented the application, or the necessity of 
 this part of the common law. We stand in need of all that moral 
 discipline, and of those principles of virtue, which help to bind 
 society together. The people of this nation, and of this state, pro- 
 fess the general doctrines of Christianity as the rule of their faith 
 and practice ; and to scandalize the Author of these doctrines, is 
 not only, in a religious point of view, extremely imj)ious, but a gross 
 violation of decency and good order. Nothing could be more of- 
 fensive to the virtuous part of community, or more injurious to 
 the tender morals of the young, than to declare such profanity law- 
 ful. It would go to confound all distinction between things sacred 
 and profane ; for, to use the words of one of the greatest oracles 
 of human wisdom : Lord Bacon, " Profane scoffing doth, by little 
 and little deface the reverence for religion." Things which cor- 
 nipt moral sentiment, as obscene actions, prints, and writings, and 
 even gross instances of seduction, have upon the same j)rinciplc 
 been held indictable ; and shall we form an exception in these par- 
 ticulars, to the rest of the civilized world ? No government among 
 the polished nations of antiquity ; and none of the institutions of 
 modern Europe, ever hazarded such a bold experiment upon the 
 solidity of the public morals, as to permit vnih impunity, and under 
 
 a Commonwealth v. Kneeland, 20 Pick. 213. 
 h People v. Paiggles, 8 Johu. 290.
 
 FTiEE EXERCISE OF liELIGIOUS OriMON. 5G1 
 
 the sanction of their tribunals, tlic general religion of the com- 
 munity to be openly insulted and defamed, a 
 
 But it does not follow, because blasphemy is punishable as a 
 crime, that tlu'refore one is not at liberty to dispute and argue 
 against the tnitli of the christian religion, or of any accepted 
 dogma. Its "divine origm and truth" arc not so far admitted in 
 the law, as to preclude their being controverted. To forbid dis- 
 cussion upon this subject, except by the various sects of believers, 
 would be to abridge the liberty of speech and of the press m a 
 point which with many, would be regarded as most important of 
 all. Blasphemy, implies something more than a denial of any of 
 the truths of religion, even of the higliest ant! most vital. A bad 
 motive must exist ; there nnist be a wOfid and maUcious attempt 
 to lessen men's reverence for the Deity, or for the accepted religion. 
 But outside of such wilful and maHcious attempt, there is a broad 
 field for candid investigation and discussion, which is as much 
 open to the Jew and the Mahomedan, as to the professors of the 
 Christian faith. No author or printer who fairly and honestly pro- 
 mulgates the opinions with whose tniths he is impressed with, for 
 the benefit of others, is answerable as a criminal. A mahcious and 
 mischievous intention in such case, is the broad boundary between 
 right and An'ong. It is to be collected fxom the ofiensive le^dty, 
 scunillous and approbrious language, and other cii'cumstances, 
 whether the act of the party was malicious, h 
 
 Nor is the constitutional provision of this state, that no person 
 shaU bo rendered incompetent to be a witness on accoimt of his 
 opinions on matters of religious belief, to be interpreted as a repu- 
 diation of the doctiine that the christian rehgion shall remain the 
 common law of the state. The legislative and practicable inter- 
 pretation of this provision, is in harmony with the common law. 
 By the Ee^ised Statutes of this state, c it is provided, that everv 
 person who shall be elected or appointed to any ci^il office or pub- 
 he office, or pubhc trast, before he shall enter on the duties of 
 such tnist, shall take the following oath or affirmation : " I do 
 solemnly swear" or "affirm," as the case may be, " that I will sup- 
 
 a la. 294, per Kent, Ch. J. 
 
 h Updegrftph v. Commonwealtb, 11 Searg. & K. 391. 
 
 c 1 Eev. St lia 
 
 71
 
 ri62 FEEE EXEECISE OF EELIGIOUS OriNION. 
 
 port the constitution of the United States, and the constitution of 
 the state of New York, and that I will faithfully discharge the 
 
 duties of the office of to the best of my ability." This oath 
 
 is required of all executive, legislative, judicial and civil officers of 
 the state. By another statute provision, a it is further pro\'ided, 
 that the usual mode of administering oaths, now practiced by 
 the person who swears, by laying his hands upon and kissing the 
 gospels, shall b3 obsen-ed in all cases, in which an oath may be 
 administered, except if a person desire it, it shall be : " You do 
 swear hi the presence of the overliving God," he lioldmg up his 
 hand or not, at his discretion ; or to a person having conscientious 
 scruples against taldng an oath, he may bo permitted to make a 
 solemn declaration in the following form : " You do solemnly, 
 sincerely and truly declare and affirm." And the courts are there- 
 by authorized, where they are satisfied that a person has some 
 peculiar mode of swearing, connected with or in addition to the 
 laying his hand upon the gospel, and kissmg the same, which is 
 more solemn and obligatory upon such person, in their discretion, 
 to allow him to be sworn in such other way. And it also provides, 
 that persons believmg in another than the christian religion, may 
 be sworn according to the ceremonies of his religion, instead of 
 the above prescribed modes. So too, every person behoving in 
 the existence of a Supreme Being, who will punish false swearing, 
 may be sworn if otherwise competent. Thus, it is seen, that the 
 gospels, that is, the doctrine of the New Testament, is by the 
 strongest implication, adopted as the religion of the state by its 
 statutes ; and the oath, which is a solemn appeal to God,^with an 
 implied invocation of His curse upon him who makes it, in the 
 event of its violation, is a further acknowledgment of the moral 
 government of God. And under whatever religion, or by Avhat- 
 ever form of oath the person may choose to be sworn, is made 
 equally subject to all the pains and penalties of perjury ; thus 
 holding all persons equally liable to the crime agamst God, against 
 morals, religion and law. 
 
 In all this, while it is seen, that in tlie forms and practice, the 
 statute has fully carried out that other constitutional right, that 
 no person shall be rendered incompetent to be a witness on account 
 
 a 2 llev. Stat. 407-408.
 
 FREE EXEllCISE OF liELIGlOUS Ol'INION. 56i> 
 
 ot his opinions on mtitteis of religious Ijelief ; yet tlio constitution 
 itself has given tlu; (jualifying caution, that this liberty of con- 
 science, so secured, shall not be so constinied as to excuse acts of 
 licentiousness, or justify practices inconsistent with the peace or 
 safety of the state. Montesquieu informs us, " that such was the 
 influence of an oath among the Romans, m binding them to the 
 laws, that they did more for its observance, than they would have 
 done for the thirst of glor}', or the love of theii" country ; that 
 Eome was for a long period of time, held by two anchors, religion 
 and morahty, in the midst of a furious tempest." a 
 
 To this extent, then, do the laws of this christian government 
 give toleration. All religions are recognized by law, to the extent 
 of allowing all persons to be sworn and to give their evidence, who 
 believe in a Supreme superintenthng Providence who rewards and 
 punishes; and that an oath is binding upon their consciences. 
 Wherever the common law remains unchanged, it must be held no 
 violation of religious liberty to recognize and enforce its distinc- 
 tions. The infidelity, or imbelief of a witness, will ever go to his 
 credibihty ; though competent to be sworn, it is for a Christian 
 jury to say, what credibility they will allow to evidence, which is 
 given, without a regard to a Christian's rcsponsibihty to his Maker 
 for its tnith. 
 
 It is upon this piinciple of liberty of speech, and of conscience, 
 that our statutes to prevent the desecration of the christian Sab- 
 bath, excepts the Jew, and all other -persons who regard the sev- 
 enth day of the week as the Sabbath, from liability to the violation 
 of the lawmaking the first day of the week the Christian Sabbath. 
 The law intends not to intermeddle with the natural and mde- 
 feasible right of all men to worship Almighty God, according to 
 the dictates of theu' own consciences ; it compels no one to attend to, 
 erect, or support any place of worship ; or to maintain any minis- 
 try against his consent; it pretends not to control or interfere witli 
 the rights of conscience ; and it estabhshes no preference for an}- 
 religious establishment or mode of worship. It treats no religious 
 doctiine as paramount in the state ; it enforces no unwilling at- 
 tendance upon the celebration of Divine worship. It says not to 
 the Jew or Sabbatarian, " you shall desecrate the day you esteem 
 
 aB. 8, Cb. 13.
 
 56i FREE EXERCISE OF RELIGIOUS OPINION. 
 
 holy and keep sacred to religion, that ice deem to be so." It en- 
 ters upon no discussion of rival claims of the first and seventh da^-s 
 of the week ; nor pretends to bind upon the conscience of any man 
 any conclusion upon a subject which each must decide for himself. 
 It iutiiides not mto the domestic circle to dictate, when, where, or 
 to what God its inmates shall address their orisons, nor does it 
 presiune to enter the synagogue of the Isrealite, or the church 
 of the seventh day Christian, to command, or even persuade 
 their attendance in the temples of those who especially ap- 
 proach the altar on Sunday. It does not in the sh'ghtest degree 
 infringe upon the Sabbath of any sect, or curtail their freedom of 
 worship. It detracts not one horn- from any period of time they 
 may feel bound to devote to this object. Nor does it add a mo- 
 ment beyond what they may choose to employ. Its sole mission 
 is to inculcate a temporary weekly cessation from labor, but it 
 adds not to this requirement any religious obligation, a 
 
 Unquestioned history has taught us, that in all Pagan countries 
 where the Sabbath is unknown ; — where the true God is never 
 adored, the soul of man is debased ; the man prostrates himself 
 before the sun, the moon, monsters, reptiles, blocks of wood, and 
 even to demons. In France, where the Sabbath was for a time 
 abolished, an impious phantom, called the Goddess of Reason, 
 was substituted in the room of the Omnipotent and Eternal God ; 
 the Bible was held up to ridicule, and committed to the flames ; 
 man was degraded, and his mind assimilated to the level of the 
 brutes ; and the cheering prospects of immortalit}-, were trans- 
 formed into the shades of an eternal night. Atheism, Scepticism, 
 Fatalism, almost universally prevailed ; the laws of morality were 
 trampled under foot; and anarchy, and plots, and assassinations, 
 massacres and legalized jDlunder, became the order of the day. 
 With the abolition of the Sabbath, followed the loss of the knowl- 
 edge of God as the Governor of the universe, with all impressions 
 of the Divine presence, and all sense of accountabihty for liiimau 
 actions. The restraints of religion, and the prospect of a future 
 judgment, no loiiger deten-ed from the commission of crimes ; and 
 nothing was left but the dread of the dungeon, the gibbet or the 
 rack, to restrain the people from deeds of cruelty, injustice and 
 
 a Specht V. Commoiuvealtl;, 8 I'eiii). .St. li. 312.
 
 FREE EXERCISE OF RELIGIOUS OPINION. 5G5 
 
 violence. "\Vc arc thus taught hy liistoiy and oxporience, in con- 
 firmation of tlio Divine Eevehition, that tliu Sabbath was origin- 
 ally instituted as a sacred memorial of the liuisliiug of the work of 
 creation ; and in accordance witli the law of tlic Decalogue, it is a 
 day for the contemplation of the perfections and holiness of its 
 Almighty Author. It was a day made for man, as a wise and 
 merciful appointment for a day of rest, repose and reflection.
 
 5GG l■AKLLUIE^•TA^vY LAW AND LEGISLATIVE rKIVILEGES. 
 
 OlIArTEll XV III. 
 
 OF rAELlAMENTAEY LAW; AND OF THE PRIVILEGES AND INCIDENTAL 
 POWERS OF LEGISLATRT^ ASSEMBLIES. 
 
 The legislative department of the government, is one of the three 
 depositories of the sovereign power of the state. It is co-ordinate 
 to the other two departments, the executive and judiciiJ; and 
 within its sphere, is independent of the others. To enable it to 
 perform its appropriate duties, and to exercise its proper functions, 
 it is necessary and essential, that they should possess all needful 
 powers, and all necessary rights and privileges, for the fi-ee and 
 independent exercise of their separate action. 
 
 It would seem to be the natural result of the establishment of 
 such a department, under a constitution recognizing the existence 
 and force of the common law in regard to their powers and privi- 
 leges ; and in the absence of words of restriction, or negative words 
 prohibiting the power or right ; that by necessary implication, 
 (which is equivalent to an express grant,) there is conferred upon 
 each branch of the legislative department, all the powers and 
 privileges necessarily incident to a legislative assembly. 
 
 If the poicers are expressed, and enumerated in the constitution, 
 and no negative or restrictive words are employed as to their 
 privileges, the latter may be implied to be such as are necessarily 
 incident to such a body, and such as exist by the common law. 
 
 These rights and immunities, as well of members individually, as 
 of the body in its collective capacity, are known by the general 
 name oi privilecjes ; and when they are disregarded by any indi- 
 vidual, or authority, whose duty it is to take notice of them., or 
 when they are directly attacked in any way ; or in general, when 
 any impediment or obstruction is interposed to the free action of 
 the legislative assembly or its members, the offence is denomina- 
 ted a breach of pfivilcfje. 
 
 " The privileges of a legislative assembly would be entu'ely inef- 
 fectual to enable it to perform its legitimate fnnc'-tions, if it had no
 
 TARLIAMENTAEY LVW AND LEGISLATIVE PRFVILEGES. 5G7 
 
 power to punish offenders, to impose disciplinary regulations upon 
 its members, or to enforce obedience to its coniniands. These 
 powers are so essential to the authority of a legislative; assembly, 
 that it cannot well exist without them ; and they are consecjuently 
 to be regarded as belonging to every such assembly as a necessar}' 
 incident. The privUc<jes and poicor.H of a legislative assembl}', are 
 therefore so far connected together, that the latter are the neces- 
 sary complement of the former, a 
 
 At an early day, in England, the House of Commons, under the 
 claim of privilege, had so far an'ogated to themselves power, as to 
 exercise cxdmive jurisdiction in all cases comicg directly before 
 them ; and even in cases in which they were only incidentally con- 
 cerned, they denied to all other tribunals, the right to question their 
 power, not only, but they claimed the right to determine for them- 
 selves, what the law of privilege actually was, and, to declare it 
 fi'om time to time to be, whatever their will and pleasure, and their 
 claimed prerogative, dictated it to be. But this arrogant pretence 
 was carried to such an extent, and the usurpation became so 
 odious, that both the judicial, and legislative authorities, were 
 called in, to correct, restrain, modify, and limit this unauthorized 
 abuse of assumed power. So that, since the statutes of 13 Wil- 
 Uam III, and 10 George III, Avhich abridged the powers and 
 pri^^leges of parliament, the courts have taken notice of, declare, 
 and decide, the extent of these powers and privileges, whenever they 
 arise in court ; though without prejudice to the right of the house 
 itself to decide upon the question in an equally conclusive manner, 
 if the case comes within their jurisdiction. 
 
 In this country, so far as privileges of legislative bodies, or of 
 the individual members thereof are concerned, they are beheved 
 to be substantially the sanie, as now modified they exist in Eng- 
 land ; but the jJOicers of legislative bodies, and in some of the 
 states their j^^'ivileges, rest upon constitutional, or statute provisions. 
 Therefore, though a legislative assembly may be said to judge 
 exclusively of its privileges, it is only so to certain intents and pur- 
 poses, h 
 
 In England, since the year 1700, and statute of 10 George III, in 
 1770, the powers and privileges of the two houses, have been so well 
 a Gushing on Legislative Assemblies, § 533 . b Coffin v. Coffin, 4 Mass. 32.
 
 568 . PAELIAMENTARY L.VW AND LEGISLATIVE PRIVILEGES. 
 
 defined, regulated and limited b}- statute direction, and judicial 
 construction, that they are now as well defined, established and 
 knoAvn, as an}- portions of the common law ; and this common law, 
 before the American revolution, was adopted and admitted in this 
 country, as controlling and applicable to the colonial and provin- 
 cial legislatures. Since the revolution, portions of this common 
 law has been adopted into the national ; and also into some of the 
 state constitutions ; in other states, it is regulated and limited in 
 their statutes ; with such omissions and restrictions, additions and 
 modifications, as the new and changed circumstances, and more 
 free and liberal institutions have made necessary to a new and im- 
 proved order of things. 
 
 In some of these constitutions and statutes, certain powers and 
 privileges are enumerated in afiirmative language ; sometimes ac- 
 companied by a general provision covering all other necessary 
 powers and privileges ; in some, negative words are used in refe- 
 rence to particular powers ; in some, and especially in the state of 
 New York, there is an express provision in the statute, giving cer- 
 tain i)rivileges to members of the legislature, which, by legal con- 
 struction, excludes all other privileges, so far as regards third per- 
 sons, and as to all persons except individual members of the body 
 themselves, and to the collective body of the assembly; and as to 
 tlieu' jDOwers, if not exj^ressed, they are such well known principles 
 of parhamentary law as are known to themselves, to the courts, 
 and to all other persons. An uncontrolled power in a legislative 
 assembly, equally here, as in England, would be dangerous to the 
 liberties of the citizen. 
 
 Cases can well be supposed, perhaps may have existed, where 
 an uncontrolled power in a legislative assembly may work great 
 injustice. Such cases, however, ought to be the exceptions. Jus- 
 tice Story, in his work on the constitution, a in regard to this point, 
 has wisely said, that " Public bodies, like private persons, are occa- 
 sionally under the dominion of strong passions and excitements ; 
 impatient, irritable and impetuous. Tlio habit of acting togethei, 
 produces a strong tendency to what, for the want of a better word, 
 may be called the corporation spirit, or what is so happily exj)res- 
 sed in a foreign phrase, Vesprit du corps. Certain popular leaders 
 a Story on Const. § 550
 
 BllEACH OF rRn'ELEGE. 5G9 
 
 often acquire au extraordinary ascendancy over tlic body, hy their 
 talents, tlieir eloquence, tlieir intrigues, or their cunning. Mea- 
 sures are often introduced in a hurry, and debated with little care, 
 and examined with less caution. The very restlessness of many 
 minds, produces an impossibility of debating with much delibera- 
 tion, when a measure has a plausible asjiect, and enjoys a momen- 
 tary favor. Nor is it infrequent, to overlook well founded objec- 
 tions to a measure, not only because the advocates of it have httle 
 desire to bring them in review, but because the opponents are 
 often seduced into a credulous silence. A legislative body, is not 
 ordinarily apt to mistrust its own powers, and far less the tempe- 
 rate exercise of those powers. As it prescribes its own rules for 
 its own deliberations, it easily relaxes them whenever any pres- 
 sure is made for an immediate decision. If it feels no check but 
 its own will, it rarely has the firmness to insist upon holding a 
 question long enough under its own view, to see and mark it in all 
 its bearings and relations, &c." 
 
 Among the subjects or offences which a legislative assembly 
 may adjudge to be a contempt, and for which they may inflict 
 punishment, and thus interfere with personal liberty of the citizen, 
 is that of a breach of privilege of the house, or of one of its mem- 
 bers. It is highly important for preservation of order, and for the 
 protection of legislative bodies in the due and proper discharge of 
 their duties for the state, that they, and each of its component 
 members, should possess freedom of action, and be fully protected 
 in their persons ; that they should not be withdrawn or prevented 
 fi'om attendance by causes of a less important character ; but, that 
 for a certain time, at least, they should be excused from obeying 
 any other call, not so immediately necessaiy for the services of 
 the state ; and hence it has always been admitted, that the mem- 
 bers of a legislative assembly, during their ser\-ice and attendance 
 as such, are entitled to be exempted fi*om several duties, and not 
 considered as Hablo to some legal processes to which other citizens 
 are by law obliged to pay obedience, a 
 
 They are entitled by acknowledged parliamentary law, not only 
 to the right of fi'ee attendance, but to be protected in the free en- 
 joyment of the right of speech, debate, and determination in refer- 
 
 a Cufihing's Legislative Assembly, § 529. 
 72
 
 570 BLEACH OF riJlMLEGE. 
 
 ence to all subjects, upou "which they may rightfully be called 
 upon to deliberate and act ; and it is established as a general prm- 
 ciple of parhamentar}' law, that no member of a legislative body 
 can be questioned or punished by any other court or authority, 
 but only by the assembly itself of which he is a member, for any- 
 tlmig said or done by him m that capacity. These rights ami 
 immunities, belong not only to the member himself directly, but 
 also indirectly to the assembly itself. But since the day of the 
 English statutes above referred to, neither house of the British 
 parUament have ever gone the length of claiming an exemption 
 from the operation of criminal laws ; or of attempting to protect 
 themselves from any prosecution for treason, felony, or breach of 
 peace ; and down as late as 1831, Lord Brougham declared, a 
 "That the true gi'oundto use in regard to the law of privilege, 
 is, that it never extends to protect from punishment, though it 
 may extend to protect from cii-il process, and that it never extends 
 to protect from civil process when the object of the process is the 
 delivery up of a person wrongfully detained from a party, and that 
 it is upon tliis ground, that the jurisdiction of the courts can safely 
 and securely rest." 
 
 It can hardly be warranted in this work, to trace the various 
 discrepancies and differences existing in constitutional provisions 
 and statutes relating to parliamentary law in the several states of 
 the Union. To do it justice, it would alone fill a volume. 
 
 In this country, though the same general principles of parlia- 
 mentary law prevail as in England from whence we derived it, 
 yet what are called the law of jyivikges of legislative assemblies, 
 varies in different states of the Union, and is different between 
 the assemblies of the several states, and that of the national 
 assembly. There is no such thing, in this country, as a settled 
 and uniform law of privilege of members to legislative assem- 
 blies. In the national legislature, the law of privilege is secured, 
 and defined, by the express provisions of the national constitution. 
 In some of the inclependent states it is seciued and defined in their 
 state constitutions ; in others only by statute. Among these, the 
 law of privilege is not expressed in language entirely uniform. 
 In the state of New York the privilege of members is conferred 
 a Mr. Long, Wellesley's case, 2 Eals. & 3 Mylne 673.
 
 BREACH OF TRIYILEGE. 571 
 
 by statute in the following words : a " Eveiy member of the 
 legislature shall be privileged from arrest on civil process, duidng 
 his attendance at the session of the house to which he shall l)elonK, 
 except on process issued in any suit brought against him for any 
 forfeiture, misdemeanor, or breach of trast in any office or place 
 of public trust held by him. He shall enjoy the like privilege for 
 the space of fourteen days previous to such session, and also while 
 going and returning from such session, provided such time do not 
 exceed fourteen days ; and also duiing any adjournments that do 
 not exceed fourteen days ; and also while absent from the session 
 by leave of the house. These privileges, also extend to officers of 
 the house while in actual attendance, and each house has the 
 power to pmiisli as a coidcmpt, and by imprisonment, a breach of 
 its pri\ileges, or of the privileges of its members, the an-esting of 
 a member, and for other disorderly conduct against its rules or 
 orders therein specified." 
 
 This power of judging, and of inliicting pimishment for an ad- 
 judged contempt, or breach of pri^ilege conmiittcd against them- 
 selves, and judged of by themselves, however dangerous in theory, 
 inasmuch as these bodies, thus become their own accusers, wit- 
 nesses and judges, is found by experience, to have been subject to 
 very little abuse. Their oato self-respect, and a due respect to 
 pubKc opinion, public censure, and public criticism to which they 
 are amenable, it is believed, will generally restrain them fi'om un- 
 reasonable acts of injustice to the individual citizen. Perhaps the 
 only danger to be apprehended, is, in times of high political excite- 
 ment, when bodies of this kind, controlled by popular and imprin- 
 cipled leaders, excite a spirit, which Judge Story calls, Vesprit du 
 corps, against some supposed violator of privileges or dignity of 
 the body. 
 
 A more real and serious danger to the integiity of the govern- 
 ment, and to a co-ortlinate branch of the sovereignty of the gov- 
 ernment, is when the legislative assembly, in either body of it, 
 shall attempt to exercise tliis seemingly milimited power of pun- 
 ishment for contempts, upon the representatives of another co-or- 
 dinate and coextensive department of the sovereign power of the 
 state. 
 
 a 1 Kev. Stat. 154
 
 572 EEEAcn or rumLEGE. 
 
 In the whole history of this goYcnamcnt, and of the general 
 harmonious workings of its system in the division of its sover- 
 eignty into the three distinct and co-ordinate departments of its 
 power, — the executive, the legislative, and the judicial, — each being* 
 independent of the other within its proper sphere of action, and 
 each, by oiu' theory of government, having no higher tribunal to 
 call them to account for their independent action ; only a smgle 
 case has occuiTcd, in the nation or in any state, in which a con- 
 flict has arisen between them, by which, one of these co-ordinate 
 departments has attempted to coerce another, to wit : one branch 
 of the legislative body, the assembl}- of the state of New York, at- 
 tempting to hold the judicial department of the same state, respon- 
 sible for a claimed breach of privilege of the assembly, in issuing 
 process of arrest by attachment against a member of assembly, 
 for contempt, in the disobedience to a subpoena issued out of a 
 criminal court of original jurisdiction of the said state. 
 
 The case was novel, and unprecedented. It was the occasion of 
 excitement and interest. It was discussed on the part of the as- 
 sembly by a labored report by a committee of the house of assem- 
 bly, in behalf of that department of the government in which the 
 breach of privilege was claimed, and the right to inflict punish- 
 ment asserted, as against the member of the court whose action 
 was complained of. The judge appeared on the day appointed, 
 and argued the question in defence of liis co-ordinate department 
 of the government. The result, settled no parliamentary law, or 
 question of breach of pri\dlege ; its discussion, nevertheless pre- 
 sented the different views of these co-ordinate departments of the 
 government, as to their respective powers and privileges, in such 
 a manner as to make the report of the assembly and the argu- 
 ment of the judge in defence of the judiciary, a matter sufficiently 
 important to be presented to the profession, and to the co-ordinate 
 departments of the government for consideration, whenever it is 
 brought in question there.
 
 EREACII or rr.lYILEGE. 573 
 
 IN THE MATTEK OF HON. PL.VTT POTTEIJ, MUIAIGNED AT THE BAIt OF 
 THE ASSEMBLY, FOIl ALLEGED BIIEACH OF riHVILEGE. 
 
 On the 21st clay of JaDUiiiy, 1870, a subpoena, requiring one 
 Henry Eay to appear and testify as a -witness in a certain criminal 
 [)roceeding pending before the gi-and jury, at the Saratoga Oyer 
 and Terminer, was issued under the authority of the court, the 
 Hon. Piatt Potter, a justice of the Supreme Court, presiding, and 
 was duly served on Mr. Piay, at tin; city of Albany. He declined 
 to obey its mandate, on the ground of his privilege as a member 
 of the assembly of the state of New York. Winsor B. French, the 
 district attorney of Saratoga county, thereupon applied to the 
 coiu't for, and procured, an attachment against Mr. Hay for such 
 disobedience, upon which the latter was arrested, taken before the 
 grand jury, and required to testify on such proceeding. The arrest 
 of Mr. Pay created some excitement in the assembly, of which he 
 Avas a member, as it v\-as claimed to be a flagrant violation of the 
 privilege of that body. A committee was thereupon appointed, 
 to investigate the matter of the arrest. Subsequently the c.-^m- 
 !:iittee made a report, in which, after setting forth the facts of the 
 uhest, and of the examination before them of Justice Potter and 
 others, relative thereto, they proceeded as follows : 
 
 "The question therefore arises, and the only question which 
 your committee is called upon to consider is, whether or not Mr. 
 Hay was exempt from arrest under the process issued in this case. 
 
 The privilege of legislative bodies is as old as the common law, 
 from which we have gathered our liberties, and by which the rights 
 of the people have been and are to be protected. It is older than 
 Marjna Charta, older than the ^xvii of habeas corpus, older than the 
 courts either of law or equit}-, and from the parliament of a nation 
 and legislatures of the states have come those laws and rales of 
 practice which are calcidated to secure to the citizen all the bene- 
 Ilts and privileges conferred by the government under which he 
 may live. Yoiu' committee, m the examination of the question, 
 have found that, in this country, the violations of parliamentary 
 privilege, either of members of congress or of members of state 
 legislatures, have been rare. In the earlier history of the British 
 parliament, when the house of commons, for long years, struggled 
 against the prerogative of the crown, against the overbearing aris-
 
 574 BREACH or rrJTILEGE. 
 
 tocracy of the lords, and against the assumption of power on the 
 part of the courts, which wepe for centuries the mere servants and 
 tools of the crown, we find many instances where the connnons 
 secured and maintained the privileges of members of that body. 
 
 In the case of Shirley v. Fagg, as far back as 1675, Mr. Fagg, 
 a member of the house of commons, was summoned on a process, 
 issuing from the court of chancery, to appear before the bar of the 
 house of lords and plead to an appeal. The house of commons 
 held this to be an unquestioned violation of its privilege, and 
 passed, on the 18th of May, 1675, the following resolution : 
 
 ' Besoh-al, That it is the undoubtful right of this house that 
 none of their members be summoned to attend the house of lords 
 during the session or privileges of the parliament.' (3 Grey, 170.) 
 
 On the 20th of May, 1675, Sir Thomas Leigh, from a commit- 
 tee appointed by the house of commons, gave the following, among 
 other reasons, why a member of the commons was not compelled 
 to appear before the bar of the house of lords, and this, it will be 
 borne in mind, was when the house of lords was sitting as a court 
 of appeals of the British realm : ' The privilege of a member is the 
 privilege of the house, and is a restraint to the proceedings of in- 
 ferior courts, but not to the house itself ;' thus implying that the 
 house whose privilege has been violated is the only body possess- 
 ing the right to pass upon the question whether such privilege 
 has or has not been violated. (2 Grey, 399.) It is laid down as 
 a principle in parliamentary law, in England, that the privilege of 
 parliament extends to all cases except three — treason, felony and 
 breach of the peace. (4 Inst. 25 ; Lex Pari. 381.) 
 
 Sir William Blackstone lays down the following as the privi- 
 leges of parliament : ' 1st. They are at all times exempted from 
 question elsewhere for anything said in their own house during the 
 time of privilege. 2d. Neither a member himself, his wife or ser- 
 vants, for any matter of their own, may be arrested on mesne pro- 
 cess, in any civil suit. 3d. Nor be detained under execution, 
 though levied before the time of privilege. 4th. Nor impleaded, 
 cited or suhpmnaed in any court. 5th. Nor summoned as a wit- 
 ness or juror. 6th. Nor may their lands or goods be distrained. 
 7th. Nor their persons assaulted or character traduced.' (1 Black- 
 stone, 163, 164.)
 
 BREACFI OF nmiLEGE. 575 
 
 Mr. Tbomiis Jelicrsou, in liis note ui)on this quotation of lilack- 
 stone, says : ' The constitution of the United States has only 
 privileged senators and representatives tliemselves from the single 
 act of arrest in all cases except treason, felony and breach of the 
 peace, during their attendance at the session of their respective 
 houses, and in going to and returning from the same, and from 
 being questioned in any other jilace for any speech or debate in 
 either house.' 
 
 ' Under the general authority to make all laws necessary and 
 proper for carrying into execution the powers given them, they 
 may provide by law the details which may be necessary for giving 
 full effect to the enjoyment of this privilege.' He goes on and 
 says further : ' The act of arrest is void ab initio. (2 Strange, 989.) 
 The member arrested may be discharged on motion. The arrest, 
 being unlawful, is a trespass, for which the officer and others con- 
 cerned are liable to action or indictment in the ordinary courts of 
 justice, as in other cases of imauthorized arrest. The court before 
 wliicli the process is returnable is bound to act as in other cases 
 of unauthorized proceeding, and Kable also, as in other similar 
 cases, to have its proceedings stayed or corrected.' He says fur- 
 ther : ' This privilege from arrest, privileges of course against all 
 process, the disobedience to which is punishable by an attach- 
 ment of the person, (the very case in iwint,) as a subpoena ad re- 
 spondendum or tcstijicandnm or a summons on a jury ; and with 
 reason, because a member has superior duties to perform in 
 another place.' He goes on to say : ' When a representative is 
 withdrawn from his seat by summons, the people whom he repre- 
 sents lose their voice in the debate and vote, as they do in his vol- 
 untary absence. When a senator is withdi'awn by summons, his 
 state loses half its voice in debate and vote, as it does in his 
 voluntary absence. The enormous disparity of evil admits of no 
 comparison,' 
 
 In December, 1795, the house of representatives of the United 
 States committed two persons, of the names of Eandall and Whit- 
 ney, for attempting to coiTupt the integrity of certain members, 
 which they considered as a contempt and breach of the privilege 
 of the house ; and the facts being proved, Whitney was detained in 
 confinement a fortnight and Eandall three weeks, and was repii-
 
 576 BEEACn OF rEmLEGE. 
 
 manded by the speaker. The editor of the Aurora, of Philadel- 
 phia, William Duane, was, for defamatory articles, declared to be 
 guilty of breach of the privilege of the senate. 
 
 In the debate in the Duane case, Mr. Senator Pinckney, who 
 opposed the proceedings, after citing the privileges of congress, 
 says that each house has power to enforce complete order and de- 
 corum within their own chamber ; to clear the galleries if an audi- 
 ence is unruly, and to punish their own members ; to take care 
 that no arrests except for treason, felony or breach of the peace, 
 shall keep their members from their duty. 
 
 There can be no doubt but that the legislature of the state of 
 New York has as extensive, if not more extensive, privileges than 
 the congress of the United States. It is the successor of the colo- 
 nial legislature, which derived its privileges from the parliament- 
 ary law of England, and is not restricted in its privileges by the 
 constitution of the state. Mr. Pinckney, in the speech quoted 
 above, seemed to intimate that the privileges of state legislatures 
 were more in their discretion than those of congress. 
 
 The constitution of this state, of 1777, declares that the assem- 
 bly should enjoy the same privileges, and do business in Hke 
 manner as the assembly of the colony of New York of right form- 
 e]-ly did. 
 
 It is admitted that the parliament of England, and the courts of 
 law, have cognizance of contempts, and are authorized to punish 
 for such contempts. It is also admitted that the state legislatures 
 have equal authority, because their powers are plenary ; they re- 
 present their constituents completely, and possess all then' powers, 
 except such as their constitutions have expressly denied them ; 
 that congress has no natural or necessary power, nor any powers 
 but such as are given to it by the constitution. Therefore, the 
 constitution expressly and directly exempts members of congi-ess 
 from personal arrest, and, therefore, with congress no further law 
 is necessary, the constitution itself being the law ; still, under the 
 provision of the constitution, which confers upon congress the right 
 to make all laws necessary and proper for carrying into execution 
 the powers vested by the constitution in them, it would be within 
 their power to establish any regulation of law in regard to the 
 breach of their privilege, which they might desire. It is laid down
 
 BREACH OF TRIVILEGE. 577 
 
 by parliamentary ■writer.s that, ' vxvm in oases of treason, felony 
 and breach of tlic peace, to ^\lliL•]l ])iivilege does not extend, as to 
 substance, yet in parliament ameml)er is })rivileged as to the mode 
 of proceeding. The case is first to be laid before the house, that 
 it may judge of the fact and of the grounds of the accusation, and 
 how far forth the manner of the trial may concern their privilege. 
 Otherwise it would be in the power of other branches of the gov- 
 ernment, and even of every private person, under a pretense of a 
 charge of treason, felony and breach of the peace, to take any man 
 from his service in the house, and so as many, one after another, 
 as would make the house what he desired it should be.' 
 
 The rule in this countiy has not been carried to this extent, but 
 the ruling is well estal)lislied that, where any body desu'es the ap- 
 pearance of a member of the legislature, or of congress, as a wit- 
 ness, or in any other manner, first the permission of the house of 
 which he is a member is asked, and then the question is before the 
 house, whether they will or will not grant permission to the mem- 
 ber to attend before any court or other house of parliament. The 
 senate of the state of New York has no right to summon within 
 its presence, or before any committee of that body, any member 
 of the assembly, without first, in due and courteous form, asking 
 permission of the assembly that such member may be summoned. 
 If, then, the senate of the state has no such power, can it in rea- 
 son be contended that a court, an inferior body, and, to a great 
 extent, under the direction and control of the legislatui'e, shall 
 have the power to subpoena, at its will, a member of either house 
 of the legislature, and take him from his duties as a representa- 
 tive of the people ? Your committee are of the opinion that no 
 such doctrine can be maintained, upon any well settled and 
 grounded principles of parliamentary law, as applical)le either to 
 the parliament of England, or to any legislative bodies in this 
 country, and your committee can readily see the great danger to 
 which such assumption of power on the part of the courts would 
 inevitably lead. 
 
 Your committee have examined, with great care, the instances 
 
 of breaches of privilege of the congress of the United States, the 
 
 first parliamentary body in this country, and they find but few 
 
 instances where the privileges of either house of congi-css have 
 
 73
 
 578 BEEACH or TEn'ILEGE. 
 
 been violated. On the 22d of June, 1822, it seems that an assist- 
 ant doorkeeper of the senate of the United States had been sub- 
 poenaed before a committee of the house of representatives, when 
 Mr. Senator Holmes, from the state of Maine, offered a resolution 
 that said assistant doorkeeper be permitted to attend as such wit- 
 ness. During the debate on the resolution, Mr. Foote, a senator 
 fi'om Connecticut, used the following language : ' That as the officers 
 of the senate were not subject to be taken from their duties by the 
 process of any court, so neither could a doorkeeper, by any pro- 
 cess from the other house, be taken from his duties.' It was con- 
 ceded that the doorkeeper was only required to attend before 
 the committee during the recess of the senate, and therefore the 
 discussion ceased. This statement by Senator Foote seems to 
 show the fact to be, that up to that time there was no question but 
 what members of congress, and the officers thereof, were exempt 
 from obeying any writ of subpoena, whether issued by a court or 
 by either house of congress. 
 
 Your committee have found but two English cases in thek re- 
 searches, which would in the least question the prmciples they 
 believe govern questions of this character. The one is the case 
 reported in 1 Salkeld, 279, (Dominus Kex v. Dominus Preston.) 
 There Lord Preston had been committed by the court of quarter 
 sessions for refusing to appear and testify before the grand jury in 
 a case of high treason. He was brought before the court of long's 
 bench on a writ of habeas corpus, when Lord Holt nsed the dic- 
 tum that it was a great outrage, and had he been present at the 
 committal he would have imposed a fine. It does not appear that 
 Lord Preston was even a member of parliament, or that parlia- 
 ment was in session at the time ; nor does it appear that he 
 pleaded his privilege, either as member of parliament or as a peer 
 of the realm. And under the English rule, as your committee 
 understands it, had parliament not been in session, and had the 
 time of exemption after the session of parliament expired, then 
 Lord Preston would not have been exempt from testifying before 
 the grand juiy in a case of high treason. The next is the case of 
 Lord Ferrers, Avliich occun^ed in 1757. An attachment issued 
 against Lord Ferrers out of the court of Westminster Hall for re- 
 fusing to obey a writ of habeas corp/us which liad been issued,
 
 IJUKACH OF nm'ELEGE. 579 
 
 requiring liiin to procluco in the court of Westminster Hull the 
 body of Lady Ferrers, she allej^ang, Ijy prayer adchressed to the 
 chief justice, that the conduct of her husband was so harsh, tyran- 
 nical and abusive, and so eij langered her peace of mind and her 
 life, that she recjuired to be i)resent at the court to present her 
 petition, and ask its protection. In that case it was a refusal to 
 obey a Mrit of habeas corpus, Avhere the party who was required 
 to obey such writ had, as appeared to the court, been guilty of a 
 breach of the peace, to wit : physical abuse to Lady Fen-ers. 
 Under these circumstances the house of lords passed the following 
 resolution : 'It is hereby ordered and declared that no peer or 
 lord of parUament hath privilege against being compelled, by pro- 
 cess of the courts of Westminster Hall, to pay. obedience to a Avrit 
 of habeas coi'pus directed to hiui.' 
 
 The writ of habeas corpus re(]uires not the presence of the mem- 
 ber himself, but the production of some person alleged to be in liis 
 custody or under his control, and therefore can be complied with 
 without the necessity of the member being absent from his duties 
 in the liouse of which he may be a member, and is very different 
 from arrest under a process issued out of coui-t, which actually 
 takes the body of the member, and therefore takes him from his 
 duties in the house to which he has been elected. 
 
 The people of the state of New York very early took into con- 
 sideration this question of privilege ; and the legislature, as far 
 back as the 20tli of February, 1788, passed the following statute : 
 
 ' Every member of the legislature shall be privileged from arrest 
 on civil process during his attendance at the session of the house 
 to which he shall belong, except on process issued in any suit 
 brought against him for any forfeiture, misdemeanor or breach oi 
 trust in any office or place of public trust held by him.' (Laws of 
 1788 ; 1st ed. of Ecviscd Statutes, vol. 1, p. 154.) 
 
 This quahfication would indicate that in all other cases the 
 member was absolutely exempt from arrest. 
 
 ' The gentlemen who appeared before the committee seemed to 
 press very strongly the idea that an attachment was not a civil 
 process. There can be no question but what the subpa}na issued 
 in this case was a civil process, and, under the authorities above 
 cited, void ah initio. Therefore vour committee cannot see bv
 
 580 BEEACH OF PEIYTLEGE. 
 
 what force of reasoiiiug an attuclimeut issued against a person foi 
 non-compliance with a summons of subpoena can be tortured into 
 a criminal process. In other words, your committee are of the 
 opinion that the proceedings are void from the beginning, and that 
 no legal process can be founded upon one which was void of itself. 
 If a member was privileged from attending on the summons of a 
 grand jury in the first place, his refusal was no contempt of the 
 court out of which such process issued, for he had committed no 
 offense. Ho had simply availed himself of a right which the 
 statute of the state and parliamentary law gave him ; and your 
 committee is of opinion that it is a novel doctrine, dangerous in 
 itself, that a person availing himself of the privilege granted to him 
 by the laws and constitution of the land, becomes guilty of a crime 
 and is Hable to arrest for the exercise of the privilege thus con- 
 fen-ed upon liim. The distinguished judge himself admitted the 
 danger to wliich the constraction of the statute, which he seemed 
 to deske to press upon the committee, would lead, and it needs no 
 argument to show how dangerous it would be if such a course 
 were allowed to be pursued. There are sixty-two counties in this 
 state. There are sixty-two grand juries sitting, m.any of them 
 during the session of the legislature. Suppose it established that 
 a member is Hable to arrest for disobeying a summons to appear 
 before a grand jury. How easy would it be for designing men to 
 thus deprive the house of members to an extent sufficient to em- 
 barrass its business ; or again, for designing persons to change the 
 political complexion of the house from one party to another, by 
 getting up fictitious charges before a grand jury and issumg sub- 
 poenas to members, and on their non-compliance, issuing attach- 
 ' ments, and causing their arrest and transportation to the difierent 
 shire towms of the covmties. Your committee deem it not neces- 
 sary to follow this line of argument. The mere statement of it is 
 sufficient to show how dangerous such a rule would be. 
 
 Finally, your committee, in full view of the facts, and after a full 
 consideration of the law and precedent governing cases of this 
 kind, have come to the conclusion that the arrest on January 21, 
 1870, of the Hon. Henry Eay, a member of the assembly from the 
 first district of the county of Ontario, on an attachment issuing 
 out of the court of oyer and terminer, then being held in the
 
 BKEACn OF I'KIVILEGE. oSl 
 
 couuty of Saratoga, of Avhich the lion. Tlatt rotter was presiding 
 justice, was a high breach of the privileges of this house by said 
 Potter, aud deserves the censure of this house. And 3'our com- 
 mittee are furtlier of the opinion, tliat "\V. B. French, in causing 
 the issuing of sucli attachment, Avas guilt}' of a high breach of the 
 privileges of this house ; aud that the said Windsor B. French, 
 district attorney as aforesaid, deserves the censure of this house. 
 Your committee are also of the opinion, that the arrest of Henry 
 Ray, in the city and county of Albany, by Mr. Elisha D. Bene- 
 dict, a deputy sheriff of the county of Saratoga, was a high breach 
 of the privileges of this house, and that said officer deserves the 
 censure of this house." 
 
 On the l^th day of February, 1870, the Hon. Piatt Potter had 
 
 served upon him, by the sergeant-at-arms of the assembly, the 
 
 following notice and resolutions : 
 
 State of New York, in Assembly, I 
 Ajlbaxy, Feb. 11, 1870. f 
 
 Hon. Platt Potter: 
 
 Sir — This day the assembly of the state of New York, passed the following 
 resolutions: 
 
 Jlesolved, That the Hon. Piatt Potter, Justice of the Supreme Court of the 
 fourth judicial district, be summoned aud required to appear before the bar of 
 this House, for a high breach of its privilege in issuing an attachment for the 
 arrest of the Hon. Henry Eay, a member of the Assembly of the state of New 
 i'ork, from the first district of the couuty of Ontario ; that the House will then 
 take siich action as the House in ita judgment may see fit. 
 
 Fiesolved, That Hon. Piatt Potter, residing in the city of Schenectady, in the 
 state of New York, be and he is herebj- ordered to attend at the bar of this House, 
 on the 16th day of February, inst., at 12 m., at which time he will have oppor- 
 tunity to make explanation of his conduct in issuing the attachment for the arrest 
 of Hon. Henry Kay, a member of this House; aud this Assembly will then pro- 
 ceed to take further order on the subject. 
 
 By order of the Assembly, 
 
 C. W. ARMSTRONG, Clerk. 
 
 At 12 o'clock at noon of the IGth day of Febniary, Judge Pot- 
 ter appeared at the bar of the assembh- chamber, when the 
 speaker addressed him as follows : 
 
 Mr. Piatt Potter, — You have been summoned to the bar of the 
 assembly of the state of New Y"ork, for a high breach of its pvlvi' 
 leges, in issuing the attachment under which the Hon. Henry luiy,
 
 582 BRItACH OF ITiIYILEGE. 
 
 a member of this house fi-om the first district of Ontario county, 
 Avas arrested and taken from his duties as a member of this house, 
 and conducted to Ballston Spa, in the county of Saratoga, there 
 to testify before a gi-and jury of the court of oyer and terminer, of 
 which court you were the presiding justice. What have you to 
 say in excuse for your conduct in the premises ? 
 
 Mr. Potter inquired if the presence of his counsel would be per- 
 mitted. [Mr. W. A. Beach.] 
 
 Mr. Fields stated that the presence of counsel is unusual. 
 
 The speaker declined to accede to the request. 
 
 Judge Potter : Then I will speak for myself ; and proceeded as 
 follows : 
 
 Mr. Speaker : I appear in obedience to the resolution and order 
 of this honorable body, to give such explanations as I am permit- 
 ted, in relation to what is assumed to be a high breach of privilege 
 in causing the arrest of an honorable member of this house. 
 
 In thus appearing, sir, I do not acknowledge the power of this 
 house — I do not acknowledge the authority of this house to call 
 me to any account whatever ; and coming here by courtesy — only 
 out of resjDect to this house, I proceed to make such statements as 
 I am permitted to make by this honorable house, without waiving 
 the objection, which, l3y counsel, I am advised I might make, and 
 decline to appear here at all by any authority that this house may 
 have over me. 
 
 And while I stand hero, thus giving all respect to this high de- 
 partment of the state government, I also stand here to protest 
 against the legal right — against the legal authority of this body, 
 to call in question my judicial acts performed within the sphere of 
 the judicial department of this same government, in which I have 
 the honor to hold a place. 
 
 I claim, sir, that the judicial department of this government is 
 entrusted with an equal portion of the sovereign power of the 
 state ; that it is possessed of equal dignity with any other ; that 
 it is a department whose powers are co-ordinate and co-extensive 
 with, and entirely independent of, the legislative powder. That, to 
 be sovereign and independent, when acting within its proper 
 sphere, there must exist no other or higher tribunal to call them 
 to account for their independent action. I protest, and claim, sir,
 
 BREACH OF rnn'ILEGE. 583 
 
 that there is no way known to the constitution or huvs of this 
 state by which a judge can be called to account, be tried, de- 
 graded, or the dignity of the judicial office impaired, except by the 
 only method known to the constitution, by way of impeachment 
 for corruption in olHce. Of this there is no pretence here. 
 
 I am not called here, sir, as an individual, to answer lor an in- 
 dividual offence. No, sir, this cas(! assumes vastly gi-eater pro- 
 portions and magnitude than that. Sir, I come as a justice of the 
 Supreme Court of New York ; as one representing the judicial de- 
 partment of the state, to defend my J luUcial action. In speaking 
 in their defence, common propriety demands that I should speak 
 with all respect to this honorable body ; duty to my department 
 equally demands that I, as their representative, should speak with 
 boldness of defence as if that whole body Avere here speaking to 
 an equal. Sir, with all respect, I deny the power ; I deny the 
 legal, the constitutional power of this house to call my judicial acts 
 in question. 
 
 I protest in the name, and as the representative, of the judicial 
 department, to the exercise or to tlie attempted exercise of such 
 a power by this house. I protest in the name of the sovereign 
 people of this state ; I protest in behalf of the constitutional inde- 
 pendence of the judicial department, against the power of this 
 house to punish by censure or otherwise, the individual, for acts 
 performed while exercising the functions of a magistrate of the 
 highest court of oiiginal jurisdiction of this state. 
 
 Sir, I should be a traitor to the interests, to the dignity, to the 
 sacred character of the judicial department, to its independence, 
 to the right to protection, if by any act of mine, or by passive 
 submission, I should consent to the aggressive assumption of power 
 wliich proposes to strike so deadly a blow at their independence ; 
 nay, if I did not with boldness, with fearlessness of consequences 
 to myself, protest, solemnly, earnestly protest, against a proceed- 
 ing so calculated, in its effects, to overawe them in the exercise of 
 their duties, and thus to destroy their independence. 
 
 Sir, if this measure shall be carried out u]ion the assumed 
 powers of this house, what is left of character or of independence 
 to the judicial department? If one department of this government 
 possess the power to command obedience of anotlier of co-exteu-
 
 584: BKEACH OF PRIVILEGE. 
 
 sive and equal power ; if the legislative can usurp the authority to 
 hold iu awe, or punish, the judicial, then indeed have we a despo- 
 potism, and not a government of freedom. If for an official, if for 
 a judicial act of a Judge, this house possess the power to punish, 
 even for mistaken judgment, where is the boasted protection to 
 an independent judiciary? Where Avill there be found a spirit 
 craven enough to accept a place on the judicial bench ? 
 
 Su-, allow me to say, that in my opinion, it will be a sad day for 
 this republic ; a sad day for the liberties of this people, when such 
 a doctrine shall be established. 
 
 "With what ofience, then, am I charged ? Not with having acted 
 corruptly ; but that, as a judge, acting officially, acting in the 
 discharge of a high and solemn duty imposed by the constitution 
 and laws of this state, which I have sworn to support and obey, 
 I had the independence, nay, if you please, the daring to pronounce 
 the law, as I understood it then, and as I understand it now ; yea, 
 more, I feel bound to say here, before this high tribunal, now, in 
 full view of all the terrors of its threatened power, with all the 
 power which it may deem in its power to exert, that as I sfill 
 understand the law of privilege in this state, were I called upon 
 to-morrow to act again as I acted in .this case, as I feel responsible 
 to God only for its conscientious performance, I should repeat the 
 act for which I am now called upon to explain, regardless of any 
 action this house shall take in this matter. 
 
 My offence, then, is that in so pronouncing the law, I have dif- 
 fered in opinion with the honorable committee ; perhaps with the 
 whole house. A high offence, indeed ! But, sir, I have committed 
 no contempt. No contempt has been committed. As a judicial 
 officer so acting, 1 could commit no contempt for which I could 
 be held responsible. It is not the individual who is before you, 
 whose acts you propose to punish by censure or otherwise, that 
 has committed any act whatever. It is a high court of this state 
 that performed the act. ; yes, sir, it is a liigh court that has com- 
 mitted the sin ; and the theory of this proceeding is, that the 
 individual who at the time was clothed by the constitution and 
 laws with the power to execute the sovereign will ; he who was 
 the mere minister of justice, acting according to his solemn sworn 
 convictions ; executing not his ov/n, but the peoples will, that is
 
 JJliJ'AClI OF J'UIVILEGE. 585 
 
 to bo humiliated, threatened, overawed, for daring to do his con- 
 stitutional duty. 
 
 Sir, a case hke this is unheard of. It is an anomaly in this ; it 
 is an anomaly in any and every civilized government upon the 
 earth. Yes, sir, it was reserved for this honorable house, in the 
 year 1870, to initiate such a proceeding. It is an anomaly in every 
 step of its progi'ess. First, in its progi-ess, the judge was sul)- 
 poenaed to appear before an honorable committee of this house, to 
 give evidence of the facts upon which one of its honorable members 
 had been arrested.. To this step no i)ossible objection could bo 
 urged. None was urged. He appeared in obedience to that sum- 
 mons. Knowing his legal protection, little did he imagine that he 
 was called there to be made informer against himself for an offence ; 
 to be used as his own accuser. 
 
 A becoming respect to, and confidence in the body before whom 
 he appeared, forbid such un idea. He was not summoned there 
 for trial. Had he been, he Avould have put himself there, as he 
 does hero, upon his defence. He relied upon a reciprocal confi- 
 dence, upon comity, upon the magnanimity of an honorable 
 committee that no such object was in view as a trial. The legiti- 
 mate duty of that committee^ as he supposed, was, to inquire as to 
 facts, and by wdiat law an honorable member had been arrested ; 
 whether there had been a breach of privilege ; whether the law- 
 was sufficiently protective, and if not to recommend one that 
 should be. He knew that he had acted in the conscientious cou- 
 A^ctions of duty, and that he was not amenable. What had he to 
 fear at the hands of honorable men ? He knew that if he had acted 
 comiptly then only could he be dealt with. He supposed, too, 
 that if any doubt existed as to his rightful exercise of power, that 
 some committee, like that of the judiciar}-, would be selected, and 
 who would dare to place their legal opinion, for which they would 
 be willing to be held responsible before the legal world, upon the 
 records of the legislative department ; that before such a committee, 
 (not now intending disrespect to this,) an opportunitv Avould be 
 given to discuss so grave a question. 
 
 But, sir, with no avowal of such an object ; without a trial, I 
 am charged by that honorable committee, that as a judge of the 
 Supreme Court, I have committed a high breach of priAilege of 
 7i
 
 58G BREACH OF rPiRTLEGE. 
 
 this house ; that as sucli judge, I have struck a blow at the inde- 
 pendence of this co-ordinate branch of the government ; and the 
 theory of your honorable committee is, that this house possess the 
 power to punish by censure or otherwise, without a trial ; not the 
 body who committed the act, but the minister of that department 
 who executed its power. This is an assumption of the pre-eminence 
 of power of this house, an assumption of authority over the judi- 
 cial department, which has no foundation in this government. It 
 is an assumption that the legislative power, or that one branch of 
 its body, is superior in authorit}- to the judicial department. Tliis 
 is an assumption that no lawyer of any standing dare assert ; and 
 one that this house will not stultify its understanding by asserting. 
 If this proposition as to its power is untrue, how can they exercise 
 the power of punishment ? How then is it proposed to' heal this 
 supposed deadly wound upon their dignity of privilege ? They 
 cannot pimish the court ; that is physically impossible. How then 
 can they punish its minister? It is proposed, sir, to heal this 
 Avound by the lex taUonis: the law of the right of retaliation; the 
 right of inflicting alike injury upon a co-ordinate department ; that 
 is, to commit a breach of privilege in return upon the judicial de- 
 parttQent, in satisfaction of the ofience. Sir, I stand here protest- 
 ing against the right to commit such a breach. I stand here 
 claiming the privilege also of the judicial dej^artment. I assert 
 that you have no right to bring these two departments into confhct ; 
 that you would thereby endanger the stability, the perpetuity, the 
 independence of the government, whose trusts you have in part 
 taken in charge. 
 
 Believe not, sir, that I say these things through any fear of con- 
 sequences personal to myself. I well know that as you cannot 
 punish the court with material or physical punishment ; that you 
 cannot punish its members without a trial ; that you cannot try 
 its Judges but by impeachment ; that you cannot impeach but for 
 corruption, and that in the constitutional form. True, you can 
 resolve, you can send forth your resolve in the language of degra- 
 dation, and though there may be degradation, it will not degrade 
 him against whom it is issued. It is not such degradation that I 
 fear ; if such resolution shall be issued, it will fall harmless u]3on 
 him against whom it is issued. Nay, sir, were I ambitious, I
 
 BREACH OF PKIVILEGE. 587 
 
 ■would invite it. I wouki court its favor. But, sir, I Lave no .such 
 ambition ; no ambition, but that in the sight of that God, in whom 
 I trust, to do my judicial duty fearlessly ; to the best of my ability ; 
 unawed, uuterritied, uniuflueuced by caprice or favor — the will of 
 assumed rulers, or the more fearful influence of passion, of popular 
 applause, or of pt)pular excitement and prejudice. 
 
 13ut, before I proceed furtlier upon this view of the case, I pro- 
 pose, candidly for a moment, to look at the law of privilege to 
 members of the legislature of this state, and, witli all intended 
 respect to the argument of your lionorable connnittee, I deny, I 
 solemnly deu}-, that the law of privilege of the British parliament, 
 as claimed by them, is the law of pri\ilege of the state of New York, 
 and I shall show it to be otherwise. I deny that the privilege of the 
 house of congress, is the same law of privilege as that of the legisla- 
 ture of the state of Xew York ; and Avhile I accord to that committee 
 credit for much research into the law of privilege of Great Britain, 
 I shall show that they did not search far enough to find it ; and 
 it will be seen that their report is entirely deficient in the examin- 
 ation of the law of privilege of this state. The law of privilege of 
 members of congress, is not the same law as that of the British 
 parUament ; but is secured to them in the constitution of the 
 United States, wliicli limits and restricts the common law of Eng- 
 land, as cited in that report. The laws of the several states, 
 differ from each other, and differ fi-om that of congress. The law 
 of privilege of the state of New York is peculiar to itself. It is 
 not, as is that of congi'ess, in the constitution, but is regulated by 
 a statute. It is so brief in its provisions, that I shall be excused 
 for repeating it. It is aU embraced in two Knes, to wit : "Every 
 member of the legislature shall be privileged fi'om aiTest on civil 
 process." No lawyer of any standing or credit will deny the rule 
 of constiiiction to be given to this language by a maxim as old as 
 the common law, which apphed to this case, is, " the expression of 
 one privilege is the exclusion of every other." Members of the 
 legislature of this state, by this rule^ are o»?// privileged from arrest 
 on ciuil pi'ocess. 
 
 Would any honorable member of this house ; would any fi'ee 
 citizen of this government, like to see the legislature of this state 
 possess the uncontrollable power of the British parliament, as cited
 
 588 BREACH OF I'lilYlLEGE. 
 
 by yoiu- committee ? AVhy, sir, Blackstono says, " that parliament 
 possesses ' sovereign and nncontrollable authority. The whole 
 sovereign power of the kingdom is vested in it — ^legislative and 
 judicial/' The English writers say, "That with parhament the 
 sovereign power is despotic ; it runs without limit and rises above 
 all control." Is it the law of privilege of such a government, that 
 seems to have charmed your honorable committee? It is the 
 privilege of the law of Great Britain, which your honorable com- 
 mittee claims to be in force in this state. Sir, with all due respect 
 to that honorable committee, I deny it ; and shall show it other- 
 wise. It is the law of privilege of the state of New York only, 
 wliich this house can assert, and which is now before them for 
 their consideration. 
 
 I shall be able to demonstrate, that by that law, no breach of 
 privilege has been committed. It is only from civil process that 
 there is privilege. 
 
 The honorable member has not been arrested on ci\il process. 
 It is impossible in the nature of thiugs that he shou]^l have been. 
 The process in question was issued out of the court of Oyer and 
 Terminer. That court is a criminal court only. It has no juris- 
 diction in civil cases. It cannot issue civil processes. That court 
 possesses the power hke other courts, to compel obedience to its 
 process. All the forms of law were complied with. Disobedience 
 to its process was proved by the proper forms of evidence. The 
 court, composed of three persons, not of one individual, solemnly 
 adjudged that there had been a contempt of its authority. It 
 issued its process to arrest for this contempt. This, sir, is the 
 high breach of privilege complained of. 
 
 AVasthis civil process? Without intending disrespect to any 
 member of this body, I assert it to be little less than an absurdity 
 so to claim. The judiciary of this state I apprehend would be 
 startled at this novel assertion, that this was civil process. The 
 elementary books of authority which influence courts in their 
 opinions, say otherwise. They define "attachment" to be a 
 process in the nature of a criminal proceeding, issuing out of a 
 court of record against a person who has committed some con- 
 tempt of court ; enumerating among other things, " the disregarding 
 of its process," or " omitting to do anything that shows his disre-
 
 BREACH OF PEKILEGE. 589 
 
 garcl of the autliority of the court." JJurriir.s Dictionary, titlo 
 " Attaclimciit." 4 Black. Com., 284. 4 Stephens Com., 19. Peo- 
 ple V. Nevins, 1 Hill, 154. Baily, J., in King v. Clement, 4 Barn, 
 and Aid., 231. Jac. Law Diet. Attachment. 
 
 So, too, in Hke authority, is found the definition of criuiiual 
 proceedings as follows : " Civil proceedings are distinguished from 
 criminal in this — the former are for a civil injury, or for a light 
 due from one citizen to another ; the latter is for a breach of vio- 
 lation of some public duty in wliich the state or community, in its 
 aggregate capacity, are interested." In this state, criminal pro- 
 ceedings are cases in behalf of the people. In the highest court 
 of this state, in the case of Spaulding v. The People, 7 Hill, 303., 
 the character of this process upon which the honorable member 
 was arrested, was expressly passed upon by the court. Chief 
 Justice Nelson, delivering the opinion, (and which case was after- 
 wards affirmed by the Supreme Court of the United States,) said, 
 among other things, "that criminal contempts was where one un- 
 lawfully interfered with the process or proceedings in an action, 
 or by the refusal of a witness to attend or be sworn," &c. " All 
 iliese," says the learned Judge, " are strictly cases of criminal 
 contempts, which have nothing to do with the collection of debts 
 or tlie enforcement of civil remedies.'' Enough perhaps upon this 
 head of civil jyrocess. Except to say, that I concur in the opinion of 
 the Court of Errors of this state ; and this learned committee must 
 excuse me, when I am compelled to say, that, as a Judge, I shall 
 in future act upon that opinion, in preference to theirs, at page 9, 
 of their report, in which they hold the contrary rule. 
 
 They must further excuse me from differing with them in the 
 opinion that a member of the legislature is privileged fi'om the 
 service of a summons or subpoena to give evidence before a grand 
 jury, or that the service of such subpoena or summons is void. In 
 the recent case of Wooley and others against Benjamin F. Butler, 
 decided in the state of Maryland, the defendant was a member of 
 congress ; in passing through that state, he was sen'cd with process, 
 commencing a civil action against him. He applied to the court 
 to set it aside on the gi'ound of privilege. The court held the 
 sen'ice of process, which did not arrest the defendant, to be good, 
 and not void. Either that court was in en-or, or this honorable
 
 590 BREACH OF PERTLEGE. 
 
 committee must be ; and, if between such conilictiug opinions, a 
 Judge should happen to be mistaken in his selection of authority, 
 is he to be punished for contempt ? But, sir, our statute has de- 
 lined what are criminal and what are cicil proceedings. 
 
 By the " Code of Procedure," criminal and civil actions are 
 delined as follows : 
 
 § 2. An action is an ordinary proceeding in a court of justice by 
 which a party prosecutes another party for the enforcement or 
 protection of a right, the redress of a wrong, or the ivmisliment of 
 a public offence. 
 
 § 3. Every other remedy is a special proceeding. 
 
 § 4. Actions are of two kinds. 
 
 1. Civil. 
 
 2. Criminal. 
 
 § 5. A criminal action is prosecuted by the people of the state 
 as a party against a party charged with a public offence for the 
 punishment thereof. 
 
 § 6. Eveiy other is a civil action. 
 
 The proceeding pending in the Court of Oyer and Terminer* 
 before the gi'and jury, was a "criminal action prosecuted by the 
 people of the state as a party against a pai-ty charged with a public 
 offence for the punishment thereof." 
 
 The same definition in substance is given by Burrill of a civil 
 action. He says, " it is an action brought to recover some civil 
 right, or to obtain redress for some wrong, oiot being a crime or 
 misdemeanor. In this latter respect it is distinguished from a 
 criminal action or prosecution." — Bun-ill's Law Die, Civil Action. 
 
 And the same author defines "Civil Eight," to be "the right of 
 a citizen ; the right of an individual as a citizen, to sue for a right 
 due from one citizen to another, the privation of which is a civil 
 injury, for which redress maybe sought in a civil action.'' — Id. Tit^ 
 Civil Eights. 
 
 And the word " civil" is defined to be something " belonging or 
 relating to, or affecting a person as a citizen, relating to or affecting 
 the rights and duties of a citizen, particularly as between one citizen 
 and another."— Id. Tit. " Civil." 
 
 From all these authorities it conclusively appears that "civil 
 jr/ocess' must necesanYily, cx-vi-termini , include only such process,
 
 BREACH OF riilVILEGE. 591 
 
 as Olio citdzeu in by law entitled to luive issued by the eourLs to 
 enforce or aid iai eiilorcing some civil right in his favor against 
 another citizen ov party ; and that criminal process, on the other 
 hand, is such as issues on behalf of the people as a party, to enforce 
 (a' aid in enforcing the criminal law against an offender and for the 
 punishment of a public offence. Nor so far as the definition of the 
 Uirm " cicil proccs^s' is concerned, are we without authority from 
 our highest court. In the People v. Campbell (40 N. Y. 137) the 
 Coui't of Appeals, Mason, Justice, giving the opinion said, " It has 
 never been questioned but such a process as this, to enforce a civil 
 remedy, by the collection of a specitied sum of money is to be re- 
 garded as 'cifil 2)>'ocess.' " 
 
 But, sir, it is still alleged that the Court of Oyer and Terminer, 
 whose jurisdiction is cxclu.sivchj criminai, and Avhicli has no civU 
 jurisdiction "whatever, can yet issue a ciuil process, and that the 
 the subpoena served on Mr. Kay to appear before the grand jury, 
 was such " civil i^rocessy If this was true, still the statute does 
 not '^privilege'" him from such service. A member of assembly is 
 (iiii/j exempted from " arrcsC on ^^ civil process," and not from its 
 •'. //-/'f, v.licre it may be served without an arrest being made. 
 Not being privileged from the service of the subpoena therefore, 
 tiu'ii the statute imposed tlie duty on liiiii to obey its mandate. 
 
 13ut it is further absurdly said, that the subpoena being civil 
 process, nothing can be built upon it, or can grow out of it, that 
 makes the party subpoenaed liable to aiTest. Sir, no lawyer will 
 make such an argument. By a pronsion of the Eevised Statutes, 
 vol. 2, page 278, § 10, it is provided that " Every Court of Eecord 
 shall have power to punish, as for a criminal contempt, persons 
 guQty of the following acts." Among the enumerated acts is, " that 
 of willful disobedience of any process issued by it." And, sir, 
 must not the court issue criminal process in order to punish this 
 disobedience? This, however, is said to be a forced construction ; 
 that it is not, after all, criminal process ; that under such pretence 
 the (.lignitij of this honorable body would be assailed, and its mem- 
 bers withdi-awn from the state interests; it is claimed that the 
 tiiie meaning of tliis statute of privilege is, that it must be a pro- 
 cess that Avoiild aiTest the member for a criminal charge against 
 Imnself. Sii", a refusal to obey the process of thccoiu't is criminal.
 
 592 BREACH OF PRIVILEGE. 
 
 It is made so by statute, 2 Eev. Stat. G92. It is an indictable of- 
 fence. If, instead of the criminal process by attacliment, the 
 honorable member had been indicted by the grand jury for his 
 disobedience ; would the bench warrant issued by the district 
 attorney be civil process? And would not a criminal Icnch icar- 
 ra»f, equally with a criminal attachment, have taken the honorable 
 member from this house ? The question of policy has nothing to 
 do wdth the law. Sir, the idea of arraigning a Judge before this 
 honorable house, for enforcing the law made by your predecessors, 
 which you, as well as he, are bound to obey, is a new idea in the 
 workings of our system of government never attempted till now. 
 
 But, Mr. Speaker, I have spent too much time in showing that 
 I have acted right. So far as your power over me, or over the 
 department of government in which I hold place is concerned, it 
 is immaterial whether I acted right or wrong. Your honorable 
 body have no more power over me in the one case than in the 
 other ; that is, no power at all. 
 
 Sir, your honorable committee, by their report, in which they 
 have regarded me as an offender, but with which they did not favor 
 me with a copy (but for the favor of which I am indebted to the 
 honorable representative of my own county,) have stated supposed 
 cases of almost infinite mischief, if the privilege of members is not 
 made as absolute as they claim. I am not here to discuss such a 
 question. I, too, can suppose cases of monstrous public injustice, 
 if their claimed law of privilege was the law of the land. If a case 
 of murder or felony is committed in the presence or within the 
 knowledge of a member of the legislature ; and if, without his tes- 
 timony before a grand jury or a court, the felon would escape 
 pubhc justice, should there be no power in this government to com- 
 pel his attendance to testify ? Is the dignity of a member of the 
 legislature paramount to the public security ? Do not felons and 
 outlaws now sufficiently abound in community ? Shall new devices 
 be presented beyond the present intricacies of law, by which their 
 escape from punishment shall be secured ? But, sir, my duty was 
 to inquire what is the law ; not what is pohcy. 
 
 It is my duty to say, however, in regard to the particular case 
 before us, in justice to the case of the honorable member whose 
 arrest is complained of here, I neither knew his name, the name
 
 BREACH OF I'KIYILEGE. 593 
 
 of the accused, nor the crime ■with which he was charged. ^Vll I 
 now know about it is, upon the statement of the pubUc prosecutor, 
 th;it upon the testimony alone of that honorable member before 
 llie grand jury, the accused was indicted and is now held for trial. 
 That the accused had been perpetrating enormous frauds upon 
 vliat connnunity, claiming that he Avas acting as the agent of that 
 honorable member. It appears to me, that it should have been 
 the pleasure of that honorable member to do cheerfully, what he 
 did of compulsion ; to give the lie to the foul charge, and bring the 
 culprit, who was assailing his fame, to justice. It is justice to him 
 for me to say, that I do not think his refusal to appear and testify 
 was any indisposition to have crime punished ; but based soely 
 on a mistaken opinion of his privilege as a member. 
 
 I do not further propose to discuss the question of policy presented 
 in the report of y om* honorable body ; nor would it become a judge 
 to discuss with that committee the policy of the law. Judges, 
 when acting as such, must decide what the law is ; not what it 
 should be, nor what policy dictates. If the law is wrong, it is the 
 province of the legislature, not of the Judge, to alter it. If the 
 law is obscure or doubtful, it is equally the duty of the legislature 
 to declare it and make it plain. If its obscurity or uncertainty is 
 such as to make the judiciary doubt, still ihey must act upon their 
 best and most conscientious convictions ; and if they mistake in 
 this — if, in the view taken by this honorable house, which is but 
 another, and only an equal department of the government — an 
 eiTor has been committed, is the latter clothed with power to punish 
 for a mistake of judgment ? Is this the independance of the judi- 
 cial department of the govenunent ? Even if the decision of the 
 judge happens to be upon the question of privilege, must he not 
 still decide upon that question also, A\lien it comes before him ? 
 Sir, no civilized government on earth, and, above all, no free gov- 
 enunent, ever placed their judiciary in circumstances so hazardous, 
 so despotic, as this theoiy proposes ; subject not only to accusation, 
 but subject to have their accusors the judges, who shall try them 
 for the oftence of a mistaken opinion ; and those judges, too, a 
 body easily moved to anger by an3'tliing that looks like an indig- 
 nity offered to their own order. 
 
 Mr. Speaker, I crave the privilege of a single word upon the 
 
 75
 
 59i BEEACH or rRITILEGE. 
 
 acciisatiou made iii the report by your honorable committee. It 
 is not of material facts omitted in their report, which would, if 
 stated, give a more favorable view of the facts of the case, that I 
 complain, although I might complain of that, but for the great 
 injustice (unintentional, no doubt,) of the statement in one short 
 paragraph of the report, not of the evidence, but of the conclusions 
 of the committee ; as follows : They say :' 
 
 " His Honor, Judge Potter, before the committee, in the first 
 place attempted to extenuate or excuse his conduct by a statement 
 that the attachment Avas issued inadvertently, and that his atten- 
 tion was not called to the fact that Mr. Eay was a member of the 
 assembly, although 'it subsequently appeared by the statements of 
 Judge Potter, of the district attorney, and of Mr. Waldron, the 
 surrogate of Saratoga county, that prior to the issuing of the at- 
 tachment, the fact that Mr. Ptay was a member of the assembly, 
 was brought to the knowledge of the judge. It will thus appear 
 that the subpoena was issued to Mr. Haj, and the attachment issued 
 upon return of the service of said subprxaia notwithstanding such 
 knowledge." 
 
 This statement, in its effect, is not only calculated to create pre- 
 judice against me before this house, by whom it is claimed I am 
 to be tried; but to degrade me in public estimation. I did not 
 atterii'pt to extenuate or excuse my conduct ; hut on the contrary, jus- 
 tified the act then as I do noio ; nor was the act done hy inadvertance. 
 That honorable committee will now do me the justice to remember, 
 that though I did state the fact, that at the time I signed the at- 
 tachment, I did not know that Mr. Eay, against whom it was 
 moved, was a member of assembly ; that I signed many on that 
 da}', and this among the number ; that it was not stated at the 
 time in my hearing, that Mr. Eay was a meml)er of the legislature. 
 This I stated as fact ; but I did declare to that committee that I 
 had previously given the public prosecutor, and also to the surro- 
 gate, whom ho sent, the opinion that a member was not privileged ; 
 and I also declared to that committee, that had I known at the 
 time that Mr. Eay was a member, I should have deemed it my 
 duty, to have issued the attachment all the same. I declared it 
 then ; I declare it now to this house, and to the world. Such was, 
 indeed, ray o^^inion. I stated the fact that I did not know of his
 
 BREACH OF rRIMLEGE. 595 
 
 being a representative at the time the process was issued. I 
 stated this as (t fact, because it v.as true ; and because the honor- 
 able chairman called upon nic lirst to state the facts. But, sir, I 
 deny that I claimed to l)e excused, or attempted to extenuate my 
 conduct, for that reason, further than the fact itself should have 
 that effect. Sir, the conclusion that I attempted to excuse or ex- 
 tenuate, is inconsistent Avith avowals before that committee, that 
 I previously advised the public prosecutor of my opinion of the 
 law, on being asked ; it is inconsistent with my avowal that had 
 I known the fact of membership at the time, with my opinions of 
 duty, I should have issued it all the same. The honorable mem- 
 ber from Oswego will remember that he replied to me, that, with 
 my opinion of the law, he did not see how I could do otherwise. 
 In this, sir, that honorable committee (unintentionally, no doubt,) 
 has done me gi-eat mjustice. I thrust back such a charge witli 
 indignation and contempt, as being against all my convictions. I 
 stand here to defend myself upon the broad gi'ound of duty con- 
 scientiously performed, admitting that I had given the opinion 
 stated, but still repeating the fact that when I signed the process, 
 T did not know the name of Henry Ray was that of a member. 
 
 Mr. Speaker, the fear of being tedious, compels me to omit the 
 discussion of many points vital to the subject now pending before 
 this honorable body ; more vital, perhaps, than a mere superficial 
 view would suggest. A conflict between two equal departments 
 of the same government, possessing co-extensive powers, each 
 being sovereign within its own sphere, is fraught with dangers too 
 serious for contemplation — too serious to be disposed of under an 
 an excitement of the moment by the complaining party, who are 
 to sit also in judgment upon their own supposed grievances. For 
 one department, by their action, to attempt thus to reduce another 
 to a statr of servile obedience, or to destroy their independence ; 
 to bring the judiciary into a state of servile dependence upon the 
 legislative will ; would leave the former at the mercy of the latter, 
 and the institution of an independent judiciarj', would perish by 
 its own imbecility, or want of power. 
 
 Permit me to say, Mr. Speaker, v.ith all due courtesy, in all 
 kinthiess of feeling, it is my deliberate conviction, that your honor- 
 able committee, unintentionally, and without the reflection that
 
 596 EEEACH OF rEBTLEGE. 
 
 ilicir resolutions were to involve the consideration of sucli a fear- 
 ful precedent, would now, in view of its solemn importance, prefer 
 eitlier to withdraw them for further considerotion, — refer them to 
 the judiciary committee, or to the attorney general of the state, 
 for a hgal, a rcsjMusihle opinion upon the great questions of the 
 conflict of power which I have discussed, which are here for action 
 under a state of excitement by those who are to act as judges ; and 
 which questions, that committee have not at all considered. 
 
 Thus far, Mr. Speaker, I have argued this solemn question upon 
 my individual views ; perhaps the argument would carry more pro- 
 found respect, should I cite to its support the opinions of some of 
 the sages of the law, who, with prophetic vision, did consider, and 
 who have given opinions upon this very case. 
 
 I have thus far intended to utter no word of disresjoect to this 
 honorable body, and I shall hope to receive from them in return, 
 that respect to my department, which the theory of our government 
 has established as its right. In this defence, I intend to utter no 
 language of my own, equal in its severity to that of the profound- 
 est expounders of the rights of the judiciary, under our constitu- 
 tional system. 
 
 Mr. Justice Story, that distinguished jurist and expounder of 
 the constitution, whom all so much respect, said, " Every govern- 
 ment must, in its essence, be unsafe and unfit for a free people, 
 where such a department as the judiciary does not exist with powers 
 co-extensive with those of the legislative department. Where there 
 is no judicial department to interpret, pronounce and execute the 
 law, to decide controversies, and to enforce rights, the government 
 nuist either perish by its own imbecility, or the other departments 
 of government must usvirp powers, for the purpose of commanding 
 obedience to the destruction of liberty. The Avill of those who 
 govern, will become under such circumstances, absolute and des- 
 potic ; and it is wholly immaterial whether power is vested in a 
 single tyrant, or in an assembly of tyrants^ He cites the remarks 
 of Montesquieu with approbation, " that it is found in human ex- 
 perience, that there is no liberty, if the judiciary power be not 
 separated from the legislative and executive ;" and he adds " that 
 it is no less true, that personal security and private property rest 
 entirely upon the wisdom, the stability, and the integrity of the
 
 BREACH OF rRIYILEGE. 507 
 
 courts ol justice." " That governinent c:ui be truly said to be despo- 
 tic and intolerable, and Avill be rciidcii'd nioic oppressive and more 
 mischievous, Avhen the actual administration of justice is depend- 
 ent upon caprice or favor upon the will of rulers, or tlie influence 
 of popularity." IVhen power becomes ru/hl, it is of little consequence 
 whether decioions rest upon corruption or v,( akness, upon tlio 
 accident of chance, or upon deliberates Avrong. 
 
 In every well organized government, therefore, with reference 
 to the security liotli of public rights and private rights, it is indis- 
 pensable that there should be a judicial department to ascertain 
 and decide I'v^htH, to jiKiii.sh criiiics, to administer justice, and to 
 protect the innocent from injury and usurpation. 
 
 But, perhaps, this honorable body would better like an opinion 
 still nearer home. That distinguished jurist, whose name every 
 citizen of New York repeats with veneration, Chancellor Kent, 
 said : " In monarchial governments the independence of the judi- 
 ciary is essential to guard the rights of the subject from injustice 
 of the crown ; but in republics, it is equally salutary in protecting 
 the constitution and laws from the encroachments and the tyranny 
 of faction. Laws, however wholesome or necessar}', are frequently 
 the object of temporary aversion, and sometimes of popular resis- 
 tance. It is requisite that courts of justice should be able at all 
 times to present a determined countenance against all licentious 
 acts, and to deal iinpartiaJhj and irulij according to Jaw, between 
 suitors of every description or whether the cause, the question, or 
 the party be popular or unpopular. To give the courage and the 
 lirmness to do it, the judges ought to be confident of the security 
 of their station. Nor is an independent judiciary less useful, as a 
 check uyonthe legislative poicer, which is sometimes disposed//-o?/i 
 the force of pai-hj, or the temptations of interest, to make a sacri- 
 fice of constitutional rights." 
 
 But Judge Story, was so imbued Avith tlie fear of legislative en- 
 croachments upon the judicial, that in another place he says, 
 " that there is a great absurdity in subjecting the decisions of men, 
 selected tor the knowledge of the laws, acquired by long and labo- 
 rious study, to the revision and control of men, who for want of 
 the same advantage, cannot but bo deficient in that knowledge. 
 The members of the legislature tcill rarely he chosen with a view to
 
 598 BEEACH OF rHKILEGE. 
 
 iliose qualifications ichich'fit men for {he sfations of judges, and on 
 this account t'icre will he great reason to apprehend all the ill conse- 
 (juences of defective information; so on account of the natural pro- 
 pensity of sucli bodies to party divisions, there will be no less 
 reason to fear that the pestilential breath of faction, maij poison 
 the fountains of justice." "These considerations," he says, " teach 
 us to applaud the wisdom of those states who have committed the 
 judicial power, not to a part of the legislature, hut to distinct and 
 independent hodies of men.'' 
 
 This may, perhaps, suffice upon this point. But I approach 
 another point, which is, to ask what is the duty of a judge, even 
 if the question of irrivilege is before him for decision ? Upon this 
 question I demand such an unprejudiced, patriotic, sensible re- 
 sponse, that this honorable body will dare to stand upon it before 
 an impartial constituency, and before the inteUigence of the world. 
 This is, perhaps, one of the most important points in the case. 
 Perhaps the opinion of Chief Justice Marshall might not be inap- 
 propriate to cite on this ciuestion. Surely no intelligent lawyer, 
 no patriotic legislator, would hesitate to look up to such a source, 
 for advice. 
 
 In looking back upon my conduct as a judge in this matter, it is 
 a source of sincere pride, that I may call him, this profoundest of 
 American jurists, and noble patriot, to my aid. In Cohen v. Vir- 
 ginia, reported in 4 Wheaton, 404, that illustrious jurist said: 
 " The judiciary cannot, as the legislature may, avoid a measure 
 because it approaches to the confines of the constitution. We 
 cannot pass by a question because it is doubtful. With whatever 
 doubt, with whatever difficulties, a case may be attended, ice must 
 decide it if it he hrougld hefore us. We have no more right to de- 
 chne the exercise of deciding, than we have to usurp a power that 
 is not given. The one or the other would be treason to the con- 
 stitution. Questions may occur which we would gladly avoid, but 
 we cannot avoid them. All we can do is to exercise our best 
 judgment, onrf conscientioashj to perform our dutij.'' 
 
 In another case this great judge said, " The legislative, executive 
 and judicial powers of every well constructed government (9 
 Wheat., 818), are co-extensive with each other." If this is sound, 
 where is the power of the one to call the other to account ? In
 
 BREACH OF rRITILEGE. 599 
 
 still another case, (1 Peters, 8U), Justice Juhnson said, "lu cou- 
 tlicts of power aud opinion, inseparable from our veiy peculiar 
 relations, cases may occur in Avliich the maintenance of principle 
 and the administration of justice may require difTerent courses ; 
 aud when such cases do come, our courts mufif do tJieir ihdij." 
 
 Mr. Speaker, I do not stand licrc to deny the power and author- 
 ity of this house U) punish, as for contempt, one v»'ho commits an 
 act amountmg to a breach of privilege of one of ics members ; but 
 I stand here denying that as an individual I hf.ve committed any 
 such act, or intended to commit any. The act was that of court, 
 of which I was but one of its ministers, and that as such minister, 
 I boldly assert, that J am protected by the sanctity of the posi- 
 tion — by the fact that it was judicial action ; that my decision was 
 one in which duty called upon me to act, and I was bound to ren- 
 der such a judgment in the matter as a conscientious conviction 
 of duty demanded. It is human to err. If I have mistaken the 
 law, it is such an eiTor as every other judge who has ever sat upon 
 a bench has committed ; and this is the first instance in the history 
 of American jurisprudence in which a judge has been arraigned 
 for having mistaken the law. Yes, sir, and I may predict, it ic'ill 
 l>c the last. 
 
 But, sir, have I even made a mistake? No court has ever ad- 
 judged it to be such. I trust none ever will. Suppose that in the 
 opinion of your honorable connnittec it is a mistake ; yet my con- 
 victions are otherwise ; and since the passage of your resolutions 
 I have the volimtarily offered opinions of distinguished jurists and 
 lawyers, more in number than compose that honorable committee, 
 who assure me I am right. The question, then, still remains un- 
 decided, wliich is right, with no high judicial court to pass upon 
 it. Suppose I am right, after all ; and this honorable house shall 
 decide that I am wrong? It will not, therefore, be wrong. No, 
 sir. Nor can any resolve that you shall pass make it wrong. 
 Your resolve wiU establish no law ; and no independent judge will 
 ever pay it the least regard, if he deems it wrong. My opinion 
 here, may bo disregarded. I cannot vote here on the question, or 
 if I could, for aught I know, one hundred and twenty-eight, or a 
 majority of that number, men, perhaps, my superiors in legal 
 knowledge, can outvote me. I have said this was an anomalous
 
 GOO BEEACH OF PEIYILEGE. 
 
 proceeding. It is so. My accusers, wlio have ali'eady adjudged 
 that I have committed an indignity upon their high privileges, are 
 to be my judges. Under such circumstances, I have been told, 
 there is no hope of the act being justified. It may be so. It 
 would be so, it is true, if only the party, feeling and acting in the 
 spirit of woimded dignity is to control — feeling that the exercise of 
 their power is beyond control of any other power ; and knowing 
 that there is no power of appeal. But, sir, if you shall believe I 
 am conscientious, would it not be a higher magnanimity — would it 
 not be a better spirit of patriotism ; nay, would it not be elevating, 
 to divest the case of feeling and prejudice, and to look upon the 
 case as a high court of law, uninfluenced by ^personal considera- 
 tions, would look upon it ? Sir, this spirit of magnanimity gives 
 me hope, even against the spirit of supposed wounded dignity. 
 
 I have already said there are high governmental reasons why 
 the precedent now to be established should be a good one ; that 
 if the law is in doubt, 3'ou have the power to remove that doubt 
 by legislation. The courts have no power to do so, because it has 
 not been before them. If the tlieor}' of your honorable committee 
 is wrong, conscientious judges who differ from them, will repeat 
 the error, regardless of your action. Thus then they will stand, 
 with the terror of legislative precedent suspended over them upon 
 the one side, but with a more awful terror, that of Almighty ven- 
 geance, if they violate their consciences, upon the other. Call 
 you, sir, such a position as this, tliat of an independent judiciary ? 
 Sir, with all respect, this would be solemn mockery. 
 
 One word more, Mr. Speaker. Your committee inform you that 
 they have based their resolutions upon parliamentary law, and 
 have given you its antiquity and its evidence of wisdom. They 
 have assumed that this law of privilege is uniform. I have dem- 
 onstrated by the statutes and constitutions that it is not, and that 
 their conclusions in this particular were in error. I have shown 
 that the national legislature have their privileges secured by the 
 national constitution — that some of the independent states have 
 their law of privilege secured by constitutions, and some by 
 statutes ; that the law of privilege of this state is ciualified, and 
 limited by the statute, and differs from that of the nation, of other 
 states, and of Great Britain. If this honorable committee, as I
 
 BREACH OF rillYILEGE. 601 
 
 insist, iiave been led into iiiiintcntional error iu this ; if tliey aro 
 equally in error as io the law of privilege in Great Britain, may 
 not the resolutions based upon such opinions be also eiTor? Can 
 you rely upon such a mistaken view of the law as a safe basis of 
 action? 
 
 Sir, I have read the cases refeiTcd to in that report upon tlie 
 Enghsli law of privilege, and what will be found as most remark- 
 able, is the fact, that not one of those cases was detennmed within 
 the last centmy, nor since the year 1700. If that learned commit- 
 tee had extended their research to that year, which was the thir- 
 teenth year of the reign of William III, they would have foimd an 
 English statute Jiiiut'uvj the privileges of members of parliament, 
 which is entitled : " An act for preventing any inconveniences that 
 may happen by privilege of parliament." In that act, sir, the 
 privilege was so limited that members of parliament, including 
 peers of the realm, were made liable to the service of any civil 
 process which did not arrest their persons ; and service of such 
 process ujx)n them was not void, as your honorable committee say 
 of the subpoena, and as has lately been held in the case cited in 
 the state of Maryland. 
 
 If that learned committee had extended their research still 
 further, down to the year 1770, just one hundred years ago, to the 
 thirteenth year of the reign of George III, they would have found 
 another statute, still further abridging the x^rivileges of members of 
 parUament ; setting forth in its preamble that it was to obviate 
 the inconvenience and delay, by reason of j^^'ivilege to the king, 
 and his subjects in prosecuting their suits, &c. "What suits had 
 the king but suits in his name, which in this country are suits in 
 the name and in behalf of the people ? 
 
 In fact, SU-, for the lad one hundred ycarf^, the privilege of par- 
 liament has not been such as your honorable committee report it 
 to be — but has been, as it has been here, limited and restricted by 
 statute, and confined to arrest in civil cases — and the English law 
 of privilege now, is not materially different from that of the state 
 of New York. Your learned committee have as much mistaken 
 the law of privilege of Great Britain as they have the law of privi- 
 lege of the state of New York. 
 
 When this last bill to limit privilege was before parliament, that 
 
 76
 
 G02 BEEACn OF PRIVILEGE. 
 
 great light of Englisli jurisprudence, Lord Mansfield, advocated its 
 passage, and I quote the following most significant remarks from 
 his speech, which may be regarded as judicial construction of that 
 law. He says : " It may not be popular to take away any of the 
 priA'ileges of parliament, for I very well remember, and many of 
 vour lordships ma}' remember, that not long ago the popular cry 
 was for an extension of privileges, and so far did they carry it at 
 that time, that it was said that privilege protected members from 
 criminal actions, and such was the power of popular prejudice 
 over weak minds, that the very decisions of some of the coui'ts were 
 tinctured with that doctrine. '"■ ■■'■ ""' It was, said he, undoubt- 
 edly an abominable doctrine. The laws of this country allow no 
 place or employment as a sanctuary for crime, and ivJiere I Jiave the 
 honor to sit as judge, neither roycd favor nor popular applause shall 
 ever j^rotect the guilt If.''' - " Noble patriot! In another part of 
 his speech, he said, " that members of both houses should be free 
 in their persons, in cases of civil suits, for there may come a time 
 when the safety and welfare of this whole empire may depend 
 upon their attendance in parliament. CJod forbid that I should 
 advise any measure that would in future endanger the state. But 
 this bill has no such tendency. It expressly secures the persons 
 of members from arrest in cdl civil sidts. I am sure were the noble 
 lords as weU acquainted as I am with but half the difficulties and 
 delays that are every day occasioned in the courts of justice under 
 pretense of privilege, they would not, they could not oppose this 
 bill." The bill, sir, passed ; and for one hundred years that is the 
 law of privilege in Great Britam, and is not now, as your honorable 
 committee have reported it to be. 
 
 No cases can be found like those cited by your honorable com- 
 mittee since the passage of that bill, even in the Englisli courts. 
 The cases cited by yom- honorable committee are before that time, 
 and, as that noble man declared, tlicu contained a tincture of that 
 abominahle doctrine. 
 
 Mr. Speaker, have I not shown errors enough, m the basis, upon 
 which your honorable committee have proposed action, to show 
 that the law of privilege is not in this state, what is claimed for 
 it? There is not now even an approach to it, as laid down by 
 your committee, in England. Why, sir, ten years before the pas-
 
 BKEACH OF PEIYILEGE. 603 
 
 sage of tills last English statute, Lord Preston, a peer of the realm, 
 was committed by an inferior court of that realm, a court of quar- 
 ter sessions, for refusing to give evidence before a gi-and jury on 
 an indictment for high treason. He obtained a habeas coi-pus 
 before a higher court — the king's bench, for his discharge. When 
 Holt, Lord Chief Justice, said : " He had committed a great con- 
 temi)t, and had I been there I -would have lined him, and com- 
 mitted him till he paid the' line." 
 
 But, sir, I have done with English authority'. 
 
 Now, sir, it only remains to give construction to the words cii-i/ 
 process in our statute. If an attachment issuing out of a criminal 
 court is civil jJi'ocess, then have I been misled by books of author- 
 ity ; then have I mistakenly erred in deciding the law. If it is not 
 civil process, then my decision is law, and must stand approved by 
 the courts, whatever this house may do. Oh ! the peril to an in- 
 dependent judiciary ! AYould to God, that a Marshall, or a Kent, 
 or Manslield had the decision of this great question ! That is, if 
 they would stop one moment to entertain such question. But, sir, 
 I am not called upon to estabhsh that the subpoena issued by the 
 district attorney was criminal process, that burthen is not legally 
 put on me. No lawyer will say it was civil j^i'ocess. I did not 
 issue that, the statute makes it the duty of the district attorney to 
 do that, — and yet, in theory, it issues out of the court of oyer and 
 terminer ; and disobedience to its commands is regarded as con- 
 tempt of that court. But the question is not that. If regularly 
 issued, its service was good, and not void. It was in the eye of 
 the law a contempt to disobey it. And all the question that re- 
 mains is if this honorable body have the power, and could enter- 
 tain it all, was the process issued upon that contempt a civil 
 jjrocess ? Tliis honorable body is called upon to vote distinctly 
 iipon the meaning of those words. I am not unwilling to sec that 
 record of names. I have no indisposition to see the lawj-ers of 
 this house put then- names to such a record. If with the light of 
 intelligence of this day — if with a sacred regard for judicial inde- 
 pendence — if with a patriotic desire to avoid conflicts between the 
 co-ordinate and co-extensive departments of the sovereign power 
 — if you shall act with freedom from all spirit of wounded dignity — 
 if with jealous care you feel that you are sitting both as accusers
 
 004 BREACH OF rKKILEGE. 
 
 and judges, and that the sovereign people %Yill hold you respon- 
 sible for your action— if you shall place yourselves upon that lofty 
 plane of devotion to the constitution and the best interests of this 
 noble state ; if it shall be your just pride to guard and protect the 
 rights of an independent judiciary from the terrors of aggression 
 of a co-ordinate power ; then, sir, I have no fears of the result. 
 
 I invoke these noble and elevating considerations to your hon- 
 orable body. But, Mr. Speaker, I desire to say again, that my 
 appearing here to-day is out of respect to this high department of 
 the government — not waiving my right to protest against being 
 brought here at all. Nay, sir, by the advice of my counsel I 
 should not have appeared at all, and should have put in defiance 
 the power of this body, — should have allowed your officer to exe- 
 cute the process of this house upon my person and held you 
 responsible for the act. But my own judgment has dictated to me 
 to come here out of courtesy— without waiving my right of protest 
 or acknowledging myself in your custody. Although I have ap- 
 peared here and ofiered this defence, I do not say that I submit 
 this case to you, though probably that will be the effect of your 
 action ; but, sir, I stand here protesting, earnestly pbotestixg, 
 that I am not here in obedience to your power, but here out of 
 courtesy to an independent department of this government. 
 
 At the close of this argument, Mr. Fields made a motion that 
 Judf^e Potter now withdraw from the house until his case be dis- 
 posed of. 
 
 The speaker then informed the honorable judge that he could 
 now withdraw to the library room until his case was decided. 
 
 Judge Potter— I prefer to stay, and unless driven from the 
 house by its power, shall remam. 
 
 The Speaker— The request of the honorable judge will be granted. 
 
 Judge Potter— I have made no request— and took his seat. 
 
 A long and exciting debate followed. 
 
 Mr. Fields offered the following resolution : 
 
 " Resolved, That the Hon. Piatt Potter, in issuing the attachment 
 for the arrest of Hon. Henry Pay, a member of assembly from the 
 first district of the county of Ontario, was guilty of a high breach 
 of tlie privileges of this house, and censurable therefor, and that
 
 BREACH OF rr.RTLEGE. 605 
 
 he be reprimanded by the speaker in the presence of this 
 house." 
 
 This resohition received no support, and -was withdi'awn. 
 
 Mr. Alvord offered the foHowing amendment to Mr. Field's 
 resohition : 
 
 " Resolved, That the Hon. Piatt Potter was mistaken as to the 
 privileges of this house in the action taken by him in the an-est of 
 Hon. Henry Eay, and did commit a breach of its pri^dlege in so 
 doing ; but this house do not believe that any intention or desire 
 to interfere with the independence or dignity of the house actuated 
 him in the performance of that which he deemed his official duty." 
 
 Mr. W. D. Muii^hy offered the following as a substitute : 
 
 " Jiesoh-ed, That the Hon. Piatt Potter, a justice of the Supreme 
 Court of this state, be discharged from the custody of this house 
 until the hour of twelve o'clock on the first day of March, and 
 that in the meantime the opinion of the attorney general be com- 
 municated to this house as to the construction of the term " civil 
 process," in the statute exempting members of the legislature from 
 arrest." Lost. 
 
 The question was then taken upon the resolution of Mr. Alvord, 
 and was adopted by a vote of 92 to 15, and the case was discharged. 
 
 But as we have seen, that the legislature of the state of New 
 York, have not consented to the view of the limitation and restric- 
 tion of the law of privilege as it is claimed to be under oui' statutes, 
 and have insisted in thek report, that they possess more extended 
 powers of the ancient common law though they have settled no 
 law by their action, it may be well to enter upon a discussion of 
 that connnon law. 
 
 If it then be true, that notwithstanding our statute, which would 
 seem to create a limitation, and specifies its extent, that there is 
 still a common law privilege, adopted into our system, from the 
 (!ommon law of England, it may be well to give a little attention 
 to the ancient parliamentary law of England ; with its privileges, 
 and see what it really was ; how and by what law it has been con- 
 strued, and practised ; and how far its power extends. This will 
 present many grave, and vexed questions upon the very thresh- 
 hold of the inquiries. The subject is one of great delicacy, and
 
 GOG BREACH OF rKl\TLEGE. 
 
 of still greater importance, aud requires to be treated with integrity 
 and freedom, and at the same time, with decorum and respect. 
 
 It is in England called the law of parliament. This law, and 
 what it was, what it is, and how it has been changed and modified 
 by common law and statute to conform to the spirit of progress, 
 the due appreciation of the advancing spirit of liberty, and the 
 independence of the citizen, we shall briefly attempt to show. It 
 can be found by any one, and by all who desires its attainment, 
 by diligent seeking. It is like aU other knowledge, the reward of 
 search. ' It certainly will not be obtained by intuition. There is 
 no light imparted by inspii'ation to a mere legislator, unacquainted 
 with its history, whatever may have been his experience ; it is ac- 
 quired only by application, research, and industry ; by examining 
 the records of parliament, consisting of unwritten customs, and 
 maxims as they existed from period to period, with its changes 
 wrought by statute and the adjudications of the judges of the sev- 
 eral courts of law ; from experience and study, and familiarity 
 with "ihe judicial decisions of present jurists, and their prede- 
 cessors. 
 
 " The law of parliament, says Hallam, a as detennined by regular 
 custom, is incorporated into our (English) constitution ; but not 
 so far as to waiTant an indefinite, uncontrollable assumption of 
 power in any case, least of all, in judicial proceedings, where the 
 form and essence of justice are inseperable from each other." 
 Junius, an EngHsh writer of great notoriety, says, h that, " to estab- 
 lish a claim of privilege in either house, and to distinguish original 
 right fi-om usurpation, it must appear, 1st, that ifis indispensably 
 necessary for the performance of the duty they are employed in ; 
 and 2ndly, that the privilege claimed, has been uniformly allowed, 
 so as to establish it as law." 
 
 Dwarris, in liis work, on the subject of parHamentary privilege, 
 has collected, in a condensed form, more of the customs and claims 
 of members of parliament on the question of their privilege ; and 
 may be regarded as more reliable authority, than perhaps, any 
 other English writer. Many of his most judicious citations and 
 comments, may with advantage and profit be transcribed into an 
 American work, as the law of privilege in this country, eventliough 
 
 a Hist, of Middle Ages, Vol. 2. - h Letter 14.
 
 PARLLViTENTAKY LAW OF PMTILEGE. 607 
 
 it may here be limited, and perhaps reguhxtcd, by constitutions 
 and statutes. 
 
 Tliis parliamentary law and the law of privilege has been but 
 little discussed in this country, and the want of uniformity in the 
 Ifiw of legislative privilege, in the different states, has left this law 
 peculiar indefinite, undefined, uncertain, complex and obscure, or, 
 in the language of Lord Coke, a "ab omnibus quacrcnda, a mnltis 
 ii/Kord/a, a pauci.s' coquita ;'' "to be sought by all, unknown to 
 many, and known to few." Which Lord Holt says, b is "because 
 they will not apply themselves to understand it." 
 
 This sober and warranted claim of a peculiar law, (says Dwar- 
 ris), c determined by regular custom, never has been, and is never 
 likely to be, disputed by the courts of common law, which are by 
 no means wanting in deference for the legislature, or disinclined 
 to support their " ancient and just ]irivileges." A class pecuharly 
 instructed in the histoiy of our institutions, "svill always best know, 
 how far the real essential privileges of parliament have been in 
 the past, and may again become in the future, the safeguards of 
 the rights and liberties of the people. Any privilege truly esseu- 
 tiiil to the dignity, and to the proper exercise of the authority of 
 tlie legislature, will be as safely guarded by the judges of the 
 present times, as by the most popular senator, or member of the 
 house. No doubt the constitutional lawyer will be ever vigilant 
 to detect, and fuin to opp'ose, the encroachments of arbitrary 
 power, in hoAvever specious forms, and under however venerable 
 names, it may appear. Tyranny, he will say, is not privilege. 
 Privilege, when the term is not improperly used and confounded 
 v»ith power, (which may be abused ;) implies protection. Privi- 
 lege is, or ought to be, protection — against the tyranny of the one, 
 the few, or the many. Such an inquirer will temperately call for 
 — the record of regular custom ; the palpable evidence of enjoy- 
 ment ; — the sanction, the recognition of allowance ; the admitted 
 precedents and authorities, the series of which establishes the 
 right ; — and if he find the claim unaccompanied with, and unsup- 
 ported by, these, ho will plainly repudiate the "tyrant jolea of 
 necessity" for advanced powers. 
 
 a 1 Inst. 11. h -1 La. Ilayu, 1114. 
 
 G Vol. 1, 105.
 
 008 TAELIAMENTAEY LAW OF rrJ^TLEGE. 
 
 By this customaiy law, wliicli if it be not anywhere prescribed 
 in clear and explicit terms, or expounded in particular stated 
 maxims, is yet ascertainable, as being determined by regidar cus- 
 tom, and subject to certain prescriptive limitations, are all ques- 
 tions of parliamentary privilege to be tried. And such law is to 
 be expounded by that house, to which any matter that arises 
 properly relates, and no where else ; excejjtis exvipicndis. 
 
 Blackstoue seems to suppose that " the dignity and indepen- 
 dence of the two houses are in a gi-eat measure preserved by keep- 
 ing their privileges undefined." 
 
 It is the unrestricted use of these and similar expressions, " no- 
 where ascertained," "indefinite," and "undefined," which has 
 probably led to so many crude conceptions, and even vag-ue specu- 
 lations, upon the true nature of this customary law. Because the 
 lex parliamenti has not been dogmatically treated in an institu- 
 tional method; because it has not been defined, distinguished, 
 codified, classified, expounded and commented upon ; (simplified, 
 like other branches of English law, till it became complex, and elu- 
 cidated, till it was made obscure) ; it has been often erroneously 
 supposed that it must be unsettled in its doctrines, indeterminate 
 and arbitrary. But then it was forgotten that the very name and 
 nature )i this special law and particular system of customs, ex vi 
 termini, imports something permanent, uniform and universal. A 
 legal or parhamentary custom must be certain, known, fixed and 
 invariable. And if not set out in stated maxims in any institute 
 or commentary, yet, when it can be ascertained by learned lucu- 
 brations from the '' lyrcderitorum memoria eventorum f then, in 
 the contemplation of law, id certmn est quod certum reddi j)oiest. 
 And maxims of a peculiar law, which can be found in precedents, 
 traced in parhamentary history, and verified by the records of 
 both houses of parliament, do really acquire, from the authentic 
 nature of their evidence, a character of fixity and stability, which 
 more than levels them in pomt of certainty, with any other tradi- 
 tionary branch of our municipal jurisprudence. 
 
 But who, it will be inquired, are to be the judges of this law, and 
 how is it to be expounded? The two houses of parhament re- 
 spectively, claim to be the proper and solo judges of their own 
 pecuhar privileges. In what sense is this claim to be understood ?
 
 PARLIAMENTAllY JAW OF PRIVILEGE. 609 
 
 As a claim of exclusivo jurisdiction (tuul not of uncontrolUiMc 
 power ;) it is intelligible and (riglitly considered,) not ill ioimded ; 
 though subject to some qualitication, and to an exception which 
 does not destroy the rule. AVhere a privilege is undeniable, and 
 only its observance is m question, the house to which the matter 
 relates, is alone competent to tiy the issue of its respect or viola- 
 tion. And the courts of common law, Avhich will ever readily sup- 
 port and give effect to all the rightful privileges of parliament 
 which can be unequivocally ascertained, Avill also cautiously abstain 
 from interfering with the punishments of either house for a con- 
 tempt, which is certainly " proper to the jurisdiction against which 
 the contempt is." 
 
 But it is ob\dous that cases may arise, where a privilege may be 
 claimed by either house of parliament, and regarded as essentially 
 necessary to the due discharge of its legislative fvmctions, which 
 is not so much supported by direct proof, as drawn from analogies, 
 more or less just ; in which event reasonable doubts as to the ex- 
 istence or extent of the privilege, may be entertained, both in the 
 courts and in the country. In all such cases, where the privilege 
 is imperfectly evidenced, obscure or doubtful, the fittest and most 
 desirable course would ever seem to be, with a view to quiet the 
 public mind and to avoid all unseemly collisions, to settle the 
 question by a declaratory act. The claim of privilege was origin- 
 ally the claim of the high court of parliament ; not of either house 
 separately, but of both houses conjointly ; and where the privilege 
 is real, and essentially just and necessary, there can be no doubt 
 but that both houses would concur, to support and declare it. 
 
 The right then, in either house of parliament, of exclusively de- 
 termining upon any violation of their aclmowledged privileges, is 
 unquestioned, when acting Avithin the sphere of their authority. 
 In this primary sense, and subject to this limitation, the two 
 houses respectively, are with propriety said, to be the sole judges 
 of their own privileges ; that is, whether the privileges in question 
 { re notorious, and have been infringed in the particular instance ; 
 and in what manner they shall be vinelicated and then* infraction 
 punished. 
 
 They are also, singularly, the persons to judge of their own 
 peculiar forms and manner of proceeding. The house is con- 
 77
 
 GIO PARLLVMENTAEt LAW OF rKIYILEGE. 
 
 fessedly the sole judge of its own privileges, wliere the subject- 
 matter falls properly within its jurisdiction ; as, for any matter that 
 occurs within the walls of parliament ; so, upon whatever is neces- 
 sary to the transaction of business there, or for the protection of 
 individual members, to enable them to discharge then' parhamen- 
 tary functions ; or for the punishment of persons guilty of con- 
 tempts to the house, or of obstructing its proceedings. When the 
 subject-matter falls within the jurisdiction of the house, its adju- 
 dication is final, and a court of law cannot question its judgment ; 
 for, in such case, the power of the house, or the due exercise of its 
 power, is the original and primary matter propounded to the 
 court, and arises directly. 
 
 The judges will however take conusance of the privileges of par- 
 liament, wdiere questions concerning those privileges, are brought 
 collaterally or incidentally before them for judgment, in the way 
 of suit or action, when the court is obliged to determine the ques- 
 tion raised, to prevent a failure of justice. They wUl not them- 
 selves raise the question, or suffer it to be raised by others, when 
 it has been properly decided by comj)etent authority. They will 
 not entertain the point so disposed of, when it comes before them, 
 as it is then held to do, directly ; because cognizance of it belongs 
 ad aliud examen ; but will entertain it only when, as Sir Thomas 
 Jones said in Lord Shaftesbury's case, a " It is an incident to the 
 cause before them, of which they are already possessed." And 
 then, it should never be forgotten, that the rule by which the 
 question will be tried, — the law upon which the decision of the 
 judges will proceed, is that same peculiar law, the identical lex et 
 consuetudo parliamenti, truly said to be a part of the lex terrce, of 
 which the judges are bound to inform themselves, and by which 
 the determination of such matters is held to be properly governed. 
 
 To draw the line between the question of privilege coming 
 directly before the court and the cases in which it comes mciden- 
 tally, would be a rash undertaking in a text writer. The rule is 
 certainly difficult of application ; but it is quite sufficient for his 
 province, to demonstrate, that it is the rule, according to the de- 
 
 a 2 State Trials, 615; 1 Mod. 144. This was a case of contempt, committed by 
 a member of the house of lords, within their own body while in scssion^an act 
 vdthin their exclusive jurisdiction, and the court of king's bench for this reason 
 held that they had no jurisdiction to grant relief.
 
 rARLIAJVIENTAKY L.VW OF ritlYELEGE. 01 1 
 
 cisions of tlio most learned judges, ancient and niodcni. "Whero 
 the interests of third persons involved in litigation, come to bo 
 decided upon in a court <jf law, the direct question before the court 
 is the right of ])arties who are strangers to the houses of parlia- 
 1 lent ; and if a collateral issue be raised iu the course of the 
 j.leadings on any question of parliamentary privilege, tliat comes 
 in incidentally. "Where either house of jiarliament has adjudi- 
 cated upon the particular case between the same parties, and that 
 question of i)rivilege is afterwards brought before a court of law, 
 it arises directly. 
 
 But two things nuist concur, to make the decision of the house 
 final. They must have decided the precise question ; — the con- 
 tested matter must have passed in rem judicatam ; and they must 
 possess jurisdiction to decide it ; and then no court ought to in- 
 quire whether the house has adjudicated properly or not. But 
 where the house has clearly no jurisdiction, at all, over the sub- 
 ject-matter ; as, if the house of commons assumed the exercise of 
 a general criminal jurisdiction, — or the lords, that of original jurLs- 
 diction over suits, — accompanied in both cases by resolutions that 
 they respectively possessed the power to put men to death for 
 offences, and to entertain original suits, — notwithstanding any ad- 
 judications made by them, and also, that the question would arise 
 du-ectly upon the act of either house, the com't would still un- 
 doubtedly interfere. This shows that the test afforded, though a 
 known and settled distinction, is quite unsatisfactor}-, without also 
 considering the question of jurisdiction in the adjudicating forum. 
 Where either house has expressly decided upon a question of 
 pri\-ilege, the only question any longer open, is whether the sub- 
 ject-matter does properly fall within its jimsdictiou, or whether 
 the claim set up, exceeds the legal limits of privilege, and the 
 house has usurjied a power it does not possess. , 
 
 Bnf, (as if it icere designed to Y>rop up a defective authority, ichich 
 it could not supply) ; the house has sometimes declared by votes or 
 •esdutions, that it does possess the privilege in question ; and in addi- 
 tion to being party and judge, claims to be a 2citness ; — and that, on 
 interested witness, giving testimony in his own favor! What is the 
 due effect of such resolutions ? 
 
 When privileges claimed by the house of commons have been
 
 612 PAELIAMENTAP.Y LAW OF PRIVILEGE. 
 
 of necessit}-, submitted to tlie examination of the courts of commoi. 
 law, and have been found unsupported by usage and evidence of 
 enjoyment, (upon -which they confessedly depend), such claims 
 have, (vvhatever votes may have passed in either house upon the 
 subject), always been disallowed. As, when a joint privilege was 
 claimed by members of the house of commons " not to be im- 
 prisoned or impleaded during the time of parhament," the barons 
 of the exchequer, « while they recognized the former claim of 
 pri^alege, decided that there was no such privilege as the latter, 
 " quin quod iitiplacitari dehent ;" deciding one claim in favor of the 
 house of commons, and one, against them. So, in the great case 
 of h Burdett and Abbott, the house of commons of that day, be- 
 comingly submitted the existence, as well as the exercise, of the 
 privilege then disputed, to the decision of a court of justice. The 
 question was, (as it must be), entertained by the court of queen's 
 bench, — was most elaborately argued and comprehensively con- 
 sidered. The court unanimously upheld the arrest of the defen- 
 dant as legal, and their judgment was unanimously affirmed in the 
 exchequer chamber, and afterwards in the house of lords. The 
 courts of law, original and appellant, supported the house of com- 
 mons and affirmed the privilege ; as they always will be found to 
 do, when the claim is proper. But the proceeding of the house of 
 commons, relied upon in that case as a defence, was upheld, not 
 because it was claimed as a privilege by the house, or declared or 
 resolved by them to be their privilege, but because it was a privi- 
 lege, well known to, and always recognized by law. " There can 
 be no privilege," says Lord Clarendon, " of which the law doth 
 not take notice, and which is not pleadable, by, and at, law." 
 
 " Thus," as was most ably urged in the excellent argument in 
 Burdett and Abbott, " is it rendered apparent, that one branch of 
 the legislature cannot, by any votes, create a new privilege ; be- 
 cause in several of the cases, the commons had claimed privileges, 
 which were questioned in the courts of law and disallowed by the 
 parliament." No resolution of either house of parliament can make 
 t/tat a legal and constitutional privilege lohich was not so before. A 
 court cannot give itself jurisdiction hy adjudging that it enjoys it. 
 
 To create a new privilege would in effect, be making a new law, 
 
 a Donne and Walsh, 4 Register, 752. h 14 East, 140.
 
 PARLIAMENTAEY L.VW OF nilVILEGE. C13 
 
 which one house singly, cannot do. This leads io tliu necessary 
 qualification of the stated rule. The law of parliament may be 
 expounded by themselves, fi"om time to time, but cannot be ex- 
 tended, without the authority of the whole legislature. Members 
 of either house of parliament, constituting per se, only a part of the 
 sovereign power in the state (which alone can make new lawsj, 
 have not an unlimited right of creating and extending exceptions 
 in then* own favor. When Fortescue says o of parhament: — "It 
 is so high and mighty in its nature, that it may make law, and 
 that which is law it may make no law," he is enlarging upon the 
 transcendent power of parliament in its collective and legislative 
 capacity. And what is obviously true of the whole, becomes 
 monstrous Avlien applied to a part. And this is not only sound 
 legal doctrine, but it is also admitted parliamentary " law and cus- 
 tom." In 1704, the lords communicated a resolution to the com- 
 mons, at a conference : " That neither house of parliament have 
 power, by any vote or declaration, to create to themselves new 
 privileges, not waiTanted by the known law and custom of parlia- 
 ment ; which was assented to by the commons ;" and, indeed, is 
 not now contested on their behalf. And yet, who will logically 
 deny, that if they could give themselves jurisdiction to decide in 
 favor of doubtful powers, the}' would create new privileges ? ' 
 
 The result is, that the determination and knowledge of privilege 
 of parhament, belongs to the members of the two houses respec- 
 tively, with the limitation before stated ; but in declaring the law, 
 they act judicially, and are under a solemn obligation /»s dicere 
 and notJK^s dare; and they must not extend their jurisdiction, or 
 the determination will be coram nou judice, and void. Their's is, 
 at the very utmost, indisputably, a special jurisdiction, exercised 
 in expounduig a peculiar law within circumscribed bounds, which 
 must not be exceeded. And if they should in any case 'decide 
 mistakingly, (et midti et honi homines idemfecerinit,) and pronounce 
 a judgment in favor of a privilege new in principle, and not merely 
 
 / a Thorpe's Case, 32 Hen. 6; 5 Kot. Pari. 239. 
 
 Note 1. — This resolution, it may be borne in mind, was lour yoai-s subsequent 
 to the act of parliament of 13 Geo. HI, abridging and defining the privilege of 
 members of parliament, and was but a modest and public manifestation of will- 
 ing obedience to law, and to the demands of public sentiment
 
 614 PAELMMENTARY LAW OF TEIYILEGE. 
 
 m terips, and never before claimed or allowed in the history of 
 parliament ; such their new, nnfonndcd, parliamentary law, — Uke 
 any erroneous decision of the judges in the common law courts ; — 
 must be declared not to be parliamentary law according to the lex 
 it consuefudo pcuiianicnti ; it must be pronounced, that there exists 
 no such privilege ! 
 
 To be as explicit as possible upon so delicate a subject, it is 
 apprehended that the decisions of the two houses of parliament, 
 in cases, of which, (when within then: jurisdiction,) they are ad- 
 mitted to be the sole competent judges, are fitly governed by usage 
 and controlled by precedents. " They are," says Lord Clarendon, 
 " the only judges of their own privileges ; but that their being 
 judges of their own privileges, should quahfiy them to make new 
 privileges, or that their judgment should create them such, was a 
 doctrine never before now, heard of." a 
 
 j_nd if, — ichen theij suppose themselves, to he only recognizing an 
 old privilege, they are in reality, creating a neiv one, is it not too much 
 to contend that their not ill intentioned mistalx, may not he corrected ; 
 that their eroneons judgment, ivhen hrought hefore the sioorn judges of 
 the land sitting to administer justice according to laiv, in all cases 
 hrought judicially hefore them ; neither seeking — nor declining, — hut 
 only conscientiously deciding questions ivhichmust be decided, — that 
 a judgment, of ivhich they, the recognized interpreters of the law, dis- 
 cover the unsoundness, must he received as valid, — alloived, — adopted 
 and enforced hy tJie judges sicorn to do the right — and, all the while 
 perceiving this to le the wrong ! Is not this absurd and most unrea- 
 sonable ? Is it not monstrous ? 
 
 It is, also, impracticable. The attemjjt to withdraw the ultimate 
 determination of questions of privileges, coming in question in cases 
 within the jurisdiction of the respective courts, from the courts of com- 
 mon laiv ; —from those courts, in ivhich the prerogatives of the cromi 
 are subject to be questioned and overruled, — ivill never succeed. Par- 
 ties and their ivitnesses, judges, officers, sherifs, counsel and attorneys, 
 may all be, again and again, committed ; but fresh actions will he 
 brought, and succeeding judges, officers, and prof essional men ivill do, 
 ivhat they deem, their duty. 
 
 Is it not better then, to acquiesce, in the known, settled, and 
 
 a Hist. Eebell. Vol 2, Book 4, 398-
 
 PABLIAMENTARY L.\.\V OF PKniLEGE. G15 
 
 single exception to the rule, tliut the members of the two houses 
 respectively, are the sole judges of their own privik-ges ; except 
 when tlicy come in question incidcntaUij and collaleralbj he/ore the 
 rourts of laio in the ivay of suit or action ; — or when the house has 
 io jurisdiction over the subject matter ; — in both of which cases 
 the appointed constitutional expositors of the law, must inquho 
 into and determine the question, to prevent a failure of justictj V 
 
 And if such be the reason and justice of the case, how stands it 
 upon the foot of precedent and authority ? 
 
 The counsel for the house of lords in Lord Shaftsbury's case, a 
 the attorney general (Jones,) himself admitted, " that, if an ac- 
 tion be brought where privilege is pleaded, the court ought to 
 judge of it ; as an incident to the suit, -whereof the court is 
 possessed." 
 
 The same rule was laid down by Lord Chief Justice Holt, iu 
 the case of the Aylesbury men. h 
 
 The same doctrine was recognized by Lord Chief Justice De Gray 
 in Brass Crosby's case, c " The coimsel at the bar," my lord said, 
 " have not cited one case, where any court of this hall, ever deter- 
 mined a matter of privilege, which did not come incidentally 
 befoi'e them." 
 
 And this result of the case was referred to with commendation, 
 by Grose, J., in E. v. Flower, d 
 
 All these eminent authorities, agree in the right and the duty 
 of the judges, to take conusance of the privileges of parliament, 
 when questions concerning those privileges are brought inciden- 
 tally iu judgment before the court in actions by parties complain- 
 ing of injuries within the jurisdiction of the court. " When in a 
 common action, the privilege of parliament does come to be part 
 of the plea or justification, it is of necessity," says Sir Orlando 
 Bridgman, " that the privilege set up to defeat the action, whether 
 there be such, and what the extent of it, come also into considera- 
 tion." e 
 
 ^ This the sworn duty of the judges of the land, is confined how- 
 ever, to cases of privilege brought judicially before them. The 
 
 a 2 state Trials, 605. 1 Mod. 144. 6 8 State Trials, 102. 
 
 c 3 Wills. 202. dST.K. 345. 
 
 « Benyon and Everlyn, T. 14, Car. 2, Kot. 2558.
 
 616 PARLIAMENTARY LAW OF PRRTLEGE. 
 
 judges will decline to pronounce an opinion upon privilege of par- 
 liament, except where the question comes before them in a legal 
 way ; — as they did in Thorpe's case ; and ilien. (when it is in such 
 manner, forced upon them ;) the highest authorities concur in 
 holding, that they are bound to take cognizance of the existence 
 and extent of the privilege, and to decide upon it. " If a question 
 arise, determinable in the King's Bench, the King's Bench must 
 decide it;" said Lord Holt in II. v. Knollys. a 
 
 And even Mr. Justice Powell, wdiose opinions were ever strong 
 and decided in favor of parliamentary privilege, recognized in R. 
 V. Paty, h this single exception to the doctrine of exclusive juris- 
 diction in parliament. " This court," he said, " judges the privilege, 
 only incidentally ; for when an action is brought in this court, it 
 must he given one ivay or the other." 
 
 Mr. Justice Patterson made the same remark in Stockdale and 
 Hansard; with the addition that the judgment he w^as compelled 
 to give, should be the conclusion of his own mind, and not the 
 dictation of others. To the same effect are the judgments of the 
 other judges in the modern cases. 
 
 Such is believed to be the sound doctrine upon this delicate and 
 difficult subject, and it will be found to admit all the claims of the'* 
 two houses to the determination of questions of privilege, which 
 can be supported upon a temperate consideration of the subject ; 
 and to reject such views alone, as are not only not consonant to 
 reason, or agreeable to law, but ^e also repugnant to the spirit of 
 the constitution. 
 
 It will have been collected from the preceeding pages, that the 
 two houses of parliament respectively, are empowered to try ques- 
 tions relating to their own privileges, (m which they are conse- 
 c[uently parties,) by a peculiar law of their own. That they are 
 ordinarily, the sole judges and interpreters of that law ; and it will 
 be seen subseqiiently, that they themselves, execute then- own 
 decrees, by officers of their own. This anomalous and most ex- 
 tensive authority, they indisputably possess, and it may be essen- 
 tially necessary to the free and independent exercise of their 
 high, constitutional functions, that they should be invested with 
 such extraordinary powers. 
 
 a 2 Salk. 509. h 2 Lord Ptaym. 1105.
 
 PARLIASIEKTARY LAW OF TRIVII^GE. 617 
 
 " But this is not all. The peculiar law, by which these cases are 
 governed, is not enunciated ; is unascertained a loriori ; which 
 necessarily subjects Englishmen, (in this one particular instance) 
 to the dominion of the/».v vcujnm ei mco<jiuturii, said to be ever, the 
 worst species of tyranny. And the law being thus kept undivulged 
 in the breasts of the judgc^s, is, (as is avowed by the indiscreet 
 advocates of iudefinate privilege,) extendible, at their pleasure, to 
 all other cases, pro re nata. How desirable is it ; that such an au- 
 thority, should have some circumscription ! the lunitation of usage ; 
 the control of precedents. 
 
 And these extraordinary powers, are not- deemed sufficiently 
 transcendent, but it has been unadvisedly contended, that every 
 decision of parliamentary privilege in either house, however erron- 
 eous it may, by possibihty, be, shall be, final and conclusive. And 
 every rextravagant excess of jurisdiction ; every assumption of 
 power, however arbitrary and unfounded, shall be withdrawn from 
 the control of the common law ! 
 
 The true doctrine ; — that the law of parliament is determined 
 by regular custom ; — the rule, that the determination of privilege 
 belongs to the two houses respectively ; — the qualification ; that, 
 although they may generally expound, they must not extend it ; 
 with the exception, — of cases not within the jurisdiction of the 
 house f or where privilege is brought before the judges incidentally, 
 as matter of excuse or justification imported into a cause, and 
 absolutely requiring their judgment ; — the general doctrine, the 
 rule and the exception, are believed to have been all, before cor- 
 rectly stated, 
 
 Happy will be the result, if a dispassionate consideration of the 
 principles and authorities ; the law and practice ; shall tend to 
 settle the distressmg doubts which have long existed, shall con- 
 tribute to terminate those fraternal conflicts between the legislature 
 and the judicature, which the best and wisest men, will see the 
 most reason to deplore. And are not some traces perceptible of 
 
 * As, e. g. if the house of commons were to claim to determine questions of 
 property without a jury; or to inflict punishments for not taking an oath, which 
 they have no power to administer; cases not likely to occur now, but used for 
 illustration. 
 
 78
 
 618 TAELIAMENTAEY L.iW OP TRIVILEGE. 
 
 an approximation to tliis desirable end ; — this legislative and ju- 
 dicial uuaniniity ? - Cannot future collisions be prevented. 
 
 As regards tlie past, no slight errors have been committed on 
 both sides ; but when questions come to be calmly considered, 
 when the voice of reason is attended to, juster views will gradually 
 obtain, and sounder principles become established. 
 
 The claim on the part of parliament to be governed by a peculiar 
 law, has been sometimes too lightly questioned. The lex jparlia- 
 mentaria, has been said to be merely a part of the lex terrce ; like 
 the ecclesiastical, military, or maritime laws ; leges indeed ; but 
 sub graviori lege : to be construed at all times by the common law 
 courts in the ordinary w^ay. 
 
 But such is not the case with the lex jjarliamentaria, which is 
 1st, a peculiar law of a special nature, and 2ndly, is confessedly to 
 be construed by the parliament itself ; and only deteiToined by the 
 judges in extraordinary cases, when they cannot escape fi'om de- 
 ciding it. And then, whatever the court, superior or inferior, the 
 case is always to be tried by the law of parhament. In this re- 
 spect then, some scintiUce of doctrine have been advanced, which 
 cannot, it is apprehended, in strictness be supported. 
 
 On the part of the house of commons, extravagant claims of 
 privilege, — unwarrantable extensions of jurisdiction, and unfounded 
 assumptions of power, have been at various times preferred and 
 abandoned ; a but it was never denied that the wdsh and intention 
 of the house, was still to act fairly and equitably, while maintain- 
 ing its own dignity and authority, with sometimes a little undue 
 jealousy and precipitancy, — and an excess of animation. 
 
 On the other hand, the great anti-privilege champion, Lord 
 Holt, who made so glorious and successful a stand, though almost 
 unsupported, in Ashby and White, h when a most valued right of 
 
 a See the case of Floyd, post ; Admiral Griffin's Fishpond case, 9 Ad. and EL 
 14, el al. ibid, 
 b 17 L. J. 714.— App. 3, Hatsell. 
 
 * Qucere iamen : the result of the best intentioned endeavor to reconcile these 
 big and little endians, maybe that described in Alma: 
 *' Dear Dick, if we could reconcile 
 " Old Aristotle with Gassendus; 
 " How many would admire our toil, 
 "And yet, how few would comprehend us!" — Prior.
 
 PARTJAMENTARY LAW OF I'HIVILEGE. G19 
 
 the subject was in danger to be defeated by privilege, (as the house 
 of commons were pleased to claim it ; resting their case on that 
 untenable ground, rather than on a plausible hypothesis of judica- 
 ture) ; who most luminously laid down the great general principles 
 of the law, and based it upon grounds from which his successors 
 are not likely .to depart ; who reasoned irresistibly, that, as parlia- 
 ment had only c ire imi scribed powers, if it exceeded those, it must, 
 like every one else, that has exceeded his powers, be corrected. 
 
 " When Paty was brought up on habeas corpus, and the cause 
 shown, was commitment for a certain act which the house voted a 
 contempt, the chief justice stood alone and dissented from all the 
 other judges, who held that the prisoner must be remanded ; a 
 thus resisting the authority of Shaftesbury's case, who was com- 
 mitted " for high contempts" of the house of lords, without show- 
 ing when, — where, — or how, committed ; h an authority to which 
 Lord Chief Justice De Grey, Lord Elicnborough, and Lord Den- 
 man himself, with all the judges of our times, have (it maybe with 
 reluctance in some instances), conformed. For the power of com- 
 mitment for a contempt, must belong to every legislative and 
 judicial body. And when it appears that the house has adjudged 
 the offence to be a contempt, the com-t, it is said, is bound to give 
 credence to that determination. If the house professes to commit 
 for a contempt, and the commitment is in a general form, the con- 
 tempt cannot be inquu-ed into : " the adjudication is a con^^ction, 
 and the commitment in consequence an execution." To prevent 
 a conflict of jurisdictions, no coiu't can discharge a person in exe- 
 cution by the judgment of another court of competent jurisdiction. 
 A court, ■which is not a court of error or appeal, cannot entertain 
 the question whether the authority has been properly exercised 
 in another court, c Lord Holt, indeed, did not question the power 
 of commitment in the house of commons in Paty's case ; but he 
 thought the warrant itseK, in that case, showed an excess of juris- 
 diction ; and so, left his opinion not irreconcileablo with Shaftes- 
 bury's case, which has always been supported and followed, where 
 the commitment was in a general form. 
 
 a Lord Ray, llOo, 3 Wils. 205. 
 & 6 Howell's St. Trials, 1269. 
 c 5 Dow. 199.
 
 620 PAELIAMENTAEY LAW OF PRIYILEGE. 
 
 But if, instead of a commitment in a general form, a return were 
 to shew a cause whicli could not by auy possibility be construed, 
 agreeably to sound reason and natural justice, to amount to a 
 breach of privilege ; " if there were on the face of the warrant 
 itself evidence of an abscence of contempt, Lord EUenborough 
 plainly intimated in Burdett v. Abbott, that in such cp,se the court 
 would " do its duty." a He had before, in the same case, repudia- 
 ted the doctrine that where a contempt was charged, the court 
 would not look at a warrant and judge of its formal sufficiency ; 
 though he certamly gave full effect to the doctrine in Shaftsbury's 
 case. 
 
 It will not be denied tliat whatever the strict law may be, (and 
 that cannot be questioned after the decision of Burdett v. 
 Abbott, in the house of lords h ;) yet, agreeably to natural justice, 
 the imputed offence should always appear on the face of the war- 
 rant sent with the prisoner, in order that, as well expressed by 
 Chief Justice Yaughan, in Bushell's case, " the cause of commit- 
 ment should appear as plainly to the court before which the com- 
 mitment is returned, as to the court who made the commitment." c 
 When the Lord Chancellor for the time being, committed a member 
 of the house of commons, (Mr. Lechmere Charlton,) for a con- 
 tempt, the committee appointed by the house to inquire into that 
 case, called for the particulars of his contempt ; and rightly so, 
 to enable them to judge whether they were really such as to war- 
 rant his commitment, d But after the house of commons had 
 imprisoned the sheriff of Middlesex, for executing the process of 
 the court of which W. E. and J. W. were the officers, the house 
 was persuaded to make a return to a writ of habeas corpus, not 
 shewing " the particulars of the contempt," to enable the court of 
 law to judge of its sufficiency." e 
 
 a 14 East, 1. d Pari. Eep. 1837, No. 45. 
 
 h 5 Dow, 199. e 11 Ad. and El. 273. 
 
 c Vaughan, 137. 
 
 * See 1 Hargrave's Juridcial Argumeuts, as to " reconsidering this doctrine of 
 the unappealable and unoxaminable nature of commitment for contempt." He 
 puts the case of the lords sentencing a person to work in Bridewell for his life, as 
 was actually done by the lords in 1684 ; and supposes it to be for suing out a writ of 
 habeas corpus to examine the legality of a former commitment by the lords. But 
 does not say how that is to appear !
 
 PARLIAMENTAKY LAW OF PRIYILEGE. I?J1 
 
 Now this was not " doing as they had been done unto ;" it was 
 not agre'eable to morals or religion, according to Tally or Saint 
 Paul ; but the attorney general was just able to say, that it was 
 " according to law." For, where care is taken to make the com- 
 1 litment general, Lord Shaftsbury's case stands unimpeached ; 
 aud men to whom the bare necessity to stand sheltered under a 
 technicality, would of itself, in private life, excite suspicion that 
 they were not following the pure and high line of conduct ; who 
 would feel that there was something abhorrent from a frank and 
 loyal nature, in withholding any part of the truth from judicial 
 inquiry ; and most of all that part which might rescue a prisoner 
 from confinement ; yet acting as a body and influenced by an esprit 
 de corps, the same men are carried away by a desire of victory, 
 and do not sufficiently weigh the means for attaining the end. 
 Others little comprehend what they are doing, and would, if com- 
 petent to judge of it, be very much ashamed of the dexterity by 
 which they succeed. " It would be unseemly," says Lord Denman, 
 " to suspect that a body acting under such sanctions as a house 
 of parliament, would, in making a warrant suppress facts, which 
 lit' disclosed,) might entitle the prisoner committed to his Hberty. 
 Ti they ever did so act, I am persuaded that on further considera- 
 tion they would repudiate such a proceeding. What injustice 
 might not have been committed in past times if such a course had 
 been recognized ; as. for instance, if the recorder of London, in 
 Bushell's case, had in the warrant of commitment suppressed the 
 fact, that the jury were imprisoned for returning a verdict of ac- 
 quittal. I am certain that such will never become the practice of 
 any body of men amenable to pubHc opinion. In Brass Crosby, 
 Burdett's and Hobhouse's cases, words were used shewing the 
 nature of the contempt." a 
 
 "Nevertheless, though the judges in this case perceived and re- 
 gretted the siippressio vert, and fully appreciated the motive, they 
 did not swerve from their line of duty. In this, the strongest pos- 
 tible case, where it was notorious that the prisoners were then* o"wn 
 officers, commtted whilst acting in the lawful execution of the 
 process of the court, the judges of the coui't of queen's bench, 
 finding the warrant general in form, acted upon the doctrine of 
 a 11 Adolphus and Ellis, p. 292.
 
 G22 PAEUAMENTAEY LAW OF PERTLEGE. 
 
 Sliaftsbury's case, and remanded the prisoners. The same a course 
 had been taken by the judges of each of the other courts, in simi- 
 lar cases. And as the courts of law, have thus been conspicuously, 
 and most creditably seen, in the case of their own officers an-ested 
 while acting in obedience to the rules of the court, to lay aside all 
 personal feehngs, (prejudice and passion enter not into the elements 
 of justice) ; and to act only upon the circumscribed views of the 
 law ; so may the parliament, before a long time has elapsed, not 
 only be found to repose full confidence in the integrity of the judges, 
 submitting their privileges fearlessly to their upright decision ; 
 but will probably also be seen vieing with the courts of law in 
 forbearance and self-control. Then may they be found to mag- 
 nanimously renounce, to spontaneously divest themselves of, so 
 fiightfid a power, (amountmg to a virtual repeal of the liabeas 
 corjms act) ; * as the use of commitments in a general form. 
 
 General warrants they will not permit to the crown, even in 
 cases of high treason and rebellion ; and in calmer times they may 
 renounce them, when they are themselves engaged in a squabble 
 with a bookseller or an attorney. They may becomethemselves de- 
 sirous, (as they will never wish to posess any privileges which are 
 not just in themselves, essentially necessary to the discharge of 
 their important functions, and really beneficial to the community) ; 
 that their claims of privilege may stand the test of forensic inquiry, 
 and receive the added sanction of the highest judicial authority. 
 This would, at least, be a recommendation of their exclustve privi- 
 leges to the people, and might conduce to a better feelmg, both as 
 regards the use of privilege and the interference with the admin- 
 istration of justice, than at present exists." 
 
 When the course of justice is allotved to foio unimpeded, decisions 
 are seldom unsatisfactory. Whenever the parliament has stopped, or 
 tried to stop, actions at laiv, menaced suitors and witnesses, and in- 
 
 a C. P. in Crosby's case, 3 Wils. 203; Exchequer in Oliver's case; cases of 
 Murray, Burdett, and Hobhouse, in K. B. 
 
 * In 1704, the lords resolved that " every Englishman, who is imprisoned by 
 any authority whatever, has an undoubted right to a writ of hahean corpus, in order 
 to procure his liberty by due course of law." The law of commitment for contempt, 
 says, according to Hargrave : "You shall have a habeas corpus ; but it shall 
 answer no purpose to you ; for, however illegal the commitment, the judges shall 
 not be permitted to set you at liberty." — Juridical Argumerds, p. 14.
 
 PARLIAiEEXTAKY L.VW OF PRRTLEGE. G23 
 
 terrupted tJi£. regular acJ ministration of Justice in the due course of 
 lata, it lias never been icilh advantage to the charader, or authority, 
 or dignity of parliament. It has always been viewed by the coun- 
 try in the light in which it is placed by the resolution of the lords 
 in Paty's case ; " That the deterring parties from prosecutuig ac- 
 tions in the ordinary course of law, and tenifying attorneys, solici- 
 tors, counsellors and serjeants-at-law from soliciting, prosecuting, 
 and pleading in such cases, by votmg their so doing to be a breach 
 of the privileges of the house of commons, is a manifest assuming 
 a power to control the law, to hinder the course of justice, and 
 subject the property of Englishmen to the arbitrary votes of the 
 house of commons." a 
 
 " In vain has the house of commons attempted to place its pri-\'i- 
 leges on the foot of unquestionable and unlimited pQwer. " The 
 court of queen's bench decided in Stockdale and Hansard, h that 
 thsre was no power in this country above being questioned by 
 law ; and I abide by that judgment," said Lord Denman. c 
 
 May exact boundaries be ascertained and solid principles estab- 
 lished ; may the parliament and the law flomish in-espective of 
 i iicli other ; yet each lending to the other its separate support and 
 sanction ! In the unavoidable conflict of laws and jurisdictions, 
 may the general law of the whole empire, the superintending, con- 
 trolling common law, prevail in the first instance, but subject to 
 revision in ascending courts of error ; ever remembering that the 
 real, ultimate, last resort of judicature is, in the whole legislature 
 of kings, lords, and commons, to correct all mistakes, and to repair 
 every possible wrong !" 
 
 Privilege, at fii'st, was the claim generally of members of the 
 high court of parliament. But the two houses, now distinct 
 branches of the legislature, must be taken to be invested with all 
 the essential privileges which antecedently to their separation be- 
 longed to the aggi'egate body of the parliament, so far at least as 
 they have been subsequently evidenced by enjoyment. Suppos- 
 ing the separate existence of the house of commons to have begim 
 only in the 49 Hen. 3, or at some other period within the time of 
 legal memory ; yet if the parliament itself, in any anterior form of 
 
 o In 1702. b 9 Adol. & El. 14. 
 
 c Case of the Sheriflf of Middlesex, 11 Adol aud Ellis, 28G.
 
 024 PAELIAMENTARY I^VW OF PEIVILEGE. 
 
 iis existence, be of prescriptive antiquity, (about which no reason- 
 able doubt can be entertained) ; the same privileges then en- 
 joyed by it, may be presciibed for by parliament, in the fomi into 
 ^vhich it has since resolved itself, and now subsists, a It will fol- 
 low that privileges claimed by the house of commons, if evidenced 
 by enjoyment, need not stiictly be prescribed for. 
 
 Since the 10 Geo. 3, c. 50, all claim of protection for member's 
 lands and goods, h and all privileges of domestics, being by that 
 statute taken away, and all other privileges which obstruct the 
 ordinary course of justice being abolished, the privileges of speech 
 and of person are the most familiar of those which remain to be 
 considered. The principle on which these privileges have form- 
 erly been claimed and allowed, is thus broadly, and somewhat 
 diffusely stated : — " As it is an essential part of the constitution of 
 every court of judicature, and absolutely necessary for the due 
 execution of its powers, that persons resorting to such courts, 
 whether as judges or as parties, should be entitled to certain pri- 
 vileges to secure them rom molestation during their attendance ; 
 it is more peculiarly essential to the court of parliament, the first 
 and highest court in this kingdom, that the members who com- 
 pose it should not be prevented by trifling interruptions from their 
 attendance on this important duty, but should, lor a certain time, 
 be excused from obeying any other call, not so immediately neces- 
 sary for the gi-eat services of the nation." c 
 
 " But this privilege, so essential to the very existence of a fi'ee 
 council, so freely exercised under Edward III and Henry IV, and 
 so constantly demanded as of right, by every successive speaker 
 posterior to 33 Hen. 8, was frequently caviUed at by the courtiers 
 of the reigns of Queen Mary and Queen Ehzabeth, as intrenching 
 upon the royal prerogative, and the house, it must be owned, in 
 part, perhaps, fi-om gallantry towards queens, acquiesced in gen- 
 eral too easily in these doctrines. " It was reserved," (so Mr. 
 HatsellcZ excellently expresses a generous sentiment) "for a more 
 enlightened age, and for times when the true spirit of liberty 
 should be better understood, to ascertain and establish this privi- 
 
 a Lord Ellenborough, Burdelt and Abbott, l-i East. 140. 
 
 h 2 Hats. 217; 5 T. R. 686. 
 
 c 1 Hats. 1, 2. d 1 Hats. 126.
 
 PARLIAMENTARY LAW OF rRRTLEGE. C25 
 
 lege iu its utmost extent, consistently Avitli the lauj^niagc of good- 
 breeding, and the behavior of men of liberal education." 
 
 Nevertlieless, this alannmg power of committmg members for 
 a supposed breach of the prerogative by their speeches in the 
 house of commons, continued to be exercised by the ministers of 
 the crown in the succeeding reigns, a 
 
 Of the several instances that follow, the case of Sir Edwyn 
 Sandys, in 1C21, is on many accounts the most memorable ; but 
 chieHy so, because it produced the famous " Protestation" in vm- 
 dication of the rights and privileges of the house, which occasioned 
 the immediate dissolution of that parhament. b 
 
 The king having written to the house of commons, " We cannot 
 allow of your style— calling it 'your ancient and undoubted right 
 and inheritance,'— but could rather have wished that you had said 
 that your privileges were derived from the gi-ace and permission 
 of our ancestors and us ;" a committee of the whole house was 
 appointed to meet the next morning, " to consider all things in- 
 cident to, or concerning, the privileges of the house ;" and having 
 met, with the assistance of Sir Edward Coke, Mr. Noy, and Mr. 
 Glauville, prepared the celebrated protest : 
 
 " That the liberties, franchises, privileges and jurisdictions of 
 parhament, are the ancient and undoubted birthright and inheri- 
 tance of the subjects of England ; and that the arduous and urgent 
 affairs concerning the king, the state, and the defence of the 
 realm, and of the Church of England, and the making and main- 
 tenance of laws, and redress of mischiefs and giievances which 
 daily happen within this realm, are proper subjects and matters 
 of counsel and debate in parhament ; and that in the handling and 
 proceedings of those businesses, every member of the house hath, 
 and of right ought to have, freedom of speech to propound, treat, 
 reason, and bring to conclusion the same ;" which having been 
 read several times, was allowed and ordered to be entered of record 
 iu the journal of the house ; and which (though the king, by 
 ^' sending for the journal, and striking out the entry with his own 
 hand," was in hopes to have obliterated all traces of), is still pre- 
 
 a D'Ewes, 410; Cases of Cope, Wentworth, auJ others. 
 b 1 Hats. Free. 137. 
 
 79
 
 G2G PAEUAMENTAEY LAW OF rERTLEGE. 
 
 served, and will a for ever remain, a memorial of the true spirit 
 and firmness, the temper, moderation, and wisdom, of the great 
 men who b directed the councils of that parhament, and of whom 
 several of the principal, will be foimd to have belonged to the 
 liberal as well as learned profession of the law. 
 
 Indeed, it is to the sagacity, research, prudence, skill, and above 
 all, to the courage of the lawyers of that period, that this country- 
 is almost entirely indebted for possessing its present perfection of 
 civil liberty. Whitelocke truly said, that "those in power had 
 most occasion to be displeased with this profession, as a bridle to 
 their power." "W^hen Wolsey went with state and pomp to the 
 house of commons, to overawe the house into the grant of a par- 
 liamentary aid, who was it that had the firmness to tell him, " that 
 his manner of coming thither was neither expedient, nor agreeable 
 to the ancient hberties of that house?" c — who framed the petition 
 of rights ? — to whom are we principally indebted for the bill -of 
 rights ? — who unavailingly advised proper terms and conditions, 
 with due limitations, upon the power of the crown at the restora- 
 tion ? — to whom do we chiefly owe the principles estabhshed at 
 the revolution ? d — Fortescue, Sir Thomas Moore, Coke, Selden, 
 Hale, Somers, Whitelocke, are all names gloriously distinguished 
 for services to the national freedom. Other bright names have a 
 different praise, — Bacon, Clarendon, &c. 
 
 It is observable, that in all these cases it was pretended by the 
 ministers, that such commitments were not for any hberties taken 
 in speeches, but for offences of another sort committed out of 
 parliament; " well knowing," says Hatsell, " that if the parliament 
 could be deluded by these pretences, their end would be equally 
 attained. If this claim, set up by James I, and Charles I, to im- 
 prison the members of either house, at any time, and under any 
 pretence, could have been established, it would have made no in- 
 considerable part of that system of prerogative government, which 
 they were so desirous of erecting." 
 
 The great case of Sir John Elliott, Holies and Valentine, in 
 which the judgment proceeded upon the mistaken ground that the 
 
 a 1 Hats. 138. c 3 Hats. 1; Sir Thomas Moore, Speaker. 
 
 h Pari. Hist. Vol. 5. d See Amos's Fortescue, passim.
 
 PAKLIAMENTABY L.VW OF PRrVILEGE. C27 
 
 act in Stiodo's case, was a private act, was a prosecution of those 
 members for their conduct in parhament ; a when the house of 
 commons asserted " their indubitable and essential right of free- 
 dom of speech, and personal freedom of their members," and 
 refused to proceed to any business till their members were restored 
 to them. 
 
 " The last violent and fatal step taken by that misguided 
 monarch (!) (Charles I), which was subversive of every idea of 
 privilege in the house of commons, and precluded all hope of re- 
 conciliation with his parliament and people, was the going in 
 person and endeavorhig to seize the members whose freedom of 
 speech had displeased him." b 
 
 The judgment against Elliott, Holies, etc., was revei-sed by the 
 house of lords, in April 1G68, after the restoration ; and Strode's 
 Act was resolved by both houses of parliament to be a general law. 
 
 By the Bill of Blights, it was expressly and legislatively declared, 
 at thfe revolution, as one of the fundamental liberties of the people ; 
 -' that the fi'eedom of speech and debates and proceedings in par- 
 liament, ought not to be impeached or questioned in any court or 
 [)lace out of parliament." c 
 
 " Tlie instances of serious invasion of this indispensible pri-silege 
 l)rincipally occur where they were chiefly to be apprehended, from 
 the power of the crown. Interference on the part of the executive 
 would naturally be regarded with greater jealousy than any stupid 
 contempt or perverse obstructions from other quarters. Still there 
 can be no reasonable doubt that any attack or reflection from any 
 other quarter, either upon the house collectively, or upon the 
 members who compose it, as individuals ; for any motion, debate, 
 question, resolution, statement made, or decision come to, in the 
 regular course of parliamentary proceedings, would be \-isited with 
 censure and punishment, as involving an undoubted breach of 
 useful privilege. Accordingly, in an d instance (not perhaps a 
 very discreet one,) in 1559, Frower, a seiTant of the master of the 
 lolls, was ordered to attend to answer to certain evil words s2")oken 
 
 (I See 9 Com. J. 25; 12 L. J. 1G6, that this was au illegal judgment and against 
 the freedom and privilege of parliament. 
 b 1 Hats, ad fin. c 1 "Wm. and Mary, s. 2, c. 2. 
 
 d 1 Hats. 19-1.
 
 G28 rAKLLiMENTATvl IA.Vf OF rrvRTLEGE. 
 
 by Lim against the house, saying, " That if a bill were brought in 
 for womens' wyers in their pastes, they would dispute it, and go 
 to the question ." for which offence, though be denied the words, 
 he was committed to the Serjeant's keeping. 
 
 27 Eliz. 1584, John Bland, a currier, for making dishonorable 
 reflections on the house of commons was brought to the bar, and 
 pardoned on his submission ; paying twenty shilUngs fee to the 
 Serjeant, and taking the oath of supremacy. 
 
 Eeflections on the speeches and conduct of members, assaults 
 upon, or menaces to members, on account of their behavior in par- 
 Hament, have been frequently resented as indignities to the house 
 itself. 
 
 12 Feb. 18. Jac. 1. Mr. Lovel, a member of the house, informed 
 it, " That one Darryel threatened his person that for a speech 
 spoken by him in the house, he should be sent to the tower during 
 the parhament, or immediately after." Darryel was committed 
 to the Serjeant till the Saturday following, and then to acknowledge 
 his fault, or be committed to the tower." 
 
 But though a member of parliament has privilege of speech in 
 parhament, and may speak in his place in either house what he 
 thinks material or useful, whether in praise or in censure of the 
 conduct of others, without being questioned in any place or court 
 out of parliament, he is not therefore justified in publishing what 
 he has spoken, if it contain matter injurious to the character of an 
 individual. In the former case, in his character of a a member of 
 parliament, he is protected ; but if, unauthorized by the house, he 
 choses to publish his speech, it then becomes a subject of common 
 law jurisdiction. And the circumstances, in the latter case, h of 
 its being accurate, and intended to correct a misrepresentation, 
 will not make him less amenable to the common law, in respect of 
 the publication. 
 
 As regards reports, resolutions, parliamentary proceedings and 
 papers printed, (and now sold,) by the authority of either house 
 of parhament, considerable doubt was hitherto entertained by the 
 most competent persons, what should be the proper rule. 
 
 It seems unquestioned that the courts of law will take judicial 
 
 a K. V. Lord Abinr,'(lon, 1 Esp. N. P. C. 226. 
 hJi.v. Creevy, 1 M. & S. 273.
 
 TARLLVSIENTAnY LAW OF riimLEGE. C29 
 
 notice of tliG order of proceeding in parliament and in conmiit- 
 tees.a Of parliamentaxy papers, what is printed for the ase of 
 the membere, ha<l been long estabhshed to be undoubtedly 
 privileged. 
 
 The tu-st case that occurs as to the publishing ])arliamentary 
 papers of a defamatory nature, was that of Lake v. King, h where 
 certain parhamentaiy papers had been printed, which aspersed 
 the cliaractcr of Sii- Edwai'd Lake. The defendant justified the 
 libel he had piinted, by pleading that it was only printed for the 
 use of members. On demun-er, the court held the plea good, 
 because it was the order and course of proceeding in parliament, 
 to piint and deliver copies for the use of members, whereof the 
 judges ought to take judicial notice. Lord Hale and the coiu't 
 sustained the defence ; because being necessaiy to their f imctions, 
 it was the course to print pailiamentary papers for the use of 
 members. And the judges in the case of Stockdale v. Hansard, c 
 considered the line drawn in this case, to be correct in law. 
 
 A criminal information was refused for publLshing the report of 
 a committee of the house of commons, which contained a para- 
 graph charging an individual with having views hostile to the gov- 
 ernment ; after he had been tiied for treason and acquitted ; on 
 the ground, that a proceeding in parliament could not be deemed 
 Kbelous. d In a latter case, e Lord Ellenborough expressed an 
 inclination to lay down the doctrine with somewhat more of limi- 
 tation, than was to be found in that case. 
 
 The recent and leading case of Stockdale v. Hansard, was an 
 action brought against the printer of the house of commons for a 
 libel contained in a parliamentary publication. The defendant 
 justified his publication by the supposed privileges of the house 
 to publish for sale such papers, though containing defamatory mat- 
 ter. The house resolved that it actually possessed the power. 
 The judges of the coui-t of queen's bench admitted that if such a 
 privilege did exist, it would protect the printer, but held that such 
 privilege did not exist, and that the resolution of the house would 
 not create it. There were, and still are, la-u-yers, ■v\lio hold opiu- 
 
 n R. V. "Wrif^'bt, 8 T. R. 283. h 1 Sauiul. 131. 
 
 c 9 Adol. & Ellis, 1. J 8 Term Rep. iVS- 
 
 e R. V. Creevy, 1 M. & S. 276.
 
 630 RUILLUEENT.VEY L.VW OF PEIVILEGE. 
 
 ions favorable to the privilege claimed in this case, and they may 
 have been founded in such doctrine ; but that the judges uprightly 
 discharged their duty in entertaining the inquuy, — amvmg at, and 
 acting upon a conviction of their ovai, — instead of yielding to a 
 resolution of the house of commons, cannot admit of a reasonable 
 doubt. And, as no writ of error was brought upon the judgment, 
 it must now be taken, that the privilege did not exist * It is un- 
 necessary to enter more fully into Stockdale's case in this place, 
 because by statute 3 Yict. c. 9, s. 3, " An act to give summary pro- 
 tection to persons employed in the publication of parliamentary 
 papers" — it is provided that proceedings, criminal or civil, against 
 persons for pubHcation of reports, papers, proceedings, (fee, printed 
 by order of parhament, may be stayed upon dehvery of a certifi- 
 cite under the hands of the chancellor or deputy speaker of the 
 lords, or speaker or clerk of the house of commons, to the effect 
 that such pubUcation was by order of either house of parliament." 
 
 Although the act passed in Strode's case, 4 Henry 8, provides 
 for the personal immunity and protection of the members them- 
 selves, for speeches made or acts done, in parliament or concern- 
 ing the same ; this does not regard what Lord Ellenborough termed 
 the vindictive privileges of the house for offences done against the 
 body of the house generally, in breach of the rights and privilege 
 of the whole house, a Wliilst a member may not be questioned 
 out of parliament for any expressions he may have used in debate, 
 he is hable to censure and punishment by the house itself, of which 
 he is a member. And instances have occurred, of members hav- 
 ing been imprisoned and even expelled, for offensive language and 
 indignities to the house, and disobedience to its orders. 
 
 Thus in 1580, Arthur Hall, a member of the house of commons, h 
 was punished for a libel on the dignity of the house, by bemg com- 
 mitted and expelled. In c more recent cases, the judges of the 
 court of king's bench were unanimously of opinion that the house 
 of commons has the power of commitment of a member for a 
 breach of their privileges. In Hobhouse's case, the house of com- 
 mons havmg voted the defendant guilty of a breach of theur privi- 
 
 a E. V. Flower, 8 T. K, 31-1. l> D'Ewes Journal, 291. 
 
 c Burdett v. Abbott, 14 East, 1. 
 
 * This case was cited as the law of legislative privilege by Senator Sumner, in 
 his great speech on that subject 27th May, 1871.
 
 rARLIAJJENTAllY LAW OF I'KrraXGE. G31 
 
 leges for publishing a libel upon tlic house, aiuUiaviDg orjired liim 
 to be committed to Newgate during their pleasure, and the speak- 
 er's waiTant being returned into the court of king's bench upon a 
 habeas corpus sued out by the defendant, the court refused to dis- 
 charge him out of custody, a " It was necessary," says Lord 
 Ellenborough, in the former of the cases refen-ed to, h " that 
 members (of the high court of parliament generally) should have 
 the most complete personal security to enable them freely to meet 
 for the purpose of discharging their important functions, and also 
 that they should have the right of sdf -protection, I do not mean 
 merely against acts of individual A\Tong ; for poor and impotent 
 indeed would bo the privileges of parliament, if they could not also 
 protect themselves against injuries and affronts offered to the ag- 
 gregate body, which might prevent or impede the fuU and effectual 
 exercise of their parliamentaiy functions. This is a right essen- 
 tially inherent in the supreme legislature of the kingdom. Can 
 the high court of parliament, or either of the two houses of wliich 
 it consists, be deemed not to possess intrinsically that authority of 
 prosecuting summarily for contempts, which is aclcnowledged as 
 belonging to every superior court of law of less dignity, undoubt- 
 edly, than itself ? And is not the degradation and disparagement 
 of the two houses in the estimation of the public, by contemptu- 
 ous libels, as much an unpediment to their efficient acting with 
 regard to the pubHc, as the actual obstraction of an individual 
 member by bodily force, in his endeavour to resort to the place 
 where parhament is holden ? 
 
 And not only is every member subject to the censure of the 
 house, for whatever is spoken in the house, but for every other 
 part of his conduct, c In 1G2G, Mr. Moor was sent to the tower 
 for speaking out of season. 
 
 Sir WiUiam "VMddrington d and Sir Herbert Price sent to the 
 tower for bringing in candles, against the desire of the house. 
 
 Mr. Hugh Benson, e a member of the house, having granted 
 many protections for money, taking for some sixteen, seventeen, 
 forty shillings ; resolved upon the question, that ]Mr. Hugh Benson 
 
 a R. V. Hobhouse, 2 Chitty, 207. 6 Burdett v. AMiott, 11 Enst. 1. 
 
 c Nalson's Introd. Gl. 
 
 d 2 Nalson, 272. e Ibid, 596.
 
 632 PAELIAJVIENTARY LAW OF rEIYILEGE. 
 
 is unworthy aud unfit to be a member of this house, and shall sit 
 no longer as a member of tliis house. 
 
 18 Eliz. 1575, Edward Smalley was, upon the question, adjudged 
 liy the house to be guilty of contempt and of abusing the house 
 by the fraudulent practice of procuring liimself to be arrested upon 
 execution of his own assent, and with intention to be discharged 
 as weU as of his imprisonment as of his said execution. Smalley, 
 and a conspirator with him, were both ordered to the tower ; and 
 the said Smalley to remain there for a month, and after ; till he 
 gave sufiicient assurance for payment of a hundred pounds to the 
 creditor, and forty shillings for the Serjeant's fees, a 
 
 The next petition affecting individual members, was for freedom 
 from arrest. This claim also was never made until of late years ; 
 yet " this privilege," says Elsynge, " did ever belong to the lords 
 and commons, and to their servants also coming to the parliament, 
 staying there, and returning home." h So Hakewill observes, c " the 
 petition for privilege from arrests is of later days ;" but notices 
 that Sir J. Cheny, 1 Hen. 4, made a general request for all privi- 
 leges, which might include it. And in Atwyll's case, 17 Ed. 4, the 
 preamble to the commons' petition confidently asserts the "pryv- 
 ylege, that euy of theym shuld not be empleded in any action per- 
 sonell, nor be attached by their persone or goods, in their comying 
 to any such parhament, there abydyug, nor fro thence to their 
 propre home resortyng ; which liberties and franchises your high- 
 ness, by your auctorite roiall, at commencement of tliis parliament, 
 graciously have ratified and confirmed to us, your said comens ;" 
 which ratification could only have been in his majesty's answer to 
 the speaker's petition. 
 
 The privilege itself, of freedom from an-est in civil suits, at 
 whatever time first formally claimed, was certainly always exercised, 
 and must have been coeval with the existence of parhaments. The 
 exemption from arrests was considered the privilege, generally, of 
 a member of the high court of parliament ; and the reason given for 
 it by the judges, applies equally to the members of both houses, 
 vi2;. " That they may have their freedom and liberty freely, to 
 intende upon the parhament." Accordingly, Hakewill speaks d 
 
 a Petj-t's Miscel. Pari. IC, 18. h Elsynge, 184. 
 
 c Hakewill, 213. d Hakewill, 62.
 
 PARLIAMENTARY LAW OF rRRTLEGE. C33 
 
 of it as cstablisliod paiiiamentiiry hiw, that " every kiiii^lit, eitizen, 
 burgees, baron of the five ports, or others, called iu the parliament 
 of the kuig, shall have priNilego of pai-hament during the session 
 of parhament ; so that he, that doth aiTest any of them during that 
 time, shall be unprisoned in the tower, by the nether house, of 
 which he is, and shall bo put to his fine ; a and the keeper also, if 
 he will not deliver hira when the serjeant-at-anns doth come for 
 him, <fcc. And all the prinleges which do belong to those of the 
 commons house of parliament, a fortiori do appertain to all the 
 lords of the np^x^r house. Their persons are not only fre<3 from 
 aiTest during the parliament, but during their lives ; nevertheless 
 the original cause, is by reason they have voice and place in par- 
 liament." Freedom from aiTest of peers, however, \\\\.\\ gi-eat def- 
 erence to Mr. Hidi:ewill, (to whom I am gi-eatly indebted,) but 
 whom I cannot implicitly follow in this instance ; being the prin- 
 lege of peerage, and not of parliament, h extends to peers not mem- 
 bers of the legislature ; viz., Scotch and Irish, (and formerly to 
 Koman Cathohc peers.) The person of a peer (by the pnA-ilege of 
 p eerage) is ever sacred and inviolable, c This immunity rests upon 
 ancient custom, and is recognized by statutes, 12 and 13 Wm. 3, 
 c. 3, and 2 and 3 Anne, c. 18."^ 
 
 The principle, that attendance in parliament ought not to be 
 interrupted by the process of an inferior court in matters of civil 
 jurisdiction, being admitted in the earliest times, (an instance will 
 be shewn in 9 Ed. 2,) a practice founded upon it, will appear uni- 
 versally to have prevailed. Possessing a power that was never 
 disputed, for the prevention of arrest or the enlargement of their 
 members by wTit of privilege, or liaheas corpus, the coui'se of the 
 house of commons seems to have been, to provide in each instance 
 for the particular case, without procuring any general law upon 
 the subject. There occur, indeed, in the parhiunentaiy records, 
 and in the documents brought to light by the indefatigable industry 
 of Prynne, several instances of petitions presentetl by the com- 
 mons, praying the king to have their claims in this respect (and 
 they are stated as appertaining to the whole parliament, peers as 
 well as commons) allowed and enforced by the sanction of a law ; 
 but the answer was, that they akeady possessed a suflicieut remedy. 
 
 a Dyer, 60. b 2 Strange. 985. r 1 Bl. Comm. lO". 
 
 It is to be obear\-ed these ciises arose prior to the stpt. 13 Wm. Ill 4l3Geo.III 
 80
 
 634 PAELIAJVEENTAEY LAW OF rMTILEGE. 
 
 The present inquiry will be understood to be of necessity, almost 
 entirely coniined to the privileges claimed in the speaker's prayer. 
 And thus narrowed, it will be rendering a more acceptable service, 
 to present the reader with the brief result of the cases, than to 
 enter into any more labored exposition of the doctrine. 
 
 In the great case of Lord Arundel, who had been imprisoned by 
 the king, in 1625, the lords resolved nem con, " That the privilege 
 of tliis house is, that no lord of parliament, sitting the parliament, 
 or witliin the usual time of pri^'ilege of parliament, is to be im- 
 prisoned or restrained, without sentence or order of the house, 
 unless it be for ti'eason, felony, or for refusing to give surety for 
 the peace." a 
 
 In the house of commons, the cases of Bogo de Clare, 18 Ed. 1, 
 relating to the service of a citation in a privileged place and ex- 
 empt jmisdiction ; and of John de Thoresby, 10 Ed. 3, founded on 
 the service of ecclesiastical process in the court of chancery; 
 usually fii'st cited, because furnished by Sir Edward Coke h in his 
 fourth institute, were thought by Prynne, c and are declared by 
 Sir Orlando Bridgeman in his judgment in Benyon v. Evelyn, 
 and by Lord Ellenborough in Burdett v. Abbott, to have no 
 reference to the privilege of parliament. 
 
 The fii'st case which does d apply is the prior of Malton's case, 
 9 Ed. 2, and it seems quite conclusive of the claim ; but upon that 
 case no judgment has been found. The original e writ recites the 
 privilege as follows : " Frelatos, comitcs, harones et alios, tarn cleri- 
 cos quam laicos, in veniendo ad eadem parliamenta, ibidem onorando 
 et exinde redeundo, ah omni-modis injuriis, oppressiordhus et grava- 
 minihus, nos oporiet protegere et titeri," &c. 
 
 In the parliament,/ 5 Hen. 4, was a petition from the commons 
 to the king, in which asserting that " 7ie devoient per ascum dette, 
 accompt, trespas ou autox contrat gconque esfre arester oic en ascun 
 manere em'prisonez en le meme temps ,•" they pray the king " to make 
 any breach of such privilege punishable by fine and ransom to 
 
 a Ajid see. in the same year, Feb. 9, 1625; a stay of proceedings in the star 
 chamber, granted to the Lord Vaux, on the ground of privilege, 3 L. J. 496. 
 h 4 Inst. p. 24. 
 
 c Prv'nne's Annimadv. on 4 Inst. 20 Eeg. 38G. 
 d Elsj-nge, 186. e 1 Hats, 13. 
 
 / Parliament EolL Vol. 3, p. 541, No. 71.
 
 rARLLVMENTARY LAW OF ITJVILEGE. C35 
 
 himself, aiul treble damages to the party." The king answers 
 them, " Y ad sufficient remede en le cas." That suflicieut remedy 
 was, says Prynne, their enlargement Ijy writ of piivilege or habeas 
 coi-jDUS, whieh the hiAV allowed them, in such eases, if not in exe- 
 cution ; whereby the plaintifl' lost the benefit of his arrest, and was 
 put to the charge of new process, kc. But in Lark's case, 8 Hen. 
 0, a where the commons prayed not only a special redi-ess in the 
 particular case in the discharge of their member, but a general 
 recognition ^ by a declaratory law, that " no lords nor knights, 
 citizens, burgesses or others, may be an-ested or detained during 
 the time of parliament, except for treason, felony, or surety of the 
 peace ;" the kingc refused them, giving a parliamentary negative : 
 "Ze Roy savlseray The house of lords, in their answer to this 
 case, when cited by the attorney general in Lord iU'undel's case, 
 suppose the ground of this negative to have been, that the latter 
 part of the bill comprehended more than it was at that time 
 thought, fit, the royal assent should be given to. "There is no 
 doubt but that any of the house of commons being detained in 
 prison upon an execution served upon them before the time of 
 privilege of parliament, or being in execution in any ordinary 
 course of justice before that time, ought to be detained still, as is 
 practised at this day." They then supposed that a prisoner, by 
 being chosen a member, could not claim to be discharged ; now a 
 difierent doctrine prevails. 
 
 There was, however, in the case of Lark, d an enactment, by the 
 consent of the plaintiff's counsel, for the discharge of Lark out of 
 custody ; but there was also a saving to the plaintiff of his execu- 
 tion, after the end of the parliament, and of the fine to the king 
 for the trespass. As Sir O. Bridgeman pithily states it : " There 
 was a special act of parliament for a new execution and by a new 
 way against Lark, but the king refused to make a general law in 
 it." In point of fact, it was then, and long after, considered doubt- 
 fid whether privilege of parliament extended only to aiTests on 
 mesne process, or to executions also. And accordingly in the 
 next case, we find a fourtji limitation added to the former except- 
 ions ; " if a member be aiTested in such cases as be not for treason, 
 
 a Hot. Tarl. 8 Hen. 6, No. 57. c 1 Hats. 20. 
 
 h Elsynge, 217. d Moor, 340; 5 T. R. 362.
 
 636 PAELIAMENTAEY LAW OF PEIYILEGE. 
 
 felony, surety of the peace, or for a condempnation liad hefore iJte 
 parliament, it is used that such persons be released of such arrests, 
 and make an attorney," being the instances excepted by the judges 
 in Thorpe's case, 31 Hen. 6. This person, who was a baron of the 
 exchequer as well as speaker of the house of commons, and more- 
 over a Lancasterian, had been imprisoned during a prorogation, 
 on an execution at the suit of the Duke of York. The commons, 
 as in Lark's case, where they did not act upon the claim them- 
 selves, but submitted jt to the rest of the parhament, as a matter 
 of general concern, sent some of their members to complain of a 
 violation of privilege to the king and lords in parhament, and to 
 demand Thorpe's release. The lords referred the question to the 
 judges, who, inter alia, stated the law of privilege as cited above. 
 Notwithstanding this answer of the judges, the lords determined 
 that Thorpe should remain in prison and directed the commons 
 to proceed with all goodly haste and speed to the election of a 
 new speaker, which they did immediately. 
 
 That, after the formal declaration of the judges upon this occa- 
 sion, and their exact enumeration of all the cases excepted out of 
 parliamentary privilege, the lords should have immediately ad- 
 judged that Thorpe, who appeared to come within none a of these 
 descriptions, should according to law, remain stUl in prison, while 
 the commons cheerfully acquiesced in this decision, and imme- 
 diately proceeded to the choice of a new speaker, has created 
 great and reasonable surprise and well-founded suspicion, and 
 occasioned it to be repeatedly h mentioned, as " a case begot from 
 the iniquity of the times." A solution of .the difficulty is furnished 
 in the case of Hodges * v. Moore, 1 Car. 1, as reported by Latch, c 
 
 a Prynne, 4 Eeg. 810. c Latch. 15, 48, 150, Noy. 83. 
 
 h First by Six N. Eich, on its being cited in debate, March 1620. 
 
 * In this case, Moore, having privilege of parliament, procured the speaker, 
 Sir. H Finch, to write his letter in the name of the parliament, to the court of 
 king's bench to stay judgment. The court was greatly offended at this proceeding, 
 (which had been the practice for a century,) and it is said, would have returned a 
 sharp answer to the parliament, (if it had not been dissolved); "because it i.^s 
 against the oaths of the judges," &c.; but " the way is to procure a supersedeas." 
 They also referred to what the judges said in Thorpe's case, that " there is no 
 general supersedeas brought to surcease all process; for if there were, then this 
 high court of parliament should let the process of the common law, and so should 
 put the party complainant without a remedie."
 
 TAELLVMENTARY LAW OF PRIVILEGE. 037 
 
 Thorpe, it seems, had only Sbfjemral supcrsedc<xs for all actions, aud 
 the opinion of the judges being taken, tliat was held ill ; he should 
 have had a ^xir/ic«Zaj' ^crit of super sathxts for eacli action. Thus a 
 technical gi-oiind, however naiTOW, was laid for this tyranical pro- 
 ceeding. This explanation, moreover, is not inconsistent with the 
 account afforded by Hake^vill, a who says that Thorpe was arrested 
 in vacation, and lays it down as the doctrine of his time, that par- 
 liament doth not give privilege tempore vacationis sed sedente curia 
 only. So Elsj-ngc h is reduced to the supposition that the judg- 
 ment proceeded on the gi'ound that the expression " condempnation 
 had before the parliament," is to be understood of such arrests as 
 happen in the interval beto'een the adjournment and the access. 
 These considerations, if they do not remove all the sus^^icion that 
 attaches to that case, will in some degree serve to explain tlie 
 proceedings on it, and the judgment eventually given by the par- 
 liament The lords, adopting the ad\ice of the judges, disallow 
 the privilege claimed, because Thorpe had only a general sujjerse- 
 deas, and not a particular supersedeas in that suit ; and because 
 the condemnation was " before the parHament began," being during 
 a prorogation, not an adjournment. ''' 
 
 Clarke's case, 39 Hen. 6, and Hyde's case, 14 Ed. 4, resemble 
 Lark's case in many particulars, all three members being taken 
 in execution, and it being thought necessary, in each case respect- 
 ively, to have an act of parliament to save to the plaintiff' a new 
 execution after the time of privilege : and they vary only, in its 
 having been thought necessary or expedient in the latter cases to 
 have the chancellor, sheriffs, and warden of the fleet indemnified ; 
 " Which," says Hatsell, " induces me to suspect that the right 
 such persons had by law to writs of privilege and Jtal>cas corpus 
 for their deliver}^ did not extend to cases of persons imprisoned 
 under a writ of execution." 
 
 Two years previous to the last mentioned case of Hyde, occmTed 
 the case of Donne v. Walsh, c copied by Prynne from the rec- 
 ords in the court of exchequer. It was a demuiTer to a plea of 
 ^vlit of pri\dlege. The writ recited an entire privilege of the lords 
 
 a Hftkewill, 63. b Elsynge, 217. 
 
 c i Register, 752. 
 
 • It appears by the rolls of iiarliament, that it was then prororpied.
 
 038 PAELIAMENTAEY L.\W OE PKIYILEGE. 
 
 aud commons not to be imprisoned or impleaded during tlie time 
 of parliament. Tlie barons, ■s^itli the ad\ice of the judges of both 
 the other courts, formally declare their opinion that persons enti- 
 tled to privilege, " ratione aliciijus transgressionis, dehiii, comjnUi, 
 conventionis, contractus conjuscunqiie, dum sic in parliamento Eegis 
 mcyi-entur, cadi aid arrestari non debent ; sed nullum hujusmodi con- 
 suetudinem fore, quod quin implacitari debent, proict in hrevi illo 
 sujjonitur." 
 
 There is a similar decision of the same court of exchequer in 
 EjYer V. Cosins, the same year, in which the barons repeated 
 verhalim then- opinion in Walsh v. Donne ; yet, in Hyde's case a 
 the Idug's bench remanded Mr. Hyde to Newgate, though arrested 
 in a civil action ; and the house of commons, in a subsequent case, 
 renewed then- claim to exemption from being impleaded. This 
 was in Atwyll's case, 17 Ed. 4, & in which, however, the plaintiffs 
 execution was expressly saved to him after the end of the parlia- 
 ment ; which negatives in effect, this claim of exemption ; " The 
 inference c is strong. The act of parliament did aUow the foun- 
 dation, and proceeding, and judgment against Atwyll a member of 
 parhament, during the parliament, though it discharged the 
 execution." 
 
 The next claim, in Sadcliffs case, 1 Hen. 7, omits the privilege 
 of not being impleaded in personal actions, wliich had been so 
 often disallowed. 
 
 The last case which relates to a claim of privilege " not to be 
 impleaded," is of much later date, 14 Car. 2, and is only stated 
 here by anticipation, to prevent the necessity of a recurrence to 
 the subject. In the case of Benyon v. Evelyn, 14 Car. 2, Sir Or- 
 lando Bridegman decided that the privilege of parliament which 
 exempted members from arrest, did not prevent an original being 
 sued out or prosecuted against a member during the sitting of par- 
 liament. Tliis is the case in which Lord C. J. Bridgeman gave so 
 learned and elaborate a judgment, worthy of his common law 
 reputation ; obscured, not extinguished, ui chancery. It was an 
 action of assumpsit for goods sold and delivered to a member of 
 parliament ; the defendant pleaded the statute of limitations ; the 
 
 a 12 Ed. 4, Rot. 7. h 17 Ed. 4, No. 35. 
 
 c Sir 0. Bridgeman's judgment in Benyon v. Evelyn.
 
 rAELLVMEXTAllY L.VW OF rm\TLEGE. C3'J 
 
 plaintiff replied that lie could not sue the defendant sooner, because 
 he was a member of parliament and privilcf^cd from suits, the de- 
 fendant denied that position, and said that though membei-s of 
 parliament cannot bo arrested, they may be sued. The learned 
 judge considered himself bound to decide the question of prinlege 
 thus brought before him, lamenting the necessity. Ho says, 
 " When in a common action, tho privilege of parliament doth come 
 to be part of the plea or justification, it is of necessity that the 
 privilege, whether there be such, and what the extent of it is, 
 come also into consideration. For as in the register it is said of 
 the ecclesiastical court, which is inferior to the common law, if a 
 common law point come in question there, non est consonum rationi, 
 quod cognitio accessarii in cousa clivist'ianitatis inipediatur, uhi cog- 
 nitio caiisce princijoalis ad forum ecdesiastici'.m noscitur pertinere ; 
 so I may say here, the privilege of parliament coming incidentally 
 as part of the case, as a consequent, must, in this particular case, 
 be also debated hero." The decision was against the privilege 
 claimed : that is, that a member had no exemption from being 
 sued ; though such a privilege had been frequently claimed. 
 
 Hitherto it has been seen, that when a member or his servant 
 has been imprisoned, the house of commons have never proceeded 
 to deliver such person out of custody by vhtue of their own au- 
 thority ; but if the member has been in execution, have apphed 
 for an act of parliament to enable the chancellor to issue his writ 
 for his release ; or, if the party was confined only on mesne pro- 
 cess, he has been delivered by his -vmt of pri\'ilege, which he was 
 entitled to at common law. The truth was, a says Hallam, that 
 with a right pretty clearly recognized, as is admitted by the judges 
 in Thorpe's case, the house of commons had no regular compulsory 
 process at their command. 
 
 In 34 Hen. 8, Ferrer's case introduced a new mode of proceed- 
 ing in this particular. Though in custody in execution for " a 
 condemnation had before the parliament," the member an-ested 
 was delivered, *' not in this case, by virtue of an act of parHament 
 — not by any writ of privilege, but by the serjeant-at-arms, with- 
 out any other wan-ant than his mace ;" "Albeit the lord chancellor 
 oflered them to gi-ant a writ." Secondly, the parties who opposed 
 a Miaaio Ages, vol. 2, c. 8.
 
 640 PABLIAMENTAEY L\W OF TRIYILEGE. 
 
 his delivery in this novel and extraordinary manner, (as it then 
 was,) were imprisoned by the house of commons, some in the tower, 
 some in Newgate. Thh'dly, the creditor himself, who procm'ed 
 the arrest, was also committed for his contempt of the privilege of 
 parliament. As the matter is condensed in a sentence of Sir O. 
 Bridgeman's judgment, " This case doth not only determine the 
 law for the privilege against the execution, but also that the party 
 ought to be discharged without writ, when the serjeant-at-arms 
 comes for him." There was however, no shght aggravation in 
 this case, in the violent and contemptuous manner in which the 
 sheriffs and their officers treated the serjeant-at-arms bearing the 
 ensign of his official authority, the mace ; and there was another 
 fact which may, at least in Hatsell's opinion, serve to explain the 
 measure here adopted, and the doctrines now for the first time 
 laid down, as to the extent of the privileges of the house of com- 
 mons. Ferrers was an immediate servant of the king ; so that 
 the allowance of the privilege in this case was as well in respect 
 of the claim of the king for his servant, as of the claim of the 
 house for its members. Add to this, he was only a surety, and 
 was aiTCsted on his way to attend the parliament. An inferior 
 court would liberate a person arrested under similar circumstances 
 in his progress to attend the court in obedience to a lawful sum- 
 mons. When the vehement displeasure of the house had at length 
 subsided, they acted equitably as usual, savmg the plaintiff's exe- 
 cution against the principal debtor, (who would have been dis- 
 charged if the taking of FeiTers were lawful,) and discharging 
 Fen-ers himself by a majority of only fourteen, and after a long 
 debate of nine or ten days. 
 
 Lawyers, it is to be expected, would scarcely admit such inno- 
 vations without findmg room for difficulty and scruples. They 
 would naturally feel some hesitation in saymg that the sheriffs 
 ouglit to have discharged the prisoner on their own responsibility, 
 on the mere order of the Serjeant bearing his mace. They would 
 cons d(r that if that should not be deemed a good authority at 
 law for the discharge, the sheriffs would have made themselves 
 Hable for the debt. They might retain, too, for a time, their for- 
 mer opinion, that privilege did not extend to arrest in execution 
 on a judgment had before the time of privilege. Accordingly, we
 
 parliament.u:y lvw of rRiriLEGE. C41 
 
 find that afterwards, in G Queen Eliz., a Dyer, when chief jiLstice, 
 said, " That if a man is condemned in debt or trespass, and Ls 
 elected a member of parliament, and then is taken in execution, 
 he cannot have the privilege of parliament ; and so it was held by 
 the sages of the law in the case of Fen-ers, in the time of Hen. 8, 
 " Et coment que h j^i'it^dege a ceo temps fuit a luy alloio, ceo full 
 vii nits just." Dyer h himself repoiis a case which occurred within 
 two or three years after Ferrer's case, in 3G and 37 Hen. 8, viddlcet : 
 
 Trewynnard's case, who c being a burgess of parhament, and 
 taken in execution, and in custody at the commencement of the 
 session on a judgment entered up during a very long prorogation, 
 was fi'eed, not by the mace or serjeant-at-arms, but by a writ of 
 supersedeas of privilege ; which WTit was a security to the sheriffs 
 against an action for an escape, whether the privilege were allow- 
 able or not. Such an action luas brought, but no judgment given. 
 There is also a pecidiarity in the writ in this (Trewynnard's) case, 
 that the claim of privilege is for the first time extended, in point 
 of dui'ation, beyond the time of members going to parliament, re- 
 siding there, or retiu'iiing home — to persons venientes seu venire 
 intendentes. 
 
 From Fei-rer's case to 1575, for above thu-ty yeai-s, the house 
 01 commons, instead of adopting the mode of delivery by the mace, 
 ordered writs of privilege to be issued in almost every instance. 
 It appears from Hogan's case, in 1601, that it was still later before 
 the house of lords exerted this privilege, and Hogan was a servant 
 of the queen ; as Ferrers, in whose case it was first adopted, has 
 been seen to have been of the king. In Smalley's case, however, 
 (the next that occurs,) the house proceeded with gi-eat dehberation, 
 and adopted the course, after a long debate and consultation ; 
 and it was not till long after, that the practice became established. 
 
 Sh' Thomas Shirley's d case, in 1G03, in which the warden of the 
 fleet, refusing to release the prisoner when demanded by the ser- 
 jeant-at-arms, was committed to the tower, and there persisting 
 in his obstinacy, to the duugcon of Utfle ease, (a dismal hole in the 
 tower,) seems at last to have rendered it apparent, that neither 
 the law of pai'liament, nor any statute, had siitisfactorily pointed 
 
 a Moore's Reports, 57. h Dyer, CI. 
 
 c Tryune's Fourth Register, 7S1. d Purl. Hist. Vol. 5, p. 113. 
 
 81
 
 642 PAELIAMENTAEY LAW OF PEIYILEGE. 
 
 out a mode by which the member in custody in execution, should 
 be dehvered; or had taken care to secure the goaler from an 
 action, or to ensure to the creditor his right to a new writ of exe- 
 cution. To effect the two latter objects it was always thought 
 necessary or prudent, to make a particular law ; though this 
 opinion is controverted by Elsynge, a who considers the arrest as 
 " merely void, and an act to deUver him that is arrested, or to save 
 the plaintiff"s execution, ex abundanti and needless." 
 
 In order to avoid all difficulty for the future, it was thought ex- 
 pedient to pass the general law, 1 Jac. 1, h " for new executions to 
 be issued against any which shall hereafter be dehvered out of 
 execution by privilege of parliament, and for discharge of them 
 out of whose custody such persons shall be delivered ;" with this 
 proviso, " Pro\dded always, that this act, or anything therein con- 
 tained, shall not extend to the diminishing of any punishment to 
 be hereafter by censure in parliament inflicted, upon any person 
 which shall hereafter make, or procure to be made, any such 
 arrest as aforesaid ;" which was then a direct parhamentary 
 recognition of the right in the two houses of parliament, not only 
 to hberate persons entitled to privilege, but to inflict punishment 
 by censure in parliament, in the particular case of arrests. 
 
 After the act of 1 Jac. 1, c. 13, some formal step and process at 
 law seems to have been at first always thought necessary to give 
 that act its full operation, no privileged person in custody in exe- 
 cution, having been for sometime, dehvered by any other method, 
 than by vhtue of a writ of privilege, or by a writ of habeas cooyus, 
 issued in obedience to a warrant under the speaker's hand, made 
 by order of the house, c But in 1625, the commons declared that 
 " the house hath power, when they see cause, to send the serjeant 
 immediately, to dehver a prisoner." 
 
 Colonel Pitt's case, reporied in Strange, d determines by what 
 means the courts of law, can discharge a privileged person from cus- 
 tody. The arrest of a member since the statute 10 Geo. 3, in civil 
 cases, is held in that case, to be void ab initio, and it is thenceforth 
 established, that he may be discharged immediately upon motion 
 
 a Manner of holding parliaments in England. 
 
 b 1 Jac. 1, c. 13. c 1 Hats. 165. 
 
 <1 2 Strange, 985.
 
 PAIILL\JIENTARY lAVf OF riilYlLLGE. GIL} 
 
 in the court from which the process issued. But this deteriiiiua- 
 tiou was, of course, couiiued to the methods of releashig a member, 
 which can bo pursued in Westminster Hall, There was then no 
 parliament in existence. 
 
 When parliament was sitting, before the last named statute, 
 the house of commons had not abandoned their claim to the 
 power of releasing their members arrested under civil process, 
 by their own oflicers and pi(q)rio vujore. In 1G77, Sir Eobert 
 Holt was discharged, though he had been taken in execu- 
 tion "out of the privilege of parliament." In 1707, Asgill.a a 
 member in execution, was discharged ; the serjeaut beiug sent with 
 the mace to the warden of the fleet. In many other cases during 
 the seventeenth century, peers and members aiTested in execution, 
 were released without writ of privilege or habeas corpus. And ui 
 cases of aiTest on mesne process, the practice prevailed of releasing 
 the piisoners by a warrant, or sending the black rod in the name 
 of the house to demand them. It is now settled that members 
 may be dischai'ged immediately by warrant ; and this does not 
 obtain, only where the prinlege existed anterior to the arrest ; but 
 is enforced where a person has been arrested on mesne process 
 and is in custody, — but is afterwards elected a member. So it is 
 now enforced where he has been in custodj' in execution before 
 his election. & 
 
 The parties effecting an an'est, were not lightly dealt with in 
 former times. In 1G21, Sir J. Whitelocke's man being arrested, 
 the parties were called to the bar and heard on theii* knees. They 
 acknowledged their fault and craved forgiveness of the house and of 
 Sir J. Whitelocke ; but it was ordered upon the question, " That 
 they shall both ride upon one horse bare-backed, from Westmin- 
 ster to the exchange, with papers on their breasts, with this inscrip- 
 tion, — 'For arresting a servant to a member of the commons 
 house of parliament.' " 
 
 To return to the subject of the freedom of a member's person, 
 
 '(from which, the consideration of the means and process employed 
 
 to deliver liim when in custody, has led to this digression) ; the law 
 
 is now, at all events, settlal upon a rational basis. A peer or mem- 
 
 a 15 Com. J. 471. 
 
 b Mill's case, 1807; Christie Burton's case, 1819.
 
 644 PARLIAMENTAKY LAW OF PEIYILEGE. 
 
 ber of parliament may be sued, but cannot be arrested or detained 
 in custody. His person shall not be subjected to any imprison- 
 ment upon process in civil suits ; but the pretended privilege of 
 lands and goods being taken away, (if it ever existed) ; a peer's or 
 member's property may be sequestered for non-performance of ar 
 order or a decree of a court of equity, — or levied upon under i 
 distringas issued by a court of law. a 
 
 By the 10 Geo. 3, " Any person may commence and prosecute 
 any action in any court of record, or court of equity, or of admi- 
 ralty, (or in causes matrimonial and testamentary, in any court 
 having cognizance of such cause,) against any peer or member of 
 the house of commons, or any of their menial or other servants, or 
 any other person entitled to privilege of parliament ; and no pro- 
 ceedings thereupon shall be delayed under color of such privilege. 
 But this shall not subject the person of any member of the house 
 of commons to be arrested or imprisoned, on any such suit or pro- 
 ceedings. And .to remedy the dilatoriness by process of distringas, 
 the court out of which the writ proceeds, may order the issues levied 
 from time to time, to be sold, and the money arising thereby, to 
 be apphed to pay such costs to the plaintiff, as the court shall 
 think just, and the surplus to be detained till the defendant 
 shall have appeared, or other pui-pose of the writ to be answered. 
 And obedience may be enforced to any rule of the court of king's 
 bench, common pleas, or exchequer, against any person entitled 
 to privilege, by distress infinite, if the person entitled to the benefit 
 of such rule, shall choose to proceed in that way." 
 
 The privilege of freedom from arrest in civil suits, extends to 
 protect members of either house from attachment for non-payment 
 of money, or for non-performance of an award, h So likewise 
 against imformations, and as well in the king's suit as a subject's. 
 
 But there is no such exemption in criminal cases and 1/reaxihes of 
 the peace. To 'proceedings on iliese, privilege of parliament is not 
 considered appilioaMe. The case of writing and publishing seditious 
 libels was, in 1763, resolved, by both houses not to be entitled to 
 pmdlege upon reasons which extended equally to every indictable 
 offence. The only privilege of parliament in such cases, of crimes 
 
 a 10 Geo. 3, c. 50. 
 
 5 WaUcer v. Earl Grosvenor. Catimer v, Sir E. Knatchbull, 7 T. K. 171-448.
 
 PARLIAMENTARY LAW OF TRIYILEGE. C15 
 
 and misdemcfinors, seems to be the right of receiving immediate 
 information of the imprisonment or detention of any member, 
 with the reason for which he is detained ; a practice that is daily 
 used upon the shghtest military accusations, preparatory to a trial 
 by court martial, and which is recognized by the several temporar}' 
 statutes for suspending the hahcm corpus act ; whereby it is pro 
 vided that no member of either house shall be detained, till the 
 matter of which he stands suspected, be first communicated to the 
 house of which he is a member, and the consent of the said house 
 obtained for his commitment or detaining. But yet the usage has 
 uuiformally been, a ever since the revolution, that the communica- 
 tion has been subsequent to the arrest. 
 
 Neither, in matters of this nature, are ^yeers or memhers j^rotccted 
 against the process of the courts, to punish disobedience to their orders. 
 To this effect is tJie foUoiving entry b ; " It is ordered and declared, 
 that no peer or lord of parliament hath privilege against being com- 
 pelled, by process of the courts of Westminster Hall, to pay obedience 
 to a tvrit of habeas corpus directed to him.'' Accordingly, an attach- 
 ment may be granted, if the peer re/ uses obedience to the icrif ; for 
 being a contempt, a peer has no privilege, c 
 
 In 1831, Mr. Long Wdlesley teas committed by Lord Brougham 
 for a contempt of the high court of chancery, and a committee of 
 privileges in the house of commons, held that Mr. Wellesleys claim to 
 be discharged from imjjrisonmenf, by reason of pyrivilege of parlia- 
 ment, ought not to be admitted. 
 
 In 1837, 3Ir. Lechmere Charlton icas committed by Lord Cotten- 
 hamfor contempt in meriting an improper letter to a master in chan- 
 cery. The house of commons inquired fully into the nature and 
 particidars of the contempt, and then declined to interfere for the 
 member s liberation by virtue of the privilege. 
 
 As, since the 10 Geo. 3, c. 50, a person having privilege of par- 
 liament may be sued without protection, d so may he, be made 
 banki-upt in the following manner. If any person within the de- 
 scription of the acts relating to banknipts, having protection of 
 parliament, does not within one calendar month after iiersonal 
 
 a 1 Black. Com. 167. h L. J. 7th Feb. 1757. 
 
 c R. vEarl Ferrers, 1 Burr. 
 
 d 4 Geo. 3, c. 33, s. 4. 45 Geo. 3, c. 24, s. 1. 6 Geo. 4, c. 16.
 
 646 PAELIAMENTAEY LAW OF rEIYILEGE. 
 
 service of a summons, (an affidavit of debt having been filed by 
 the creditor,) pay or secure, or compound for such debf, to the 
 creditor's satisfaction, or enter into a bond in such sum, and with 
 two such sufficient sureties, as any of the judges of the court out 
 of which the summons issued shall approve, or does not within 
 one calendar month next after personal service of such summons, 
 cause an appearance to be entered to such action or actions in the 
 proper court, every such trader is to be adjudged d a bankrupt 
 from the service of such summons. And by section 11, if any such 
 trader disobeys any decree pronounced in any cause depending in 
 any court of equity, or any order made in bankruptcy or lunacy 
 against any such trader for the payment of money, the same hav- 
 ing been duly served upon him, and a peremptory day fixed for 
 such payment, such trader is to be deemed a bankrupt from the 
 service of such order for peremptory payment. 
 
 If a bankrupt be a member of parliament, the commissioners 
 cannot commit hun for not attending, or not answering; he can 
 only be imprisoned in such cases as are made felony by the acts 
 relating to bankrupts. But a member of parliament, who is become 
 a bankrupt, vacates his seat, a unless the commission is superseded 
 within twelve months from its being issued, or the creditors are 
 paid their debts in full within the same period ; and is disqualified 
 for sitting in the interim.^ 
 
 It is a sufficient objection a to bail, that he hath privilege of 
 parhament, whereby the plaintiff may be delayed in obtaining 
 payment fiom him. 
 
 The extent, then, of the privilege last under consideration, may 
 now be regarded as sufficiently ascertained and fixed. It may be 
 generally laid down, that no member of either house can be arrested 
 and taken into custody, or detained in custody, unless for some 
 indictable ofi'ence. In a civil suit, a peer or member cannot be 
 arrested, or imprisoned, without a breach of the privileges of par- 
 liament, which either house, upon the report of the committee, w^ill 
 upon good reason punish by commitment. But how, it is material 
 to learn, is a party to be delivered out of custody when arrested 
 
 a 6 Geo. 4, c. IC, s. 11. h 52 Geo. 3, c. 1'14. 
 
 c 4 Taunt. 249. 
 
 Note 1. — Quaere. What might be the effect upon a New York legislature if 
 this is the common law of that state ?
 
 TARLIAJEENTART L.VW OF I'llRTLEGE. CIT 
 
 in a civil suit, supposing the parliament not to be sitting, or to bo 
 dissolved? In what manner can courts of justice take cognizance 
 of pri\'ilege of parliament ? For it has been seen, a that when a 
 letter was written by the speaker to the judges, to stay proceedings 
 against a pri\ileged person, they rejected it as contraij to their 
 oath of office. These objects were formally affected in two ways ; 
 1st, the discharge of such privileged b person might bo procuruil 
 by writ of privilege, in a nature of a supersedeas ; 2d, such arrest 
 being u'regular ah initio, c the party can be discharged upon mo- 
 tion ; d he may move the court from which the process issued, that 
 he may be discharged immediately. 
 
 Writs of privilege are now discontinued. When the house is 
 sitting, members are discharged directly by wan-ant. In 1810, 
 Mr. Christie Burton had been elected member for Bsverly, but 
 being in custody in execution and on mesne process, was unable 
 to attend his ser\dce in parUament. The house deteimined that 
 he was entitled to privilege, and ordered him to bo discharged 
 out of the custody of the warden of the fleet. An action was 
 brought against the warden by the assignees of the creditors of 
 Mr. Burton, on his escape. The assignees were declared guilty of 
 a breach of privilege, and ordered to attend the house. They ac- 
 knowledged their offence and the matter was droj^ped. 
 
 The extent of this privilege of parliament, and the mode of pro- 
 curing the liberation of parties improperly arrested — points which 
 were found so embarrassing in the greater part of the cases re- 
 ferred to — being thus established, the next question affecting this 
 privilege is its duration. In the case of peers, the privilege is 
 perpetual ; but as to members, — where the privilege is that of 
 parhament, — its duration, the reader will be surprised to learn, is 
 no where precisely e determined. It certainly is the received 
 opinion, that it extends to forty days after every prorogation, and 
 forty days before the next appointed meeting ; and, after a disso- 
 lution, to a reasonable time to return home.^ 
 
 Privilege of parliament cannot be waived, " because it is said, 
 the privilege is not so much that of the person/ as of the house." 
 
 rt Hodges V. Moore, a/i/e. 6 Latch. 150. Dyer 60. a cFort34'2. 
 
 d Pitt's case, 2 Stra. 985. e Strange, 985. /D'Ew. Jaurn. 4;?G. Scobell, 95. 
 
 Note 2. — In this particular, New York differs from England, in having a stat- 
 ute fixing the limit of priYilege.
 
 648 PAELIAMENTARI LAW OF PEIVILEGE. 
 
 The speaker charges a person brought to the bar for an offence, 
 witli breach of the privilege, " of the house." 
 
 The privileges enjoyed by individual members, and which are 
 essential to their regular attendance on parhament and to the 
 independent discharge of then' duties in the house, were, on that 
 account, brought prominently forward in the speaker's prayer ; but 
 it will now be proper to treat generally of the collective privileges 
 of the two houses, or rather of the high court of parliament. These 
 can be best, and indeed only, ascertained, by examining what 
 have been, on various occasions, declared breaches of the privile- 
 ges of either house. 
 
 Such are among others, indignities to the character, or obstruc- 
 tions to the proceedings of either house ; assaulting, obstructing, 
 insulting or menacing any member in his coming to or going from 
 the house ; so, the endeavor to compel members by force, to de- 
 clare themselves in favor of or against, any proposition. 
 
 Challenging a member for his conduct in the house or in a com- 
 mittee. Libellous reflections against the honor and dignity of the 
 house in general, or any member thereof. These, and similar 
 offences, have been voted breaches of privilege and punished 
 accordingly, whether committed by members or strangers, a 
 
 And first in the case of members : In 1675, Lord Shaftesbury, 
 who had been committed by the house of lords for high contempt 
 against the house, was brought before the court of queen's bench 
 by habeas corpus, and the commitment for a contempt generally, 
 being returned, the prisoner was remanded. In 1586, Arthur 
 HaU, a member of the House of Commons, was imprisoned, ex- 
 pelled and fined ; the latter a power not acknowledged, and 
 which the house has not since been in the habit of exercising, a 
 Hall's ofi'ence was having published a libel, " containing matter 
 of infamy, of sundry particular members and of the whole state 
 of the house, and also of the power and authority of the 
 house." In 1810, Sir Francis Burdett, was sent to the tower 
 for publishing " a libelous and scandalous paper reflecting 
 upon the just privileges of the house." In Hobhouse's case, in 
 the year 1819, the house of commons having voted the defendant 
 
 a See cases cited in the appendix to the second report on Sir F. Burdett, in 
 1810 ; and the head of " Complaints" in the several Journal Indexes.
 
 PARLIAMEKTAIIY L.VW OF rrtR'ILEGE. C49 
 
 guilty of a breach of their privileges, for pubU.shing a lilxl upon 
 the house, and having ordered him to bo committed to Newgate 
 during their pleasure, and the speaker's warrant being returned 
 into the court of King's bench upon a hnlms corpus sued out b}- 
 the defendant, the court refused to discharge him out of custody. 
 In the case of defendants, not members of either house, the fol- 
 lowing arc selected instances : In 1770, Flower was fined and 
 committed for a hbel on the bishop of LlandalF. In 1798, Messrs. 
 Lambert and Perry were fined X50 each, and committed to Newgate 
 for thi'ee months, for a newspaper paragi-aph, highly reflecting on 
 the honor of the house of lords, b On the 22d June, 1781, complaint 
 was made that Sir J. Wrottesley had received a challenge for his 
 conduct as a member of an election committee ; and Swift, the 
 person complained of, was committed to the custody of the ser- 
 jeant-at-a)-]ns. c 
 
 Besides insults and obstructions to the house and its proceed- 
 ings, disobedience to the rales and orders of either house is treated 
 as a breach of pri\'ilege. The house will punish those who refuse 
 compliance with their orders, or obstruct their execution. And 
 that, whether the orders be general; as thatd "no printer or pub- 
 lisher of any printed newspaper do presume to insert in any news- 
 paper, any debates or other proceedings of the house ;" or par- 
 ticular ; such as orders relating to " attendance before committees ;" 
 " the production of papers and records, &c." 
 
 Another offence against the collective privileges of the house, is 
 the corruption or hindrance of witnesses summoned to attend or 
 appear before it. e 
 
 Anciently no person was to be taken into the custody of the 
 serjeant-at-arms, upon any complaint of a breach of privilege, 
 until the matter of the complaint had been examined by the com- 
 mittee of privileges, and reported to the house./ Now, although 
 the committee of privileges is still formally appointed at the com- 
 mencement of each session, no members are nominated. If, there- 
 fore, any special circumstances arise out of a complaint of breach 
 
 a p. 137, ante. h Lords J. 506. 
 
 c Com. J. 535-537. d 20 Com. J. 99. 
 
 e See Synthetical Table of the proceedings of the house of commons, framed 
 Dv Lord Colchester, and prefixed to the Index of the Commons' Journal. 
 /Resolution, 1701. 
 
 82
 
 G50 PARLIAMENT AEY LAW OF miYILEGE. 
 
 of privilege, it is usual to appoint a select committee to inquii'e 
 into them. In ordinary cases tlie part j complained of is " ordered 
 to attend tlie house," and is examined at the bar. 
 
 Both houses proceed in the same manner to declare the party 
 guilty of a breach of privilege, amounting to a contempt of the 
 high court of parliament, for which they deal with him by censure 
 or commitment ; to which the lords can add a fine. 
 
 For there is a difference in the punishments inflicted by the 
 lords and commons. The house of lords claim to be a court of 
 record, because it is such unquestionably, when it acts in its judi- 
 cial capacity. It therefore not only imprisons, but also imposes 
 fines ; and formerly in cases of libel, (when disgracefully severe 
 punishments used to be awarded) ; often added the piUory. 
 
 The lords have also power to commit offenders to prison for a 
 specified time, beyond the duration of the session ; and to order 
 security for good behavior. 
 
 The house of commons, which is not a court of record, has tac- 
 itly abandoned the imposition of fines, but imposes the condition 
 of the payment of fees before an offender is discharged, which is 
 equally part of his punishment, and virtually amounts to a fine. 
 Ko period of imprisonment is named by the commons, and the 
 confinement terminates with the session. 
 
 In Floyd's case, who had spoken offensive words of the king's 
 daughter and the Elector Palatine, temp. Jac. I., the house of 
 commons set up an unfounded claim to criminal jurisdiction ; for 
 it was impossible to make such mere indecencies of language, 
 amount to a breach of pri\ilege. Acting as a court of judicature, 
 they pronounce sentence that Floyd, a gentleman by bu-th and 
 station, and a country magistrate, should pay a fine of XIOOO, 
 stand twice in the pillory, and ride backward on a horse with the 
 horse's tail in his hand, a They, however afterwards discovered 
 their error, and changed the course of proceeding h into an im- 
 peachment of Floyd before the lords ; with an ambiguous and 
 unmeaning protestation as to the rights and privileges of the con - 
 mons remaining in the same plight as before. The lords, it is saif"', 
 equally disgraced themselves in this case, e 
 
 a 1 Com. J. 609. 5 Tarl. Hist. h lb. 619. 
 
 c 3 Lords J. 131
 
 rAIlLI.YMENTARY L.\W OF rRTYILEGE. C51 
 
 Instead of "kiiccliug at the bar," to receive Lis sentence whicli 
 was formally required, but not always complied with ; the jud^'- 
 ment of the house is now received by a prisoner standing at the 
 bar. a 
 
 Having treated of the punishments inflicted by either house of 
 parliament, for obstnictions or contempts, or disobedience to orders, 
 it remains to speak of tlie protection afforded to their own officers, 
 to parties, witnesses and others. 
 
 The officers of either house, are supported by the house in the 
 execution of their orders. As the officers of the courts of justice, 
 charged with the execution of the process of the courts, may break 
 open doors, if necessary, in order to execute it ; so, Lord Ellen- 
 borough said, it cannot be contended that the houses of the legis- 
 lature, are less strongly armed in point of protection and remedy 
 against contempts toward them, than the courts of justice are. h 
 
 But by a recent case, the serjeant-at-arms, though he has a 
 right to enter the house of the person against whom a warrant 
 has been issued by the speaker and to search for the party, had 
 no right to remain in the house, if the defendant be from home, 
 in order to await his return ; for that is an excess of jurisdiction, r 
 Another action was subsequently brought by the same jDlaintiff 
 against the same defendant, and a messenger of his, for another 
 trespass in executing a warrant of the speaker. The warrant was so 
 cbawn as to make it legally doubtful, and three of the judges felt 
 themselves compelled to pronounce it illegal. AU the judges agi-eed 
 that they were bound to examine into its sufficiency ; one held that 
 it was sufficient. The house of commons in this case directed 
 a discussion of tliis point in a court of eiTor, but the point involved 
 is of secondary importance. 
 
 We have already said that we have not with us in America as 
 there is in England, one uniform common law of parliament and 
 of privilege applicable alike to the congress of the United States, 
 and to tlie several states of the Union ; but, that gi-eat diversitv 
 exists between the privileges of members of congress, and tliat of 
 the several states ; and that parhamcntary law and the law of leg- 
 islative privileges of the several states, differ from each other; 
 
 a 33 Com. J. 594. h 11 East, 1. 
 
 c Carringtou and M. 382. 11 Adol. & El. 209.
 
 652 PAELIAMENTAEY LAW OF PEIVILEGE. 
 
 that the law of privilege of the state of New York which is regu- 
 lated and limited by statute, is, in its features ; in its leLgth and 
 breadth ; in what it allows and what it prohibits ; in nearly every 
 particular, identical with the law of privilege of parliament of 
 England, which, like ours, is now regulated by statute, and in 
 almost identity of language. 
 
 In compiling this chapter from the Englisli common law, believed 
 to be in force here, there has been the endeavor, to present the 
 American readers, in this brief review, with as much of the legal 
 powers and privileges of parliament, as shall direct their minds 
 and the minds of members who shall compose our legislative as- 
 sembhes, to the authorities cited, and, to more elaborate sources 
 of knowledge of the science of parliamentary law. Few men 
 should be regarded as fit for legislators, who require to be in- 
 formed, that nearly all the privileges of civil liberty, of which 
 the American citizen now so proudly boasts, first had their 
 introduction, if not their origin, in the house of commons of 
 the British parliament. It is as equally untrae now in Eng- 
 land, as it is in the state of Kew York, that parliamentary 
 law is vague, unsettled, and uncertain. It is not true, that 
 either the law of the parliament of England, or that of either, or 
 both the houses of the legislature of the state of New York, is 
 just what those bodies see fit to declare it. It is a branch of the 
 common law, as easily traced and determined as any other, and if 
 we have succeeded in nothing else, we hope to have succeeded in 
 exciting such a spirit of inquiry into a knowledge and of the 
 science, of parliamentary law, as shall save experienced legislators 
 in future, from the assumption of a knowledge of and an attempt 
 to exercise powers inconsistent with established law and of con- 
 stitutional right ; aggressive upon the sacred rights of a co-equal, 
 and co-ordinate department of the government ; unbecoming to 
 the character of inteUigent legislators ; and e\dncing the want of 
 comity and respect due to an equal. 
 
 In this compilation of EugHsh parliamentary law, the authori- 
 ties, before the thirteenth year of Wm. Ill, have also been given. 
 We have done this to show what was the law before, as well as 
 since that day : so that by reference, to either period, it will be 
 seen how little knowledge of English parliamentary law is some-
 
 PAELLVMENTARY L.UV OF rRIVILEGE. G53 
 
 times found in legislative bodies, ^\c luive also oit«jd the chaugt-s 
 wrought in the common law by the statute of AVilham III as well 
 as that of 13 Geo. Ill, which entiiely abrogated the arbitrary and 
 unlimited powers claimed by Sir Edward Coke (when speaker of 
 the house of commons, in one of the parhaments in the reigai of 
 Queen Elizabeth,) who declared, " that the high coui-t of parlia- 
 ment subsists by its own laws and customs ; that it Ls the law and 
 custom of parliament, that all weighty matters therein conceniing 
 the peers of the realm or corumons, ought to be determined, ad- 
 judged and discussed according to the course of parliament, and 
 not by the civil law, nor yet by the common law used in the more 
 infeiior couiis." But the modern writers since the statutes above 
 referred to sucli as Dwanis, Cobbitt, in his Parliamentary Debates, 
 May's Treatise, Hatscll, and the jutlicial decisions cited, present 
 a uniform body of parliamentary law, which is now as well imder- 
 stood in England to be the settled law, as is any other branch of 
 the common law\ 
 
 The remaining privileges of parliament not herein discussed, 
 how'ever essential and useful, they might be, are too remote from 
 the subject of the present inquiry, and too wide and extensive in 
 their consequences, to bo comprehended in the present treatise.
 
 664 OF CONSTITUTIONAL INTEEPEETATION. 
 
 CHAPTER XIX. 
 
 OF CONSTITUTIONAL INTERPKETATION. 
 
 In some of the preceding chapters, the rules of interpretation 
 of statutes compiled fi-om the distinguished authors whose names 
 and works are therein given, have extended their rules in some 
 respects, beyond the mere interpretation and construction of stat- 
 utes ; they include in pai-t, the construction of what are called 
 constitutions, but not in the American sense, that of written con- 
 stitutions established by the people themselves. "While treating 
 of the subject of interpretation, therefore, in a work which treats 
 of constitutional powers, we should fail in duty, should we omit to 
 present an outline of the best American views of construction of 
 American constitutions, so necessarily connected with the con- 
 struction of statutes , which depend for their force upon, and are 
 enacted in subordination to, constitutional power. 
 
 There is a striking analogy, and generally, an entire harmony 
 between the rules of interpretation of constitutions, and those of 
 statutes ; but inasmuch as the former are superior in power and 
 authority to the latter, and as in cases of conflict here, the latter 
 must give way, and yield to the former, (by rules of construction 
 pecuhar to our system, for which, other governments furnish no 
 precedent), and that construction must necessarily be adopted, 
 which is more especially apphcable to our somewhat complex 
 theory of laws, enacted in subordination to the written, but limited 
 constitutions. 
 
 First, of the constitution of the United States. It is the consti- 
 tution of a government ordained and established by the people 
 of the United States for themselves and their posterity ; and they 
 have declared it to be the supreme law of the land ;a but it is still 
 a limited government. The people who made it, have defbied its 
 powers. They have limited it to the exercise of certam powers, and 
 have reserved all other powers to the states or to the people, h "It 
 is a popular government. Those who administer it, are responsible 
 
 a Constitution U. S., Art. G. h Story on Constitution, § 397.
 
 OF CONSTITUTIONAL INTEP.rRETATION. G55 
 
 to tlic pcoplo. It is as popular, and just as much emauating from 
 tlio pcoplo, as the stato govornmeuts. It is created for ouc pur- 
 pose ; the state governments for another. In short, it was made 
 by the people, made for the people, and is responsible to the 
 people." a 
 
 Mr. Justice Story says, that much of the difficulty of intei-preta- 
 tiou of this instrument, has arisen from the want of miiform rules ; 
 and he then proceeds in the endeavor to ascertain, and lay down 
 true rules of intei-pretation applicable to this constitution, so that 
 we may have some fixed standard by which to measure its powers, 
 limit its prohibitions, guard its obhgations, and enforce its securi- 
 ties of our rights and liberties, b 
 
 He says " that the fii'st and fundamental rule in relation to the 
 interpretation of all instruments, applies to the constitution ; that 
 is, to construe them according to the sense of the terms, and the 
 intention of the parties ; and he adopts Blackstone's remark, that 
 the intention of a law is to be gathered from the words, — the con- 
 text, the subject matter, the effects and consequences, or the rea- 
 son and spirit of the law, c and that words are generally to be un- 
 derstood in their usual and most known signification, not so much 
 regarding the propriety of the grammar, as their general and pop- 
 ular use ; that if words happen to be dubious, their meaning may 
 be estabHshed by the context, or by comparing them with other 
 words and sentences in the same instrument ; that illustrations 
 may be fvu'ther derived from the subject matter, %\ith reference to 
 which the expressions are used ; that the effect and consequence 
 of a particular construction is to be examined, because if a literal 
 meaning would involve a manifest absurdity, it ought not to be 
 adopted ; and that, the reason and sphit of the law, or the causes 
 which led to its enactment, are often the best exponents of the 
 M'ords, and hmit their application." d 
 
 " Where the words are plain and clear, and the sense distinct 
 and perfect arising on them, there is generally no necessity to 
 have recourse to other means of intei-pretation. It is only where 
 there is some ambiguity or doubt arising fi'om other soiu'ces, that 
 interpretation has its proper office. There may be obscuiity as 
 
 a Webster's Speeches, 410 to 419. c 1 Com. 59. 
 
 b Stor}' on Constitution, § 399. d See Vattels Eules, Ch. 5.
 
 65G OF CONSTITUTION.VL INTEKrEETATION. 
 
 to the meauiug, from the doubtful character of the words used, 
 — from other clauses in the same instrument or from an incon- 
 gi-uity or repugnancy between the words, and the apparent inten- 
 tion derived fi'om the whole structure of the instrument or its 
 avowed object. In such cases, interpretation becomes indispen- 
 sible." a 
 
 This learned commentator adopted the rules of interpretation 
 laid down by Eutherford, which will be found in a preceding 
 chapter, b as apphcable to constitutional intei'pretation. We do 
 not therefore propose to repeat them here. These, which he calls 
 elementary explanations, he says, will aid in making a closer 
 practical apphcation when we arrive at more dejQnite rules. 
 
 In construing the constitution of the United States, it must be 
 remembered, that it is the fundamental law of the land ; — that it 
 was ordained and estabhshed by the people of the nation for the 
 purpose of instituting a national government to be invested with 
 supreme authority to provide for then common defence ; — to pro- 
 mote their general welfare, and to secure to themselves and their 
 posterity the blessings of civil liberty. 
 
 We are also to consider first, what is its nature, its objects, scope 
 and design, as apparent fi'om the structure of the instrument itself 
 viewed as a whole, and also as viewed in its component parts. 
 
 Where its words are plain, clear and determinate, they require 
 no interpretation, as a general rale. If in such case interpretation is 
 ever admitted, it is only in some case of actual necessity to escape 
 an absurd consequence, or to guard against some fatal evil, c 
 
 "VMiere words admit of two senses, each of which is conformable 
 to common usage, that sense is to be adopted, which, without de- 
 parting from the literal import of the words, best harmonizes with 
 the nature and objects, the scope and design of the instrument. 
 Where the words are imambiguous, but the provisions may cover 
 more or less ground according to the intention, which is yet sub- 
 ject to conjecture ; or, where it may include in its general terms 
 more or less than might seem dictated by the general design, as 
 that may be gathered from other parts of the instrument, there is 
 much more room for controversy. 
 
 a Story on Constitution, § 401. c Story on Constitution, § 404, 
 
 I Chapter 5.
 
 OF CONSTITUTIONAL INTERTRETATION. 657 
 
 It is regarded us appropriate for the courts, and, as a matter 
 entitled to their most careful consideration, in giving construction 
 to the constitution; to look back at the situation of the coxmtry at 
 the time, and antecedent to the time of its adoption ; to look at its 
 ihen existing institutions, at the existence and operations of the 
 then state governments, at the powers and worldngs of the old 
 confederation, and at all other circumstances which had a tendency 
 to produce or obstruct its formation and ratification ; a and it is 
 also held, that contemporary history and contemporary interpre- 
 tation may be called in to aid m arri\'ing at just conclusions, b 
 
 " The safest rule of interpretation, will be found to be, to look 
 into the nature and object of the particidar powers, duties and 
 lights, with all the hghts and aids of contemporary histor}', and to 
 give to the words of each, just such operation and force consistent 
 with their legitimate meaning, as may fairly secure, and attain the 
 ends proposed, c It will indeed, probably be found, when we look 
 into the chai'acter of the constitution itself, the objects which it 
 seeks to obtain, the powers which it confers, the duties which it 
 rnjoins, and the rights which it secures, as well as the known his- 
 torical fact that many of its provisions were matters of compro- 
 mise of opposing interests and opinions, that no uniform rule of 
 interpretation can be applied to it which may not allow, if it does 
 not positively demand, man}- modifications in its actual application 
 to particular clauses." 
 
 While these aids of contemporary liistory and construction 
 may l:>e resorted to to illustrate and confirm the text, to explain a 
 doubtful phrase, or to expound an obscure clause, they must be 
 resorted to with great reserve and much qualification. They can- 
 not abrogate the text ; they can never fritter away the obvious 
 sense ; they can never narrow down its true limitations ; they can 
 never enlarge its natural boundaries, d The private interpretation 
 of any particular man, must manifestly be open to much objection. 
 The constitution was adopted by the whole people ; the whole of 
 \rhich, was submitted as it stood in the text to the whole people 
 ^\■\\o are to be presumed to have adopted it upon a just examina- 
 
 a Storj', § 405. h Stuart v. Laird, 2 Cranch. 309. 
 
 c Bigg V. Commonwealth of Peun. IG Pet. E. GIO; Cohens v. Virginia, 6 ■\^^Ioal. 
 418, per Marshall, Ch. J. d Story on Constitution, §§ 406-407. 
 
 83
 
 Go8 OF CONSTITUTION^ INTEEPEETATION. 
 
 tion of its XDrovisions. Doubtless, in different states, different ob- 
 jections werq raised, and different opinions may have prevailed as 
 a reason for its adoption ; and there is no certainty that different 
 states, or conventions, gave the same uniform interpretation to its 
 language ; or that the same reasoning prevailed with a majority 
 of any one state who supported and adopted it. Therefore the 
 difficulty, not to 'say dangers, of attempting to resort to opinions 
 of those who either assisted in forming or adopting it. Some may 
 have impHed lii2::.itations and objects, which others would have 
 rejected, and fh3 latter may have favored its ratification by im- 
 plying entireV , limitations and powers, fi'om the same language of 
 the text. 
 
 Some mjy have taken a cursory view of its enactments, and 
 others liar? studied them with profound attention; some may have 
 been go^/cmed by a temporary interest or excitement, and have 
 acted liV^^n that exposition which most favored their present views ; 
 otherj may have seen lurking beneath its text, what commended it 
 to Qeir judgment against even present interests. Some may have 
 xterpreted its language strictly and closely, others from a differ- 
 mt habit of thinking, have given to it a large and Hberal meaning, 
 [t is not to be presumed, that even the convention that framed 
 it, that every sentence and expression was always understood in 
 precisely the same sense. Every member necessarily judged for 
 himself, and the judgment of no one could, or ought to be conclu- 
 sive upon that of others. Nothing but the text itself was adopted 
 by the people, a 
 
 The first general rule of interpretation laid down by Story, to 
 be drawn from the nature of the instrument, is, " It is to be con- 
 strued as a, frame, or fundamental lata of government, established 
 by the peojjJe of the United States, according to their own free 
 pleasure and sovereign will. In this respect it is in no wise dis- 
 tinguishable from the constitutions of the state governments. 
 
 Each of these are established by the people for their own pur- 
 poses, and each is founded on their supreme authority. The 
 powers which are conferred, the restrictions which are imposed, the 
 authorities which are exercised, the organization and distribution 
 thereof which are provided, are, in each case for the same object, 
 
 a Story on Const., § 40G.
 
 OF CONSTITUTION.VL INTERrRETATION. ijj'J 
 
 tlie common benefit of tlic governed, and not for the profit or dig- 
 nity of the rulers." a 
 
 When it is said, that the constitution of the United States 
 shouhl be construed stridl/j, viewed as a social compact -whenever 
 it touches the rights of property, or of personal security, or libei-ty ; 
 tae rule is equally applicable to the state constitutions in like 
 cases. The principle upon which this inteii:)retation rests, if it has 
 any foundation, must be, that the people ought not to be presumed 
 to yield up their rights of property or liberty beyond what is the 
 clear sense of the language and the objects of the constitution. 
 
 All governments are founded upon a suiTcnder of some natural 
 rights; and they impose some restrictions. Therefore — in con- 
 stniing a constitution of government, framed by the people for their 
 own benefit and protection, for the preservation of their rights, 
 and property, and Hberty, where the delegated powers are not, 
 and cannot be used for the benefit of their rulers who are but 
 their temporary servants and agents, but are intended solely for the 
 benefit of the people, no presumption arises of an intention to use 
 the words of the constitution in the most restricted sense. The 
 strict, or most extended sense, being equally within the letter, may be 
 fairly held to be within their intention, as either shall best promote 
 the very objects of the people in the gi"ant, and as either shall 
 best promote or secure their rights, property or liberty, b 
 
 " The words, are not, indeed, to be stretched beyond their fair 
 sense ; but within that range, the rule of interpretation must be 
 taken which best follows out the apparent intention." c This is 
 the mode (it is believed), universally adopted in construeing the 
 state constitutions. It has its origui in common sense. And it 
 can never be an object of just jealousy, because the rulers can 
 have no permanent interest in a free government distinct from 
 that of the people, of whom they are a part, and to whom they 
 are responsible. 
 
 This view, is m no danger of producing a conflict between the 
 f jderal and the state governments, for if the powers of the general 
 government are of paramount and supreme obligation ; if they con- 
 stitute the supreme law of the land ; no conflict as to obedience 
 
 a Story, § 409. c Eawle on Constitution, Ch. 7, p. 31. 
 
 h Story on Constitution, § 413.
 
 OGO OF CONSTITUTIONAL INTEEPRETATION. 
 
 can be found. Whenever the question arises, as to whom obedi- 
 ence is due, it is to be judicially settled ; and being settled, it regu- 
 lates at once, the rights and duties of all the citizens. 
 
 Thus ado^Dting a uniform rule of interpretation for national and 
 state constitutions, neither is to be construed alone, or without 
 reference to the other. Each belongs to the same system of 
 gOTernment ; each is limited in its power ; and within the scope 
 of its powers, each is supreme. Each by the theory of our gov- 
 ernment is essential to the existence and due preservation of the 
 powers and obligations of the other. The destruction of either 
 would be equally calamitous, since it would involve the ruin of 
 that beautiful fabric of balanced government which has been 
 reared with so much care and wisdom, and in which the people 
 have reposed their confidence, as the truest safeguard of their 
 civil, religious and political liberties, a 
 
 In McCulloch V. Maryland, h Chief Justice Marshall said, " The 
 government of the Union is emphatically a government of the 
 people. In form and substance it emanates from them. Its powers 
 are granted by them, and are to be exercised directly on them 
 and for their benefit." " But the question respecting the extent of 
 the powers, actually granted, is perpetually arising, and probably 
 wiU continue to arise as long as our system shall exist." " In 
 discussing these questions, the conflicting powers of the general 
 and state governments must be brought into view, and the suprem- 
 acy of their respective laws, when they are in opposition, must be 
 settled." " If any one j)roposition could command the universal 
 assent of mankind, we might expect it would be this — that the 
 government of the Union, though limited in its powers, is supreme 
 within its sphere of action. This would seem to result from its 
 nature. It is the government of all ; its powers are delegated by 
 all ; it represents all ; and acts for all." 
 
 Judge Story, in Martin v. Hunter's Lessee, c says, " the consti- 
 tution of the United States was ordained and established, not by 
 the states in their sovereign capacities, but emphatically as its 
 preamble declares, by the people of the United States. There 
 can be no doubt that it was competent for the people to invest 
 
 a Story on Constitution, § 416, Federalist, No. 37. 
 
 6 4 Wheat. 404-5. c 1 Wheat. 324.
 
 OF CONSnrUTION'AL INTERrRETATION. 661 
 
 the general government Avith all tbe powers which they might 
 deem proper and necessary; to extend or restrain these powers 
 according to their own good pleasure, and to give them a para- 
 mount and supreme authority. As httle doubt can there be, that 
 the people had the right to prohibit to the states the exercise of 
 any powers which were in then: judgment incompatible with the 
 objects of the general compact ; to make the power of the state 
 governments, in given cases, subordinate to those of the nation, 
 or to reserve to themselves those sovereign authorities which they 
 might not choose to delegate to eitlicr. The constitution was not 
 therefore necessarily carved out of the existing'state sovereignties, 
 nor a suiTenderof powers already existing in the state institutions, 
 for the powers of the states depend upon their own constitutions ; 
 and the people of every state had the right to modify and restrain 
 them accordmg to their own views of pohcy or prmciple. On the 
 other hand it is perfectly clear, that the sovereign powers vested in 
 the state governments, by their respective constitutions, remained 
 unaltered and unimpaired, except so far as they were granted to 
 the government of the United States." 
 
 The government of the United States then, it is seen, is hmited 
 in its powers. It can exercise no power not confeiTcd by the con- 
 stitution, either in express terms, or by necessary impHcation. 
 Like every other grant, this instrument is to have reasonable con- 
 straction according to the import of its terms, and words are to 
 be taken in their natural sense, not um-easonably restricted or 
 enlarged. 
 
 The severest stniggles, and most earnest controversies that have 
 aiisen, and which the courts have been called upon to settle, are 
 such as have arisen between the advocates of the different theories 
 of construction ; between the two extremes ; the advocates of a 
 narrow and strict constmetion, and those of a more enlar<Tcd and 
 liberal one. Each extreme perhaps equally dangerous and im- 
 practicable. Such as contend for the narrowest constmetion, that 
 of confining the government to such powers as the express letter 
 of its language imports, would cripple its powers and render it 
 unequal to the objects for which it was instituted ; the other ex- 
 treme would by construction, so enlarge and extend the meaning 
 of words beyond their natiu-al and obAious import, as to destroy
 
 662 OF COXSTITUTIOXAL INTEKPEETATION. 
 
 the force of the instrument, and destroy it as a protective charter 
 for individual rights, individual security, and personal liberty. 
 
 Chief Justice Marshall doubtless laid down the true rule, when 
 he said, a "this instrument contains an enumeration of powers ex- 
 pressly granted by the people to their government." " We know 
 of no rule for construing the extent of such powers other than 'is 
 given by the language of the instniment which confers them, taken 
 iu connection with the pui-poses for which they were conferreil." 
 In another case he said, & "the intention of the instrument must 
 prevail ; this intention must be collected from its w^ords ; and its 
 words are to be understood in that sense in. which they are gen- 
 erally used by those for whom the instrument was intended ; its 
 provisions are neither to be restricted into insignificance, nor ex- 
 tended to objects not comprehended in them, nor contemplated 
 by its framers." 
 
 By reasonable interpretation, is meant, by way of illustration, that 
 in a case where words are, by reason of the imperfection of human 
 language, susceptible of two different senses, the one strict, the 
 other more enlarged ; that should be adopted which is most con- 
 sonant with the apparent objects of the constitution ; that which 
 win give it efficacy, and force as a government, rather than that 
 which will impair its operations and render it useless ; so as on 
 the one hand to avoid obvious mischief, and on the other hand to 
 promote the pubHc welfare. This for the reason, that this con- 
 stitution, which was founded by the people for themselves and 
 their posterity, and for objects of the most momentous nature ; 
 for the perpetual Union ; for the establishment of justice ; for the 
 general welfare ; and for the perpetuation of the blessings of 
 liberty ; requires that every interpretation of its powers should have 
 a constant reference to these objects, c 
 
 That such were its objects appears from the language of the in- 
 strument itself ; and we have the extrinsic evidence in the history 
 and spirit of its adoption, which appears from the address of its 
 framers to the people on submittiug it for their approval. They 
 said, " In aU our deliberations, we kept steadily in view that which 
 appears to us the greatest interest of every true American — the 
 
 a Gibbons v. Ogden, 9 "Wheat. 1. 6 Ogdeu v. Saunders, 12 Wheat, 332. 
 
 c Story on Const., §422. 
 78
 
 OF CONSTITUTIONAL INTERPRETATION. C63 
 
 consolidation of our Union ; in which is involved our prosperity 
 feUcitj, safety, perhaps, our national existence. The constituticju 
 which we now present, is the result of a spirit of amity, iind of 
 that mutual deference and concession which the pecuharity of our 
 political situation renders indispensable." In this spirit it was 
 adopted by the people. 
 
 It will be seen, as was remarked by Justice Story, a " that tho 
 constitution unavoidably deals in general language. It did not 
 suit the purposes of the people, in framing this great charter of 
 our liberties, to provide for minute specifications of its powers, or 
 to declare the means by which those powers should be can-ied into 
 execution. It was foreseen that this would be a perilous and diffi- 
 cult, if not impracticable task. The iustiiiment was not intended 
 merely for the exigencies of a few years, but was to endure through 
 a long lapse of ages, the events of which were locked up in the 
 inscrutable pui-poses of Providence. It could not be foreseen what 
 new changes and modifications of power might be indispensable to 
 effectuate the general objects of the charter, and restrictions and 
 specifications which. at the present might seem salutary, might in 
 the end prove the overthrow of the system itself. Hence its 
 powers are expressed in general terms, leaving to the legislature 
 from time to time to adopt its own means to effectuate legitimate 
 objects, and to mould and model the exercise of its powers, as its 
 own wisdom and the public interests should requii-e." 
 
 Tho wisdom of the fi-amers of this constitution and this early 
 exposition of its true spirit and meaning, was demonstrated in the 
 necessities of the government in the time of the recent rebellion, 
 in the enactment by congi-ess, on the 25th of Febniary, 18G2, of 
 an act entitled, " An act to authorize the issue of United States 
 notes, and for the redemption or funding thereof, and for funding 
 the floating debt of the United States." This act authorized the 
 secretary of the treasiuy to issue on tlie credit of the United States 
 one hundi-ed and fifty millions of the United States notes, and de- 
 clared that the same should be re'ceivable in pajTnent of all taxes, 
 internal duties, excises, debts and demands against tho United 
 States of every kind whatsoever, except for interest upon bonds 
 and notes wliich shall be paid in coin, and shall also be lawful 
 a Martin v. Hunter, 1 Wheat. 30-t.
 
 QG4: OF CONSTITUTIONAL INTERPEETATION. 
 
 money, and a legal tender in payment of all debts, public and pri- 
 vate, within the United States, except duties on imports and in- 
 terest, as aforesaid." 
 
 There is in the constitution no express grant of power to enact 
 such a law. The two theories of construction, to which we have 
 referred, were never brought to bear upon this great charter, with 
 greater force of learning and power of argument at the bar or upon 
 the bench, than upon the constitutional power of the national 
 legislature to ena^t this statute. There was a crisis in the affairs 
 of the national government. The very existence of the nation, it 
 was believed, by those who claimed the existence of the power, 
 depended upon this question of constitutional construction ; and 
 it may be, the fearful hazard of a different interpretation, may un- 
 wilhngly have influenced, if it did not determine its decision, on 
 the gi'ound that such an interpretation was not only authorized by 
 the implied powers contained in the instrument itself, but that an 
 emergency had arisen which demanded the exercise of the power 
 as indispensable to effectuate the great objects of the creation of 
 the government itself. ^' 
 
 It is not within the scope of this work, and it is not therefore 
 intended to argue as to the right of this question, or the effect of 
 this statute, upon prospective or retrospective demands, but to 
 present it, as one of the gi'eat national questions of this govern- 
 ment, which depended entu-ely upon the interpretation of consti- 
 tutional power. But it may be asserted here, that whenever the 
 power has been judicially established, as an existing power, it is 
 equally potent, if it exists by implication, as if gi\anted in express 
 terms. 
 
 Mr. Justice Story was of opinion, that every form of government 
 unavoidably includes a grant of some discretionary powers, and that 
 it would be wholly imbecile without thom ; that if they could be 
 foreseen it would be impossible ab ante to provide for them. He 
 says, " the means must be subject to perpetual modification and 
 change ; they must be adapted to the existing manners, habits, 
 and institutions of society which are never stationary ; to the pres- 
 sure of dangers or necessities; to the ends in view; to general 
 
 * Since the preparation of this chapter it has been judicially settled by the 
 highest federal court that the power to pass such an act existed under the implied 
 powers of the constitution.
 
 OF CONSTITUTIONAL INTEEPRETATION. 665 
 
 and permanent operations, as well as to fugitive and extraordinary 
 emergencies." " In short, (he says) if the whole society is not 
 to be revolutionized at every critical period, and remodeled in 
 eveiy generation, there must be left to those who administer the 
 government; a very large mass of discretionaiy powers, capable of 
 greater or less actual expansion, according to chcumstances, and 
 sufficiently flexible, not to involve the nation in utter destruction 
 from the rigid limitations imposed upon it by an improvident 
 jealousy." a 
 
 With great diffidence, and with all our veneration for this most 
 learned and profound commentator, we protest that we are unable 
 to see how this doctrine can be appUed to a limited constitutional 
 government, of dilierent co-equal departments, in which, the peo- 
 ple have constructed the charter containing positive restrictions 
 applicable as well to the executive department of the gsvemment, 
 as to each and every other department. If the learned commen- 
 tator means, that laws will be required to be enacted from time to 
 time to meet the suggested emergencies, and to be remoddled in 
 each generation to conform them to the habits and manners and 
 institutions of society, to the advance and progress of the age ; to 
 the march of intelligence ; and the development of the arts and 
 sciences, we concur. But he is writing upon constitutional inter- 
 pretation. Who then is the government, under our American sys- 
 tem, that should be entrusted with this flexible and discretionary 
 poicer to do all these things ? It seems to assume that there must 
 exist a power to control, against the restrictions of the constitution, 
 in certain emergencies, by those who administer the government. 
 But we are taught by the constitution itself that those who ad- 
 minister this government are divided into three co-ordinate de- 
 partments ; each of these can only act within his own limited 
 sphere, and they respectively, are the servants of the sovereign 
 power, the people. There is no power above the people. There 
 is no discretionary power, granted in the constitution, for either of 
 these departments, nor for all of them united, to exercise a discre- 
 tionary expansion and flexible power against its rigid limitations, 
 even though such limitations were imposed by improvident jeal- 
 ousy. If abuse exist by reason of defects in the constitution, 
 
 a Story on Const,, § 425. 
 84
 
 666 OF CONSTITUTIONiVL KTEEPRETATION. 
 
 present or prospective, tlie true source of autliority, the people, 
 have the power, and doubtless, the wisdom and patriotism to 
 correct them ; and this, in the American idea, is the safe and only 
 depository. 
 
 In a chaj)ter on constitutional interpretation, we have deemed 
 it a duty to call attention to this view, of this distinguished author 
 in this particular, in order to protest not only against the error, 
 but also agamst what seems to be the better and sounder views of 
 the same author, which are found contained in another part of the 
 same work, to which we have largely given credit. 
 
 The other extreme of these theories, that of too enlarged a con- 
 struction of constitutional power ; of going beyond the fair scope 
 of its terms, or necessary implications, is equally mischievous and 
 dangerous. Restrictions may be regarded as inconvenient, and 
 as interfering with favorite policies, but in. this respect also, the 
 remedy lies in the power of amendment, rather than by a hazard- 
 ous extention of power by construction, which would be in effect, 
 the making of a constitution, the people have not made. Such 
 an act of construction by a court, would be a usurpation of funct- 
 ions, not committed to them. " The sound principle is to declare, 
 italex scripta est ; to follow and to obey." a "It should be, so 
 far at least as human infirmity will allow, not dependent upon the 
 prejudices and excitements growing out of particular policies, nor 
 upon the passions of parties of particular times, but the same 
 yesterday, to day and forever." b 
 
 Another division of advocates is found upon constitutional con- 
 struction, viz., such as claim to adhere to the strict letter, and 
 such as claim that its spirit is to be regarded, as sometimes dif- 
 fering from its letter. But this, really, resolves itseH into the same 
 question, as that of strict and liberal interpretation. It is true, 
 the spirit, is to be respected and taken as the sound construction, 
 but the spirit is to be collected chiefly from the letter. No con- 
 struction of a given power is to be allowed which plainly defeats 
 or impairs its avowed objects. If words are found which are 
 fauiy susceptible of two interpretations according to their com- 
 mon sense and use, the one of which would defeat the objects for 
 which the constitution was obviously made, and the other would 
 
 a Story on Constitution, § 426. b Ibid.
 
 OF CONSTITUTIONAL INTERPRETATION. CC7 
 
 preserve and promote those objects, tlio latter would be held to 
 be the true interpretatiou. Such a rule is the plainest dictate of 
 common sense, as well as an established rule of construction, a 
 
 In the interpretation of what are called the implied powers of 
 the constitution, all the ordinary and appropriate means to exe- 
 cute it, are deemed a part of the power itself. " This results from 
 the very nature and design of a constitution. In giving the power, 
 it does not intend to limit it to any one mode of exercising it, ex- 
 clusive of all others. It must be obvious that the means of carry- 
 ing into effect the objects of a power, may, nay, must be varied, 
 in order to adapt themselves to the exigencies of the nation at 
 different times." 6 
 
 It was this view of interpretation of the implied powers of the 
 constitution, that was adopted by the Court of Appeals of this 
 state c in giving construction to the act of congress of February 
 25th 1862, called the legal tender act. 
 
 Cliief Justice Marshall, whose views of constitutional inteqjre- 
 tation are seldom doubted as to their soundness, has said, d " it 
 may with great reason be contended that a government entrusted 
 with such ample powers, on the due execution of which, the hap- 
 piness and prosperity of the nation so ^^ta^y depends ; must be 
 entrusted with ample means for their execution. The power 
 being given, it is the interest of the nation to facilitate its execu- 
 tion. It can never be their interest, and cannot be presumed to 
 have been their intention, to clog and embarrass its execution by 
 withholding the most appropriate means." " But the constitution 
 itself does not profess to enumerate the means by which the powers 
 it confers may be executed." " The government which has the 
 right to do an act, and has imposed on it the duty of performing 
 that act, must, according to the dictates of reason, be allowed to 
 select the means." " But the constitution has not left the right 
 of congress to employ the necessary means for the execution of 
 the powers confeiTed on the government, to general reasoning." 
 To its enumerated powers is added that of making, " all laws 
 which shall be necessary and proper for caiT}'ing into execution 
 
 o Vattel, B. 2, Cli. 17, §§ 279-302. b Story on Const., 430. 
 
 c Metropolitan Bank v. Vandyck, 27 N. Y. R. 400. 
 d McCuUocli V. Maryland, 4 "Wheat. 408-415.
 
 668 OF CONSTITUTIONAL INTEIirRETATION. 
 
 the foregoing powers, and all otlier powers vested by tliis consti- 
 tution iu the government of the United States or in any depart- 
 ment thereof." 
 
 " The subject, (which he was then considering) is the execution 
 of those great powers on which the welfare of a nation especially 
 depends. It must have been the intention of those who gave these 
 powers, to insure, as far as human prudence could insure, their 
 beneficial execution. This could not be done by confiding the 
 choice of means to such narrow limits as not to leave it in the 
 power of congress to adopt any which might be appropriate, and 
 which were conducive to the end. This provision is made in a 
 constitution intended to endure for ages to come, and, consequently 
 to be adopted to the crisis of human affairs. To have prescribed 
 the means by which the government should, in aU future times, 
 execute its powers, would have been to change, entirely, the 
 character of the instrument, and give it the properties of a legal 
 code. It would have been an unwise attempt to provide by im- 
 mutable rules, for exigencies which, if foreseen at all, must have 
 been seen dimly ; and which can best be provided for as they 
 occur. To have declared that the best means shall not be used, 
 but those alone without which the power given would be nugatory, 
 would have been to deprive the legislature of the capacity to avail 
 itself of experience, to exercise its reason — and to accommodate its 
 legislation to circumstances. If we apply this principle of con- 
 struction to any of the powers of the government we shaU find it 
 so pernicious in its operation, that we shall be compelled to 
 discard it." 
 
 Should there be any error committed by congress, in the enact- 
 ment of laws that overstep the boundaries of power, there remains 
 the judiciary whose province it is to declare it, and to afford the 
 proper relief; and behind this remains the last resort of the cor- 
 recting power, the people, who may redress all such excesses by 
 the legitimate methods of exercising their authority. 
 
 Another question which affects the interpretation of certain 
 portions of the federal constitution is, its connection, and possible 
 conflict of powers with the several state constitutions, which in 
 certain respects, and over certain subjects, possess exclusive juris- 
 diction, and over certain other subjects, possess concurrent juris-
 
 OF CONSTITUTION.VL INTER PIIETATION. CG9 
 
 diction, with tbo govommcnt of tLc Uuited States, This involves 
 some of tho most dchcato questions which gi'ow out of our pecu- 
 Har system of government. AVe do not here propose to review or dis- 
 cuss the almost endless cases that have been disposed of, in wliich 
 these questions have been raised, nor has such a period of time 
 elapsed, as to incline us to suppose that we approach as yet, tho 
 end of these controversies. A few general principles, may appro- 
 priately be rcfeiTed to. 
 
 Justice Story in an opinion a given in the federal court has said, 
 " The sovereignty of a state in the exercise of its legislation, is not 
 to be impaired unless it be clear that it has transcended its legiti- 
 mate authority, nor ought any power to be sought, much less to 
 be adjudged, in favor of the United States, imless it be clearly 
 within the reach of its constitutional charter." The constitution, 
 of the United States containing a gi-ant of powers, in many in- 
 stances similar to those abeady existing in the state governments, 
 and some of these being of vital importance also to state authoi-ity 
 and state legislation ; it is not to be admitted that a mere gi'ant of 
 such powers in affirmative terms to congress, does, per se, transfer 
 an exclusive sovereignty on such subjects to the latter. On the 
 contrary, a reasonable interpretation of that instrument necessarily 
 loads to the conclusion, that the powers so granted are never ex- 
 clusive of similar powers existing in the state, unless, where the 
 constitution has expressly, in terms given, an exclusive power to 
 congress, or the exercise of a hke power is prohibited to the states, 
 or there is a direct repugnancy, or incompatibility in the exercise 
 of it by the states. " In all other cases not falling within tho 
 classes above mentioned, it seems unquestionable that the states ; 
 retain concurrent authority with congress, not only upon the letter 
 and spuit of the eleventh amendment of the constitution, but 
 upon the soundest principles of general reasoning. There is this 
 reseiwe, however, that in cases of concm-rent authority, where the 
 laws of the states, and of the union are in du'ect and manifest colh- 
 sion on the same subject ; those of the union, being " tho supreme 
 law of tho land," are of paramount authority, and the state laws, 
 so far, and so far only, as such incompatibility exists, must neces- 
 sarily yield." 
 
 a Houston v. Moore, 5 'NVlieat. 48.
 
 670 OF CONSTITUTIONAL INTEKPEETATION. 
 
 An attempt to illustrate tliese principles by the almost number- 
 less cases to be found in the books of reports, would divert this 
 work from a treatise, to a digest, which is not intended. A few 
 instances will suffice. This subject it will be seen, affords an 
 ample field for discussion, and is susceptible of being renewed and 
 elaborated by the various changes and modifications which arise 
 in practice. The system as a whole, is complex ; it presents the 
 rare, novel and difficult scheme of one general government whose 
 action extends over the whole, but which still possesses only enu- 
 merated powers ; and also, now, of at least thirty-six different state 
 governments, which retain and exercise many powers not delegated 
 to the union. Of course contests respecting power must arise, a 
 
 "All experience shows that the same measures, 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 some- 
 times approach each other so nearly as to be confounded, there 
 are other situations in which they are sufficiently distinct to es- 
 tablish their individuality." b 
 
 Thus, an affirmative power in congress to lay taxes, &c., is not 
 necessarily incompatible with a like power in the states. Both 
 may exist without interference ; and if any interference should 
 arise in a particular case, the question of supremacy would turn, 
 not upon the nature of the power, but upon supremacy of right in 
 the exercise of power in that case. Unless from the nature of the 
 power, or from the obvious results of its operations, a repugnancy 
 must exist, so as to lead to a necessary conclusion that the power 
 was intended to be . exclusive, the true rule of interpretation is, 
 that the power is merely concurrent. It would seem that the 
 convention which formed the federal constitution, thought, that 
 concurrent jurisdiction was preferable to subordination ; and it is 
 evident that it has at least the merit, of reconciling an indefinite 
 constitutional power of taxation in the federal government, with 
 an adequate and independent power in the states to provide for 
 their own necessities, c 
 
 The chances of conflict between the laws of the Union and 
 
 a Gibbons v. Ogden. 9 Wheat. 205. & Id. 
 
 c Federalist No. 32, by Hamilton.
 
 OF CONSTITUnON.VL lYlTllPIlETAnON. 671 
 
 those of the states, was doubtless foreseen by the fraincrs of the 
 constitution, and its possibility, nay even its probability, wisely 
 and expressly provided against in the declaration, that its laws, &.c. 
 " shall be the supremo law of the laud ;" so that if a state pass a 
 law inconsistent with the constitution of the United States, it is a 
 mere nullity. Even if a state pass a law clearly within its ovra 
 apparent constitutional powers, if it conflict with the exercise of a 
 power given to congi'ess, to the extent of the interference, its ope- 
 ration is suspended ; for, in a conflict of laws, the superior must 
 govern, and it is the same, if the conflict be with a treaty, a 
 
 This is an axiom as well in law as in logic, that the controlling 
 power cannot bo controlled by its inferior or subordhiate. So also 
 of these propositions, 1st, That if power is given to create a thing, it 
 implies a power to preserve it. Secondly, that a power to destroy, 
 if wielded by a difl'erent hand, is hostile to and incompatible with 
 the power to create and preserve. Thii-dly, where this repugnancy 
 exists, the authority which is supreme, must control, and not yield 
 to that over which it is supreme ; consequently the inferior power 
 becomes a nullity, h 
 
 Another question naturally arises out of the exercise of a con- 
 current power, by both the federal and the state governments. In 
 that case, does the actual legislation by congi'ess, after legislation 
 by the state on the same subject, supersede, or does it only 
 suspend the operation of the state law over the same subject mat 
 ter ? It is believed that no answer can be given to this interrog- 
 atory which shall bo of universal appKcation. In a case in th 
 federal court, c it was equally divided on this question. That wa, 
 a case, where congress under the power to provide for " organiz- 
 ing, arming and disciplining the militia," had passed an act for 
 that purpose, and afterwards the state of Pennsylvania passed an 
 act upon the same subject. The state law was held not to be 
 repugnant to the constitution and laws of the United States. Jus- 
 tice Washington delivering an able opinion to the contrary. 
 
 Another similar question arose under the power ot congi'ess to 
 establish uniform laws on the subject of bankruptcies. Was this 
 
 a Gibbons v. Ogden, 9 Wheat, 210; Storj' on Constitution, § 439. 
 6 McCuUoch V. Marj'land, 4 "WTieat. 42G. 
 c Houston V. Mooro, 5 Wheat. 1.
 
 G72 OF CONSTITUTIONAL XNTEKPEETATION. 
 
 power exclusive, or concurrent with the states? a It was held, 
 that the states have authority to pass bankrupt laws, provided 
 such law does not impau* the obhgation of contracts, and provided 
 there be no act of congress in force to establish a uniform system 
 of banla'uptcy conflicting with such law. And that whenever 
 the terms in which a power is granted by the constitution to con- 
 gress, or whenever the nature of the power itself requu-es that it 
 should be exercised exclusively by congress, the subject is as com- 
 pletely taken away from the state legislatures as if they had been 
 expressly forbidden to act on it. They also held, that the power 
 granted to congi'ess of estabhshing uniform laws on the subject of 
 bankruptcies, is not of that description ; and that the power of the 
 states to pass bankrupt laws is not extinguished by the enactment 
 of a imiform bankrupt law throughout the union by congress. It 
 is only suspended so far as the two laws conflict. 
 
 This power of congress may be exercised or declined, as the 
 wisdom of that body shall decide. It is not the existence of the 
 power, but its exercise, which is incompatible with the exercise of 
 the same power by the states. It seems, at this day, to be con- 
 ceded, that the power of taxation given to congress, is not exclu- 
 sive. So too, as to the power of congress to organize, discipline, 
 and arm the militia, it is held is not exclusive ; and is held not to 
 be incompatible with the exercise of the Hke power by the states, 
 and especially it is held, that the states possess this power in the 
 absence of congressional legislation. It would then be indispen- 
 sable to the defence and security of the states, h Again, congress 
 have power to call forth the militia to execute the laws of the 
 Union, to suppress insurrections, and repel invasions ; and it is not 
 incompatible that the states should possess the same power, for 
 the same purposes, to call out their own militia, c 
 
 Upon tliis subject it wiU be found that the exceptions to, and 
 modifications to general rules, become a subject too prohfic and 
 exhaustless, to be followed up in tliis work. 
 
 Justice Story, in his work on the constitution, has laid down a 
 few general rules of interpretation of constitutional powers, d 
 
 a Sturgis v. Crowninshield, 4 Wheat. 192-19G, &c. 
 
 h Houston V. Moore, 5 Wheat. 50, 51, 52. 
 
 c Id. d Story on Const., § 44:7.
 
 OF CONSTITUTIONAL INTERrRETATlON. 673 
 
 wliicli we Ciiimot omit to transcribe, as deductions from wlmt pre- 
 cedes thoin in his work : 
 
 "1st. Wlicnover the power given to tiie general government 
 requires, that, to be efficacious and adequate to its end, it should 
 be exclusive, there arises a just implication for deeming it exclu- 
 sive. Whether exercised or not, in such case, it makes no differ- 
 ence. 
 
 " 2d. Whenever the power in its own nature is not incompatible 
 with a concurrent power in the states, either in its nature, or 
 exercise, there the power belongs to the states. 
 
 " 3d. But in such case, the concurrence of the power, may admit 
 of restrictions or qualifications in its nature or exercise. In its 
 nature, when it is capable from its general character of being 
 applied to objects or purposes which would control, defeat or 
 destroy the powers of the general government. In its exercise, 
 when there arises a conflict in the actual laws and regulations 
 made in pursuance of the power by the general and state govern- 
 ments. In the former case, there is a qualification engrafted upon 
 the generality of the power excluding its application to such 
 objects and purposes. In the latter, there is, (at least generaUy,) a 
 qualification, not upon the power itself, but only upon its exercise, 
 to the extent of the actual conflict in the operations of each. 
 
 " 4th. In cases of implied limitations or prohibitions of power, 
 it is not sufficient to show a possible, or potential inconvenience. 
 There must be a plain incompatibility, a direct repugnancy, or an 
 extreme practical inconvenience, leading irresistibly to the same 
 conclusion. 
 
 " 5th. If such incompatibility, repugnancy, or extreme inconve- 
 nience would result, it is no answer that in the actual exercise of 
 power, each party may, if it chooses, avoid a positive interference 
 with the other. The objection lies to the power itself, and not to 
 the exercise of it. If it exist, it may bo applied to extent of con- 
 trolling, defeating or destroying the other. It can never be pre- 
 sumed that the framers of the constitution, declared to be supreme, 
 could intend to put its powers at hazard, upon the good vrishos, or 
 good intentions or discretion of the states in the exercise of their 
 acknowledged powers. 
 
 " Gth. Where no such repugnancy, incompatibility, or extreme 
 85
 
 G7J: OP CONSTITUTIONAL INTEKPEETATION. 
 
 inconvenience ■svould result, then the power in the states is re- 
 strained, not in its nature, but in its operations ; and then, only to 
 the extent of the actual interference. In fact it is obA^ons, that 
 the same means may often be apphed to carry into operation 
 different powers. And a state may use the same means to effec- 
 tuate an acknowledged power in itself, which congress may apply 
 for another purpose in the acknowledged exercise of a very differ- 
 ent power. Congress may make that a regulation of commerce, 
 which a state may employ as a guard for its internal policy, or to 
 preserve the pubhc health or peace, or to promote its own pecu- 
 liar interests. These rules seem clearly deducible fi'om the nature 
 of the instrument ; and they are confirmed by the positive injunc- 
 tions of the tenth amendment of the constitution." 
 
 Certain maxims and niles of construction adopted or discussed 
 by Judge Storj^ are deserving of consideration in this chapter, — 
 among which are, " that a specification of particulars in an instru- . 
 ment, is the exclusion of generals ;" or in other words, " the expres- 
 sion of one thing, is the exclusion of another." And Lord Bacon's 
 remark is cited with approbation, viz : " that as exception 
 strengthens the force of a law in cases not excepted ; so enumera- 
 tion weakens it, in cases not enumerated." Safe as such maxims 
 are, as a general rule, it still requires skill to see that they are not 
 appHed to the subversion of the intent and object of the instru- 
 ment. They are, in particular cases, susceptible of being so im- 
 properly applied, by the ingenious devices of legal advocates. 
 Thus, Judge Story says, a " it has been suggested, that an affirm- 
 ative proposition in a particular case, excludes the existence of 
 the same thing in every other case ; and a negative provision in a 
 particular case, admits the existence of the same thmg in every 
 other case. " But these are not found in practice to be univer- 
 sal rules. Chief Justice Marshall said, in a case h in the United 
 States Court, that these principles, though generally correct, are 
 too broad for universal rules. It was claimed, that the constitu- 
 tion having provided for the trial by jury in criminal cases, there 
 was an implied exclusion of it in civil cases. This rule could not 
 be allowed to apply in such case. Judge Story says, c " One 
 
 a Story on Const., § 448. c § 448, Supra. 
 
 h Cohens v. Virginia, 6 Wheat. 401, and Federalist, No. 83.
 
 OF CONSTITUTION.VL I-VHIRrRETATION'. 075 
 
 might with just as much [)ropriety hold, that because congress 
 has p(nver to dcchiro war," but no express power to make peace, 
 that tlie latter is excludcil; or, tliat because it is dcchired that no bill 
 of attainder or ex pjst fado shall be jiassed by congi'ess, therefore 
 'ongress ])ossess the power and right in all other cases, to pass laws* 
 ^ he true rule is, in order to ascertain how far our affirmative or neg- 
 ative provision, includes or implies others, that we nuist look to the 
 nature of the pro^^siou, the subject matter, the objects, and the 
 scope of the instrument. These, and these only, can properly de- 
 teriuine the rule of construction. There can be no doubt that an 
 aflinnative gi-ant of powers in many cases, will imply an exclusion 
 of all others. As for instance, the constitution declares that the 
 powers of congress shall extend to certain enumerated cases. This 
 specification of particulars, evidently excludes all pretentions to a 
 general legislative authority. '^Miy ? Because an affirmative gi'ant 
 of special powers would be absurd, as well as useless-, if a general 
 authority were intended. In relation then to such a subject as a 
 constitution, the natural and obvious sense of its provisions, apart 
 from any technical or artificial rules, is the true criterion of con- 
 struction." 
 
 " ^Vnothcr rule of intcrin'etation of the constitution suggested by 
 the foregoing, is, that the natural import of a single clause, is not 
 to be narrowed so as to exclude implied powers resulting from its 
 character, simply because there is another clause whicli enumer- 
 ates certain powers, which might otherwise be deemed implied 
 powers within its scope ; for in such cases, we are not, as a matter 
 of course, to assume that the affirmative specification, excludes all 
 other implications." a 
 
 We cannot do better in laying down niles that belong to verbal 
 criticisms upon the interpretation of words employed in the con- 
 stitution, than to adopt those laid down by Judge Story. 
 
 "In the first place, then, every word employed in the constitu- 
 tion, is to be expounded in its plain, obvious, and common sense 
 3 leaning, unless the context furnishes some gi-ouud to control, 
 (qualify or enlarge it. Constitutions are not designed for meta- 
 physical or logical subtleties ; for niceties of expression; for critical 
 propriety ; for elaborate shades of meaning ; or for the exercise of 
 a Story ou Coust., ^ \Vi.
 
 G7G OP C02\STITUTI0NAL INTERPRETATION. 
 
 pliilosopliical acuteuoss, or judicial research. They are instruments 
 of a practical nature, founded on the common business of life, 
 adopted to common wants, designed for common use, and fitted 
 for common understandings. The people make them ; the people 
 adopt them ; the people must be supposed to read them with the 
 help of common sense; and cannot be presumed to admit in them, 
 any recondite meaning, or any extraordinary gloss." a 
 
 " But in the next place, words, from the necessary imperfection 
 of all human language, acquire different shades of meaning, each 
 of which is equally appropriate, and equally legitimate ; each of 
 which recedes in a wider or narrower degree from the others, ac- 
 cording to circumstances ; and each of which, receives from its 
 general use, some such indefiniteness and obscurity as to its exact 
 boundaiy and extent. /; We are, indeed, often driven to multiply 
 commentaries, from the vagueness of words in themselves ; and per- 
 haps still more often, from the different manner in which different 
 minds are accustomed to employ them. They expand or contract, 
 not only fi-om the conventional modifications introduced by the 
 changes of society, but also from the more loose, or more exact 
 uses to which men of different talents, acquirements, and tastes, 
 from choice, or necessity, appl}' them. No person can fail to re- 
 mark the gradual deflections in meaning of words, from one age to 
 another ; and so constantly is this process going on, that the daily 
 language of life in one generation, sometimes requires the aid of a 
 glossary in another. It has been justly remarked, that no language 
 is so copious, as to supply words and phrases for every complex 
 idea ; or so correct, as not to include many equivocally denoting 
 different ideas. Hence it must happen, that however accurately 
 objects may be discriminated in themselves, and however accu- 
 rately the discrimination may be considered, the definition of them 
 may be rendered inaccurate, by the inaccuracy of the terms in 
 which it is delivered. We must resort then to the context, and 
 shape the particular meaning, so as to make it fit that of the con- 
 necting words, and agree with the subject matter." c 
 
 " In the next place, where technical words are used, the technical 
 meaning is to be applied to them, unless it is repelled by the con- 
 
 a Story on -Const. § 451. c Story ou Const, § 452. 
 
 h Vattel, B., 2 Ch. 17, §§ 202, 299.
 
 OP CONSTITCTIONAI, INTERPHETATIOX. C77 
 
 text. But tlio sarao word often p(jssessc.s a technical, and also a 
 common sense meaning. In such a case, the latter is io be pre- 
 ferred, imless some attendant circumstance jxjints clearly t(j the 
 former. No one would doubt, where the constitution has declared 
 "that the privilege of the writ of /micas corpus shall not bo sus- 
 pended unless under peculiar circunistances, that it refeired, not 
 to every sort of writ which has acquired that name ; but to that, 
 which has been emphatically so called, on account of its remedial 
 power to free a party fi'om arbitrary imprisonment, a So agam, 
 where it declares that insults at co/miion hnv, etc., the right of trial 
 ^^y j^iry shall be preserved, though the phrase conniton law admits 
 of different meanings, no one can doubt, that it is used in a tech- 
 nical sense. TMien, again, it declares that congress shall have 
 power to provide a navy, we readily comprehend, that authority 
 is given to construct, prepare, or in any other manner to obtain a 
 nav}-. But when congress is further authorized to provide for 
 calling forth the militia, we perceive at once, that the word " pro- 
 vide" is used in a somewhat different sense." h 
 
 " And this leads us to remark in the next place, that it is by no 
 means a correct rule of interpretation, to construe the same word 
 in the same sense wherever it occurs in the same instrument. It 
 does not follow, either logically or grammatically, that because a 
 word is found in one connection in the constitution, with a definite 
 sense, therefore the same sense is to be adopted in every other 
 connection in which it occurs, c This would be to suppose, that 
 the framers weighed only the force of single words, as philologists 
 or critics, and not the whole clauses and objects, as statesmen 
 and practical reasoners. And yet nothing has been more common, 
 than to subject the constitution to this narrow and mischievous 
 criticism. Men of ingenious and subtle mmds, who seek for sym- 
 metry and harmony in language, having formed in the constitution 
 a word used in some sense which falls in their favorite theory of 
 intei'prcting it, have made that the standard, by which to measiu'e 
 its use in every other part of the instrument. They have thus 
 stretched it, as it were, on the bed of Procrustes, lopping off its 
 meaning when it seemed too large for their purposes, and cxteud- 
 
 o Ex Parte, Bolman, -1 Craucb. 100. c Vuttel, B. 2, Ch. 17, § 281. 
 
 h Story oa Const, § -153,
 
 G78 OF CONSTITUTIONAL INTEErRETATION. 
 
 ing it when it seemed too short. They have thus distorted it to 
 the most unnatural shapes, and crippled, where they have sought 
 only to adjust its proportions according to their own opinions. 
 
 It was very justly observed by Mr. Chief Justice Marshall in 
 the case of Cherokee Nation v. Georgia, a that "it has been said, 
 ihat the same words have not necessarily the same meaning attached 
 to them, when found in different parts of the same instrument. 
 Their meaning is controlled by the context. This is undoubtedly 
 true. In common language, the same word has different and 
 various meanuigs, and the peculiar sense, in which it is used in 
 any sentence, is to be determined by the context. A very easy 
 example of this sort will be found in the use of the word " estab- 
 lish," wdiich is found in various places in the constitution. Thus, 
 in the preamble ; one object of the constitution is avowed to be 
 " to estabhsh justice ;" which seems here to mean, to settle firmly, 
 to fix unalterably, or rather, perhaps, as justice, abstractedly con- 
 sidered, must be considered as forever fixed and unalterable, — to 
 dispense or administer justice. Again, the constitution declares, 
 that congress shall have power, " to establish a uniform rule of 
 naturalization, and uniform laws on the subject of bankruptcies," 
 where it is manifestly used as equivalent to mal'e or reform, and 
 not tojix or settle, unalterably and forever. Again, " congress shall 
 have power to establish post-offices and post-roads," where the 
 appropriate sense would seem to be, " to create," to found, and 
 to regulate ; not so much with a view to permanence of foiTQ, as to 
 convenience of action. Again, it is declared, " that congress shall 
 make no law respecting an establishment of religion;" which seems 
 to proliibit any law, which shall recognize, found, confirm, or pat- 
 ronize any particular religion, or form of religion ; whether perma- 
 nent or temporary ; whether already existing, or to arise in future. 
 In this clause, " establishment," seems equivalent in meaning to 
 settlement, recognition, or support. And again, in the preamble, 
 it is said, " We the people, &c., do ordain and establish this con- 
 stitution, &c.," where the most appropriate sense seems. to be to 
 create, to ratify and confirm. So the word " state" wdll be found 
 used in the constitution, in all the various senses to which we 
 have before alluded. It sometimes means, the separate sections 
 
 a 5 Peters, E. 1, 19.
 
 OP CONSTITUTIONAL INl-ERrilETATION. (170 
 
 of territory occupied by the political societies witlihi ei.vh ; some- 
 times the particular governmeuts established by these societies ; 
 sometimes these societies as organized into these particular gov- 
 ernments; and lastl}'', sometimes the people composing these 
 pohtical societies in their highest sovereign capacity. 
 
 " But the most important rule in cases of this nature, ii, that a 
 constitution of government does not, and cannot fiom its nature, 
 depend in any great degi-ee upon mere verbal criticism, or upon 
 the import of single words. Such criticism may not be wholly 
 without use ; it may sometimes illustrate, or unfold the appropriate 
 sense ; but unless it stands well with the context, and subject mat- 
 ter, it must yield to the latter. While then, we may well resort to 
 the meaning of single words to assist our enquiries, we should 
 never forget, that it is an insti-ument of government we are to con- 
 strue ; and, .as has already been stated, that must be the truest 
 exposition, which best harmonizes with its design, its objects, and 
 its general structure." a 
 
 The remark of Mr. Burke, may, with a very slight change of 
 phrase, be addressed as an admonition to all those, who are called 
 upon to frame, or interpret a constitution. " Government, is a 
 practical thing, made for the happiness of mankind, and not to 
 furnish out a spectacle of uniformity to gi'atify the schemes of 
 visionary politicians. The business of those who are called to ad- 
 minister it, is to rule, and not to wrangle. It would be a poor 
 compensation, that one had triumphecl in a dispute, while we 
 had lost an empire ; that we had frittered down a power, and at 
 the same time had destroyed the republic." 
 
 a Yattel, B. 2, Ch. 17, §§ 285-286.
 
 INDEX. 
 
 EEFEEENCE IS TO THE PAGES OF THIS "WORK- 
 
 ACCUSATION and trial for crime, 530-584. 
 
 constitutional protection to the accused, 530-534. 
 
 enumeration of the constitutional privileges to the accused, 530-531. 
 AFFIRMATIVE and negative statutes, 70-72. 
 
 distinction between, 70-72, 229, 230. 
 AFFIRMATIVE statute, what it is, 74. 
 AFFIRMATIVE words, how construed, 219, 220. 
 AMERICA, new statutes in, 43. 
 AMERICAN statutes, what, and how made, 43. 
 AMERICAN legislatures, modelled after the English, 43. 
 
 possess limited power, 43. 
 AMERICAN rules of interpretation, 143-146. 
 AUTHENTICATION of statutes, records and judgments, 358-362. 
 AUTHORITY and effect of particular statutes, 151-153. 
 
 B 
 
 BLASPHEMY, punishable, 559-561. 
 
 what it is, 559. 
 BOUNDARIES of unrestricted legislation, 304-308. 
 
 in the French and English systems, 304-314. 
 
 under the American theory, 314-317. 
 BREACHES of privilege, 569-658. 
 
 c 
 
 CAPTIONS of English statutes in the reign of Henry III, 41. 
 CHANCELLOR Kent's definition of municipal law, 37. 
 CHARACTER of a nation found in her written laws, 38. 
 COKE, Sir Edward, opinion of, as to ancient statutes, 40. 
 CODE Napoleon, history of, 300-303. 
 
 to what countries extended, 303. 
 CODIFICATION, attempts at, 115-116. 
 86
 
 G82 INDEX. 
 
 CHRISTIANITY, recognized in judicial decisions and in jnrisprudenco, 555-5G9 
 COMITY of states and between states, 65, 67, 356, 358. 
 COMMON law, rules to control construction of statutes, 185, 186. 
 COMMONS, house of, one part of parliament, 40, 41. 
 
 when first acknowledged, 41. 
 CONSTITUTION, British, what it is, 44, 45. 
 
 how they change it, 45. 
 
 of New Y^ork, 43. 
 
 of national and state governments, 45, 352-370. 
 
 American, what, 45. 
 
 by whom made, 45. 
 
 who has power to make, 45 . 
 
 their limitations on legislation, 62-66. 
 
 in whom resides the power to make, 45. 
 
 laws made in violation of, void, 46. 
 
 American, do not themselves, fix and specify the limit of the powers of the 
 several departments of the government, 339, 340. 
 
 based on the principles of the declaration of independence, 346-348. 
 
 of the United States, by whom ratified, 355-357. 
 what it is, G54. 
 rules for its interpretation, 655-679. 
 
 concurrent powers between national and state, examined, 671-674. 
 
 rules for interpreting state and natioual, alike, 6G0. 
 
 strict and liberal rules, examined, 661-668. 
 
 whether there is a discretionary power of construction, 664-666. '. 
 
 its conflict with state constitutions, 668-671 . 
 
 maxims of construction, 674-676. 
 CONSTITUTIONAL Law, what, and what otherwise, 362-365. 
 who may declare this, 365-370. 
 
 power, under American systems, 330-370. 
 
 distinction between English and American, 330-370. 
 
 its limitation in America, 330-370. 
 CONSTITUTIONAL Protection, that life, liberty and property be not taken witb 
 out due process of law, 428-443. 
 
 secured by national and state constitutions, 428-443. 
 
 to personal property, 468-492. 
 
 to personal liberty, 493-524. 
 
 the provisions enumerated and specified, 493-495 . 
 
 most ample to the citizens of the United States, 494, &c. 
 
 government essential to their protection, 496. 
 
 limitations of, 496-524. , 
 
 how citizens may forfeit these rights. 496-524. ^ 
 
 to the person of the citizen other than personal liberty, 525-565. ' 
 
 to persons accused of crime, enumeration of rights and privileges, 530-534. 
 CONSTKUCTION, of deeds, wills and written instruments, same as statutes, 
 175-178. 
 
 same of constitution, as of statutes, 654.
 
 INDEX. G83 
 
 CONSTHUCTIOX, of words, 272-27.3. 
 
 of phrases and words, 277-295. 
 
 four things to be observed in construction, 184. 
 CREDITOR and debtor, their relations, powers, obligations and duties to each 
 
 other, 522-524. 
 CONTEMPTS, how punished, 490-501. 
 
 who may punish, 499-501. 
 CONTRACTS, impairing obligation of, 47G-479. 
 COURIS, how they originated, 340. 
 
 from whence they derive their powers, 333-340. 
 
 extent, limitation and regulation of their powers, 341-344. 
 
 distinction between their powers, and the presumptions arising from their 
 acts, 342. 
 CRUEL and unusual punishments, constitutional protection against, 535. 
 
 D 
 
 DECLARATORY statutes, 68-70, 221. 
 
 DEEDS, wills and other writings construed by the same rule as statutes, 175-178. 
 DEFINITION of words and phrases, 272-274. 
 \ DEPARTMENTS of government, how many, and the powers of each, 333-370. 
 //DIVINE authority of statutes, 3G. 
 DIVISION of statutes, 08. 
 
 of sovereign power, 82- 90. 
 DmSIONS, co-ordinate, 84-90. 
 
 not of equal influence, 84-90. 
 
 powers of each department, 84-90. 
 DIRECTORY words in a statute, 222-225. 
 DIVORCE cases, jurisdiction in, how obtained, 481-483. 
 
 when court can decree the payment of money in, 486. 
 DOUBTFUL and obscure words, how construed, 201. 
 DOMAT'S rules of interpretiition, 137-142. 
 DUE process of law, what it is, 395-400, 468-470, 479-489. 
 
 does not include the right to a common law jury in all cases, 398-400. 
 
 what it means, what it secures, 429-432, 441. 
 
 includes the right of trial by jury in all criminal cases, 432, 442-443. 
 
 its value in civil cases, 434. 
 
 in what cases the right of trial by jury is not secured by the constitution, 
 435-438- 
 
 E 
 
 EFFECT of the repeal of certain statutes, 154-160. 
 EMINENT Domain, right of, 372-394. 
 
 an inherent power of sovereignty, 373 . 
 
 not changed by the national or state constitutions, 374.
 
 684 INDEX. 
 
 EMINENT Domain, existed before the constitution, 374. 
 
 how it differs from taxation, 375. 
 
 does not allow the property of one citizen to be taken and transferred to 
 another, 375. 
 
 limitation of public right, 376, &g. 
 
 provision must be made for compensation, 378. 
 
 extent of power differs in different states, 380, 331. 
 
 what maj' be taken under it, 381, 382. 
 
 by whom it may be taken, 382-384. 
 
 who to determine the necessity, 384-387. 
 
 how compensation is to be obtained, 388-392. 
 
 difference between taking directly by the state, and by corporations ox 
 individuals, 391, 392. 
 
 legislature may declare the extent of the use, 394. 
 
 must also be done by due process of law, 395-400. 
 ENGLISH writers, their definition of statutes, 40-43. 
 
 as to the powers of the king in making laws, 40. 
 ENGLISH jDarliament, its powers, 44. 
 ENGLISH statutes, captions to, 41. 
 ENGLAND, common law of, 43. 
 EQUITABLE construction of statutes, 239-244. 
 EXCEPTIONS in a statute, effect of, 119. 
 EX post facto statutes, 167, 168. 
 EXCESSIVE bail, prohibition of, 535. 
 
 F 
 
 FATHER and child, their relations, their respective obligations, powers and 
 
 duties, 509-513. 
 FINES, excessive, prohibited, 535. 
 FREE discussion, and petition, protected, 436, 537. 
 FREEDOM of speech, and of the press, secured and protected, 537-553. 
 
 distinction between protection or liberty, and licentiousness, 539-544. 
 
 what cases and what persons are excepted, and to what extent, 544. 
 
 counsel and legislators liable when they abuse the privilege, 546-550. 
 
 editors of public newspapers, how far protected, 550-554. 
 
 G 
 
 GENERAL and particular rules of interpretation of statutes, 122-146, 147-174. 
 GOD, the Author of the divine law, 36. 
 
 municipal laws derived from His rules, 36. ^ 
 
 approach of human laws to His laws, 36. 
 
 His statutes, 36. 
 
 the source of all power, order, right, and authority, the one law-giver, 45 . 
 GOVERNMENT, its power to make laws, 34.
 
 INDEX. G8o 
 
 GO"\TEIlNMENT, its object, 35. 
 
 its power limited in America, 40. 
 
 effect of bad, 319-330. 
 
 in what consists its dangers and evils, 32C-330. 
 
 rights of citizens under it, 345-317. 
 
 the number of states constituting the national, 340. 
 GOVERNilENTS, no necessary conflict between national and state, 3ol-3C8. 
 
 necessary to the protection of personal liberty, 49G. 
 
 and to establish limitations, 49G, SiC. 
 GROTIUS, his rules of interpretation of statutes, 133, 134. 
 GUAEDIAN and Ward, their several relations, powers, obligations and duties, 
 
 513-51G. 
 GUARAI?TEES, of the citizen under constitutions, 344-350. 
 
 H 
 
 HABITUAL drunkards, estates may be taken under statute provisions against 
 
 their consent, 487, 488. 
 HABEAS Corpus, what it is, and for what it may be used, 502-524. 
 
 the limitations to its use, 503-524. 
 HUilAN laws, what intended to be, origin of, 36. 
 HUSBAND and wife, their relations, reciprocal powers, duties and obligations, 
 
 505-509. 
 
 IDIOTS, lunatics and habitual drunkards, 4S7, 488. 
 
 their estates may be taken without their consent by legislative provisions, 
 487, 488. 
 IMPAIRING obligation of contracts, 476-478. 
 IMPERATH'E statutes, 222-225. 
 
 IMPRISONMENT for debts, when creditor may imprison his debtor, 522-524. 
 INTENTION to control construction, over the letter, 175-180. 
 
 to be discovered from its words, 182, 183. 
 INTERPRETATION, general rules for, 47-52, 
 commentary upon, 47-52. 
 
 good faith and common sense required, 47-52. 
 
 liberal construction in favor of liberty, and strict construction for the 
 security of the citizen, 49. 
 
 does not belong to the legislature. 111. 
 
 by whom, in absolute monarchies, 112. 
 
 particular rules for, 122-146. 
 
 judicial; independent of written constitutions, 296-329. 
 
 of constitutions, difference between state and national, 368.
 
 GSG INDEX. 
 
 JUDICIAL power, v.hen necessarj', for what purpose exercised, 65, 66. 
 
 department, its value and protection, 65, 66, 67. 
 JUDICIARY, their functions and vahie, duties, 65, 66, 67. 
 
 power to declare statutes void, 65-67. 
 
 their dutj' to do so, when, 365-368. 
 JURISPRUDENCE, history of, English, French, American, 290-330. 
 
 how developed, 298* 
 
 and legislation, distinction between, 299. 
 
 power of, 317-319. 
 JURISDICTION, between national and state governments, boundary line, &c., 3G1. 
 
 over parties, how obtained, 480-489. 
 
 how in divorce cases, 481-483. 
 JURY trial, 469, 470. 
 
 what cases are excepted from this right, 470, 471. 
 
 K 
 
 KING of England, his authority in making laws, 39, 40. 
 his name in caption of statutes, 41. 
 
 LA"W, its origin and necessity, 34. 
 the result of society, 35. 
 the act of government, 35. 
 its supremacy, 35. 
 statute, what, its definition, 35. 
 
 void, if it conflict with the constitution, 46, 
 respect due to it, 37. 
 its definition, 37. 
 its elements, 38. 
 municipal, its origin, 36. 
 
 includes statute law, 37. 
 human, why imperfect, 36. 
 
 cannot abrogate the Divine, 37. 
 is composed of two elements, 38. 
 its effect upon a nation, 38. 
 common, what it is, 42, 43. 
 
 Enghlish, adopted by the colonies, 43. 
 
 adopted by New York constitutions, 43. 
 of domicile and of contrast, 97, 98. 
 
 ■who has power to make it, in civilized governments, 330-334. 
 different theories as to source of power, 330-334. 
 American theory, 330-334.
 
 INDEX. C87 
 
 LAW, necessity of, in organized society, 335-337. 
 
 agency of the executive in the enactment of, 338. 
 
 of the legislative, 339. 
 written, defines a nation's progress, 38, 39. 
 LEGISLATION, a necessary power of government, 35. 
 its powers, C3, 64. 
 
 by what, and how restricted in power, 63, 64. 
 its power to enact laws, G0-C4. 
 a part of jurisprudence, 29G-330. 
 LEGISLATIVE power, liable to abuse, 3C9, 370. 
 LEGISLATURE, cannot act judicially, 489, 492. 
 LEGISLATIVE department, what it is, 566. 
 
 their powers, 566. 
 privileges, what they are, 566-653. 
 
 to whom they belong, 5G6-653. 
 
 their necessity. 56C-()53. 
 
 what was originally claimed in the English house of commons, 
 
 507. 
 how limited by modern statutes, 567. 
 diversity of, in American states, 568, &c. 
 what is included in them, 369, &c. 
 a case of conflict between the assembly of New York and the 
 
 judiciaiy, 572-605. 
 report of legislative committee, 573-58L 
 defence of the judiciary, 581-605. 
 
 history of, in England, ancient and modern, with its changes 
 and modifications, 605-653. 
 LDIITATIONS, statute of, how pleaded, 147-150. 
 LOCAL acts, how interpreted, 271-274. 
 
 LUNATICS, &c., estates may be taken under statute provisions against their 
 consent, 487, 488. 
 
 M 
 
 M.\NNEE of pleading statutes, 147-150. 
 MAHraAGE contracts, what, 94-96. 
 
 foreign law regulating, 94-96. 
 MASTER and Apprentice, their respective powers, duties, and obligations, 
 
 516-518. 
 M.\STER and Servant, their powers, duties, and obligations, 518. 
 ^LAX.L^1S and rules of ixiterpvetation of stati;tes, 121-146. 
 MIXED statutes, what, 94. 
 MUNICIPAL law, what, 36, 37. 
 
 N 
 N.iTURAL justice, statutes against, not void, 81, 82.
 
 G88 INDEX. 
 
 NEGATIVE statute, what it is, 74. 
 
 NEWSPAPEKS, to what extent protected in their publications, 550-554. 
 
 the progress in character and usefulness as well as in public demand, 
 550-554. 
 NEW statutes, when they become necessary in America, 43. 
 
 o 
 
 OPINIONS, religious, protected and allowed, 554-565. 
 OEIGIN of statute law, 36. 
 
 of parliaments, 40, 41 . 
 
 of our common law, 43. 
 
 of constitutions in America, 45. 
 
 PAHLIAMENT of England, when first recognized, 41 . 
 
 its authority and power, 41. 
 
 its composition, 40, 41. 
 
 when the Commons became a part of it, 41. 
 
 their caption to statutes, 41. 
 PARTICULAR construction of statutes, 174, 271-274. 
 PARTICULAR and special acts, 271-274. 
 
 PETITION against grievances, secured to the citizen, 536, 537. 
 PERSONAL statutes, what, 90-92. 
 PENAL statute, definition of, 74, 75. 
 
 construction of, 243-250. 
 PERMISSIVE statute, construction of, 74, 219, 220. 
 PERPETUAL statute, construction of, 74. 
 PROSPECTIVE statute, construction of, 74. 
 PRECEPTIVE statute, construction of, 74. 
 PROHIBITIVE statute, construction of, 74, IGl, 162. 
 POLICE Power, 444. 
 
 is sometimes called the law of necessity, 444, 
 
 is in accordance with the common law at the time of the adoption of the 
 constitution, 44G. 
 
 is the settled policy of the state and of organized society, 44r6-449. 
 
 no general statute regulating it in this state, 450. 
 
 certain propositions in regard to it adjudged, 452. 
 
 its justice discussed, 453-456. 
 
 is subject to legislative control in certain respects, 457, 461. 
 
 when the question of commerce arises, then a nice question of jurisdiction 
 arises, 462-4G4. 
 
 it includes the laws regulating the observance of the Sabbath, 464-467. 
 
 and various other subjects mentioned, 467. 
 POLICY of statutes, 214, 215.
 
 INDEX. 689 
 
 POWER of legislation, in whom, 02. 
 
 . ftnd restrictions of legislation, C3, C4, Co, 
 
 POWER, of States, upon whom it depends, 352-370. 
 
 prohibited to the States, 348-351. 
 
 by whom invested in the constitution, 351-353. 
 
 exercise of, whom it binds, 3G0-3G3. 
 
 ditiorenco between their constitutions and laws, 3G'I:-3GG. 
 PllINCIPAL and Surety, their respective powers, obligations, and duties, 622. 
 PKEA:\IBLE of a statute, its force and effect, 265-270. 
 PROVISOS in statutes, 118-120. 
 
 PROCEEDINGS in rem, jurisdiction, how obtained, 483-48C. 
 PUFFENDORF'S rules and maxims of construction, 132, 133. 
 
 Q 
 
 QU.VLITIES and incidents of statutes, 121, 122. 
 
 QUALIFIED, construction of, 174.-185. 
 
 QUARTERING soldiers in private houses, constitutional provision against, 526. 
 
 B 
 
 REAL statutes, what, 92-94. 
 REMEDIAL statute, what it is, 73, 231-236. 
 RETROSPECTIVE statute, what it is, 75. 
 REPEAL of statutes, 113, 114, 154-160. 
 RETROSPECTIVE statutes, 163-166. 
 REASON of a law, how obtained, 187, 188. 
 RELIGIOUS opinions, free exercise of, 554-565. 
 
 institutions, separated from civil, 555, 557. 
 
 constitutional, separation and protection, 556, 558. 
 RE]MEDIES, how they affect rights, 470-489. 
 
 how far legislation may go, 471, 472. 
 
 abolishment of imprisonment only affects a remedy, 472. 
 
 exemption of certain property from execution, 473. 
 
 destruction of all remedy unconstitutional, 474. 
 
 includes benkrupt and insolvent laws, 474. 
 
 when the States may and when they may not pass bankrupt laws, 475-477. 
 RIGHTS, of life, liberty and property, how preserved, 344, 345, 
 
 of petition, secured and protected, 535, 536. 
 RIGHTS and immunities of the citizen, 525, 526. 
 RULES and maxims of interpretation, 121-146. 
 RUTHERFORD'S rules, 135, 136. 
 
 s 
 
 SABBATH day, christian, how recognized by statute, 563. 
 the effect of its abolition in France, 564. 
 87
 
 G90 INDEX. 
 
 STATUTES, their necessity, their object, Zi, 38. 
 their American definition, 35. 
 how made in a republican government, 35. 
 how in a monarchial, 35. 
 their origin, and form of, 36. 
 the Divine, 36. 
 
 sometimes called municipal, 37. 
 their importance and character, 38, 39. 
 cannot meet every case of injustice, 38. 
 ■when first published in England, 40, 41. 
 English, by whom made, 40, 41 . 
 
 history of, and their form, 40, 41. 
 definition of, 40-43. 
 when they became necessary in America, 43, 
 interpretation of, same as in England, 46. 
 ancient, and worn out, in England, become common law, 42. 
 void in America if in conflict with the constitution, 46. 
 void in England, if contrary to the laws of God, or contrary to nature or 
 
 reason, 75-78. 
 and edicts of foreign countries must be produced in evidence to prove 
 
 them, 59. 
 otherwise by parol, 59. 
 Revised, of New York, provide method of proof, 59. 
 
 of other States, the like provision, 60. 
 the power of enacting them, but a part of the sovereign power in America, 
 
 61, 62. 
 divisions of, 52-56. 
 public and private, 52-54. 
 difi'erences between, 56. 
 how divided by civilians, 90. 
 how pleaded, 55. 
 how authenticated, 57-60. 
 how certified, 59. 
 how proved, 60. 
 by whom made, 61, 62. 
 restrictions of power in making, 63, 64. 
 the validity of, by whom determined, 65-67. 
 declaratory, 55, 56. 
 declaratory or remedial, 58. 
 other divisions, 55. 
 proof of, 57. 
 
 power of courts to declare void, 65-67. 
 in the United States void only when they conflict with the constitution, 
 
 79, 80. 
 saving clauses in, 117. 
 
 construed by the same rules as wills, deeds and contracts, 175, 178. 
 the intention, to prevail in their interpretation, 185, 180.
 
 INDEX. 691 
 
 STATUTES, one part to be construed by another, 188. 
 
 so to be construed that all parts shall have effect, 189. 
 inpari matoria, how construed, 189, 191. 
 its spirit to be regarded, 202, 203. 
 strict construction of, when, 251-259. 
 « exceptions to this rule, 2G0-2G4. 
 
 their subject-matter to be regarded in their construction, 201, 202. 
 special, how interpreted, 271-274. 
 STATUTE powers and remedies, 275, 276. 
 STATUTES, how made in England, 99. 
 how in America, 99. 
 their parts, 100. 
 time of taking effect, 100, 101 . 
 their title, and its use and abuse, 102-105. 
 their preambles, the use and the effect of them, 107-109. 
 their intent, to be taken from their words, 109, 110. 
 and the effect of words in interpretation. 111, 112. 
 their repeal, and how effected, 113, 114. 
 defective language of, how treated, 115, 116. 
 saving clause in, 117. 
 provisos in, 118-129. 
 their qualities and incidents, 121, 122. 
 ^ maxims and rules for their interpretation, 121-146. 
 
 manner of pleading them, 147-150. 
 of limitation and of usury, how pleaded, 147-150. 
 authority and effect of, particular, 151-153. 
 repeal of, 154-160. 
 
 effect of repeal upon particulars, 154-160. 
 prohibitory, effect of, 161, 162. 
 retrospective, 163-166. 
 ex post f ado, 167, 168. 
 time of their taking effect, 169-173. 
 
 general, qualified and particular rules of construction, 174. 
 how its words are to be regarded, 193. 
 how, particular words, how general, 193, 195. 
 how statutes of one state are construed in another, 196. 
 how, by the federal courts, 196-198. 
 how to be construed, 237, 238. 
 penal, construction of, 243, 250. 
 relating to trade and commerce, 190. 
 J ambiguous, how to interpret, 208. 
 
 i , no extra territorial authority, 361, &c. 
 laws define a nation's progress, 38. 
 are made in affirmance of natural rights, 39. 
 SOYEEEIGN Power, what it is, 330-338. 
 in whom vested, 330-338.
 
 692 INDEX. 
 
 SOYEKEIGN Power, opinion of English and other wiiters, 330-338. 
 
 its distribution into co-ordinate departments, 330-349 . 
 
 tlie indei^endence of each department of the other, 333-340. 
 
 the functions of the several departments, and their powers respeciively, 
 333-344. 
 
 exercised by its own citizens, 343. 
 
 in American states apportioned to different departments, 82-90, 330-370. 
 SUPREME law of the land, what, in certain cases, 348-370. 
 
 subject to what qualifications, 348-351. 
 
 T 
 
 TAXING Power, 402. 
 
 the basis of the right to exercise it, 402. 
 
 to what it extends, 403, 404, 
 
 who may direct its exercise, 405-408. 
 
 is not limited to local districts' for local taxes, 406-412. 
 • difference between general taxation and local, 412. 
 
 legislative acts directing taxation for aid to corporations not unconstitu- 
 tional, 415-418. 
 
 equality of taxation, impossible, 418. 
 
 legislature possess all the power in this respect except when restrained by 
 the constitution, 420-427. I 
 
 other states than New York have a different policy, and different constitu- 
 tional restrictions, 420, 427. 
 TEACHER and pupil, their relations, powers and duties, 518-522. 
 TITLES to acts of parliament, 41. 
 TIME of statutes taking effect, 1G9, 173. 
 
 u 
 
 USURY, how pleaded, 147-150. 
 UNREASONABLE searches and seizures, 526-529. 
 
 V 
 
 VATTEL'S rules of construction, 126-132. 
 
 w 
 
 WILLS, Deeds, and other writings construed by statute rules, 175-178. 
 WITNESSES, not incompetent by reason of their religious belief, 5G1. 
 form of swearing them, of all religions, 561, 502.
 
 INDEX. 693 
 
 WOEDS of Btatutes, how construed, 193-203. 
 
 bow, when they conflict, 208. 
 
 how, when repugnant, 210, 212. 
 
 how, when doubtful, 213, 214. 
 
 ftffirmativo and permissive, 219, 220. 
 
 declaratory, directory and permissive, 221, 22.2. 
 
 directory and imperative, 223, 224, 225, 228. 
 
 affirmative and negative, 228, 230. 
 WOKDS and phrases, particuhir, how interpreted ''74-295.
 
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